JUDGMENT 1. 1. All the three appeals, arise out of the same judgment of the Special Judge CBI Cases. Rajasthan, Jaipur pronounced on 27th Nov., 1979 and the same arc being disposed together. The three appellants were accused in the-case and all of them have preferred separate appeals against their convictions and sentence. They have been convicted and sentenced as under : S. C. Karmakar : Under Section 120-B r/w section 420 IPC and under section 5 (i) (d) read with section 5 (2) of the Prevention of Corruption Act, 1947 to undergo six months' simple imprisonment and to pay a fine of Rs. 50/-for each and in default of payment of fineto undergo 15 days' simple imprisonment under each count. Sisir Kumar : Under Section 120-B read with section 420 IPC to undergo six months simple imprisonment and to pay a fine of Rs. 50/- and in default of payment of fine to undergo further imprisonment for 15 days. Anandilal : Under Section 120-B read with section 420 IPC and under section 420 IPC to undergo one year rigorous imprisonment and a fine of Rs. 1,000/-on each count and in default of payment of fine to undergo a further rigorous imprisonment of one month under each count and sentences to run concurrently. 2. The facts leading to the prosecution and subsequent conviction of the appellants may he looked into. Khetri Copper Project (hereinafter to he referred to as the Copper Project.) is a State undertaking of the Government of India. This Copper Project placed an order with M/s Western Industrial Trading Co. Calcutta (hereinafter referred to as the 'Trading Co.' for the supply of steel pipes, the particulars of which are mentioned in the supply order Ex. P/ 1. The specifications of the material to be supplied are very relevant and the same may he quoted from supply order Ex. P/1 : Item No. Description of Stores Quantity Rate Amount 12 Hot finished seamless grooved victaulic pipe (M. S.) to BSS 806 B. in random length of 4 to 7 met, .size 2" 1800 Feet 5.95 P. Ft Rs. 10,710 Note : Security money @ 5% the value of the order may be deposited immediately with the paying officer as per address shown against clause 10 of this order. 2. 10,710 Note : Security money @ 5% the value of the order may be deposited immediately with the paying officer as per address shown against clause 10 of this order. 2. Victaulic grooves and wall thickness on the pipe against item No. 12 should be strictly as per our enclosed drawing." The copy of the supply order was sent to the Directorate of Inspection Calcutta alongwith a copy of the drawing of the victaulic grooves mentioned in Ex. P/1 for effecting early inspection of the material in consultation with the supplier. The goods to be supplied were thus to be inspected by the Directorate of Inspection before supplying to the Copper Project. The accused S. C. Karmakar, who was Assistant Inspecting Officer in the Directorate of Inspection was nominated for purposes of inspecting this particular supply to be made to the Copper Project. It was his duty to inspect the goods and ensure that the same were in conformity with the specifications laid down in the supply order Ex. P/1. 3. The accused Anandilal is the proprietor of Trading Company, while the third accused Sisirkumar is an employee of this firm. The case of the prosecution is that the three accused entered into a criminal conspiracy to cheat the Copper Project by supplying pipes not of specifications quoted in the supply order, by misrepresenting and by issuing a false certificates declaring the pipes to be supplied to be in accordance with specifications given in Ex.P/l. The accused S.C. Karmakar issued a certificate on 29-11-1969 certifying that 86 pipes were seamless grooved vactaulic, imported in accordance with the specifications. A reference may be made to the certificate Ex. P/13 dated 29-11-1969 said to have been issued by accused Karmakar. This gives the details of the length of the 86 pipes inspected by him and the total length comes to 17" and 9". In this certificate Ex. P/13 the description of stores has been mentioned as Hot finished seamless grooved victaulic pipe (m. s.) to BSS 806 B, in random length Imported of size 2". There were 86 pipes and after inspection all pipes were stamped with a seal of Directorate of Inspection. The sample seal was affixed on the certificate also. 4. The goods were dispatched by the Trading Company vide RR No. 178849 dated 30-11-1969. There were 86 pipes and after inspection all pipes were stamped with a seal of Directorate of Inspection. The sample seal was affixed on the certificate also. 4. The goods were dispatched by the Trading Company vide RR No. 178849 dated 30-11-1969. The R. R. and necessary papers were sent through Bank and on collecting the same the Copper Project paid 95 cent of the value of the bill and the Bank paid the same to the supplier. 