EDMUND S LYNGDOH Vs STATE OF MEGHALAYA
Bench: T.S. THAKUR,R. BANUMATHI
Case number: Crl.A. No.-002056-002056 / 2014
Diary number: 38 / 2011
Advocates: RISHI MALHOTRA Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2056 OF 2014 (Arising out of SLP (Crl.) No. 553/2011)
EDMUND S LYNGDOH …Appellant
Versus
STATE OF MEGHALAYA …Respondent
With
CRIMINAL APPEAL NOs. 2057-58 OF 2014 (Arising out of SLP (Crl.) Nos. 2203-2204/2011)
DEVA PRASAD SHARMA …Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ...Respondent
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. These appeals arising out of SLP (Crl.)
Nos. 2203-2204/2011 are filed challenging the judgment of
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the Gauhati High Court confirming the conviction of the
appellant-first accused (Deva Prasad Sharma) under Section
420 IPC, 120B IPC and Section 5(2) of Prevention of
Corruption Act, 1947 (for short ‘the P.C. Act’) and
enhancement of the sentence imposed on him. Fourth
accused (Edmund S. Lyngdoh) has preferred SLP (Crl.)
No.553/2011 challenging the reversal of his acquittal and
assailing the conviction under Section 420 IPC read with
Section 120B IPC.
3. Deva Prasad Sharma (A-1) died on 9.10.2011
during the pendency of the petition before this Court and his
legal representative was brought on record by this Court’s
Order dated 14.11.2011 in Crl. Appeal arising out of SLP
(Crl.) Nos.2203-2204/11 and his son Debashish Sharma
is pursuing the appeal.
4. Briefly stated, case of the prosecution is that
Deva Prasad Sharma (First accused) was the then Chief
Engineer of North Eastern Hill University, Shillong (for short
‘NEHU’), Stetnel Roy (A-2) was the Accounts Officer, W.M.R.
Wahlang (third accused) was the then Assistant Finance
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Officer, Edmund S. Lyngdoh, proprietor of M/s E.S. Enterprise
(A-4) and T.S. Bareh, proprietor of M/s Premiere Enterprise
(A-5), N.P. Garg, Executive Engineer, Shri G.L. Sharma,
Jr. Engineer, Sanjay, Sr. Technical Assistant and Shri H.
Nongkynrih, Section Officer, Construction Division of NEHU
have colluded together for procurement of Damp Seal
Cement from some fictitious and non-existent firms at an
exorbitant rate during the year 1982 to mid 1985. In
furtherance of this collusion, it is alleged that A-1 invited
quotation on 12.12.1982 from 12 firms for supply of Damp
Proof Cement (DPC) at the rate of Rs.42.75 per kg. though
the then actual market rate was Rs.5/- to Rs.7/- per kg.
Even though the Purchase Committee had approved only
two firms for supplying the materials, A-1 is alleged to have
placed orders from many firms and persons without
ascertaining the available stock and actual requirement
which resulted in leaving huge quantities of the materials
so purchased unused. On the basis of the complaint lodged
by Dr. B.D. Sharma, the then Vice-Chancellor of NEHU, case
was registered and investigation was taken up by the CBI. In
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the course of investigation, CBI found a prima facie case
against A-1 to A-3, Shri Edmund S. Lyngdoh, the owner of
the firm M/s E.S. Enterprises (A-4), Shri T.S. Bareh of
M/s. Premiere Enterprises (A-5) and other suppliers and
charge sheeted them under Section 120B IPC read with
Section 420 IPC and Sections 5(2) read with 5 (1)(d) of the
Prevention of Corruption Act, 1947. At the investigation
stage, others were dropped from the case and chargesheet
was filed only against A-1 to A-5. The trial court framed the
charges against A-1 to A-3 under Sections 120B IPC read
with 420 IPC and Section 5(2) read with Section 5(1)(d) of
the PC Act, 1947, to which they pleaded not guilty. As far as
A-4 and A-5 are concerned, charges were framed against
them under Sections 120B IPC and 420 IPC. The trial court
convicted A-1 under Section 120B IPC read with Section 420
IPC and under Section 5(2) of the PC Act and sentenced him
to undergo imprisonment. A-2 to A-5 were acquitted of the
charges.
