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Tuesday, September 30, 2014

Section 420 IPC, 120B IPC and Section 5(2) of Prevention of Corruption Act, 1947 (for short ‘the P.C. Act’) - Purchase of Damp Proof cement at higher rate in collusion with company by department servants causing huge loss to NEHU - complaint - CBI registered the case and filed charge sheet - trial court convicted A 1 and acquitted rest of accused - on appeal - High court reversed the acquittal and convicted the Accused No.4 also - who filed appeal - pending appeal - he has under gone imprisonment for considerable period - A 1 died but his Lrs prosecuting his appeal - Apex court held that first accused, Chief Engineer being Technical Member of the Purchase Committee, it was his duty to advise the Purchase Committee about the then prevailing market rate of DPC to enable NEHU to purchase DPC at the market rate. The first accused was primarily responsible for the commission of the offence and the first accused by abusing his position as Chief Engineer and Technical Member got the inflated rate of DPC at Rs.42.75 per kg approved when the same was available in the local market at price ranging from Rs.5/- to Rs.10/- per kg. and A-1 obtained pecuniary advantage to himself and also to accused 4 and 5 and caused wrongful loss to NEHU to the tune of Rs.49 lacs. The first accused was rightly convicted under Sections 120B IPC and 420 IPC and also under Section 5(2)(d) of the PC Act. Having regard to the gravity of the offence and the extent of loss caused to the NEHU, the High Court rightly enhanced the sentence of imprisonment imposed for various offences for which the first accused was convicted and we find no reason to interfere with the same. So far as the fourth accused is concerned, he was also convicted for the offence under Section 420 IPC. The offence of cheating is made of two ingredients: “deception of any person and fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property”. In collusion with first accused, the fourth accused quoted and supplied DPC at an inflated rate of Rs.42.75 per kg, fourth accused dishonestly induced NEHU to purchase DPC. Fourth accused has taken stand that he did not know the then prevalent market rate of DPC at Shillong. As a supplier and also dealing with DPC, it is incomprehensible that the fourth accused did not know the prevalent market rate. The High Court rightly negatived the defence version and convicted the fourth accused under Section 420 IPC read with Section 120B IPC. taking into consideration of his age and taking into consideration of payment of amount of Rs. Rs.3,50,000/- and further directed to pay Rs. 2,50,000/- treating his imprisonment as set off as the case is pending for 3 decades = CRIMINAL APPEAL NO. 2056 OF 2014 (Arising out of SLP (Crl.) No. 553/2011) EDMUND S LYNGDOH …Appellant Versus STATE OF MEGHALAYA …Respondent = 2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41915

  Section 420 IPC, 120B IPC and Section 5(2)  of  Prevention  of Corruption Act, 1947 (for short ‘the  P.C.  Act’) - Purchase of Damp proof cement at higher rate in collusion with company by department servants causing huge loss to NEHU - complaint - CBI registered the case and filed charge sheet - trial court convicted A 1 and acquitted rest of accused - on appeal - High court reversed the acquittal and convicted the Accused No.4 also - who filed appeal - pending appeal - he has under gone imprisonment for considerable period - A 1 died but his Lrs prosecuting his appeal - Apex court held that first accused,  Chief Engineer  being Technical Member of the Purchase  Committee, it  was  his  duty  to  advise  the  Purchase  Committee   about   the  then prevailing market rate of DPC  to  enable  NEHU  to  purchase   DPC  at  the market  rate.   The  first  accused  was  primarily  responsible   for   the commission of the offence and the first accused by abusing his  position  as Chief Engineer and  Technical  Member  got  the  inflated  rate  of  DPC  at Rs.42.75  per kg  approved when  the same was available in the local  market  at price  ranging from   Rs.5/-  to  Rs.10/-  per  kg.  and  A-1   obtained pecuniary advantage to himself and also to   accused  4  and  5  and  caused wrongful loss to NEHU to the tune of Rs.49  lacs.   The  first  accused  was rightly convicted under Sections  120B  IPC  and  420  IPC  and  also  under
Section 5(2)(d) of the PC Act.  Having regard to the gravity of the  offence and the extent of loss caused to the NEHU, the High Court  rightly  enhanced the sentence of imprisonment  imposed for various offences   for  which  the first  accused was convicted and we find no reason  to  interfere  with  the same.  So far  as  the  fourth  accused  is  concerned,  he  was   also convicted for the offence under Section 420 IPC.  The  offence  of  cheating is made of two ingredients: “deception of any  person  and  fraudulently  or dishonestly inducing that person to deliver any property to  any  person  or to consent that any person shall retain any property”.   In  collusion  with
first accused, the fourth accused quoted and supplied  DPC  at  an  inflated rate of  Rs.42.75  per  kg,  fourth  accused  dishonestly  induced  NEHU  to purchase DPC.  Fourth accused has taken stand that he did not know the  then prevalent market rate of DPC at Shillong.  As a supplier  and  also  dealing with DPC, it is incomprehensible that the fourth accused did  not  know  the
prevalent market  rate.   The  High  Court  rightly  negatived  the  defence version and convicted the fourth accused under Section  420  IPC  read  with Section 120B IPC. taking into consideration of his age and taking into consideration of payment of amount of Rs. Rs.3,50,000/- and further directed to pay Rs. 2,50,000/- treating his imprisonment as set off as the case is pending for 3 decades =

