the witness has also identified the signature and initial of the accused gopinath patra on exhibit 20 4 and has stated that alter companypliance with all the formalities cheque for the aforesaid amount was made over to accused nakula sahu on october 28 1961.
6 addressed by him to gopinath patra and the reply exh.
prasanta chandra das p.w.
under exhibit 4 4 copies of the aforesaid order exh.
pursottam kar p.w.10 who took over as sub divisional officer project i. public health department bhubaneswar in january 1963 has on the basis of monthly stock register exh.
on numberember 16 1961 i.e. after the first two supplies but before the third supply lingaraj das p.w.7 addressed confidential companymunication exh.
therefore the bills were checked in the office of the executive engineer who made the payments by means of the cheques.
in his report exh.
37000.60 400 13 11 1961 22 rs.
6 to gopinath patra hinting to him that according to the information received by him the supplies made by nakula sahu were number according to the specifications in the supply order but were of lower class and requiring him to verify the quality of each and every wash hand basin and to give a certificate if they were of first class quality as per specification in the tender.
29960.00 106 3 1 1962 25 rs.
5 nakula sahu proprietor of the cuttack plumbing stores supplied 1000 wash hand basins in three instalments representing them to be of first quality barang make and submitted bills in regard thereto as detailed below number of the wash date of supply exh.
he has further stated that by first quality he meant that the wash hand basins should be without any manufacturing defects.
29960/ and rs.
7939.40 on receipt of the supplies at the public health department store niranjan naik respondent who was incharge of store took delivery thereof and entered the same in the measurement book certifying therein that the supplies were according to the specifications of the order.
5 with cuttack plumbing stores for further supply of 500 wash hand basins of the aforesaid quality and make at the rate of rs.
4 with the latter for supply of wash hand basins of the make specifications and quality and at the rate and on the companyditions numbered therein.
from the resume of the prosecution evidence as given above it is abundantly clear that quotations in regard to the supply of first quality barang make 22x16 wash hand basins submitted by the cuttack plumbing stores of which nakula sahu was the proprietor were accepted by p.w.
by means of the aforesaid companyfidential letter gopinath patra was also told to submit a detailed report about the quality of the wash hand basins within four days in case he found that they were number of first quality as per specifications in the tender.
b. ghosh p.w.
t is m against this judgment and order that the aforesaid appeals have been filed by special leave.
23 and the supply order exh.
7 and work order for supply of 100 wash hand basins of the aforesaid quality make and size was issued to the former by the latter that gopinath patra who as executive engineer public health department bhubaneswar was entrusted with and had dominion over rs.
pursuant to work order exh.
he has further stated that fire cracks dents blisters uneven surface unglazed patches undulating surface and uneven holes in any place of basins are the manufacturing defects and those defects cannumber occur after manufacture is over that on verification he found almost all the aforesaid wash hand basins bearing the marks ii or iii which led him to presume that those were the marks of classification.
authorities made an inquiry from m s orissa industries ltd.
45 of project i stated that 22x16 wash hand basins numbering 494 400 106 410 and 40 were received at the godown of the public health department bhubaneswar from the cuttack plumbing stores on october 28 1961 numberember 13 1961 january 3 1962 january 31 1962 an l february 13 1962 respectively.
ghosh p.w.8 executive engineer stores verification division attached to the works department inspected these basins under the orders of the secretary works and transport department and submitted his report exh.
7 who was the public health engineer and also the companytrolling officer of the public health department during the relevant time has stated that on receipt of the quotations called by him vide exhibit 1 he accepted the quotations of the cuttack plumbing stores and placed an order exh.
sachidananda misra p.w.
on the basis of the said certificates running account bills were prepared and signed by gopinath patra executive engineer and payments were made to nakula sahu.
2910.40 respectively.
25 28 of 1972.
abdul rasid khan p.w.
simultaneously with the supplies nakula sahu submitted running bills on behalf of the cuttack plumbing stores on each of which niranjan naik section officer appended the following certificate verified the materials received on and found correct entered in m.b.
he has further stated that at the time of verification accused niranjan naik told him that the wash hand basins verified vide exhibits 50 and 55 were supplied by accused nakula sahu.
the judgment of the companyrt was delivered by jaswant singh j. by his judgment and order dated numberember 30 1965 the sub divisional magistrate bhubaneswar companyvicted gopinath patra respondent in appeal number 26 of 1972 under section 409 of the indian penal companye and sentenced him to two years rigorous imprisonment and a fine of rs.
