Cbi vs . Pradeep Kumar & Ors. on 23 May, 2016

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Delhi District Court

Cbi vs . Pradeep Kumar & Ors. on 23 May, 2016

        IN THE COURT OF MS. ANJU BAJAJ CHANDNA, 
              SPECIAL JUDGE (PC ACT) (CBI)6, 
            PATIALA HOUSE COURT, NEW DELHI

CC No.  07/15
RCDAI2012A0023, CBI, ACB, New Delhi (Charge sheet No. 1)
u/s 120B IPC r/w Sec. 420, 471 IPC r/w Sec. 468, 477A IPC & Sec 
13 (2) r/w Sec. 13 (1)(d) of PC Act & Substantive offences thereof. 
CBI vs. Pradeep Kumar & Ors.
Unique ID No.: 0240R114682015

                      Central Bureau of Investigation 
                                                   vs 
                    (1) Pradeep Kumar (A1) S/o Sh. Charan Singh,
                    R/o H. No. 330, Church Gali,
                    Fatehpur Beri, New Delhi110074.

               (2) Madho Singh (A2) S/o Sh. Chandan Singh Tanwar
               R/o Presently: H.No. 141, Chandan Complex, 
               Fatehpur Beri, New Delhi110074 & 
               195/2, Fatehpur Beri, New Delhi
               Permanent: H.No. 74, Fatehpur Beri, New Delhi110074


               Date of FIR                           :       30/06/2015.
               Date of filing of chargesheet        :       01/07/2015.
               Date of cognizance                    :       07/07/2015
               Date of framing of charge             :       08/10/2015
               Arguments concluded on                :       10/05/2016.
               Date of Judgment                      :       23/05/2016.


RCDAI2012A0023   CC No.  07/15   CBI vs. Pradeep Kumar & Ors.   Page 1 of 57
 Appearances
For prosecution            :    Sh P.K Dogra, Ld. Senior Public Prosecutor for CBI.
For accused persons        :    Mohd. Qamar Ali, Ld. Counsel for A1.
                                Sh. Vinod Sharma, Ld. Counsel for A2.

                                       JUDGMENT

1. Accused Pradeep Kumar (A1), Junior Engineer (JE), Delhi Jal Board (DJB) and accused Madho Singh (A2) Contractor have been sent for trial vide present chargesheet submitted by CBI as RC DAI 2012A0023, CBI, ACB, New Delhi, dated 29.06.2012 for the offences punishable under section 120B r/w 420, 471 r/w 468 and 477A of IPC and Section 13 (2) r/w 13 (1) (d) of The Prevention of Corruption Act, 1988 and also substantive offences thereof.

2. The present case has been registered on the basis of preliminary enquiry by CBI, ACB, New Delhi. The matter pertains to awarding of contract of installation of tubewells for drinking water at different places within SouthI Division by Delhi Jal Board (in short DJB) and mainly the allegations have been that the contractors without installation or incomplete installation of tubewells claimed bills of the entire work on the basis of false and forged purchase bills, which were duly certified by the officials of DJB. The contractors were supposed to use slotted screen of Johnson make in the tubewells but instead they used RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 2 of 57 substandard screens (comparatively cheaper) by submitting forged bills from the vendor M/s Bharti Waters Private Limited (sole authorized distributor of Johnson screens) and got the payments released causing pecuniary advantage to themselves and corresponding loss to the government.

3. The subject matter of present chargesheet is contract agreement (CA) no. 80/200708 which was awarded to M/s M.S. Borewell vide work order no. 116 dated 31/07/2007. The tender formalities were conducted in the office of Executive Engineer, SouthI Division, DJB and after observing the requisite formalities, the contract was awarded and contract agreement was executed on 31/07/2007 between DJB through its Chief Executive Officer and Sh. Madho Singh, the contractor, for reboring of 5 tubewells at Aya Nagar, Sultanpur, Mangla Puri, Pahari, Chatterpur Pahari. During investigation only two tubewells located at near Samadhi Sultanpur and near Bus Stand Aya Nagar could be inspected by the expert from National Geophysical Research Institute (in short NGRI) and the report is conclusive about non use of Johnson pipe at borewell of Sultanpur. As per the contract, 50 meters Johnson pipe was required to be installed in the borewell with recorded depth of 161 meters and Johnson pipe was to start after 106.53 meters. The report shows that from 83 meters to 91.5 meters blank casing RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 3 of 57 followed by detached and heavily damaged MS Slotted Pipe is seen. The report with respect to inspection of tubewell located at near bus stand Aya Nagar have been inconclusive about use of Johnson pipe. Accordingly, the present case is only with respect to the tubewell located at near Samadhi Sultanpur.

