Judgment

JASWANT SINGH, J.:- The above noted two criminal appeals which are directed against the common Judgment and Order dated August 6, 1975 of the High Court of Judicature at Bombay affirming on appeal the Judgment and Order dated August 6, 1973 of the Special Judge Greater Bombay, convicting S. P. Bhatnagar, appellant in the aforesaid first appeal, (hereinafter described as A-1) under Section 120-B read with Sections 409 and 109 of the Indian Penal Code and Section 5 (1) read with Section 5 (2) of the Prevention of Corruption Act, 1947, and sentencing him to six months simple imprisonment on each of the said two counts as well as convicting A. S. Krishnaswami, appellant in the aforesaid second appeal (hereinafter described as A-2) under the aforesaid two counts but reducing his sentence from nine months imprisonment to six months simple imprisonment on each one of those counts shall be disposed of by this judgment.

2. Briefly put the case as set up by the prosecution was :

In 1964, the Indian Oil Corporation (hereinafter referred to as the Corporation) which is a Government owned company, decided to purchase 13 acres and odd of a hilly tract of land situate in village Mahul in Trombay (Bombay) from the Tatas for the purpose of erecting black furnace oil storage tanks and construction of administrative buildings. After the area was taken over by the Corporation, Varandani (P. W. 20), Junior Engineer of the Corporation, surveyed the land in October, 1964, under the directions of A-1 and A-2, the Engineering Manager and Senior Engineer respectively of the Engineering Department of the Marketing Division of the Corporation, with a view to find out the extent of rock cutting and filling which might be required to be done for levelling the area of 7 acres out of the said tract of land. The kacha level plan (Exh. 125) and work-sheets prepared by Varandani on October 13, 1964 and November 3, 1964, respectively during the course of his aforesaid survey (which were signed by A-1 and A-2), showed that 16,80.000 cft. of rock cutting work and 8,00,000 cft. of filling work would have to be done to suit the purpose for which the land was acquired. Estimate (Exh. 27) prepared by Varandani indicated that expenditure at the rate of Rs. 30/- per 100 cft. for rock cutting and Rupees 10/- per 100 cft. for filling would have to be incurred. Pucca tracing (Exh. 34) of level plan (Exh. 125) and copies thereof signed by A-1 and A-2, and contour plan prepared by Varandani and approved by Engineering Manager were kept on the record. On the basis of the survey and the estimate of expenditure made by Varandani notice (Exh. 28) inviting tenders from experienced civil contractors for rock cutting, filling and levelling of the land in question was prepared by A-2 on February 2, 1965, and was forwarded (under his signatures) by A-1 to the Finance Department for approval on February 5, 1965. After the approval of the Finance Department, the Public Relations Officer of the Corporation by his letter (Exh. 29) dated February, 11, 1965 requested Times of India, Indian Express and Free Press to publish the tender notice (Exh. 28) wherein it was stated that the tenders which should reach the Corporation by 2.30 P.M. on March 2, 1965 would be opened at 3.00 P.M. on that date. In response to this notice eleven firms of contractors including Ram & Co. submitted their tenders. N. N. Desai (hereinafter described as A-4) however abstained from submitting his tender. In the meanwhile, it was decided that instead of having stack measurements as provided in Exhibit 28, it would be desirable to have the measurements on the basis of differences between the existing and finished levels. Accordingly, on March 5, 1965, the aforesaid eleven tenderers were asked to submit revised tenders on the basis of the amended tender notice by March 15, 1965.

3. Although fresh tenders were restricted to the original eleven tenderers, a tender form was issued to A-4 in response to the applicat