# STATE OF ORISSA v. NAKULA SAHU & ORS

- **Citation:** [1979] 2 S.C.R. 442
- **Court:** Supreme Court of India
- **Decided:** 1978-11-30
- **Case number:** Criminal Appeals Nos. A 25-28 of 1972
- **Bench:** Jaswant Singh, P. S. Kailasam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-orissa-v-nakula-sahu-ors-7610
- **Pages:** 16

## Headnote

Code of Crin1inal Procedure, 1898-Sections 435 and 439-Scope of jurisdiction of Hi1d1 Court in revision.
The respondents in each of the four appeals were convicted and sentenced
under s.
~09 IPC by the Sub-Divisional Magistrate.
On appeal the Sessions
Judge affirmed the conviction and sentences passed against them.
In revision
the High Court set aside the judgments and orders passed by the trial court and .......,
the Sessions Court and acquitted the respondents of all the charges.
On the question of (i) the scope of the power of revision of the High. Oourt
under s. 439 read with s. 435 Cr. P.C. 1898 and when it should be exercised;
and (ii) whether, in arriving at a concurrent finding~ the trial court and the
Sessions Judge committed a manifest error on a point of law which had re·
suited in flagrant miscarriage of justice.
Allowing the appeal,
HELD : ( 1) Although the revisional power of the High Court under s. 439
read withs. 435 of the Code of Criminal Procedure, 1898 is as ·wide as th'e power
of Court of Appeal under s. 423 of the Code, it is well settled that normally
the jurisdiction of the High Court under s. 439 is to be exercised only in ex·
ceptional cases when there
i~ a glaring defect in the procedure or there is a
manifest error on a point of law which has consequently resulted in flagrant
miscarriage of justice. In Akalu Ahir v. Ramdeo Rani, [1973] 2 SCC 583 this
Court held that in spite of the wide language of s. 435 Cr. P.C. 1898 which em·
powered it to satisfy itself as to the correctness, legality or properiety of any ~
finding, :.entence or order recorded or passed by any inferior court situate within
the Jimits of its jurisdiction and as to regularity of any proceeding of such inferior court and in spite of the fact that under s. 439 of the Code it can exercise, inter alia, the power conferred on a Court of appeal under s. 423, the
High Court is not expected to act under s. 435 or s. 439 as if it is hearing an
appeal.
The power being discretionary it has to be exercised judiciously and
not arbitrarily or lightly.
Judicial discretion means a discretion \Vhich is informed by tradition, methodised by analogy and disciplined by system.
[447H;
448A-BJ
Amar Chand Agorwalla, v. Shanti Bose &. Anr. etc., [1973} 4 SCC 10 and
Akalu Ahir v. Ramdeo Ram, [1973] 2 SCC 583 followed.
(2) Neither the trial court nor the Sessions Court committed any error of
fact or of law in arriving at their conclusions and the High Court misdirected
itself in upsetting their concurrent findings ignoring the well recognised principles for the exercise of revisional jurisdiction. From the matefial on record it
is clear that the offences with which the respondents were charged were brought
home to them beyond reasonable doubt.
[ 456E]
•
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ORISSA v. N. SAHU (Jaswant Singh, !.)
443

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442
STATE OF ORISSA
v.
NAKULA SAHU & ORS.
November 30, 1978
[JASWANT SINGH AND P. S. KAILASAM, JJ.J
Code of Crin1inal Procedure, 1898-Sections 435 and 439-Scope of jurisdiction of Hi1d1 Court in revision.
The respondents in each of the four appeals were convicted and sentenced
under s.
~09 IPC by the Sub-Divisional Magistrate.
On appeal the Sessions
Judge affirmed the conviction and sentences passed against them.
In revision
the High Court set aside the judgments and orders passed by the trial court and .......,
the Sessions Court and acquitted the respondents of all the charges.
On the question of (i) the scope of the power of revision of the High. Oourt
under s. 439 read with s. 435 Cr. P.C. 1898 and when it should be exercised;
and (ii) whether, in arriving at a concurrent finding~ the trial court and the
Sessions Judge committed a manifest error on a point of law which had re·
suited in flagrant miscarriage of justice.
Allowing the appeal,
HELD : ( 1) Although the revisional power of the High Court under s. 439
read withs. 435 of the Code of Criminal Procedure, 1898 is as ·wide as th'e power
of Court of Appeal under s. 423 of the Code, it is well settled that normally
the jurisdiction of the High Court under s. 439 is to be exercised only in ex·
ceptional cases when there
i~ a glaring defect in the procedure or there is a
manifest error on a point of law which has consequently resulted in flagrant
miscarriage of justice. In Akalu Ahir v. Ramdeo Rani, [1973] 2 SCC 583 this
Court held that in spite of the wide language of s. 435 Cr. P.C. 1898 which em·
powered it to satisfy itself as to the correctness, legality or properiety of any ~
finding, :.entence or order recorded or passed by any inferior court situate within
the Jimits of its jurisdiction and as to regularity of any proceeding of such inferior court and in spite of the fact that under s. 439 of the Code it can exercise, inter alia, the power conferred on a Court of appeal under s. 423, the
High Court is not expected to act under s. 435 or s. 439 as if it is hearing an
appeal.
