SHANTI SWARUP MALHOTRA Vs. STATE

JUDGEMENT

(1.) THESE two appeals arise out of challan No. 5 of the Sessions Court file decided by the learned Special Judge Jammu (hereinafter to be referred to as the SJ). The appellant, Shanti Swarup Malhotra, has been convicted by the Special Judge under S. 5 (2) of the Prevention of Corruption Act and sentenced to one years rigorous imprisonment and to a fine of Rs. 1000/ -, in default to undergo further rigorous imprisonment for three months, for having been guilty of criminal misconduct in the discharge of his duty as provided for by S. 5. (1) (d),of the Act. There are two other cases of a similar nature against the accused, but the learned judge has ordered the sentences in all the cases to run concurrently. The appellant, Om Prakash, has been convicted under S. 420 Ranbir P. C. and sentenced to two years rigorous imprisonment and to a fine of Rs. 1000/ -, in default to undergo rigorous imprisonment for a further period of three months.

(2.) PUT briefly, the prosecution case is that the appellant, Malhotra, was on the relevant date Director of Geology and Mining of the State of Jammu and Kashmir. The office ubmitted a proposal to the appellant for obtaining some tools and machines and accordingly Malhotra called tenders or supply of a Cylinder Boring Machine, an Air Compressor and a few GI pipes. The tenders were called on 12 -2 -1966 and were to be opened in the presence of the enderers on 4 -3 -1966. The tender notice clearly provided that the tenderers should deposit a call deposit receipt equivalent to 3% of the cost of the articles ordered which would be refunded to the successful tenderer and treated as security from the successful tenderer. It was further provided that the security would be liable to forfeiture at he discretion of the appellant, Malhotra, if the firm concerned failed to comply with the supply order. In response to the tender notice the accused, Om Prakash, who was one of the so -called proprietors of the firm, Prakash Sales Corporation having its headquarters at 907, Rangmahal, SP Mukerji Marg, Delhi -6, submitted his tender for all the three articles. On opening the tenders, the appellant Malhotra accepted the tender of the accused, Om Prakash for all the three articles and placed an order with him for supply of the articles. This order was placed on 22 -3 -1966 and the firm was directed to make the supply by 25 -3 -1966. In his tender the accused, Om Prakash, had stipulated that the rates would be charged for Jammu CST extra 90% through Bank against RR. In other words in his tender the appellant Om Prakash had clearly intimated to the Director that he was prepared to make the supplier if an advance payment of 90% was paid to him against the receipt. By his letter dated 24 -3 -1966 the Director accepted this condition of the appellant Om Prakash and placed an order for supply of the three articles. He also made it clear that 90% advance payment would be made against proof of despatch and the balance would be paid on receipt and inspection of the goods. The Director further ordered the firm to deposit a security of Rs. 100/ - immediately before making the supplies. This supply order is Ex. P. G. and is admittedly signed by the accused Malhotra. Thereafter vide Ex. PH the accused Om Prakash informed the Director that the goods ordered had already been despatched and submitted a bill for payment of Rs. 2,157 -30. In the case of supply of pipe fittings the Director by his letter Ex. PI (dated 24 -3 -1966) wrote to the firm that the supplies should be completed by 25 -3 -1966 and that a security of Rs. 400/ - should be deposited Accordingly the accused, Om Prakash, sent his bill for these items totalling Rs, 7,622.46 out of which he claimed 90% advance payment. The letter enclosing the bill is marked Ex. PJ. It may be pertinent to note here that in spite of the clear directions of the Director, the accused Om Prakash neither deposited the security of 3% as provided for in the tender notice nor the securities of Rs. 100/ - and Rs. 400/ - as directed in the supply order, and still the accused Malhotra in his capacity as Director G. & M. passed the bill for Rs. 19,800/ -in favour of Om Prakash, in respect of the cylinder boring machine. According to the prosecution the firm of the accused, Om Prakash did not despatch goods and even the GR was sent in his own name rather than in the name of the Director G. & M. It is also in evidence that the accused, Om Prakash, had instructed his transporters not to send the goods to the Director G. & M. until they got clearance from him (Om Prakash). Thus the accused, Om Prakash, induced the appellant Malhotra to pass his bill for Rs. 19,800/ - without even despatching the goods, but only by showing the receipt which was not in the name of the Director G. & M. but in the name of the consigner. It is thus alleged that the appellant, Malhotra, misused his official position and obtained substantial pecuniary advantage for Om Prakash and caused huge loss to the Government exchequer, it is further alleged that so far as the accused, Om Prakash, is concerned, he clearly cheated the Government by falsely representing to the Director G. & M. that lie had sent the cylinder boring machine, whereas he had actually despached an ordinary Bimpex machine which was worth Rs. 100/ - to 200/ - and thus dishonestly caused wrongful loss to the Government.

(3.) THE matter came to light following an application sent to the Anti -Corruption Tribunal of the State by one of the clerks working in the Geology and Mining Department. After holding an investigation the Anti -Corruption Organization got a case registered with the Police Station, Pacca Danga Jammu some time in January 1967. Necessary sanction for prosecution of the appellant, Malhotra, was accorded by the Government by its order dated 18 -11 -1968. Both the accused were challaned before the Court of the Special Judge Jammu on 9 -11 -1968 for having committed offences under sections 420/467/120 -B RPC and under s. 2 (5) of the Prevention of Corruption Act.