4. It is further the case that accused JE Pradeep Kumar (A

1) has been responsible for looking after the work of this borewell under the supervision of Assistant Engineer (AE) Sh. A.P. Garg and Executive Engineer (EE) Sh. Anil Kumar. A1 has been responsible for 100% test check and to make entries in the Measurement Book (MB), therefore, there is sufficient prosecutable evidence against him and also against contractor Madho Singh (A2) of M/s MS Borewell. The Junior Engineer (JE) also remains present at the time of execution of work as Engineer Incharge, whereas the responsibility of AE is upto 50% and that of EE is 10% only.

5. The false and forged invoices for the purchase of Johnson pipe have been submitted by the contractor bearing no. BW/105/200607 (50 meters), BW/106/200607 (50 meters), BW/107/200607 (50 meters) and BW/108/200607 (50 meters) on which signatures of Sh. A.P. Garg AE are available. The invoices show that 200 meters Johnson pipes RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 4 of 57 have been purchased by the contractor but according to the record of M/s Bharti Waters Private Limited the said invoices were not issued in favour of M/s Borewell. The genuine office invoices were produced bearing the same number but issued in favour of different persons.

6. In view of above facts, it has been concluded that accused Pradeep Kumar JE (A1) entered into criminal conspiracy with accused Madho Singh Contractor (A2) with the object of facilitating A2 to have pecuniary advantage by cheating DJB. A1 also made dishonest and false entries in the official records i.e. measurement book, completion report, final bill etc showing usage of Johnson pipe and accordingly official entries have been falsified. Wrongful loss to the tune of Rs. 1,21,795/ has resulted to the government. The sanction with respect to A1 being public servant has been granted by the sanctioning authority.

7. After submission of the chargesheet in the court on 01/07/2015, the court took cognizance against the accused persons vide order dated 07/07/2015. Charges were framed on 08/10/2015 against accused JE Pradeep Kumar (A1) for the offences u/s 120B r/w 420, 471, 477A of IPC and Section 13 (2) r/w 13 (1) (d) of The Prevention of Corruption Act, 1988 and substantive offences u/s 420 IPC, 477A IPC, 13(2) of The Prevention of Corruption Act and against accused contractor RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 5 of 57 Madho Singh (A2) for the offences u/s 120B r/w 420, 471, 477A of IPC and Section 13 (2) r/w 13 (1) (d) of The Prevention of Corruption Act, 1988 and substantive offences u/s 420 IPC, 471 IPC. Both accused pleaded not guilty and claimed trial.

8. After framing of the charges, admission / denial of documents was done u/s 294 Cr. PC and corresponding statements have been recorded on 08/10/2015.

