Khandu Sonu Dhobi and Anr. v. State of Maharashtra
Khanna, J. This is an appeal by special leave by Khandu
Sonu Dhobi and Bhikanrao Rambhau Khaimar against the judg
ment of the Bombay High Court affinning on appeal the convic
tion of the appellants under section 218 read with sei;tion 34,
section 4 77 A read with . section 34 and section 409 read' with sec
tion 34 of Indian Penal Code as well as under section. S(2) read
. with section 5 ( 1 )( d) of the Prevention of Corruption Act.
. &inte'nee of rigorous imprisonment for a period of on~ year and a
fine of Rs. 200 or in default fu!1!her rigorous imprisonment for a
period of two months has been awarded on 'each count to the
appellants. ·· The substantive sentences have ben ordered to run
concurrently.
Dhobi appellant No. 1 was an agricultural assistant '.111d was '
\Working under Khaimar appellant No. 2 who was agncqlitUJ"al
supervisor in the soil conservation section of the Government of A
Maharashtra. Dhobi was incharge of the work relating to a
Bundh in block No. 13 of village Asane in Taluka Mandurbar.
The above block comprisei; agricultural lands bearing survey
Nos. 8, 17, 18, 19 and 32 measuring 90 acres. The Bundhs were
being constructed since the year 1962. Rectification work in
respect o( thos.e Bundhs at a cost of Rs. ~~9 .07 had to be got B
done by Dhob1 appellant under the superv1s10n of Khairnar appel
lant. The Government sanctioned an amount of Rs. 4 779 in·
connection with the construction of the Bundhs. An advance
amount of Rs. 5000 was received by Khairnar accused on March
2, 1966 in that connection. Work of lhe value of Rs. 4400 was
done but that relating to rectification work was not done. Accord-
ing to the rules of the soil conservation section, lhe Government C
spent the money in the first instance ·and after the report of the
completion of work was received, the expenses were recovered
from the landowners for whose benefit the work was done. On
March 11, 1966 Khairnar made entries in measurement book
Ex. 27 showing that he had checked. 28 payments and certified the
same. Khaim.ar accused also stated in the entry that he. had D
passed the measuremenis and paid Rs. 369 .07. Paysheets Ex.
64 were prepared by Dhobi acc)ISed and he obtained the thumb
impressions and signatures of the labourers on the paysheets.
Khairnar made his initials below the thumb impressions in the
paysheets. On the last page of the paysheets, Khairnar signed a
certificate according to which he had paid Rs. 3~9 .O? ito P_W 10 E
Jagan Trimbak who used to do the labour work. Final bill Ex.
28 was also prepared on that day by the accused and the signa·
· ture of Jagan Trimbak was obtained on the sa,me. The bill was
got signed from PW 7 Ziparu Tukaram and another person as
attesting witnesses. The bill was signed thereafter by Khairnar.
Debit entry Ex. 32 of Rs. 369.07 was made by Khairnar accused ..
in the cash book. He also prepared work abstract Ex. 29 on r
April 16, 1966 and sent it to the sub-divisional soil conservation
officer Nandurbar showing an expenditure of Rs. 369.07.
