Judgment

JASWANT SINGH, J.:- By his judgment and order dated Nov. 30, 1965 the Sub Divisional Magistrate, Bhubaneswar, convicted Gopinath Patra, respondent in Appeal No. 26 of 1972, under S. 409 of the Indian Penal Code and sentenced him to two years rigorous imprisonment and a fine of Rs. 2,000/-. By the same judgment, the Sub Divisional Magistrate also convicted Nakula Sahu respondent in Appeal No. 25 of 1972 Brahmananda Misra, respondent in Appeal No. 27 of 1972 and Niranjan Naik, respondent in Appeal No. 28 of 1972, under S. 409 read with S. 109 of the Indian Penal Code and sentenced each one of them to two years rigorous imprisonment and a fine of Rs. 2,000/-. By the same judgment, the Sub-Divisional Magistrate also found all the four respondents guilty of the offence under Section 120-B of the Indian Penal Code 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 conspiracy, no separate sentence was awarded to them for that offence. By the same judgment and order, the Sub Divisional Magistrate acquitted Nakula Sahu of the charge under Sec. 420 of the Indian Penal Code. On appeal, the Session Judge, Cuttack upheld the judgment and order of the Sub Divisional Magistrate and affirmed the convictions and sentences of the respondents by his judgment and order dated May 1, 1968. On the matter being taken in revision before it, the High Court of Orissa set aside the aforesaid judgments and orders passed by the trial court and the Sessions Judge and acquitted the respondents of all the charges by its common judgment and order dated Dec. 9, 1970. It is against this judgment and order that the aforesaid appeals have been filled by special leave.

2. The facts giving rise to these appeals are : During the year 1961-62, the Public Health Department had a budget provision of Rs. 1,95,420/- for purchase of washhand basins and other sanitary fittings required for four items of work. Though as Controlling 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 Dept. who was the drawing and disbursing officer for the aforesaid budget provision of Rupees 1,95,420/- and was responsible for any wastage or excess of appropriation. 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 (Exh. 1) dated Sept. 30, 1961 to several dealers in sanitary goods inviting quotations for supply of 2,000 best Indian make earthenware washhand basins with white glazed, straight front, smooth top, and one tap hole and waste holes. In response to the said invitation, twelve firms including the Cuttack Plumbing Stores of which Nakula Sahu, respondent was the proprietor submitted their tenders. In his tender (Exh. 2), Nakula Sahu quoted the following rates :

1. Washhand Basins 22" x 16" Barang make First Quality : Rs. 70/- each

2. Washhand Basins 22" x 16" Barang make Second Quality : Rs. 56/- each.

3. On the comparative statement (Exh. 3) 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, washhand basins vide Exhibit 3 (4) at the rate of Rs. 70/- per washhand basin plus sales 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. Under Exhibit (4) dated Oct. 13, 1961, the Cuttak Plumbing Stores was asked to supply the washhand basins to the Sub Divisional Officer, Project Sub Division No. 1 and submit the bills in triplicate to the Executive Engineer, Public Health Department Bhubaneswar for payment. Under Exhibit 4 (4), copies of the aforesaid order (Ex