EDMUNDS LYNGDOHversusSTATE OF MEGHALAYA

                         [2014] 10 S.C.R. 458


·A                      EDMUNDS LYNGDOH
                                   v.
                       STATE OF MEGHALAYA
                 (Criminal Appeal No. 2056 of 2014)
                        SEPTEMBER 16, 2014
 B
             [T.S. THAKUR AND R. BANUMATHI, JJ.]

           Penal Code, 1860: ss. 420, 1208; Prevention of
     Corruption Act, 1947: s.5(2) -A-1, the Chief Engineer of North
 C   Eastern Hill University (NEHU) - Allegation that A-1 along
     with other officials of NEHU formed a Purchase Committee
     - All of them colluded together for procurement of cement at
     exorbitant rates from A-4 and A-5 during period 1982 to 1985
     - The exorbitant rates were accepted without conducting any
 D   survey for ascertaining the then prevalent market rate of
     cement - Conviction of A-1 u/ ss.420, 1208 /PC and s.5(2)
     of 1947 Act and of A-4 uls.420 r/w s.1208 /PC challenged -
     Held: There was ample evidence that the Purchase
     Committee was misled by A-1 to approve the quotation of A-
 E   4 at inflated rate - Based on oral and documentary evidence,
     courts below recorded concurrent findings of fact that the
     Purchase Committee consisted of the non-technical members
     and A-1 being a Technical Member played a dominant role
     in inducing the Purchase Committee to purchase cement at
 F   an inflated rate -A·1 was rightly convicted by the courts below
     - As regards A-4, being the dealer, he quoted inflated price
     in order to make wrongful gain to himself and to cause
     wrongful loss to NEHU and, therefore, he was rightly convicted
     u/s. 420 rlw s. 120-B - However, in view of age of A-4 and
 G   duration of pendency of matter, sentence of A-4 modified to
     period already undergone.

          Code of Criminal Procedure, 1973: s.313 - Held: Where
     the accused gives evasive answers in his cross-examination

 H                                458
 EDMUND S LYNGDOH v. STATE OF MEGHALAYA                  4·59


uls.313, an adverse inference can be drawn against him- But     A
::uch inference cannot be a substitute for the evidence which
the prosecution must adduce to bring home the offence of the
accused.

     Delay!Laches: Delay in lodging FIR - Held: In continuing   B
offence, no duration of time can be fixed for lodging FIR.

    Partly allowing the appeal of A4 and dismissing the
appeal of A-1, the Court

     HELD: 1. There was ample evidence and C
circumstances that the Purchase Committee was misled
by A-1 to approve the quotation of A-4 at the inflated rate
of Rs.42.75 per kg. During questioning under Section 313
Cr.P.C., when A-1 was questioned about the then
prevalent market rate of cement, he stated that he was D
not aware of the same. Referring to the same, the High
Court observed that it was an evasive reply and the same
was taken as a piece of evidence against him to complete
the chain of circumstances. Where the accused gives
evasive answers in his cross-examination under Section E
313 Cr.P.C., an adverse inference can be drawn against
him. But such inference cannot be a substitute for the
evidence which the prosecution must adduce to bring
home the offence of the accused. Based on the oral and
documentary evidence, the courts below recorded
                                                            F
concurrent findings of fact that the Purchase Committee
consisted of the non-technical members and A-1 being
a Technical Member played a dominant and crucial role
in inducing the Purchase Committee to purchase cement
at an inflated rate when the market rate at the relevant
period was Rs. 5/- to Rs. 10/- per kg. There was no G
perversity in the concurrent findings recorded by the
courts. [Paras 14, 19, 21 to 23] [467-D; 470-C-D; 471-B-
C; 472-A-C]

                                                                H
    460      SUPREME COURT REPORTS           [2014] 10 S.C.R.


A         Bishnu Prasad Sinha & anr. State of Assam (2007) 11
    sec 467 - relied on.
      2. Delay in lodging FIR. A-1 in collusion with other
  accused persons invited quotations on 12.12.1982 from
  the 12 firms for the supply of cement and DPC was
8
  procured during 1982 to mid 1985. The complaint was
  lodged by Vice Chancellor on 3.7.1985 based on which
  FIR was registered. Delay in lodging the FIR is not fatal
  to the prosecution case as supply of cement was
  continuously made from 1982 to mid 1985 and it was a
C continuing offence. In matters of continuing offence no
  duration of time can be fixed for lodging the complaint.
  [Paras 28, 30) [473-F-G; 474-8-C)