The gist of the  offence  under  Section  5(1)(d)  is  that  a  public
officer abusing his position as a Public Servant obtains for himself or  for
any other person any  valuable  thing  or  pecuniary  advantage.   The  word
“abuse” means, misuse i.e. using his position for something for which it  is
not intended. Based on oral and documentary evidence, the  trial  court  and
the High  Court   recorded  the  concurrent  findings  of  fact  that  first
accused,  Chief Engineer  being Technical Member of the Purchase  Committee,
it  was  his  duty  to  advise  the  Purchase  Committee   about   the  then
prevailing market rate of DPC  to  enable  NEHU  to  purchase   DPC  at  the
market  rate.   The  first  accused  was  primarily  responsible   for   the
commission of the offence and the first accused by abusing his  position  as
Chief Engineer and  Technical  Member  got  the  inflated  rate  of  DPC  at
Rs.42.75  per kg  approved when  the same was available in the local  market
 at price  ranging from   Rs.5/-  to  Rs.10/-  per  kg.  and  A-1   obtained
pecuniary advantage to himself and also to   accused  4  and  5  and  caused
wrongful loss to NEHU to the tune of Rs.49  lacs.   The  first  accused  was
rightly convicted under Sections  120B  IPC  and  420  IPC  and  also  under
Section 5(2)(d) of the PC Act.  Having regard to the gravity of the  offence
and the extent of loss caused to the NEHU, the High Court  rightly  enhanced
the sentence of imprisonment  imposed for various offences   for  which  the
first  accused was convicted and we find no reason  to  interfere  with  the
same.  The appeal preferred by the first accused  and  now  pursued  by  his
legal representative fails and the same is dismissed.
32.         Re: Criminal  Appeal  qua  the  fourth                accused  -
Edmund S. Lyngdoh:  The fourth  accused  Edmund                 S.  Lyngdoh,
the proprietor of M/s Edmund S. Lyngdoh, had also supplied DPC  to  NEHU  at
the rate of Rs.42.75 per kg.  Being the dealer,  dealing  with  DPC,  Edmund
must have known the market rate of DPC; the then market rate  of  DPC  which
was ranging from Rs.5/- to Rs. 10/- in those days.  Even if A-1  was  silent
on the said market price, fourth accused, Edmund  must  have  disclosed  the
market rate of DPC and must have quoted the then prevalent market  price  of
DPC which was ranging from Rs.5/- to Rs.10/; but the fourth  accused  quoted
inflated price of Rs. 42.75 per  kg  in  order  to  make  wrongful  gain  to
himself and to cause wrongful loss to NEHU.
33.         To bring home the guilt of the criminal conspiracy,  prosecution
should prove ; (i) that the accused agreed to do or caused  to  be  done  an
act that was illegal or was to be done by illegal  means;   (ii)  that  some
overt act  was done  by one of the accused in pursuance  of  the  agreement.
The essence of conspiracy is that  there  should  be  an  agreement  between
persons to do one or other of the acts constituting the  act  under  Section
120B IPC.  First accused is alleged to have conspired  with  fourth  accused
and others to supply DPC at an inflated price to NEHU of Rs.  42.75  per  kg
as against the then prevalent market rate of Rs.5/- to Rs.10/- per  kg.   In
furtherance of the conspiracy, fourth accused supplied Six MTs  of  DPC  and
thereby said to have caused wrongful loss of about Rs. 6 lacs to NEHU.
34.         Agreement among the conspirators can be  inferred  by  necessary
implications, and the inference can be  drawn  on  the  proved  facts.   The
facts and incriminating circumstances so proved must  form  the  full  chain
whereby the agreement between the accused and  their  guilt  can  be  safely
inferred.  Fourth accused supplied DPC to NEHU at an inflated  rate  of  Rs.
42.75 per kg and had obtained pecuniary advantage for himself  and  also  to
first accused and thereby caused  wrongful loss to NEHU.  In  the  light  of
evidence and proved facts, the High Court  rightly  reversed  the  acquittal
and convicted the fourth accused under Section 120B IPC.
35.         So far  as  the  fourth  accused  is  concerned,  he  was   also
convicted for the offence under Section 420 IPC.  The  offence  of  cheating
is made of two ingredients: “deception of any  person  and  fraudulently  or
dishonestly inducing that person to deliver any property to  any  person  or
to consent that any person shall retain any property”.   In  collusion  with
first accused, the fourth accused quoted and supplied  DPC  at  an  inflated
rate of  Rs.42.75  per  kg,  fourth  accused  dishonestly  induced  NEHU  to
purchase DPC.  Fourth accused has taken stand that he did not know the  then
prevalent market rate of DPC at Shillong.  As a supplier  and  also  dealing
with DPC, it is incomprehensible that the fourth accused did  not  know  the
prevalent market  rate.   The  High  Court  rightly  negatived  the  defence
version and convicted the fourth accused under Section  420  IPC  read  with
Section 120B IPC.
36.         The High Court remitted the matter to the trial  court  to  hear
the accused on the question of sentence and  pass  appropriate  orders.   In
the meanwhile, the fourth accused preferred appeal in this  Court  and  also
filed an application   seeking for a direction to the  trial  court  not  to
pass sentence.   By order dated 31.01.2011 this  court  ordered  that  trial
court will proceed on the sentence and pass appropriate orders.
37.         By order dated 14.06.2011, the trial court sentenced the  fourth
accused to undergo five years rigorous imprisonment with  fine  of  Rs.  one
lakh with default clause for the offence punishable under Section  420  IPC;
for the offence under Section 120B  IPC  fourth  accused  was  sentenced  to
undergo three  years  rigorous  imprisonment  with  a  fine  of  Rs.50,000/-
alongwith default  clause  and  both  the  sentences  were  ordered  to  run
concurrently. The fourth accused  had  undergone  sentence  of  imprisonment
from 14.06.2011 till 16.02.2012 totally 248 days.   By  the  order  of  this
Court dated 16.02.2012, the sentence imposed on fourth accused  was  ordered
to be suspended subject to the petitioner/fourth accused  depositing  a  sum
of Rs.3,50,000/- roughly representing 50% of  the  excess  amount  allegedly
gained by him towards the price of the DPC supplied.  The fourth accused  is
stated to be seventy years old and is said to be  undergoing  treatment  for
Type II Diabetes.  The matter is lingering on for about three decades.
38.         Having regard to the duration of the pendency of the matter  and
age of the fourth accused and that he has already paid fine amount and  also
deposited the amount as per the order  of  this  Court,  in  our  view,  the
period of sentence of imprisonment imposed on the  appellant-fourth  accused
for the conviction under Section 420 IPC  and  Section  120B  IPC  shall  be
modified to the period  already  undergone  and  by  imposing  further  fine
amount of Rs. 2,50,000/- in addition to the fine imposed by the trial  court
and the amount deposited pursuant to the orders of this Court.   In  default
of payment of the said fine amount  of  Rs.2,50,000/-,  the  fourth  accused
shall undergo imprisonment of one year.
39.         The appeal preferred by first accused now pursued by  his  legal
representative is  dismissed.    The  appeal  preferred  by  fourth  accused
(Edmund S. Lyngdoh) is partly allowed to the extent indicated above.


