Delhi District Court
Quantum Of Sentence. In Case Titled As ... vs . on 19 August, 2017
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IN THE COURT OF MS. HEMANI MALHOTRA, SPECIAL JUDGE (PC ACT),
(ACB), (CENTRAL05), TIS HAZARI COURTS, DELHI
CC No. 8/2002
FIR No. 42/2002
PS Anti Corruption Branch
Under Sections 13(1)(c) PC Act r/w 120 B IPC
and Sections 409/420/120B IPC
CNR No. DLCT010005692007
STATE
Versus
1. Agnesh Verma
S/o Kishan Sawroop
R/o 300, II Floor,
Shalimar Garden ExtnI,
Sahibabad (U.P.)
2. Tara Chand
S/o Chahal Singh
R/o 161A, PocketA,
Dilshad Garden,
Delhi
ORDER ON SENTENCE
1. Vide separate judgment dated 10.8.2017 both convicts namely Agnesh
Verma (Junior Engineer) and Tara Chand (Assistant Engineer) were
found guilty and convicted under Sections 13(1)(c) PC Act read with
Section 120B IPC and Sections 120B, 409 and 420 IPC.
Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 1 of 39
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2. The proved facts in brief are that in order to prevent water logging
during monsoon season, CSE (Conservancy & Sanitation Engineering)
Department initiates a drive of desilting of drains in Delhi during pre
monsoon period. For this purpose, work regarding preparation of
estimate, desilting and then carry silt upto SLF site is carried out by the
CSE Deptt. of MCD every year before the onset of monsoon. Accordingly,
Junior Engineers and other superior staff of CSE Deptt. of Shahdara
(North Zone), MCD also prepared Action Plans for the year 200203 and
the work was got executed by convict Agnesh Verma/JE under the
supervision of convict Tara Chand/AE and accused Harpal Singh/EE,
CSE/Shahdara (North Zone)/MCD (now deceased). On the complaint of
Smt.Shimla Beniwal regarding irregularities committed in the payment
of wages to muster roll employees engaged for desilting of drains during
this period, investigation was conducted and chargesheet filed U/ss
13(1)(c) & 13(2) PC Act r/w Sec.120B IPC and U/ss
409/420/468/471/120B IPC. It was also claimed in the chargesheet
that a payment of Rs.15,30,855/ was disbursed by the convict Agnesh
Verma in conspiracy with convict Tara Chand/AE and accused Harpal
Singh (now deceased) in the names of 791 fictitious muster roll
employees causing wrongful loss to the tune of Rs.15,30,855/ to the
MCD and consequentially wrongful gain to convicts Agnesh Verma, Tara
Chand and deceased accused. During the trial, it was proved that
convicts Agnesh Verma/JE and Tara Chand/AE in their respective
capacities had entered into a criminal conspiracy and in furtherance of
their conspiracy, convict Agnesh Verma had shown to have disbursed
wages to nonexistent muster roll labour in the muster rolls after getting
the payment released to him which muster rolls were countersigned by
convict Tara Chand/AE. The convicts in the present case, thus, in utter
Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 2 of 39
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disregard of public duty introduced ghost labour in the muster rolls and
misappropriated/pocketed lakhs of rupees belonging to the CSE Deptt.,
Shahadara (North), MCD by showing disbursement of wages to those
ghost labour in muster rolls. The same was proved beyond reasonable
doubt from the evidence of PW1/Atambir Singh, PW2/Saranjeet Singh,
PW3/Pran Nath, PW4/Sonu, PW5/Amit, PW6/Sunil, PW7/Devender,
PW8/Yogesh, PW9/Arjun, PW10/Karambir, PW13/Dinesh Singh,
PW15/Rohtash, PW20/Rajbir, PW22/Anil, PW28/Kale, PW29/Yogender
Panchal, PW30/Kamaljeet Singh and PW31/Rajesh. These witnesses had
categorically stated that they had never received any such wages and
that the signatures/thumb impressions appended against receipt in the
muster rolls did not belong to them.
3. Arguments on quantum of sentence heard at length. The learned
defence counsels Sh. Ashwin Vaish and Sh. Yogesh Verma have prayed
for leniency, whereas, Sh.Atul Shrivastava, learned Addl.PP for the State
on the contrary, has prayed for maximum sentence as it was a case of
criminal misappropriation by public servants.
4. It is argued on behalf of convict Agnesh Verma that he is aged 46 yrs
and has the sole responsibility of maintaining his family members
comprising of his wife, 73 years old ailing father who is a retired teacher
and two children i.e. Ashta Verma aged 22 years and Adarsh Verma
aged 18 years who are students. It is further contended that convict
Agnesh Verma has to also repay a house loan of Rs.20 lacs. Convict has
been working with MCD for more than 10 years and has an impeccable
record.
Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 3 of 39
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5. Learned Counsel for convict Tara Chand has argued that convict Tara
Chand is aged 54 yrs and is suffering from diabetes and high blood
pressure. He has the sole responsibility of maintaining his wife aged 49
years, father aged 85 years, one son and one daughter who are students.
6. Per contra, maximum sentence is prayed for by learned Addl. PP for the
State on the ground that to curb such like offences, strong message is
required to be conveyed to the society as corruption is a white collar
crime against society.
7. Considering the nature of offence, I am not inclined to take a lenient
view. To quote the words of Hon'ble Mr. Justice D.P. Wadhwa,
"Reformative theory is certainly important but too much stress to
my mind cannot be laid down on it, that basic tenets of punishment
altogether vanish." Numerous observations have been made by Hon'ble
Supreme Court with respect to the theory of proportionality qua the
quantum of sentence. In case titled as State of Madhya Pradesh Vs.
Surender Singh reported as AIR 2015 SC 3980, the Hon'ble Supreme
Court has observed as follows:
"Undue sympathy to impose inadequate sentence would do more harm to the
justice system to undermine the public confidence in the efficacy of law. It is
the duty of every court to award proper sentence having regard to the nature
of the offence and the manner in which it was executed or committed. The
sentencing courts are expected to consider all relevant facts and
circumstances bearing on the question of sentence and proceed to impose a
sentence commensurate with the gravity of the offence. The court must not
only keep in view the rights of the victim of the crime but also the society at
large while considering the imposition of appropriate punishment. Meager
sentence imposed solely on account of lapse of time without considering the
degree of the offence will be counter productive in the long run and against
the interest of the society. One of the prime objectives of criminal law is the
imposition of adequate, just, proportionate punishment which commensurate
with gravity, nature of crime and the manner in which the offence is
committed. one should keep in mind the social interest and conscience of the
society while considering the determinative factor of sentence with gravity of
crime. The punishment should not be so lenient that it shocks the conscience
of the society. It is, therefore, solemn duty of the court to strike a proper
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balance while awarding the sentence as awarding lesser sentence encourages
any criminal and, as a result of the same, the society suffers. Imposition of
sentence must commensurate with gravity of offence". (emphasis supplied)
8. Corruption is a hydra headed monster and it is eating into vitals of the
country. It is the strongest force which is pulling us down and if we do
not eradicate corruption from our system, it will not only swallow us but
also push our country to oblivion and a point of no return. The public
servants have a moral obligation to serve the country and its citizens
with utmost honesty. The convicts in the instant case, instead served
themselves by indulging in corrupt practices over a series of transactions
over a period of three months by introducing ghost labour in the muster
rolls thereby siphoning public money. The quantum of money actually
misappropriated is not material or germane. It is not a routine general
case of corruption where public servant is held guilty of taking bribe for
a particular act from a victim.