       3. Being the dealer, A-4 quoted inflated price in order
D to make wrongful gain to himself and to cause wrongful
  loss to NEHU. The essence of conspiracy is that there
  should be an agreement between persons to do one or
  other of the acts constituting the act under Section 1208
  IPC. The facts and incriminating circumstances so proved
E must form the full chain whereby the agreement between
  the accused and their guilt can be safely inferred. The
  High Court rightly convicted A-4 under Section 420 IPC
  read with Section 1208 IPC. A-4 is stated to be seventy
  years old and is said to be undergoing treatment for Type
F II Diabetes. The matter is lingering on for about three
  decades. Having regard to the duration of the pendency
  of the matter and age of A-4 and that he has already paid
  fine amount and also deposited the amount as per the
  order of this Court, the period of sentence of
  imprisonment imposed on A-4 for the conviction under
G Section 420 IPC and Section 1208 IPC shall be modified
  to the period already undergone and by imposing further
  fine amount of Rs. 2,50,000/- in addition to the fine
  imposed by the trial court and the amount deposited
  pursuant to the orders of this Court. [paras 32 to 35, 37,
H 38) [475-E, G; 476-A, 8, D, H; 477-A, F-G]
 EDMUND S LYNGDOH v. STATE OF MEGHALAYA                    461


                     Case Law Reference:                           A
    c2001) 11 sec 467         relied on             Para 21
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 2056 of 2014.
                                                                   B
     From the Judgment and Order dated 26.11.2010 of the
Shillong Bench of the High Court of Gauhati in Criminal Appeal
No. 2 (SH) 2000 alongwith Criminal Appeal No. 1 (SH) 2000
and 1 (SH) 1999.

                            WITH                                   c
Crl. Appeal No. 2057-58 of 2014

    Huzefa Ahmadi, V. Hari Pillai, Themis Diengdoh, Susha
Unni, Rohan Sharma, Rishi Malhotra, Arunabh Chowdhury,             D
Vaibhav Tomar, Anupam Lal Das for the Appellant.

    Ranjan Mukherjee, B.V. Balaram Das, P.K. Dey, P.L.
Nigam, Arvind Kumar Sharma for the Respondent.

    The Judgment of the Court was delivered by                     E
    R. BANUMATHI, J. 1. Leave granted.
     2. These appeals arising out of SLP (Crl.) Nos. 2203-
2204/2011 are filed challenging the judgment of the Gauhati
High Court confirming the conviction of the appellant-first        F
accused (Deva Prasad Sharma) under Section 420 IPC, 1208
IPC and Section 5(2) of Prevention of Corruption Act, 1947 (for
short 'the P.C. Act') and enhancement of the sentence imposed
on him. Fourth accused (Edmund S. Lyngdoh) has preferred
SLP (Crl.) No.553/2011 challenging the reversal of his acquittal   G
and assailing the conviction under Section 420 IPC read with
Section 1208 IPC.

    3. Deva Prasad Sharma (A-1) died on 9.10.2011 during
the pendency of the petition before this Court and his legal       H
    462      SUPREME COURT REPORTS                 [2014] 10 S.C.R.


A representative was brought on record by this Court's Order
  dated 14.11.201.1 in CrL Appeal arising out of SLP (Crl.)
  Nos.2203-2204/11 and his son Debashish Sharma is pursuing
  the appeal.

B         4. Briefly stated, case of the prosecution is that Deva
    Prasad Sharma (First accused) was the then Chief Engineer
    of North Eastern Hill University, Shillong (for short 'NEHU'),
    Stetnel Roy (A-2) was the Accounts Officer, W.M.R. Wahlang
    (third accused) was the then Assistant Finance Officer, Edmund
    S. Lyngdoh, proprietor of M/s E.S. Enterprise (A-4) and T.S.
C   Bareh, proprietor of M/s Premiere Enterprise (A-5), N.P. Garg,
    Executive Engineer, Shri G.L. Sharma, Jr. Engineer, Sanjay,
    Sr. Technical Assistant and Shri H. Nongkynrih, Section Officer,
    Construction Division of NEHU have colluded together for
    procurement of Damp Seal Cement from some fictitious and
D   non-existent firms at an exorbitant rate during t:ie year 1982 to
    mid 1985. In furtherance of this collusion, it is alleged that A-1
    invited quotation on 12.12.1982 from 12 firms for supply of
    Damp Proof Cement (DPC) at the rate of Rs.42.75 per kg.
    though the then actual market rate was Rs.5/- to Rs.7/- per kg.
E   Even though the Purchase Committee had approved only two
    firms for supplying the materials, A-1 is alleged to have placed
    orders from many firms and persons without ascertaining the
    available stock and actual requirement which resulted in leaving
    huge quantities of the materials so purchased unused. On the
F   basis of the complaint lodged by Dr. B.D. Sharma, the then
    Vice-Chancellor of NEHU, case was registered and
    investigation was taken up by the CBI. In the course of
    investigation, CBI found a prima facie case against A-1 to A-
    3, Shri Edmund S. Lyngdoh, the owner of the firm M/s E.S.
G   Enterprises (A-4), Shri T.S. Bareh of M/s. Premiere Enterprises
    (A-5) and other suppliers and charge sheeted them under
    Section 120B IPC read with Section 420 IPC and Sections
    5(2) read with 5 (1 )(d) of the Prevention of Corruption Act, 1947.
    At the investigation stage, others were dropped from the case
H   and chargesheet was filed only against A-1 to A-5. The trial
  EDMUND S LYNGDOH v. STATE OF MEGHALAYA                   463
             [R. BANUMATHI, J.]

court framed the charges against A-1 to A-3 under Sections         A
120B IPC read with 420 IPC and Section 5(2) read with Section
5(1)(d) of the PC Act, 1947, to which they pleaded not guilty.
As far as A-4 and A-5 are concerned, charges were framed
against them under Sections 120B IPC and 420 IPC. The trial
court convicted A-1 under Section 120B IPC read with Section       B
420 IPC and under Section 5(2) of the PC Act and sentenced
him to undergo imprisonment. A·2 to A-5 were acquitted of the
charges.