   2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41915 
                                                            REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                     CRIMINAL APPEAL  NO. 2056  OF 2014
                  (Arising out of SLP (Crl.) No. 553/2011)

EDMUND S LYNGDOH                                     …Appellant

                                   Versus

STATE OF MEGHALAYA                             …Respondent

                                    With

                   CRIMINAL APPEAL  NOs. 2057-58  OF 2014
               (Arising out of SLP (Crl.) Nos. 2203-2204/2011)

DEVA PRASAD SHARMA                                 …Appellant

                                   Versus

CENTRAL BUREAU OF INVESTIGATION            ...Respondent


                               J U D G M E N T


R. BANUMATHI, J.


            Leave granted.

2.          These  appeals  arising   out   of   SLP  (Crl.)            Nos.
2203-2204/2011 are filed challenging the judgment of the Gauhati High  Court
confirming the conviction  of  the  appellant-first  accused   (Deva  Prasad
Sharma) under Section 420 IPC, 120B IPC and Section 5(2)  of  Prevention  of
Corruption Act, 1947 (for short ‘the  P.C.  Act’)  and  enhancement  of  the
sentence imposed on him.  Fourth accused (Edmund S. Lyngdoh)  has  preferred
SLP (Crl.)        No.553/2011 challenging the reversal of his acquittal  and
assailing the conviction under Section 420 IPC read with Section 120B IPC.
3.           Deva Prasad Sharma (A-1) died on 9.10.2011 during the  pendency
of the petition before this Court and his legal representative  was  brought
on record by this Court’s Order dated 14.11.2011 in Crl. Appeal arising  out
of SLP (Crl.)       Nos.2203-2204/11  and  his  son   Debashish   Sharma  is
pursuing the  appeal.
4.          Briefly stated, case of  the prosecution is  that   Deva  Prasad
Sharma (First accused)  was the then Chief Engineer of  North  Eastern  Hill
University,  Shillong  (for  short  ‘NEHU’),  Stetnel  Roy   (A-2)  was  the
Accounts Officer, W.M.R. Wahlang (third  accused)  was  the  then  Assistant
Finance Officer, Edmund S. Lyngdoh, proprietor of M/s E.S. Enterprise  (A-4)
and T.S. Bareh, proprietor of M/s  Premiere  Enterprise  (A-5),  N.P.  Garg,
Executive  Engineer,  Shri  G.L.   Sharma,                   Jr.   Engineer,
Sanjay, Sr. Technical Assistant and Shri  H.  Nongkynrih,  Section  Officer,
Construction Division of NEHU have  colluded  together  for  procurement  of
Damp Seal  Cement  from  some  fictitious  and  non-existent  firms   at  an
exorbitant  rate during  the year 1982 to  mid  1985.    In  furtherance  of
this collusion, it is alleged that A-1 invited quotation on 12.12.1982  from
12 firms for supply of Damp Proof Cement (DPC) at the rate of  Rs.42.75  per
kg. though the then actual market  rate was Rs.5/- to Rs.7/- per  kg.   Even
though the Purchase Committee  had approved only  two  firms  for  supplying
the materials, A-1 is alleged to have  placed orders  from  many  firms  and
persons without ascertaining the  available  stock  and  actual  requirement
which resulted  in leaving huge quantities  of the  materials  so  purchased
unused.  On the basis of the complaint lodged by Dr. B.D. Sharma,  the  then
Vice-Chancellor of NEHU, case was registered and investigation was taken  up
by the CBI.  In the course of investigation, CBI found a  prima facie   case
against  A-1 to   A-3, Shri Edmund  S.  Lyngdoh,  the  owner  of   the  firm
  M/s E.S. Enterprises (A-4), Shri T.S. Bareh of M/s. Premiere   Enterprises
(A-5) and other suppliers and charge sheeted them  under  Section  120B  IPC
read with Section 420 IPC and Sections  5(2)  read  with  5  (1)(d)  of  the
Prevention of Corruption Act, 1947.   At  the  investigation  stage,  others
were dropped  from the case and chargesheet was filed only  against  A-1  to
A-5.  The trial court framed the charges  against A-1 to A-3 under  Sections
120B IPC read with 420 IPC and Section 5(2) read  with  Section  5(1)(d)  of
the PC Act, 1947, to which they pleaded not  guilty.  As far as A-4 and  A-5
are concerned, charges were framed against them under Sections 120B IPC  and
420 IPC.  The trial court convicted A-1 under Section  120B  IPC  read  with
Section 420 IPC and under Section 5(2) of the PC Act and  sentenced  him  to
undergo imprisonment.  A-2 to A-5 were acquitted of the charges.
5.           Being aggrieved by  the  acquittal  of  A-2  to  A-5  and  also
seeking for enhancement of punishment for the first accused,  CBI  preferred
appeal before the High Court challenging  his  conviction  and  sentence  of
imprisonment imposed by the  trial  court.   Both  the  appeals  were  heard
together and the learned single Judge of the  Gauhati  High  Court  enhanced
the punishment imposed on  the  first  accused,  and  dismissed  the  appeal
preferred by the first accused.  The details of conviction of  A-1  and  the
sentences imposed on him by the trial court and enhancement of  sentence  by
the High Court is as under:
|Trial Court                    |High Court                 |
|Conviction    |Sentence        |Conviction  |Sentence       |
|Section 120B  |4 months SI &   |Section 120B|3 years  RI and|
|of IPC        |fine of         |IPC         |fine of        |
|              |Rs.15,000/- in  |            |Rs.50,000/- in |
|              |default to      |            |default to     |
|              |undergo  SI for |            |undergo RI for |
|              |two months.     |            |one year.      |
|Section 420   |6 months of SI  |Section 420 |5 years  RI and|
|IPC           |and fine of     |IPC         |fine of        |
|              |Rs.15,000/- in  |            |Rs.1,00,000/-  |
|              |default to      |            |in default to  |
|              |undergo SI for 2|            |undergo RI for |
|              |months.         |            |one year.      |
|Section 5(2)  |1 year of SI &  |Section     |5 years RI     |
|PC Act        |fine of         |5(2)(d) of  |and fine of    |
|              |Rs.25,000/- in  |P.C. Act.   |               |
|              |default to      |            |Rs.1,00,000/-  |
|              |undergo SI for  |            |in default to  |
|              |two  months.    |            |undergo RI for |
|              |                |            |one year.      |