5. The consignment was received by the Copper Project and inspection of the same was conducted on 2-1-1970 by a committee. The pipe, were checked and tested and it was found that the pipes were not seamless, therefore the supply was rejected. A piece of 6" length was cut from a pipe for testing purposes. An intimation was sent to the supplier about the rejection of the goods on account of non-conformity with the specifications given in the supply order. This letter is Ex. D/1 dated 3rd Feb. 1970. In this it has been mentioned that the pipes were not seamless and further that out of the 86 pipes 34 pipes were found duly stamped by the Directorate of Inspection which included one pipe welded from the middle and remaining pipes were without stamps of the Directorate of Inspection. It was written in this letter that the 95 per cent payment drawn by the firm should be returned immediately. Upon this the Trading Company sent the letter Ex. P/47 dated 9-2-1970 enclosing a draft for Rs. 10,181,35 which they had obtained towards the 95% of the price of the rejected goods. Further correspondence took place between the Trading Company and the Copper Project wherein the Trading company wanted delivery of the rejected goods and also made a request that time for supply of specified goods be extended and if the same could not be extended then the order be cancelled. 6. The case of the prosecution is that the accused Karmakar gave a false certificate declaring the pipes to be of desired specification and further gave a false certificate that the goods in question were purchased by the supplier from Jarrow Tube Works Ltd. Durham (England). Actually these pipes were purchased from M/s Bharat and Co. by the supplier and that they were ERW pipes and not seamless as represented by the accused. Actually these pipes were purchased from M/s Bharat and Co. by the supplier and that they were ERW pipes and not seamless as represented by the accused. The accused Anandilal supplied these pips to the Copper Project falsely declaring them to be in the conformity with the specifications mentioned in the supply order and on the bass of this he obtained a sum of Rs. 10. 181.25 from the Copper Project as 95 per cent of the cost of the good. All this was done in order to obtain the pecuniary advantage to the concerned accused. 7. Accused Karmakar was a public servant being in the employment of the Government of India and he by corrupt or illegal means or otherwise abused the official position in order to cause a pecuniary advantage to the Trading Company. Sanction as required by law for his prosecution was obtained. The accused were examined under the provisions of section 251A of the Cr. P.C. 1898 and were charged for the various offences covering section 120B IPC read with section 420 IPC, section 5(2) and 5 (I)(d) of the Prevention of Corruption Act and section 109 IPC. Charge was framed and accused pleaded not guilty. The prosecution examined as many as 28 witnesses and the accused were examined and they all denied the story of conspiracy to cheat the Copper Project. In his statement accused Karmakar stated that it was his duty to examine the goods and this he did and issued the certificate that the goods tallied with the supply order. He did this and stamped the pipes with his seal with aluminium paint on all the pipes and left them with the patty. It was not his duty to check whether the party dispatched the same goods or not. He also stated that rubber stamp used by firm could easily be forged According to. him the goods supplied by the party were not the same which had been shown to him for inspection and that they did not bear the aluminium paint seals affixed by him. 8. The accused Sisirkumar was a typist in the company and his case is that he used to type papers sent to him in the course of his duties as a typist cum clerk. He never saw the goods which were dispatched and had no knowledge about the inspection of the goods. 8. The accused Sisirkumar was a typist in the company and his case is that he used to type papers sent to him in the course of his duties as a typist cum clerk. He never saw the goods which were dispatched and had no knowledge about the inspection of the goods. He only typed the certificate as had been given to him. He also stated that, he had enmity with K. L. Rao who wanted him to depose against some one, but he did not oblige him and so this case was made out against him. 9. Accused Anandilal in his examination stated that he had dispatched the pipes according to the specifications, having the stamp of the Directorate of Inspection on all the pipes. These pipes in question had not been purchased from Bharat and Company because those pipes were screwed and socketed and were not victaulic pipes. He said that the inspection of the pipes by the Copper Project was not made in his presence or in the presence of his representatives, so he could not say which pipes were checked. According to him he supplied pipes with the seal of the Directorate of Inspection. The rejected pipes were not shown to him. According to him he had supplied pipes only and not couplings. When the inspection by PW 21 S. C. Malhotra was made there were pipes as well as couplings and this could be some other material not supplied by him. However, when the goods were rejected he immediately returned the money by demand draft and tile same was collected by the Copper Project. He had also stated that CBI was keen to launch prosecution against him because investigation against one N.C. Nari was pending and this accused was asked to be a witness against him, but he refused to oblige. 