The case of the prosecution was that the measurement book
Ex. 27, paysheets Ex. 64, final bill Ex. 28 and cash book entry
Ex. 32 were false documents and were fabricated by the accused G
without dooig any recification work on the Bundh. The accused
thds committed criminal breach of trust in respect of the amount
of Rs. 369.07 in furtherance of their common intention to mis
appropriate government property. AccordiJig further to the
prosecution case, the landowners in block No. 13 came to know
of J:he above acts of the. accused and they complained about it to H
Sarpanch Tanku Bhagwan (PW 12). Tanku sent a telegram on
April 12, 1966 to the superintending agricultural officer, Bombay
division, N asik in this connection. A. 00py of the telegram was
K, s. DHOBI v. MAHARASHTRA (Khanna, I.) 513
A thereafter sent by the superintending agricultural officer to divi- ,
sional soil conservation officer D.S.D. Ghate (PW 1) for neces- :
sary action as Wajl as for enquiry and report. Chate PW went to
village Asane on May ·2, 1966 and inspected block No. 13. He
found th:i,t entries had lieen made about the payment of Rs. 369 .07
in the measurement book and cash book even though no rtictifica-
B tion w6rk had been done. Chate srubmitted his rep0rt on ,May
, 6, 1966 for proceeding departmentally against the accused. On
· rece,ipt of the above report, the superintending agricultural officer
directed P. R. Inamdar (PW 11 ) , deputy director of agricultural
engineering, to go to Asane village and submit his report after
perSonally verifying the facts. Inamdar went with Ghate to
c block No. 13 in Asane village on May 11, 1966. Both Inamdar
·and Ghate found that no rectification work had been done. They
did not find even a single pit in the l2nds in that block although,
according to measurement book, 83 pits had been recently dug.
Inamdar and Ghate also met the Sarpanch and other landowners
of Asane village. Report dated May 18, 1966 was thereafter
D submitted by Inamdar affirming those facts.
Sarpanch Tanku sent complaint Ex. 84, in the meanwhile, on
April 30, 1!166 to the director of anti-corruption branch Maha
rashtra State stating that the accused had prepared false bill for
Rs. 369.07 without doing any work and that they had mis-
E appropriated that amount. It was also stated that attempts were
being made to shield the accused. The director of anti-corrup
tion sent a copy of that application to Sub Inspector K. G. Patil
(PW 13) who was then attached to Dhulia office of the anti
corruption branch. Sub Inspector Patil made local enquiry and
took into possession the measurement book, paysheets and cash
book. The director of anti-corruption branch directed Patil to
F register a case and investigate ino the matter. Patil went to
Nasik and recorded statement Ex. 79 of Inamdar PW on
November 7, 1966. The statement was .then sent to Nandurbar
Taluka police station. A case was registered on the basis of that
statement at the police .station on November 8, 1966. On Nov
ember 12, 1966 sub Inspector Patil applied for permission under
G section SA of the Prevention of Corruption Act of judicial
magistrate I st class to investigate the offence. The permission
was granted by the judicial magistrate 1st class Nandurbar on the
same day. Patil thereafter recorded statements of a number or
persons. Patil was subsequently transferred and the case was
investigated by his successors Mahamuni and Kulkarru who also
H obtained the requisite permission. Sanction Ex. 97 for the prose
cution of the two accused was granted under section. 6 of the
Prevention of Corruption Act by the superintending agricultural
officer Bombay division, Nasik on May 18, 1967.
'The two accused in their statements admitted that the work A
of the value of Rs. 369.07 was .not done till March 11, 1966
although it was so stated in the various documents by them. The
accused also admitted that no amounts were paid to any of the
labourers mentioned in the paysheelSI although signatures and
thumb imprei;sions of the labourers had been obtained on the
paysheets on March 11, 1966. According to the 11ccµsed, they B
had prepared the various documents in accordance with the ins
tructions of Ghate PW who was insisting in March 1966, and
even.earlier, that a completion report relating to block No. 13 be
sent as the entire amount spent on that !;>lock since 1962 could
not be recovered for want of a completion report. Khairnar
accused added that rectification work Jiad been done between
May 13, 1966 and May 16, 1966 and the amount of Rs. 369.07 C
was thereafter disbursed on May 16, 1966.
The learned special judge held that the amount of Rs. 369.07
had not been paid by the two accused to the labourers. No
work, it was found, had been done and the different douments
prepared by the accused in this connection were false even on D
their own admissions. The explanation furnished by the accused
that they prepared false documents ~t the instance of Ghate and
got work dQne thereafter was not accepted. Objection was
raised on behalf of the accusecl that the inves\igation of the case
was illegal and that prosecution was barred by time under the pro
visions of section 23 of the Land Improvement Schemes Act, E
1942. These objections were repelled. Ti).e accused were
accordingly convicted and sentenced as above.