9. In evidence, prosecution has examined 13 witnesses. The substance of the prosecution evidence is as follows:

(i) PW 1 Sh. Kamal Kumar Aggarwal is the Managing Director of M/s Bharti Waters Private Limited and according to him his company is the authorized sole distributor in Delhi of Johnson Screen Pipes since year 2004. He deposed that invoices are issued against the purchase of Johnson Screen Pipes in sequence bearing unique number and cannot be repeated during the particular year. The witness on seeing photocopy of invoices / bills No. BW/108/200607 Ex. PW 1/A, BW/106/200607 Ex. PW 1/B, BW/107/200607 Ex. PW 1/C, BW/105/200607 Ex. PW 1/D testified that all these bills have not been issued from his company and they are not the genuine bills. The genuine RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 6 of 57 bills (original) bearing the same number were seen by the witness and confirmed and proved as Ex. PW 1/E and Ex. PW 1/F and certified copy (photostat) Ex. PW 1/H. The witness again stated that he is not sure about bill D20 as to same is genuine or fake. The witness also handed over the statement of account Ex. PW 1/J maintained by Sumer Chand and Sons with respect to dealings with Bharti Waters Private Limited. The witness confirmed that he handed over these documents to CBI during investigation. The witness has also identified the genuine invoices (office copies seized from M/s Bharti Waters Private Limited) as Ex. PW 1/L (colly). During crossexamination on behalf of A1, the witness admitted that prior to the company M/s Bharti Waters Private Limited there was a partnership firm under the name of M/s Bharti Waters. The left over stationary of partnership firm might have been used by company for sometime but the necessary changes must have been made since company issued the invoices after coming into existence. Payments are accepted in cash but generally it is through cheques or drafts. The invoices / bills against purchases are generated by the employee sitting on the counter but PW 1 could not recall the name of the employee who was doing this job in the year 200708 nor he could identify the signatures on bills Ex. PW 1/L (colly). The witness denied the suggestion that the penalty for sales tax evasion have been imposed several times on M/s Bharti Waters Private Limited. During crossexamination on behalf of A RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 7 of 57 2, the witness deposed that M/s Bharti Waters Private Limited has two directors, PW 1 himself and his brother Sh. Sanjay Kumar Aggarwal. PW 1 is also partner in Sumer Chand and Sons and brochure of the same is Ex. PW 1/DA which mentions Sumer Chand and Sons as Distributor Johnson Screen India Limited. The witness further stated that Sumer Chand & Sons is the parent firm and have been existing since 35 years, whereas M/s Bharti Waters Private Limited company was launched in the year 2004. He admitted that prior to M/s Bharti Waters Private Limited, Sumer Chand and Sons was the distributor of Jonson Screen Pipes but denied the suggestion that even after establishment of the company, firm Sumer Chand and Sons continued as distributor of Johnson Screen Pipe. The witness further testified that firm Sumer Chand and Sons is involved in trading of non woven cloth and was never involved in installation of water pumps at any point of time. He admitted that phone numbers and FAX numbers mentioned on the brochure of Sumer Chand and Sons as well as on the genuine bills Ex PW1/L (colly) issued by M/s Bharti Waters Private Limited are the same. PW1 denied the suggestion that the company was established with a view to convert black money into white money and to evade government taxes. The manufacturing company of Johnson Screen pipes is a Multi National Company namely Bill Finger India Private Limited. There was an agreement with respect of sole distributorship but the witness could not recollect the date of the RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 8 of 57 agreement. PW1 has no knowledge about the manufacturing company having changed hands nor he could recollect the number of times the agreement was executed with respect to sole distributorship. The witness could not bring the agreement about the sole distributorship. PW1 could not recollect as to whether his statement or statement of his employee was recorded by CBI. However, he was called several times to CBI office. He denied that no document was handed over by him to CBI. PW1 further testified that they do maintain Ledger, Cash Book, Sale Register, Purchase Register and Stock Register. The ledger contains accounts of the purchasers. The company also files sales tax returns. The invoices are issued through the computer and in the event of computer not working hand written invoice may be issued but rarely. The unique number of invoice could not be repeated and if it is done, the computer will not accept the same. The computer was not seized by the CBI. PW1 denied the suggestion that the bills with the same unique number could be issued repeatedly. The witness could not recollect about any Resolution passed giving authority to him to hand over the documents to CBI. There have been two or three bank accounts of M/s Bharti Waters Private Limited but their account statements were not given to CBI. The witness admitted that company maintained the ledger account of M/s M.S. Borewell but could not tell without seeing the ledger as to whether payment of Rs. 1,79,496/ was received through demand draft dated RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 9 of 57 25/08/2005 from M/s M.S. Borewell against the purchase of Johnson Pipe 100 meters or that an amount of Rs. 2,60,304/ was credited through the cheque of M/s M.S. Borewell dated 01/07/2006. The witness was asked to bring ledger account of M/s M.S Borewell and same was produced duly certified Ex PW1/DB (colly). The witness generated the computer print out of the ledger account. The witness did not bring the ledger account of the financial years 200405 and 200506, as he was under the impression that ledger account for the financial years 200607 and 2007 08 were asked for. The witness denied the suggestion that during the financial years 200607 and 200708, M/s M.S. Borewells had purchased Johnson Screen Pipes against cash which have not been reflected in the ledger account or that bills of cash purchases were issued in favour of Sumer Chand and Sons to legalize cash payments. PW1 denied the suggestion that Ex. PW 1/J has been furnished at the instance of CBI to suit their case or intentionally he has not brought ledger account of Sumer Chand and Sons from the year 2004.

(ii) PW 2 Dr. D.V. Reddy deposed about his qualification being M.Sc. (Geology) and M.Sc. (Tech.), Hydrogeology. He is Ph.D. from National Geophysical Research Institute (NGRI), Hyderabad and has been working as Senior Principal Scientist. He is having 30 years experience in different Hydrogeology environs. The witness deposed RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 10 of 57 about inspection dated 17/09/2013 conducted at Sultanpur near Samadi, New Delhi, whereby he inserted borehole camera and scanned the well. He has given his report detailing the procedure Ex PW2/A dated 06/02/2014. The inspection report of borewell in question is Ex. PW 2/A1 along with certificate u/s 65 B Evidence Act etc. is Ex. PW 2/B (collectively). The witness also identified his signatures on site inspection memo. The video recording of scanning done on palm top was then transferred to a CD which has been proved as Ex PW2/E. The CD has been played in the laptop in the court. The witness has been cross examined during which he deposed that he has been conducting inspection for the purposes of research for about last 5/6 years. He has not filed any document about his qualifications and expertise but given the details in his report. He conducted the inspection on 17/09/2013 for about half an hour. The pumping assembly was not taken out in his presence. He signed the inspection memo on reading the same. He did not conduct any study with respect to the nature of strata of Delhi region. The witness admitted that corrosion, deposits and moss formation is faster in the metal pipes than in PVC pipes and if the water is salty, the deposits and moss formation would be faster. It is rare that in 2/3 years, moss formation or deposits appears in the metal pipe but it may be possible with salty water in 4/5 years. The Johnson Screen Pipes are made of metal with special alloy. He ascertained the nature of pipe RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 11 of 57 through the borewell camera and denied the suggestion that due to deposits and moss formation, it was not possible for him to ascertain the nature of pipe. The witness voluntarily stated that at the point where the water is flowing, the possibility of deposits is very less and nature of pipe can be clearly ascertained. The camera was working properly. The recording on the palm top was not replayed after the conclusion of inspection although recorded data was saved therein. There was also voice recording system and he has spoken about the level of depth seen through the camera. The witness admitted that he did not reveal about the absence of Johnson Screen Pipe at the spot. The video recording was done in MP4 format. The witness admitted that due to moss formation and deposits in the borewell the visibility of the camera would be affected and also due to turbidity of water. PW2 was provided strata chart relating to the borewell but it was given after the inspection was concluded but before preparation of the report. He denied the suggestion that the report has been prepared by him at the instance of CBI to suit their case. The question mark appearing on Ex. PW 2/A1 is put by the witness as he was not sure about the depth. PW2 admitted that total depth of borewell could be 162.53 meters but the camera wire could go maximum upto 152 meters and therefore camera could not reach upto to the bottom of the borewell being short of recorded depth. He denied the suggestion that the report has been prepared in a casual manner but RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 12 of 57 admitted that he has not given descriptions of various pipes such as MS Slot and Johnson Pipe. He denied the suggestion that CD is doctored or report is false or that 50 meters of Johnson Screen Pipe was installed in the borewell. He denied the suggestion that proper method was not used by him to ascertain the nature of pipe. According to the witness, there is no possibility that Johnson Screen Pipes can be detached if the welding is properly done and denied that Johnson Screen Pipe can be squeezed due to pressure. Whenever there is change in diameter of borewell, the pipes of different diameters will be overlapped not welded whereas in case of single diameter, pipes are joined through welding. In this case, the pipes were overlapped as per strata chart.