10. During investigation the SP (Spl.) requested for the inspection of the goods which were the subject matter of the case and this inspection was made at Khetri on 6.7 1970 by S. C. Malhotra (PW 21) Inspecting Officer, Office of the Directorate of Inspection and Shri K. L. Rao (PW. 28) Inspector Police. Special Establishment Police, Jaipar. K. S. K. Rao, Assistant Engineer (Mechanical) Khetri Copper Project, Khetri. & Shri R. Verma, Assistant Inspection Officer, Central Stores, Khetri Copper Project Khetri. The report submitted by them is Ex. P/80. 28) Inspector Police. Special Establishment Police, Jaipar. K. S. K. Rao, Assistant Engineer (Mechanical) Khetri Copper Project, Khetri. & Shri R. Verma, Assistant Inspection Officer, Central Stores, Khetri Copper Project Khetri. The report submitted by them is Ex. P/80. It was found that the pipes were having a seam of weld at the inside surface and the pipes were more like ERE pipes. Ole pipe was cut into 4 pieces. The smaller pieces were cut into lengths of 1⅜" and 11/4". One such piece flattened keeping the seam at 180 degree and it was observed that it opened out at the welded place. One piece hiving seam was given bend over the seam portion and it was observed that it gave way at the welded portion. The conclusion was that the pipes in question were-not finished seamless and there was nothing to show that their origin was of ITC or imported. These pipes were found to be ERW pipes. 11. The learned Special Judge framed three points which the prosecution and to prove in order to show that the accused were guilty. These points are as order : 1. that the accused Anandilal cheated the Khetri Copper Project of a sum of Rs. 10,181.35; 2. that he had done so in pursuance of criminal conspiracy entered into with his co-accused Sisir Kumar and S. C. Karmakar; and 3. that S. C. Karmakar, being a public servant had by corrupt or illegal means or by abuse` of his official position as such public servant obtained a pecuniary advantage of Rs. 10,181.35 for his co- accused Anandilal. 12. The learned Special Judge arrived at the following findings: From the evidence it was' held to be proved that the Copper Project invited tender; for the supply of pipes of particular specifications and order for the supply of the same was placed with the firm of which accused Anandilal was the proprietor. This accused supplied the goods after getting the same inspected by accused S. C. Karmakar who issued it certificate to the effect that the goods were in accordance with the specification and he also endorsed on Ex. P/28 that he had verified it with the original test certificate. This Ex. This accused supplied the goods after getting the same inspected by accused S. C. Karmakar who issued it certificate to the effect that the goods were in accordance with the specification and he also endorsed on Ex. P/28 that he had verified it with the original test certificate. This Ex. P/28 is a copy of the test certificate issued by Jarrow Tube Works Ltd. It was held that the papers of the supply made by the accused Ananditlal were remitted to the Copper Project through Bank and a sum of Rs. 10 181.35/- being 95 per cent of the price of the goods was sent by draft and this draft was collected by the firm of Anandilal. Thereafter it was also held to be proved that after rejection of the goods by the Copper Project, the amount collected by Anandilal was refunded on 9.2.1970. The despatch of the goods was made through Railway and according to the marks of the goods the pipes which had been booked were the same which had been delivered at Khetri. 13. The learned Special Judge referred to the inspection certificate Ex. P/ 13, issued by accused Karmakar and the measurement sheet Ex. P/11 sent along with it. The inspection at Khetri was conducted by R. S. Verma PW. 22 on 19.1.1970 and his report is Ex. P/5. While rejecting the supply the remark, made by the Inspecting Officer are that the pipes have been checked and tested and it has been found that the pipes are not seamless. One piece was cut for testing purposes. There is no further mention in this inspection note as to whether the pipes confirmed with the other specifications mentioned in the supply order or not. 14. The learned Special Judge held that on the basis of statement of P. W. 17 K. Thanzauva that the Trading Company did not possess any licence for the purpose of importing material from foreign countries and that on inspection of the premises of the Trading Company foreign made pipes were not available. Besides this P. W. 18 Tara Singh said that this company had not purchased any tubes from the Indian Tube Company. In view of this evidence it was held that the burden shifted upon the accused to show from where he had obtained the pipes which had been supplied to the Copper Project. Besides this P. W. 18 Tara Singh said that this company had not purchased