On appeal the High Court affirmed the findings of the learned
special judge.
We have heard Mr. Kotwal on behalf of the appellants and
are of the opinion that there is no merit in the appeal. It has F
not been disrupted before us that the ' accused made various
entries and prepared documents on March 11, 1966 about their
having got .the rectification work done as well as about the pay
ment of Rs. 369.07 on that account. It has also not been dis·
puted before us that the amount of Rs. 369.07 was not paid to
· any one by the accused in March or April 1966. According to G
Ghate (PW 1 ) and Inamdar (PW 11 ) , no work relating to the
rectification of the Bundh was found to have been done till May
11, 1966 when they visited the site in question .• Inamdar's evi
dence also shows that according to the measurement book pre
pared by the accused, 83 pits ha~ been recently dug ~though the
witness could not find a smgle pit on· the spot. In view of the H
above, we find no cogent ground to disagree with the trial court
and the High Court that the accused had prepared false docu
ments and had also committed criminal breach of trust In respect
K. s. DHOBI v. MAHARASHTRA (Khanna, /.) 5 I 5
of the amount of Rs. 369.07. We also agree with the trial court
and the High c_ourt that the accused were in the discharge of ·
their duties guilty of criminal misconduct as defined in section 5
of the Prevention of Corruption Act.
~fr. Kotwal has argued that the accused completed the recti-
B fical!on work after May 11, 1966. There is, however, no direct
evidence as may show that the rectification work was completed
after May 11, 1966. Even if it may be assumed that the accus
ed completed the rectification work in May 1966, that fact, in our
opinion, would not absolve the accused of their criminal liability.
The charge against the accused relates to preparation of false
documents because even though no work had been done till March
11, 1966 and no amount had been dl:sbursed, they prepared docu-c
ments showing the doing of that w'}rk and the payment of that
amount. It is no answer to that charge that after the matter had
been reported to the higher auhorities, the accused in the month
of May 1966 got the rectification work done. It is also no ans
wer to a charge of criminal misappropriation that the money was
D subsequently, after the matter had been reported to the high
authorities, disbursed for the purpose for which it had been en
trusted. According to explanation 1 .to section 403 Indian
Penal Code, a dishonest misappropriation for a time only is "mis
appropriation" within the meaning of that section.
E Mr. Kotwal has also submitted .that the accused expressed
willingness to complete the work after the matter had been
reported to the higher authorities. This submission, even if
accepted, would not exonerate the accused because the willingness
after the matter had been reported to the higher authorities could
not efface or undo the offence earlier committed by the accused.
. I
F Argument has .then been advanced on behalf of the appellants
that Sub Inspector Patil did not make investigation in the case in .