9. Offence under Section 13(1)(c) PC Act is punishable u/s 13(2) PC Act.
Prior to amendment which came into effect on 16.01.2014, any public
servant who was held guilty for criminal misconduct was punishable
with imprisonment for a term of not less than two years which may
extend to seven years and fine. As on date, Section 13(2) PC Act
postulates that any public servant who commits criminal misconduct
shall be punishable with imprisonment for a term which shall be not less
than four years but which may extend to ten years and shall also be
liable to fine.
10. Offence under Section 409 IPC is punishable with imprisonment for life
or with imprisonment of either description for a term which may extend
to ten years and fine.
Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 5 of 39
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11.So far as offence under Section 420 IPC is concerned, same is
punishable with imprisonment of either description for a term which
may extend to seven years and fine.
12.Offence under Section 120B IPC carries sentence commensurate with the
offence for which criminal conspiracy was hatched and it provides that
whoever is the party to a criminal conspiracy to commit an offence
punishable with death, imprisonment for life or rigorous imprisonment
for a term of two years or upwards, shall where no express provision is
made in this code for the punishment of such a conspiracy, be punished
in the same matter as if he had abetted such offence.
13. Taking all the circumstances into consideration and the gravity of
offence which was committed for months together, I sentence convict
Agnesh Verma and Tara Chand with Rigorous Imprisonment (R.I.)
for Seven Years each along with Fine of Rs.50,000/ each for the
offences punishable under Sections 13(1)(c) PC Act read with
Section 120B IPC. In default of payment of fine, they shall suffer
further R.I. for Six Months.
14. I further sentence convicts Agnesh Verma and Tara Chand with R.I.
for Four Years each with fine of Rs.25,000/ each for the offence
punishable under Section 409 IPC. In default of payment of fine,
they shall suffer further R.I. for Six Months.
15. I also sentence convicts Agnesh Verma and Tara Chand with R.I. for
Four Years with fine of Rs.25,000/ each for the offence under
Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 6 of 39
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Section 420 IPC. In default of payment of fine, they shall suffer
further R.I. for Six Month.
16. I also sentence convicts Agnesh Verma and Tara Chand with R.I. for
Three Years each for the offence under Section 120B IPC.
All the substantive sentences shall, however, run concurrently with
benefit of Section 428 Cr.P.C.
Warrants be prepared accordingly.
Copies of this order and judgment dated 10.08.2017 be given to both
the convicts.
File be consigned to Record Room.
Announced and signed in the
open Court on 19th August, 2017
(Hemani Malhotra)
Spl.Judge (PC Act)(ACB)/C
Tis Hazari Courts/Delhi
Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 7 of 39
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IN THE COURT OF MS.HEMANI MALHOTRA/SPECIAL JUDGE (PC ACT)
(ACB)/CENTRAL05/TIS HAZARI COURTS/DELHI
CC No. 8/2002
FIR No. 42/2002
PS Anti Corruption Branch
Under Sections 13(1)(c) PC Act
and Sections 409/420/468/471/120B IPC
CNR No. DLCT010005692007
STATE
Versus
1. Agnesh Verma
S/o Kishan Sawroop
R/o 300, II Floor,
Shalimar Garden ExtnI,
Sahibabad (U.P.)
2. Tara Chand
S/o Chahal Singh
R/o 161A, PocketA,
Dilshad Garden,
Delhi
3. Harpal Singh (since deceased)
S/o Tola Ram
R/o H.No.66, Amarpali Apartment,
Patparganj,
Delhi
Date of institution : 15.01.2007
Date of receiving by this Court : 06.11.2015
Date of concluding arguments : 27.07.2017
Date of pronouncement of judgment : 10.08.2017
Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 8 of 39
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J UDGMENT
1. Accused Agnesh Verma/J.E., Tara Chand/A.E. and Harpal Singh/EE
(since expired), (all three public servants) have been chargesheeted by
PS Anti Corruption Branch for commission of offences punishable under
Sections 13(1)(c) of the Prevention of Corruption Act (hereinafter called
the "PC Act") and Sections 409/420/468/471/120B IPC for disbursing a
sum of Rs.15,30,855/ in the names of 791 nonexisting, muster roll
employees by preparing forged/bogus muster rolls thereby causing loss
to the MCD to the tune of Rs.15,30,855/.
FACTS OF THE CASE
2. The background which led to the registration of present case FIR u/ss
13(1)(c) PC Act r/w Secs. 409/420/468/471/120B IPC is that in order
to prevent water logging during monsoon season, CSE (Conservancy &
Sanitation Engineering) Department initiates a drive of desilting of
nallas in Delhi. For this purpose, work regarding preparation of
estimate, desilting and then carrying silt upto SLF site is carried out by
the CSE Department of MCD, every year before the onset of monsoon.
Accordingly, CSE Department of Shahdara (North Zone), MCD also
prepared an action plan for the year 200203 and the work was got
executed by accused Agnesh Verma/JE under the supervision of accused
Tara Chand/AE, and accused Harpal Singh/Executive Engineer (CSE),
Shahdara (North Zone), MCD (now deceased). Subsequently, a
complaint of PW17/Smt.Shimla Beniwal, Member Standing Committee
was received in Vigilance Deptt., MCD on 15.05.2002 which was
forwarded to Anti Corruption Branch. In the complaint, it was alleged
Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 9 of 39
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by Smt. Shimla Beniwal that the officials of CSE Department, Shahdara
(North Zone) had committed irregularities in the payment of wages to
muster roll employees engaged for desilting of nallas in the following
manner:
(i) Nonissuance of muster rolls in time and subsequently getting them
issued with bogus date;
(ii) showing of thousands of muster roll employees in muster rolls and
manufacturing signatures and thumb impressions to draw money
against them;
(iii) Bogus payment against tractor/trolley for lifting of silt;
(iv) Showing of more than one rounds of trolley to get payment twice or
thrice;
(v) Payment without slip from the SLF site; and
(vi)Payment against muster roll without carrying out any desilting work
at all.
Since the complaint of Smt. Shimla Beniwal contained serious
allegations against the officials of CSE Deptt., Shahdara (North), on the
directions of Vigilance Deptt, MCD, investigation was initiated by Anti
Corruption Branch. During the course of investigation, it transpired that
accused persons namely Harpal Singh, Executive Engineer, Shahdara
(North), Tara Chand/AE and Agnesh Verma/JE in their respective
capacity had entered into criminal conspiracy and in furtherance of their
conspiracy, accused Agnesh Verma prepared bogus muster rolls by
showing fictitious persons as muster roll labour for the work of desilting
of nallas in the area of Shahdara (North Zone), MCD for the year 2002
03. Accused Tara Chand and accused Harpal Singh (now deceased) in
their respective supervising capacity as laid down in CPWD Manual had
Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 10 of 39
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duly verified the bogus bills prepared on the basis of bogus muster rolls
and had got the payment released which was disbursed through accused
Agnesh Verma. Thus, payment of Rs.15,30,855/ was disbursed in the
names of 791 fictitious muster roll employees causing wrongful loss to
the tune of Rs.15,30,855/ to the MCD and consequentially wrongful
gain to the accused persons. Accordingly, chargesheet for commission of
offences punishable u/ss 13(1)(c) PC Act r/w Secs.
409/420/468/471/120B IPC was filed against accused persons.
3. After the chargesheet dated 09.01.2007 was filed by IO/Insp. Sukhbir
Singh/ACB, cognizance was taken by the learned Predecessor of this
Court on 14.02.2007 and accused persons were summoned to face trial.
