TMI Blog2005 (10) TMI 590X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstance, it must be clearly established by reliable evidence and they must form the full chain whereby a conclusion about the guilt of the accused can be safely drawn. Even if we hold that at some point of time, the accused-appellant had some knowledge or suspicion about A-3 indulging in fraudulent misappropriation of gold, entrusted to A-3, in the absence of some positive evidence indicating agreement to that effect, conspiracy could not be inferred. On the findings itself arrived at by the High Court, we cannot hold that the accused-appellant was the conspirator to misappropriate the gold, with A-3. On scrutiny of the entire facts led by the prosecution, the charge of conspiracy cannot stand as there is no link to show that the conspirators agreed to misappropriate the gold while the gold ornament was being prepared. The accused-appellant was convicted under Sections 13(1)(c) and (d) of the Prevention of Corruption Act, 1988. To constitute an offence under clause (c) of Section 13(1) of the Act, it is necessary for the prosecution to prove that the accused has dishonestly or fraudulently misappropriated any property entrusted to him or under his control as a public servant or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The appellant was convicted for R.I. for two years and a fine of ₹ 10,000 and R.I. for two years and a fine of ₹ 5000 and in default R.I. for three months under Sections 13(1) (c) and (d) of the Act respectively, along with Section 13(2) and R.I. of one year under Sections 403 IPC and 477-A I.P.C., each. No separate sentence was awarded under Section 120B of the IPC. 2. The prosecution case, in brief, is that Chottanikkara Bhagvathy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bits of gold weighing 13 Gm. were again melted to be converted into gold bars, weighing 1.149 Kg. This was done before the accused joined as Assistant Commissioner. A-2 joined duty as Asstt. Commissioner of the Devaswom Board on 1/2-5-1988. On 10.9.88 the gold bar was taken by accused - appellant, along with A-3 and A-4 to A.K.A. Metals at Irinjalakuda for converting the same into gold sheets. But when the attempt was made to convert the bars into sheets, cracks appeared on the side of the bar due to impurity of the gold. On 15.9.88, the accused-appellant had sent a report to the Board and sought permission to take the gold bar to Coimbatore and vide resolution dated 20.9.88, the Board authorized A-3 to take the gold bar to Coimbatore for converting it into gold sheets and accordingly the gold bar was taken to Coimbatore. 3. When the gold bar was melted for converting it into sheets, the quantity of pure gold was found to be only 919.500 Gm. of copper was added to it in order to conform the same to the prescribed Government standard, and the gold was converted into gold sheets, and these sheets were used for making the two hands of the Golaka, wires, pinheads, nails, and for solder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant is based on the conspiracy which is alleged to have been entered into between the appellant and accused No. 3. We shall advert to the law of conspiracy, with its definition, the essential features and required proof. 9. Section 120A of I.P.C. defines `criminal conspiracy.' According to this Section when two or more persons agree to do, or cause to be done (i) an illegal act, or (ii) an act which is not illegal by illegal means, such an agreement is designed a criminal conspiracy. 10. In Major E.G. Barsay v. State of Bombay, AIR (1961) SC 1762, Subba Rao J., speaking for the Court has said: The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. 11. In State through Superintendent of Police, CBI/SIT v. Nalini and Ors., JT (1999) 4 SC 106 it is observed by SSM Quadri J. at paragraph 677: In reaching the stage of meeting of minds, two or more persons share information about do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the guilt is possible. The criminal conspiracy is an independent offence in Indian Penal Code. The unlawful agreement is sine quo non for constituting offence under Indian Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the Plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement. 13. The suspicion can not take the place of a legal proof and prosecution would be required to prove each and every circumstance in the chain of circumstances so as to complete the chain. It is true that in most of the cases, it is not possible to prove the agreement between the conspirators by direct evidence but the same can be inferred from the circumstances giving rise to conclusive or irresistible inference of an agreement between two or more persons to commit an offence. It is held in Noor Mohd. v. State of Maharashtra, AIR (1971) SC 885, that: . in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en to Coimbatore. High Court has also failed to notice that when the gold sheet was converted into gold bar, before the accused- appellant joined the Board, it weighed 1.149 Kg. and when this gold bar was melted, after the accused-appellant had joined duty, the gold was found only to be 919.500 Gm. Thus, before the accused-appellant joined as Asst. Commissioner, there was a shortage of 230 Gm. of the gold in the gold bar prepared, which was detected when it was converted into gold sheet. Shortage of pure gold was on account of impurity in the gold bar which was prepared when the accused-appellant had not even joined the services of the Board. The High Court has also recorded a finding in paragraph 21 onwards of the judgment that the bond gold weighing 2.469 Kg. and Nadavaravu (offerings) of 1 Kg. of gold was handed over to A-3, which was in the form of ornaments and coins. The purity of bond gold was ascertained and certified in Exh.P.1 but the purity of the Nadavaravu, was not ascertained at all and no satisfactory explanation, whatsoever, is offered by any witness or the prosecution as to how and why 1 Kg. of gold was handed over to A-3 and permitted to be used in making the Gola ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blished by reliable evidence and they must form the full chain whereby a conclusion about the guilt of the accused can be safely drawn. Even if we hold that at some point of time, the accused-appellant had some knowledge or suspicion about A-3 indulging in fraudulent misappropriation of gold, entrusted to A-3, in the absence of some positive evidence indicating agreement to that effect, conspiracy could not be inferred. On the findings itself arrived at by the High Court, we cannot hold that the accused-appellant was the conspirator to misappropriate the gold, with A-3. 18. On scrutiny of the entire facts led by the prosecution, the charge of conspiracy cannot stand as there is no link to show that the conspirators agreed to misappropriate the gold while the gold ornament was being prepared. 19. The accused-appellant was convicted under Sections 13(1)(c) and (d) of the Prevention of Corruption Act, 1988. To constitute an offence under clause (c) of Section 13(1) of the Act, it is necessary for the prosecution to prove that the accused has dishonestly or fraudulently misappropriated any property entrusted to him or under his control as a public servant or allows any other person to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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