any tubes from the Indian Tube Company. In view of this evidence it was held that the burden shifted upon the accused to show from where he had obtained the pipes which had been supplied to the Copper Project. Referring to the statement of P. W. 15 Surya Kumar Mukerjee it was held that one Bharat and Company had sold the pipes in question to Western Trading Company of Anandilal and as soon as these pipes were delivered to Anandilal on 7-11-1969 he informed the Copper Project on the very next day that the goods were available with him for making supply. However, it was held that these pipes sold by Bharat and Company were not victaulic grooved pipes but they were screwed and socketed pipe. The learned Special Judge further held that the false representation of Anandilal that the goods ,supplied by him were in accordance with the supply order Ex. P/1 amounted to dishonest and fraudulent intention as defined under section 24 and 25 of the IPC and on the basis of this dishonest and fraudulent intention he obtained a sum of Rs. 10,181.35/- and this amounted to cheating It was further observed that the circumstances could give rise to a civil liability also but that would not take the case out of the criminal arena and that the act of cheating could not be undone by subsequent refund of the amount which was the subject matter of cheating. Discussing the circumstances it was held that this was not a case where the pipes were not of specified particulars because of despatch by mistake. It was observed that goods other than those despatched by Anandilal were not available with him. Hence accused Karmakar could not have inspected any other goods at the instance of Anandilal. Verification made by Karmakar on Ex. P/28 that it had been verified from the original test certificate was also found to be a false representation as original of this certificate was not in existence. This certificate was said to have been forged with a view to support the theory that the goods which had been inspected by Karmakar were of imported quality. Considering all the circumstances it was held that this could not be a case of mistake. 15. This certificate was said to have been forged with a view to support the theory that the goods which had been inspected by Karmakar were of imported quality. Considering all the circumstances it was held that this could not be a case of mistake. 15. Referring the case against accused Sisirkumar, reference was made to the documents Ex P/7 to P/11, P/13 to P/37, P/39, P/40, P/42 to P/46, which are letters and hills signed by this accused on behalf of Trading Company and in the same it has been represented that the goods were in accordance with the specifications mentioned in the supply order. He was held guilty for making this representation which was false. 16. In the three appeals which have been preferred by the three accused against their conviction and sentence the main question which has been canvassed is that the rejection of the goods as not in accordance with the specifications makes the accused Anandilal liable under the terms of the contract and does not give rise to any criminal liability. For Sisirkumar it was contended that he was merely a clerk in the Western Trading Company, who typed the letters as per directions and could not be said to have been involved in any criminal conspiracy. The main contention on behalf of the accused Karmakar is that this accused inspected pipes and affixed his special seal of aluminium on each pipe and the details of the length of each pipe were mentioned by him. He had no opportunity to see whether the same goods were despatched to Copper Project. The certificate Ex. P/28 is said to be unconnected with the supply because this refers to pipe, which had plain ends while the pipes to be supplied against the supply order Ex. P/11 had to be grooved victaulic (MS) pipes. According to him the pipes at the time of inspection at the Copper Project were not measured so as to confirm that the length; were the same as mentioned in Ex. P/11 which was prepared by accused Karmakar. In this respect attention is invited to Ex. P/11 had to be grooved victaulic (MS) pipes. According to him the pipes at the time of inspection at the Copper Project were not measured so as to confirm that the length; were the same as mentioned in Ex. P/11 which was prepared by accused Karmakar. In this respect attention is invited to Ex. D/1 which was the rejection letter written by the Copper Project to Western Trading Company and in which it has been mentioned that out of 86 pipes 34 pipes were hound duly stamped by the Directorate of Inspection out of which one pipe was welded while 52 pipes were without any stamps of the Directorate of Inspection. It has also been said on behalf of accused Karmakar that Anandilal himself admitted his mistake in Ex. P/54 about wrong despatch and hence merely on the basis that pipes were not seamless, dishonest intention on behalf of Karmakar could not be inferred. It is also contended that forged seals could also be affixed of the pipes and unless it was established that the seals were the same which were affixed by Karmakar and the pipes were the same which he had inspected, any could not be brought home against him. It has also been contended that the supply order speaks of seamless, grooved victaulic pipes and says nothing about couplings, but what PW 21 S. C. Malhotra inspected at the time of inspection during investigation was pipes as well as couplings, therefore this lot could not have been the same which accused Karmakar had inspected in connection with the supply order Ex. P/11. 