Since accused Harpal Singh expired, proceedings qua him stood abated
on 17.03.2011.
4. Thereafter, arguments on charge were heard on behalf of accused
Agnesh Verma and Tara Chand and vide order dated 11.10.2013, the
learned Predecessor of this Court framed charges for offences
punishable u/ss 13(1)(c) and 13(2) PC Act r/w Sec. 120B IPC and u/ss
409/420/468/471/120B IPC against both the accused persons, to which
they pleaded not guilty and claimed trial.
EVIDENCE
5. To prove its case, prosecution has examined as many as 43 witnesses,
whereas, the accused persons examined 5 witnesses. The entire case of
the prosecution hinges upon documentary evidence. Accused Agnesh
Verma in his statement recorded u/s 313 Cr.P.C. denied the prosecution
case in toto and claimed that he was innocent. He claimed that as JE, it
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was not part of his duty to engage casual labour. Since the work
demanded desilting of drains which was extremely dirty and
dehumanising, he had instructed the Beldars to find casual labour.
Accused Agnesh Verma also claimed that the actual requirement as per
Clause 9.2 of CPWD Manual was that in case of temporary workers such
as casual labour who were not drawn from employment exchange, even
the name of labour was not required to be given. His only job was to
ensure that the number of casual labour working at site corresponded
with the casual labour sanctioned by Addl.Commissioner/Commissioner
of MCD. It was also stated by accused Agnesh Verma that since the
muster rolls were filled by the subordinate staff/Beldar, there was no
reason to doubt the details filled by them in the muster rolls. He also
took a bold plea that the muster rolls do not bear his handwriting or
signatures and the payments were never disbursed by the Cashier to
him. In his defence, he examined 5 witnesses namely A.A.Khan/Chief
Engineer (Retd.) as DW1, Uttam Vaswani/Chief Engineer (Retd.) as
DW2, B.R. Arya/Executive Engineer (Retd.) as DW3, Dinesh as DW4
and Sachin as DW5.
6. In his statement recorded u/s 313 Cr.P.C., accused/AE Tara Chand also
denied the prosecution case in toto. He claimed that he was innocent
and that he was looking after the work of six wards i.e. Ward Nos. 83 to
86, 97 and 98 in CSE Shahdara North Zone as Assistant Engineer. Three
Junior Engineers were working under him who were mainly responsible
for two wards each. Since he was also independently looking after three
major projects as AE of Yamuna Vikas Board, he used to be busy there.
Certificate of disbursement of payment was given by JE on the back of
every muster rolls. The payment was released on the direction of EE to
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JE. No payment was made in his presence to the labour and even no
complaint was made to him for non receipt of payment by any labour.
There was no complaint of any nature that the work was not done in
nalas. As an AE, it was not the part of his duty to employ casual labour.
Since the work of casual labour was desilting of nalas, it was the duty of
subordinate staff to find persons for casual labour. The work to be done
by casual labour was extremely dirty and dehumanization work in those
days i.e. 2002 and nobody was ready to undertake the job. For this
reason, he would ask Beldar to find casual labour who would carry out
the work of maintenance and flow of nalas for the rest of the year. The
actual requirement as per clause 9.2 of the CPWD Manual was that in
case of temporary worker such as casual labour who were not drawn
from employment exchange, even the name of labour were not required
to be given as, they were not employee of the Corporation. His only job
was to ensure that the number of casual labour working at site i.e. nala
corresponded with the strength of casual labour sanctioned by the
Addl.Commissioner/Commissioner of MCD. Since the muster rolls were
filled by the subordinate staff, work was being done regularly for period
of four months. There was no reason to doubt the details filled in the
muster roll by the staff. Accordingly, the muster roll was forwarded by
him. Payments were never disbursed in his presence by the cashier or
JE. There was no notification/direction from MCD to obtain the identity
proof of labour before employed in muster roll. The IO has not
interrogated the Beldars and further has not brought on record the facts
that no discrepancy was found in the desilting of nalas or that payment
for disbursement has to be approved by high level officer of the
Corporation after officer of ranks such EE, Joint Director, Directorin
Chief, Addl.Commissioner and Commissioner had satisfied themselves
Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 13 of 39
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about the quantity and quality of work done as per approval of action
plan. Thus, there was no question of muster roll being fake or money
being misappropriated and documents forged. There is no evidence on
record to show that any pecuniary advantage was gained by him. He,
however, did not lead any evidence in his defence.
7. I have heard Sh.Atul Kumar Shrivastava, Learned Addl.PP for the State,
Sh. Ashwin Vaish, Learned Counsel for accused Agnesh Verma and Sh.
Yogesh Verma, Learned Counsel for accused Tara Chand.
8. To prove the complaint (Ex. PW17/A) which led to the registration of
present FIR No.42/02, the prosecution examined Smt.Shimla Beniwal as
PW17. She testified that during 19972002, she was Municipal
Councilor for Ward No.84, Seemapuri, Delhi and that Conservancy &
Sanitation Engineering (CSE) Department of MCD was supervising the
cleanliness and maintenance of drains. This work was earlier performed
through contractors but since there was some dispute about the
payments not being released to them in time, the officials of MCD
started getting the work done through labour engaged on daily wage
basis. A policy was framed for getting the drains upto 6 feet wide
cleaned through daily wage engaged labour on muster rolls. For wider
drains, the work was to be carried out through Contractors. However, in
practice, even the wider drains were not got cleaned through
Contractors but were got cleaned on muster rolls basis. As a Councilor, it
was observed that the work was not being done and bogus muster rolls
were prepared and wages were not actually paid to the labours. It also
came to notice that the labour which was actually engaged only for one
month or shorter period, was fictitiously shown to have worked for 34
Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 14 of 39
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months and wages were claimed for longer period but not paid to them.
The irregularities were brought to her notice by the residents of the area
which were incorporated by her in her complaint dated 15.05.2002 (Ex.
PW17/A) addressed to Addl.Commissioner, PS ACB, Delhi Govt. She
had also sent copies of the said complaint to Commissioner/MCD and
Director/Vigilance Department/MCD.
9. Since, it was the case of the prosecution that the alleged offences were
committed by Junior Engineer Agnesh Verma in conspiracy with
Assistant Engineer Tara Chand and Executive Engineer Harpal Singh
(since deceased), the prosecution further examined Ravi Dass/Engineer
inChief/SDMC, Civic Centre, Delhi as PW26 who proved circulars Mark
PW26/B to Mark PW26/F pertaining to the duties of JEs (Civil) and
other Engineers of MCD. According to Circular Mark PW26/B which is a
circular dated 18.11.1973, JEs are also known as Sectional Officer and
they are employed to undertake original works; maintenance and petty
works; planning works and store works on the civil side in addition to
the work pertaining to the scrutiny of building plan, sanitary plans etc.
He is the pivot being primary element in the Executive unit and is
responsible both for the execution of work and maintenance of accounts
with which he is concerned. A part of his duty amongst other duties also
entails him to mark attendance of work charged and regular staff in the
register; to maintain the muster rolls properly; to mark the
attendance of casual labour in muster rolls; to arrange for casual
labour required for departmental work. As per Circular Mark PW26/E
(CPWD Manual), Assistant Engineer or Assistant Executive Engineer is
responsible for supervision of execution of work by JEs working under
him according to the norms and standards laid down in design/drawings
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and estimates.