The power being discretionary it has to be exercised judiciously and
not arbitrarily or lightly.
Judicial discretion means a discretion \Vhich is informed by tradition, methodised by analogy and disciplined by system.
[447H;
448A-BJ
Amar Chand Agorwalla, v. Shanti Bose &. Anr. etc., [1973} 4 SCC 10 and
Akalu Ahir v. Ramdeo Ram, [1973] 2 SCC 583 followed.
(2) Neither the trial court nor the Sessions Court committed any error of
fact or of law in arriving at their conclusions and the High Court misdirected
itself in upsetting their concurrent findings ignoring the well recognised principles for the exercise of revisional jurisdiction. From the matefial on record it
is clear that the offences with which the respondents were charged were brought
home to them beyond reasonable doubt.
[ 456E]
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ORISSA v. N. SAHU (Jaswant Singh, !.)
443
CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos.
A
25-28 of 1972.
Appeals by Special Leave from the Judgment and Order dated the
9th December, 1970 of the Orissa High Court in Cr!. Rewn. Nos. 188,
190, 191 and 192 of 1968.
D. Mukherjee, G. S. Chatterjee for the Appellant.
Pishori Lal Arora (Not Present) for Respondent in Cr!. A. No.
25/72 .
Frank Anthony, (Cr!. A. 26/72), Har Dayal Hardy (Cr!. A 27-
.-. 28/72), Mrs. S. Bhandare, A. N. Karkhnis and Miss Malini Peduvel
in Cr!. A Nos. 26-28/72 for Respondents.
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The Judgment of the Court was delivered by
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JASWANT SINGH, J.-By his judgment and order dated November
30, 1965, the Sub Divisional Magistrate,
Bhubaneswar convicted
Gopinath Patra, respondent in Appeal No. 26 of 1972 under section
409 of the Indian Penal Code and sentenced him to two years rigorous
imprisonment and a fine of Rs. 2,000/-. By the same judgment, the
Sub Divisional Magistrate also convicted Nakula Sahu, respondent in
Appeal No. 25 of 1972, Brahmanhda Misra, respondent in Appeal
No. 27 of 1972 and Niranjan Naik, respondent in Appeal No. 28 of
1972 under section 409 read with section 109 of the Indian Penal
Code and sentenced each one of them to two years rigorous imprisonment and a fine of Rs. 2,000/-.
By the same judgment,
the Sub
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Divisional Magistrate also found all the four respondent guilty of the
offence under sections 120B of the Indian Penal Code but in view of
the fact that they were found guilty of the offence of criminal breach
of trust for which they had entered into conspiracy, no separate sentence was awarded to them for that offence.
By the same judgment
and order the Sub Divisional Magistrate acc;"Jitted Nakula Sahu of the
charge under section 420 of the Indian Penal Code.
On appeal, the
Sess10ns Judge, Cuttack upheld the judgment and order of the SubDivisional Magistrate and affirmed the conviction and sentence of the
respondents by his judgment and order dated May l, 1968. On the
matter being taken in revision before it, the High Court of Orissa set
aside the aforesaid judgments and orders passed by the trial court and
the Sessions Judge and acquitted the respondents of al! the charges by
its common judgment and order dated December 9,
1970. It is
against this judgment and order that the aforesaid appeals have been
filed by special leave.
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SUPREME COURT REPORTS
(1979] 2 S.C.R.
The facts giving rise to these appeals are : During the year 1961-62,
the Public Health Department had a budget provision of Rs. 1,95,420/-
for purchase of wash hand basins and other sanitary fittings required
for four items of work.
Though as Controlling Officer, the Superintending Engineer, Public Health Department was required under the
finanacial Code to watch the expenditure against the budget allotments
of the circles under him, it was the Executive Engineer, Public Health
Department, who was the drawing and disbursing officer for the aforesaid budget provision of Rs. 1,95,420/- and was responsible for any
wastage or excess of appropriation. At the request of the Executive
Engineer, Public Health Department,
Bhubaneswar,
Lingaraj Das
(P.W.7), the then Public Health Engineer, Orissa issued circular letter
(Exh.l) dated September 30, 1961 to several dealers in sanitary ~
goods inviting quotations for supply of 2,000 best Indian make earthen ' --
ware wash hand basins with white glazed, straight front, smooth top,
and one tap hole and waste holes.
In response to the said invitation,
twelve firms includrng the Cuttack Plumbing Stores of which Nakula
Sahu, respondent was the proprietor submitted their tenders.