17. The learned counsel for the CBI his contended that direct evidence of conspiracy is not easily available and this could be inferred only from the circumstances of the case. It is stated that the goads which had been inspected by Karmakar were the goods which had been despatched by Anandilal as Anandilal himself' admitted this fact in his statement, so Karmakar issued a false certificate Ex. P/28. The pipes had not been purchased from Jarrow Tubes Works and were not imported. Actually they were pipes purchased from Bharat and Company. According to him merely because money had been repaid, criminal liability of the accused would not come to an end. 18. I have heard the learned counsel for the parties at length and examined the record in detail. Actually they were pipes purchased from Bharat and Company. According to him merely because money had been repaid, criminal liability of the accused would not come to an end. 18. I have heard the learned counsel for the parties at length and examined the record in detail. It can be said that as far as facts of the case go there is no dispute that there was an order for supply of the goods of certain specifications. Terms and conditions of the supply were included in the supply order Ex. P/1 itself. One of the conditions was that 95 per cent payment against documents through Bank was agreed subject to the condition that the supplier would undertake to replace the material which on receipt is rejected on inspection or to refund the value of the material within a period of one month from the date on which rejection is communicated. The inspection of goods by the Directorate of Inspection was to be made in accordance with the business rules of the Government Undertakings but this inspection was not the last inspection because the ultimate inspection was to be made by the Copper Project itself which had placed the order for the supply of goods. It is not in dispute that 95 per cent of the payment had been made to Western Trading Company and it is also not in dispute that after the rejection of the goods this amount was refunded by the firm. In fact request for refund of the rejected material was made again and again but the same was not handed over to the firm. After rejecting the goods the Copper Project directed the supplier to first send the material according to the specifications and to replace the goods sent earlier. Time for replacing the goods was also extended. 19. As per the statement of PW 22 R. S. Verma, PW 23 D. R. Bhagwat and PW 24 Omnath Dewan, it is not uncommon that goods approved by the Directorate of Inspection are rejected when inspected by the staff of the Khetri Copper Project. 20. At this stage I may refer to the specifications of the desired pipes as mentioned in the supply order and other inspection reports. 20. At this stage I may refer to the specifications of the desired pipes as mentioned in the supply order and other inspection reports. The pipes had to be Hot finished seamless grooved victaulic pipe (M. S) to BSS 806 B, in random length of 4 to 7 met, tested to 350 1bs/in I. T. C. 1/4 imported size 2". The lengths of the pipes had to be 4 to 7 metres. Victaulic grooves had to be in accordance with the drawing enclosed with the supply order (does not appear to be on the record of the case). The same description has been mentioned in the subject matter of correspondence, in the bills, in the inspection made by the Directorate of Inspection except that they were shown to be imported, meaning thereby that they were not I. T. C. The pipes which M/s Bharat and Company supplied to Western Trading Company were M. S. black pipes screwed and socketed class B (Medium) ITC makes. Bharat and Company had purchased these pipes from Shivmoni and Company. Shivmoni and Company had also described the pipes as M. S. Black Pipes, screwed and socketed class 'B' (Medium) I. T. C. make. Thus what Bharat & Company supplied to Western Trading Company were screwed and socketed M. S. Black pipes. Copy of the Test Certificate (Ex. P/28) verified with original by accused Karmkar described the goods as . Hot finished seamless steel tubes, Specification BSS 806 Class 'B' Plain at ends in standard length." When the pipes were inspected by Shri R. S. Verma (PW. 22) at the Copper Project he merely wrote that the pipes were not seamless and the supply was rejected. There is no mention whether they were grooved victaulic pipes or they were screwed and socketed pipes. When the material was inspected by S. C. Malhotra P. W. 21, in the presence of representatives the material inspected by him has been referred to as pipes