     5. Being aggrieved by the acquittal of A-2 to A-5 and also    G
seeking for enhancement of punishment for the first accused,
CBI preferred appeal before the High Court challenging his
conviction and sentence of imprisonment imposed by the trial
court. Both the appeals were heard together and the learned
single Judge of the Gauhati High Court enhanced the
punishment imposed on the first accused, and dismissed the         D
appeal preferred by the first accused. The details of conviction
of A-1 and the sentences imposed on him by the trial court and
enhancement of sentence by the High Court is as under:

               Trial Court                 High Court              E
  Conviction      Sentence       Conviction       Sentence

 Section 120B 4 months SI & Section 120B          3 years RI o1
 of IPC       fine of Rs.    IPC                  and fine of
              15,000/- in                         Rs.50,000/-      F
              default to                          in default to
              undergo SI for                      undergo RI
              two months.                         for one year.

  Section 420     6 months of SI Section 420      5 years RI       G
  IPC             and fine of    IPC              and fine of
                  Rs.15,000/-                     Rs.1,00,000/-
                  in default to                   in default to
                  undergo SI for                  undergo RI
                  2 months.                       for one year.    H
    464     SUPREME COURT REPORTS                [2014] 10 S.C.R.


A    Section 5(2)    1 year of SI & Section 5(2)     5 years RI
     PC Act           fine of       (d) of P.C.      and fine of
                     Rs.25,000/-    Act.             Rs.1,00,000
     -               in default to                   in default to
                     undergo SI for                   undergo RI
                     two months.                     for one year.

        6. A-2 died during the pendency of appeal before the High
  Court. The acquittal of accused 3 to 5 was reversed and they
  were convicted under Sections 1208 IPC and 420 IPC. So far
c as imposing the quantum of sentence, the High Court
  remanded the matter to the trial court with a direction to pass
  appropriate orders after giving opportunity to the Accused 3 to
  5 in regard to the quantum of sentence under Section 235 (2)
  Cr.P.C. Being aggrieved with the order of reversal of acquittal,
D the appellants are before us. Pursuant to the order of this Court
  dated 31.01.2011, trial court passed order imposing sentence
  upon fourth accused. For the conviction under Section 420 IPC
  and Section 1208 IPC, fourth accused was imposed sentence
  of imprisonment of iive years and three years respectively and
  fine was also imposed.
E
        7. We have heard the submission of the learned counsel
  for the appellants and the respondents and we have given our
  due consideration to the same.

F      8. Re: Criminal Appeal qua first accused Deva Prasad
  Sharma (since dead) : First accused was the Chief Engineer
  of the NEHU at the relevant time and the first accused and A-
  2 and A3 were Technical Members in the Purchase Committee.
  On 12.12.1982, first accused invited sealed quotations from 12
  firms for the supply of Damp Proof Cement (DPC) without
G mentioning the quantity and quality required. In response,
  quotations were received from six firms and the same were
  scruti?ized on 6.4.1983 which is. said to be in contravention of
  norms and procedure and the rate of Rs.42.75 per kg quoted
  by M/s. Premiere Enterprises (A-5) and M/s. Edmund S.
H
 EDMUNDS LYNGDOH v. STATE OF MEGHALAYA                     465
           [R. BANUMATHI, J.]
Lyngdoh (A-4) were found to be the lowest and after making         A
comparative statement, A-1 appended his initial with date.

     9. On 7.04.1983, A-1 placed order upon four different firms
of A-4 - Mis Edmund S. Lyngdoh and Mis Premiere Enterprise
belonging to T.S. Bareh (A-5) for supply of 2 metric tones (MT)
                                                                   B
each at the quoted price of Rs. 42.75 per kg. On 04.06.1983
in terms of the order placed and the prices quoted, fourth
accused through his firm Mis Edmund S. Lyngdoh and Mis E.S.
Enterprise and also Mis T.S. Bareh supplied DPC at the rate
of Rs.42. 75 per kg. On 06.07.1983, the Purchase Committee         C
of NEHU, in which first accused was the Technical Member
approved the rate of Rs. 42.75 per kg quoted by the fourth
accused and Mis Premiere Enterprises for purchase of DPC.

     10. The learned counsel for the first accused contended
that there is no evidence to show that A-1 had induced the         D
Purchase Committee to approve the rates of two firms Mis
Premiere Enterprises and Mis Edmunds S. Lyngdoh- fourth
accused at the rate of Rs.42.75 per kg. and as the contract was
awarded to the lowest tenderer, there was no question of A-1
inducing the Purchase Committee by deception to purchase           E
DPC at an exorbitant price and it was the Purchase Committee
which on its own approved the rate on the basis of comparative
statement of the prices quoted by the tenderers as prepared
by the officials.