10.Admittedly, the present case pertains to the roles of JE/Agnesh Verma
and AE/Tara Chand regarding the casual labour employed and wages
paid to them as per muster rolls for the purpose of desilting of drains in
the premonsoon period commencing from Feb. 2002 to April 2002.
Procedure of Work and Payment of Wages
11.To prove the procedure commencing from the issuance of muster rolls to
disbursement of payments, the prosecution examined Vinod Kumar, LDC
as PW39 who is the star witness of the prosecution. He testified that as
per the procedure, blank Muster Rolls are issued to the JE concerned
against signatures on the direction of Commissioner/MCD by the
Cashier. After execution of work, the Muster Rolls duly completed by JE
and AE, supported by a certificate issued by JE regarding identification
and attendance of labour entered in the muster rolls and payments of
wages to them is put up before the Executive Engineer routed through
Assistant Engineer for approval of release of payment of wages. Muster
Rolls after having been duly approved by Executive Engineer is put up
before the Chief Accountant/MCD through Assistant Chief Accountant,
Dy.Chief of Accounts of Conservancy & Sanitation Engineering (HQs),
which are then forwarded to Joint Director and Director (HQs) for
release of payment. The payment is thereafter credited to the account of
Dy.Commissioner of the Zone on the directions of DirectorinChief
(Engineering). The Dy. Commissioner of Zone then transfers the amount
to the account of Executive Engineer. The amount after it has been
credited to the accounts of Executive Engineer is withdrawn by the
Cashier and then handed over to the JE concerned.
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12.Qua the issuance of blank muster rolls to accused Agnesh Verma and
disbursement of wages to him, PW39/Vinod Kumar testified that in the
year 2002, he was posted as LDC in Shahdara (North Zone), MCD and
was performing duties of cashier, diary/dispatch, typing or any other
work assigned by the superiors. At the time of issuance of Muster Rolls
to accused Agnesh Verma, he as per procedure in practice, had taken the
signatures of accused Agnesh Verma/JE on the issuing register (Ex.
PW39/A) maintained for the said purpose. Accordingly, Muster Rolls Ex.
PW25/A, Ex. PW3/A, Ex. PW25/M, Ex. PW6/A, Ex. PW25/B, Ex.
PW25/C, Ex. PW25/D, Ex. PW25/E, Ex. PW25/F, Ex. PW37/F, Ex.
PW37/G, Ex. PW37/H, Ex. PW37/I, Ex. PW21/A, Ex. PW37/J, Ex.
PW39/B, Ex. PW36/B, Ex. PW12/A, Ex. PW11/A, Ex. PW27/A, Ex.
PW36/A, Ex. PW16/A, Ex. PW37/A, Ex. PW37/B, Ex. PW22/A, Ex.
PW37/C, Ex. PW37/E, Ex. PW25/H, Ex. PW25/I, Ex. PW25/J, Ex.
PW25/G, Ex. PW10/A, Ex. PW20/A, Ex. PW12/A and Ex. PW25/L were
issued to accused Agnesh Verma under his signatures. After execution of
work, the aforesaid muster rolls bearing corresponding certificates
signed by accused Agnesh Verma regarding identification, attendance
and payment of wages to labour were put up before Executive Engineer
routed through Assistant Engineer. After completion of necessary
formalities, the amount towards payment of wages approved were
withdrawn in cash by him and then handed over to accused Agnesh
Verma/concerned JE. PW39/Vinod Kumar also testified that at the time
of handing over cash to accused Agnesh Verma, he had obtained his
signatures each time the amount was handed over to him in a Payment
Disbursement Register (Ex. PW39/C). He had put voucher numbers on
each muster roll vide which the amount for the said muster roll was
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released to accused Agnesh Verma and the corresponding Voucher
Number was also mentioned in Disbursement Register (Ex. PW39/C).
13.In his further examinationinchief, PW39/Vinod Kumar, LDC correlated
the payments released for disbursement of wages to the labour engaged
as per Muster Rolls with the Voucher Numbers mentioned in the muster
rolls. He also testified that payments qua some muster rolls was handed
over to JE/R.C. Singla on behalf of accused Agnesh Verma vide cheque
bearing No.286495 dt. 18.07.2002, the entry of which was reflected at
point X on page 16 of the Cash Book (Ex. PW39/D). The cheque bearing
No. 286495 for the amount of Rs.14,22,326/ was received by R.C.
Singla on behalf of accused Agnesh Verma as both of them were having
common office and Executive Engineer accused Harpal Singh (now
deceased) had directed him to handover the entire cash of the aforesaid
cheque to R.C. Singla for the amount to be disbursed to labour by both
the JEs i.e. R.C. Singla and Agnesh Verma. He also testified that no
balance undisbursed amount was deposited with him by accused Agnesh
Verma. The star witness was crossexamined at length but nothing
material could be brought on record to assail his trustworthiness. In my
view, this witness has stood the test of crossexamination and is a fully
trustworthy witness.
14.In his crossexamination, PW39/Vinod Kumar admitted that issuing
register (Ex. PW39/A) regarding the issuance of muster rolls was neither
maintained by him nor he had made any entry in Ex. PW39/A. He also
admitted that the muster rolls after payment were deposited by the JE
concerned in the Accounts Department and not with him. The fact that
the muster rolls were issued by the Accountant, the prosecution
Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 18 of 39
19
examined PW37/K.Y.V.V. Subba Rao, who at the relevant time i.e. from
04.02.2002 to 07.08.2002 was posted as Accountant in Shahdara North
Zone. He testified regarding the issuance of muster rolls by him and the
role of Accountant in disbursement of payment to JE. He also testified
that on the basis of requisition by the Engineering staff which was put
through concerned clerk in the Accounts Branch, it was he who had
issued the muster rolls. The muster rolls are blank at the time of
issuance. The sheets in the muster rolls are attached corresponding to
the number of casual labour approved to be engaged. He also testified
that serial number is printed on the muster rolls and the record
regarding issuance of muster rolls on the basis of their serial number is
maintained in the office. He specified that the role of the Accountant is
to issue muster rolls on the basis of approved requests received from
Engineering Department. Further, elaborating on the procedure of
payment to the labour, he testified that after completion of task,
payment is approved by Executive Engineer on the basis of certificate of
work done issued by JE and onward Engineering staff. This approval of
payment is countersigned by the Accountant after checking the
calculation made in the muster rolls.
15.The procedure qua the release of payment to JE was neither disputed
nor challenged by the learned Counsels for the accused persons.
However, learned counsel for accused Agnesh Verma challenged the fact
that payments to be made to labour were released to accused Agnesh
Verma by the Cashier PW39/Vinod Kumar. In order to demonstrate his
stand, he proved the fact that the entry at Pg.16 of Petty Cash Book (Ex.
PW39/D) reflected that payments against voucher No.7 to 38 were
released to R.C. Singla/JE and not to accused Agnesh Verma. Similarly,
Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 19 of 39
20
he also pointed out entries in the Disbursement Register (Ex. PW39/C)
which depicted that payments were released to Beldar/mates.
PW39/Vinod Kumar in his crossexamination failed to justify the
aforesaid entries and stated that the payments were released to Beldars
on the basis of authorisation by the JE concerned. However, he failed to
bring on record any authorisation on behalf of concerned JE vide which
he could have released the payments to Beldars. Regarding release of
payment to R.C. Singla/JE, it was explained by him that handing over
payments to colleague officer was a routine practice and therefore, no
authorisation by accused Agnesh Verma was insisted upon. He, however,
showed ignorance if the amount handed over to R.C. Singla was further
handed over to accused Agnesh Verma or not.
