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2019 DIGILAW 569 (ORI)

Balaram Bag v. State of Odisha (VIG)

2019-09-11

S.K.SAHOO

body2019
JUDGMENT : S.K. Sahoo, J. The appellants Dr. Balaram Bag (CRLA No. 101 of 2012) and Gudla Uma Maheswar Rao (CRLA No. 125 of 2012) along with one Bhajaram Swain faced trial in the Court of learned Special Judge (Vigilance), Jeypore in G.R. Case No.20 of 1993(V)/ T.R. No. 77 of 2007 for offences punishable under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 (hereafter 1988 Act ) and section 477-A read with section 34 of the Indian Penal Code on the accusation that the appellant Dr. Balaram Bag being a public servant employed as Block Development Officer (hereafter B.D.O. ), Nandahandi Block in connivance with the other two co-accused persons, by corrupt or illegal means or by otherwise abusing his position as public servant, obtained pecuniary advantage to the extent of Rs.4,72,878.67 paisa from 21.11.1991 to 01.06.1992 and also with further accusation that the appellant Dr. Balaram Bag in connivance with the co-accused persons in furtherance of their common intention being an officer (B.D.O.) under Government of Odisha willfully and with intent to defraud, altered certain papers and manipulated the official documents by accepting higher rate of tenders showing undue official favour to the co-accused persons. The learned trial Court vide impugned judgment and order dated 10.02.2012 though acquitted the co-accused Bhajaram Swain of all the charges but found the appellants guilty of the offences charged and sentenced each of them to undergo rigorous imprisonment for three years and to pay a fine of Rs.50,000/- each, in default, to undergo further rigorous imprisonment for six months for the offence under section 13(2) read with section 13(1)(d) of the 1988 Act and to undergo rigorous imprisonment for three years and to pay a fine of Rs.50,000/- each, in default, to undergo further rigorous imprisonment for six months for the offence under section 477-A read with section 34 of the Indian Penal Code and both the substantive sentences of imprisonment were directed to run concurrently. 2. The factual matrix of the prosecution case, in short, as per the first information report dated 03.09.1993 lodged by Sri Debadutta Pattnaik (P.W.18), Inspector of Police, Vigilance, Nawarangpur before the Superintendent of Police, Vigilance, Berhampur Division, Berhampur, is that the appellant Balaram Bag, OAS was posted as B.D.O., Nandahandi from 20.09.1991 to 24.07.1992. During his incumbency as B.D.O., he purchased 12,657.70 Kgs. of purlins/rafters @ Rs.23.50 paisa per kg. During his incumbency as B.D.O., he purchased 12,657.70 Kgs. of purlins/rafters @ Rs.23.50 paisa per kg. in bill Nos.326,327,328 and 329 all dated 12.05.1992, bill nos.332 and 333 both dated 20.05.1992 and bill no.106 dated 24.03.1992 from M/s. Maa Bhagabati Engineering Works, Jhaliguda, an unregistered firm without calling for quotation against the E.P.M. rate of Rs.12.99 paisa per kg. during that period. The cost of 12,675.70 kg. of purlins/rafters at the approved rate of Rs.12.99 paisa per kg. including the transportation cost of Rs.405/- from Jhaliguda to Nandahandi comes to Rs.1,64,828.52 paisa but appellant Balaram Bag paid Rs.2,97,456.00 paisa thus making excess payment of Rs.1,32,627.48 paisa to the firm abusing his official position as B.D.O. by showing undue official favour to the firm. It is further alleged in the F.I.R. that appellant Balaram Bag purchased 651 nos. of Asbestos cement sheets (hereafter AC sheet ) and 210 pairs of ridges worth of Rs.2,31,192/- against bill no.636 dated 22.11.1991, bill no.639 dated 22.11.1991 and bill no.648 dated 27.11.1991 of M/s. Hyderabad Industries, Visakhapatnam without calling for quotations. Though he purchased the AC sheets in the consumer price directly from the company, he endorsed the copy of purchase order to M/s. Parbati Traders, Jeypore in Memo No.2133 dated 26.11.1991 which enabled the firm M/s. Parbati Traders, Jeypore to derive pecuniary advantage of Rs.25,231.05 paisa by way of commission. He stated to have abused his official position as B.D.O. in showing undue official favour to the firm in obtaining pecuniary advantage of Rs.25,231.05 paisa. It is further alleged in the F.I.R. that the appellant Balaram Bag had shown purchase 2000 nos. of GCI sheets of 10 x 24 gauge in bill no.32 dated 01.06.1992 for Rs.7,65,440/- from M/s. Sai Laxmi Enterprises, Jeypore without calling for quotation against the requirement of only 21 nos. of GCI sheets. During physical verification of the GCI sheets, it was found that the GCI sheets were of 10 x 28 gauge quality and not of 10 x 24 gauge quality as shown to have been received by the appellant Balaram Bag. The weight of each sheet came to 8.556 kg against 14.54 kg. The total weight of 2000 nos. of GCI sheets of 10 x 24 gauge should have been 29,080 kgs. whereas the total weight 10 x 28 gauge came to only 17,112 kgs. which was lesser by 11,968 kg. The proportionate cost of 11968 kg. The weight of each sheet came to 8.556 kg against 14.54 kg. The total weight of 2000 nos. of GCI sheets of 10 x 24 gauge should have been 29,080 kgs. whereas the total weight 10 x 28 gauge came to only 17,112 kgs. which was lesser by 11,968 kg. The proportionate cost of 11968 kg. of GCI sheets as per the rate accepted by the appellant Balaram Bag came to Rs.3,15,020.14 paisa which has been paid in excess to the firm. The appellant Balaram Bag thus stated to have abused his official position in showing undue official favour to the firm in obtaining pecuniary advantage of Rs.3,15,020.14 paisa which was an equivalent loss to the Government. It is further alleged in the F.I.R. that the appellant Balaram Bag being a public servant committed criminal misconduct in abusing his official position by showing undue official favour to the firms i.e. M/s. Maa Bhagabati Engineering Works, Jhaliguda in obtaining pecuniary advantage of Rs.1,32,627.48 paisa in purchase of 12,657.70 kgs. of purlins/rafters; to M/s. Parbati Traders, Jeypore in obtaining pecuniary advantage of Rs.25,231.05 paisa in purchase of 651 nos. of AC sheets and to M/s. Sai Laxmi Enterprisers, Jeypore in obtaining pecuniary advantage of Rs.3,15,020.14 paisa in purchase of 2000 nos. of GCI Sheets. 3. On the basis of such F.I.R., Berhampur Vigilance P.S. Case No.20 of 1993 was registered under section 13(2) read with section 13(1)(d)(ii) of the 1988 Act and section 477-A of the Indian Penal Code against the appellant Balaram Bag. P.W.18 was directed by the Superintendent of Police, Vigilance to take up investigation of the case and accordingly, P.W.18 carried out investigation from 03.09.1993 till 06.11.1993 whereafter he handed over the charge of investigation to P.W.20 Ramahari Mohapatra. During course of investigation, it came to light that the appellant Gudla Uma Maheswar Rao, Proprietor of M/s. Sai Laxmi Enterprises and co-accused Bhajaram Swain, Proprietor of M/s. Maa Bhagabati Engineering Works, were the beneficiaries of the illegal acts committed by the appellant Balaram Bag and accordingly charge-sheet was submitted against the appellants along with co-accused Bhajaram Swain under section 13(2) read with section 13(1)(d)(ii) of the 1988 Act and sections 477-A/34 of the Indian Penal Code. 4. The defence plea of the appellants was one of complete denial. 