     11. The learned counsel for the respondent submitted that     F
quotations were floated by the first accused even prior to the
matter being taken up by the Purchase Committee and as the
Chief Engineer of NEHU- first accused must have known the
then prevailing market rate and as Technical Member of the
Purchase Committee the first accused should have assisted          G
the non-technical members in the purchase of DPC at the then
prevalent market rate. The learned counsel submitted that
adequate evidence has been adduced by the prosecution to
bring home the guilt of first accused that he induced the
                                                                   H
    466     SUPREME COURT REPORTS                 [2014] 10 S.C.R.


A   Purchase Committee to purchase DPC at an inflated rate of
    Rs.42.75 per kg.

         12. PW-6, Sri 0.0. Shira, the then Assistant Registrar of
    Administration, NEHU during 1983 was the convener of the
B   Purchase Committee and he called for a meeting of the
    Purchase Committee on 6.7.1983. Ext. P1 is the file relating
    to Purchase Committee Meeting held on 6. 7.1983. As per
    Ext.P1 (1), there was no agenda for the purchase of DPC.
    However, the first accused managed to introduce the item
    before the Purchase Committee, agenda found place in
C   resolution no.14 [Ext. P1 (5)] relates to the purchase of Damp
    Seal Water Proofing Compound for use in the department
    campus at Umshing. Purchase Committee accepted the lowest
    rate of Rs.42.75 per kg quoted by the appellanUfourth accused
    and M/s. Premiere Enterprises, Jowai. Based on the evidence
D   of PW-6 and Resolution vide P1 (5), trial court and the High
    Court recorded concurrent findings of fact that before ever the
    Purchase Committee approved the rate, quotations were
    already invited by accused No.1 and A-1 being one of the
    technical members in the Purchase Committee managed to
E   introduce the item in the meeting of the Purchase Committee
    for approving the rate quoted by fourth accused and M/s
    Premiere Enterprises at the rate of Rs.42.75 per kg as A-1 was
    taken into confidence by the Purchase Committee.

F      13. In her evidence PW-9, Smt. M.R. Mawlong who was
  the then Registrar of NEHU from February 1980 to March 1984
  stated that first accused being the Chief Engineer was the
  Technical Member of the Purchase Committee and "Purchase
  Committee depended on the suggestion of the Technical
  Member who was in the rank of a Chief Engineer as regards
G the rate of DPC'. The object of having technical members in
  the Purchase Committee was with a view to assist the non-
  technical members concerning any matter of technical nature
  and to guide them, as regards the utility, prevailing rate and the
  quantity required of the said item for the Institution. Role of the
H
 EDMUND S LYNGDOH v. STATE OF MEGHALAYA                      467
            [R. BANUMATHI, J.]

Technical Members in the Purchase Committee becomes vital            A
and important and it was expected that the Technical Members
namely the first accused (Deva Prasad Sharma) and the
second and third accused are to contribute their technical
knowledge and give their best possible opinion, suggestion and
advice to the Purchase Committee in making purchases of              B
quality materials at the prevalent market rate. We find no
substance in the contention that there is nothing to show that
the technical members first accused and A-2 and A-3 have
misled the Purchase Committee and that Purchase Committee
had taken the decision on its own to make purchase of DPC.           c
     14. There is ample evidence and circumstances justifying
the conclusion of the trial court and High Court that the Purchase
Committee was misled by the first accused to approve the
quotation of fourth accused - M/s Edmund S. Lyngdoh and M/
s Premiere Enterprises at the inflated rate of Rs.42.75 per kg.      D
To fortify the same, we may briefly refer to few facts and
circumstances as recorded by the trial court and the High Court:

      (i)     Before the approval of the rate by the Purchase
              Committee, five quotations for supply of the DPC       E
              invited by A-1 on his own were already in existence;

      (ii)    As per Ext. P1 (1), there was no agenda for the
              purchase of DPC in the meeting of Purchase
              Committee held on 6.7.1983 and the said agenda
                                                                     F
              was introduced in Resolution No. 14 vide Ext.P1 (5)
              with regard to purchase of DPC and A-1 being a
              Technical Member in the Purchase Committee
              managed to introduce the item for purchase of
              DPC as one of the agendas;
                                                                     G
      (iii)   First accused being the Chief Engineer did not take
              steps for survey through quotation or by any other
              method to ascertain the then prevailing market rate
              of DPC;
                                                                     H
    468          SUPREME COURT REPORTS             [2014] 10 S.C.R.