70/ per wash hand basin plus sale tax at 7 which meant that the basins should be free from all manufacturing defects like dents fire cracks warpage or other undulation on the surface etc.
at the request of the executive engineer public health department bhubaneswar lingaraj das p.w.7 the then public health engineer orissa issued circular letter c exh.1 dated september 30 1961 to several dealers in sanitary goods inviting quotations for supply of 2000 best indian make earthen ware wash hand basins with white glazed straight front smooth top and one tap hole and waste holes.
in several cases major defects have been numbericed in all the type of basins and the nature of major defects have also been numbered in the statements.
he has further stated that in 1957 only thirty 22x16 wash hand basins were received that in 1958 and 1959 number22x16 wash hand basins were received and that in 1960 only eight 22x16 wash hand basins were received.
73 from the public health godown bhubaneswar of which niranjan naik section officer was incharge 593 barang make wash hand basins alleged to have been supplied to the department by the cuttack plumbing stores and a.b.
though as companytrolling officer the superintending engineer public health department was required under the financial code to watch the expenditure against the budget allotments of the circles under him it was the executive engineer public health department who was the drawing and disbursing officer for the aforesaid budget provision of rs.
2 nakula sahu quoted the following rates wash hand basins 22 x 16 barang make first quality rs.
barang producers of the basins which revealed that the cuttack plumbing stores had during its entire transactions with the former purchased only three first quality wash hand basins and the rest of the wash hand basins purchased by it by auction or otherwise from the company and dishonestly passed number to and accepted by respondents niranjan naik brahmananda misra and gopinath patra as first quality wash hand basins were either second quality or rejected ones which did number at all companyform to the specifications mentioned in the tender quotations exh.
68/ per basin to be delivered to the public health departments godown at bhubaneswar and sent intimation thereof to gopinath patra.
the witness a has denied that his companycern ever sold any second class wash hand basins representing them to be of best quality.
it will be recalled was sent by gopinath patra in rely to the companyfidential companymunication addressed to him by p.w.
25 and 27 of 1972 against nakula sahu and brahmananda misra have abated due to their death during the pendency of the appeals in this companyrt.
12 to 12 4 evidencing all transactions with nakula sahu cuttack plumbing stores and n. c. sahu sons and companytaining cross references to invoices testified that it was for the first time in june 8 1959 that the cuttack plumbing stores purchased three wash hand basins 22 x 16 of class i quality from his companypany that from june 1961 to february 1962 the cuttack plumbing stores purchased 1704 class ii and 300 class iii wash hand basins 22x16 from his companycern that apart from these sales there has been numberother sale of wash hand basins to accused nakula sahu or cuttack plumbing stores or n. c. sahu sons that nakula sahu was transacting business with his companypany in respect of all the aforesaid invoices that in the years 1961 and 1962 the price of class i wash hand basin 27x16 was about rs.
33 of the quotations received in response to the aforesaid circular letter being put up before him p.w.7 accepted the quotation of the cuttack plumbing stores for supply of 1000 22 x 16 barang make first quality wash hand basins vide exhibit 3 4 at the rate of rs.
7939.40 respectively.
on these three bills also brahmananda misra sub divisional officer and niranjan naik section officer appended certificates similar to those which they had given on the previous bills.
on march 281963 the inspector of police vigilance cuttack seized vide seizure memo exh.
nabaghan misra p.w.
66960.60 including sales tax for the aforesaid 894 wash hand basins.
29831.60 and rs.
he has further stated that the companymodities supplied are physically received by the overseer who is the section officer of the companycerned division that the section officer is required to receive the supplies according to the specifications numbered in the order for supply to enter the companymodities received by him in the measurement book and to give a certificate in that book that the supplies are according to the specifications of the order that thereafter the sub divisional officer of the division has to check the supplies with reference to the specifications given ill the order and put his signatures in the measurement book that the stock registers of the supplies received are maintained in the office of the sub divisional officer that section officer and the sub divisional officer endorse certificates on the order as to the companyrectness of the supplies in terms of the specifications in the order that thereafter the bill is checked in the office of the companycerned executive engineer and after payment order is made by the executive engineer on duplicate voucher prepared by the section officer and countersigned by the sub divisional officer payment is made by cheque issued by the executive engineer that exhibit 19 is the bill for rs.
accordingly nakula sahu supplied 50 wash hand basins on january 4 1962 410 wash hand basins on october 1 1962 and 40 wash hand basins on october 14 1962 and submitted bills exhibits 29 32 and 35 for rs.
in response to the said invitation twelve firms including the cuttack plumbing stores of which nakula sahu respondent was the proprietor submitted their tenders.
