Delhi District Court
State vs . Harpal Singh & Ors. on 24 May, 2022
1
In the Court of Dig Vinay Singh: Special Judge (PC Act) (ACB)-02
Rouse Avenue Courts, New Delhi
In re:
CNR No. DLCT110005802019
CC No. 130/2019
FIR No. 2/2004
P.S. Anti-Corruption Branch
State Vs. Harpal Singh & Ors.
State
Vs.
1. Chandan Singh
S/o Sh. Ramji Lal
R/o 73A, Pocket-1,
Mayur Vihar Phase-1
Delhi-91
2. Tara Chand
S/o Sh. Chohal Singh
R/o 161A, Pocket A,
Dilshad Garden, Shahdara,
Delhi-95.
3. Sukhmal Chand Jain
S/o Sh. J. P. Jain
R/o 1/2190-A,
East Ram Nagar,
Shahdara, Delhi-32.
4. Om Singh
S/o Sh. Chohal Singh
R/o B-3, Aruna Park,
Shakur Pur, Delhi-92.
Date of Institution : 21.04.2009
Date of Arguments: 17.05.2022
Date of Judgment : 24.05.2022
Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 1 of 40
2
JUDGMENT
1. The above named four accused faced trial in the present matter for offences U/s 13(1)(c) r/w Sec. 13(2) of POC Act, 1988 and, U/s 120B/409/420/468 & 471 of IPC. At the relevant time A1 Chandan Singh, A2 Tara Chand and A3 Sukhmal Chand Jain were posted as Assistant Engineers (AE), in MCD. Whereas, A4 Om Singh was posted as Junior Engineer (JE). Besides them, Shoori Lal (AE), and Harpal Singh & Satish Kumar Kataria (both Executive Engineers) were also charge sheeted. Out of them, Harpal Singh and Shoori Lal expired and proceedings against them abated on 26.04.2011 & 23.09.2021, respectively. Satish Kumar Kataria was discharged at the stage of charge.
2. Brief facts of the case are, that in order to avoid water logging during monsoon season, the Conservancy & Sanitation Engineering (CSE) Department of Municipal Corporation of Delhi (MCD), conducts drive to desilt the drains in Delhi. For that purpose, preparation of Estimate; Desilting and; then carrying silt up to the Silt Land Fill (SLF) site, is carried out. CSE, Shahdara, North Zone similarly prepared an action plan for the year 2002-03, obtained sanctions required and then the work was executed under the supervision of EE (CSE). For desilting, casual labourers were engaged from open market.
2.1. It is the case of investigating agency that the accused persons while working as JE, AE & EE, entered into criminal conspiracy amongst themselves wherein they reflected fake entries in the Mustor Rolls qua Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 2 of 40 3engagement of some of the casual labourers, to misappropriate the wages qua those fake entries and, also that wages of some of the labourers who had actually worked were not paid and was misappropriated. It is also the case of investigating agency that the accused persons forged / got forged the signatures / thumb impressions in token of receipt of wages of many such ghost labourers and then misappropriated the wages.
2.2. Initially, a complaint was received in the Vigilance Department of MCD on 15.05.2002, from one Smt. Shimla Beniwal, alleging irregularities in maintaining Muster Rolls (MR for short) and in making payments to the labourers qua desilting of drains. The allegations in the complaint included;
a) non-issuance of Muster Rolls in time and instead issuing them later on ante- dated;
b) mentioning number of labourers in the Muster Rolls and forging their signatures and thumb impressions in drawing money against it;
c) bogus payment against tractor / trolley for lifting of silt;
d) showing of more than one rounds of trolley to get payment more than once;
e) payment without slip from the SLF site and;
f) lastly, payment against Muster Rolls even without carrying out the desilting work at all.
2.3. On the above-mentioned complaint, the Vigilance Department of MCD conducted an inquiry and recommended registration of FIR as also departmental action against various EE/AE/JE/Accountant/LDC/Cashier and few Beldars. Based on the said inquiry recommendation, a complaint was lodged in police station Anti-Corruption Branch and FIR No. 42/2002 (another case) was registered on 13.08.2002. During investigation of that FIR No. 42/2002, various MRs as to engagement of labourers, prepared between the Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 3 of 40 4months of March 2002 to June 2002, were seized by the investigating agency. Those MRs were then separated by the investigating agency as per the JE concerned who had prepared those MRs, since for different wards and area, different JEs prepared various such MRs during the period. According to the said separation of MRs, few other FIRs were registered, including the FIR of the present case.
2.4. In the present FIR, we are concerned with Fifty-One (51) MRs (wrongly mentioned as 53 MRs in charge sheet, the correct counting of the MRs is 51). These 51 MRs were issued to A4 Om Singh as he was working as JE at the relevant. It is alleged that under the 51 MRs prepared by A4, he had shown and claimed to have engaged 1826 labourers for desilting of drains, during the period March to June, 2002. It is the case of investigating agency that after closing these MRs, A4 submitted them for payment, through A1 to A3 as well as the deceased AE, who all were working as AE, and the Executive Engineers concerned. Total payment of Rs. 32,30,156/- was received, with respect to payment of wages of 1826 labourers engaged under those MRs, on different dates from cashier for disbursement. The amount was claimed to be disbursed by the accused and then the MRs were re-deposited to the cashier after purported disbursement. During investigation of FIR No. 42, physical verification of labours was conducted and it was noticed that two labourers named in certain MRs, namely, Chander Pal and Naresh, both sons of Ram Singh, were non-existent persons as the address did not exist. Similarly, one Raj Kumar S/o Gopi claimed that he worked for two days only and that he had received payment for Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 4 of 40 5those two days, but his signatures were obtained on number of entries in MRs. Similarly, one Charanjeet S/o Shiv Prasad claimed to have worked for four months from March to June 2002, but he was paid for one month only and he denied having signed the MRs against receipt of payments. Accordingly, a rukka was prepared by Inspector Rajender Prasad and present FIR was got registered.
2.5. During investigation of the present case, the investigating officer verified various labourers named in the MRs and as per the final report, the dispute is qua Nine persons named in Ten different MR.