6.          A-2 died during the pendency of appeal before  the  High  Court.
The acquittal of accused 3 to 5 was reversed and they were  convicted  under
Sections 120B IPC and 420 IPC.  So far as imposing the quantum of  sentence,
the High Court remanded  the matter to the trial court with a direction   to
 pass appropriate orders after giving opportunity to the Accused 3  to 5  in
regard to the quantum of sentence  under  Section  235  (2)  Cr.P.C.   Being
aggrieved with the order  of  reversal  of  acquittal,  the  appellants  are
before us.  Pursuant to the order of  this  Court  dated  31.01.2011,  trial
court  passed  order  imposing  sentence  upon  fourth  accused.   For   the
conviction under Section 420 IPC and Section 120B IPC,  fourth  accused  was
imposed sentence of imprisonment of five years and three years  respectively
and fine was also imposed.
7.          We have heard the submission of  the  learned  counsel  for  the
appellants and the respondents and we have given our  due  consideration  to
the same.
8.          Re: Criminal Appeal qua first accused Deva Prasad Sharma  (since
dead) :  First accused was the Chief Engineer of the NEHU  at  the  relevant
time and the first accused and A-2 and A3  were  Technical  Members  in  the
Purchase Committee. On 12.12.1982, first accused invited  sealed  quotations
from 12 firms  for the supply of Damp Proof Cement (DPC) without  mentioning
the quantity and quality  required.  In response, quotations  were  received
from six firms and the same were scrutinized on 6.4.1983 which  is  said  to
be in contravention of norms and procedure and the rate of Rs.42.75  per  kg
quoted by M/s. Premiere Enterprises (A-5) and M/s. Edmund S.  Lyngdoh  (A-4)
were found  to be the lowest and after  making  comparative  statement,  A-1
appended his initial with date.
9.          On 7.04.1983, A-1 placed order upon four different firms of  A-4
– M/s Edmund S. Lyngdoh and M/s Premiere Enterprise belonging to T.S.  Bareh
(A-5) for supply of 2 metric tones (MT) each at  the  quoted  price  of  Rs.
42.75 per kg.  On 04.06.1983 in terms of the order  placed  and  the  prices
quoted, fourth accused through his firm M/s Edmund S. Lyngdoh and  M/s  E.S.
Enterprise and also M/s T.S. Bareh supplied DPC at the rate of Rs.42.75  per
kg.  On 06.07.1983, the Purchase Committee of NEHU, in which  first  accused
was the Technical Member approved the rate of Rs. 42.75  per  kg  quoted  by
the fourth accused and M/s Premiere Enterprises for purchase of DPC.
10.         The learned counsel for the first accused contended  that  there
is  no evidence to show  that A-1 had  induced  the  Purchase  Committee  to
approve the rates  of  two firms M/s Premiere  Enterprises  and M/s  Edmunds
S. Lyngdoh- fourth  accused at the rate of  Rs.42.75  per  kg.  and  as  the
contract  was awarded to the lowest tenderer, there was no question of   A-1
inducing the  Purchase  Committee  by  deception  to  purchase   DPC  at  an
exorbitant  price and  it was the Purchase  Committee   which   on  its  own
approved the rate on the basis  of  comparative  statement  of   the  prices
quoted by the tenderers as prepared by the officials.
11.          The  learned  counsel  for  the   respondent   submitted   that
quotations were floated by the first accused even prior to the matter  being
taken up by the Purchase Committee and as the Chief Engineer of NEHU-  first
accused must have known the then prevailing market  rate  and  as  Technical
Member of the Purchase Committee the first accused should have assisted  the
non-technical members in the purchase of DPC at the  then  prevalent  market
rate.  The  learned  counsel  submitted  that  adequate  evidence  has  been
adduced by the prosecution to bring home the guilt of first accused that  he
induced the Purchase Committee to  purchase  DPC  at  an  inflated  rate  of
Rs.42.75 per kg.
12.          PW-6,  Sri  O.D.  Shira,  the  then  Assistant   Registrar   of
Administration, NEHU during 1983 was the convener of the Purchase  Committee
and he called for a meeting of the Purchase Committee on 6.7.1983.  Ext.  P1
is the file relating to Purchase Committee Meeting  held  on  6.7.1983.   As
per Ext.P1 (1), there was no agenda for the purchase of  DPC.  However,  the
first accused managed to introduce the item before the  Purchase  Committee,
agenda found place  in  resolution  no.14  [Ext.  P1  (5)]  relates  to  the
purchase of  Damp Seal Water Proofing Compound for  use  in  the  department
campus at Umshing.  Purchase Committee accepted the lowest rate of  Rs.42.75
per  kg  quoted  by  the  appellant/fourth   accused   and   M/s.   Premiere
Enterprises, Jowai.  Based on the evidence  of   PW-6  and  Resolution  vide
P1(5), trial court and the High Court recorded concurrent findings  of  fact
that before ever the Purchase Committee approved the rate,  quotations  were
already invited by accused No.1 and A-1 being one of the  technical  members
in the Purchase Committee managed to introduce the item in  the  meeting  of
the Purchase Committee for approving the rate quoted by fourth  accused  and
         M/s Premiere Enterprises at the rate of Rs.42.75 per kg as A-1  was
taken into confidence by the Purchase Committee.
13.   In her evidence PW-9, Smt. M.R. Mawlong  who was  the  then  Registrar
of  NEHU from February 1980 to March 1984 stated that  first  accused  being
the Chief Engineer was the Technical Member of the Purchase  Committee   and
“Purchase Committee depended on the suggestion of the Technical  Member  who
was in the  rank of a  Chief Engineer as regards  the  rate  of  DPC”.   The
object of having technical members in the Purchase Committee   was   with  a
view  to assist   the  non-technical   members   concerning  any  matter  of
technical  nature and to guide them, as  regards   the  utility,  prevailing
rate and the quantity required of the said item for  the  Institution.  Role
of the Technical  Members  in  the  Purchase  Committee  becomes  vital  and
important and it was expected that the Technical Members  namely  the  first
accused       (Deva Prasad Sharma) and the second and third accused  are  to
contribute their technical knowledge and give their best  possible  opinion,
suggestion and advice to the  Purchase  Committee  in  making  purchases  of
quality materials at the prevalent market rate.  We  find  no  substance  in
the contention that there is nothing to  show  that  the  technical  members
first accused and A-2 and A-3 have misled the Purchase  Committee  and  that
Purchase Committee had taken  the decision on its own to  make  purchase  of
DPC.
14.   There is ample evidence and circumstances  justifying  the  conclusion
of the trial court and High Court that the Purchase Committee was misled  by
the first accused to approve the quotation of fourth accused  –  M/s  Edmund
S. Lyngdoh and M/s Premiere Enterprises at the  inflated  rate  of  Rs.42.75
per kg.  To fortify the same,  we  may  briefly  refer  to   few  facts  and
circumstances as recorded by the trial court and the High Court:
(i)   Before the approval of  the  rate  by  the  Purchase  Committee,  five
quotations for supply of the DPC invited by A-1 on his own were  already  in
existence;