4. The defence plea of the appellants was one of complete denial. The appellant Balaram Bag took a specific plea that he had acted in good faith on the basis of previous quotation and that the joint verification conducted at the instance of the Vigilance Department is completely erroneous. The other appellant Gudla Uma Maheswar Rao and the co-accused Bhajaram Swain took the plea that they had supplied the materials on the basis of orders placed with their firms and that they have no role to play in the alleged occurrence. 5. In order to prove its case, the prosecution examined twenty witnesses. P.W.1 S. Vaskar Rao is the proprietor of Jeypore Small Scale Industries engaged in the manufacture of purlins/ rafters, anglers, chairs, tables, almirahs etc. He stated that the appellant Balaram Bag did not call for any quotation from his firm in the year 1992 and that he had supplied some materials to Orissa Cooperative Marketing Federation, Nabarangpur. He did not state anything relating to the occurrence except that the price of articles varies from time to time. P.W.2 Anjangi Bhupati was working as R.I. at Khatiguda under Baziguda Circle and he stated in the year 1993, the Vigilance Inspector enquired from him regarding existence of the registered firms, namely, M/s. Maa Bhagabati Engineering Works, Nilima Engineering Works and Sanjibani Engineering Works at Khatiguda and that after verification, he had informed the Vigilance Inspector that no such registered firms existed in that Circle. P.W.3 Simanchal Mishra is a witness to the seizure of documents from Nandahandi Block Office under seizure list Exts. 1 and 2. P.W.4 V. Iswar Rao is the proprietor of Natraj Hardware Stores at Jeypore. He stated that there are different varieties of GCI sheets from 20 gauge to 28 gauge and in the year 1991, the price of 22 to 24 gauge GCI sheets per Kg. was Rs.23.30 paise, 26 gauge was Rs.27.50 paise per kg. and 28 gauge was Rs.28.50 paise per kg. and further stated that the approximate weight of 10 feet GCI sheet of 24 gauge would be around 15 to 16 Kgs. and in case of 26 gauge the approximate weight would be 12 Kgs. and in case of 28 gauge, it would be about 8 to 9 Kgs. and 28 gauge was Rs.28.50 paise per kg. and further stated that the approximate weight of 10 feet GCI sheet of 24 gauge would be around 15 to 16 Kgs. and in case of 26 gauge the approximate weight would be 12 Kgs. and in case of 28 gauge, it would be about 8 to 9 Kgs. P.W.5 G. Ganga Rao is a hardware shop owner of Jeypore dealing with AC and GCI sheets who did not support the prosecution case for which he was declared hostile by the prosecution. P.W.6 P. Ripumardhan Choudhury is a witness to the seizure of some papers from Jeypore Small Scale Industry vide seizure list Ext.4. P.W.7 P. Mohan Rao is a hardware store owner at Nabarangpur who used to supply goods on placement of orders by different Government agencies. He stated that he never supplied any GCI sheets or cement or any other hardware to Nandahandi Block office. P.W.8 Subudhi Mohanty stated that his wife and son were having a welding shop at Khatiguda and that purlins and rafters are prepared in their work shop only after receipt of orders from the Government agency. He further stated that one Nilima Engineering Works and Bhagabati Engineering Works were functioning for some time at Khatiguda but those were closed since last seven years and that those firms were not registered. P.W.9 Ramakrushna Panigrahi stated that one Swain had opened Bhagabati Engineering Works at Khatiguda which was closed since last eight to nine years back. P.W.10 Brundaban Panigrahi was examined in-chief in part but since his evidence could not be completed, the learned trial Court has not placed any reliance on such evidence. P.W.11 Narasingh Rath was working as cashier of Nandahandi Block during October 1993 to August 1996. He stated that prior to his joining, the appellant Balaram Bag was the B.D.O. of that block. He further stated that the B.D.O. has no power to divert the amount of one head to another head and by the time of his joining in the Block, some building materials were already purchased and stacked in the Block office. He further stated after verifying the cash book that there was no fund available under the development head of account for purchase of building materials during the period from 20.09.1991 to 24.07.1992. He further stated after verifying the cash book that there was no fund available under the development head of account for purchase of building materials during the period from 20.09.1991 to 24.07.1992. He further stated that from the cash book, he came to know that the appellant Balaram Bag had purchased the building materials by diverting funds from other heads. P.W.12 Labanya Sabar was the Additional C.T.O., Koraput Circle-I, Jeypore in the year 1994 and he stated that after verifying the official records, he informed the Vigilance Inspector that there was no Nilima Engineering Works or Sanjibani Engineering Works at Jhaliguda under Ward-B area of Nabarangpur. P.W.13 A. Sitaram Naidu is a witness to the seizure of the file No.XII-2/91 marked Ext.5 containing correspondence on quotation of development materials which was seized under seizure list marked Ext.1. P.W.14 Harihar Sadangi was the Senior Clerk, Nandahandi Block who stated about the seizure of joint verification report of Nandahandi Block vide seizure list Ext.1. He also stated about the seizure of the stock register of development materials vide seizure list Ext.6, seizure of posting order etc. of appellant Balaram Bag vide seizure list Ext.7, quotation file vide seizure list Ext.2. He further stated that without calling for any quotation, the appellant Balaram Bag gave orders to M/s. Maa Bhagabati Engineering Works, Jhaliguda to supply purlins and rafters for houses under IAY scheme and the appellant did not mention the comparative chart in the note sheets. P.W.15 Bishnu Prasad Patra is a seizure witness, who stated about the seizure of the xerox copy of credit bill and circular order of Jeypore Small Scale Industry under seizure list marked Ext.4. P.W.16 G. Chandrasekhar is a partner of Srinivas Stores, Jeypore who stated that he had submitted quotation to Nandahandi Block for supply of GCI sheets. P.W.17 Panchanan Kar proved the stock register of Nandahandi Block for the period 1991-92 marked as Ext.8. P.W.18 Debadutta Pattnaik is the informant in the case who also investigated the case and handed over