2.6. Out of those Nine persons, as per charge sheet, qua Three persons there are Six entries in 4 MRs, but those three persons did not exist, as either the address did not exist or no such person was found residing at the address mentioned in the MRs. Yet they were claimed to have been paid the wages. Details of those entries are mentioned in the Table as follows;
2.7. As per final report, other 6 persons, under 10 entries, in 8 MRs, as mentioned in the table below, had actually worked, but it was claimed Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 5 of 40 6by them that they did not receive complete wages and / or their signatures / thumb impressions on the MRs qua receipt of wages, were forged. Their details are as follows;
2.8. Thus, as per the entries in the above mentioned two tables, the dispute is qua Ten MRs (out of 51 MRs) bearing MR no. 43913, 61881, 43918 (wrongly written as 1218 in charge sheet), 66587, 66614, 66583, 61942, 61940, 66621 & 66610, qua Nine persons, qua 16 entries, and the total amount allegedly misappropriated is Rs. 64,236/- (Rs. 50867 + Rs. 13369/-).
2.9. During investigation, specimen signatures / thumb impression of few of the labourers were obtained and were sent for comparison to the expert who confirmed that the signatures / thumb impression did not match with the specimen.
2.10. The case of investigating agency is that under the CPWD Manual, Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 6 of 40 7Rules 9.5, 9.12 & 9.13, as applicable to MCD, both the AE & EE were responsible to conduct surprise checks at the site and since they failed to notice and detect the bogus names in the MRs and did not check the labourer working at the site, therefore they were in connivance with the JE.
2.11. Sanction U/s 19 of POC Act, 1988 were obtained against the accused persons and they were charge sheeted for the above-mentioned offences.
3. Vide order dated 11.10.2013, Satish Kataria was discharged by the Ld. Predecessor Court observing that there was no direct role attributed to him as regards the preparation of MRs or certification thereof and payments were also not made in his presence, therefore, he cannot be roped in U/s 120B of IPC.
3.1. Qua the remaining five accused (including the deceased Shoori Lal), charge U/s 120B of IPC and Sec. 13(1)(c)/13(2) of POC Act, 1988 / 420/409/468/471 r/w Sec. 120B of IPC was framed. All the accused pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined total 26 witnesses.
4.1. From MCD, the witnesses examined are PW1, PW9 to 13, PW19 to 21 & PW26.
4.1.1. Out of them, the star witness of the prosecution is PW26 Vinod Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 7 of 40 8Kumar who deposed that when he was posted as LDC / cashier in MCD, Shahdara, North Zone, he issued the MRs in question to A4, i.e. MR no. 66614 (Ex.PW2/A); 66587 (Ex.PW2/B); 61942 (Ex.PW6/A); 61940 (Ex.PW6/B); 66583 (Ex.PW14/A); 43914 (Ex.PW26/A); 43913 (Ex.PW26/B); 61881 (Ex.PW26/C); 66610 (Ex.PW26/D); 66621 (Ex.PW26/E) and; 43918 (Ex.PW15/A). The witness deposed that all these MRs were issued to A4 vide entry in Register Ex.PW39/A. He also deposed that subsequently duly filled in MRs were presented by A4 through the Executive Engineer concerned for release of payment. Thereafter, after checking the amount claimed by the JE, the Accountant handed over the MRs to this witness and this witness filled up required proforma and obtained approval for releasing the payments. When the MRs were presented, they were duly signed by the JE, AE & EE. The witness identified the Issuance Register under which the MRs were issued. The witness also deposed that before the payment was released against these MRs, all the MRs were summoned by the Vigilance Branch of MCD and all the MRs were sent to the Vigilance Branch. He also deposed that during his tenure he did not release payment qua any of these MRs and that payments were released against the MRs after clearance from Vigilance Branch and then he released the payment. He claimed that the payment against the MRs were made in cash to A4 on different dates by him, and against receiving payments A4 signed the relevant register. The witness identified signatures of A4 and other accused on the MRs in question. The witness also deposed that A4 had signed on the last page of the MRs certifying that the Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 8 of 40 9payments of the respective amounts mentioned therein were made in his presence. The witness proved entries as to receipt of payment by A4 on Ex.PW39/C. 4.1.2. PW1 Rajni Sahdev simply proved the forwarding of Sanction against A4 vide forwarding letter Ex.PW1/A; forwarding of Sanctions against A2, A3 & A4, vide letter Ex.PW1/C and; forwarding of bio data of A4 vide Ex.PW1/B. 4.1.3. PW9 Naresh Kumar proved sanction u/s 19 of POC Act against A4 as Ex.PW-9/A. 4.1.4. PW-10 Chander Pal; PW-11 Smt. Sudha; PW-12 Smt. Archana Sharma and PW-13 Mahinder Pal, proved service books of the four accused facing trial.
4.1.5. PW-19 Rajesh Kumar Gupta proved communication dated 29.02.2008 Ex.PW-19/A, vide which the period of posting of the accused persons were communicated to the investigating agency.
4.1.6. PW-20 Sh. K. S. Mehra, the then Commissioner of MCD, proved Sanction u/s 19 of POC Act against A-1 to A-3 as Ex.PW-20/C, B & A, respectively.
4.1.7. PW-21 Nalin Bilochan proved service record of the deceased accused Shoori Lal.
Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 9 of 40 104.2. Qua obtaining of the specimen thumb impressions / signatures of the labourers, whose signatures were disputed, prosecution examined;
4.2.1. PW-3 Satish Kumar, who witnessed the obtaining of specimen signature of one of the labourer Ex.PW-3/A to C, as a Panch witness.
4.2.2. PW-5 Sujan Singh, witnessed obtaining of specimen signatures of one Sanjay, as a Panch witness, on Ex.PW-2/C. 4.2.3. Similarly, PW-6 Kuldeep Chand, witnessed obtaining of specimen signatures of one Inderpal, as a Panch witness, on Ex.PW-6/C & D. The remaining testimony of PW-6 is barred by the principles of hearsay.
4.3. Qua the handwriting expert, witness examined is PW-4 Smt. Deepa Verma, who compared the questioned signatures with the specimen signatures and gave her report Ex.PW-4/A. In the said report it is mentioned that the questioned signature marked Q8 did not match with specimen signatures S11, S12, S16 and S17. The said questioned signature and the specimen signature on which the expert could give opinion pertained to one Raj Kumar S/o Gopi Ram, whose name is mentioned in MR No. 43913 Ex.PW26/B at Sl.No. 43 and in MR No. 61881 Ex.PW26/C at Sl.No. 62. However, Raj Kumar could not be examined in the present case as he expired by then and therefore the opinion of the expert as to the questioned signature of Raj Kumar Marked as Q8, on MR Ex.PW26/B at Sl.No. 43 becomes useless in Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 10 of 40 11absence of examination of Raj Kumar. Regarding other questioned signature, no definite opinion could be given by this witness.