49 dated september 9/131963 enclosing therewith statements exhibits 50 and 51 companytaining his remarks in respect of each and every one of 593 basins examined by him.
thereupon the.
in his tender exh.
ultimately the executive engineer of the concerned division makes payment by cheques.
70/ each wash hand basin 22 x 16 barang make second quality rs.
13 who is the central excise inspector mauza jaipur has stated that during the time he was working in orissa industries limited barang as assistant pottery incharge rubber stamp marks were put on the wash hand basins produced in the factory showing their quality and gradation such as i or iind or only ii or iiird or only iii or ivth or only iv as the case was that very small number of first quality wash hand basins were being produced and that at the time of the aforesaid verification rubber stamp marks ii or iii were there.
7 sent him a reminder to expedite the reply but it was number before december 9 1961 that the former sent the reply exh.
5 who is the head clerk in the office of the executive engineer public health department bhubaneswar has stated that on receipt of companyy of the work order the companycerned executive engineer of the public health department directs his subordinates to receive the commodities that after the companymodities are supplied the suppliers submit their bills to the authority who receives the companymodities.
in this exhibit 7 gopinath patra clearly informed p.w.
4 were forwarded to gopinath patra respondent and brahmananda misra respondent the then executive engineer and sub divisional officer project number i sub division bhubaneswar respectively for information and necessary action.
12 who was incharge of production in konark ceramics athgarh from 1960 to 1964 has affirmed that the first quality wash hand basins mean wash hand basins having numbermanufacturing defect.
53/ per piece and price of class ii and class iii wash band basin 27x16 was about rs.
thereafter respondent brahmananda misra sub divisional officer checked the supplies according to the specifications in the supply order and signed the measurement book in token of the fact that the supplies had been companyrectly made.
17 who is the inspector of police attached to vigilance branch has stated that on march 28 1963 he seized 593 wash hand basins of barang make bearing orissa trade mark from public health department stores bhubaneswar as pointed out by niranjan naik accused.
8 who has passed the examination in sanitary engineering and water supply as a special subject has stated that he was working as executive engineer verification officer for all departments under the public works department that under orders of the secretary sanitary works department he inspected and verified 593 numbers of orissa 22 x 16 wash hand basins supplied by accused nakula sahu and stocked inside the public health department godown at bhubaneswar the key of which was with accused niranjan naik that the inspection and verification was companymenced by him on august 30 1963 and companypleted on august 31 1963 in the presence of accused niranjan naik who pointed out the 593 wash hand basins which were in a separate stock as having been supplied by accused nakula sahu that on verification he did number find any class i wash hand basins in the said 593 wash hand basins and that almost all the said wash basins had manufacturing defects and bore markings ii or iind or iii and only a few had numbermarks as stated by him in his inspection and verification report exh.
188 190 191 and 192 of 1968.
as gopinath patra did number companyply with the aforesaid communication within the aforesaid time p.w.
appeals by special leave from the judgment and order dated the 9th december 1970 of the orissa high companyrt in crl.
a. number.
on appeal the sessions judge cuttack upheld the judgment and order of the sub divisional magistrate and affirmed the companyviction and sentence of the respondents by his judgment and order dated may 1 1968.
7 certifying that 894 wash hand basins which had been supplied by then by the cuttack plumbing stores were all of first quality.
by means of exhibit 7 gopinath patra further informed the public health engineer orissa that the cuttack plumbing stores had so far been paid rs.
15 l.d.c.
2000/ .
58/ each on the companyparative statement exh.
on december 19 1961 p.w.
11 companysisting of 391 pages companytaining the record relating to all the transactions of orissa industries limited with the cuttack plumbing stores and nakula sahu sons and ledgers exh.
mukherjee g. s. chatterjee for the appellant.
gopinath patra was also asked to intimate the number of wash hand basins supplied by the cuttack plumbing stores and the amount paid to it.
underneath the certificate of niranjan naik section officer brahmananda misra sub divisional officer appended his certificate and signed the same.
the witness has denied that glazed patches will become unglazed due to bad storage and handling or that any wash hand basin would become unglazed by friction.
7 placed order exh.
number 25/72.
a. 27 28/72 mrs.
criminal appellate jurisdiction criminal appeals number.
2 1973 2 s.c.c.
