The Prevention of Corruption Act, 1947, does not bar prosecution under S. 409 I.P.C. for criminal breach of trust by a public servant, and the Prevention of Corruption Act does not repeal S. 409 I.P.C.

ORDER:- These two applications by original accused Nos. 1 and 2 respectively are directed against the order passed on appeal by the Additional Sessions Judge, Sholapur, by which the learned Additional Sessions Judge confirmed the order of conviction and sentence passed against the first petitioner and also confirmed the order of conviction but only reduced the sentence of six months awarded to accused No. 2 by the trial Court to simple imprisonment till the rising of the Court.

2. Revision petitioner Chandrakant Jakkal, who will hereafter be referred to as "accused No. 1", was in the employ of the Municipal Corporation of Sholapur as a Deputy Engineer and the revision petitioner Appasaheb Nanasaheb Babar who would be referred to as "accused No. 2" in the companion petition was employed in the same Corporation as an Overseer.

3. It appears that accused No. 1 was working as a Deputy Engineer in the City Engineering Department of the Corporation upto Oct. 16, 1970 and thereafter he was transferred as a Deputy Engineer in the Public Health Department of the Corporation and was kept in charge of Degaon Sewage Treatment Plant at Sholapur.

4. Accused No. 1 was residing in House No. 70 situate in the Railway Lines. This building belonged to one Jaganlal Pardeshi and accused No. 1 had rented it. Accused No. 1 constructed a bungalow and for some time he shifted to that bungalow. All the same he retained with him possession of House No, 70 in the Railway Lines to which he re-shifted in January 1971.

5. Accused No. 2 as an Overseer was in charge of Municipal stores and he was authorised to draw material required for the purpose of repairs or construction of Municipal works from these Stores by putting an indent.

6. The prosecution case was that at the instance of accused No. 1, accused No. 2 used materials such as cement, bricks, Shahabad tiles, sand etc. belonging to the Municipal Corporation and also labourers on the pay roll of the Corporation for carrying out repairs to the aforesaid premises at 70 Railway Lines, Sholapur, from Nov. 25, 1970 to Nov. 27, 1970.

7. On Nov. 27, 1970 the Mayor Mr. Ball came to know about this and, therefore, he in company of Municipal Commissioner, Mr. Mohite, paid a surprise visit to the aforesaid premises when they detected that the labourers employed by the Municipal Corporation and the material belonging to the Corporation were being utilised for carrying out repairs and other work on the premises in the occupation of accused No. 1. At the instance of the Mayor and the Commissioner, a complaint was immediately lodged with the police by Ravindra Ayachit, P. W. 1, who was then working as Assistant Assessor and Collector of Taxes and as a result of the investigation carried out, these two accused were jointly prosecuted, on a charge under S. 409 against accused No. 2 and under S. 409 read with S. 109 of the I. P. C. against accused No. 1.

8. Although the accused pleaded not guilty to the charge, it was not disputed by them that certain repairs were as a matter of fact carried out in the premises at House No.70 in the occupation of accused No.1 and for that purpose labourers and materials of the Corporation were utilised.

9. The defence of accused No. 1 initially was that he was not in occupation of the premises at all but he had already vacated them and had surrendered them to the landlord Pardeshi. According to him, he was falsely implicated in this prosecution at the instance of Mayor Bali because the latter had a grudge against him as he had refused permission for the construction of a building of Bali in the Civil Lines.

10. In order, therefore, to show that accused No. 1 was in actual occupation of the premises, although he was not then residing there, the prosecution examined the landlord Pardeshi and from his evidence it was clearly established that accused No. 1 was in possession of those premises at the material time and, therefore, it appears that at the appellate stage it was not disputed that accused N

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