In his
tender (Exh. 2), Nakula Sahu quoted the following rates: --
!. Wash Hand Basins 22" X 16" Barang make
First Quality:
Rs. 70/- each
2. Wash Hand Basin 22!' X 16" Barang make
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Second Quality :
Rs. 5 8 /- each
On the comparative statement (Exh. 3) of the quotations received
in response to the aforesaid circular letter being put up before him,
P.W.7 accepted the quotation of the Cuttai::k Plumbing Stores for supply
of 1000 22" X 16", Barang make, First Quality, wash hand basins
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vide Exhibit 3(4) at the rate of Rs. 70/- per wash hand basin plus
sale tax at 7% which meant that the basins should be free from all
manufacturing defects like dents, fire cracks, warpage or other undulation on the surface etc. Under Exhibit (4) dated October 13, 1961.
the Cuttack Plumbing Stores was asked to supply the wash hand basins
to the sub Divisional Officer, Project Sub Division No. l and submit
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the bills in triplicate to the Executive Engineer, Public Health Department, Bhubaneswar for payment.
Under Exhibit 4(4), copies of the
aforesaid order (Exh. 4) were forwarded to Gopinath Patra, respondent and Brahmananda Misra, respondent the then Executive Engineer
and Sub Divisional Officer, Project No. 1 Sub Division, Bhubaneswar
respectively for information and necessary action.
The supplies were
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to be received by the Overseer, Niranjan Naik, who was the Section
Officer, according to the specifications noted in the order of supplies.
Pursuant to work order (Exh. 5), Nakula Sahu, proprietor of
the
- ·-.r
ORISSA v. N. SAHU (Ja!MG!Jt Singh, !.)
445
Cuttack Plumbing Stores supplied 1000 wash hand basins in three
instalments representing them to be of first quality Barang Make and
submitted bills in regard thereto as detailed below :
No. of the wash
Date of supply
Exh. No. of
Amount of the BiII
hand basins supplied
the bill according to which
payn1ent
demanded
----------------~
494
400
106
27-10-1961
13-11-1961
3-1-1962
19
22
25
Rs.
Rs.
Rs.
37,000 ·60
29,960 ·00
7,939 ·40
On receipt of the supplies at the Public Health Department Store,
Niranjan Naik, respondent, who was incharge of Store, took delivery
thereof and entered the same in the Measurement Book certifying
therein that the supplies were according to the specifications of the
order.
Thereafter respondent, Brahmananda Misra, Sub Divisional
Officer checked the supplies according to the specifications in the
supply order and signed the Measurement Book in token of the fact
that the supplies had been correctly made.
Simultaneously with the
5upplies, Nakula Sahu submitted running bills on behalf of the Cuttack
Plumbing Stores on each of which Niranjan Naik, Section
Officer
appended the following certificate:-
"Verified the materials received on .......... and found
correct, entered in M.B. (Measurement Book) No ...... .
in Pa_ge . . . . . . . . Taken into stock A/C in ........... .
(Date and Year)."
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Underneath the certificate of Niranjan Naik,
Section
Officer,
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Brahmananda Misra Sub Divisional Officer appended his certificate and
signed the same.
Therefore, the bilis were checked in the office of
the Executive Engineer who made the payments by means of the
cheques.
On November 16, 1961 i.e. after the first two supplies but before
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the third supply, Lingaraj Das (P.W.7) addressed confidential communication (Exh. 6) to Gopinath Patra hinting to him that according to
the informati0n received by him the supplies made by Nakula Sahu
were not according to the specifications in the supply order but were
of lower class and requiring him to 'verify the quality of each and
every wash hand basin and to give a certificate if they were of first class
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quality as per specifications in the tender.
By means of the aforesaid
"'·-,.,,
confidential letter, Gopinath Patra was also told to submit a detailed
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SUPREME COURT REPORTS
[1979] 2 s.c.R.
report about the quality of the wash hand basins within four days in
case he found that they were not of first quality as per specifications
in the tender.
Gopinath Patra was; also asked to intimate the number
of wash hand basins supplied by the Cuttack Plumbing Stores and the
amount paid to it.
As Gopinath Patra did not comply with the aforesaid communication within the aforesaid time, P.W. 7 sent him a reminder to expedite the reply but it was not before December 9 1961 that
the former sent the reply (Exh. 7) certifying that 894 wash hand basins
which had been supplied by then by the Cuttack Plumbing Stores were
all of first quality.
By means of Exhibit (7), Gopinath Patra further
informed the Public Health Engineer, Orissa that the Cuttack Plumbing Stores had so far been paid Rs. 66,960.60, including sales tax, for
the aforesaid 894 wash hand basins. On December 19, 1961, P.W. 7
placed order (Exh. 5) with Cuttack Plumbing Stores for further supply
of 500 wash hand basins of the aforesaid quality and make at the rate
elf Rs. 68/- per basin to be delivered to the Public Health Department's
Godown at Bhubaneswar and sent intimation thereof to Gopinath Patra.
Accordingly, Nakula Sahu supplied 50 wash hand basins ou January
4, 1962, 410 wash hand basins on October 1, 1962 and 40 wash hand
basins on October 14, 1962 and submitted bills (Exhibits 29, 32 and
35) for Rs. 3,638.00, Rs. 29,831.60 and Rs. 2,910.40 respectively.
On these three bills also, Brahmananda Misra. Sub Divisional Officer
and Niranjan Naik, Section Officer appended certificates similar to those
which they had given on the previous bills.
