Ram Parkash vs State of H.P.

Bhawani Singh, J.—This appeal arises out of the judgment of Special Judge, Shimla Division, in case No. 2-B/7 of 1985 whereby accused Upinder Singh and Kashmiri Lal have been acquitted and Ram Parkash convicted in a charge under Sections 468, 420 read with Section 34 of the Indian Penal Code. And Section 5(1)(d) of the Prevention of Corruption Act and sentenced to imprisonment till the rising of the Court and to pay a fine of Rs. 6000/- and in default of the payment of the fine, to suffer further rigorous imprisonment for one year.

The facts, in brief, are that the accused in furtherance of common intention allowed the Appellant to incorporate the. Words "Agreement of G.I. drums with cover and rings" in the tender intending thereby to cheat and induce dishonestly the Rosin and Turpentine Factory, Bilaspur, to deliver rings and cover of G.I. drums to the Appellant. Appellant Upinder Singh and Kashmiri Lal, being public servants, were thus liable u/s 5(1)(d) of the Prevention of Corruption Act, 1947.

The allegation of the prosecution is that the General Manager, Shri S.C. Gupta (P.W. 1), and Shri Joginder Singh (P.W. 2), while working at the Rosin and Turpentine Factory, Bilaspur, invited sealed tenders for the auction of unserviceable dummies, numbering 18,762 of 22 Kg. capacity. The auction was to take place at Bilaspur on 19-8-1982. Tenders were submitted by 11 parties giving their respective rates regarding each drum. Ultimately, the matter did not proceed on the basis of these tenders and the matter was settled and finalized on the basis of negotiations of rates at the rate of Rs. 6.20 per drum in favour of Ram Parkash and Co. without cover and rings meaning thereby that the Appellant was to lift the "drumis" without coyer and rings as the same were not part of the tender. The Appellant took some of the "drummis" without cover and rings and then in 23-9-1982 and24-9-1982, he took "drummis" with rings and fids in connivance with the co-accused. It is alleged that the Appellant in connivance with the co-accused inserted words "Drummis with lids and rings" in the tenders afterwards and, therefore, incurred criminal liability for the aforesaid offences.

The matter was investigated and ultimately challan for. The prosecution of the accused was presented in the Court. The accused denied having committed any offence and claimed to be tried.

The case of the Appellant has been that the offending words were part and parcel of the tender right from the beginning and no fabrication by way of insertions, as alleged, was ever made. This appears to be the case of the Appellant right from the stage he issued notice (Ex. P.W. 24/E) dated 30-9-1982 through his Lawyer calling upon the General Manager, Rosin and Turpentine Factory, Bilaspur; to deliver the drummis along with the cover and rings in accordance with his tender as well, as the negotiations at the spot. A suit for damages to the tune of Rs. 2, 88,135.48, appears to "have been filed by the Appellant against the management of the Factory by, way of damages. Besides, it is also denied, that there was some conspiracy between him and the co-accused as a result of which" the cover and the rings were supplied. The Appellant has also stated that the General Manager wanted to allot these drummis to a relation of his at a lower rate and he having failed to do so due to high rates offered by him, initiated the present case as the General Manager wanted to give the drummis without cover and rings and the Appellant was resisting it: The General Manager wanted to sell the covers himself.

The basic case of the prosecution appears to be that the Appellant incorporated the offending words subsequently and for this act, facility was provided by the co-accused. The point is that the in charge of the file Opener Singh gave the file to the Appellant to insert the offending words into the tender which handwriting has been proved to be that of the Appellant by the Examiner of Questioned Documents and afterwards the material was taken out of the Factory premises with the connivance of Kashmiri Lal, co-accused.

Now, the sole question for determination is whether the Prosecution has been able to prove this aspect of the case or not Failure to do so obviously renders the prosecution of the Appellant thoroughly meaningless. Perusal of the record, evidence of material witnesses and the circumstances of the case clearly indicate that the prosecution has miserably failed to establish the case against the Appellant. The case of the prosecution principally hinges on the connivance of accused Upinder Singh and Kashmiri Lal. They have been acquitted by the trial Judge for lack of cogent and convincing evidence for their participation in the crime. No other accused has been included nor did any responsibility cast on anyone else. It is the case of the prosecution that the interpolation was done after the. Allotment of work in favour of the Appellant. But there is no evidence on the record or left after the acquittal of the co-accused as to how and at what stage and in what manner the alleged interpolation in the tender was done by the Appellant. It is well established that an accused cannot be convicted on con- junctures and surmises. Further, the accused cannot be convicted on inferences which cannot be legitimately and reasonably drawn from the evidence on record. Crucial issue in the case has not'' been proved.

Examining the case generally as well, it is in the statement of Shri Surinder Kumar, Office Manager, Rosin and Turpentine Factory, that "drummy''- means "drummy" with lids and cover. He also states that empty drummis are sent to the Forest for collecting rosin and with those drummis lids and rings are also sent. It is also in evidence that the office record of the factory mentions only drummis and not rings and. covers separately. He also states that drummy along with cover and ring is considered one unit and drummy without coyer and ring is unserviceable as rosin cannot be stored in it.

Shri Joginder Singh (P.W. 2) also states that alb the defective covers and rings were lying with the unserviceable drummis and the auction was made on the basis of the stock as and where it was lying and included defective covers and rings.

Shri Ved Parkash (P.W. 4) also states that complete drummy means drummy with lid and ring and auction was effected for unserviceable resin drummis. Unserviceable lids and rings were also auctioned with the drummis.

Reliance on the tender advertisement is of no consequence because drummy without cover and ring is incomplete and of no use. No customer will ever purchase such a unit which is of no use to him. It was not necessary to mention the same in the advertisement as it is part and parcel of the drummy itself and is also presumed to be included in the unit. It appears that an issue of this nature has been created out of nothing and for no reason whatsoever.

Further, no improvement in the prosecution case appears to be in sight when it is suggested that the exit pass did not mention the same. Here also, it was not necessary as the cover is used in the drummy and ''it can be separately taken in case it is not in proper shape and needs repairs to fit it into the opening part of the drummy.

The examination of the matter, as aforesaid, clearly I establishes that no case against the Appellant is made out nor any established by the prosecution. The prosecution has failed on the key issue involved in this matter. Therefore, examination of the other aspects of the matter is rendered completely of no consequence.

The result, therefore, is that there is merit in this appeal. The same is allowed and the conviction of the Appellant is set aside. He is acquitted of the charge. Fine, if any, paid be returned to him and bail bond and surety bond, if any, executed at any stage of this case are hereby terminated.