accordance with law. It is urged that permission to make inves
tigation was granted to Sub Inspector Patil on November 12,
1966 and, as such, he was not authorised to make before that
date the enquiry which led to the registration of the case as that
G enquiry partook of the character of investigation. Nothing has
been brought to our notice as to how an enquiry before the regis
tration of a case can be held to be investigation. The matter,
however, need not be dilated upon and it is not necessary to
express any final opinion in the matter because we find that there
is no material on the record as may show that the accused were
prejudiced because of the alleged non-compliance with the pro-
H visions of section SA of the Prevention of Corruption Act. It is
well established that where cognizance of a case has, in fact, been
taken by the court on a police report following investigation·
516 SPPREME COURT REPORTS [1972] 3 S.C.R.
c(Jnducted !nbreaclf of prpvisions of .section 5A of the Prevention A
Qf Corruption Act;. the result of the trial cannot be set aside un
~ the illega).ity in the .investigati6n can be shown to h.ave
brought about a iniscarriag!l of justice. The underlying reason
for the above dictum is that an illegality committed in the course
' of investigation does not• afiect the competence and jurisdiction
of the court th ·try the accuSed. Where, therefore, the trial of B
the case' has proceeded to 'tennination, .. the. invalidity of the pro
ceeding investiglitiO)i: wo\Jld not vitiate the conviction. of the accus-
. ed as a result of' ihe trial unless the illegalityin the investigation
has caused prejtii!iCtHo the accused (see H. N. Rishbud and
lnder Singh'v. The State Of 1Jelhi(1)]; Since·there has been no
miscarriage of jiisti~e ·In the present case because of the alleged c
non-cotnplianee· with section 5A, the convicti6n of the accused
appellants caruiot be ·set· aside on that score. For the same rea
son, we ru:e unable to accede to the contention of Mr. Kotwal
that the conviction of the accused sho\Jld be set aside because
permission under section 5A of the Prevention of Corruption
Act !O SI Patil for investigation of the offence was granted in · a
casual manner and without the existence of sufficient reasons. D
Lastly, it has been argued by Mr. Kotwal that th.e prosecution
of the accused was· barred by time under section 23 of the Bom
bay Land Improvement Schemes Act, 1942. The section reads
as under:
" ( 1) No suit, prosecution or other legal proceeding
shall be .instituted against any public servant or person
duly authorised under this Act in respect of anything in
good faith ·Cione or intended to be done under this Act
or the rules made thereunder.
( 2) No suit or orosecution shall be instituted
against any pul:>lic servant or person duly authorised
under this. Act in respect of anything done or intended
to be done, unde~ this ,Act, unless the suit or prosecu-
tion has .been instituted. within six months from the
date of the act complained of."
Sub-seetion ( 1) of the section has plainly no application as it G
rel!ltes to l!!lytlritlg done. in. g\)Od faith. According to Bomb~y
General Clalllies Act, .a thing shall. be deemed .to be done m
g~ faith \Vhere itis in fact done ,hones~y, whether it is d?Ile
negligently or not. The appellants admittedly were not actmg
honestly when they prepared the false documents in question and
. showed disbursement of Rs. 369.07 on March 11, 1966. Mr. H
J{otwal, however, relies on sub-section ( 2) of section 23 and
(I) [1955] I s.c.R. 1150. '
K. s. DHOBI v. MAHARASHTRA (Khanna, J.) 517
submits that the prosecution could be instituted against the appel
lants only within six months from March 11, 1966. As the
charge sheet was submitted. long after the expiry of six months,
the case against t!;te accused-appellants, according to the counsel,
was barred by time. This contention, in our opinion, is devoid
of force. Sub-section ( 2) refers to suit or prosecution against a
public servant or person duly authorised under the Act in respect
of anything done or intended to be done under the Bombay Land
Improvement Schemes Act. It cannot be said that the acts of the
accused-appellants in preparing false documents and in committ.
ing criminal breach of truSt in respect of the amount of Rs. 369.07
as also their act of criminal misconduct were done under the
Bombay Land Improvement Schemes Act. Sub-section (2) of
section 23 deals with anything done or intended to be done under
the above mentioned Act by a public servant or a person duly
authorised under the Act. It has no application where some
thing is done not under the Act even though it has been done by
a public servant who th.as been entrusted with duties of carrying
out improvement schemes under the above mentioned Act. The
impugned acts of the appellants in the present case were not in
discharge of thefr duties under the above mentioned Act but in
obvious breach and flagrant disregard of their duties. Not only
they did no rectification work for the Bundh which was a part of
the improvement scheme, they also misappropriated the amount
which had been entrusted to them for the purpose of rectification.
Prayer has also been made for the reduction of the sentence,
but we see no cogent ground. to interfere with . the same. The
appeal consequently fails and is dismissed.
K.B.N. Appeal dismissed.
S-L!03! Sup.Cl/72