On the basis of the said
certificates, running account bills were prepared and signed by Gopinath
Patra, Executive Engineer and payments were made to Nakula Sahu.
On March 28,1963, the Inspector of Police, Vigilance, Cuttack seized
vide seizure Memo (Exh. 73) from the Public Health Godown, Bhubancswar, o[ which Niranjan Naik, Section Officer was incharge,
593
Barang Make wash hand basins alleged to have been supplied to the
Department by the Cuttack Plumbing Stores and A.B. Ghosh (P.W.8),
Executive Engineer, Stores Verification Divisidn, attached to the Works
Department inspected these basins under the orders of the Secretary,
Works and Transport Department and submitted his report (Exh. 49)
dated Septe[!!ber 9/13,1963 enclosing therewith statements (Exhibits
50 and 51) containing his remarks in respect of each and every one of
593 basins examined by him.
In his report (Exh. 49) A.B. Ghosh
inter alia stated : "Not a single basin of first quality could be found
during verification.
Three type of basins with manufacturer marks
II and III class and with no marks are found.
All the basins which
have been verified have different types of defects as noted against each
number in the enclosed statements. In several cases major defects
have been noticed in all the type of basins and the nature of major
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ORISSA v,, N. SAHU (Jaswant Singh, J.)
447
defects have also been noted in the
statements."
Thereupcin the
authoritie3 made an inquiry from M/s Orissa Industries Ltd. Barang
(Producers of the Basins) which revealed that the Cuttack Plumbing
Stores had during its entire transactions with the former purchased
only three first quality wash hand basins and the rest of the wash
hand basins purchased by it by auction or otherwise from the Company
and dishonestly passed o'n to and accepted by respondents, Niranjan
Naik, Brahmananda Misra and Gopinath Patra as first quality wash
hand basins were either second quality or rejected ones which did not
at all conform to the specifications mentioned in the tender quotations
(Exh. 2) and the supply order (Exh. 4). On these facts, the respondents were charged with and proceeded against for commission of
various offences of criminal conspiracy, abetment of and commission
of the offence of criminal breach of trust in respect of a sum of
Rs. 1,11,280/- entrusted by the State to Gopinath Patra, respondent
for purchase of best quality wash hand basins with the result as stated
above.
In these appeals, it has been urged by counsel for the State of Orissa
that the facts and circumstances proved in the case are incompatible
with the innocence of the respondents and are incapable of explanation
on any hypothesis other than the gi;ilt of the respondents for the offences with which they were charged and that the order of their acquittal
passed by the High Court in exercise of revisional jurisdiction which as
acknowledged by this Court is a limited one has resulted in grave
failure of justice. On the other hand, it has been contended by counsel
for the defence that there is no infirmity in the impugned order and
the High Court was justified in acquitting the respondent in exercise
of its plenary revisional power as the material on record was not
sufficient to snstain their conviction.
On the submission of counsel for the parties, two principal points
arise for consideration by us ( 1) the scope of the power of revision
under section 439 read with section 435 of the Code of Criminal Procednre, 1898 and when it should be exercised and (2) whether in
arriving at concurrent findings, the trial court and the Sessions Judge
committed any manifest error on a point of law which had resulted
in flagrant miscarriage of justice.
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So far as the first point is concerned, it is to be emphasized that
although the revisional power of the High Court under section 439
tead with section 435 of the Code of Criminal Procedure, 1898 is as
wide as the power of Court of Appeal under section 423 of the Code,
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it is now well settled that normally the jurisdiction of the High Court
under section 439 is to be exercised only in exceptional cases when
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SUPREME COURT REPORTS
[1979] 2 :.3.8.
there is a glaring defect in the procedure or there is a mainfest error on
a point of law which has consequently resulted in flagrant miscarriage of
justice.
Reference in this connection may be made to the decisions of
this Court in Amar Chand Agarwal/a v. Shanti Bose & Anr. etc.(')
and Akalu AMr v. Ramdeo Ram('). Jn the latter case viz. Akalu
Ahir v. Ramdeo Ram (supra) this Court fo11o\ving its earlier decision
in Amar Chand Agarwal/av. Shanti Bose & Anr etc. (supra) held that
in spite of the wide language of section 435 of the Code of Criminal
Procedure, 1898 which empowered it to satisfy itself as to the correctness legality or propriety of any finding, sentence o'r order recorded
or passed by any inferior court situate within the limits oi its jurisdiction
and as to the regularity of any proceeding of such inferior court and
in spite of the fact that under section 439 of the Code it can exercise
inter alia the power conferred on a court of appeal under section 423
of the Code, the High Court is not expected to act under section 435
or section 439 as if it is bearing on appeal. The power being discretionary, it bas to be exercised judiciously and not arbitrarily or
lightly. Judicial discretion, as has often been said, means a discretion
which is informed by tradition, metbodised by analogy and disciplined
bY system.
This takes us to the consideration of the second point. In relation to this point, it may be observed that nothing has been brought
to our notice on behalf of the respondents to indicate that there was
any glaring defect in the procedure adopted by the lower courts or
that there was a manifest error on a point of law in the judgments
and orders passed by them which had resulted in flagrant miscarriage
of justice which needed to be set right by the High Court.
