STATE OF GUJARAT Vs. JASWANTLAL NATHALAL

JUDGEMENT

(1.) The State of Gujarat has filed this appeal, by special leave against the order of acquittal made by the High Court of Gujarat in criminal appeal No. 759/63 on its file. The respondent herein was convicted for an offence under sec. 409 I. P. C by the City Magistrate, 7th Court, Ahmedabad, and sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 500, in default to suffer rigorous imprisonment for four months more.

(2.) The facts of the case lie within a narrow compass. The Government of Gujarat gave a contract to Bharat Sewak Samaj (Gujarat) the work of construction of a building for the Government Litho-Printing Press. From exh. 20 it appears that the B S. S. in its turn gave that work on sub contract to a firm known as M/s. Kaushik & Co, though it was sought to make out that M/s Kaushik & Co. were merely appointed to supervise the work. The firm Kaushik & Co. consisted of two partners. The respondent who is the brother of one of the partners was looking after the construction work. On 9-4-62, BSS applied to the Deputy Engineer (construction sub-division, Ahmedabad) for allotment of ten tons of cement for the construction work in question. In response to that application, the Deputy Engineer allotted five tons (100 bags) of cement and the same was delivered to the respondent for and on behalf of B. S. S. on 10-4-62. All these facts are admitted.

(3.) The further case of the prosecution is that after taking delivery of the aforementioned 100 bags of cement, the respondent delivered at the work site sixty bags of cement and the remaining forty bags he sent to the godown of PW2 Tayabali Jiwaji. About these facts also there is no dispute.