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1. Wash Hand Basins 22" X 16" Barang make First Quality: Rs. 70/- each

2. Wash Hand Basin 22" X 16" Barang make Second Quality: Rs. 58/- each On the comparative statement (Exh. 33 of the quotations received in response to the aforesaid circular letter being put up before him, P.W.7 accepted the quotation of the Cuttack Plumbing Stores for supply of 1000 22" X 16", Barang make, First Quality, wash hand basins vide Exhibit 3(4) at the rate of Rs. 70/- per wash hand basin plus sale tax at 7% which meant that the basins should be free from all manufacturing defects like dents, fire cracks, warpage or other undulation on the surface etc. Under Exhibit (4) dated October 13, 1961, the Cuttack Plumbing Stores was asked to supply the wash hand basins to the sub Divisional Officer, Project Sub Division No. 1 and submit the bills in triplicate to the Executive Engineer, Public Health Department, Bhubaneswar for payment. Under Exhibit 4(4), copies of the aforesaid order (Exh. 4) were forwarded to Gopinath Patra, respondent and Brahmananda Misra, respondent the then Executive Engineer and Sub Divisional Officer, Project No. I Sub Division, Bhubaneswar respectively for information and necessary action. The supplies were to be received by the Overseer, Niranjan Naik, who was the Section Officer, according to the specifications noted in the order of supplies. Pursuant to work order (Exh. 5), Nakula Sahu, proprietor of the Cuttack Plumbing Stores supplied 1000 wash hand basins in three instalments representing them to be of first quality Barang Make and submitted bills in regard thereto as detailed below:

"Verified the materials received on .. and found correct, entered in M.B. (Measurement Book) No....... in Page ............ Taken into stock A/C in (Date and Year)."

Underneath the certificate of Niranjan Naik, Section Officer Brahmananda Misra Sub Divisional Officer appended his certificate and signed the same. Therefore, the bills were checked in the office of the Executive Engineer who made the payments by means of the cheques.