A scrutiny of the evidence which we have made at the request
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of the counsel for the parties shows that there was not even any
misappreciation of evidence on the record by the lower courts which
could be said to have resulted in gross failure of justice warranting
interference by the High Court
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We may at this stage indicate that while adverting to the evidence,
we •hall be confining ourselves to the case against Gopinath Patra
and Niranjan Naik, respondents in Appeals Nos. 26 and 28 of 1972
respectively, as the other two appeals Nos. 25 and 27 of 1972 against
Nakula Sahu and Brahmananda Misra have
abated
due to their
death during the pendency of the appeals in this Court.
Out of the 17 witnesses examined by the prosecution to bring
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home the aforesaid offences to the respondents, the evidence of
(1)
[1973] 4 s.c.c 10.
(2)
[1973] 2 s.c.c. 583.
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ORISSA v. N. SAHU (Jaswant Singh, J.)
449
P. \Vs. 2, 14, 5, 7, 8, 11, 12, 13, 15 and 17 deserve special menA
lion.
P. P. Bahuguna (P.W. 2) who is the Sales Manager of Orissa
Industries Ltd., Barang, since 1956 has deposed that accused Nakula
Sahu used to transact business with his Company as proprietor of
N. C. Sahu & Sons and Cuttack Plumbing Stores; that detafled entries
showmg the date, invoice No. and total bill amount of every sale
effected by his Company are made in the Sales Day Book, cash book
and ledger of the Company and that in the ledger, the transactions
with d1fterent customers are mentioned in separate folios.
The witness bas by reference to copies of invoices existing on file No. C. 157
(Exh. 11) consisting of 391 pages containing the record relating to
all the transactions of Orissa Industries Ltd. with the Cuttack Plumbing Stores and Nakula Sahu & Sons and ledgers [Exh. 12 to 12( 4)]
evidencing all transactions with
Nakula Sahu,
Cuttack Plumbing
Stores and N. C. Sahu & Sons and containing cross
references to
invoices testified that it was for the first time in June 8, 1959 that the
Cuttack 'Plumbing Stores purchased three wash hand basins 22" X 16"
of Class I quality from his Company; that from June, 1961 to
February, 1962, the Cuttack Plumbing Stores purchased 1704 Class II
and 300 Class III wash hand basins 22" X 16" from his concern; that
apart from these sales there has been no other sale of, wash hand
basins to accused Nakula Sahu or Cuttack Plumbing Stores or N. C.
Sahu & Sons; that
Nakula Sahu was transacting business with his
Company in respect of all the aforesaid invoices; that in the years
1961 and 1962, the price of class I wash hand basin 27"Xl6" was
about Rs. 53/- per piece and price of Class II and Class III wash
hand basin 27"Xl6" was about Rs. 38.50 and Rs. 231- per piece
respectively; that glass and ceremic products
became
subject
to
Central Excise duty for the first time with effect from th~e mid-night
of February 28,1961 and that from that date marking of gradation<
by stamp and indelible ink were given on wash hand basins rroduced
by his Company; that wash hand basins produced by his Company are
marked with rubber stamp as 1st, or 2nd or Com. or 3rd according
to the different gradations of the products; that in some cases, the
wash hand basins are marked as I, II, Com., or III, in place of l st,
2nd, Com. or 3rd respectively; that of all the gradations l st or I are
the best quality; that first quality products are those which have no
blemish; that the second quality basins are those having minor defects
without affecting their utility; that the third quality products are those
having major defects either affecting or not affecting their utility; that by
submitting quotations his Company had made known to the Government Departments that there were wash hand basins of different
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SUPREME COURT REPORTS
[1979] 2 S.C.R.
gradations in his concern; that the gradation marks on the wash hand
basins made by his concern are the surest guide to the customers
regarding the quality of goods.
The ,Witness has further
affirmed
that during the years 1961 and 1962 i.e. from February 28, 1961 to
the end of 1962, only 70 to 80 first quality i.e. Class I wash hand
ba$ins were produced by his Company and were stamped as such;
that from February 28, 1961 to the end of February, 1962 only
54 Gass I (first quality) wash hand basins 22"Xl6" were produced
by his Company; that in November, 1961 and December, 1961, no
first quality wash hand basins were manufactured in the factory of
his Company and that though his Company has been attempting to
produce first quality wash hand basins, it has not succeeded in pre>-
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ducing them in large numbers.
K. L. Sigtia (P.W. 14) who is the Secretary, Orissa Industries
Ltd., Barang, since 1951 has corroborated the
statement of P. P.
Bahuguna (P.W. 2) in all material particulars with regard to all the
business transactions made by his Company with the Cuttack Plumbing Stores, Nakula Sahu and Mis Nakula Sahu & Sons
including
200 numbers of wash hand basin~ 26"Xl6" which as
per invoice
11 (24) were sold in auction by the Company to the Cuttack Plumbing Stores at Rs. 151- per piece.