5. Being aggrieved by the acquittal of A-2 to A-5 and
also seeking for enhancement of punishment for the first
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accused, CBI preferred appeal before the High Court
challenging his conviction and sentence of imprisonment
imposed by the trial court. Both the appeals were heard
together and the learned single Judge of the Gauhati High
Court enhanced the punishment imposed on the first
accused, and dismissed the appeal preferred by the first
accused. The details of conviction of A-1 and the sentences
imposed on him by the trial court and enhancement of
sentence by the High Court is as under:
Trial Court High Court Conviction Sentence Conviction Sentence
Section 120B of IPC
4 months SI & fine of Rs.15,000/- in default to undergo SI for two months.
Section 120B IPC
3 years RI and fine of Rs.50,000/- in default to undergo RI for one year.
Section 420 IPC 6 months of SI and fine of Rs.15,000/- in default to undergo SI for 2 months.
Section 420 IPC
5 years RI and fine of Rs.1,00,000/- in default to undergo RI for one year.
Section 5(2) PC Act
1 year of SI & fine of Rs.25,000/- in default to undergo SI for two months.
Section 5(2)(d) of P.C. Act.
5 years RI and fine of Rs.1,00,000/- in default to undergo RI for one year.
6. A-2 died during the pendency of appeal before the
High Court. The acquittal of accused 3 to 5 was reversed
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and they were convicted under Sections 120B IPC and 420
IPC. So far as imposing the quantum of sentence, the High
Court remanded the matter to the trial court with a direction
to pass appropriate orders after giving opportunity to the
Accused 3 to 5 in regard to the quantum of sentence under
Section 235 (2) Cr.P.C. Being aggrieved with the order of
reversal of acquittal, the appellants are before us. Pursuant
to the order of this Court dated 31.01.2011, trial court
passed order imposing sentence upon fourth accused. For
the conviction under Section 420 IPC and Section 120B IPC,
fourth accused was imposed sentence of imprisonment of
five years and three years respectively and fine was also
imposed.
7. We have heard the submission of the learned
counsel for the appellants and the respondents and we have
given our due consideration to the same.
8. Re: Criminal Appeal qua first accused Deva Prasad
Sharma (since dead) : First accused was the Chief Engineer
of the NEHU at the relevant time and the first accused and
A-2 and A3 were Technical Members in the Purchase
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Committee. On 12.12.1982, first accused invited sealed
quotations from 12 firms for the supply of Damp Proof
Cement (DPC) without mentioning the quantity and quality
required. In response, quotations were received from six
firms and the same were scrutinized on 6.4.1983 which is
said to be in contravention of norms and procedure and the
rate of Rs.42.75 per kg quoted by M/s. Premiere Enterprises
(A-5) and M/s. Edmund S. Lyngdoh (A-4) were found to be
the lowest and after making comparative statement, A-1
appended his initial with date.
9. On 7.04.1983, A-1 placed order upon four different
firms of A-4 – M/s Edmund S. Lyngdoh and M/s Premiere
Enterprise belonging to T.S. Bareh (A-5) for supply of 2
metric tones (MT) each at the quoted price of Rs. 42.75 per
kg. On 04.06.1983 in terms of the order placed and the
prices quoted, fourth accused through his firm M/s Edmund
S. Lyngdoh and M/s E.S. Enterprise and also M/s T.S. Bareh
supplied DPC at the rate of Rs.42.75 per kg. On 06.07.1983,
the Purchase Committee of NEHU, in which first accused was
the Technical Member approved the rate of Rs. 42.75 per kg
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quoted by the fourth accused and M/s Premiere Enterprises
for purchase of DPC.
