Judgment

BEG, J. :- The appellants Bhagwandas Keshwani and Vishnu Kumar before us by grant of special leave were charged under Sections 120B, 420 and 467 and 471 Indian Penal Code. Keshwani was also charged under Section 5, sub section (2) read with Section 5 (1) (d) of the Prevention of Corruption Act. They were acquitted of charges under Sections 467 and 471 I. P. C. The Special Judge who tried their case convicted Keshwani and Vishnu Kumar under Section 120B and under Section 420 I. P. C. and sentenced them to one year s rigorous imprisonment and to pay a fine of Rs. 500/-, and, in default of payment of fine, to undergo rigorous imprisonment for three months more. The learned Judge convicted and sentenced Keshwani to one year s rigorous imprisonment under Section 5 (2) read with Section 5 (1) (d) of Prevention of Corruption Act and sentenced him to one year s rigorous imprisonment and a fine of Rs. 500/- and, in default of payment of fine to undergo further imprisonment for three months. The sentences were directed to run concurrently. The High Court of Rajasthan had, on appeal, affirmed the conviction and sentences.

2. The prosecution case against the appellant was that Keshwani, an employee of the N. C. C. Directorate at Jaipur, and Vishnu Kumar, Proprietor of a Medical store, had conspired to fabricate three cash memos dated 22-5-1962, 17-6-1962, and 11-7-1962 for medicines for an amount totalling upto Rs. 31.89 which had not been purchased at all, and, on the strength of these cash memos, Keshwani had prepared a false medical reimbursement bill and realised this amount from the Govt. The Special Judge as well as the High Court had concurrently found that no medicines were actually purchased from Vishnu Kumar by Keshwani, but the amount, falsely shown as paid, had been realised by the appellant Keshwani from the Govt. In fact, Keshwani admitted that he had obtained the payment for the medicines from the Govt. He had asserted that the cash memos were genuine and that they were given on payment of the prices of the medicines prescribed and actually purchased and taken. But, Vishnu Kumar, the proprietor of the Medical Store, admitted that the cash memos were really fictitious. His version, however, was that they were prepared at the instance of Keshwani, who was in the habit of taking such cash memos every month on the pretext that he would otherwise, have to give his whole salary to his father who would not allow him to deduct some pocket money for himself and his wife without such cash memos. Both the Courts. Upon which the duty rested of investigating and deciding questions of fact, had thoroughly discussed the evidence in the case and had come to the conclusion that the reason given by each accused for the cash memos was false. The natural inference was that the accused Keshwani had used false and fictitious cash memos to obtain payment of bills for reimbursement of money spent on medicines. The friendship between the two appellants was also relied upon to reach the conclusion that they must have been parties to a conspiracy to defraud the Govt. and realise money on fictitious bills.

3. Learned Counsel for the appellant Keshwani had contended that the conviction of his client rests on no evidence at all as the conduct, the account books, and statements of Vishnu Kumar could not be used against the appellant Keshwani. It seems to us that the extreme argument that nothing said or done by Vishnu Kumar could be taken into account in judging the guilt of Keshwani when there is a charge for conspiracy under Section 120B I. P. C. overlooks the provisions of Section 10 of the Evidence Act which reads as follows :

"Section 10. Things said or done by conspirator in reference to common design. - Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong any thing said, done or written by any one of such persons in reference to their common intention, after t