and couplings. It has been mentioned that on visual inspection they were found to be having a seam of weld at the inside surface of the bore like that of ERW pipes. The Pipe was cut into 4 pieces. The smaller pieces were cut into the lengths of 1⅜" and 11/4" and a 1⅜" long piece was flattened keeping the seam at 180 degree and observed that it opened out at the welded place. The Pipe was cut into 4 pieces. The smaller pieces were cut into the lengths of 1⅜" and 11/4" and a 1⅜" long piece was flattened keeping the seam at 180 degree and observed that it opened out at the welded place. Reference to Ex. P/1 may be made again wherein it has been emphasised that the victaulic grooves, and wall thickness of the pipe had to be strictly according to the enclosed drawing. Thus it can be said that the victaulic grooves had some special significance and they could not be easily confused with pipes of plain ends or pipes which were screwed and socketed or with pipes which had couplings. At every stage of inspection there is no mention whether the pipes were victaultc grooved pipes or not. The only emphasis is on the 1'a..t that the same were not seamless. 21. It may also be mentioned here that the lengths of pipes were never measured and had this been done it would have been possible to find out whether the pipes which were received were the same which had been done by accused Karmakar as entered in Ex. P/11 which was submitted along with his inspection note Ex. P/13. In order to arrive at the conclusion that the tubes supplied by Anandilal were the tubes which he had purchased from M/s Bharat and Company then it ought to have been shown that these pipes so supplied were screwed and socketed pipes, as the pipes supplied by Bharat and Company were of this description. It is unfortunate that emphasis has been laid on whether the pipes were seamless or not and no reference has been made to the nature of the pipes at the ends. For finding whether the pipes are seamless or not, one has to conduct some tests. For finding out the types of the pipes. a mere look would have ben sufficient but nothing has been said about it. Without connecting evidence that the pipes in question despatched by Anandilal were screwed and socketed pipes it cannot he accepted that the pipes described by Anandilal were the one which were purchased from Bharat and Company. 22. Ex. P/45 is a letter written by Anandilal saying that he sincerely regret the inconvenience caused due to inadvertance wrong supply of pipes. Without connecting evidence that the pipes in question despatched by Anandilal were screwed and socketed pipes it cannot he accepted that the pipes described by Anandilal were the one which were purchased from Bharat and Company. 22. Ex. P/45 is a letter written by Anandilal saying that he sincerely regret the inconvenience caused due to inadvertance wrong supply of pipes. Because of this admission about wrong supply the learned Special Judge has inferred that wrong supply had been made to cheat by false representation. A detailed look at Ex.P/45 would go to show that this letter has not been written to Copper Project but to Bharat Heavy Electricals and cannot be connected with the consignment in the present case. Moreover if a person says that a certain act has been done by mistake it would not automatically raise a presumption about dishonesty. It is still necessary for the prosecution to show dishonest intention of the person. Merely because the goods are rejected as not in accordance with the specifications it would not lead to the inference that offence of cheating had been committed. It can be said that the line between civil liability and criminal liability is thin and it is difficult to find out where the area of criminal liability begins but in order to make a person liable for an offences it is necessary that the ingredients of should be proved. It is not enough for the prosecution to prove that the goods supplied by a party were not in accordance with the specifications provided in the supply order but it has to be shown that this was done fraudulently or dishonestly, to deceive the buyer. In cases of supply by firms an inspection to be made by the buyer is the normal practice and the goods could be rejected if not found according to the specifications. It would have been a different matter if the inspection to be made by the Directorate of Inspection was the last inspection before the acceptance of goods by the firm which had placed the order. The inspection by Karmakar was merely a test check which did not amount to approval of the goods. He by his certificate could not have prevented the buyer from rejecting he goods. 23. The inspection by Karmakar was merely a test check which did not amount to approval of the goods. He by his certificate could not have prevented the buyer from rejecting he goods. 