(iii) PW 3 Sh. Ravinder Reddy is the proprietor of M/s Laxmi Tube Wells dealing with boring work of tubewells. PW3 has also done boring work on contract basis for Delhi Jal Board from the year 1997 to 2005 from rented accommodation flat No. 264, Deshbandhu Apartments, Kalkaji, New Delhi. He handed over original invoice no. BW/107/2006 07 Ex. PW 1/F vide seizure memo Ex PW3/A through which he had purchased strainer filter from M/s Bharti Water Private Limited and amount was paid to through cheque. During crossexamination, witness could not give the details of the cheque through which payment was made. The material was purchased from M/s Bharti Water Limited on RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 13 of 57 several occasions against cash as well as against cheques.

(iv) PW 4 Sh. Vipin Aggarwal proprietor of M/s Aggarwal Tube Company handed over copy of the bill no. BW/106/200607 dated 30/06/2006 to CBI and confirmed having purchased material through bill BW/106/200607, the original bill was destroyed and letter in this regard is Ex. PW 4/D. The witness obtained photocopy D20 from M/s Bharti Waters Private Limited vide Mark P4/B. The witness deposed that he purchased 4 meters of Johnson Screen Pipe through this bill in the year 2006 and payment was made through cheque, reflected in ledger account Ex. PW 4/C. During cross examination PW4 stated that this was the only transaction and single purchase with M/s Bharti Water Private Limited with respect to Johnson Pipe. He denied the suggestion that Sh. Kamal Kumar Aggarwal of M/s Bharti Waters Private Limited is his relative or he is in collusion with him. He further denied the suggestion that Mark P4/B is prepared in order to convert cash / black money transaction to white money or that he is deposing falsely. During cross examination on behalf of A1, PW4 stated that purchase of 4 meters Johnson Pipe was done on credit. He denied that he never purchased 4 meters Johnson Pipe from M/s Bharti Water Private Limited. Presently, the firm of PW4 is not working and he could not tell the period when he stopped working. The witness was asked to produce documents with respect to his RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 14 of 57 proprietorship concern, statement of bank account showing payment of Rs. 5,583/ to M/s Bharti Waters Private Limited and his firm's sales tax and income tax returns. The witness produced the documents vide Ex PW4/DA (colly).