10. The learned counsel for the first accused
contended that there is no evidence to show that A-1 had
induced the Purchase Committee to approve the rates of
two firms M/s Premiere Enterprises and M/s Edmunds S.
Lyngdoh- fourth accused at the rate of Rs.42.75 per kg. and
as the contract was awarded to the lowest tenderer, there
was no question of A-1 inducing the Purchase Committee by
deception to purchase DPC at an exorbitant price and it
was the Purchase Committee which on its own approved
the rate on the basis of comparative statement of the prices
quoted by the tenderers as prepared by the officials.
11. The learned counsel for the respondent submitted
that quotations were floated by the first accused even prior
to the matter being taken up by the Purchase Committee
and as the Chief Engineer of NEHU- first accused must have
known the then prevailing market rate and as Technical
Member of the Purchase Committee the first accused should
have assisted the non-technical members in the purchase of
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DPC at the then prevalent market rate. The learned counsel
submitted that adequate evidence has been adduced by the
prosecution to bring home the guilt of first accused that he
induced the Purchase Committee to purchase DPC at an
inflated rate of Rs.42.75 per kg.
12. PW-6, Sri O.D. Shira, the then Assistant Registrar
of Administration, NEHU during 1983 was the convener of
the Purchase Committee and he called for a meeting of the
Purchase Committee on 6.7.1983. Ext. P1 is the file relating
to Purchase Committee Meeting held on 6.7.1983. As per
Ext.P1 (1), there was no agenda for the purchase of DPC.
However, the first accused managed to introduce the item
before the Purchase Committee, agenda found place in
resolution no.14 [Ext. P1 (5)] relates to the purchase of
Damp Seal Water Proofing Compound for use in the
department campus at Umshing. Purchase Committee
accepted the lowest rate of Rs.42.75 per kg quoted by the
appellant/fourth accused and M/s. Premiere Enterprises,
Jowai. Based on the evidence of PW-6 and Resolution vide
P1(5), trial court and the High Court recorded concurrent
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findings of fact that before ever the Purchase Committee
approved the rate, quotations were already invited by
accused No.1 and A-1 being one of the technical members in
the Purchase Committee managed to introduce the item in
the meeting of the Purchase Committee for approving the
rate quoted by fourth accused and M/s Premiere
Enterprises at the rate of Rs.42.75 per kg as A-1 was taken
into confidence by the Purchase Committee.
13. In her evidence PW-9, Smt. M.R. Mawlong who
was the then Registrar of NEHU from February 1980 to
March 1984 stated that first accused being the Chief
Engineer was the Technical Member of the Purchase
Committee and “Purchase Committee depended on the
suggestion of the Technical Member who was in the rank of
a Chief Engineer as regards the rate of DPC”. The object of
having technical members in the Purchase Committee was
with a view to assist the non-technical members
concerning any matter of technical nature and to guide
them, as regards the utility, prevailing rate and the
quantity required of the said item for the Institution. Role of
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the Technical Members in the Purchase Committee becomes
vital and important and it was expected that the Technical
Members namely the first accused (Deva Prasad Sharma)
and the second and third accused are to contribute their
technical knowledge and give their best possible opinion,
suggestion and advice to the Purchase Committee in making
purchases of quality materials at the prevalent market rate.
We find no substance in the contention that there is nothing
to show that the technical members first accused and A-2
and A-3 have misled the Purchase Committee and that
Purchase Committee had taken the decision on its own to
make purchase of DPC.
14. There is ample evidence and circumstances
justifying the conclusion of the trial court and High Court that
the Purchase Committee was misled by the first accused to
approve the quotation of fourth accused – M/s Edmund S.