He has alw stated that the wash
hand basins• produced in his factory prior to March I, 1961 (when
the Central Excise duty was levied on the potteries including the wash
hand basins) were sorted out and stocked separately according to
their grades; that after the introduction of excise duty, his Company
graded the wash hand basins into three classes viz. First, Second and
Third and the markings were given on the said wash hand basins as
I, II or III according to the gradations as directed by the Central
Excise office; that after six months, the Excise staff told
them to
change the markings as 1st, Ilnd or IIIrd according to the aforesaid
three gradations and accordingly for first grade, they gave marking
Ist, for second grade, they gave marking Ilnd and for third grade,
they gave marking IIIrd and that 'Orissa' is the trade mark of their
firm.
The witness has by reference to file Exhibit ( l I) affirmed that
it was on June 8, 1959 that the Cuttack Plumbing Stores for the first
time purchased three 22" X 16" wash hand basins for first quality
from his concern vide Exhibit 11 (2) which bears the signature of
Nakula Sahu; that during the period 1959 to 1962 Nakula Sahu or
Nakula Sahu & Sons or Mis Cuttack Plumbing Stores did not purchase any wash hand basins from his Company's factory except
those entered in Sales Day Book [Exh. 65 to Exh. 65(18)].
He
has further affirmed that his Company does not produce any wash
'P"- >
OR!SSA v. N. SAHU (.Taswant Singh, J.)
451
hand basins called the best quality wash hand basins.
The witness
has denied that his concern ever sold any second class wash hand
basins representing them to be of best quality.
Nabaghan Misra (P.W. 5) who is the Head Clerk in the office
of the Executive Engineer, Public Health Department, Bhubaneswar
has stated that on receipt of copy of the work order, the concerned
Executive Engineer of the Public Health Department
directs
his
subordinates to receive the commodities; that after the commodities
are supplied, the suppliers submit their bills to the authority who
receives the commodities.
Ultimately, the Executive Engineer of the
concerned Division makes payment by cheques.
He
has
further
stated that the commodities supplied are physically received by the
Overseer who is the Section Officer of the concerned Division; that
the Section Officer is required to receive the supplies according to the
specifications noted in the order for supply, to enter the commodities
received by him in the Measurement Book and to give a certificate
in that book that the supplies are according to the specifications of
the order; that thereafter the Sub Divisional Ofiicer of the Division
has to check the supplies with reference to the specifications given
in the order and put his signatures in the Measurement Book; that
the stock registers of the supplies received are maintained
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the
office of the Sub Divisional Officer; that Section Ofticer and the Sub
Divisional Officer endorse certificates on the order as to the correctness of the supplies in terms of the specifications in the order; that
thereafter the bill is checked in the ofiice of the concerned Executive
Engineer and after payment order is made by the Executive Engineer
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on duplicate voucher prepared by the Section Officer and countersigned by the Sub Divisional Officer, paymept is made by cheque
issued by the Executive Engineer; that Exhil:lit 19 is the
bill
for
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Rs. 37,01501- submitted by the Cutiack Plumbing Stores of which the
accused N akula Sahu is the proprietor, in respect of the supply of
wash hand basins, 494 in number of the specifications and quality
mentior.ed therein; that the corrections in ink are made by accused
Niranjan Naik, the then Section Officer and are initialled by him; that
the endorsement and the certification at the bottom are in the writing
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of the accused Niranjan Naik and contain his signature dated October
28, 1961; that the corrections in the endorsement have been initialled
by accused Niranjan Naik; that Exhibit 20 is the running account bill
prepared in the office of Niran jan Naik, the then Section Officer in
relation to Exhibit 29 and bears the signatures of both Niranjan Naik,
Overseer and Brahmananda Misra, Sub Divisional Officer.
The witH
ncss has also
identified the signature
and initial of the
accused
Gopinath Patra on Exhibit 20 ( 4) and has stated that after compliance
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SUPREME COURT REPORTS
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with all the formalities, cheque for the aforesaid amount was made
c;.ver to accused Nakula Sahu on October 28, 1961. The witness has
likewise proved bills (Exhibits 22 and 25) in regard to payment of
Rs. 29,9601- and Rs. 7,939.40 respectively.
Lingaraj Das (P.W. 7) wbo was the Public Health Engineer and
also the Controlling Officer of the Public Health Department during
the relevant time has stated that on receipt of the quotations called
by him vide Exhibit 1, he accepted the quotations of the Cuttack
Plumbing Stores and placed an order (Exh. 4) with the latter for
supply of wash hand basins of the make, specifications and quality
and at the rate and on the conditions noted therein.
The witness
has also proved the aJoresaid letter (Exh. 6) addressed by him to
Gopinath Patra and the reply (Exh. 7) received from
the
latter
certifying that 894 wash hand basins were of first quality.
He has
further stated that by first quality, he meant that the wash hand basins
should be without any manufacturing defects.