16.Be that as it may, as discussed above, it was specifically testified by
PW39/Vinod Kumar/Cashier that the payments were released to
accused Agnesh Verma against muster rolls through Vouchers
mentioned in Disbursement Register Ex. PW39/C after accused Agnesh
Verma had submitted the muster rolls with corresponding certificate
issued by him. It was also testified by PW39/Vinod Kumar that muster
rolls after payment were deposited by accused Agnesh Verma with the
Accounts Department. Hence, the challenge made by the learned
Counsel for the accused does not cut any ice.
Disbursement of wages to fictitious/nonexistent labourers
17.To prove its case that accused Agnesh Verma after getting the payments
released against muster rolls through vouchers, disbursed the same to
nonexistent labourers (whose names were found mentioned in the
muster rolls but who had never been engaged as labourers by accused
Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 20 of 39
21
Agnesh Verma), the prosecution examined the following persons:
Atambir Singh as PW1; Saranjeet Singh as PW2; Pran Nath as PW3;
Sonu as PW4; Amit as PW5; Sunil as PW6; Devender as PW7; Yogesh as
PW8 Arjun as PW9; Karambir as PW10; Dinesh Singh as PW13; Rohtash
as PW15; Kamaljeet Singh as PW30, Rajesh as PW31 and PW36/Smt.
Prem.
All the aforesaid witnesses testified that though their correct names and
addresses figured in the muster rolls, but they had never been engaged
by MCD Shahdara Zone as labour for desilting of drains in the year
2002. PW1, PW2, PW3, PW4, PW5, PW6, PW8, PW9, PW10, PW15,
PW30, PW31 and PW36 also testified that their signatures/thumb
impressions on the revenue stamps affixed in the last column of the
muster rolls were forged and that they had never received any payment
against their alleged signatures as they had never worked.
PW7/Devender categorically testified that the thumb impression on the
revenue stamp on the muster roll (Ex. PW6/A) was not his as he does
not put thumb impression but appends his signatures. He also testified
that he never received any payment for desilting of drains as he had
never been engaged for such a job.
18.The prosecution also examined PW11/Neeraj, PW19/Anil Kumar,
PW20/Rajbir, PW21/Ajeet, PW22/Anil, PW27/Rajesh, PW28/Kale and
PW29/Yogender Panchal who testified that although they had been
engaged as casual labour, they were not given their full wages and that
the signatures/thumb impressions on the revenue stamp on the muster
rolls were not theirs. PW20/Rajbir and PW28/Kale also went to the
extent of testifying that they only put thumb impression as they were
Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 21 of 39
22
illiterate and hence, the signatures appended on the revenue stamp
were not theirs. PW22/Anil testified that the signatures which are
shown to be his, are in Hindi and he signs only in English.
PW29/Yogender Panchal testified that since he was literate, he never
puts thumb impressions on documents but only signs.
19.It was very vehemently argued by learned Counsel for accused Agnesh
Verma that the case of prosecution pertains to 40 muster rolls as only 40
muster rolls were collected and shown to have been issued to accused
Agnesh Verma. However, no labour qua 22 out of 40 muster rolls were
examined by the prosecution who could have complained that though
their name appears in the muster rolls but they have never desilted the
drains. 19 out of 40 muster rolls were such, wherein perusal of the petty
cash book Ex. PW39/D reveals that the payment was not disbursed to
accused Agnesh Verma but was disbursed to another JE i.e. R.C. Singla.
Hence, the prosecution has miserably failed to prove its case against
accused Agnesh Verma.
20.There is no force in this argument of learned Counsel for the accused
Agnesh Verma and it deserves to be outrightly rejected. The perusal of
the following muster rolls completely demolishes the case of accused
Agnesh Verma:
(i) Muster Roll No.61905 (Ex. PW6/A) reflects that the same was
issued to accused Agnesh Verma vide entry at S.No.120 on Page No.8 of
Disbursement of Muster Rolls register (Ex. PW39/A) and he had issued
a certificate that he had disbursed the payment to the muster roll labour
after identifying them. Qua this muster roll, the prosecution has
examined PW1/Atambir Singh, PW2/Saranjeet Singh, PW6/Sunil,
Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 22 of 39
23
PW7/Devender, PW13/Dinesh Singh, PW30/Kamal Jeet Singh and
PW31/Rajesh who denied having desilted nalas and having been paid.
They also denied their signatures on the revenue stamps against receipt
of wages.
(ii) Muster Roll No.61909 (Ex. PW25/C) reflects that the same was
issued to accused Agnesh Verma vide entry at S.No.124 on Page No.9 of
Disbursement of Muster Rolls register (Ex. PW39/A) and he had issued
a certificate that he had disbursed the payment to the muster roll labour
after identifying them. Qua this muster roll, the prosecution has
examined PW34/Braham Pal who had stated that he had worked with
MCD for desilting of nalas for three months but he was paid wages for
two months only. He also denied his thumb impression at S.No.21 and
claimed that since he was a literate, he only signs.
(iii) Muster Roll No.61937 (Ex. PW3/A) reflects that the same was
issued to accused Agnesh Verma vide entry at S.No.152 on Page No.10
of Disbursement of Muster Rolls register (Ex. PW39/A) and he had
issued a certificate that he had disbursed the payment to the muster roll
labour after identifying them. Qua this muster roll, the prosecution has
examined PW3/Pran Nath, PW4/Sonu, PW5/Amit, PW8/Yogesh and
PW9/Arjun, who denied having worked as labour for desilting of nalas
with MCD. They also denied their signatures on the revenue stamps
against receipt of wages.
(iv) Muster Roll No.403 (Ex. PW20/A) reflects that the same was
issued to accused Agnesh Verma vide entry at S.No.403 on Page No.20
of Disbursement of Muster Rolls register (Ex. PW39/A) and he had
Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 23 of 39
24
issued a certificate that he had disbursed the payment to the muster roll
labour after identifying them. Qua this muster roll, the prosecution has
examined PW20/Rajbir. He denied his signatures at S.No.23 and
claimed that since he was an illiterate, he only put thumb impression.
(v) Muster Roll No.404 (Ex. PW10/A) reflects that the same was issued
to accused Agnesh Verma vide entry at S.No.404 on Page No.20 of
Disbursement of Muster Rolls register (Ex. PW39/A) and he had issued
a certificate that he had disbursed the payment to the muster roll labour
after identifying them. Qua this muster roll, the prosecution has
examined PW10/Karambir and PW15/Rohtash, who denied having
worked as labour for desilting of nalas with MCD. Both also denied their
signatures on muster roll No.404.
(vi) Muster Roll No.418 (Ex. PW36/A) reflects that the same was
issued to accused Agnesh Verma vide entry at S.No.418 on Page No.20
of Disbursement of Muster Rolls register (Ex. PW39/A) and he had
issued a certificate that he had disbursed the payment to the muster roll
labour after identifying them. Qua this muster roll, the prosecution has
examined PW36/Smt. Prem who denied having desilted nalas and his
signatures on muster roll No.418. She also claimed that as she was an
illiterate, she only put thumb impression.
(vii) Muster Roll No.409 (Ex. PW22/A) reflects that the same was
issued to accused Agnesh Verma vide entry at S.No.409 on Page No.20
of Disbursement of Muster Rolls register (Ex. PW39/A) and he had
issued a certificate that he had disbursed the payment to the muster roll
labour after identifying them. Qua this muster roll, the prosecution has
Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 24 of 39
25
examined PW22/Anil who had stated that he had worked with MCD for
2 ½ months for desilting of nalas but was not paid full wages. He
further denied his signatures at S.No.9 of Muster Roll No.409 and stated
that he only signs in Hindi.