A         (iv)    Purchase Committee depended on the suggestion
                  of the Technical Members - first accused and others
                  as regards the rate of DPC;

          (v)     First accused did not ascertain the available stock
                  of DPC or the actual requirement of DPC for
B
                  NEHU;

          (vi)    First accused invited quotations from 12 firms out
                  of which only two firms were approved firms by
                  Purchase Committee.
c
       15. Learned counsel for A-1 submitted that from the
  evidence adduced by the prosecution, it cannot be conclusively
  held that the then prevalent market rate of DPC was Rs. 5/- to
  Rs. 6/- per kg. at the relevant time inasmuch as no documentary
D evidence to that effect or any price list of DPC in the open
  market at that time was produced by the prosecution and while
  so the courts have grossly erred in convicting A-1 on the basis
  of oral testimony. It was further contended that the High Court
  erred in placing reliance upon the answers of A-1 recorded
E under Section 313 Cr.P.C. as one piece of evidence to
  complete the link in the chain of circumstances against the first
  accused.

        16. To prove that the then market rate of DPC at Shillong
  was ranging from Rs.5/- to Rs.10/- per kg, prosecution has
F adduced adequate evidence. PW-5, Sri Satinder Bawa who
  is the Director of firm Bawa Paints Pvt. Ltd. which manufacture
  paints and water proof compound since the year 1965 and the
  products of his firms are sold to various distributors including
  M/s Premiere Enterprises and others and all over the North
G Eastern States including Meghalaya and Jowai area and the
  products were sold during 1982-1983 also. In his evidence PW-
  5 stated that during 1982-1984, 50 Kg. of Damp Proof Cement
  were sold at the rate between Rs. 80/- to Rs.85/- at Delhi plus
  taxes and one kilogram packet, used to be sold at Rs. 2.80/-
H to Rs. 3.80/- at Delhi. PW 5 further stated that in Shillong, the
 EDMUND S LYNGDOH v. STATE OF MEGHALAYA                       469
            [R. BANUMATHI, J.]
rate of one kilogram of DPC would then be in the range of Rs.        A
6/- to Rs. 7/- per kg. which is inclusive of taxes, transportation
and profit.                                                          ••
     17. PW-16, Sri Santosh Kumar Chachan is the proprietor
of M/s Gajanand Chachan of Barabazar, Shillong which deals
                                                                     8
with hardware, paints and building materials including water
proofing cement. As per the evidence of PW-S, PW-16 Mis
Gajanand Chachan is also one of the firms to whom DPC and
paints was supplied by PW-S. Corroborating the evidence of
PW-S, PW-16 stated that his firm was dealing with water              C
proofing cement during 1982-1984 and he used to purchase
paints and water proofing cement from Delhi, Calcutta and
sometimes from Gauhati during 1983-1984, and prices of
water proofing cement during that period was Rs. S/- per kg.
which was sold at Shillong. From the evidence of PWs S and
16, it is amply established that the market rate of DPC at the       D
relevant time was Rs. 2.80 to Rs. 3.80 per kg in Delhi and in
Shillong, the rate was Rs.6/- to Rs.7/- per kg and the rate at
Rs.42.7S per kg. is an inflated one and the quotations submitted
by fourth accused and accepted by first accused was with
ulterior motive.                                                     E

      18. Apart from establishing the then prevailing market rate
by examining PWs Sand 16, prosecution has also examined
PW-13, Sri N.P. Garg who has worked in NEHU since 1984
as Executive Engineer who is also aware of the use of Damp           F
Seal Cement in the construction work. Through PW-13, Ext.PS,
the Work File for the construction work of Intake Water Tank at
Wahjarain for the period of 6.9.1983 and by item 7 (17) Rs.10/
- -per kg. was paid for Water Proofing Compound (DPC) along
with other item and the work was done by contractor Hansraj          G
Jain and the amount was paid to him. Referring to the evidence
of PW-13 and Ext.PS, the trial court and the High Court
recorded findings of fact that the defence neither impeached
his credibility nor challenged Ext.PS Bill as per which Rs.10/-
per kg. was paid for DPC for water proofing compound and
                                                                     H
    470      SUPREME COURT REPORTS              [2014] 10 S.C.R.


A that Ext.P5 would be corroborative evidence so far as the rate
  of water proofing compound (DPC) was Rs. 10/- per kg. during
  the period of 1983. From the evidence of PW-5 and PW-16,
  the dealers in DPC, and from the earlier Work File (Ext.P5) as
  spoken by PW-13, the prosecution has clearly established that
B the then prevalent market rate of DPC was Rs.5/- to Rs.10/-
  per kg.

       19. Before placing the subject for purchase of DPC in
  Purchase Committee Meeting held on 6.07.1983, as pointed
  out by the trial court, no survey was conducted nor any other
C method was adopted by first accused for ascertaining the then
  prevalent market rate of DPC. During questioning under
  Section 313 Cr.P.C., when the first accused was questioned
  about the then prevalent market rate of DPC, first accused
  stated that he was not aware of the same. Referring to the
D same, the High Court observed that it is an evasive reply and
  the same was taken as a piece of evidence against the
  accused to complete the ctiain of circumstances.