the charge to P.W.20 on 06.11.1993. P.W.19 Sushil Kumar Mishra was the Junior Engineer, Mechanical who participated in the inquiry conducted by Vigilance Department at Nandahandi Block and took measurement of GCI sheets, rafters, purlins and AC sheets available in the Store and further stated about the preparation of the joint verification report vide Ext.10. P.W.19 Sushil Kumar Mishra was the Junior Engineer, Mechanical who participated in the inquiry conducted by Vigilance Department at Nandahandi Block and took measurement of GCI sheets, rafters, purlins and AC sheets available in the Store and further stated about the preparation of the joint verification report vide Ext.10. P.W.20 Ramahari Mohapatra was the Investigating Officer who after taking over charge of investigation from P.W.18 on 06.11.1993 submitted charge sheet against the appellants and the co-accused Bhajaram Swain. The prosecution exhibited thirty one documents. Exts.1, 2, 4, 6, 7, 11, 17, 19, 20 and 26 are the seizure lists, Ext.3 is the quotation, Ext.5 is the file containing correspondence and note sheet, Ext.8 is the stock register of Nandahandi Block, Ext.9 is the F.I.R., Ext.10 is the joint verification report, Exts.12 and 18 are the zimanama, Ext.13 is the bill of Maa Bhagavathi Engineering works, Ext.14 is the money receipt, Ext.15 is the bill of M/s. Sai Laxmi Enterprises, Ext.16 is the stock register, Ext.21 is the xerox copy of consumer price list of AC sheets, Ext.22 is the credit bill, Ext.23 is the xerox copy of circular order, Ext.24 is the posting order, Ext.25 is the joining report, Ext.27 is the extract of special audit report, Ext.28 is the file of Nandahandi Block, Ext.29 is the sanction order, Ext.30 is the rate chart and Ext.31 is the quotation/correspondence file. The defence exhibited four documents. Exts.A and B are the carbon copies of challans, Ext.C is the office copy of the letter and Ext.D is a letter of P.I.O., Nandahandi. 6. The learned trial Court after assessing the evidence on record has been pleased to hold that even though the sanction order issued in respect of the appellant Balaram Bag was issued by the Officer on Special Duty to the Chief Secretary -cum- Ex-Officio Joint Secretary to the Government but the sanction was actually granted by the State Government. It was further held that non-production of confidential enquiry report is of no consequence as the F.I.R. and other connected police papers and documents were taken into account and that the appellant was aware about the specific allegations leveled against him. It was further held that non-production of the quotation correspondence file marked as Ext.28 before the Sanctioning Authority during pre-sanction discussion cannot be a ground to invalidate the sanction order. It was further held that non-production of the quotation correspondence file marked as Ext.28 before the Sanctioning Authority during pre-sanction discussion cannot be a ground to invalidate the sanction order. It was further held that the shortfall in quality of GCI sheets in the sanction order can be treated as inadvertent or accidental and similarly non-mentioning of the name of M/s. Hyderabad Industries in the sanction order cannot be treated as fatal to the prosecution case and that the defects in the sanction order has not led to miscarriage of justice. While dealing with the specific charges, the learned trial Court held that the appellant Balaram Bag placed orders for purchase of rafters/purlins with M/s. Maa Bhagabati Engineering Works within one year of the accepted tender and therefore, merely because a quotation was not called for, it would not ipso facto lead to a conclusion that some foul play was involved in the purchase in question. It was further held that by placing orders with M/s. Maa Bhagabati Engineering Works, the appellant Balaram Bag cannot be said to have committed any illegality so as to invite criminal liability upon himself and that there is no evidence to show any sort of involvement of co-accused Bhajaram Swain, Proprietor of M/s. Maa Bhagabati Engineering Works or that he obtained any undue pecuniary benefit out of the transaction. It was further held that merely because quotations were not called for, it cannot be a ground to impute foul play in the transaction in question and that the act of the appellant Balaram Bag as B.D.O. can at best be treated as a procedural irregularity which may make him liable for administrative action under the service laws governing him but a definite criminal liability cannot be saddled on him on such score. It was further held that not a scrap of paper has been produced by the prosecution to show that an amount of Rs.25,231.05 paisa was actually paid to M/s. Parbati Traders and as such the allegation regarding payment of commission to the local firm appears to be more speculative in nature than based on facts. It was further held that not a scrap of paper has been produced by the prosecution to show that an amount of Rs.25,231.05 paisa was actually paid to M/s. Parbati Traders and as such the allegation regarding payment of commission to the local firm appears to be more speculative in nature than based on facts. The learned trial Court considered the allegation of misconduct in the purchase of GCI sheets on the ground of (i) without calling for quotations, (ii) without the corresponding requirement, and (iii) of lesser quality than that shown in the official records and held that the purchase in question being made within one year of the earlier quotation, no illegality can be said to have been committed by the accused in not calling for a fresh quotation. The learned trial Court considering the allegation purchase of GCI sheets without the corresponding requirement, held that there was no requirement of GCI sheets except to the extent of 21 sheets and the so-called requirement of 2000 sheets was falsely projected in the file by interpolating/adding/manipulating the note sheet of the concerned file subsequently, apparently to justify the purchase of the same and that the appellant Balaram Bag has played the main role by granting approval and also having interpolated his own endorsement in the note sheet must, therefore, be held to have abused his official position to falsely project the requirement of GCI sheets evidently to make an unlawful gain and his action led to unnecessary expenditure of substantial amount of government money i.e. Rs.7,65,440/- at the relevant time. The learned trial Court further held that the actual requirement was 21 nos. of 22 gauge GCI sheets only whereas the sheets shown to have been purchased were 24 gauge quality and on actual verification, it was found to be 28 gauge quality but the price was paid for 24 gauge and that the supplier also played its part by falsely submitting bill (Ext.15) for 24 gauge sheets even though it had actually supplied 28 gauge sheets, as a result of which the government had to make