(viii) Muster Roll No.407 (Ex. PW29/A) reflects that the same was
issued to accused Agnesh Verma vide entry at S.No.407 on Page No.20
of Disbursement of Muster Rolls register (Ex. PW39/A) and he only had
issued a certificate that he had disbursed the payment to the muster roll
labour after identifying them. Qua this muster roll, the prosecution has
examined PW29/Yogender Panchal who had stated that he had worked
with MCD and was paid full wages but denied the thumb impression on
the revenue stamp in token of receipt of Rs.2,674/ towards wages as
his. He stated that he does sign the documents but does not put thumb
impression, as he is literate.
Thus, even though prosecution was unable to prove corresponding
vouchers to the muster roll Nos. 61905 (Ex. PW6/A), 61909 (Ex.
PW25/C), 61937 (Ex. PW3/A), 403 (Ex. PW20/A), 404 (Ex. PW10/A),
418 (Ex. PW36/A), 409 (Ex. PW22/A) and 407 (Ex. PW29/A), from the
certificate of disbursement issued by accused Agnesh Verma an
inference needs to be drawn that the wages purported to have been
given to the labour were received by him and disbursed in his presence.
The contents of the certificate issued by accused Agnesh Verma are
reproduced as follows:
"पममण पत
पममणणत णकयम जमतम हह णक र. ______ पहसस ______कम मसरर उपसससणत मम भभगतमन कर
णदयम गयम (शबदद मम) र. _____________________________.
पममणणत णकयम जमतम हह णक इस शणमक णनयममवलर मम णदखमयस गयस सभर कमर चमररयद कक
Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 25 of 39
26
वमसतव मम णनगम कस णहतमसर कमयर पर लगमयम गयम सम तसम इसमम दजर णकयम गयम उनकम वसतन मसरर
उपससतथस मम उनहह वयणकयद कक णदयम गयम जक इसकस हकदमर सस।
पणतहसतमकर ककतस
पममणणतकरमर कस हसतमकर
इनजर. कमयर भमरर, णदलर "
21.Much stress was laid by learned Counsel for accused persons upon the
fact that the specimen signatures of PW1/Atambir Singh, PW2/Saranjeet
Singh, PW3/Pran Nath, PW4/Sonu, PW5/Amit, PW6/Sunil,
PW7/Devender, PW8/Yogesh, PW9/Arjun, PW10/Karambir,
PW13/Dinesh Singh, PW15/Rohtash, PW30/Kamaljeet Singh and
PW31/Rajesh, who had denied their signatures on the muster rolls were
not sent for forensic examination. In my opinion, once the witness
stepped in the witness box and on oath stated that the signatures on the
muster roll did not belong to him, there was no requirement on the part
of the prosecution to send his signatures for forensic examination.
Once, the signatory denied his signatures on muster rolls, the onus of
proof that the alleged signatures were not that of the signatory shifted
on the accused, which the accused failed to discharge. It may be
reiterated that credibility of these poor witnesses could not be assailed
as sham. At this juncture, it will be useful to reproduce Section 67 of
Indian Evidence Act which is as follows:
"67. Proof of signature and handwriting of person alleged to
have signed or written document produced - If a document is
alleged to be signed or to have been written wholly or in part by
any person, the signature or the handwriting of so much of the
document as is alleged to be in that person's handwriting must be
proved to be in his handwriting."
The prosecution, therefore, by examining the alleged signatories to the
muster rolls discharged its burden and successfully proved that
PW1/Atambir Singh, PW2/Saranjeet Singh, PW3/Pran Nath,
Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 26 of 39
27
PW4/Sonu, PW5/Amit, PW6/Sunil, PW7/Devender, PW8/Yogesh,
PW9/Arjun, PW10/Karambir, PW13/Dinesh Singh, PW15/Rohtash,
PW30/Kamaljeet Singh and PW31/Rajesh had never worked as labour
in the premonsoon period of 2002 but were shown to have been paid
wages.
22.It is also significant to note that prosecution has also examined
PW20/Rajbir and PW28/Kale who testified that since they are illiterate
they only put thumb impressions and do not sign. Yet, the revenue
stamps against their names in muster rolls were found to be allegedly
signed by them. Similarly, prosecution has also examined
PW29/Yogender Panchal who testified that he only signs and does not
put thumb impression as he is literate. Also, prosecution has examined
PW22/Anil who deposed that he signs only in English, whereas, his
signatures on revenue stamp against his name were shown in Hindi. The
testimonies of PW20, PW28, PW29 and PW22 thus also nail the accused
Agnesh Verma.
23.In addition to the aforesaid, the culpability of accused Agnesh Verma is
further established from the correlation between Muster Roll No.409
(Ex. PW22/A), Voucher No.103 on Pg. 15 of Disbursement Register Ex.
PW39/C and the certificate attached to Muster Roll Ex. PW22/A. The
muster rolls issuance register (Ex. PW39/A) reveals that Muster Roll
No.409 (Ex. PW22/A) was issued to accused Agnesh Verma against his
signature and vide Voucher No.103 (Pg.15 of Disbursement Register Ex.
PW39/C) an amount of Rs.82,280/ was released to accused Agnesh
Verma on 30.07.2002 against his signature. The first page of Muster Roll
No.409 (Ex. PW22/A) on its bare perusal substantiates the fact that
Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 27 of 39
28
payment qua Muster Roll No.409 was released vide Voucher No.103 on
30.07.2002 to accused Agnesh Verma. The last page of Muster Roll
No.409 (Ex. PW22/A) further reflects that a certificate was issued by
accused Agnesh Verma that the amount of Rs.82,280/ has been
disbursed in his presence to the labour mentioned in the Muster Roll
No.409. The last nail in the coffin is the testimony of Anil examined as
PW22 who has categorically testified that he was engaged in the year
2002 by JE/Agnesh Verma as labour for desilting of nallas. He also
stated that he had worked for two & a half months but was not paid his
full wages and that signatures on the revenue stamp at Point A on
Muster Roll No.409 (Ex. PW22/A) in token of receipt of Rs.2,057/ were
not his as he does not sign in Hindi.
24.Similarly, the correlation between Muster Roll No.418 (Ex. PW36/A),
Voucher No.102 on Pg. 15 of Disbursement Register Ex. PW39/C and
the certificate attached to Muster Roll Ex. PW36/A also establishes the
guilt of accused Agnesh Verma. The muster rolls issuance register (Ex.
PW39/A) reveals that Muster Roll No.418 (Ex. PW36/A) was issued to
accused Agnesh Verma against his signature and vide Voucher No.102
(Pg.15 of Disbursement Register Ex. PW39/C) an amount of Rs.83,200/
was release to accused Agnesh Verma on 30.07.2002 against his
signature. The first page of Muster Roll No.418 (Ex. PW36/A) on its
bare perusal substantiates the fact that payment qua Muster Roll No.418
was released vide Voucher No.102 on 30.07.2002 to accused Agnesh
Verma. The last page of Muster Roll No.418 (Ex. PW36/A) further
reflects that a certificate was issued by accused Agnesh Verma that the
amount of Rs.83,200/ has been disbursed in his presence to the labour
mentioned in the Muster Roll No.418. Qua Muster Roll No.418, the
Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 28 of 39
29
prosecution has examined Smt.Prem as PW36 who categorically
testified that she was never employed as labour for desilting of nallas.