        20. Insofar as contention taking the statement of first
E ·accused recorded under Section 313 Cr. P.C., as an evidence
   it was submitted that the statement under Section 313 Cr. P.C.
   cannot be taken as an incriminating evidence against the
   accused. Of course, the High Court in extenso referred to the
   statements of the first accused put to him in his cross-
F examination under Section 313 Cr.P.C. and observed as
   under:-

                "A-1 did not utter a single word to assail that the
          market rate of DPC at Shillong at the relevant time was
          ranging from Rs.51- to Rs.101-. All that he said was that
G         he was not aware of the market rate of a DPC at that time
          or that Rs.42. 75 was accepted and approved rate of
          DPC. These evasive replies, taken together with
          evidence of PW-6 and PW-13 and item no. 7(17) of_ Ext.
          P-5, complete the link in the chain of circumstances
H         against A-1".
     EDMUNDS LYNGDOH v. STATE OF MEGHALAYA                          471
               [R. BANUMATHI, J.]
         After so observing, the High Court held that those evasive         A
    replies under Section 313 Cr. P.C. taken together with the
    evidence complete the link in the chain of circumstances
    against A-1.

          21. Where the accused gives evasive answers in his cross-         B
    examination under Section 313 Cr.P.C., an adverse inference
    can be drawn against him. But such inference cannot be a
    substitute for the evidence which the prosecution must adduce
    to bring home the offence of the accused. The statement under
    Section 313 Cr.P.C. is not an evidence. In Bishnu Prasad                C
    Sinha & Anr. Vs. State of Assam, (2007) 11 SCC 467, this
    Court held that conviction of the accused cannot be based
    merely on his statement recorded under Section 313 Cr.P.C.
    which cannot be regarded as evidence. It is only the stand or
    version of the accused by way of explanation explaining the
    incriminating evidence/circumstances appearing against him.             D
    The statement made in defence by the accused under Section
    313 Cr.P.C. can certainly be taken aid of to lend credence to
    other evidence led by the prosecution. Statements made under
    Section 313 Cr.P.C. must be considered not in isolation but in
    conjunction with the other prosecution evidence.                        E

          22. In the present case, it is not as if the High Court arrived
    at the conclusion and based conviction only on the statement
    made by the first accused under Section 313 Cr.P.C. As seen
    from the reasonings of the High Court extracted above, the              F
    statement of first accused under Section 313 Cr.P.C. was
    taken with the evidences of PW-6 and PW-13 and items 7(17)
    of Ext. PS as a link to complete the chain of circumstances
    against A-1. As elaborated earlier, the answers given by the
    first accused were considered not in isolation but in conjunction       G
    with other oral and documentary evidence. We find no
    substance in the contention that the High Court erred in taking
    the statement of first accused under Section 313 Cr.P.C. as a
    link to complete the chain of circumstances.
                                                                            H
•                                      ...
    472      SUPREME COURT REPORTS               [2014] 10 S.C.R.


A      23. Based on the oral and documentary evidence, the trial
  court and the High Court recorded concurrent findings of fact
  that the Purchase Committee consisting of the non-technical
  members, the first accused being a Technical Member played
  a dominant and crucial role in inducing the Purchase
B Committee to purchase DPC at an inflated rate of Rs. 42.75
  per kg. when the then prevalent market rate at the relevant
  period was Rs. 5/- to Rs. 10/- per kg. and we see no perversity
  in the concurrent findings recorded by the courts.

C        24. Contention regarding validity of sanction: Ext.P19 is
    the sanction order for prosecution against A-1 and the same
    was under the signature of the then Chief Secretary,
    Government of Meghalaya. PW-18, Sri Kharkongor, Secretary
    in the Political Department, Government of Meghalaya was
    examined through whom Ext. pg sanction order was exhibited.
D
       25. Learned counsel for A-1 contended that under Section
  6 of PC Act "no court shall take cognizance of offence unless
  previous sanction is obtained ........ " and so far as A-1 is
  concerned, Chief Secretary is not the competent authority to
E remove A-1 and A-1 was appointed by the Governor and the
  Governor of Meghalaya is the appointing authority, and therefore
  the sanction should be to the satisfaction of the Governor and
  Chief Secretary is only the authority communicating the sanction
  and the prosecution has not adduced any material to show that
F appointing authority - Governor of Meghalaya was satisfied that
  the relevant material to approve the sanction for prosecuting
  A-1 was placed before him.

        26. The learned counsel for the respondents had taken us
  through the evidence of PW-18 and submitted that the Chief
G Secretary accorded the sanction on the basis of report of CBI
  placed before him and other materials as reflected in the note
  sheet of the file and then accorded the sanction for prosecuting
  A_.1 and there is valid sanction for prosecution of A-1. Referring
  to the evidence of PW-18, the courts observed that the then
H Chief Secretary accorded the sanction on the basis of the
                                  ..                                   '
 EDMUNDS LYNGDOH v. STATE OF MEGHALAYA                      473
           [R. BANUMATHI, J.]
report of CBI as reflected in the note sheet of the fiie and the    A
sanction order does not suffer from any infirmity.

