G R MACFARLAND Vs. STATE

JUDGEMENT

(1.) This is an appeal by the accused G. R. Macfarland, formerly permanent Way Inspector, Southern Railways Gudivada, against his conviction under Section 5(1) (c) of the Prevention of Corruption Act (hereinafter called the Act) and under Section 477-A I.P.C. and sentence of one month simple imprisonment for each of the offences, and sentences to run concurrently.

(2.) The accused, while he was working as Permanent Way Inspector at Gudivada, was charged with having misappropriated 18 asbestos sheets of 10-3" x 3-51/2" 9/32" entrusted to him along with 50 other such sheets between 16-6-1955 and October, 1956. It is stated that in order to facilitate this misappropriation he had prepared with intent to defraud a false voucher No. 293 dated 23-2-1959 purporting to show that the said 18 sheets were used for the renewal of Gudivada island platform covering, while, in fact, no such renewal was done.It was further alleged that he falsified the corresponding entries in the day book of issue and in other railway records. For this offence, the General Manager, Southern Railway, was competent to remove the accused from office and he had accorded his prior sanction to prosecute the accused by his proceedings P.A. CC./1570 dated 24-9-1957. In so far as the entrustment of the 68 sheets was concerned, the evidence of the prosecution has fully established that fact, nor has the accused denied the entrustment. There is credible documentary evidence to that effect which cannot be assailed, nor any attempt has been made in that behalf.The case of the accused is that he issued the 18 sheets to replace the shed of the island at Gudivada station. P. W. 9, Krishnaswamy, carpenter says that when the accused goes on line and any urgent work has got to be done, he hands over the mate- rial to workmen and takes the signature of the artisan in his note book. Ex. B-5 is the signature with regard to the 18 sheets. This was signed on "20-2-1956 by D. W. 1, B. Sriramulu, the Iron-smith. There is also entry Ex. P-4(a) in the handwriting of the accused which is dated 22-2-1956, according to which the 18 sheets were issued in replacement of the Gudivada island shed. The prosecution has tried to establish that none of the regular artisans or Ironsmiths or carpenters who are in the pay of the railway had renewed these sheets, nor is it the case of the accused that they were utilised for this purpose. The case of the accused is that a temporary Iron-smith was used; but the prosecution says that under the, railway rules, requisition has to be made for employing any outsider and it is only after sanction that the services of such a person can be utilised. It further contends that one person cannot do the job of replacement and that since no sanction was given by the railway authorities for D. W. 1 to do this particular work or for that matter for any other labourer to assist him, the defence put up by the accused is false.

(3.) Apart from the merits of the case, learned advocate for the accused has raised several contentions. They are: (1) The offences under Section 5(1) of the Act and Section 477-A I.P.C. cannot be tried together; (2) An important witness D. W. 1 was first cited by the prosecution, but was given up as hostile, which course is improper and illegal; (3) D.W.3 having been given up and the court having refused to call him as a Court witness he had to b(c) examined by the accused and when he had examined him the witness was confronted with his Section 162 statement, Ex.P-22, which could not be availed of by the prosecution; (4) Even if entrustment is proved, fraudulent and dishonest intention cannot be said to be proved by the mere non-accounting of the sheets, unless the prosecution aliunde proves that fraudulent! intention; (5) The investigation by the Inspector was not in accordance with Section 5-A of the Act, inasmuch as the entire investigation was completed before the permission of the Magistrate was obtained and the re-recording of the witnesses statement after permission wag granted cannot cure the defect in the prosecution which has resulted in prejudice to the accused; (6) Further the Magistrate has not directed his mind to the sanction; but has automatically given it and that he was also not examined to show that he had applied his mind thereto before giving the sanction; (7) The violation of departmental rules do not constitute an offence under Section 409 I.P.C. and (8) the non-furnishing of copies of what the prosecution stated was a preliminary investigation has resulted in prejudice.