4.4. From amongst the police officials;
4.4.1. PW-7 Ct. Manoj witnessed obtaining of specimen signatures of two of the labourers on 25.01.2008 & 19.02.2008, Ex.PW-7/A and B. This witness also carried the specimen to the FSL on 19.05.2008.
4.4.2. PW-8 Inspector Surender Singh was the duty officer who proved registration of FIR of this case on 20.01.2004 as Ex.PW-8/A and, endorsement on rukka Ex.PW8/B. 4.4.3. PW-18 SI Bal Kishan also witnessed obtaining of specimen signatures of three labourers on Ex.PW-18/A; Ex.PW-14/B to D and Ex.PW-18/B. 4.4.4. PW-22 ACP H. N. Meena deposed that while investigating another case FIR No.42/02, he seized 180 suspected Muster Rolls on different dates vide Ex.PW-22/A to D. 4.4.5. PW-23 Inspector Rajender Prasad was also investigating officer of said another case FIR No. 42/02. This witness also deposed that he collected various MRs which were suspected during investigation of that case and during scrutiny of the MRs he found that A4 had prepared 53 muster rolls. When he conducted sample verification he found address of Chand Pal and Naresh did not exist whereas they were Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 11 of 40 12shown to have been made payments. He also deposed that labour Raj Kumar worked for two days and got payment for those two days, but his signatures were obtained on several muster rolls. Similarly, he deposed that Charanjeet had claimed to have worked for 4 months, but he was paid only for one month. Thereafter he prepared rukka Ex.PW- 23/A and got the present case registered.
In the cross examination by the accused this witness claimed that he did not remember as to who went to verify the addresses of Chander Pal and Naresh, but he claimed that the addresses did not exists. He also deposed that he did not record statement of any resident to the effect that the premises no. C-164 did not exists in Daya Basti and he did not examine any police officer or post office official to that effect. He also admitted that he did not record statements of Raj Kumar and Charanjeet and he did not obtain their specimen signature / thumb impression. He also admitted that he did not collect admitted signature of any of the labourer. He also admitted that it was not part of duties of AE to mark the attendance of labourer and, he did not verify if the desilting was completed satisfactorily or not.
4.4.6. PW24 Inspector Hari Chand investigated the present case between 15.05.2004 to 08.05.2007. He deposed that during investigation he issued notices to 300 different labours who were named in the MRs in question. Some of the notices were received back with the report that the addresses were not correct. 50 labourers responded to the notices, but they claimed that they had received complete wages for the work Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 12 of 40 13done. He also deposed that four labourers namely Inderpal, Brij Mohan, Sanjay S/o Hari Ram and Sanjay S/o Aas Kiran claimed that they had not been paid full wages. Sanjay S/o Hari Ram claimed that he never even worked for desilting of drains and his signatures were not genuine, whereas Sanjay S/o Aas Kiran and Brij Mohan claimed that though they had worked but their complete wages were not paid. The witness also deposed that during investigation he collected specimen signatures of the above mentioned labourers Ex.PW2/C; Ex.PW3/A to 3/C and Ex.PW6/C & D (by mistake instead of labourers, it is mentioned in the deposition of the witness that specimen of accused persons was collected).
During cross examination, the witness admitted that he did not examine Chander Pal, Naresh Kumar, Raj Kumar and Charanjeet. The witness admitted that though the notices sent to the labourers were received back unserved with the report of postal authority, but he did not record statement of anybody from postal department and, that he handed over all those original notices to his successor investigating officer. It may be mentioned here that none of those notices, which allegedly were unserved, with endorsement of postal authorities have been proved by the prosecution in this case. The witness also admitted that neither he personally tallied the addresses on the envelopes which were returned unserved with the corresponding addresses on the MRs, nor he instructed his sub-ordinates to do it to verify whether correct addresses were noted on the envelopes or not. The witness admitted that he did not investigate from Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 13 of 40 14neighborhood of the unserved notices addresses and he also did not verify from the labourers who had actually worked as to whether or not the unserved labourers had actually been employed or not. Admittedly, he did not record even statements of those 50 labourers and did not prepare list of those persons, who had actually worked. Admittedly, he did not take specimen signatures / hand writing of the accused persons.
4.4.7. PW25 Inspector Roop Lal also investigated the matter from 25.11.2007 onwards. The witness claimed that he visited addresses of casual labourers named in the MRs and he recorded statements of about six labourers and obtained their specimen signatures / thumb impressions viz., those of Birender, Raj Kumar, Sanjay Kumar S/o Aas Kiran and Sanjay S/o Hari Ram as Ex.PW7/A & B, Ex.PW18/A & B and Ex.PW14/ B, C & D. The witness then obtained the report of hand writing expert. He also deposed about the arrest of the accused persons and obtaining Sanction against the accused. The witness also deposed that according to CPWD manual, as applicable to the MCD also, it was the duty of JE to employ labours and the duty of AE and EE to conduct surprise checks to verify presence of labour and that it was the duty of AE to disburse the wages on the verification by JE.
This witness was declared partially hostile by the Prosecution and he was cross examined in which the witness admitted that he did not cite material witness Vinod Kumar (PW26 who was examined U/s 311 Cr.P.C.), he did not take on record the register under which MRs were issued and the register regarding payments released. Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 14 of 40 15During cross examination by the accused, even this witness admitted that he did not take specimen signatures or hand writing of the accused persons; he did not investigate role of cashier Vinod Kumar and role of accountant Subbarao; he did not examine Simla Beniwal; he did not record statement of neighbourers or the family members of the four labourers examined by him as to their employment during the relevant period. The witness also admitted that the last page of each of the MRs as to release of payment of wages, does not bear signature of AE. He also admitted that he did not visit the concerned drains which were to be desilted; he did not record statement of any person to find out the actual number of labours employed during the period in question. The witness also admitted that as per CPWD manual, it was only the JE who was supposed to certify actual deployment of workers at the site and their identification and that AE was not supposed to be present at the site during entire deployment and the AE was to conduct the surprise checks to ensure the number of labourers deployed.
4.5. As to the employment / non-employment of labourers and payment / non-payment of wages, the prosecution examined five witnesses viz., PW2 Sanjay S/o Aas Kiran; PW14 Sanjay Kumar S/o Hari Ram; PW15 Birender S/o Ramey; PW16 Brij Mohan S/o Kamal Singh and; PW17 Inderpal S/o Prakash. Their testimonies are being discussed herein below at appropriate stage to avoid repetition.
Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 15 of 40 165. On conclusion of prosecution's evidence, all the incriminating evidence was put to the accused persons in their statements U/s 313 Cr.P.C.
5.1. In his statement, A1 Chandan Singh claimed that it is a false case in which he has been implicated. He claimed that he joined the concerned department in the month of May 2002, whereas the period of desilting was between April to June 2002, and he practically looked after the work for 45 days and during that time he did not receive any complaint from any corner, and claimed that he did his work with due diligence and as per rules.
5.2. A2 Tara Chand claimed that he had no role in preparation of MRs or engagement of labourers. He did not employ any labour or mark their attendance. He carried out weekly head count of the labours in the presence of Executive Engineer and his duty did not entail verification of the labourers. He also claimed that in practice only the JE used to distribute the wages and certify the same. He claimed that Sanction against him was granted wrongly and without application of mind. He also claimed that as per sanction the case pertains to 6 Muster Rolls, but none of them are signed by him. Even he claimed that he conducted weekly surprise checks along with the Executive Engineer in which only head count and progress of work was seen by them.
5.3. A-3 S. C. Jain, claimed that out of the Muster Rolls in question, only Ex. PW-26/E pertains to him. He claimed that the surprise checks by the AE was limited to head count the number of labourers and, to check Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 16 of 40 17the identity of labours was not his job and accordingly he conducted surprise checks qua muster roll Ex.PW-26/E. But he claimed that he had no concern with the disbursement of payment even qua that muster roll and that muster roll does not bear his signature on the last page qua payment.
5.4. PW-4 Om Singh denied the evidence of the prosecution stating that though the issuance and preparation of muster roll by him and engagement of labour were matter of record, but he did not commit any wrong. He claimed that he was implicated falsely in this case.
5.5. None of the four accused opted to lead any evidence in defence.
6. I have heard Ld. Prosecutor for the State and Ld. Counsels for the four accused.
6.1. Ld. Prosecutor for the State argued that from the testimonies of PW16 & 17, it is proved beyond doubt that neither of those two witnesses signed the MRs in token of receipt of payment of wages as mentioned against their names, nor the said amount was not paid to PW16 & 17 and that amount was misappropriated by the accused persons in connivance.
6.2. On the other hand, on behalf of the four accused, the common arguments raised are that PW16 & 17 are unreliable witness; and that other three labourers PW2, 14 & 15 turned hostile. It is argued that no evidence has been led by the prosecution to establish conspiracy Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 17 of 40 18between the accused persons particularly the AEs, whose signatures on the MRs were not proved and it is not proved as to which AE signed which MR; none of the AEs were identified by any of the labourer; the Sanction granted by the competent authority was absolutely without application of mind in a mechanical manner, which is clear from the fact that even the Ward number was not mentioned; neither admitted signatures nor specimen signatures of the accused persons were collected to prove forgery by any of them; admitted signatures of labourers whose signatures were under dispute were not collected; admittedly the work of desilting was completed satisfactorily and it is nobody's case that the work of desilting was not completed.
6.3. It is additionally argued on behalf of A2 Tara Chand that in none of the ten MRs in question signature of A2 is proved; none of those MRs were checked, verified or certified by A2; A2 was charged under conspiracy and no charge of substantive offences was framed against him; no overt act has been attributed to A2 and; it is not proved that there was any entrustment or misappropriation by A2.
7. Though, all the four accused challenged the Sanction, claiming that the Sanction was accorded without application of mind by the Sanctioning Authority, but besides making those bald allegations no substantive argument could be raised and nothing substantive could be shown to the Court by any of the accused as to why the Sanctions are not valid. The Sanction orders, specifically mentions in detail as to the material taken Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 18 of 40 19into consideration by the sanctioning authority before according the sanctions.
7.1. In the case of Vinod Kumar Garg v. State (NCT of Delhi), (2020) 2 SCC 88, it is observed as follows;
"25. On the said aspect, the later decision of this Court in State of Maharashtra v. Mahesh G. Jain [State of Maharashtra v. Mahesh G. Jain, (2013) 8 SCC 119: (2014) 1 SCC (Cri) 515: (2014) 1 SCC (L&S) 85] has referred to several decisions to expound on the following principles of law governing the validity of sanction: (SCC pp. 126-27, para 14) "14.1. It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
14.2. The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution.
14.3. The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it.
14.4. Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
14.5. The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order. 14.6. If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction. 14.7. The order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 19 of 40 20not be a hyper technical approach to test its validity." ...............
28. This Court in Ashok Tshering Bhutia v. State of Sikkim [Ashok Tshering Bhutia v. State of Sikkim, (2011) 4 SCC 402: (2011) 2 SCC (Cri) 258: (2011) 2 SCC (L&S) 697] referring to the earlier precedents has observed that a defect or irregularity in investigation however serious, would have no direct bearing on the competence or procedure relating to cognizance or trial. Where the cognizance of the case has already been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless a miscarriage of justice has been caused thereby. Similar is the position with regard to the validity of the sanction. A mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby. Section 19(1) of the Act is matter of procedure and does not go to the root of the jurisdiction and once the cognizance has been taken by the court under the Code, it cannot be said that an invalid police report is the foundation of jurisdiction of the court to take cognizance and for that matter the trial."
7.2. In the case of Girish Kumar Suneja v. CBI, (2017) 14 SCC 809, a three judges bench of Supreme Court made following observations: -
"67. In CBI v. V.K. Sehgal [CBI v. V.K. Sehgal, (1999) 8 SCC 501: 1999 SCC (Cri) 1494] it was held that for determining whether the absence of, or any error, omission or irregularity in the grant of, sanction has occasioned or resulted in a failure of justice, the court has a duty to consider whether the accused had raised any objection on that score at the trial stage. Even if it had been raised at the trial and early enough, it would not be sufficient to conclude that there was a failure of justice. Whether in fact and in law there was a failure of justice would differ from case to case but it was made clear that if such an objection was not raised in the trial, it certainly cannot be raised in appeal or in revision. It was explained that a trial involves judicial scrutiny of the entire material before the Special Judge. Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;Page 20 of 40 21
Therefore, if on a judicial scrutiny of the evidence on record the Special Judge comes to a conclusion that there was sufficient reason to convict the accused person, the absence or error or omission or irregularity would actually become a surplusage. The necessity of a sanction is only as a filter to safeguard public servants from frivolous or mala fide or vindictive prosecution. However, after judicial scrutiny is complete and a conviction is made out through the filtration process, the issue of a sanction really would become inconsequential."