23. It may also be said that for purposes of fastening liability on Karmakar it should have been shown that the pipes despatched to Copper Project were the same which had been inspected by Karmakar and this could have been done first by measuring the lengths of the pipes and comparing them with Ex. P/11 and thereafter by examining seals affixed by him and also by examining whether seals were genuine or not. So far it has come in evidence that 34 pipes out of 86 pipes bore seals of Directorate of Inspection but no one has said that a pipe bearing such a seal was put to test for purposes of finding out whether it was seamless or not. The prosecution cannot base its case on mere probability when it has to prove the guilt of the accused beyond reasonable doubt. It can be said that accused Karmakar was not required to examine the papers of Anandilal in order to find out whether he had an import licence or not or whether he had purchased some imported goods from some other firm in India. All that he was required to do was to test the pipes which were put up for inspection before him. After issuing a certificate it was not his job to see that the same pipes had been despatched For connecting his certificate to the pipes in question it was necessary to show that the very pipes which had been examined by him were despatched and that the same were tested subsequently and found to be not in accordance with the required specifications. If Anandilal made a mistake in despatching the correct goods how could Karmakar be made answerable for the same. 24. Similarly for accused Sisir Kumar the only evidence to connect him with the crime is that he was a typist with Western Trading Company and in the letter sent by him he had typed that the goods despatched were according to specifications. This act of his can by no stretch of imagination lead to the inference that he had entered into criminal conspiracy with Anandilal and Kairmakar to cheat Copper Project. This act of his can by no stretch of imagination lead to the inference that he had entered into criminal conspiracy with Anandilal and Kairmakar to cheat Copper Project. He is not the person who despatched the pipes inspected by Karmakar, and is not a person having technical knowledge of the nature of the pipes. Trying and issuing letters according to directions will not make him guilty of any criminal . As far as the facts go to show it can be said that there is not even suspicion against accused Sisirkumar what to say of proof beyond reasonable doubt. 25. The learned counsel for the appellants have relied upon a number of decisions in order to show what evidence is required in cases of criminal conspiracy. In D. B. Naik etc. v. State of Maharashtra 1982 Cr. L. J. 856 it has been stated that in case of criminal conspiracy direct evidence other than that furnished by an approver is not generally avail able and the case has to be relied upon circumstantial evidence. But the prosecution has to prove and establish such circumstantial as would ne said to the only conclusion of existence of a triminal conspiracy. It was further held that the prosecution has to prove every ingredient of the in question beyond a shadow of reasonable doubt. This burden includes the burden of proving the mental state of the accused wherever intention or knowledge forms one of the ingredients of the . In this case the contractor supplied wooden planks of inferior quality but he was paid treating it as teak wood, and this caused wrongful loss to the Zila Parishad. It was held that non-compliance of the rules relating to measurement of the work and sample checking of the wooden planks and non-compliance with the rules and consequent preparation of the bills could be intentional amounting to deliberate deceit and dishonest inducement, but when the accused pleaded that the act was never intended but it was at the most negligent and irregular, the burden remained on the prosecution to prove that the act was intentional. 26. K. Periasami v. Rajendran and another 1985 Cr. L. J. 1721 is a case wherein the transport company failed to provide a bus to the complainant as per the term; of agreement. 26. K. Periasami v. Rajendran and another 1985 Cr. L. J. 1721 is a case wherein the transport company failed to provide a bus to the complainant as per the term; of agreement. Follwing observations were made by the Madras High Court : "The distinction between mere breach of contract and the of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct, but for which the subsequent conduct is not the sole criterion. Mere breach of contract cannot give rise to a criminal prosecution. Mere breach of contract is not an offence. There should he a fraudulent or dishonest intention necessary to constitute an offence under S. 420 IPC. Where there is no clear and conducive evidence of the criminal intention of the accused at the time when the is said to have been committed and where the party said to he aggrieved has an alternative remedy in the Civil Court, the matter should not be allowed to be fought in the Criminal Court." 