an excess payment of Rs.3,15,020.14 paisa to the firm. The learned trial Court further held that the appellant Balaram Bag being a public servant abused his official position to falsely project the requirement of GCI sheets in the official file (Ext.31) and in the process, he caused payment to be made of a substantial amount of government money i.e. Rs.7,65,440/- unnecessarily to the firm M/s. Sai Laxmi Enterprises of which the appellant Gudla Uma Maheswar Rao was the Proprietor and that the appellant Balaram Bag in connivance with appellant Gudla Uma Maheswar Rao, with intent to defraud, caused alteration/manipulation of official papers and records to obtain pecuniary advantage of Rs.3,15,020.14 paisa to the said firm who in furtherance of their common intention submitted a false bill (Ext.15) showing supply of 24 gauge GCI sheets while actually supplying 28 gauge GCI sheets. In the ultimate conclusion, the learned trial Court held the co-accused Bhajaram Sethy not guilty of any offences charged, however found the appellants guilty of the offences charged and passed sentences accordingly. 7. Mr. Hemanta Kumar Mund, learned counsel appearing for the appellant Balaram Bag contended that so far as the accusation against the appellant for placing orders for excess GCI sheets than requirement is concerned, the prosecution relies heavily on the entries made in the file (Ext.31). The F.I.R. in this case was registered on 03.09.1993 and Ext.31 was shown to have been seized on 17.09.1993 but it was not submitted to the Court at the time of filing of the charge sheet. P.W.10 Brundaban Panigrahi who was the Senior Clerk of Nandahandi Block and dealing with this file deposed in the learned trial Court on 26.09.2002 and when he deposed regarding this file, the learned Special Public Prosecutor filed a petition to defer the further examination-in-chief of this witness on the ground that the file was not available in the Court and P.W.10 was required to prove the file and accordingly, the learned trial Court deferred further examination of P.W.10. In spite of such deferment, the file was neither produced in Court to be proved by P.W.10 nor was the evidence of P.W.10 completed. Even Ext.31 was not available in the trial Court on 06.12.2011 when the I.O. (P.W.18) who seized the file adduced his evidence in the Court for which the file was could not be proved through P.W.18 though other documents seized under the same seizure list (Ext.11) were proved by him. Even Ext.31 was not available in the trial Court on 06.12.2011 when the I.O. (P.W.18) who seized the file adduced his evidence in the Court for which the file was could not be proved through P.W.18 though other documents seized under the same seizure list (Ext.11) were proved by him. Ext.31 was proved only when the subsequent I.O. (P.W.20) who took over charge of the investigation from P.W.18 was examined. According to Mr. Mund, the manner in which Ext.31 was brought on record for the first time when P.W.20 tendered his evidence has caused serious prejudice to the appellant and therefore, the learned trial Court committed gross error in placing reliance on the entries made on such file and in holding the appellant guilty on the basis of such evidence. It was further argued that the interpolations/entries alleged to have been made in Ext.31 have not been proved in accordance with law. The persons who made the entries in Ext.31, i.e. the Stipendiary Engineer and the Junior Engineer have not been examined to prove the entries and the alleged interpolations have also neither been proved nor marked separately. Therefore, it is not admissible under section 35 of the Evidence Act. He placed reliance in the cases of Ram Prasad Sharma Vs. The State of Bihar, (1970) AIR SC 326, State of Bihar Vs. Radha Krishna Singh, (1983) AIR SC 684 and Madan Mohan Singh Vs. Rajni Kant, (2010) AIR SC 2933. It was further argued that the incriminating circumstances appearing in the file (Ext.31) as enumerated by the learned trial Court have not been put to the appellant in his accused statement recorded under section 313 of Cr.P.C. and therefore, it cannot be utilized against the appellant. He placed reliance in the case of Kuldip Singh Vs. State, (2003) 12 SCC 528 . It was argued that though in Ext.31, it is mentioned that 21 sheets more were required for construction of IAY houses but the appellant as B.D.O. was dealing with various schemes apart from construction of Anganwadi Centers in different Gram Panchayats and therefore, the possibility of acquiring those extra GCI sheets for being utilized in any other schemes cannot be ruled out. The prosecution has not adduced any evidence to prove that the notings made in the file regarding requirement of more GCI sheets was wrong. The prosecution has not adduced any evidence to prove that the notings made in the file regarding requirement of more GCI sheets was wrong. It was argued that so far as the size of the GCI sheets is concerned, the joint verification report vide Ext.10 was prepared at a time when the Vigilance Department had taken up preliminary enquiry and only ten nos. of GCI sheets were selected randomly out of 2000 sheets for determining the quality of the materials supplied and on the basis of such random sampling, no criminal liability can be fastened on the appellant. He argued that there is no evidence that the GCI sheets verified by the technical committee were procured by the appellant inasmuch as after the GCI sheets were procured on 01.06.1992, the appellant handed over the charge of his post as far back as on 24.07.1992 and the so-called joint verification was conducted at the behest of the Vigilance Department only on 24.02.1993 and by that time the appellant was succeeded by three other incumbents in the office and the charge of the Store had also changed hands for several times in the meantime. It was argued that the learned trial Judge has acted erroneously in ignoring the shortcomings in the prosecution case and in placing reliance on the joint verification report (Ext.10). It was argued that the articles which were allegedly verified by the Vigilance Department were not proved to be the very articles ordered and received by the appellant. It was argued that it was not practically possible on the part of the appellant Balaram Bag as B.D.O. to physically verify the quality of the GCI sheets supplied and receive in the Store and in that regard, he has to rely on his subordinates who were the persons in-charge of the Store. Placing the evidence of P.W.19, it was argued that he has admitted that the joint verification report (Ext.10) was not prepared in his presence and he was unable to speak as to who had prepared the said report vide Ext.10 and therefore, it can be said that he had just signed on a preprepared report by the I.O. having no knowledge about the contents of it. The GCI sheets found in the Store at the time of search and verification were