As per Ext. P1 (1), there was no agenda for the  purchase  of   DPC  in  the
meeting of Purchase Committee held on  6.7.1983  and  the  said  agenda  was
introduced in Resolution No. 14  vide Ext.P1 (5) with  regard  to   purchase
of DPC and A-1 being a Technical Member  in the Purchase  Committee  managed
to introduce  the item  for purchase of DPC  as one  of the agendas;

(iii) First accused being the Chief Engineer did not take steps  for  survey
through quotation or by any other method to ascertain  the  then  prevailing
market rate of DPC;

(iv)  Purchase  Committee  depended  on  the  suggestion  of  the  Technical
Members - first accused and others as regards  the rate of DPC;

First accused did not ascertain the available stock of DPC   or  the  actual
requirement of DPC for NEHU;

(vi)  First accused invited quotations from 12 firms out of which  only  two
firms were approved firms by Purchase Committee.

15.   Learned counsel for A-1 submitted that from the  evidence  adduced  by
the prosecution, it cannot be  conclusively  held that  the  then  prevalent
market rate of  DPC  was Rs. 5/- to Rs. 6/- per kg.  at  the  relevant  time
inasmuch as no documentary evidence to that effect or  any  price  list   of
DPC in the open market at that time was  produced  by  the  prosecution  and
while so the courts have grossly erred in convicting A-1  on  the  basis  of
oral testimony.  It was further contended  that  the  High  Court  erred  in
placing reliance upon  the  answers  of   A-1  recorded  under  Section  313
Cr.P.C. as one piece of evidence to  complete  the  link  in  the  chain  of
circumstances  against the first  accused.
16.   To prove that the then market rate of  DPC  at  Shillong  was  ranging
from Rs.5/- to Rs.10/- per kg, prosecution has  adduced  adequate  evidence.
PW-5, Sri Satinder Bawa who is the Director of  firm Bawa Paints  Pvt.  Ltd.
which manufacture  paints and water proof  compound  since   the  year  1965
and the products of  his firms are sold to  various  distributors  including
M/s Premiere Enterprises and others and all over the  North  Eastern  States
including Meghalaya and Jowai area and the products  were sold  during 1982-
1983 also.  In his evidence PW-5 stated that during  1982-1984,  50  Kg.  of
Damp Proof Cement were sold at the rate  between  Rs.  80/-  to  Rs.85/-  at
Delhi plus taxes and one kilogram packet, used to be sold at Rs.  2.80/-  to
Rs. 3.80/- at Delhi.  PW 5 further stated that in Shillong, the rate of  one
kilogram of DPC  would then be in the range of Rs. 6/- to      Rs.  7/-  per
kg.  which is inclusive of taxes, transportation and profit.
17.   PW-16, Sri Santosh Kumar Chachan is the proprietor   of  M/s  Gajanand
Chachan of Barabazar, Shillong   which  deals  with   hardware,  paints  and
building  materials including   water proofing cement.  As per the  evidence
of   PW-5, PW-16 M/s Gajanand Chachan is also one of the firms to  whom  DPC
and paints was supplied by PW-5.  Corroborating the evidence of  PW-5,   PW-
16 stated  that his  firm  was dealing  with water  proofing  cement  during
     1982-1984 and he used to purchase  paints  and  water  proofing  cement
from Delhi, Calcutta  and  sometimes  from  Gauhati  during  1983-1984,  and
prices of water proofing cement during that period  was   Rs.  5/-  per  kg.
which was  sold at Shillong.  From the evidence of PWs  5  and  16,   it  is
amply established  that the market rate  of DPC  at the  relevant  time  was
Rs. 2.80 to Rs. 3.80 per kg in Delhi and in Shillong, the  rate  was  Rs.6/-
to Rs.7/- per kg and the rate at Rs.42.75 per kg. is  an  inflated  one  and
the quotations submitted by fourth accused and  accepted  by  first  accused
was with ulterior motive.
18.    Apart  from  establishing   the  then  prevailing   market  rate   by
examining  PWs 5 and 16, prosecution has also examined PW-13, Sri N.P.  Garg
who has worked in NEHU since 1984 as Executive Engineer who  is  also  aware
of the  use of  Damp Seal Cement in the construction  work.  Through  PW-13,
Ext.P5, the Work File for the construction work  of  Intake  Water  Tank  at
Wahjarain for the period  of 6.9.1983 and by item 7  (17)  Rs.10/-  per  kg.
was paid  for Water Proofing Compound (DPC) along with other item   and  the
work was  done  by contractor Hansraj Jain  and the amount was paid to  him.
 Referring to the evidence of PW-13  and Ext.P5, the  trial  court  and  the
High Court recorded findings of fact that the defence neither impeached  his
credibility nor challenged Ext.P5 Bill as per  which  Rs.10/-  per  kg.  was
paid  for  DPC  for  water  proofing  compound  and  that  Ext.P5  would  be
corroborative evidence  so far as the rate of water proofing compound  (DPC)
 was Rs. 10/- per kg. during the period of 1983.  From the evidence of  PW-5
and PW-16, the dealers in DPC, and from the earlier Work  File  (Ext.P5)  as
spoken by  PW-13, the prosecution has  clearly  established  that  the  then
prevalent market rate of DPC was Rs.5/- to Rs.10/- per kg.
19.   Before placing the subject for purchase of DPC in  Purchase  Committee
Meeting held on 6.07.1983, as pointed out by the trial court, no survey  was
conducted  nor  any  other  method  was  adopted  by   first   accused   for
ascertaining the then prevalent  market  rate  of  DPC.  During  questioning
under Section 313 Cr.P.C., when the first accused was questioned  about  the
then prevalent market rate of DPC, first accused  stated  that  he  was  not
aware of the same.  Referring to the same, the High Court observed  that  it
is an evasive reply and the same was taken as a piece  of  evidence  against
the accused to complete the chain of circumstances.
20.    Insofar as contention taking the statement of first accused  recorded
under Section 313 Cr. P.C.,  as  an  evidence  it  was  submitted  that  the
statement under Section 313 Cr. P.C. cannot be  taken  as  an  incriminating
evidence against the accused.    Of  course,  the  High  Court   in  extenso
referred to the statements  of  the  first   accused   put  to  him  in  his
   cross-examination  under Section 313 Cr.P.C. and observed as under:-
       “A-1 did not  utter a single word to assail that the market  rate  of
DPC at Shillong at the relevant time was ranging  from  Rs.5/-  to  Rs.10/-.
All that he said was that he was not aware of the market rate of  a  DPC  at
that time or that Rs.42.75 was accepted and approved  rate  of  DPC.   These
evasive replies, taken together with evidence of PW-6  and  PW-13  and  item
no. 7(17) of Ext. P-5, complete the  link  in  the  chain  of  circumstances
against A-1”.