27. In Bheru Singh v. State of Rajasthan 1985 (2) Crimes 394 criminal prosecution was launched in respect of a case of breach of contract to sell house. The accused had received earnest money but lateron the agreement was rescinded for one reason or the other. There was no false representation to the complainant to enter into the agreement and there was no dishonest intention of the accused at the time of receiving the earnest money. The complainant was not deprived of the money wrongfully or with any ulterior motive. It was held that it was a case of breach of contract and no under section 420 IPC was made out. For proving under section 420 IPC there has to be inducement made by a party to part with money and this dishonest intention of the accused has to be at the time the other party parted with the money. 28. In Ram Niwas v. Zafar Abbas 1978 Cr. L. J. 706 it has been observed that the distinction between mere breach of contract and the of cheating is a fine one. It depends upon the intention of the accused at the time of inducement, which may be judged by his subsequent conduct, but for which the subsequent conduct is not the sole criterion. L. J. 706 it has been observed that the distinction between mere breach of contract and the of cheating is a fine one. It depends upon the intention of the accused at the time of inducement, which may be judged by his subsequent conduct, but for which the subsequent conduct is not the sole criterion. Mere breach of contract cannot give rise to a criminal prosecution. 29. In State of Kerala v. A Pareed Pillai & anr. AIR 1973 SC 326 it has been held that to hold a person guilty of the of cheating it has to be shown that his intention was dishonest at the time of making the promise. The fact that he could not subsequently fulfill the promise would not lead to the inference that he had dishonest intention. 30. The cases of the accused have been seen above. There is no case worth the name against appellant Sisirkumar. As far as Karmakar is concerned the link that the goods sent to the Copper Project were the same which he had inspected is missing. Moreover the circumstances necessary for drawing the inference that there was some dishonest intention on his part in inducing the Copper Project to part with money is also not shown. Merely because he certified some pipes to be of specifications according to supply order he would not be guilty of cheating on the sole ground that pipes were subsequently rejected by the buyer. Anandilal could have despatched some other goods and if that is so Karmakar would not be liable. There has to be something more between Karmakar and Anandilal for inferring that both of them had conspired and induced Copper Project to part with money. Evidence about it is clearly missing. 31. As far as accused Anandilal is concerned, he can be said to be able person who is responsible for the despatch of pipes which were not in accordance with the specifications furnished by the buyer. However this alone would normally be a breach of contract and not intention to commit unless there are further circumstances to show that he induced the Copper Project, fraudulently with dishonest intention to part with money. However this alone would normally be a breach of contract and not intention to commit unless there are further circumstances to show that he induced the Copper Project, fraudulently with dishonest intention to part with money. The terms of the supply order provided that 95 per cent payment for supply of goods shall be made against documents sent through Bank but this shall be subject to the condition that if on inspection the goods are rejected then within a period of one month of the communication about the rejection of the goods the supplier shall have to refund the amount. Anandilal obtained payment from Copper Project but he very well knew that he would have to refund the amount in case the goods supplied by him were rejected. Had it been shown that there was something by which he had induced the Copper Project to retain the goods supplied by him, even though they were not according to the specifications, then the matter would have been different. Obtaining payment for the goods supplied was in accordance with the terms of the contract and as soon as Anandilal was informed about the rejection of the goods he remitted the amount immediately. His subsequent conduct also goes to show that there was no dishonest intention on his part at the time of obtaining payment from the Copper Project. The circumstances which can be said to be necessary for leading to the inference that there was dishonest intention on his part and for this reason he had conspired with Karmakar in certifying specifications have not been placed on record by the prosecution. This may be a case simply of breach of contract or also a case of cheating but for making it a case of cheating the prosecution has to show the mental state of accused Anandilal by circumstances to make it a case of inducement by dishonest intention. In the facts and circumstances of the present case this has not been made out. 32. I have considered the matter at length and am of the opinion that the ingredient; necessary for the proof of offences with which the accused persons have been charged have not been proved by the prosecution. The appeals are accepted. The conviction and sentences of the three accused are set aside.Appeals Appeared. *******