     27. As per Article 166 (2) of the Constitution of India, all
orders and other instruments made and executed in the name
of Governor shall be authenticated in such manner as may be         8
specified in rules to be made by the Governor and the validity
of an order or instrument which is so authenticated shall not be
called in question on the ground that it is not an order or
instrument made or executed by the Governor. It was not
suggested to PW-18 that Chief Secretary has no power
whatsoever to authenticate the orders and instruments made          C
and executed in the name of Governor. During trial, the first
accused also did not insist for production of the file nor
suggested that the sanction order was not approved by the
Governor. Referring to Article 166 of the Constitution of India,
the trial court observed that the State must be having certain      D
rules where orders and other instruments made and executed
in the name of the Go'l(ernor to be authenticated by certain
officers of the State Government, the trial court negatived the
contention of the first accused challenging the validity of
sanction. We find no merit in the contention challenging the        E
validity of sanction to prosecute first accused.

     28. Contention regarding delay in lodging FIR: The
accused A-1 in collusion with other accused persons invited
quotations on 12.12.1982 from the 12 firms for the supply of        F
Damp Proof Cement (DPC) and DPC was procured during
1982 to micj 1985. Ext. P11 complaint was lodged by Dr. B.D.
Sharma, Vice Chancellor, NEHU, Shillong, Meghalaya on
3.7.1985 based on which FIR was registered. On behalf of the
appellant/first accused it was contended that FIR was registered    G
nearly after two years which creates serious doubts about its
genuineness, more so, when the Vice Chancellor on whose
complaint FIR was registered was not examined as a witness.

    29. Per contra, the learned counsel for the prosecution
submitted that DPC was procured during 1982 to mid 1985 and         H
    474     SUPREME COURT REPORTS                [2014] 10 S.C.R.


A the offence being a continuing offence and it cannot be said
  that there was a delay in lodging the FIR and non-examination
  of the complainant-Vice Chancellor was not fatal to the
  prosecution case.

          30. Mere delay in lodging the FIR is not necessarily fatal
8
    to the prosecution case. As rightly contended by the learned
    counsel for the respondent-CBI, supply of DPC was
    continuously made from 1982 to mid 1985 and it was a
    continuing offence. In matters of continuing offence no duration
C   of time can be fixed for lodging the complaint. First accused in
    collusion with other accused persons induced the Purchase
    Committee for purchase of DPC at an exorbitant rate of
    Rs.42.75 per kg and only when the conspiracy came to the fore,
    the Vice-Chancellor lodged the complaint. In cases of abuse
    of powers and obtaining pecuniary advantage and causing
D   wrongful loss, time of lodging complaint and registration of FIR
    cannot be considered on the touchstone of prompt lodging of
    complaint like other cases of murder, qacoity and assault etc.,
    where there are possibilities of exaggeration and
    embellishments being crept in. In cases of abuse of position
E   by the persons holding official position, and causing wrongful
    loss, prosecution case is based on documentary evidence and
    oral evidence of other official witnesses and hardly any
    possibility of concoction and introduction of coloured version.
    We find no merit in the contention that the delay in lodging FIR
F   raises doubts about the genuineness of the prosecution case.

       31. The gist of the offence under Section 5(1 )(d) is that a
  public officer abusing his position as a Public Servant obtains
  for himself or for any other person any valuable thing or
G pecuniary advantage. The word "abuse" means, misuse i.e.
  using his position for something for which it is not intended.
  Based on oral and documentary evidence, the trial court and
  the High Court recorded the concurrent findings of fact that first
  accused, Chief Engineer being Technical Member of the
  Purchase Committee, it was his duty to advise the Purchase
H
 EDMUNDS LYNGDOH v. STATE OF MEGHALAYA                    475
           [R. BANUMATHI, J.]
Committee about the then prevailing market rate of DPC to A
enable NEHU to purchase DPC at the market rate. The first
accused was primarily responsible for the commission of the
offence and the first accused by abusing his position as Chief
Engineer and Technical Member got the inflated rate of DPC
at Rs.42.75 per kg approved when the same was available in B
the local market at price ranging from Rs.5/- to Rs.10/- per kg.
and A-1 obtained pecuniary advantage to himself and also to
accused 4 and 5 and caused wrongful loss to NEHU to the tune
of Rs.49 lacs. The first accused was rightly convicted under
Sections 1208 IPC and 420 IPC and also under Section 5(2)(d) c
of the PC Act. Having regard to the gravity of the offence and
the extent of loss caused to the NEHU, the High Court rightly
enhanced the sentence of imprisonment imposed for various
offences for which the first accused was convicted and we find
no reason to interfere with the same. The appeal preferred by D
the first accused and now pursued by his legal representative .
fails and the same is dismissed.