After so observing, the High Court held that  those  evasive  replies  under
Section 313 Cr. P.C. taken together with the evidence complete the  link  in
the chain of circumstances against A-1.
21.   Where the accused  gives  evasive  answers  in  his  cross-examination
under Section 313 Cr.P.C., an adverse inference can be  drawn  against  him.
But such inference cannot  be  a  substitute  for  the  evidence  which  the
prosecution must adduce to bring  home  the  offence  of  the  accused.  The
statement under Section 313 Cr.P.C.  is not  an  evidence.  In  Balwant  vs.
State of U.P. (2008) 9 SCC 974, this  Court  held  that  conviction  of  the
accused cannot be based merely on his statement  recorded under Section  313
Cr.P.C. which cannot be regarded as  evidence.  It  is  only  the  stand  or
version of the accused by way of explanation  explaining  the  incriminating
evidence/circumstances appearing against him. The statement made in  defence
by the accused under Section 313 Cr.P.C.  can certainly be taken aid  of  to
lend credence to other evidence led by  the  prosecution.   Statements  made
under Section 313 Cr.P.C.  must  be  considered  not  in  isolation  but  in
conjunction with the other prosecution evidence.
22.   In the present case, it is not as if the High Court   arrived  at  the
conclusion and  based conviction only on the statement made  by  the   first
accused under Section 313 Cr.P.C.  As seen from the reasonings of  the  High
Court extracted above, the statement  of first  accused  under  Section  313
Cr.P.C.  was taken  with the evidences of PW-6 and PW-13 and items 7(17)  of
Ext. P5 as a link to complete the chain of circumstances  against  A-1.   As
elaborated earlier, the answers given by the first accused  were  considered
not in isolation but  in  conjunction   with  other  oral   and  documentary
evidence.  We find no substance in the contention that the High Court  erred
in taking  the statement of  first  accused under Section 313 Cr.P.C.  as  a
link to complete the chain of circumstances.
23.   Based on the oral and documentary evidence, the trial  court  and  the
High Court recorded concurrent findings of fact that the Purchase  Committee
consisting  of  the  non-technical  members,  the  first  accused  being   a
Technical Member played  a  dominant  and  crucial  role   in  inducing  the
Purchase Committee to purchase  DPC at an inflated rate  of  Rs.  42.75  per
kg.   when the  then prevalent market rate  at the relevant period  was  Rs.
5/- to Rs. 10/- per  kg.   and  we  see  no  perversity  in  the  concurrent
findings recorded by the courts.
24.   Contention regarding validity of sanction:  Ext.P19  is  the  sanction
order for prosecution against A-1 and the same was under  the  signature  of
the then Chief Secretary, Government of Meghalaya.  PW-18,  Sri  Kharkongor,
Secretary  in  the  Political  Department,  Government  of   Meghalaya   was
examined  through whom Ext. P9 sanction order was exhibited.
25.   Learned counsel for A-1 contended that under Section 6 of  PC Act  “no
court  shall  take  cognizance  of  offence   unless  previous  sanction  is
obtained……..”  and so far as A-1 is concerned, Chief Secretary  is  not  the
competent authority to remove A-1 and A-1 was  appointed  by  the   Governor
and the Governor of Meghalaya is the  appointing  authority,  and  therefore
the sanction should be  to  the  satisfaction  of  the  Governor  and  Chief
Secretary  is  only  the  authority  communicating   the  sanction  and  the
prosecution has         not adduced any material  to show   that  appointing
   authority – Governor  of  Meghalaya  was  satisfied  that   the  relevant
material  to approve the sanction  for prosecuting  A-1  was  placed  before
him.
26.   The learned counsel for the  respondents  had  taken  us  through  the
evidence of PW-18 and  submitted  that  the  Chief  Secretary  accorded  the
sanction on the basis  of   report  of  CBI  placed  before  him  and  other
materials as reflected in the note sheet of the  file and then accorded  the
sanction for prosecuting  A-1  and there is valid sanction  for  prosecution
of A-1.  Referring to the evidence of PW-18, the courts  observed  that  the
then Chief Secretary accorded the sanction on the basis  of  the  report  of
CBI as reflected in the  note sheet of the file and the sanction order  does
not suffer from any infirmity.
27.   As per Article 166 (2) of the Constitution of India,  all  orders  and
other  instruments made and executed  in  the  name  of  Governor  shall  be
authenticated in such manner as may be   specified in rules to be  made   by
the Governor and the  validity  of  an  order  or  instrument  which  is  so
authenticated shall not be called in question on the ground  that it is  not
an order  or instrument  made or executed  by  the  Governor.   It  was  not
suggested to PW-18  that  Chief  Secretary  has  no  power   whatsoever   to
authenticate the orders and instruments made and executed  in  the  name  of
Governor.  During  trial,  the first   accused   also  did  not  insist  for
production of the file  nor suggested  that  the  sanction  order   was  not
approved by the Governor.  Referring to Article 166 of the  Constitution  of
India, the trial court observed that  the  State  must  be   having  certain