On November 16, 1961 i.e. after the first two supplies but before the third supply, Lingaraj Das (P.W.7) addressed confidential communication (Exh. 6) to Gopinath Patra hinting to him that according to the information received by him the supplies made by Nakula Sahu were not according to the specifications in the supply order but were of lower class and requiring him to 'verify the quality of each and every wash hand basin and to give a certificate if they were of first class quality as per specification in the tender. By means of the aforesaid confidential letter, Gopinath Patra was also told to submit a detailed report about the quality of the wash hand basins within four days in case he found that they were not of first quality as per specifications in the tender. Gopinath Patra was also asked to intimate the number of wash hand basins supplied by the Cuttack Plumbing Stores and the amount paid to it. As Gopinath Patra did not comply with the aforesaid communication within the aforesaid time, P.W. 7 sent him a reminder to expedite the reply but it was not before December 9 1961 that the former sent the reply (Exh. 7) certifying that 894 wash hand basins which had been supplied by then by the Cuttack Plumbing Stores were all of first quality. By means of Exhibit (7), Gopinath Patra further informed the Public Health Engineer, Orissa that the Cuttack Plumbing Stores had so far been paid Rs. 66,960.60, including sales tax, for the aforesaid 894 wash hand basins. On December 19, 1961, P.W. 7 placed order (Exh. 5) with Cuttack Plumbing Stores for further supply of 500 wash hand basins of the aforesaid quality and make at the rate of Rs. 68/- per basin to be delivered to the Public Health Department's Godown at Bhubaneswar and sent intimation thereof to Gopinath Patra. Accordingly, Nakula Sahu supplied 50 wash hand basins on January 4, 1962, 410 wash hand basins on October 1, 1962 and 40 wash hand basins on October 14, 1962 and submitted bills (Exhibits 29, 32 and 35) for Rs. 3,638.00, Rs. 29,831.60 and Rs. 2,910.40 respectively. On these three bills also, Brahmananda Misra, Sub Divisional Officer and Niranjan Naik, Section Officer appended certificates similar to those which they had given on the previous bills. On the basis of the said certificates, running account bills were prepared and signed by Gopinath Patra, Executive Engineer, and payments were made to Nakula Sahu. On March 28,1963, the Inspector of Police, Vigilance, Cuttack seized vide seizure Memo (Exh. 73) from the Public Health Godown Bhubaneswar, of which Niranjan Naik, Section Officer was incharge, 593 Barang Make wash hand basins alleged to have been supplied to the Department by the Cuttack Plumbing Stores and A.B. Ghosh (P.W.8), Executive Engineer, Stores Verification Division, attached to the Works Department inspected these basins under the orders of the Secretary, Works and Transport Department and submitted his report (Exh. 49) dated September 9/13,1963 enclosing therewith statements (Exhibits 50 and 51) containing his remarks in respect of each and every one of 593 basins examined by him. In his report (Exh. 49) A.B. Ghosh inter alia stated: "Not a single basin of first quality could be found during verification. Three type of basins with manufacturer marks II and III class and with no marks are found. All the basins which have been verified have different types of defects as noted against each number in the enclosed statements. In several cases major defects have been noticed in all the type of basins and the nature of major defects have also been noted in the statements." Thereupon the. authorities made an inquiry from M/s Orissa Industries Ltd. Barang (Producers of the Basins) which revealed that the Cuttack Plumbing Stores had during its entire transactions with the former purchased only three first quality wash hand basins and the rest of the wash hand basins purchased by it by auction or otherwise from the Company and dishonestly passed not to and accepted by respondents, Niranjan Naik, Brahmananda Misra and Gopinath Patra as first quality wash hand basins were either second quality or rejected ones which did not at all conform to the specifications mentioned in the tender quotations (Exh. 23 and the supply order (Exh. 4). On these facts, the respondents were charged with and proceeded against for commission of various offences of criminal conspiracy, abetment of and commission of the offence of criminal breach of trust in respect of a sum of Rs. 1,11,280/- entrusted by the State to Gopinath Patra, respondent for purchase of best quality wash hand basins with the result as stated above In these appeals, it has been urged by counsel for the State of Orissa that the facts and circumstances proved in the case are incompatible with the innocence of the respondents and are incapable of explanation on any hypothesis other than the guilt of the respondents for the offences with which they were charged and that the order of their acquittal passed by the High Court in exercise of revisional jurisdiction which as acknowledged by this Court is a limited one has resulted in grave failure of justice. On the other hand, it has been contended by counsel for the defence that there is no infirmity in the impugned order and the High Court was justified in acquitting the respondent in exercise of its plenary revisional power as the material on record was not sufficient to sustain their conviction On the submission of counsel for the parties, two principal points arise for consideration by us (1) the scope of the power of revision under section 439 read with section 435 of the Code of Criminal Procedure, 1898 and when it should be exercised and (2) whether in arriving at concurrent findings, the trial court and the Sessions Judge committed any manifest error on a point of law which had resulted in flagrant miscarriage of`justice.

(2) [1973] 2 S.C.C. 583.

P. Ws. 2, 14, 5, 7, 8, 11, 12, 13, 15 and 17 deserve special mention.

P. P. Bahuguna (P.W. 2) who is the Sales Manager of Orissa Industries Ltd., Barang, since 1956 has deposed that accused Nakula Sahu used to transact business with his Company as proprietor of N. C. Sahu & Sons and Cuttack Plumbing Stores; that detailed entries showing the date, invoice No. and total bill amount of every sale effected by his Company are made in the Sales Day Book, cash book and ledger of the Company and that in the ledger, the transactions with different customers are mentioned in separate folios. The witness has by reference to copies of invoices existing on file No. C. 157 (Exh. 11) consisting of 391 pages containing the record relating to all the transactions of Orissa Industries Ltd. with the Cuttack Plumbing Stores and Nakula Sahu & Sons and ledgers [Exh. 12 to 12(4)] evidencing all transactions with Nakula Sahu, Cuttack Plumbing Stores and N. C. Sahu & Sons and containing cross references to invoices testified that it was for the first time in June 8, 1959 that the Cuttack Plumbing Stores purchased three wash hand basins 22" X 16" of Class I quality from his Company; that from June, 1961 to February, 1962, the Cuttack Plumbing Stores purchased 1704 Class II and 300 Class III wash hand basins 22"X16" from his concern; that apart from these sales there has been no other sale of wash hand basins to accused Nakula Sahu or Cuttack Plumbing Stores or N. C. Sahu & Sons; that Nakula Sahu was transacting business with his Company in respect of all the aforesaid invoices; that in the years 1961 and 1962, the price of class I wash hand basin 27''X16 was about Rs. 53/- per piece and price of Class II and Class III wash band basin 27''X16'' was about Rs. 38.50 and Rs. 23/- per piece respectively; that glass and ceremic products became subject to Central Excise duty for the first time with effect from the mid-night of February 28,1961 and that from that date marking of gradations by stamp and indelible ink were given on wash hand basins produced by his Company; that wash hand basins produced by his Company are marked with rubber stamp as 1st, or 2nd or Com. Or 3rd according to the different gradations of the products; that in some cases, the wash hand basins are marked as I, II, Com., or Ill, in place of 1st, 2nd, Com. Or 3rd respectively; that of all the gradations 1st or I are the best quality; that first quality products are those which have no blemish; that the second quality basins are those having minor defects without affecting their utility; that the third quality products are those having major defects either affecting or not affecting their utility; that by II submitting quotations his Company had made known to the Government Departments that there were wash hand basins of different gradations in his concern; that the gradation marks 011 the wash hand basins made by his concern are the surest guide to the customers regarding the quality of goods. The witness has further affirmed that during the years 1961 and 1962 i.e. from February 28, 1961 to the end of 1962, only 70 to 80 first quality i.e. Class I wash hand basins were produced by his Company and were stamped as such; that from February 28, 1961 to the end of February, 1962 only 54; Class I (first quality) wash hand basins 22''X16'' were produced by his Company; that in November, 1961 and December, 1961, no First quality wash hand basins were manufactured. in the factory of his Company and that though his Company has been attempting to produce first quality wash hand basins, it has not succeeded in producing them in large numbers.