(v) PW 5 Sh. Anil Kumar, has been the Executive Engineer, SouthI division, DJB from March 2006 to 18/08/2009. The witness deposed about the extent of responsibility of JE for 100% test check and his functions including recording measurement book whereas AE/ZE is required to conduct 50% of test check and EE himself to conduct 10% of test check. The procedure given in CPWD Manual is also applicable to DJB. He deposed that JE will prepare the final bill, completion report in agreement with MB and contractor will submit purchase voucher and strata chart to the JE. The purchase vouchers was required to be checked / signed by JE or AE so also the strata chart and the documents required to be enclosed with the bill. At the time of submitting the final bill, contractor is also required to submit certificate of the person engaged by him for day to day supervision of the work at site. The completion report is prepared by JE and signed by ZE and is marked by EE to Draughtsman for checking. Completion report upto Rs. 10 lakhs and variation upto 10% is approved by EE. If completion cost is more than Rs. 10 lakhs and upto Rs. 25 lakhs, it is recommended by EE to Superintending Engineer RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 15 of 57 (SE) for approval. The report is checked by circle head Draughtsman and Accountant and thereafter, it is approved by SE. The witness identified CA No. 80/200708, Ex. P2 (colly), final bill Ex P3, completion report Ex P4/1, test check report Ex P3, MB Ex P5 and site inspection memo Ex P6, dated 17/09/2013. During cross examination on behalf of A1, witness deposed that bill of quantity (BOQ) is part of the contract agreement and therefore mandatory. PW5 admitted that account section is required to follow the instructions issued through circular and he is final authority to release the payment to the contractor on being satisfied with the work. The documents are scrutinized by accounts department and in case of any discrepancy the objections are raised but in the present case, no objections were raised with respect to the documents including the final bill and its annexures. The entries in the measurement book are done at the site during progress of the work and if any particular entry is signed by concerned AE and EE, it means that the particular work was executed in their presence and signatures are done on MB at the site itself on that particular day. The certificate about satisfaction of work is given in the MB itself and in the present case page no. 65 of MB contains said certificate. If the strata chart is signed by ZE / AE, it means that the work execution is checked by that ZE / AE. In the present case, the strata chart Ex. P4 bears signatures of ZE Sh. A.P. Garg. On checking Measurement Book, the witness stated that he RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 16 of 57 visited the site on 20/08/2007 only and ZE Sh. A.P. Garg visited the site on 22/08/2007 when the Johnson pipe was installed. The page 65 of MB is written by JE Anil Tyagi and not by accused JE Pradeep Kumar and same pertains to all the five borewells covered under the present Contract Agreement (CA). The witness also stated that possibily he visited site on other occasions also but did not sign the MB. He could not recollect as to how many times he visited the site in question but normally he visits once or twice. The work of Aya Nagar site was done under the supervision of JE Sh. Anil Tyagi. The witness further stated that completion report Ex. P4/1 and final bill Ex. P3 is prepared by JE Sh. Anil Tyagi and not signed by accused Pradeep Kumar (JE). He admitted that if the purchase vouchers have not been signed by JE, it means that he has not processed the same. PW 5 admitted that purchase vouchers Ex. PW 1/A to Ex. PW 1/D do not bear the signatures of JE accused Pradeep Kumar rather they are signed by AE Sh. A.P. Garg. The witness admitted circular Ex. PW 5/DA and CPWD Specifications Ex. PW 5/DB and that accounts department is duty bound to verify the purchase vouchers from the vendor. The witness deposed that he has experience about the work of borewells and admitted that due to hard water, the deposits and moss formation occurs quickly inside the metal pipe. He also admitted that Johnson pipe (which is made of metal) and its holes get varied due to moss formation and in case of variation, it is RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 17 of 57 difficult to find out the nature of the pipe. The witness admitted that due to pressure Johnson Pipe may get squeezed. According to the witness, it is not possible for borewell to work if there is gap between two pipes. There is no complaint about the working of the borewell in question. The witness in response to court question stated that he did not personally check the existence of Johnson Pipe and therefore, cannot give statement, however, the borewell has been functioning properly. The payment is given to the contractor on the basis of calculation based on BoQ and Work Order and it is not necessary that the amount reflected in the purchase voucher is paid to the contractor. In other words the witness stated that the payments are not concerned with the market rates / fluctuations and in the present case it was paid @ Rs. 2435.90 per meter for Johnson pipe (including percentage above on BoQ quoted by the contractor). He further stated that he could not say whether Ex PW1/A to Ex PW1/D have not been processed by accused JE Pradeep Kumar but he asserted that accused Pradeep Kumar as JE, ZE A.P. Garg and he himself worked with sincerity and honestly in this case. During cross examination on behalf of A2, witness deposed that normally the purchase voucher submitted by contractor is signed by him. The photostat copy is submitted, while the original is shown to concerned JE. PW5 admitted that the purchase vouchers Ex. PW 1/A to Ex. PW 1/D were not signed by the contractor. The witness voluntarily stated that purchase RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 18 of 57 vouchers are submitted sometimes without signatures and the receiving is not given from the department. The witness could not comment as to whether Ex. PW 1/A to Ex. PW 1/D are the purchase vouchers submitted by the contractor or whether the contractor submitted bills no. 77 and 78 dated 07/06/2006 in the present case. PW5 denied that CBI has planted the bills Ex. PW 1/A to Ex. PW 1/D.

(vi) PW 6 Sh. Ashish Pareek Inspector CBI proved FIR Ex PW6/A and deposed about seizure memos and documents vide Ex PW6/B and Ex P1 (colly). He denied the suggestion that FIR is false and fabricated.