A. B. Ghosh (P.W. 8) who has passed the examination in Sanitary Engineering and Water Supply as a special subject has stated
that he was working as Executive Engineer, Verification Officer, for
all departments under the Public Works Department;
that
under
Oifders of the Secretary, Sanitary Works Department, he inspected
and verified 593 numbers of "Orissa" 22"Xl6" wash hand basins
supplied by accused Nakula Sahu and stocked inside
the
Public
Health Department Godown at Bhubaneswar, the key of which was
with accused Niranjan Naik; that the inspection and verification was
com!ll.enced by him on August 30, 1963 and completed on August 31,
1963 in the presence of accused Niranjan Naik who poillted out the
593 wash hand basins, which were in a, separate stock, as having been
supplied by accused Nakula Sahu; that on verification, he did not
find any class I wash hand basins in the said 593 wash hand basins
and that almost all the said wash basins had manufacturing defects
and bore markings II or IInd or III and only a few had no marks
as stated by him in his inspection and verification report (Exh. 49).
During his deposition before the courts also, the witness examined
the said .wash hand basins and gave in detail
the
manufacturing
defects observed by him on each one of them.
He has further stated
that fire cracks, dents, blisters, uneven surface,
unglazed
patches,
undvlating surface and uneven holes in any place of basins are the
manufacturing defects and th°"e defects cannot occur after manufacture is over; that on verification, he found almost all the aforesaid
wash hand basins bearing the marks II or III which led him to presume that those were the marks of classification.
The ,vritness has
ORISSA v. N. SAHU (Jaswant Singh, !.)
453
denied that glazed patches will become unglazed due to bad storage
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and handling or that any wash hand basin would become unglazed
by friction.
Pursottam Kar (P.W.10) who took over as Sub Dvisional Officer,
Project I., Public Health Department, Bhubaneswar in January, 1963
has on the basis of monthly stcx:k register (Exh. 45) of Project I
stated that 22"Xl6" wash hand basins numbering 494, 400, 106,
410 and 40 were received at the godown of the
Public
Health
Department, Bhubaneswar from the Cuttack -Plumbing
Stores
on
October 28, 1961, November 13, 1961, January 3, 1962, January 31,
1962 and February 13, 1962 respectively.
He has further stated
that in 1957 only thirty 22"Xl6" wash hand basins were received;
that in 1958 and 1959, no 22"Xl6" wash hand basins were received
and that in 1960 only eight 22'"Xl6" wash hand basins were_ received.
He has further stated that at the time of verification, accused Niranjun
Naik told him that the wash hand basins verified vide Exhibits 50
and 55 were supplied by accused Nakula Sahu.
D. N. Singhdco (P.W. 11) who is the Executive Engineer, Public
Health Department has stated that in April, 1963, he went to the
Store of the Public Health Department, Bhubancswar with Misra,
Assistant Pottery Manager of Orissa Industries, Rao, Inspector of
Central Excise and Dass, Intelligence Officer and verified some of
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the wash hand basins.
The stock of the wash hand basins which
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were to be verified were shown to him by accused Niranjan Naik,
the then Overseer incharge of the Store.
Saehidananda Misra (P .W. 12) who was In charge of Production
in Konark Ceramics, Athgarh from 1960 to 1964 has affirmed that
the first quality wash hand basins mean wash hand basins having no
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manufacturing defect.
P. Ram Krishna Rao (P.W. 13) who is the Central Excise Inspector, Mauza Jaipur has stated that during the time he was working
in Orissa Industries Ltd., Barang as Assistant Pottery Incharge, rubber
stamp marks were put on the wash hand basins produced in the
factory showing their quality and gradation such as I or Ilnd or only
II or Illrd or only 'III' or IVth or only 'IV' as the case was; that
very small number of first quality wash hand basins were being produced and that at the time of the aforesaid verification, rubber stamp
marks II or III were there.
Abdul Rasid Khan (P.W. 15), L.D.C. in
Sales
Tax
Office,
Cuttack, West Circle has by reference to the record stated that in
the application (Exh. 68) made by the Cuttack
Plumbing
Stores,
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Nakula Sahu has signed as
proprietor/Manager/Partner/Principal
Officer of the said firm; that on the said application, Registration
Certificate No. CU 12681 dated December 27, 1956 showing Nakula
Sahu as Proprietor of the Cuttack Plumbing Stores and that Exhibit
69 is the office copy of the said certificate and that on October 20,
1963, the said certificate was renewed for the year 1963-64.
Prasanta Chandra Das (P.W. 17) who is the Inspector of Police
attached to Vigilance Branch has stated that on March 28, 1963 he
seized 593 wash hand basins of Barang Make bearing 'Orissa' Trade
Mark from Public Health Department Stores, Bhubaneswar as pointed
out by Niranjan Naik, accused.