rules where orders and other instruments made and executed in  the  name  of
the  Governor  to  be  authenticated  by  certain  officers  of  the   State
Government, the trial court negatived the contention of the  first   accused
challenging  the validity of sanction.  We find no merit in  the  contention
challenging the validity of sanction to prosecute first accused.
28.   Contention regarding  delay  in   lodging  FIR:  The  accused  A-1  in
collusion with other accused persons invited quotations on  12.12.1982  from
the 12 firms for the supply   of   Damp  Proof  Cement  (DPC)  and  DPC  was
procured during  1982 to mid 1985.  Ext.P11  complaint  was  lodged  by  Dr.
B.D. Sharma, Vice Chancellor, NEHU, Shillong, Meghalaya  on  3.7.1985  based
on which FIR was registered.  On behalf of the  appellant/first  accused  it
was contended that FIR was registered nearly after two years  which  creates
serious doubts about its genuineness, more so, when the Vice  Chancellor  on
whose complaint FIR  was registered was not examined  as a witness.
29.   Per contra, the learned counsel for  the  prosecution  submitted  that
DPC  was procured   during  1982  to  mid  1985  and  the  offence  being  a
continuing offence and it  cannot  be   said  that  there  was  a  delay  in
lodging the FIR and non-examination of the complainant-Vice Chancellor   was
not fatal to the prosecution case.
30.   Mere delay in  lodging  the  FIR  is  not  necessarily  fatal  to  the
prosecution case.  As rightly contended  by  the  learned  counsel  for  the
respondent-CBI, supply of DPC was  continuously made from 1982 to  mid  1985
and it was a continuing  offence.   In  matters  of  continuing  offence  no
duration of time  can be fixed for  lodging  the complaint.  First   accused
 in collusion with  other accused persons  induced  the  Purchase  Committee
for purchase of DPC  at an exorbitant  rate of  Rs.42.75  per  kg  and  only
when the  conspiracy  came to the  fore,  the  Vice-Chancellor   lodged  the
complaint.  In cases of abuse of powers and  obtaining  pecuniary  advantage
and causing wrongful loss, time of lodging complaint  and  registration   of
FIR   cannot  be  considered  on  the  touchstone   of   prompt  lodging  of
complaint like other cases of murder, dacoity and assault etc., where  there
are possibilities of exaggeration  and embellishments being  crept  in.   In
cases of abuse of position by the persons holding official  position,    and
causing wrongful loss, prosecution case is  based  on  documentary  evidence
and oral evidence of other official witnesses  and  hardly  any  possibility
of  concoction and introduction of  coloured version.   We  find   no  merit
in the contention that the delay in lodging  FIR  raises  doubts  about  the
genuineness of the prosecution case.
31.   The gist of the  offence  under  Section  5(1)(d)  is  that  a  public
officer abusing his position as a Public Servant obtains for himself or  for
any other person any  valuable  thing  or  pecuniary  advantage.   The  word
“abuse” means, misuse i.e. using his position for something for which it  is
not intended. Based on oral and documentary evidence, the  trial  court  and
the High  Court   recorded  the  concurrent  findings  of  fact  that  first
accused,  Chief Engineer  being Technical Member of the Purchase  Committee,
it  was  his  duty  to  advise  the  Purchase  Committee   about   the  then
prevailing market rate of DPC  to  enable  NEHU  to  purchase   DPC  at  the
market  rate.   The  first  accused  was  primarily  responsible   for   the
commission of the offence and the first accused by abusing his  position  as
Chief Engineer and  Technical  Member  got  the  inflated  rate  of  DPC  at
Rs.42.75  per kg  approved when  the same was available in the local  market
 at price  ranging from   Rs.5/-  to  Rs.10/-  per  kg.  and  A-1   obtained
pecuniary advantage to himself and also to   accused  4  and  5  and  caused
wrongful loss to NEHU to the tune of Rs.49  lacs.   The  first  accused  was
rightly convicted under Sections  120B  IPC  and  420  IPC  and  also  under
Section 5(2)(d) of the PC Act.  Having regard to the gravity of the  offence
and the extent of loss caused to the NEHU, the High Court  rightly  enhanced
the sentence of imprisonment  imposed for various offences   for  which  the
first  accused was convicted and we find no reason  to  interfere  with  the
same.  The appeal preferred by the first accused  and  now  pursued  by  his
legal representative fails and the same is dismissed.
32.         Re: Criminal  Appeal  qua  the  fourth                accused  -
Edmund S. Lyngdoh:  The fourth  accused  Edmund                 S.  Lyngdoh,
the proprietor of M/s Edmund S. Lyngdoh, had also supplied DPC  to  NEHU  at
the rate of Rs.42.75 per kg.  Being the dealer,  dealing  with  DPC,  Edmund
must have known the market rate of DPC; the then market rate  of  DPC  which
was ranging from Rs.5/- to Rs. 10/- in those days.  Even if A-1  was  silent
on the said market price, fourth accused, Edmund  must  have  disclosed  the
market rate of DPC and must have quoted the then prevalent market  price  of
DPC which was ranging from Rs.5/- to Rs.10/; but the fourth  accused  quoted
inflated price of Rs. 42.75 per  kg  in  order  to  make  wrongful  gain  to