not seized and after a lapse of more than six months of the joint verification, the I.O. seized 1432 nos. of GCI sheets on 17.09.1993 and therefore, it is very risky to accept such evidence to convict a public servant. Neither the appellant nor the Officer in-charge of the Store namely B.B. Panigrahi who had received the GCI sheets was informed about such joint verification nor were they present at the time of verification. In such circumstances, the report of the joint verification prepared in the absence of the appellant and without affording any reasonable opportunity to him to explain his position cannot be utilized against him. The F.I.R. was lodged on 03.09.1993 on the basis of joint verification conducted by P.W.18 along with P.W.19 and others but the joint verification report was seized only on 20.09.1994 on production by the Head Clerk of the Block. It was argued that the bill vide Ext.15 and the money receipt marked as Ext.15/1 were proved by the I.O. (P.W.18) who is not competent to prove the same and therefore, even though in question no.34 of the accused statement, the appellant admitted that from the bill marked Ext.15, it is revealed that M/s. Sai Laxmi Enterprises supplied 2000 nos. of 10 x 24 gauge GCI sheets and raised bill amount of Rs.7,65,440/- out of which a sum of Rs.3,65,440/- was paid by way of a cheque but such admission without proving the document in accordance with law is not sufficient to fasten liability on the appellant. While concluding his argument, Mr. Mund emphasized that the findings of the learned trial Court are based on mere conjectures than admissible evidence on record and therefore, the impugned judgment suffers from serious infirmities and it is a fit case where benefit of doubt should be extended in favour of the appellant Balaram Bag. Mr. G.K. Mishra, learned counsel appearing for appellant Gudla Uma Maheswar Rao adopted the argument advanced by Mr. Mund. Mr. Mr. G.K. Mishra, learned counsel appearing for appellant Gudla Uma Maheswar Rao adopted the argument advanced by Mr. Mund. Mr. Sanjay Kumar Das, learned Standing Counsel appearing for the Vigilance Department on the other hand emphatically contended that the learned trial Court has assessed the oral as well as documentary evidence in its proper perspective and while not accepting the prosecution case in part and also acquitting the co-accused Bhajaram Swain of all the charges, the Court rightly found the appellants guilty on the basis of the available materials on record. He placed the relevant notings in Ext.31 and argued that the alternations/interpolations are apparent and no satisfactory explanation has been offered by the appellant Balaram Bag in that respect. Relying on the evidence of P.W.11, the cashier of Nandahandi Block, it was argued that even though no fund was available under the development head account for purchase of building materials during the period from 20.09.1991 to 24.07.1992 but the appellant having no power to divert the amount from one head to another head, purchased the building materials by diverting funds from other heads which shows his interestedness to clear up the bill at an earliest even though the purchased GCI sheets were much more than the requirement. He contended that there is no perversity in the impugned judgment and as such the criminal appeals filed by the appellants should be dismissed. He placed reliance in the case of Rajiv Kumar Vs. State of U.P., (2017) AIR SC 3772. 8. Adverting to the contentions raised by the learned counsel for the respective sides and on perusal of the impugned judgment, it appears that the appellants have been convicted on the ground that the purchase of 2000 GCI sheets were without the corresponding requirements and those were of lesser quality than what was shown in the official records. The trump card of the prosecution case hinges on the acceptability or otherwise of the quotation/correspondence file marked as Ext.31. In the said file, as per entry dated 23.04.1992, it is mentioned that 21 GCI sheets were required to meet the demand of construction of IAY and necessary order to be passed to purchase the GCI sheets. By the side of the said entry dated 23.04.1992, it appears that the Stipendiary Engineer and Junior Engineer have made certain entries on the very day. By the side of the said entry dated 23.04.1992, it appears that the Stipendiary Engineer and Junior Engineer have made certain entries on the very day. The Stipendiary Engineer has noted that to complete the IAY, Anganwadi Centers, repairing of school buildings and works under SC/ST benefit scheme, the B.D.O. may place order for 200 numbers of GCI sheets for the two Gram Panchayats if funds are available so that the work can be completed in time. Similarly, the Junior Engineer has given his note that for construction of IAY, Anganwadi Centers, school buildings and other structural works, 1779 of GCI sheets may be required for eight numbers of Gram Panchayats. Basing on these two notes, it is mentioned by the B.D.O. that indent be placed for 2000 GCI sheets so that works to be taken up during that year very smoothly and can be completed. It is the prosecution case that the notings given by the Stipendiary Engineer and Junior Engineer as well as by the B.D.O. (appellant Balaram Bag) are interpolated. The Stipendiary Engineer and Junior Engineer who allegedly made the so-called interpolated entries have not been examined to prove the entries nor any other competent persons who were acquainted with the handwritings and signatures of the two engineers proved the entries. Similarly, the entry relating to placement of indent for 2000 GCI sheets have not been proved to be that of the appellant. On perusal of the relevant entries dated 23.04.1992, it appears to have been made by at least four persons in different inks but nobody has been examined from the prosecution side during trial to say as to who made those entries. If the prosecution wanted to utilize those entries dated 23.04.1992 against the appellant Balaram Bag, first of all it should have been proved in a proper manner in accordance with law and secondly, the appellant should have been asked specific questions in the accused statement relating to such entries. Mere marking of the quotation/correspondence file as Ext.31 is not sufficient. If the prosecution wanted to utilize those entries dated 23.04.1992 against the appellant Balaram Bag, first of all it should have been proved in a proper manner in accordance with law and secondly, the appellant should have been asked specific questions in the accused statement relating to such entries. Mere marking of the quotation/correspondence file as Ext.31 is not sufficient. Section 35 of the Evidence Act requires the following conditions to be fulfilled before a document can be admissible under this section:- (i) the document must be in the nature of an entry in any public or other official book, register