     32. Re: Criminal Appeal qua the fourth accused - Edmund
S. Lyngdoh: The fourth accused Edmund S. Lyngdoh, the
proprietor of M/s Edmund S. Lyngdoh, had also supplied DPC        E
to NEHU at the rate of Rs.42.75 per kg. Being the dealer,
dealing with DPC, Edmund must have known the market rate
of DPC; the then market rate of DPC which was ranging from
Rs.5/- to Rs. 10/- in those days. Even if A-1 was silent on the
said market price, fourth accused, Edmund must have               F
disclosed the market rate of DPC and must have quoted the
then prevalent market price of DPC which was ranging from
Rs.5/- to Rs.1 O/; but the fourth accused quoted inflated price
of Rs. 42.75 per kg in order to make wrongful gain to himself
and to cause wrongful loss to NEHU. -                             G

      33. To bring home the guilt of the criminal conspiracy,
prosecution should prove ; (i) that the accused agreed to do
or caused to be done an act that was illegal or was to be done
by illegal means; (ii) that some overt act was done by one of     H
    476      SUPREME COURT REPORTS                [2014] 10 S.C.R.


A   the accused in pursuance of the agreement. The essence of
    conspiracy is that there should be an agreement between
    persons to do one or other of the acts constituting the act under
    Section 1208 IPC. First accused is alleged to have conspired
    with fourth accused and others to supply DPC at an inflated
8   price to NEHU of Rs. 42.75 per kg as against the then prevalent
    market rate of Rs.5/- to Rs.10/- per kg. In furtherance of the
    conspiracy, fourth accused supplied Six MTs of DPC and
    thereby said to have caused wrongful loss of about Rs. 6 lacs
    to NEHU.
c       34. Agreement among the conspirators can be inferred by
  necessary implications, and the inference can be drawn on the
  proved facts. The facts and incriminating circumstances so
  proved must form the full chain whereby the agreement between
  the accused and their guilt can be safely inferred. Fourth
D accused supplied DPC to NEHU at an inflated rate of Rs. 42.75
  per kg and had obtained pecuniary advantage for himself and
  also to first accused and thereby caused wrongful loss to
  NEHU. In the light of evidence and proved facts, the High Court
  rightly reversed the acquittal and convicted the fourth accused
E under Section 1208 IPC.

        35. So far as the fourth accused is concerned, he was also
  convicted for the offence under Section 420 IPC. The offence
  of cheating is made of two ingredients: "deception of any
F person and fraudulently or dishonestly inducing that person
  to deliver any property to any person or to consent that any
  person shall retain any property". In collusion with first accused,
  the fourth accused quoted and supplied DPC at an inflated rate
  of Rs.42.75 per kg, fourth accused dishonestly induced NEHU
G to purchase DPC. Fourjh accused has taken stand that he did
  not know the then prevalent market rate of DPC at Shillong. As
  a supplier and also dealing with DPC, it is incomprehensible
  that the fourth accused did not know the prevalent market rate.
  The High Court rightly negatived the defence version and

H
 EDMUND S-l..YNGDOH v. STATE OF MEGHALAYA                    477
              [R. BANUMATHI, J.]
convicted the fourth accused under Section 420 IPC read with         A
Section 120B IPC.

     36. The High Court remitted the matter to the trial court to
hear the accused on the question of sentence and pass
appropriate orders. In the meanwhile, the fourth accused
                                                                     B
preferred appeal in this Court and also filed an application
seeking for a direction to the trial court not to pass sentence.
By order dated 31.01.2011 this court ordered that trial court will
proceed on the sentence and pass appropriate orders.

     37. By order dated 14.06.2011, the trial court sentenced        C
the fourth accused to undergo five years rigorous imprisonment
with fine of Rs. one lakh with default clause for the offence
punishable under Section 420 IPC; for the offence under
Section 120B IPC fourth accused was sentenced to undergo
three years rigorous imprisonment with a fine of Rs.50,000/-         D
alongwith default clause and both the sentences were ordered
to run concurrently. The fourth accused had undergone sentence
of imprisonment from 14.06.2011 till 16.02.2012 totally 248
days. By the order of this Court dated 16.02.2012, the sentence
imposed on fourth accused was ordered to be suspended                E
subject to the petitioner/fourth accused depositing a sum of
Rs.3,50,000/- roughly representing 50% of the excess amount
allegedly gained by him towards the price of the DPC supplied.
The fourth accused is stated to be seventy years old and is said
to be undergoing treatment for Type II Diabetes. The matter is       F
lingering on for about three decades.

     38. Having regard to the duration of the pendency of the
matter and age of the fourth accused and that he has already
paid fine amount and also deposited the amount as per the
order of this Court, in our view, the period of sentence of          G
imprisonment imposed on the appellant-fourth accused for the
conviction under Section 420 IPC and Section 120B IPC shall
be modified to the period already undergone and by imposing
further fine amount of Rs. 2,50,000/- in addition to the fine
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    478      SUPREME COURT REPORTS                 [2014] 10 S.C.R.


A   imposed by the trial court and the amount deposited pursuant
    to the orders of this Court. In default of payment of the said fine
    amo~nt of Rs.2,50,000/-, the fourth accused shall undergo
    imprisonment of one year.

B        39. The appeal preferred by first accused now pursued by
    his legal representative is dismissed. The appeal preferred by
    fourth accused (Edmund S. Lyngdoh) is partly allowed to the
    extent indicated above.

    Devika Gujral                                  Appeals disposed of.