2014 Supreme(SC) 677

SUPREME COURT OF INDIA
T.S. THAKUR AND R. BANUMATHI, JJ.
EDMUND S LYNGDOH - Appellant
VERSUS
STATE OF MEGHALAYA - Respondent
And
DEVA PRASAD SHARMA -Appellant
VERSUS
CENTRAL BUREAU OF INVESTIGATION - Respondent
Criminal Appeal No. 2056 of 2014 (Arising out of SLP (Crl.) No. 553/2011) with Criminal Appeal Nos. 2057-58 of 2014 (Arising out of SLP (Crl.) Nos. 2203-2204/2011)
Decided On : 16-9-2014

IMPORTANT POINT
Statement u/s 313 CrPC is not evidence. Conviction cannot be based solely on such statement. However conviction can be based on statement u/s 313 in conjunction with other evidence.
Ingredients of section 420 and 120B IPC discussed and applied.

Headnote:(a) Indian Penal Code, 1860 – Section 420 IPC, 120B r/w Section 5(2), Prevention of Corruption Act, 1947 – Allegation of first accused misleading purchase committee to approve quotation of fourth accused – Ample evidence and circumstances justifying the conclusion – Courts below right in their conclusion about guilt of first accused. (Para 14, 16, 17)

       (b) Code of Criminal procedure, 1973 – Section 313 – Accused giving evasive answers – Adverse inference can be drawn – However, statement u/s 313 is not evidence – It cannot be considered in isolation, but in conjunction with the other prosecution evidence – Conviction cannot be based solely on statement u/s 313 – High Court convicting first accused on basis of statement u/s 313 in conjunction with other evidence – No infirmity. (Para 21, 22)

       (2008) 9 SCC 974 – Relied upon

       (c) Prevention of Corruption Act, 1947 – Section 6 r/w Article 166 (2), Constitution of India – Validity of sanction – Sanction order in the name of Governor – Authenticated by Chief Secretary – No infirmity. (Para 27)

       (d) Code of Criminal procedure, 1973 – Section 154 – FIR – Delay in lodging – In case of continuing offence no duration of time can be fixed for lodging the complaint – Cases of abuse of powers and obtaining pecuniary advantage and causing wrongful loss should be distinguished from other cases of murder, dacoity and assault etc. as regards time of lodging complaint and registration of FIR – Complaint filed after knowledge of the offence – Delay in lodging FIR not fatal. (Para 30)

       (e) Section 5(2)(d) r/w Sections 120B and 420 IPC – First accused getting inflated rate of DPC approved by purchase committee – Obtaining pecuniary benefit for himself as also to accused A4 and A5 – Causing loss to NEHU – Rightly convicted – Appeal dismissed. (Para 31)

       (f) Indian Penal Code, 1860 – Section 120B – Fourth accused supplying DPC to NEHU at an inflated rate – Obtaining pecuniary advantage for himself and also to first accused – Thereby causing wrongful loss to NEHU – High Court rightly convicting fourth accused under Section 120B IPC. (Para 34)

       (g) Indian Penal Code, 1860 – Section 420 r/w section 120B – Fourth accused quoting and supplying DPC at an inflated rate dishonestly inducing NEHU to purchase DPC in collusion with first accused – High Court rightly convicting fourth accused. (Para 35)

       (h) Indian Penal Code, 1860 – Section 420 r/w section 120B – Sentence – Fourth accused over 70 years of age – Case lingering for about three decades – Fourth accused also suffering from type II diabetes – Already paid fine amount and deposited amount as directed by Supreme Court – Sentence modified to period already undergone by imposing further fine amount of 2,50,000. (Para 38)

       

       Facts of the case:

       Deva Prasad Sharma (First accused) was the then Chief Engineer of North Eastern Hill University, Shillong, Stetnel Roy (A-2) was the Accounts Officer, W.M.R. Wahlang (third accused) was the then Assistant Finance Officer, Edmund S. Lyngdoh, proprietor of M/s E.S. Enterprise (A-4) and T.S. Bareh, proprietor of M/s Premiere Enterprise (A-5), N.P. Garg, Executive Engineer, Shri G.L. Sharma, Jr. Engineer, Sanjay, Sr. Technical Assistant and Shri H. Nongkynrih, Section Officer, Construction Division of NEHU have colluded together for procurement of Damp Seal Cement from some fictitious and non-existent firms at an exorbitant rate during the year 1982 to mid 1985. In furtherance of this collusion, it is alleged that A-1 invited quotation on 12.12.1982 from 12 firms for supply of Damp Proof Cement (DPC) at the rate of Rs.42.75 per kg. though the then actual market rate was Rs.5/- to Rs.7/- per kg.

       On the basis of the complaint lodged by Dr. B.D. Sharma, the then Vice-Chancellor of NEHU, case was registered and investigation was taken up by the CBI. In the course of investigation, CBI found a prima facie case against A-1 to A-3, Shri Edmund S. Lyngdoh, the owner of the firm M/s E.S. Enterprises (A-4), Shri T.S. Bareh of M/s. Premiere Enterprises (A-5) and other suppliers and charge sheeted them under Section 120B IPC read with Section 420 IPC and Sections 5(2) read with 5 (1)(d) of the Prevention of Corruption Act, 1947.

       The trial court convicted A-1 under Section 120B IPC read with Section 420 IPC and under Section 5(2) of the PC Act and sentenced him to undergo imprisonment. A-2 to A-5 were acquitted of the charges.

       Being aggrieved by the acquittal of A-2 to A-5 and also seeking for enhancement of punishment for the first accused, CBI preferred appeal before the High Court. First accused also file appeal challenging his conviction and sentence of imprisonment imposed by the trial court. Both the appeals were heard together and the learned single Judge of the Gauhati High Court enhanced the punishment imposed on the first accused, and dismissed the appeal preferred by the first accused.

       Finding of the Court:

       No interference is required in conviction of first accused.

       Result: Appeal by first respondent dismissed. Appeal by fourth respondent partly allowed.