(vii) PW 7 Sh. Satya Prakash being the accountant in the office of Superintendent Engineer, South, Delhi Jal Board (DJB) has proved completion statement Ex PW4/1 and final bill Ex PW7/A (D7). During cross examination PW7 denied having received circular Ex PW5/DA and further stated it was not in force in view of further circular issued vide Ex PW7/D1. The witness admitted that the later circular does not repeal the earlier circular. The accounts department checks the final bill and its annexures before preparing the pay order. In the present case, no objection was raised by accounts department. During cross examination on behalf of A2, witness stated that purchase vouchers Ex PW1/A to Ex RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 19 of 57 PW1/D bear the signatures of ZE Mr. A.P. Garg and no other official and they were the annexures filed along with final bill. PW7 denied the suggestion that purchase vouchers Ex PW1/A to Ex PW1/D were not the part of final bill or that infact bills no. 77 and 78 of Bharti Waters were submitted.

(viii) PW 8 Sh. Anand Sarup Inspector CBI investigated this case having been assigned the job on 13/06/2014. He recorded statements of witnesses and seized the documents through various seizure memos Ex. PW8/A to Ex. PW8/F. PW8 also received various documents and letters during investigation and after obtaining required sanction, presented the charge sheet bearing his signatures. During cross examination, PW8 admitted statement of K.K. Aggarwal recorded u/s 161 Cr. PC vide Ex PW8/DA. No investigation was conducted by witness by checking the electronic or physical records to find out whether unique number allotted to the purchase vouchers by M/s Bharti Waters Private Limited were being repeated or not nor he visited the office of K.K. Aggarwal. PW8 has not checked the genuineness of the transactions between M/s Bharti Waters Private Limited and M/s Sumer Chand and Sons despite the fact that material/johnson pipe were sold in bulk through the transactions. No investigation was conducted about the nature of business of M/s Sumer Chand & Sons. PW8 further stated that RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 20 of 57 he did not check bill books or account books of M/s Bharti Waters Private Limited to check whether the counterfoils were available in hard copy or soft copy. No investigation was conducted as to from where purchase vouchers Ex PW1/A to Ex PW1/D were procured nor any raid was conducted in the office of contractor A2. The witness only believed the statement of K.K. Aggarwal to come to the conclusion that Ex PW1/A to Ex PW1/D are forged, and he also investigated about the actual purchasers of genuine bills. The accounts of M/s M.S. Borewell or CST Company were not checked to find out whether the purchases were actually made or not. The witness denied that he had not properly investigated the case. During cross examination on behalf of A1, PW8 deposed that he did not go through the report of preliminary enquiry nor he enquired from DJB about any complaint regarding functioning of borewells. He admitted that borewell has been working properly. The witness denied that he deliberately did not examine ZE Sh. A.P. Garg despite the fact that he was crucial witness in view of entry dated 22/08/2007 in MB Ex P5 (colly). No inquiry was made by witness about responsibility for verification of purchase vouchers. PW8 denied that Ex PW1/A to Ex PW1/D were not processed by JE. The witness denied that CD prepared by Dr. D.V. Reddy was not sent to CFSL as it was doctored or tempered. He did not physically check the nature, shape and style of johnson pipe and ordinary pipe, therefore unable to differentiate. Also, RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 21 of 57 no document has been placed on record showing specifications of different pipes. The witness has no idea that borewell cannot function in case of damaged pipes. The witness admitted that final bill and completion report was not prepared or signed by JE A1 Pradeep Kumar and infact they are prepared by JE Anil Tygagi. He denied the suggestion that chargesheet has been filed in a casual manner.

(ix) PW 9 Sh. Vikas Rathi JE (Civil) of DJB handed over the documents to CBI during investigation and proved his signatures on seizure memo Ex Ex PW9/A.

(x) PW 10 Sh. Baljinder Singh, proprietor of M/s Singh Tubewell Engineer, Rohini, Sector8, New Delhi stated that he purchased items vide bill Ex. PW 1/E on 04/07/2006 and payment was made through cheque. The witness identified his signatures on Ex PW10/A (ledger account). During cross examination, PW10 stated that the ledger print out has been taken out by the accountant and admitted that it has not been signed by the accountant nor any certificate furnished. During cross examination on behalf of A2, PW10 stated that he purchased Johnson Pipes from M/s Bharti Waters Pvt Ltd several times but stopped after the CBI case. He always made purchases through cheque and denied that he also purchased through cash. He also denied that he had not RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 22 of 57 purchased Johnson Pipe vide Ex. PW 1/E.

(xi) PW 11 Sh. Kailash Sahu Inspector CBI conducted preliminary enquiry and seized documents from Vikas Rathi during the same. During the cross examination, PW11 stated that documents were lying in Malkhana and were obtained by IO directly from there. During cross examination on behalf of A2, PW 11 denied that no document was handed over by Vikas Rathi or that he is deposing falsely.