Lyngdoh and M/s Premiere Enterprises at the inflated rate of
Rs.42.75 per kg. To fortify the same, we may briefly refer to
few facts and circumstances as recorded by the trial court
and the High Court:
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(i) Before the approval of the rate by the Purchase Committee, five quotations for supply of the DPC invited by A-1 on his own were already in existence;
(ii) As per Ext. P1 (1), there was no agenda for the purchase of DPC in the meeting of Purchase Committee held on 6.7.1983 and the said agenda was introduced in Resolution No. 14 vide Ext.P1 (5) with regard to purchase of DPC and A-1 being a Technical Member in the Purchase Committee managed to introduce the item for purchase of DPC as one of the agendas;
(iii) First accused being the Chief Engineer did not take steps for survey through quotation or by any other method to ascertain the then prevailing market rate of DPC;
(iv) Purchase Committee depended on the suggestion of the Technical Members - first accused and others as regards the rate of DPC;
(v) First accused did not ascertain the available stock of DPC or the actual requirement of DPC for NEHU;
(vi) First accused invited quotations from 12 firms out of which only two firms were approved firms by Purchase Committee.
15. Learned counsel for A-1 submitted that from the
evidence adduced by the prosecution, it cannot be
conclusively held that the then prevalent market rate of
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DPC was Rs. 5/- to Rs. 6/- per kg. at the relevant time
inasmuch as no documentary evidence to that effect or any
price list of DPC in the open market at that time was
produced by the prosecution and while so the courts have
grossly erred in convicting A-1 on the basis of oral
testimony. It was further contended that the High Court
erred in placing reliance upon the answers of A-1 recorded
under Section 313 Cr.P.C. as one piece of evidence to
complete the link in the chain of circumstances against the
first accused.
16. To prove that the then market rate of DPC at
Shillong was ranging from Rs.5/- to Rs.10/- per kg,
prosecution has adduced adequate evidence. PW-5, Sri
Satinder Bawa who is the Director of firm Bawa Paints Pvt.
Ltd. which manufacture paints and water proof compound
since the year 1965 and the products of his firms are sold
to various distributors including M/s Premiere Enterprises
and others and all over the North Eastern States including
Meghalaya and Jowai area and the products were sold
during 1982-1983 also. In his evidence PW-5 stated that
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during 1982-1984, 50 Kg. of Damp Proof Cement were sold
at the rate between Rs. 80/- to Rs.85/- at Delhi plus taxes
and one kilogram packet, used to be sold at Rs. 2.80/- to Rs.
3.80/- at Delhi. PW 5 further stated that in Shillong, the rate
of one kilogram of DPC would then be in the range of Rs. 6/-
to Rs. 7/- per kg. which is inclusive of taxes,
transportation and profit.
17. PW-16, Sri Santosh Kumar Chachan is the
proprietor of M/s Gajanand Chachan of Barabazar, Shillong
which deals with hardware, paints and building materials
including water proofing cement. As per the evidence of
PW-5, PW-16 M/s Gajanand Chachan is also one of the firms
to whom DPC and paints was supplied by PW-5.
Corroborating the evidence of PW-5, PW-16 stated that his
firm was dealing with water proofing cement during
1982-1984 and he used to purchase paints and water
proofing cement from Delhi, Calcutta and sometimes from
Gauhati during 1983-1984, and prices of water proofing
cement during that period was Rs. 5/- per kg. which was
sold at Shillong. From the evidence of PWs 5 and 16, it is
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amply established that the market rate of DPC at the
relevant time was Rs. 2.80 to Rs. 3.80 per kg in Delhi and in
Shillong, the rate was Rs.6/- to Rs.7/- per kg and the rate at
Rs.42.75 per kg. is an inflated one and the quotations
submitted by fourth accused and accepted by first accused
was with ulterior motive.