or record; (ii) it must state a fact in issue or a relevant fact; (iii) the entry must be made by a public servant in the discharge of his official duties or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept. In the case of Radha Krishna Singh (supra), it was held that admissibility of a document is one thing and its probative value is quite another. These two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil. In the case of Ram Prasad Sharma (supra), the Hon'ble Supreme Court rejected the hath chitha marked as Ext.D as a public document on the following grounds:- 13......No proof has been led in this case as to who made the entry and whether the entry was made in the discharge of any official duty. In the result, we must hold that Ext.D, the hath chitha, was rightly held by the High Court to be inadmissible. In the case of Madan Mohan Singh (supra), while dealing with an entry made in a public document, it was held as follows:- 14. In the result, we must hold that Ext.D, the hath chitha, was rightly held by the High Court to be inadmissible. In the case of Madan Mohan Singh (supra), while dealing with an entry made in a public document, it was held as follows:- 14. Therefore, a document may be admissible, but as to whether the entry contained therein has any probative value may still be required to be examined in the facts and circumstances of a particular case........In these cases, it has been held that even if the entry was made in an official record by the concerned official in the discharge of his official duty, it may have weight but still may require corroboration by the person on whose information the entry has been made and as to whether the entry so made has been exhibited and proved. The standard of proof required herein is the same as in other civil and criminal cases. The prosecution examined P.W.10, the Senior Clerk of Nandahandi Block who stated to have given notes in Ext.31 in due discharge of his official duty. Most peculiarly Ext.31 was not available at the time of examination of P.W.10 and the learned Special Public Prosecutor filed a petition for deferring the further examination of P.W.10 due to non-availability of such file and accordingly, the further examination was deferred. The evidence of P.W.10 remained incomplete and for the best reason known to the prosecution, P.W.10 was not recalled by the prosecution to prove the entries in Ext.31 and therefore, the learned trial Court has not placed any reliance on the evidence of P.W.10. The quotation/correspondence file bearing no. Xii/2/92 has been marked as Ext.31 through the I.O. (P.W.20) but the relevant entries in the file have not been exhibited and proved in accordance with law. Had the Stipendiary Engineer and Junior Engineer been examined to prove the entries, they would have thrown light as to why they made those entries and when and whether anybody asked them to make such entries. P.W.10 would also have thrown light as to whether the entries made by the Stipendiary Engineer and Junior Engineer were on the same day i.e. 23.04.1992 or those were interpolated subsequently and made ante-dated. P.W.10 would also have thrown light as to whether the entries made by the Stipendiary Engineer and Junior Engineer were on the same day i.e. 23.04.1992 or those were interpolated subsequently and made ante-dated. In my humble view, the failure of the prosecution to examine the two engineers to prove the entries and also to leave the evidence of P.W.10 incomplete suggest that their evidence would have gone against the prosecution for which they were not produced. In this connection, I would also like to advert to the provisions contained in section 114(g) of the Indian Evidence Act, which are to the effect that if evidence which could have been produced, is not produced, the presumption would be that it would have gone against the party which withholds it. It would be reasonable to draw such inference in this case. Since the relevant entries on which the prosecution heavily banks upon have not been marked as exhibits and proved by competent persons in accordance with law, it would be difficult to place any reliance on such entries and more particularly use it against the appellant Balaram Bag. On verification of the accused statement of the appellant Balaram Bag, though question nos.28 to 33 relate to Ext.31 but no question has been asked relating to the alleged interpolated entries dated 23.04.1992. The argument advanced by the learned Standing Counsel for the Vigilance Department that the alternations/interpolations are apparent and no satisfactory explanation has been offered by the appellant Balaram Bag in that respect, is totally fallacious inasmuch as when no question has been put to the appellant in that respect in the accused statement, where he would have given his satisfactory explanation? The learned trial Court has put some questions relating to the evidence of P.W.10 in question nos.10 and 11 even though the examination in-chief of the said witness was not completed and the defence has not been given any opportunity of cross-examination. Law is well settled that when the attention of the accused is not drawn specifically to the incriminating circumstance during his examination under section 313 of Cr.P.C., such circumstance cannot be used against him. Examination of an accused is not a mere formality. It has practical utility for the criminal Courts in affording opportunity to the accused to explain the incriminating circumstances and to explain his stand in defence. Examination of an accused is not a mere formality. It has practical utility for the criminal Courts in affording opportunity to the accused to explain the incriminating circumstances and to explain his stand in defence. Sub-section (4) of section 313 of the Code indicates that answers given by the accused, during his examination under section 313, may be considered by the Court. The words "may be taken into consideration" in such enquiry or trial as appearing in sub-section (4) indicates that the legislature laid down the guideline for the Court to give due weight to such answers. In the case of Dharnidhar and Ors. Vs. State of U.P., (2010) 7 SCC 759 , it is held that the legislative intent behind section 313 of Cr.P.C. appears to have twin objects. Firstly, to provide an opportunity to the accused to explain the circumstances appearing against him. Secondly, for the Court to have an opportunity to examine the accused and to elicit an explanation from him, which may be free from the fear of being trapped for an embarrassing admission or statement. The proper methodology to be adopted by the Court while recording the statement of the accused under section 313 of the Cr.P.C. is to invite the attention of the accused to the circumstances and substantial evidence in relation to the offence, for which he has been charged and invite his explanation. In other words, it provides an opportunity