8. From perusal of the evidence and exhibited documents, it is clear that the entire case of the prosecution is based on the allegations that out of 1826 labourers engaged by A4, under the Ten MRs in question, the dispute is qua Nine persons. Three persons, under six entries in 4 MRs, as per the table mentioned in Para 2.6, were shown to have worked and who allegedly had been paid the wages, but they did not exist, as either the address did not exist or they were not residing at the address mentioned in the MRs. Remaining six persons under 10 entries in 8 MRs, as mentioned in the table in Para 2.7, had actually worked, but it was claimed by them that they did not receive complete wages and / or their signatures / thumb impressions on the MRs qua receipt of wages, were forged.
9. Let it be examined whether the prosecution succeeds in proving its case that the three persons were non-existent or that the other six were not completely paid their wages. The allegations qua entering into conspiracy between the accused and forgery / cheating / misappropriation can be claimed only when the above said basic facts are proved by the prosecution. In case, prosecution is found to have not Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 21 of 40 22proved basic facts as to non-existence of labourers or partial payment to anyone, no further charge and allegations against any of the accused would sustain and all the defence arguments raised in the matter would become academic only.
9.1. It may be mentioned here that burden to prove these basic facts were on the prosecution which had to be proved beyond reasonable doubt. There is no presumption U/s 20 of POC Act, 1988 available to the prosecution in this matter.
10. Qua engagement / non engagement of labourers and their payments, the prosecution examined 5 witnesses only.
10.1. Out of them, PW2 Sanjay S/o Aas Karan, who as per the case of prosecution had though worked but he was not paid complete wages, turned completely hostile to the case of prosecution and did not support the case of prosecution, at all. As PW2 he deposed that he did work for desilting of drains when he was engaged through a Mate under the control of JE and he received complete payment of Rs. 3500/-. He claimed that he was paid wages @ Rs. 150/- per day. He also admitted that on the MR No. 66614 and 66587 Ex.PW2/A & B, at Sl. No. 5, his name and address exists. He also identified his signatures on both those entries claiming that they were his signatures.
The witness was declared hostile by the prosecution and was cross examined, in which also the witness claimed that he had received entire wages and that even to the investigating officer he had stated that the Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 22 of 40 23signatures at point A on both those MRs were his signatures. He denied that he was deposing falsely to help the accused. Nothing material came out in the cross examination of this witness by the prosecution, against the accused.
10.2. Similarly, PW14 Sanjay Kumar S/o Hari Ram, allegedly who also was not paid complete wages, did not support the case of prosecution at all and turned completely hostile. He deposed that he worked for desilting of drains under MR No. 66853 Ex.PW14/A and the name and address at Sl. No. 39 in the said MR bears his correct signatures in token of receipt of Rs. 1851/-. Even this witness was cross examined by the Ld. Prosecutor, in which nothing came out in favour of the prosecution. Rather he stood the ground that he never told the IO that he did not work as such or that he did not receive wages or that he did not sign the MR. He denied that he was deposing falsely to help the accused.
10.3. Similarly, PW15 Birender, who also allegedly was not paid complete wages, did not support the case of prosecution and turned completely hostile. He deposed that he worked for desilting of drains under MR No. 43918 Ex.PW15/A and the name and address at Sl. No. 12 in the said MR bears his correct and genuine signatures in token of receipt of Rs. 411/-. Even this witness was cross examined by the Ld. Prosecutor, in which nothing came out in favour of the prosecution. The witness stood the ground that the MR bears his genuine signature and that he received payment. He too denied that he was deposing falsely to help Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 23 of 40 24the accused.
10.4. PW16 Brij Mohan deposed that though in the year 2004 he did work as a Safai Karamchari with MCD on MR basis, but he did not work for desilting of drains in Bhajan Pura area in May 2004. He deposed that the signature at point B on MR 66583 Ex.PW14/A at Sl. No. 40 were not his signatures and that he was not paid the wages of Rs. 1851/- mentioned against the said entry. Thus, according to this witness though the MR entry bears his correct name and address at Sl. No. 40, but neither he worked as such, nor he received the payment and the signature were not his signatures. The witness however denied giving specimen signatures to the investigating agency as Ex.PW3/A to C. This witness was then declared partially hostile by the Prosecution and was cross examined.
During cross examination by the Prosecution, though the witness admitted that he joined investigation on 03.04.2006 and gave his specimen signatures, but specifically denied that specimen signature sheets Ex.PW3/A to 3/C were signed by him or that he was denying this fact deliberately.
Interestingly, during cross examination by the accused, the witness claimed that even his statement was not recorded by the IO; he did not join any investigation and; that no MR was shown to him during investigation.
10.5. PW17 Inderpal deposed that he was engaged as a contractor for lifting of silt extracted from desilting of drains in Seelampur area, for which Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 24 of 40 25he had deployed two tractors as per contract. He was to receive Rs. 525/- for each tractor per day. He deposed that after completion of work he was paid an amount of Rs. 17,800/- instead of Rs. 20,840/- qua entry in MR No. 61942 Ex.PW6/A at Sl. No. 1. He also deposed that though he was paid an amount of Rs. 17,800/- instead of Rs. 20,840/-, but signature against payment of this amount on this MR at Point Q3 were not his signature. The witness also deposed that similarly the signatures at Point Q4 on MR no. 61940 Ex.PW6/B in token of payment of Rs. 15,630/- were not his signatures and he did not receive that payment. The witness identified his specimen signatures given during investigation as Ex.PW6/C & D. It may be mentioned here that though as per the case of prosecution, one more entry at Sl.no. 12 in MR No. 66614 Ex.PW2/A, pertained to this witness, but that entry was not even put to this witness when he was examined and therefore, it is not proved by the prosecution.
During cross examination by the accused, the witness claimed that during investigation IO had asked him to furnish the „parchi‟ (slips) which used to be issued on daily basis after lifting of the silt and that he told the IO that the slips were deposited with MCD to claim the payment. He claimed that he did not retain photocopies of those slips and that he did not write any forwarding letter while submitting the slips and did not take any acknowledgment of deposit of the same. He also admitted that he did not make any complaint to any senior officer of MCD regarding non-payment of the contractual amount. He also admitted that the IO did not ask him to furnish admitted signatures.
Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 25 of 40 26Here it may be mentioned that the hand writing expert's opinion Ex.PW4/A, no clear opinion could be given as to the signature of this witness and the hand writing expert mentioned that it was not possible to express any definite opinion on it.
10.6. The prosecution could not examine Raj Kumar S/o Gopi Ram qua his entries in two MR no. 43913 and 61881 at Sl. no. 43 & 62, respectively as Raj Kumar expired before he could be examined.
11. No other witness was examined by the prosecution qua the disputed entries from amongst the labourers named in the MRs. Particularly qua non-existence of any of the labourers, not even a single witness has been examined by the prosecution. As mentioned above, as per case of prosecution it found at least three persons as non-existent, namely, Chander Pal S/o Ram Singh; Naresh Kumar S/o Ram Singh and; Charanjeet S/o Shiv Prasad, as mentioned in the table in Para 2.6 above. Besides it, the investigating officer also claimed that as many as 50 notices sent to various labourers were received back unserved with a report that those addresses were not correct. But, not even a single notice or the report on the envelope bearing postal department's endorsement to that effect has been proved. Admittedly, the investigating officer did not go to those addresses personally. Therefore, there is no ocular evidence also available on record to prove that anybody from the investigating agency visited the addresses and did not find either the addresses or the labourers named in the MRs. Thus, prosecution did not lead any evidence to prove that any of Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 26 of 40 27the labourer named in any of the 51 MRs in question did not exist.
12. Resultantly, we are left with the entries which are in question qua PW15 & 16 only. As the other three witnesses (PW-2, 14 & 15) turned hostile and did not support the case of prosecution at all.
12.1. As discussed above, PW16 claimed that he did not work as per entry in MR Ex.PW14/A; he did not get Rs. 1851/- wages and it also does not bear his signatures. The question is how far this witness can be relied. The witness denied even his specimen signatures given to the investigating agency. At one place, in the cross examination by the Prosecution, the witness claimed that he had joined the investigation on 03.04.2006 and also that he gave specimen signatures to the IO. However, in the next breath, that too in the cross examination of the Prosecutor, he claimed that the specimen signature sheets Ex.PW3/A to 3/C were not signed by him during investigation. In the cross examination by the accused, the witness claimed that neither he joined investigation, nor he was shown the MR during investigation. This witness denied his specimen signatures despite the fact that there is a Panch witness PW3 who witnessed obtaining of those specimen signatures given by PW16. PW3 did depose that specimen signatures of Brij Mohan were obtained by the investigating agency. Perusal of Ex.PW3/A & C would reveal that the specimen signature sheets are also witnessed by PW3. Thus, when PW16 contradicted himself as to joining or not joining the investigation and also when he specifically denied his specimen signatures, despite the fact that the IO and Panch Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 27 of 40 28witness deposed that those specimens were given by PW16, the credibility of PW16 comes under serious doubt. When he can deny his own specimen signatures, what credibility can be attached to such a witness as to his denial of signatures on the MR Ex.PW14/A against entry at Sl. No. 40. It would be important to mention here that the original case of prosecution as to this witness was that this witness had worked for desilting the drain near Bhajan Pura but he was not paid wages due towards him. In his statement U/s 161 Cr.P.C. Ex.PW24/A what is recorded is that this witness did work at Bhajan Pura drain for desilting and the only case was that he was not paid wages and he did not sign the MR. Whereas, when this witness testified as PW16 he even denied having worked for desilting of drain in May 2004 in Bhajan Pura area. Thus, the testimony of this witness does not inspire confidence to the effect that he did not sign the MR or that he did not receive payment. This is particularly important in view of the fact that the hand writing expert could not give any opinion as to the signatures of this witness on the MR when compared with his specimen. Admittedly, the admitted signatures of this witness for the contemporaneous period were not even collected for comparison. This is also particularly important in view of the fact that the witness admitted that in the year 2004 he did work as a safai karamchari with MCD on MR basis, but claimed that he did not work for desilting of the particular drain for which MR Ex.PW14/A was prepared. The prosecution did not examine any worker who worked under the said MR during that period. Besides PW16, there were as many as 39 Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 28 of 40 29labourers who worked for desilting of this particular drain under this MR. Not even one worker was examined to prove the fact that PW16 did or did not work. The work in question under this MR was performed in May 2002, whereas statement U/s 161 Cr.P.C of this witness was recorded after two years. For the foregoing reasons, prosecution cannot expect this Court to rely on the testimony of PW16.
12.2. Thus, we are left with the testimony of only one witness i.e. PW17 Inderpal. Again the question is how much reliance can be placed on the testimony of PW17 either. PW17 admitted that he did receive payment of an amount of Rs. 17,800/-. He claimed that though an amount of Rs. 20,840/- were due qua entry in MR at Sl. No. 1 Ex.PW6/A, but he received only Rs. 17,800/-. In his statement U/s 161 Cr.P.C dated 10.01.2006, Ex.PW17/DA what is mentioned is that in the month of May 2002, A4 Om Singh gave him Rs. 17,800/- and also that on the Revenue Stamp signature in Hindi in the name of Inderpal was appended at the time when this payment was made. Perusal of the entries in two MR, Ex.PW6/A & B pertaining to this witness at Sl.No. 1 would show that on the Revenue Stamp signature in the name of "Inder", in Hindi exist against both those entries. The signatures are not by the name of "Inderpal". When the original statement of this witness to the investigating agency was, that at the time when he received Rs. 17,800/- from A4, at that time his signature in the name of Inderpal in Hindi were appended on the Revenue Stamp, nothing stopped this witness to raise complaint about it. It is not very clearly mentioned in the statement Ex.PW17/DA as to whether it was A4 Om Singh who had Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 29 of 40 30appended signature in the name of this witness on the MR or whether the witness had appended signatures. It is highly unlikely that A4 would have forged signatures in the name of Inderpal in presence of this witness, particularly when allegedly part payment was only made to Inderpal. No offender would do that creating evidence against him.
12.3. In any case, investigating agency never collected admitted / specimen signatures of any of the accused to get it compared with the questioned signature on this entry. It may also be mentioned here that on both the MR Ex.PW6/A & B the disputed and questioned signatures of this witness exist in the name of 'Inder', whereas the specimen signatures of this witness were obtained in the name of 'Inderpal'. That could have been one of the reason as to why handwriting expert could not express any definite opinion as to whether specimen signatures of this witness matches or not with the questioned signature. Investigating agency ought to have obtained specimen of this witness as well as the accused persons in the name of 'Inder', in Hindi to get them compared with the questioned signature, but it was not done.