·
From the resume of the prooecution evidence as given above, it
is abundantly clear that quotations in regard to the supply of first
quality, barang make, 22"Xl6" wash hand basins submitted by the
Cuttack Plumbing Stores, of which Nakula Sahu was the proprietor
were accepted by P.W. 7 and work order for supply of 100 wash hand
basins of the aforesaid quality, make and size was issued to the former
by the latter; that Gopinath Patra who as Executive Engineer, Public
Health Department Bhubaneswar, was entrusted with and had dominion over Rs. 1,95,420/- for purchase of wash hand basins and other
sanitary fittings entered into criminal conspiracy with Niranjan Naik,
who was Section Officer of Project No. 1 Sub
Division,
Public
Health Department, Bhubaneswar and other accused for commission
of criminal breach of trust punishable under section 409 of the Indian
Penal Code; that in pursuance of the said conspiracy, Gopinath Patra
committed criminal breach of trust in respect of a huge amount of
Government funds by dishonestly purchasing between October, J 961
and February, 1962 wash hand basins from the Cuttack Plumbing
Stores which were not of first quality,
barang make as specified in
the tender but were substantially inferior in quality and value to those
basins; that pursuant to the said conspiracy, Niranjan Naik, accused
dishonestly accepted and took delivery of sub standard wash hand
basins differing materially in quality and value from those w1'ich were
contracted to be supplied and indented for knowing pretty well from
their gradation marks which were a sure guide about their :iuality
that they were of inferior quality and appended false certificates in
the Measurement Book and on the aforesaid bills Nos. 19, 22 and
25 presented by the Cuttack Plumbing Stores to the effect that the
supplies of wash hand basins made by it were correct according to
the specifications mentioned in the order and consequently abetted
Gopinath Patra in the commission of the offence of criminal breach
of trust punishable under section 409 of the Indian Penal Code and
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I
ORISSA v. N. SAHU (Jaswant Singh, J.)
455
thereby committed an offence under section 409 read with section
109 of the Indian Penal Code; that from February 28, 1961 to the
end of 1962 A.D. only seventy to eighty first quality wash hand basins
were produced by Orissa Industries Ltd., Barang; that except for
three first quality wash hand basins pnrchased
by
the
Cuttack
Plumbing Stores in June, 1959 from Orissa Industries Ltd., Barang,
the rest of the wash hand basins pnrchased by Nakula Sahu either
in his individual capacity or as proprietor of N. C. Sahu & Sons or
as proprietor of the Cuttack Plumbing Stores from the said Company
were all of II or III gradation and as such were substantially inferior
in quality and value to the specifications mentioned in the
tender
(Exh. 2) and the work order (Exh. 4) and that save and except the
number of wash hand basins detailed in their depositions before the
Court by P.Ws. 2 and 14, who are Sales Manager and Secretary respectively of Orissa Industries Ltd., Barang, no other wash hJnd basins
were pnrchased by Nakula Sahu or N. C. Sahu & Sons or cuttack
Plumbing Stores, of which Nakula Sahu was the proprietor.
The plea of Gopinath Patra that he acted bonafide on the certificat~s of the Section Officer and Divisional Officer whose duty it
was to verify the quality of each and every wash hand basins
on
receipt of the consignments and passed bills Nos. 19, 22 and 25 in
a casual manner and that 894 wash hand basins which he inspected
under orders of the Public Health Engineer conveyed to him vide
Exhibit 6 were oi Barang Make, first quality, and 593 v.ash !>and
basins which were seized by P.W. 17 under Exhibit 73 were not from
894 wash hand basins verified by him in Exhibit 7 is totally falsified
by the clinching evidence furnished by Exhibit 7 dated December 9,
196 I which, it will be recalled was sent by Gopinath Patra in rely
to the confidential communication addressed to· him by P.W. 7.
In
this Exhibit 7 Gopinath Patra clearly informed P.W. 7 that he had
inspected each and every one of the 894 wash hand basins which
had np to that date been supplied by the Cuttack Plumbing Stores
and found them all of Oass 1 Barang make.
The conclusion is,
therefore, irresistible that Gopinath Patra actively connived at the
delivery and acceptance of inferior quality of wash hand basins by
the supplier which did not at all conform to the specification~ given
in the tender submitted by it or in the supply order placed by him
and dishonestly passed orders for payment of first
quality
gocxll;
knowing that the wash hand basins supplied were of inferior quality
and thus committed criminal breach of trust in respect of a huge
amount of Government funds and that in order to conceal his guilt
he purposely gave false certificate vide Exhibit 7 that 894 wash band
basins supplied by the Cuttack Plumbing Stores (out of which 593
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were seized by P.W. 17 and verified bv P.W. 8 to be defective and
of II or III quality) were all of first quality and conformed to the
specifications in the supply order although in the proved facts and
circumstances, none could be of first quality.
That this was so and
he furnished the aforesaid certificate even without caring to visit the
Public Health Department Store, Bhubancswar for physical verification
as directed by his superior is further evident from the fact that he
omitted to, make even a mention in Exhibit 7 about the quality of
106 numbers of wash hand basins which had
been
indisputably
received in the Store before he sent reply Exhibit 7 to the aforesaid
confidential query made by P.W. 7 vide Exhibit 6.
The further plea of the accused that 593 wash hand basins seized ~
from the Public Health Department Store by P.W. 17 were not from
amongst those supplied by the Cuttack Plumbing Stores also stands
~ -.
negatived from the evidence of P.W. 8 (who verified the said wask
hand basins at the pointing out al' Niranjan Naik) as also from the
e<idence of P.Ws.