DATTATRAYA KRISHNAJI JOSHI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant - an Executive Engineer in the Irrigation Department takes exception to his conviction under section 161 of the Indian Penal Code as also under section 5 (1) (d) read with section 5 (2) of the Prevention of Corruption Act, 1947. On the first count he was sentenced to rigorous imprisonment for one year and on the second count to rigorous imprisonment for one year as also a fine of Rs. 500/- and in default of payment of payment of fine further rigorous imprisonment for three months. The substantive sentences of imprisonment were directed to run concurrently.

(2.) THE appellant was the Executive Engineer Incharge of Division No. 7 of the Kukadi Irrigation Project. His head quarters were at Shrigonda, District Ahmednagar. Four buildings, each consisting of four residential blocks were to be constructed for the employees at the said project. Tenders were, therefore, called. One Ashok Naik, a young contractor also submitted his tender for the said works. His tender for construction, at a cost of Rs. 2,93,635/- was accepted on 2-11-1979. Alongwith the tender he had deposited the earnest money of Rs. 3000/- on 18-10-1979. He was also required to deposit Rs. 14,000/- towards the price of the steel and cement which was to be provided to him for the purposes of these works as government quota. He had deposited Rs. 7,350/- in cash and the balance due from him was to be appropriated from his running bill with interest at 5% per annum and also a deduction of income-tax at source at 2% per annum. Upon acceptance of his tender and compliance with these requirements, the said Ashok Naik commenced the construction work. The supervision over this work was being done by a Deputy Engineer by name Shri Gauda and Overser Shri Bhide. The contractors grievance was that measurements of the work done by him from time to time were not taken correctly by these persons. On one occasion when the measurements were so taken incorrectly, he had taken objection to the same, he had endorsed his objection in writing on the said measurement book. However, in view of the threat by the said Shri Gauda that there would be more objections taken to his running bills, or that he would be subjected to fine, etc. unless he agreed to the measurements, the said contractor Ashok Naik wailed under the threats and then even scored out the objection so endorsed by him and made a fresh endorsement of acceptance of these measurements. Ashok Naik also had occasion to complain about the supply of steel and cement to him being irregular, about less quantity of cement being actually supplied and the larger quantity having been shown as supplied to and exhausted by him. There being a shortage of diesel in those days, he had sought for supply of diesel through government quota which was also denied to him. So also his request that if diesel could not be supplied, he should be given the assistance of government vehicles in the matter of transporting material to the work site. There were thus several complaints which Ashok Naik appears to have faced and discouragingly enough since this was admittedly the first contract which was awarded to him. Ashok Naik had been thus unable to carry out the work according to the plan. The work did not proceed at the pace expected of him and he lagged behind and had also been subjected to fine from time to time. However, he was so frustrated, for want of proper assistance given to him, for want of consideration shown to him in his execution of the said works, that he eventually decided to give up the contract.

(3.) ACCORDINGLY, he approached the accused Executive Engineer on 20-8-1980 and submitted that he did not want to continue the work any further and that his bills for the work so done, upto that time should be finally settled. Apparently the delays committed by the said contractor Ashok Naik, the deficiency left by him in the said work, the extent of work done by him, etc. , then was accepted under the terms and conditions, all tended to prove his case under the penal clauses 3-B and 3-C of the terms and conditions pertaining to the contract. The accused then suggested to the contractor that it was within his powers however to take his case within the four corners of the less harsh provision of clause 3-A of the terms and conditions. In that case the loss to be sustained by the contractor would be considerably reduced as the accused pointed out to him. But, for doing so, the accused said that he would have to be given Rs. 1000/ -. Pressed as he was, in a predicament placed as he was, the contractor Ashok Naik had to seek the easier way out of the contract in question. He, therefore, agreed to pay Rs. 1000/- to the accused at his house on Tuesday, the 2nd September, 1980.