12.4. The very fact that the original statement of this witness records that at the time when part payment of Rs. 17,800/- was made to this witness by A4 Om Singh and at that time signature were appended on the MR, creates a serious doubt since neither PW17 objected to receiving of lesser payment than due, nor he objected to the signing of MR in token of receipt of payment.
Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 30 of 40 3112.5. Thereafter, from the year 2002 at least till the year 2006 when statement U/s 161 Cr.P.C of this witness recorded by the investigating officer, he did not give any complaint about part payment or signatures to anyone. The said fact creates a serious doubt as to the version claimed by PW17. If this witness was paid Rs. 17,800/- only, as admitted by him, execution of receipt signature against payment of that amount must have been obtained. After all, government money was being paid and its receipt was must and therefore the MR does contain signatures of the receiver of amount. It is not the case of PW17 that he was paid part of the amount, but his signatures were not taken. If part payment was given to PW17, in 2002, what prevented him in not claiming the remaining balance amount. Admittedly, PW17 also deposited the slips for obtaining payment. Admittedly, PW17 did not write any complaint and did not lodge any protest qua receiving lesser amount. He remained quiet till the time the investigating officer of this case inquired from him.
12.6. Even specimen signatures of this witness, when compared with his questioned signature did not give any positive result as to whether the signatures matched or did not match. Hand writing expert opined that no specific opinion can be given qua this signature. It was admittedly on account of lack of admitted signatures, which the IO did not collect and obtaining specimen by the name of 'Inderpal', instead of 'Inder'.
12.7. It may be mentioned here that as many as 51 MR were prepared by A4.
Under those MR, as many as 1826 labourers were employed. It does Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 31 of 40 32not appeal to common sense that out of 1826 labourers engaged, the accused persons conspired to misappropriate and share the wages of one labour, that too a part of it.
13. The sum & substance of the above discussion is that the prosecution completely fails in proving that PW 16 & 17 were not paid or were only partially paid their wages. The prosecution also fails in proving beyond doubt that the other persons did not exist.
14. Once the prosecution fails to prove these crucial and basic facts, the entire case of the prosecution fails. Unless these basic necessary facts were established beyond doubt, the entire charges against the accused persons fail. Once it is not proved that any of the labourer was not paid or was partially paid or were non-existent, the rest of the allegations that the accused persons were in conspiracy, in mentioning the name of non-existent persons in the Muster Rolls or any forgery was committed or to misappropriate the funds or that no surprise inspection was conducted by the Assistant Engineer etc., or the allegations as to who received the cash amount to be paid to the labourers and who signed the certificates etc., all gets demolished. The rest of the contentions of the accused persons becomes academic and need not consume time of Court.
15. As to the charge of Criminal Conspiracy, in the entire evidence led by the prosecution there is no evidence pointing to conspiracy between any of the accused. There is no evidence that A4 entered into criminal conspiracy with A1 to 3 or anyone else. This Court is conscious of the Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 32 of 40 33fact that for an offence of conspiracy, there cannot be any direct proof and in most of the cases conspiracy will have to be gathered from the attending circumstances of an offence. The only circumstance claimed against the AE, in order to claim conspiracy, is that they were duty bound to conduct surprise checks at the site, which they did not.
15.1. It would be apt to note few important observations of Apex Court in the case of K.R. Purushothaman v. State of Kerala, (2005) 12 SCC 631, wherein it is held as follows;
"11. Section 120-A IPC defines "criminal conspiracy". According to this section when two or more persons agree to do, or cause to be done (i) an illegal act, or (ii) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. In Major E.G. Barsay v. State of Bombay [(1962) 2 SCR 195:
AIR 1961 SC 1762: (1961) 2 Cri LJ 828] Subba Rao, J., speaking for the Court has said: (SCR p. 228) "The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts."
12. In State v. Nalini [(1999) 5 SCC 253: 1999 SCC (Cri) 691: JT (1999) 4 SC 106] it was observed by S.S.M. Quadri, J. at JT para 677: (SCC pp. 568-69, para 662) "In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 33 of 40 34guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus with the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences."
13. To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither is it necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implication. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the court to keep in mind the well-known rule governing circumstantial evidence viz. each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. Criminal conspiracy is an independent offence in the Penal Code. The unlawful agreement is sine qua non for constituting offence under the Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement.
14. Suspicion cannot take the place of legal proof and prosecution would be required to prove each and every circumstance in the chain of circumstances so Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 34 of 40 35as to complete the chain. It is true that in most of the cases, it is not possible to prove the agreement between the conspirators by direct evidence but the same can be inferred from the circumstances giving rise to conclusive or irresistible inference of an agreement between two or more persons to commit an offence. It is held in Noor Mohd. Mohd. Yusuf Momin v. State of Maharashtra [(1970) 1 SCC 696: 1970 SCC (Cri) 274: AIR 1971 SC 885], that: (SCC pp. 699-700, para 7) "[I]n most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material."
15. It is cumulative effect of the proved circumstances which should be taken into account in determining the guilt of the accused. Of course, each one of the circumstances should be proved beyond reasonable doubt. The acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. While speaking for the Bench it is held by P. Venkatarama Reddi, J. in State (NCT of Delhi) v. Navjot Sandhu [(2005) 11 SCC 600: 2005 SCC (Cri) 1715: JT (2005) 7 SC 1] (p. 63) as follows: (SCC pp. 691-92, para 103) "103. We do not think that the theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design even if such offences were ultimately committed by some of them, without the participation of others. We are of the view that those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy; but, the non-participant conspirators cannot be found guilty of the offence or offences committed by the other conspirators. There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them. Criminal offences and punishments therefor are governed by the statute. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy or by extension of a common law principle."
Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 35 of 40 3615.2. A perusal of the relevant rules of the CPWD Manual, which is applicable to MCD, in preparation of Mustor Rolls / Daily Labour Reports (DLR), would reveal that as per Rule 9.5, it was the responsibility of JE In-charge of the work to mark attendance of casual labourers in the MR daily at the time of roll call and to check once during the day. The responsibility of AE / Additional EE / EE was to conduct surprise checks frequently to ensure that the workers as indicated in the DLR and MR were actually employed and that their output was commensurate to the expenditure incurred. As per Rule 9.5 to 9.7, the preparation of MRs and checking presence / attendance / details of the labourers was the responsibility of JE only. 15.3. It is clearly mentioned in Rule 9.8 that at the close of the MR it was the JE who was supposed to give certificate under his dated signatures on the MRs as well as the DLR in the following words; "Certified that the workers mentioned in the Mustor Rolls were actually employed by me on government work". As per Rule 9.9, after closing of the MR the JE In-charge of the work was supposed to complete all the formalities regarding making entries in the measurement book, work out cost of the work etc. and it was then the MR was to be submitted to the AE concerned within two days.
15.4. Thereafter, Rule 9.10 onwards deals with procedure of making payment against MRs. Under Rule 9.11, after the MR was closed by the JE it was required to be sent to Sub-Divisional Clerk who was supposed to check the MR arithmetically and the AE was to conduct test check within a day and then the MR was to go to Divisional Office. The Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 36 of 40 37Divisional Officer was then to scrutinise the MR under Rule 9.12 and then forward it to EE and the EE was to pass the MR and hand over the amount as temporary advance to the AE for disbursal of wages. Rule 9.13 makes it clear that it was the responsibility of JE in charge to make payment and to certify on the MR that the payment has been made in his presence and on his identification.
15.5. It is claimed by the Prosecution that according to the Rule 9.5, since it was the responsibility of AE to conduct frequent checks, which the AE did not do, therefore, they were in conspiracy with JE. 15.6. There is no evidence available with the prosecution to indicate that there was any such conspiracy between the JE concerned with the AE or the EE. The prosecution assumes that the AE did not conduct surprise checks and therefore they should be held guilty. In the considered opinion of this Court, there cannot be any such assumption or presumption against AE, legally. Either they did not conduct physical checks as was required or they did it. In either of the eventualities, there would be no criminal liability against them. If the AE did not conduct physical checks but merely countersigned the MRs and thereafter those MRs were processed for payments to the labourers and so that JE can make payments to the casual labourers, it would at the most be dereliction of duty, and merely on that basis neither can conspiracy be presumed, nor any other offence. In any case, it is merely a presumption of the prosecution that A1,2 & 3 did not conduct physical checks. What if they indeed conducted physical checks. Was it their responsibility to also verify the identity of each and every casual Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 37 of 40 38labour employed by the JE? Even as per the admitted case of prosecution i.e., their reliance on Rule 9.5 of CPWD manual, there was no such responsibility or duty of AE or EE or AEE.
15.7. Though in the Rule 9.12 of CPWD Manual, it is mentioned that the Divisional Office should not take more than two days for scrutiny of the MR and similarly the EE should not take one day to pass the MR and then handing over the amount of the passed MR through temporary advance to the AE for disbursing wages to the persons engaged on MR, but in the facts of the present case no evidence has been led by the prosecution that the amount was handed over to AE. In absence of any evidence that any amount was handed over to AE or that they were physically present at the time of disbursal of payments, nothing can be read in Rule 9.12 against AE in the present case.
15.8. It is nobody's case that the desilting works in question were not carried out. In the light of this circumstance, coupled with the fact that nowhere was it the responsibility of AE or EE to conduct actual identity check of each and every casual labour, entitles A1, 2 & 3 to be given benefit of doubt. When it was not the duty of the A1, 2 & 3 to find out the actual identity of the casual labourers engaged by the JE and their responsibility was merely checking head count and work commensurate to the payment, it cannot be presumed that A1, 2 & 3 were in any manner in conspiracy with the JE. Thus, assuming that AE did not conduct the surprise checks or did conduct them but failed to notice or ignored the number of labourers working at the site, it can at the most point to dereliction of duty and nothing more.
Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 38 of 40 3915.9. No witness has been examined by the prosecution from amongst the actual labourers who had worked at the site to prove whether the AE and EE conducted the surprise checks or not. In such circumstances, AE cannot be roped in for conspiracy with the JE just like the EE could not have been roped in.
15.10. In the case of C. Chenga Reddy & Ors. Vs. State of A. P., AIR 1996 Supreme Court 3390, it was observed by the Hon'ble Supreme Court that the entire case hinged on circumstantial evidence and there was no direct evidence available on record connecting the public servants with the commission of crime viz., payment made for various amount without the execution of work etc. It was held that at best the evidence of that case established violation of Codal provisions and ignorance of departmental instructions and circulars regarding nomination of contractors and allotment of work and those lapses at best made those public officers liable for departmental action but not for criminal offence. It was held that the circumstances proved in that case were not such which can be said to be compatible only with their guilt or incompatible with their innocence. In this regard, reliance may also be placed upon the cases of Abdulla Mohd. Pagarkar v. State, (1980) 3 SCC 110; Union of India & Anr. Vs. Major J. S. Khanna & Anr. (1972) 3 SCC 873 and; J. Siri. Ram Surya Prakash Sharma Vs. State of A. P. 2011 Crl. Law Journal 2027.
15.11. So far as the present case is concerned, as mentioned above, it is not even a case where there was any false entry of any worker who actually did not work but was named in the MR, was made in any of the MRs.
Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
Page 39 of 40 40Rather it is a case where the actual workers worked but did not get their payments and instead the MRs mentioned that payments were made and qua some entries the signatures were claimed to be forged. Since, the AE had no role to identify the labourer at the time of disbursal of payment which was responsibility of JE, the AE cannot be held responsible even if some of the signatures on the MR were found to be forged. Since it is not even the case of prosecution that any of the MR contained any entry of any non-existent person or any person who actually did not work but was named in the MR, therefore, it cannot even be argued by the Prosecution that since the AE did not conduct inspection at the site, therefore, they were in conspiracy.
16. The sum & substance of the above discussion is, that the prosecution fails to establish conspiracy between any of the accused or anybody else. And as discussed above, there is no evidence qua any of the four accused for any other offence.
17. Resultantly, all the four accused are acquitted of all the charges.
Announced in the Open Court on
Digitally
24-05-2022. DIG signed by DIG
VINAY SINGH
VINAY Date:
2022.05.24
SINGH 15:45:33
+0530
(DIG VINAY SINGH)
Special Judge (PC ACT) (ACB)-02
Rouse Avenue Courts
New Delhi / 24-05-2022 (r)
Judgment; CNR No. DLCT110005802019 CC No. 130/2019 FIR No. 2/2004 State Vs. Harpal Singh & Ors.; Dated 24.05.2022;
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