18. Apart from establishing the then prevailing
market rate by examining PWs 5 and 16, prosecution has
also examined PW-13, Sri N.P. Garg who has worked in NEHU
since 1984 as Executive Engineer who is also aware of the
use of Damp Seal Cement in the construction work. Through
PW-13, Ext.P5, the Work File for the construction work of
Intake Water Tank at Wahjarain for the period of 6.9.1983
and by item 7 (17) Rs.10/- per kg. was paid for Water
Proofing Compound (DPC) along with other item and the
work was done by contractor Hansraj Jain and the amount
was paid to him. Referring to the evidence of PW-13 and
Ext.P5, the trial court and the High Court recorded findings
of fact that the defence neither impeached his credibility nor
challenged Ext.P5 Bill as per which Rs.10/- per kg. was paid
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for DPC for water proofing compound and that Ext.P5 would
be corroborative evidence so far as the rate of water
proofing compound (DPC) was Rs. 10/- per kg. during the
period of 1983. From the evidence of PW-5 and PW-16, the
dealers in DPC, and from the earlier Work File (Ext.P5) as
spoken by PW-13, the prosecution has clearly established
that the then prevalent market rate of DPC was Rs.5/- to
Rs.10/- per kg.
19. Before placing the subject for purchase of DPC in
Purchase Committee Meeting held on 6.07.1983, as pointed
out by the trial court, no survey was conducted nor any
other method was adopted by first accused for ascertaining
the then prevalent market rate of DPC. During questioning
under Section 313 Cr.P.C., when the first accused was
questioned about the then prevalent market rate of DPC,
first accused stated that he was not aware of the same.
Referring to the same, the High Court observed that it is an
evasive reply and the same was taken as a piece of evidence
against the accused to complete the chain of circumstances.
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20. Insofar as contention taking the statement of first
accused recorded under Section 313 Cr. P.C., as an evidence
it was submitted that the statement under Section 313 Cr.
P.C. cannot be taken as an incriminating evidence against
the accused. Of course, the High Court in extenso referred
to the statements of the first accused put to him in his
cross-examination under Section 313 Cr.P.C. and observed
as under:-
“A-1 did not utter a single word to assail that the market rate of DPC at Shillong at the relevant time was ranging from Rs.5/- to Rs.10/-. All that he said was that he was not aware of the market rate of a DPC at that time or that Rs.42.75 was accepted and approved rate of DPC. These evasive replies, taken together with evidence of PW-6 and PW-13 and item no. 7(17) of Ext. P-5, complete the link in the chain of circumstances against A-1”.
After so observing, the High Court held that those evasive
replies under Section 313 Cr. P.C. taken together with the
evidence complete the link in the chain of circumstances
against A-1.
21. Where the accused gives evasive answers in his
cross-examination under Section 313 Cr.P.C., an adverse
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inference can be drawn against him. But such inference
cannot be a substitute for the evidence which the
prosecution must adduce to bring home the offence of the
accused. The statement under Section 313 Cr.P.C. is not an
evidence. In Bishnu Prasad Sinha & Anr. vs. State of Assam
(2007) 11 SCC 467, this Court held that conviction of the
accused cannot be based merely on his statement recorded
under Section 313 Cr.P.C. which cannot be regarded as
evidence. It is only the stand or version of the accused by
way of explanation explaining the incriminating
evidence/circumstances appearing against him. The
statement made in defence by the accused under Section
313 Cr.P.C. can certainly be taken aid of to lend credence to
other evidence led by the prosecution. Statements made
under Section 313 Cr.P.C. must be considered not in isolation
but in conjunction with the other prosecution evidence.
22. In the present case, it is not as if the High Court
arrived at the conclusion and based conviction only on the
statement made by the first accused under Section 313
Cr.P.C. As seen from the reasonings of the High Court
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extracted above, the statement of first accused under
Section 313 Cr.P.C. was taken with the evidences of PW-6
and PW-13 and items 7(17) of Ext. P5 as a link to complete
the chain of circumstances against A-1. As elaborated
earlier, the answers given by the first accused were
considered not in isolation but in conjunction with other oral
and documentary evidence. We find no substance in the
contention that the High Court erred in taking the statement
of first accused under Section 313 Cr.P.C. as a link to
complete the chain of circumstances.
