ABDULLA MOHAMMED PAGARKAR versus STATE (UNION TERRITORY OF GOA, DAMAN AND DIU)

Citation: [1980] 1 S.C.R. 604 · Decided: 11-09-1979 · Supreme Court of India · Bench: S. MURTAZA FAZAL ALI · Disposal: Appeal(s) allowed

Judgment (excerpt)

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604 
ABDULLAMOHAMMED PAGARKAR 
v. 
\ 
STATE (UNION TERRITORY OF GOA, DAMAN AND DIU) 
~eptember 11, 1979 
[S. MURTAZA FAZAL ALI AND A. D. KOSHAL, JJ.] 
Criminal Trial-Public servant charged with the offence of preparing false 
muster rolls, inflating wages and other bills-Burden of proof on whom lies. 
Indian Penal Code. Ss. 120(B)(I), 420, 468 and 471 & Prevention of Cor-
ruption Acts. 5(1)(d)-Conviction under-Validity of. 
A survey carried out by the Port Trust suggested that the canal connecting 
two rivers required urgent deepening '8Dd widening to make it navigable for 
.barges during the monsoon season when the sea turned rough and navigation 
became hazardous across the mouth of the river. The appellant (A-1) who at 
that time was the Captain of Ports invited tenders through! press advertisement 
and the appellant in the second Appeal (A"2) was the only person who submit-
ted a tender. 
Since the tender was fb.e only one received, the Lt. Governor 
forwarded it to the Central Government for approval. He did not accept the 
suggestion that in view of the urgency, the work might be taken up immediately 
in anticipation of approval. Even so A-1 entrusted the work to A-2 who start-
' ed the work. In the meantime the Government of India directed that the work 
should be carried out departmentally. 
A-1 obtained concurrence of the public 
works department for payment of daily wages to workers. 
According to the prosecution, the modus operandi adopted by the appellants 
was that A-2 actually submitted hand-written statements without his signature 
ou the work done each day specifying the quantity of 'cubic metres of mud 
and salt excavated, the number (without names) of male and female labourers 
employed, the wages paid to labour at the approved rates and so on. A-1 got 
the required statements typed in his office and sent them for the concurrence 
of the Finance Department through the concerned department. Thereafter A-1 
drew the amonnts and paid cash to A-2 against a regular receipt. 
In course of time the Directorate of Aecounts asked for muster rolls of 
labourers employed in the work. 
A-1 prepared a register and muster rolls. 
On a suspicion regarding the genuineness of the muster rolls, the case was 
entmsted to the Central Bureau of Investigation which reported that against a 
total sum of Rs. 4. 73 odd lacs paid by the Government to A-1 the work done 
was not worth more than Rs. 76,247 I 43. 
: The Special Judge convicted and sentenced both the appellants on the 
ground that they had entered into a conspiracy to cheat the Government in 
the matter of execution of the work by presenting inflated bills and receiving 
against them far greater amountS than had actually been spent and that the 
muster rolls produced were false ~ocuments. The Judicial Commissioner up-
held the findings of the Special Judge. 
Allowing the appeals, 
HEW : 1. There is no evidence on record 
that the tender 
submitted 
by A-2 was actually accepted by the Government and that it was on that 
basis that the entire work was executed. [612 Bl 
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A. M. PAGARKAR V. STATE 
605 
2. Although it may be •correct to say that even' a work which is required 
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lo be carried out departmentally can be entrusted to a contractor, in the instant 
-case no bills were drawn nor was sanction accorded to any payment on the 
basis of any part of the work having been executed through A-2 working as 
a contractor. 
The bills contained the number of labourers engaged and the 
.amount pertaining to their wages at the sanctioned rates. 
No mention was 
made in the bills that the work was being carried out through a contractor. 
A-2 did not sign any of the bills and his name as well as his connection with 
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'the execution of the work remained 
conspi'CUous by its ·J.bsenee 
therefrom . 
. [612 C·E] 
3. The onus of proof of the existence of every ingredient of the charge 
·always rests on the· prosecution and never shifts. 
It wasi incumbent on the 
'State to bring out beyond all reasonable doubt that the number of labourers 
actually employed in carrying out the work was less th;m that stated in the 
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'summaries appended to the bills paid for by the Government. [614 D-E] 
4. Although there was a difference between the number of labourers engaged 
en each day as Oeposed to by the prosecution witnesses and that shown 
in the bills it is not safe to rely on mere impression of the prosecution witnesses 
long after the work ha

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