PRADUMNA SHRINIWAS AURADKAR AND Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) These two appeals arise out of the order of conviction and sentence passed by the learned Special Judge Solapur, in Spl. Case No. 2 of 1976 by which order he had convicted accused No. 1, who is the appellant in Criminal Appeal No. 1228 of 1977, as well as accused No. 2, who is appellant in Criminal Appeal No. 22 of 1978 of the offence under Sections 218, 409, 420, 467, 468, 471, 477-A of the Penal Code as also under Section 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act. He also convicted both the accused of the offence under Section 120-B of the Penal Code for an offence of conspiracy to commit the above offences. 1-A. After hearing both the accused on the question of sentence the learned Special Judge sentenced both of them to rigorous imprisonment for one year and to pay a fine of Rs. 200/- and in default to suffer further rigorous imprisonment for 3 months for each of the offences under Sections 218, 409, 420, 467, 468, 471, 477-A and 120-B of the Penal Code as also under Section 5(1)(c) read with Section 5(2) of the P.C. Act. He further directed that the substantive sentences shall run concurrently. Though the judgment was a common judgment, the two original accused have filed two different appeals as mentioned above.

(2.) Both these appeals are being disposed of by this common judgment. For the sake of convenience, appellant in Criminal Appeal No. 1228 of 1977 will be referred to hereinafter as accused No. 1 and the appellant in Criminal Appeal No. 22 of 1978 will be referred to as accused No. 2. Admittedly accused No. 1 was serving as a Sub-Overseer and accused No. 2 was serving as a Head Clerk in the office of Minor Irrigation Sub-Division Zilla Parishad at Barsi. At that time Vasant Gumaste, P.W. 1, was also serving in the same office as a peon. Said Vasant Gumaste was also charge-sheeted by the police as a fellow conspirator along with the other two accused; but he turned approver and was tendered pardon by the Court. The time relevant for the purpose of the possession case is the period between 3-11-1971 to 28-12-1971. It is an admitted fact that both the accused as well as the approver Vasant Gumaste were working on the posts as mentioned above at the relevant time. The work in question was construction of Mangegaon-Khairav Road for the purpose of giving relief to the scarcity affected people. The work started on 21-8-1971 and ended on 28-12-1971. Initially one Shri Bagal, an Overseer, and accused No. 2 were deputed for and entrusted with said work. However, it appears that there were quarrels between said Shri Bagal and accused No. 2. As a result of which it was found necessary to transfer Shri Bagal to some other work and accused No. 1, a Sub-Overseer, was entrusted with the said road work along with accused No. 2 and the said peon Gumaste. The method of the work and the mode of disbursement of moneys, so far as it is relevant for the purpose of this prosecution, is something about which there is hardly any dispute. It was as follows :- Labourers were employed by accused No. 2 for the purpose of road work and their muster roll was maintained by accused No. 2. The muster roll for each day showed the work done by each of the labourers. Periodically the bills in respect of wages payable to the workers for the work done were submitted, to the Head Office. The bills were sanctioned by the Head Office and the total amount due under the bills was paid to accused No. 1. Accused No. 1 then went to the worksite. There accused No. 2 identified each worker who was entitled to receive the wages for the previous period. The amount due in that behalf was shown in the pay sheet as against the name of each of the workers. When the concerned worker was identified by accused No. 2 his signature or thumb impression was taken against the entry of his name and the amount due to him under the said entry was paid to him. So far as this procedure is concerned, there is no dispute about the same whatsoever. The case of the prosecution is that whereas various labourers were paid their wages by accused No. 1 in company with accused No. 2, there were some cases where both the accused conspired to commit the offences of forgery, defalcation, cheating and criminal breach of trust. What they did was that in some cases amount due to a labourer was not paid to him but accused No. 2 put his own thumb mark against the name of the particular labourer and it was shown as if the amount was paid to that worker. As a matter of fact that amount was misappropriated by the two accused unto themselves, or unto their of them. At least in one case the thumb impression which should have been made by the real recipient of the wages was made not by accused No. 2 but by accused No. 1 himself. By making such thumb impression against the name of the real recipient, it was shown that the amount was received by the recipient; but as a matter of fact the amount was received by either or both of the accused. In some cases there existed no worker who was entitled to any wages but a bogus name was shown and it was shown that he had actually done the work. Against his name thumb impression was put by accused No. 2 himself and the moneys were shown to have been paid by accused No. 1 to such bogus person. This was the third manner in which both the accused had conspired to commit the said offences. It may be stated here that the approver P.W. 1 Gumaste also was a party to the conspiracy and hence he was also initially charge-sheeted by the police. However pardon was tendered to him by the Court upon his application in that behalf for becoming an approver. That is the reason why only the present two appellants were arraigned as accused Nos. 1 and 2 in the lower Court and charges were framed against them in respect of the offences as mentioned above.

(3.) The defence of the accused was outwardly of total denial. Accused No. 1 contended that he was over-burdened with the work and hence it was not possible for him to devote much time for supervision of the work which was being looked after mainly by accused No. 2. He contended that except on 22-1-1972 on each occasion he himself had disbursed moneys to the workers for their wages. He contended that on 22-1-1972 he had to entrust the work of disbursement of the moneys to accused No. 2 that Accused No. 2 subsequently represented to him that the work of disbursement had been completed by him; but that later on he reported that the thumb impression of one labourer inadvertently remained to be taken. He further contended that in order to complete the record he himself, i.e. accused No. 1, put his thumb mark against the name of the labourer upon being assured by accused No. 2 that he had made the necessary payment to the said workman. He contended that his thumb impression on the entry dated 22-1-1972 was a bona fide thumb impression and was not made with any criminal motive. So far as accused No. 2 was concerned, he contended that there was no entrustment made to him at all. According to him all the payments were made by accused No. 1 only. He admitted the above mentioned modus operandi as regards the payment but contended that on one occasion he was very much ill and at that time accused No. 1 and Gumaste came to him, and informed him that some thumb marks remained to be taken from the workmen concerned as against the payment already made to them. According to accused No. 2, accused No. 1 and said Gumaste impressed upon him the need of putting his own thumb mark as against those entries in order to show that those persons had received the payments and had put their thumb marks in token of the receipt of moneys. Accused No. 2 was thus evidently trying to fasten the liability exclusively on accused No. 1.