Signatures on the revenue stamp at Point 'P' on Muster Roll No.418 (Ex.
PW36/A) in token of receipt of Rs.2,080/ were denied to be hers as she
does not know how to sign and she puts thumb impression only.
25.It is not the case of defence that Muster Rolls Issuance Register (Ex.
PW39/B) and Disbursement of Payment Register (Ex. PW39/C) do not
bear the signatures of accused Agnesh Verma. Hence, the aforesaid
discussion in preceding paras firmly demolishes the case of accused
Agnesh Verma that it was not he who had received payments and had
been shown to have disbursed the same.
26.It was then argued by learned Counsel for accused Agnesh Verma that
silt clearing of drains was an act of urgency. Hence, payments were to
be made on the basis of Causal Labour Roll form (CPWA Form22) in
which the names of the labourers need not be given. As names of
laboureres were not to be given, no duty was cast upon accused Agnesh
Verma to identify labours by their names while disbursing wages. It was
also contended that it was the Beldars who were delegated the task of
employing such persons from open market and make the payment of
wages to them and that accused Agnesh Verma had no role to play in
disbursement of wages to such labour. The argument of learned Counsel
for accused Agnesh Verma was tooth and nail disputed by Learned
Addl.PP for the State by relying upon Section 9.1 of the CPWD Manual
which according to him, was applicable in the present case.
27.To arrive at a just conclusion, it will be useful to reproduce Section 9.1
Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 29 of 39
30
of CPWD Manual which deals with use of muster rolls;
"Section 9.1 postulates that Muster rolls (Form CPWA21) are
used for getting the work done departmentally through daily
rated labourers and workmen. A muster roll is generally issued for
a specific period not exceeding a month at a time and for specific
item of work. One or more muster rolls can be kept for each work
but these should never be prepared in duplicate."
Since it is neither the case of prosecution nor the case of defence that in
the present case muster rolls were not used in marking the attendance
of labour engaged for desilting of nalas, it is imperative to examine if
desilting of drains in premonsoon period was an act of urgency or not.
The Action Plan Files (Ex. PW38/B1 to B20) reveal that like every year,
desilting of nalas was conducted during the premonsoon period and
accordingly, an Action Plan was formulated by the concerned JE which
included the estimate of original works and a site plan of the nala which
required desilting. The contents of Action Plan Files prepared by accused
Agnesh Verma reveal that he has mentioned as follows:
"As per usual practice, the desilting of nala is required every
year. Depth of silt is verified. Silt will be dumped at S.L.F./as
per direction of Engineerincharge."
Taking note of the observation given by accused Agnesh Verma in his
Action Plan, desilting of nalas by no stretch of imagination, can be
considered as an act of urgency. It is apparent that the plan to desilt
drains is made every year in advance and not when there is an
unforseen imminent requirement. Hence, it can be safely concluded that
desilting of drains in premonsoon period was not an exceptional case of
urgency and this exercise was conducted every year by the Engineering
Department of the MCD.
28.The argument of learned Counsel for accused Agnesh Verma that the
Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 30 of 39
31
conditions for Casual Labour Roll Form were applicable in the present
case is also demolished by the defence witnesses examined by accused
Agnesh Verma. A.A.Khan (DW1) who is a retired ChiefEngineer from
MCD and who contradicted the claim of accused Agnesh Verma and very
categorically testified that although, Casual Labour Roll Form CPWA22
(Ex. DW1/DA) was applicable to MCD employees but for practical
purpose, Form No.22 was never implemented and used. He also testified
that after the funds are approved and released from the Accounts
Department, the same are drawn by the Cashier from the bank and
depending on their internal arrangement, either the Cashier or any
officer including JE or such person authorised by Cashier distributes the
same to the casual labour.
29.In view of the aforesaid discussion of evidence, the case of
prosecution against accused Agnesh Verma stands proved beyond
reasonable doubt.
30.The testimony of DW2/Uttam Vaswani, who is a retired ChiefEngineer,
MCD instead of helping the accused rather goes against him and
supports the prosecution case. He testified that he had worked with CSE
(Conservancy & Sanitation Engineering) Department w.e.f. 200007 in
the capacity of Joint Director. The CSE Department was given the task
of desilting of drains. Nalas below 6 feet depth/width were desilted by
sanitation staff under control of Sanitation Superintendent. With respect
of desilting of bigger drains of more than 6 feet depth/width, same was
desilted by Engineering staff under control of JE/AE by deploying
muster roll labour i.e. casual labour temporarily deployed during pre
monsoon period. The muster roll labour i.e. temporarily/ casual labour
Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 31 of 39
32
is arranged through contractors and regular mates who are well
conversant with the area as the work is to be completed within the
prescribed period. He also testified that he had never seen Casual
Labour Roll Form CPWA22 (Ex. DW1/DA) during his tenure with MCD
and that the Form which was used Form21 (wrongly typed as Form
2.1). Form22 (Ex. DW1/DA) was never used for marking the
attendance of casual labour. He also deposed that it was the duty of JE
to supervise the work of casual labour during premonsoon session and
mark their attendance. As per the practice, prevalent prior to October
2002, the muster roll was prepared by the JE concerned and
countersigned by AE, thereafter, the muster roll used to be sent to
Accounts Department and payment received from the bank by the
officials of Accounts Department/Cashier. Payment was then released to
JE against receipt and JE used to disburse the payment to the muster
roll labour preferably in presence of Accounts Officer. He further
testified that verification of muster roll labour is carried by the JE in all
circumstances i.e. even if the casual labour has been arranged by mates
or contractors. Similarly, DW3/B.R. Arya, retired Executive
Engineer/MCD examined as defence witness by accused Agnesh Verma,
deposed that the identification of the casual labour at the time of
disbursement of wages for the work in premonsoon period was to be
carried out by JE.
31.I am thus of the considered opinion that testimony of defence witnesses
DW1, DW2 and DW3 does not help the accused in any manner rather,
from the scrutiny of the testimonies of DW1, DW2 and DW3, it is firmly
established that an obligation was cast upon the JE/accused Agnesh
Verma to identify casual labour/muster roll labour to whom the
Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 32 of 39
33
payment was disbursed at the end of the month, which accused Agnesh
Verma failed to discharge.
32.The next limb of argument of Learned Counsels for accused persons was
qua the sanction accorded by the Competent Authority to prosecute
accused Agnesh Verma and Tara Chand. It was urged that the sanction
accorded by PW43/Sh.Ashok Kumar, the then Commissioner/MCD, was
without application of mind and therefore, invalid. That the sanction
was without application of mind is evident from the Sanction Orders
(Ex. PW43/A and Ex. PW43/B). It was also emphasised that in the
Sanction Order dated 06.09.2006, the Sanctioning Authority had
referred to a "transcription" whereas there was no transcription i.e.
typed version of a recorded digital conversation in the instant case.
33.In my considered opinion, referring to a "transcription" when none
existed does not make the sanction order invalid. The bare reading of
Sanction Order dated 06.09.2006 passed by the then
Commissioner/MCD Sh. Ashok Kumar/PW43 reflect that he had
carefully examined the material placed before him i.e. the complaint,
FIR, Statements of witnesses, transcription and documents collected
during the investigation in respect of the allegations and circumstances
against the accused persons and on the basis of same he had accorded
the sanctions. In the first paragraph of the Sanctioning Order, he has
categorically mentioned the allegations against the accused persons and
the result thereof. In State of M.P. Versus Dr. Krishna Chandra Saksena
reported as (1996) 11 SCC 439 while dealing with the issue of sanction
it was held:
"Consideration of the material implies application of mind.