(xii) PW 12 Sh. Mahender Pratap Singh, Inspector CBI, was entrusted with the investigation on 18/08/2012 of this case and he seized relevant documents and recorded statements of witnesses u/s 161 Cr.P.C. He identified his signatures on seizure memo Ex. PW 1/K and was also present during the site inspection. He also received report and certificate u/s 65B and CDs as mentioned Ex. PW 2/B (colly) and Ex. PW 2/A. Thereafter the investigation of this case was transferred to Inspector Anand Sarup. During cross examination on behalf of A2, witness stated that investigation remained with him from 18/08/2012 to 13/06/2014. He denied the suggestion that he deliberately did not investigate regarding bills within the period of two years when investigation remained with him, with a view to give sufficient time to concerned persons to manipulate the documents. The CD was received by this witness on RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 23 of 57 19/02/2014 in a sealed envelope with the seal of NGRI. He viewed copy of CD which was received through E mail. During cross examination on behalf of A1, witness stated that he briefed Dr. Reddy about checking of Johnson Pipe during the inspection. He did not collect any literature depicting the specifications of Johnson pipe either from Dr Reddy or from manufacturer. He physically checked the samples of pipes but could not recollect differences noticed between johnson pipes and ordinary pipes. However, no proceedings to this effect were drawn. The witness denied the suggestion that Dr Reddy was briefed to give his report in a particular fashion to favour the case of CBI. Five borewells were inspected on the same day. The exact findings were not disclosed by Dr. Reddy or N. Jyoti Kumar about the johnson pipes at the spot. The borewells were functioning during the inspection. No inquiry was made by him about the repairs of borewells if carried out on behalf of DJB before the inspection. PW 2 denied the suggestion that CD is doctored/tempered. He called ZE A.P. Garg for questioning and his statement was recorded and same was handed over to next IO Sh. Anand Sarup. PW12 denied that he did not carried out fair investigation.

(xiii) PW13 Sh. Jayadev Sarangi being Member Administration was competent to remove JE DJB from services during 29/05/2014 to 23/03/2016. Accordingly, he accorded sanction Ex PW13/A against A1 RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 24 of 57 after examining the entire material after due application of his mind. During cross examination on behalf of A1, PW 13 stated that he had consulted the record before giving observation in his report about the association of JE Pradeep Kumar with the reboring of two tubewells out of five tubewells. He denied the suggestion that bore well at Aya Nagar was not concerned with JE Paradeep Kumar. The witness did not hold any discussion with DJB officials or CBI officials before the grant of sanction nor any second opinion about the pipes of borewell were taken. PW13 denied the suggestion that he signed the sanction order without application of his mind independently or that same has been granted in a mechanical manner.

10. Thereafter prosecution evidence was closed.

11. The statements of both the accused persons were recorded u/s 313 Cr. PC by putting entire evidence in question and answer form, to which both the accused have pleaded innocence and false implication.

12. According to A1 Pradeep Kumar JE, he has been looking after the work of installation of one borewell situated at near Samadhi Sultanpur under the contract agreement no. 80/200708 awarded to M/s M.S. Borewell and he has been responsible for 100% test check. A1 has RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 25 of 57 admitted to entire evidence relating to grant of contract and execution of work at the site and releasing of payment to the contractor but denied the expertise of PW 2 Dr. D.V. Reddy in the field and has strongly disputed the report Ex. PW 2/A by stating that requisite Johnson Pipe has been installed and CD prepared by PW 2 is tampered, whereas entries made in the Measurement Book (MB) are correct. With respect to the final bill, completion report and test check report, A1 has stated that they were not prepared by him nor the alleged bills Ex. PW 1/A to Ex. PW 1/D were processed by him. The evidence of PW 1 has also been denied and it is pleaded that FIR Ex. PW 6/A is false and investigation is misconceived. According to A1, the sanction has been obtained against him without any application of mind and same has been granted in a mechanical manner. A1 has performed his duty diligently and meticulously and especially he has been targeted by CBI and witness have deposed falsely. A1 pleaded innocence and emphatically stated that Johnson Pipe was installed and same is in the knowledge of senior officials of DJB and in fact ZE Sh. A.P. Garg was present on 22/08/2007. The borewell is still working. A1 preferred not to lead any defence evidence.

13. A2 has admitted the grant of contract and work order in favour of M/s MS Borewell including the borewell situated at Sultanpur. A2 has also denied the expertise of PW 2 in the field and has also RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 26 of 57 disputed videorecording since same was not displayed or disclosed at the spot. According to A2, Johnson Pipe was used and lowered in the tubewell in terms of the agreement and report prepared by PW 2 is false. A2 has denied having submitted Ex. PW 1/A to Ex. PW 1/D and rather pleaded that copies of invoices No. 77 and 78 dated 07/06/2006 were submitted by him in the present contract. The same were duly issued by M/s Bharti Waters Private Limited but the originals of said invoices have been destroyed due to fire in his office. It is also pleaded that M/s Bharti Waters Private Limited issued invoices with same number to different companies to legalize their black money and to conceal the real transactions particularly to Sumer Chand and Sons being the same controlling authority. A2 further stated that case is manipulated and no wrongful loss has resulted to the government since the borewell is functioning properly. A2 has pleaded false implication.