23. Based on the oral and documentary evidence, the
trial court and the High Court recorded concurrent findings
of fact that the Purchase Committee consisting of the non-
technical members, the first accused being a Technical
Member played a dominant and crucial role in inducing the
Purchase Committee to purchase DPC at an inflated rate of
Rs. 42.75 per kg. when the then prevalent market rate at
the relevant period was Rs. 5/- to Rs. 10/- per kg. and we
see no perversity in the concurrent findings recorded by the
courts.
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24. Contention regarding validity of sanction: Ext.P19
is the sanction order for prosecution against A-1 and the
same was under the signature of the then Chief Secretary,
Government of Meghalaya. PW-18, Sri Kharkongor,
Secretary in the Political Department, Government of
Meghalaya was examined through whom Ext. P9 sanction
order was exhibited.
25. Learned counsel for A-1 contended that under
Section 6 of PC Act “no court shall take cognizance of
offence unless previous sanction is obtained……..” and so
far as A-1 is concerned, Chief Secretary is not the competent
authority to remove A-1 and A-1 was appointed by the
Governor and the Governor of Meghalaya is the appointing
authority, and therefore the sanction should be to the
satisfaction of the Governor and Chief Secretary is only the
authority communicating the sanction and the prosecution
has not adduced any material to show that appointing
authority – Governor of Meghalaya was satisfied that the
relevant material to approve the sanction for prosecuting A-
1 was placed before him.
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26. The learned counsel for the respondents had taken
us through the evidence of PW-18 and submitted that the
Chief Secretary accorded the sanction on the basis of report
of CBI placed before him and other materials as reflected in
the note sheet of the file and then accorded the sanction for
prosecuting A-1 and there is valid sanction for prosecution
of A-1. Referring to the evidence of PW-18, the courts
observed that the then Chief Secretary accorded the
sanction on the basis of the report of CBI as reflected in the
note sheet of the file and the sanction order does not suffer
from any infirmity.
27. As per Article 166 (2) of the Constitution of India,
all orders and other instruments made and executed in the
name of Governor shall be authenticated in such manner as
may be specified in rules to be made by the Governor and
the validity of an order or instrument which is so
authenticated shall not be called in question on the ground
that it is not an order or instrument made or executed by
the Governor. It was not suggested to PW-18 that Chief
Secretary has no power whatsoever to authenticate the
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orders and instruments made and executed in the name of
Governor. During trial, the first accused also did not insist
for production of the file nor suggested that the sanction
order was not approved by the Governor. Referring to
Article 166 of the Constitution of India, the trial court
observed that the State must be having certain rules where
orders and other instruments made and executed in the
name of the Governor to be authenticated by certain officers
of the State Government, the trial court negatived the
contention of the first accused challenging the validity of
sanction. We find no merit in the contention challenging the
validity of sanction to prosecute first accused.
28. Contention regarding delay in lodging FIR: The
accused A-1 in collusion with other accused persons invited
quotations on 12.12.1982 from the 12 firms for the supply
of Damp Proof Cement (DPC) and DPC was procured during
1982 to mid 1985. Ext.P11 complaint was lodged by Dr. B.D.
Sharma, Vice Chancellor, NEHU, Shillong, Meghalaya on
3.7.1985 based on which FIR was registered. On behalf of
the appellant/first accused it was contended that FIR was
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registered nearly after two years which creates serious
doubts about its genuineness, more so, when the Vice
Chancellor on whose complaint FIR was registered was not
examined as a witness.
29. Per contra, the learned counsel for the prosecution
submitted that DPC was procured during 1982 to mid 1985
and the offence being a continuing offence and it cannot be
said that there was a delay in lodging the FIR and non-
examination of the complainant-Vice Chancellor was not
fatal to the prosecution case.