Prasanta Chandra Das (P.W. 17) who is the Inspector of Police attached to Vigilance Branch has stated that on March 28, 1963 he seized 593 wash hand basins of Barang Make bearing 'Orissa' Trade Mark from Public Health Department Stores, Bhubaneswar as pointed out by Niranjan Naik, accused.

From the resume of the prosecution evidence as given above, it is abundantly clear that quotations in regard to the supply of first quality, barang make, 22"X16" wash hand basins submitted by the Cuttack Plumbing Stores, of which Nakula Sahu was the proprietor were accepted by P.W. 7 and work order for supply of 100 wash hand basins of the aforesaid quality, make and size was issued to the former by the latter; that Gopinath Patra who as Executive Engineer, Public Health Department Bhubaneswar, was entrusted with and had dominion over Rs. 1,95,420/- for purchase of wash hand basins and other sanitary fittings entered into criminal conspiracy with Niranjan Naik, who was Section Officer of Project No. 1 Sub Division, Public Health Department, Bhubaneswar and other accused for commission of criminal breach of trust punishable under section 409 of the Indian Penal Code; that in pursuance of the said conspiracy, Gopinath Patra committed criminal breach, of trust in respect of a huge amount of Government funds by dishonestly purchasing between October, 1961 and February, 1962 wash hand basins from the Cuttack Plumbing Stores which were not of first quality, barang make as specified in the tender but were substantially inferior in quality and value to those basins; that pursuant to the said conspiracy, Niranjan Naik, accused dishonestly accepted and took delivery of sub standard wash hand basins differing materially in quality and value from those which were contracted to be supplied and indented for knowing pretty well from their gradation marks which were a sure guide about their quality that they were of inferior quality and appended false certificates in the Measurement Book and on the aforesaid bills Nos. 19, 22 and 25 presented by the Cuttack Plumbing Stores to the effect that the supplies of wash hand basins made by it were correct according to . the specifications mentioned in the order and consequently abetted Gopinath Patra in the commission of the offence of criminal breach of trust punishable under section 409 of the Indian Penal Code and thereby committed an offence under section 409 read with section A 109 of the Indian Penal Code; that from February 28, 1961 to the end of 1962 A.D. Only seventy to eighty first quality wash hand basins were produced by Orissa Industries Ltd., Barang; that except for three first quality wash hand basins purchased by the Cuttack Plumbing Stores in June, 1959 from Orissa Industries Ltd., Barang, the rest of the wash hand basins purchased by Nakula Sahu either in his individual capacity or as proprietor of N. C. Sahu & Sons or as proprietor of the Cuttack Plumbing Stores from the said Company were all of II or III gradation and as such were substantially inferior in quality and value to the specifications mentioned in the tender (Exh. 2) and the work order (Exh. 4) and that save and except the number of wash hand basins detailed ill their depositions before the Court by P.Ws. 2 and 14, who are Sales Manager and Secretary respectively of Orissa Industries Ltd., Barang, no other wash hand basins were purchased by Nakula Sahu or N. C. Sahu & Sons or cuttack Plumbing Stores, of which Nakula Sahu was the proprietor.