Important point
To constitute a conspiracy, meeting of mind of two or more persons for doing an illegal act or an act by illegal means is first and primary condition and mere knowledge, even discussion, of the plan would not per se constitute conspiracy.

Headnote:(i) Indian Penal Code, 1860—Sections 409, 477-A and 120B—Prevention of Corruption Act, 1988—Sections 13(1)(c) and (d)—Appellant A2 with three other accused was tried on allegation that they had misappropriated gold utilized for making a Golaka for Temple—Two accused were acquitted and appellant was convicted under—Appellant was Asstt. Commissioner of Tripunithura group of Cochin Devaswom Board and A3 was Devaswom Officer—A3 died during proceedings—Conviction of appellant was on basis that he conspired with A3 dishonestly or fraudulently to misappropriate the pure gold—Appeal—To constitute a conspiracy, meeting of mind of two or more person for doing an illegal act or an act by illegal means was primary condition—Mere knowledge, even discussion, of plan would not per-se constitute conspiracy—Shortage of pure gold was on account of impurity in gold bar which was prepared when accused-appellant had not even joined services of Board—Entire gold used to be kept in double locker under control of A3—One kg. of gold of Nadavaravu had been mixed up with pure gold, purity of that one kg. gold had not been assessed—Though agreement among conspirators could be inferred by necessary implication, inference could only be drawn on parameters in the manner of proved facts—Even if accused had some knowledge or suspicion about A3 indulging in fraudulent misappropriation of gold, in absence of some positive evidence indicating agreement to that effect, conspiracy could not be inferred—Conviction of appellant for offence under IPC was unsustainable. (Paras 13 to 19)
       (ii) Prevention of Corruption Act, 1988—Section 13(1)(c)—Entrustment of property or control of property was a necessary ingredient—In absence of evidence of entrustment or control over property by accused which was found misappropriated, conviction could not be sustained. (Para 20)
       (iii) Prevention of Corruption Act, 1988 — Section 13(1)(d) — Public servant should obtain for himself or for any other person any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as public servant—No evidence to prove that appellant had obtained for himself or for any other person any valuable thing or pecuniary advantage—Conviction could not be sustained. (Para 21)

Judgment

P.P. Naolekar, J.—This appeal has been filed against the common judgment of the Kerala High Court where the appeal of appellant (A-2) against his conviction was dismissed. A-2 was the Asstt. Commissioner of Tripunithura group of the Cochin Devaswom Board and convicted by the common judgment passed by the Enquiry Commissioner and Special Judge, Thrissur appointed under the Prevention of Corruption Act, 1988 (hereinafter referred to as Act) along with A-3 (T.S. Rajan) who was the Devaswom Officer, Chottanikkara Devaswom. The trial court acquitted two other accused persons, A-1 (V. Unnikrishna Menon), who was Devaswom Commissioner, Cochin Devaswom Board and A-4 (V.G. Purushothaman Achari), the artisan/goldsmith/craftsman, who was appointed on 20.7.87 to make the Golaka. All these accused had been tried for offences punishable under Sections 13(1)(c) and (d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Sections 409, 477-A and 120-B of the Indian Penal Code, 1860 (hereinafter I.P.C.) on the allegation that they had misappropriated the gold utilized for making a Golaka for Mekkavu Bhagavathy of Chottanikkara Temple.

2. The appellant was convicted for R.I. for two years and a fine of Rs. 10,000/- and R.I. for two years and a fine of Rs. 5000/- and in default R.I. for three months under Sections 13(1) (c) & (d) of the Act respectively, along with Section 13(2) and R.I. for one year under Sections 403 IPC and 477-A I.P.C., each. No separate sentence was awarded under Section 120B of the IPC.

3. The prosecution case, in brief, is that Chottanikkara Bhagvathy Temple at Chottanikkara is administered by Cochim Devaswom Board. Ornament “Golaka” was used in the temple on certain special ceremonial occasions and the other “Golaka” was used day-to-day. The Temple Board found that Golaka, which was being used throughout the year, was rendered unfit for adorning the deity and, therefore, a decision was taken by the Board on 13.4.82 to make a new Golaka and for the said purpose, sanction was accorded to use 3 Kg. and 499 Gm. of gold from the gold stock available with the Devaswom. The Devaswom had received back a large quantity of gold, which had been invested in gold bonds, from the Government and it was in their custody. Out of that, aforesaid quantity of gold was to be used for the purposes of making the ornament. It was subsequently found that 3.499 Kg. was not sufficient and, therefore, the Devaswom Board by its order dated 4.9.86 granted permission to utilize 1.5 Kg. of gold more from the Nadavaravu (offerings in the form of ornaments and gold coins by devotees), by converting them into bars and sheets. In pursuance of the order, additional quantity of 1 Kg. of gold consisting of 150 pieces of gold jewellery and coins, was entrusted to A-3, who died during the pendency of the proceedings. The Board had asked for the quotations to prepare the ornament and the work was ultimately entrusted to the 4th accused by the Devaswom Board on 20.7.87. As per the quotation the wastage in making the ornament was 10 Gm. of the gold for 1 Kg. By order dated 20.2.87 (Ex. 2b) the work of making the Golaka was directed to be supervised by the Assistant Commissioner of the Tripunithura group, K.S. Chakrapani Marar, J.S., D.Cs Office., T.S. Rajan Devaswom Officer, and other officials. The gold weighing 3.499 Kg., taken from the gold bond, was taken to Madras for converting into the gold sheets. The purity was tested at Elite Jwellery, Thrissur, to be 99.5%. This gold was converted into gold sheets and they were cut, and a portion having weight 2.469 Kg. was entrusted to A-3. The balance of gold sheet, i.e., 1.030 Kg. along with 1 Kg. of gold from offerings (Nadavaravu) was converted into two gold bars. These two bars were later on converted into gold sheets. The gold sheets were used to make different portions of the body of Golaka. After cutting these sheets to the required size, the pieces left from the sheet, weighing 1.147 Kg

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2005 Supreme(SC) 1395

Important pointTo constitute a conspiracy, meeting of mind of two or more persons for doing an illegal act or an act by illegal means is first and primary condition and mere knowledge, even discussion, of the plan would not per se constitute conspiracy.

Cases Referred (4)

Important point
To constitute a conspiracy, meeting of mind of two or more persons for doing an illegal act or an act by illegal means is first and primary condition and mere knowledge, even discussion, of the plan would not per se constitute conspiracy.