30. Mere delay in lodging the FIR is not necessarily
fatal to the prosecution case. As rightly contended by the
learned counsel for the respondent-CBI, supply of DPC was
continuously made from 1982 to mid 1985 and it was a
continuing offence. In matters of continuing offence no
duration of time can be fixed for lodging the complaint.
First accused in collusion with other accused persons
induced the Purchase Committee for purchase of DPC at an
exorbitant rate of Rs.42.75 per kg and only when the
conspiracy came to the fore, the Vice-Chancellor lodged the
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complaint. In cases of abuse of powers and obtaining
pecuniary advantage and causing wrongful loss, time of
lodging complaint and registration of FIR cannot be
considered on the touchstone of prompt lodging of
complaint like other cases of murder, dacoity and assault
etc., where there are possibilities of exaggeration and
embellishments being crept in. In cases of abuse of position
by the persons holding official position, and causing
wrongful loss, prosecution case is based on documentary
evidence and oral evidence of other official witnesses and
hardly any possibility of concoction and introduction of
coloured version. We find no merit in the contention that
the delay in lodging FIR raises doubts about the genuineness
of the prosecution case.
31. The gist of the offence under Section 5(1)(d) is
that a public officer abusing his position as a Public Servant
obtains for himself or for any other person any valuable
thing or pecuniary advantage. The word “abuse” means,
misuse i.e. using his position for something for which it is not
intended. Based on oral and documentary evidence, the trial
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court and the High Court recorded the concurrent findings of
fact that first accused, Chief Engineer being Technical
Member of the Purchase Committee, it was his duty to
advise the Purchase Committee about the then prevailing
market rate of DPC to enable NEHU to purchase DPC at the
market rate. The first accused was primarily responsible for
the commission of the offence and the first accused by
abusing his position as Chief Engineer and Technical Member
got the inflated rate of DPC at Rs.42.75 per kg approved
when the same was available in the local market at price
ranging from Rs.5/- to Rs.10/- per kg. and A-1 obtained
pecuniary advantage to himself and also to accused 4 and 5
and caused wrongful loss to NEHU to the tune of Rs.49 lacs.
The first accused was rightly convicted under Sections 120B
IPC and 420 IPC and also under Section 5(2)(d) of the PC Act.
Having regard to the gravity of the offence and the extent of
loss caused to the NEHU, the High Court rightly enhanced
the sentence of imprisonment imposed for various offences
for which the first accused was convicted and we find no
reason to interfere with the same. The appeal preferred by
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the first accused and now pursued by his legal
representative fails and the same is dismissed.
32. Re: Criminal Appeal qua the fourth
accused - Edmund S. Lyngdoh: The fourth accused Edmund
S. Lyngdoh, the proprietor of M/s Edmund S. Lyngdoh, had
also supplied DPC to NEHU at the rate of Rs.42.75 per kg.
Being the dealer, dealing with DPC, Edmund must have
known the market rate of DPC; the then market rate of DPC
which was ranging from Rs.5/- to Rs. 10/- in those days.
Even if A-1 was silent on the said market price, fourth
accused, Edmund must have disclosed the market rate of
DPC and must have quoted the then prevalent market price
of DPC which was ranging from Rs.5/- to Rs.10/; but the
fourth accused quoted inflated price of Rs. 42.75 per kg in
order to make wrongful gain to himself and to cause
wrongful loss to NEHU.
33. To bring home the guilt of the criminal conspiracy,
prosecution should prove ; (i) that the accused agreed to do
or caused to be done an act that was illegal or was to be
done by illegal means; (ii) that some overt act was done by
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one of the accused in pursuance of the agreement. The
essence of conspiracy is that there should be an agreement
between persons to do one or other of the acts constituting
the act under Section 120B IPC. First accused is alleged to
have conspired with fourth accused and others to supply
DPC at an inflated price to NEHU of Rs. 42.75 per kg as
against the then prevalent market rate of Rs.5/- to Rs.10/-
per kg. In furtherance of the conspiracy, fourth accused
supplied Six MTs of DPC and thereby said to have caused
wrongful loss of about Rs. 6 lacs to NEHU.