to an accused to state before the Court as to what is the truth and what is his defence, in accordance with law. It was for the accused to avail of that opportunity and if he fails to do so then it is for the Court to examine the case of the prosecution on its evidence with reference to the statement made by the accused under section 313 of the Cr.P.C. In the case of Kuldip Singh (supra), it is held if a material piece of evidence is not put to the accused when he is examined under section 313 of Cr.P.C., the prosecution is disentitled from placing reliance on such evidence. In view of the ratio laid down in the aforesaid cases, the learned trial Court should not have utilised entries dated 23.04.1992 in Ext.31 against the appellant Balaram Bag as no questions have been put to him in the accused statement relating to such entries. In view of the ratio laid down in the aforesaid cases, the learned trial Court should not have utilised entries dated 23.04.1992 in Ext.31 against the appellant Balaram Bag as no questions have been put to him in the accused statement relating to such entries. Moreover, it cannot be lost sight of the fact that Ext.31 was brought on record and tendered in the evidence for the first time when the I.O. (P.W.20) who took over charge of the investigation from P.W.18 was examined. The manner in which such an important document has been withheld by the prosecution for a substantial period is likely to cause serious prejudice to the appellant as the appellant lost the opportunity to go through the same from the beginning and prepare for his defence accordingly. The prosecution should come before the Court with clean hands and it cannot be allowed to play a game of hide and seek in a criminal trial either with the Court or with the accused just to secure an order of conviction. It is no doubt true that at one place in the entry dated 23.04.1992, it is mentioned that 21 GCI sheets were required to meet the demand of construction of IAY and necessary order to be passed to purchase the GCI sheets but all the same there are two other entries on 23.04.1992 which are stated to be of the Stipendiary Engineer and Junior Engineer and they have mentioned about the requirement of 200 and 1779 numbers of GCI sheets respectively for different works in the Gram Panchayats. The prosecution has not adduced any evidence that the notings made in the file (Ext.31) regarding requirement of more numbers of GCI sheets were wrong. There should not be any confusion that the noting in respect of 21 GCI sheets was for a particular purpose i.e. construction of IAY but the requirement of 200 and 1779 numbers of GCI sheets were for completion of IAY, Anganwadi Centers, repairing of school buildings and works under SC/ST benefit scheme and other structural works in different Gram Panchayats. There should not be any confusion that the noting in respect of 21 GCI sheets was for a particular purpose i.e. construction of IAY but the requirement of 200 and 1779 numbers of GCI sheets were for completion of IAY, Anganwadi Centers, repairing of school buildings and works under SC/ST benefit scheme and other structural works in different Gram Panchayats. Therefore, when it is not proved that except 21 numbers of GCI sheets, there was no other requirement for any other purpose whatsoever and it is also not proved that entries relating to requirement of 200 and 1779 numbers of GCI sheets are interpolated, no fault can be found with the appellant Balaram Bag in placing indent and procuring 2000 GCI sheets. 9. Now, coming to the accusation that the procured 2000 GCI sheets were of lesser quality than what was shown in the official records, it is the prosecution case that although the order was placed for 2000 GCI sheets of size 10 x 24 gauge and the bill of M/s. Sai Laxmi Enterprises dated 01.06.1992 vide Ext.15 reflects purchase of such sheets but at the time of joint verification by the Vigilance Department, it was found that the appellant Gudla Uma Maheswar Rao, Proprietor of M/s. Sai Laxmi Enterprises had supplied GCI sheets of 28 guage which were of lesser quality and in the process, there has been an excess payment of Rs.3,15,020.14 paisa to him. In order to prove this accusation, the prosecution relies on the evidence of P.W.19 who was the Junior Engineer at the relevant point of time and checked the Store of Nandahandi Block on 24.02 1993 and measured the thickness of GCI sheets by using Vernier Caliper and found it to be of 28 gauge. He has also signed the joint verification report (Ext.10). He stated that all the articles were kept in the Store in a stacked manner at different places but those were not sealed. He admits that as per the report Ext.10, the articles were in the custody of D. Satyanarayan after having passed through several other store keepers prior to him. He stated that there were about 2000 GCI sheets but they measured only ten sheets at random and that the weight of the GCI sheets was not calculated by actual weighment but on the basis of engineering specifications by taking into account the dimensions. He stated that there were about 2000 GCI sheets but they measured only ten sheets at random and that the weight of the GCI sheets was not calculated by actual weighment but on the basis of engineering specifications by taking into account the dimensions. He further stated that he cannot say who wrote the report marked as Ext.10 and he was not present at the time of preparation of report. It cannot be lost sight of fact that the GCI sheets were procured on 01.06.1992 and the appellant Balaram Bag handed over the charge to his successor on 24.07.1992 and the joint verification was made on 24.02.1993. There is no material on record that when 2000 GCI sheets were received in the Store on 01.06.1992, there were no other GCI sheets in it. In absence of such evidence, when on the date of joint verification, GCI sheets were lying in the Store at different places in a stacked manner and only ten numbers of GCI sheets were measured at random, it cannot be said with certainty that all those ten GCI sheets were from the 2000 GCI sheets procured by the appellant Balaram Bag and not from any other available GCI sheets in the Store. No measurement chart has been proved in the case. The joint verification was not made either in presence of the appellant Balaram Bag or in presence of the person who was incharge of the Store when it was procured. As appears, the charge of the Store had changed to several hands. The joint verification report was also not supplied to the appellant Balaram Bag seeking for his response on the less thickness of GCI sheets found during verification. In view of the powers and functions of the Block Development Officer as enumerated under Rule 13 of the Odisha Panchayat Samiti (Administration of Affairs) Rules, 1987 (hereafter 1987 Rules ), the appellant Balaram Bag as B.D.O. in his hectic schedule of works was supposed