himself and to cause wrongful loss to NEHU.
33.         To bring home the guilt of the criminal conspiracy,  prosecution
should prove ; (i) that the accused agreed to do or caused  to  be  done  an
act that was illegal or was to be done by illegal  means;   (ii)  that  some
overt act  was done  by one of the accused in pursuance  of  the  agreement.
The essence of conspiracy is that  there  should  be  an  agreement  between
persons to do one or other of the acts constituting the  act  under  Section
120B IPC.  First accused is alleged to have conspired  with  fourth  accused
and others to supply DPC at an inflated price to NEHU of Rs.  42.75  per  kg
as against the then prevalent market rate of Rs.5/- to Rs.10/- per  kg.   In
furtherance of the conspiracy, fourth accused supplied Six MTs  of  DPC  and
thereby said to have caused wrongful loss of about Rs. 6 lacs to NEHU.
34.         Agreement among the conspirators can be  inferred  by  necessary
implications, and the inference can be  drawn  on  the  proved  facts.   The
facts and incriminating circumstances so proved must  form  the  full  chain
whereby the agreement between the accused and  their  guilt  can  be  safely
inferred.  Fourth accused supplied DPC to NEHU at an inflated  rate  of  Rs.
42.75 per kg and had obtained pecuniary advantage for himself  and  also  to
first accused and thereby caused  wrongful loss to NEHU.  In  the  light  of
evidence and proved facts, the High Court  rightly  reversed  the  acquittal
and convicted the fourth accused under Section 120B IPC.
35.         So far  as  the  fourth  accused  is  concerned,  he  was   also
convicted for the offence under Section 420 IPC.  The  offence  of  cheating
is made of two ingredients: “deception of any  person  and  fraudulently  or
dishonestly inducing that person to deliver any property to  any  person  or
to consent that any person shall retain any property”.   In  collusion  with
first accused, the fourth accused quoted and supplied  DPC  at  an  inflated
rate of  Rs.42.75  per  kg,  fourth  accused  dishonestly  induced  NEHU  to
purchase DPC.  Fourth accused has taken stand that he did not know the  then
prevalent market rate of DPC at Shillong.  As a supplier  and  also  dealing
with DPC, it is incomprehensible that the fourth accused did  not  know  the
prevalent market  rate.   The  High  Court  rightly  negatived  the  defence
version and convicted the fourth accused under Section  420  IPC  read  with
Section 120B IPC.
36.         The High Court remitted the matter to the trial  court  to  hear
the accused on the question of sentence and  pass  appropriate  orders.   In
the meanwhile, the fourth accused preferred appeal in this  Court  and  also
filed an application   seeking for a direction to the  trial  court  not  to
pass sentence.   By order dated 31.01.2011 this  court  ordered  that  trial
court will proceed on the sentence and pass appropriate orders.
37.         By order dated 14.06.2011, the trial court sentenced the  fourth
accused to undergo five years rigorous imprisonment with  fine  of  Rs.  one
lakh with default clause for the offence punishable under Section  420  IPC;
for the offence under Section 120B  IPC  fourth  accused  was  sentenced  to
undergo three  years  rigorous  imprisonment  with  a  fine  of  Rs.50,000/-
alongwith default  clause  and  both  the  sentences  were  ordered  to  run
concurrently. The fourth accused  had  undergone  sentence  of  imprisonment
from 14.06.2011 till 16.02.2012 totally 248 days.   By  the  order  of  this
Court dated 16.02.2012, the sentence imposed on fourth accused  was  ordered
to be suspended subject to the petitioner/fourth accused  depositing  a  sum
of Rs.3,50,000/- roughly representing 50% of  the  excess  amount  allegedly
gained by him towards the price of the DPC supplied.  The fourth accused  is
stated to be seventy years old and is said to be  undergoing  treatment  for
Type II Diabetes.  The matter is lingering on for about three decades.
38.         Having regard to the duration of the pendency of the matter  and
age of the fourth accused and that he has already paid fine amount and  also
deposited the amount as per the order  of  this  Court,  in  our  view,  the
period of sentence of imprisonment imposed on the  appellant-fourth  accused
for the conviction under Section 420 IPC  and  Section  120B  IPC  shall  be
modified to the period  already  undergone  and  by  imposing  further  fine
amount of Rs. 2,50,000/- in addition to the fine imposed by the trial  court
and the amount deposited pursuant to the orders of this Court.   In  default
of payment of the said fine amount  of  Rs.2,50,000/-,  the  fourth  accused
shall undergo imprisonment of one year.
39.         The appeal preferred by first accused now pursued by  his  legal
representative is  dismissed.    The  appeal  preferred  by  fourth  accused
(Edmund S. Lyngdoh) is partly allowed to the extent indicated above.

                                                              …………………………………J
                                                               (T.S. Thakur)



                                                            …………………………………..J
                                                              (R. Banumathi)

New Delhi;
September 16, 2014

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