49 a.b.
out of the 17 witnesses examined by the prosecution to bring home the aforesaid offences to the respondents the evidence of 1 1973 4 s.c.c 10.
the stock of the wash hand basins which were to be verified were shown to him by accused niranjan naik the then overseer incharge of the store.
three type of basins with manufacturer marks ii and iii class and with numbermarks are found.
the witness has by reference to companyies of invoices existing on file number c. 157 exh.
11 who is the executive engineer public health department has stated that in april 1963 he went to the store of the public health department bhubaneswar with misra assistant pottery manager of orissa industries rao inspector of central excise and dass intelligence officer and verified some of the wash hand basins.
lingaraj das p.w.
by the same judgment and order the sub divisional magistrate acquitted nakula sahu of the charge under section 420 of the indian penal companye.
numberof amount of the bill hand basins supplied the bill accord ing to which payment demanded 494 27 10 1961 19 rs.
37060/ submitted by the cuttack plumbing stores of which the accused nakula sahu is the proprietor in respect of the supply of wash hand basins 494 in number of the specifications and quality mentioned therein that the companyrections in ink arc made by accused niranjan naik the then section officer and are initialled by him that the endorsement and the certification at the bottom are in the writing of the accused niranjan naik and contain his signature dated october 28 1961 that the corrections in the endorsement have been initialled by accused niranjan naik that exhibit 20 is the running account bill prepared in the office of niranjan naik the then section officer in relation to exhibit 29 and bears the signatures of both niranjan naik overseer and brahmananda misra sub divisional officer.
during his deposition before the companyrts also the witness examined the said wash hand basins and gave in detail the manufacturing defects observed by him on each one of them.
number.
all the basins which have been verified have different types of defects as numbered against each number in the enclosed statements.
under exhibit 4 dated october 13 1961 the cuttack plumbing stores was asked to supply the wash hand basins to the sub divisional officer project sub division number 1 and submit the bills in triplicate to the executive engineer public health department bhubaneswar for payment.
measurement book no in page taken into stock a c in date and year .
on the matter being taken in revision before it the high companyrt of orissa set aside the aforesaid judgments and orders passed by the trial companyrt and the sessions judge and acquitted the respondents of all the charges by its companymon judgment and order dated december 9 1970.
ghosh inter alia stated number a single basin of first quality companyld be found during verification.
n. singhdeo p.w.
195420/ for purchase of wash hand basins and other sanitary fittings required for four items of work.
2 who is the sales manager of orissa industries limited barang since 1956 has deposed that accused nakula sahu used to transact business with his company as proprietor of n. c. sahu sons and cuttack plumbing stores that detailed entries showing the date invoice number and total bill amount of every sale effected by his companypany are made in the sales day book cash book and ledger of the companypany and that in the ledger the transactions with different customers are mentioned in separate folios.
frank anthony crl.
p. bahuguna p.w.
in sales tax office cuttack west circle has by reference to the record stated that in the application exh.
ram krishna rao p.w.
26 and 28 of 1972 respectively as the other two appeals number.
the supplies were to be received by the overseer niranjan naik who was the section officer according to the specifications numbered in the order of supplies.
the facts giving rise to these appeals are during the year 1961 62 the public health department had a budget provision of rs.
195420/ and was responsible for any wastage or excess of appropriation.
a. 26/72 har dayal hardy crl.
3638.00 rs.
by the same judgment.
68 made by the cuttack plumbing stores nakula sahu has signed as proprietor manager partner principal officer of the said firm that on the said application registration certificate number cu 12681 dated december 27 1956 showing nakula sahu as proprietor of the cuttack plumbing stores and that exhibit 69 is the office companyy of the said certificate and that on october 20 963 the said certificate was renewed for the year 1963 64.
the sub divisional magistrate also companyvicted nakula sahu respondent in appeal number 25 of 1972 brahmananda misra respondent in appeal number 27 of 1972 and niranjan naik respondent in appeal number 28 of 1972 under section 409 read with section 109 of the indian penal companye and sentenced each one of them to two years rigorous imprisonment and a fine of rs.
by the same judgment the sub divisional magistrate also found all the four respondent guilty of the offence under sections 120b of the indian penal companye but in view of the fact that they were found guilty of the offence of criminal breach of trust for which they had entered into companyspiracy numberseparate sentence was awarded to them for that offence.
the witness has also proved the aforesaid letter exh.
7 received from the latter certifying that 894 wash hand basins were of first quality.
2000/ .
s. bhandare a. n. karkhnis and miss malini peduvel in crl.
the witness has likewise proved bills exhibits 22 and 25 ill regard to payment of rs.
pishori lal arora number present for respondent in crl.
26 28/72 for respondents.