Therefore, the order of sanction must exfacie disclose that the
Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 33 of 39
34
sanctioning authority has considered the evidence and other
materials placed before it. In every individual case, the
prosecution has to establish and satisfy the court by leading
evidence that those facts were placed before the sanctioning
authority and the authority had applied its mind. The sanction
order on its face indicates that all relevant material i.e. FIR,
disclosure statement, recovery memos, draft chargesheet and
other materials on record were placed before the sanctioning
authority and if it is further discernible from the recital of the
sanction order that the sanctioning authority perused all the
materials, an inference may be drawn that the sanction had been
granted in accordance with law. This becomes necessary in case
the court is to examine the validity of the order of the sanction
interalia on the ground that the order suffers from the vice of total
application of mind."
The testimony of PW43/Sh.Ashok Kumar on its bare reading reveals that
prosecution successfully established that all material documents were
put before PW43, before he accorded sanction. Mere mention of word
"Transcription" thus will not invalidate the sanction. It is settled law that
flimsy technicalities cannot be allowed to become tools in the hands of
an accused. In State of Maharashtra through CBI Vs. Mahesh G.Jain,
Crl.Appeal No.2345/2009, it was held as under:
"In Kootha Perumal v. State through Inspector of Police, Vigilance
and AntiCorruption, it has been opined that the sanctioning
authority when grants sanction on an examination of the
statements of the witnesses as also the material on record, it can
safely be concluded that the sanctioning authority has duly
recorded its satisfaction and, therefore, the sanction order is
valid........
...................................................................................................
....................At this stage, we think it apposite to state that sanctity attached to an order of sanction should never be forgotten but simultaneously the rampant corruption in society has to be kept in view. It has come to the notice of this Court how adjournments are sought in a maladroit manner to linger the trial and how at every stage ingenious efforts are made to assail every interim order. It is the duty of the court that the matters are appropriately dealt with on proper understanding of law of the land. Minor irregularities or technicalities are not to be given Everestine status. It should be borne in mind that historically corruption is a disquiet disease for healthy governance. It has the potentiality to stifle the progress of a civilized society. It ushers in an atmosphere of distrust. Corruption fundamentally is perversion Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 34 of 39 35 and infectious and an individual perversity can become a social evil. We have said so as we are of the convinced view that in these kind of matters there has to be reflection of promptitude, abhorrence for procrastination, real understanding of the law and to further remain alive to differentiate between hypertechnical contentions and the acceptable legal proponements."
Thus, the argument of learned Counsel for accused persons is devoid of any merit and the sanction to prosecute accused persons is held valid and perfectly in order.
34.So far as complicity of accused Tara Chand/AE is concerned, it was contended by learned Counsel for accused Tara Chand/AE that accused Tara Chand had only a miniscule role in the entire hierarchy of MCD that had approved desilting work in question in the month of January February, 2002. It was also argued by learned Counsel for accused Tara Chand/AE that the scrutiny of the evidence reflects that there is not an iota of evidence to show that the muster rolls or the money meant or payment to labour was ever entrusted to accused Tara Chand/AE. I find absolutely no merit in these arguments. As discussed above, as per Mark PW26/E (CPWD Manual) proved by PW26/Sh.Ravi Dass/Engineerin Chief/ SDMC, Assistant Engineer or Assistant Executive Engineer is the field unit responsible for supervision and execution of work by JEs working under him according to the norms and standards laid down in design/drawings and estimates. Accused Tara Chand as Asstt. Engineer with CSE Deptt. was actively concerned with inspection of action plan for desilting of drains before the onset of monsoon. The action plan amongst others included preparation of estimates for desilting of drains. He also played significant role in supervising the execution of work of desilting being done by his subordinate JE/accused Agnesh Verma. He also played a role in forwarding the muster rolls duly completed by JE Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 35 of 39 36 after execution of work, duly supervised by AE supported by certificate issued by JE regarding identification of labour for payment of wages. Since it is not the case of the prosecution that execution of desilting of nalas was not completed, it will be useful to analyse the role played by accused Tara Chand as A.E./KARYAVAHAK SAHAYAK ENGINEER in the preparation of muster rolls.
35.The muster roll Nos.61905, 61909,61937, 403, 404, 407, 409 and 418 were examined in detail by the prosecution and it was successfully established by the prosecution that a number of casual labour mentioned in these muster rolls had never been engaged but were shown to be engaged and paid by accused Agnesh Verma. The muster roll Nos.61905, 61909,61937, 403, 404, 407, 409 and 418 also reflect that the same were countersigned by accused Tara Chand/AE on each page, thereby, giving his stamp of approval to the act of accused Agnesh Verma. Therefore, it is established that it was only on paper that the sanctioned strength of casual labour was shown to be same as the actual labour employed, but, in reality the actual labour employed was less in number. Since in his statement u/s 313 Cr.P.C., accused Tara Chand had very candidly admitted that part of his job was to ensure that the number of casual labour working at site corresponded with the strength of casual labour sanctioned by Addl.Commissioner/Commissioner of MCD, it can be safely concluded that accused Tara Chand in conspiracy with accused Agnesh Verma deliberately did not discharge his duty so as to usurp money of the government thereby causing wrongful loss to MCD.
36.It is settled law that to constitute a conspiracy, meeting of mind of two Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 36 of 39 37 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 details of conspiracy. Neither it is 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 implications. In most of the cases, the conspiracies are proved by circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deducted 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 wellknown rule governing circumstantial evidence viz., each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must from 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. The criminal conspiracy is an independent offence in Indian Penal Code. The unlawful agreement is sine qua non for constituting offence under Indian Panel Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be expressed 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.
37.In case titled as Mohan Singh vs. State of Bihar, Criminal Appeal No.663 of 2010 dated 26.8.2011, it has been observed by Hon'ble Supreme Court that:
Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 37 of 3938 "Thus it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy bit it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable, even if an offence does not take place pursuant to the illegal agreement."
"Conspiracies are not hatched in the open, by their nature, they are secretly planned, they can be proved even by circumstantial evidence, the lack of direct evidence relating to conspiracy has no consequence."
38.Similar observation was made by Hon'ble Supreme Court in Ferozuddin Vs. State (2001) 7 SCC 596 that:
"conspiracy is not only substantive crime, it also serves as a basis for holding one person liable for the crimes of others in cases where application of the usual doctrine of complicity would not render that person liable. One who enters into a conspiratorial relationship is liable for every reasonably foreseeable crime committed by every other member of the conspiracy in furtherance of its objective, whether or not he knew the crimes or aided in their commission."
39.Therefore, if in pursuant to criminal conspiracy, the conspirators commit several offences, then all of them will be liable for the offences even if some of them had not actively participated in the commission of the offence meaning thereby, accused Tara Chand was equally responsible for the acts of accused Agnesh Verma as they both were in conspiracy with each other.
40.In the light of my aforesaid discussion, accused/public servants namely Agnesh Verma (Junior Engineer) and Tara Chand (Assistant Engineer) are held guilty and stand convicted under Sections 13(1) Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 38 of 39 39
(c) PC Act read with Section 120B IPC and Sections 120B, 420 and 409 IPC.
Let convicts be heard separately on the point on sentence.
Announced and singed in the open Court on 10th August, 2017 (Hemani Malhotra) Spl.Judge (PC Act)(ACB)/C Tis Hazari Courts/Delh Judgment & Order on Sentence in case FIR No. 42/02; PS ACB Page 39 of 39