to rely on his subordinates including the Store Keeper and it was not expected of him to remain personally present near the Store gate to receive the GCI sheets, measure each and every GCI sheet and then allow its entry to the Store. The entire responsibility of receipt of 28 gauge qualities of GCI sheets instead of 24 gauge qualities, if any, cannot be fixed on the appellant. The entire responsibility of receipt of 28 gauge qualities of GCI sheets instead of 24 gauge qualities, if any, cannot be fixed on the appellant. Therefore, it cannot be said with certainty that what was received in the Store on 01.06.1992 were not of 24 gauge size but of 28 gauge size. 10. The learned Standing Counsel for the Vigilance Department heavily relied on the answer given by the appellant Balaram Bag to the question no.34. The question and answer is extracted herein below: Q.34. From the bill marked Ext.15, it is revealed that M/s. Sai Laxmi Enterprises Firm supplied 2000 nos. of 24 gauge x 10 long GCI sheets @ Rs.382.72 paisa and raised total bill amount of Rs.7,65,440/- out of which a sum of Rs.3,65,440/- was paid by way of cheque dated 21.07.1992 as per report marked Ext.15/1. What have you to say? Ans.: It is true. Ext.15 is the bill dated 01.06.1992 of M/s. Sai Laxmi Enterprises and Ext.15/1 is the money receipt of M/s. Sai Laxmi Enterprises dated 21.07.1992 showing receipt of Treasury Cheque No.16403 dated 21.07.1992 of Rs.3,65,440/- towards GCI sheets supply. These two documents were proved by the I.O. (P.W.18) who stated to have seized those documents on 17.09.1993 as per seizure list Ext.11. P.W.18 admits that in Ext.15, there is no signature of the B.D.O. below the stock entry certificate. A competent person who has prepared both the documents or acquainted with the handwriting and signature of such person should have proved the documents. Before utilizing a particular document against the accused, it is to be proved in accordance with law and specific question on such document is required to be put to the accused in the statement recorded under section 313 of Cr.P.C. It is a settled principle of law that the statement made by the accused under section 313 of the Cr.P.C. can be used by the Court to the extent that it is in line with the case of the prosecution. The same cannot be the sole basis for convicting an accused. Moreover, it is not the prosecution case that the rate of 24 gauge GCI sheets as mentioned in the bill Ext.15 was excessive rather it is the case of the prosecution that though payment was made for 24 gauge GCI sheets but what was received in the Store was 28 gauge GCI sheets. 11. Moreover, it is not the prosecution case that the rate of 24 gauge GCI sheets as mentioned in the bill Ext.15 was excessive rather it is the case of the prosecution that though payment was made for 24 gauge GCI sheets but what was received in the Store was 28 gauge GCI sheets. 11. Relying on the evidence of P.W.11, it was argued by the learned Standing Counsel for the Vigilance Department that no fund was available under the development head account for purchase of building materials during the period from 20.09.1991 to 24.07.1992 when the appellant Balaram Bag was working as B.D.O. of Nandahandi Block but the appellant having no power to divert the amount from one head to another head, purchased the building materials by diverting funds from other heads which shows his interestedness to clear up the bill at an earliest. P.W.11 states in cross-examination that he had not verified any circular of the Government to ascertain the powers of the B.D.O. in due discharge of his official duty. The I.O. (P.W.20) has stated that he has not ascertained the specific provisions of Rule 13 and 14 of 1987 Rules and he has also not gone through the provisions of O.G.F.R., P.W.D. Code and Panchayat Samiti Accounting Procedure Rules. Therefore, the vague statement of P.W.11 is not sufficient to hold that the appellant as B.D.O. had no power to divert the amount from one head to another head in case of requirement. The learned Standing Counsel for the Vigilance Department placed reliance in the case of Rajiv Kumar (supra), wherein the Hon’ble Supreme Court taking into account the facts of that case came to hold that strong cuttings and overwritings made in order to make original words or figures illegible which itself show dishonest intention behind cuttings and overwritings. Manner of cuttings in itself shows that those are not on account of any clerical mistake or inadvertent error but they are deliberate attempt made with ulterior motive to cause benefit to appellants and clearly they have been made so substantially that matter beneath them may not be read by naked eyes even after efforts. In the case in hand, however, there are no such cuttings and overwritings in Ext.31 in the entries dated 23.04.1992 nor are the entries illegible. In the case in hand, however, there are no such cuttings and overwritings in Ext.31 in the entries dated 23.04.1992 nor are the entries illegible. The only feature is that the entries stated to have been made by the Stipendiary Engineer and Junior Engineer are by the side of the main noting dated 23.04.1992. Therefore, the observation made in the case of Rajiv Kumar (supra) is no way helpful to the learned Standing Counsel. 12. In view of the foregoing discussions, when the relevant entries dated 23.04.1992 made in Ext.31 have not been proved in accordance with law, material witnesses have been withheld by the prosecution, relevant questions on the incriminating circumstances have not been put to the appellants in their statements recorded under section 313 of Cr.P.C. giving an opportunity to explain and there is no clinching material that the purchase of 2000 GCI sheets were made without the corresponding requirements and it is also not proved by adducing satisfactory evidence that the purchased GCI sheets were of lesser qualities than what was shown in the official records and when the findings of the learned trial Court against the appellants for the offences under which they have been convicted are based on mere conjectures than admissible evidence on record, I am of the humble view that it is a fit case where benefit of doubt should be extended in favour of the appellants. 13. In the result, both the criminal appeals are allowed. The impugned judgment and order of conviction of the appellants under section 13(2) read with section 13(1)(d) of the 1988 Act and section 477-A read with section 34 of the Indian Penal Code and the sentence passed thereunder is hereby set aside. The appellants in both the appeals are acquitted of all the charges. The appellants are on bail by virtue of the order of this Court. They are discharged from liability of their bail bonds. The personal bonds and the surety bonds stand cancelled. Lower Court records with a copy of this judgment be sent down to the learned trial Court forthwith for information.