34. Agreement among the conspirators can be
inferred by necessary implications, and the inference can be
drawn on the proved facts. The facts and incriminating
circumstances so proved must form the full chain whereby
the agreement between the accused and their guilt can be
safely inferred. Fourth accused supplied DPC to NEHU at an
inflated rate of Rs. 42.75 per kg and had obtained pecuniary
advantage for himself and also to first accused and thereby
caused wrongful loss to NEHU. In the light of evidence and
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proved facts, the High Court rightly reversed the acquittal
and convicted the fourth accused under Section 120B IPC.
35. So far as the fourth accused is concerned, he was
also convicted for the offence under Section 420 IPC. The
offence of cheating is made of two ingredients: “deception
of any person and fraudulently or dishonestly inducing that
person to deliver any property to any person or to consent
that any person shall retain any property”. In collusion with
first accused, the fourth accused quoted and supplied DPC at
an inflated rate of Rs.42.75 per kg, fourth accused
dishonestly induced NEHU to purchase DPC. Fourth accused
has taken stand that he did not know the then prevalent
market rate of DPC at Shillong. As a supplier and also
dealing with DPC, it is incomprehensible that the fourth
accused did not know the prevalent market rate. The High
Court rightly negatived the defence version and convicted
the fourth accused under Section 420 IPC read with Section
120B IPC.
36. The High Court remitted the matter to the trial
court to hear the accused on the question of sentence and
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pass appropriate orders. In the meanwhile, the fourth
accused preferred appeal in this Court and also filed an
application seeking for a direction to the trial court not to
pass sentence. By order dated 31.01.2011 this court
ordered that trial court will proceed on the sentence and
pass appropriate orders.
37. By order dated 14.06.2011, the trial court
sentenced the fourth accused to undergo five years rigorous
imprisonment with fine of Rs. one lakh with default clause for
the offence punishable under Section 420 IPC; for the
offence under Section 120B IPC fourth accused was
sentenced to undergo three years rigorous imprisonment
with a fine of Rs.50,000/- alongwith default clause and both
the sentences were ordered to run concurrently. The fourth
accused had undergone sentence of imprisonment from
14.06.2011 till 16.02.2012 totally 248 days. By the order of
this Court dated 16.02.2012, the sentence imposed on fourth
accused was ordered to be suspended subject to the
petitioner/fourth accused depositing a sum of Rs.3,50,000/-
roughly representing 50% of the excess amount allegedly
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gained by him towards the price of the DPC supplied. The
fourth accused is stated to be seventy years old and is said
to be undergoing treatment for Type II Diabetes. The matter
is lingering on for about three decades.
38. Having regard to the duration of the pendency of
the matter and age of the fourth accused and that he has
already paid fine amount and also deposited the amount as
per the order of this Court, in our view, the period of
sentence of imprisonment imposed on the appellant-fourth
accused for the conviction under Section 420 IPC and
Section 120B IPC shall be modified to the period already
undergone and by imposing further fine amount of Rs.
2,50,000/- in addition to the fine imposed by the trial court
and the amount deposited pursuant to the orders of this
Court. In default of payment of the said fine amount of
Rs.2,50,000/-, the fourth accused shall undergo
imprisonment of one year.
39. The appeal preferred by first accused now pursued
by his legal representative is dismissed. The appeal
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preferred by fourth accused (Edmund S. Lyngdoh) is partly
allowed to the extent indicated above.
…………………………………J (T.S. Thakur)
…………………………………..J (R. Banumathi)
New Delhi; September 16, 2014
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