LexKHANDU SONU DHOBI AND ANR. versus STATE OF MAHARASHTRA
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
510
KHANDU SONU DHOBI AND ANR.
v.
STATE OF MAHARASHTRA
February 1,5, 1972
[J, M. SHELAT, P. JAGANMOHAN REDDY AND H. R. KHANNA, JJ.J
Penal Code 1860 (45 of 1860)-S. 4-03-Dishonesr misappropriation
for a .time only is misappropriation.
Prevention of Corruption Ac~ (2 of 1947)-S. SA-Inve1ttigation con-
ducted ~n breach of section-Illegality must result ·in miscarriage of justice.
Bo1nbay Land_ Improvement Schemes Act, 1942-Sub-section (1) and
(2) of s. 23-Bar of prosecution applies on(v to any thing done in good
faith or ·•under" the Act.
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The appellants entrusted with the duties of carrying out improvement
schemes under the Bombay Land Improvement Scheme Act, 1942, were
charged with the offence of preparing false documents and committing
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crimi.nal breach of trust in :respect of certain amount.
It was ·alleged
that even thougl) no work had been done and no amount had been dis-
bursed they prepared documents showing the doing of the work and pay-
ment oJ.. the '3mount.
They were convicted under s. 218 read with sec-
tion 34. section 477A read with section 34 and ~ection 409 read with
:section 34 of the Indian Penal Code as well as section 5(2) read with
section 5(i)(d) of the Prevention of Corruption Act. The High Court
affim1ed the conviction.
In the appeal to
this Court it was contended
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that after the matter had been reported to the higher authorities the recti-
fication wdrk W3.S done and the money was disbUrsed for the purpose
for which it had been entrusted; that the conviction was bad beC)ause of
non-compliance with section 5A of the Prevention of Corruption Act; and
that the prosecution was barred by time unde• •· 23 of .the Bombay Land
Improvement Schemes Act, 1942.
Dismissing t_he appeal,
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HELD : (i) There is no cogent ground to disagree with the trial court
and the High Court that the accused had prepared false documents, bad
nlso committed criminal breaC'h of trust '3Dd were in the discharge of
their duties guilty of criminal misconduct as defined in s. 5 of the Pre-
,ventic.il of Corruption Act.
(ii) It is no answer to a charge of criminal misappropriation that after
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the 111atre:r had been reported to the higher authorities the accused got
the rectification work dcne or the money was
subsequently disbursed
fer the purpose for \1/hich it had been entrusted. According to explana-
tion 1 to section 403 Indian Penal Code a dishonest misappropriation for
a time only is "misappropriation" within the meaning of that section.
[515 DJ
(iii) It is well established that cognizance of a case has, in fact, been
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tuken by the court on a police report following inve11tigation conducted
in bt..,;,ach of provisions of section 5A of the Prevention of Corruption
Act, the result of the trial cannot be set aside unless the illegality in the
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K. s. DHOBI v. MAHARASHTRA (Khanna, J.)
51.1
investigation can be shown to have brought about a miscarrjage of justice.
The reason for the above dictum is that an illegality cOmmitted during
the course of investigation does not effect the competence and juf'isdiction
of the Court to· try .the ae¢used·. Where, tmrefore, the trial of the case
has proceeded to terfnination, the invalidity of the preceding investiga-
tion would not vitiate the conviction of the accused as a !T.lsult of the
trial Ullles's the illegality in the investiption has caused prejudic,e to the
accused.
Since there has been no miscafriage of justice in the p~nt
case because of the alleged non-compliance with section SA the conviction
of the appellants cannot be set aside on that score. [SIS HJ
H .. N. R.;shbu!f and Inder Singh v. The State of Delhi, {1955] I S.C.R.
li50, referred to.
(1v) Sub-section (i) of the Bombay Land Improvement Schemes Act
1942 has plainly no application as it relates to 3nything done in the good
faith. It cannot also be said that the acts of the appellants in preparing
false documents and committing criminal bre3ch of trust as also the act
of criminal misconduct were done "under" the Bombay Land Improve~
ment Schen»s Act within the meanini of
sub-section (2). The sub-
section has rio. application wher.e something is done not under the Act
even· though it has been done by a public servant who has been •!Dtrusted
with the duties of carrying improvement sche~s under this Act.
The
iritpugned acts of tDe appellants W'..lS not in discharge of their
duties
under the Act but in obvious breach and flagrantExcerpt shown. Read the full judgment & AI analysis in Lexace.