14. In defence, A2 has summoned the record from M/s Bharti Waters Private Limited of invoices no. 77, 78 dated 07/06/2006 and 101 dated 26/06/2006 and the same were produced and exhibited as Ex. PX (colly).

15. I have heard Sh. P.K. Dogra, Ld. Senior PP for CBI, Mohd. Qamar Ali, Ld. Counsel for A1, Sh. Vinod Sharma, Ld. Counsel for A2 RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 27 of 57 and have perused the case record.

16. It is argued by Ld. Senior PP for CBI that prosecution has been able to bring home the guilt of the accused persons. It is admitted case that vide work order no. 116, the work of reboring of 5 tubewells at Aya Nagar, Sultanpur, Mangla Puri, Pahari, Chatterpur Pahari, was assigned to A2. A1 being the JE of DJB was responsible to check 100% execution of the work. It has been established through the evidence of PW1 that bills / invoices submitted by the contractor A2 and endorsed by A1 JE after completion of work are not genuine and same are forged and fabricated. The fact has been further corroborated through the testimony of PW 2 Dr. D.V. Reddy, scientific expert, who has physically inspected the borewell and came to the conclusion that no Johnson Pipe was found installed therein. It is evident that contractor and the JE have represented to the department of DJB through various documents that the work has been executed as per the work order and BOQ requirements and only thereafter the payment was released in favour of the contractor. It has resulted in wrongful gain to both the accused persons and wrongful loss to the government. The bills used by the contractor in getting the payment has not been issued by the concerned company M/s Bharti Waters Pvt. Ltd. The witnesses of the prosecution have deposed in a consistent manner and documents have corroborated their version and RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 28 of 57 therefore, the findings of conviction be recorded against the accused persons.

17. It is argued on behalf of A1 by Ld. Counsel Mohd. Qamar Ali that case of the CBI is groundless and the charge against the accused has not been substantiated through concrete and admissible evidence. The JE is responsible for the execution of the work by the contractor and in this case JE has properly discharged his duties. The senior officers i.e. Executive Engineer (EE) and Zonal Engineer (ZE) have also checked the material as well as the progress of the work at the site from time to time and have signed entries in the record. They are also responsible for the execution of the work and no explanation has been given by CBI for not proceeding against them. The JE has been picked up to face the criminal proceedings without any justification despite the fact that AE Sh. A.P. Garg was present on 22/08/2007 when the Johnson Pipe was installed in the borewell at Sultanpur and also the alleged purchase vouchers Ex. PW 1/A to Ex. PW 1/D bear the signatures of AE Sh. A.P. Garg. The bills/purchase vouchers submitted by the contractor were forwarded to the accounts department with the completion report and MB and it was the duty of the accounts department to verify the genuineness of the bills before releasing the payment to contractor. The JE cannot be held responsible in case the payment is released without verifying the bills so RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 29 of 57 submitted by the contractor. With respect to the execution of the work, it is argued that it has been properly done at the site and stands confirmed in the testimony of various witnesses of DJB who have deposed that the payment was released only after recording satisfaction about the work done. The method of ascertaining nonuse of Johnson Pipes by PW 2 is totally faulty and the evidence relating to this has to be discarded. It is not possible to find out the nature of pipes once it is installed beneath the ground level and the method adopted by PW2 is devoid of any scientific justification. The inspection conducted by PW 2 after the lapse of more than five years since installation, is meaningless and futile exercise. This is a case of selective prosecution, whereby CBI has targeted the smallest officer without conducting genuine investigation about the facts and events. The role of AE Sh. A.P. Garg has not been properly investigated despite the fact that he has been present on the day Johnson Pipes were lowered and also he signed the alleged forged invoices. Ld. Counsel has relied upon following judgments (i) State of Madhya Pradesh vs Sheetla Sahai and Others, (2009) 8 SCC 617, (ii) Musauddin Ahmed vs The State of Assam, C.A. No. 879 of 2004, Supreme Court of India and (iii) Tomaso Bruno vs State of U.P., C.A. No. 142 of 2015, Supreme Court of India, in support of his arguments. It is also pointed out by Ld. Counsel for A1 that sanction has not been properly granted and the sanctioning authority has not examined any witness relating to the case nor verified RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 30 of 57 the genuineness of the documents of the case. The CBI has failed to prove the case against the accused by sufficient evidence and therefore the accused must be acquitted.

18. On the other hand, it has been argued on behalf of A2 Madho Singh by Ld. Counsel Sh. Vinod Sharma that work has been properly executed as per the work order and BOQ and the same was duly checked and satisfaction recorded by various officers of DJB. The bills / invoices bearing no. 77 and 78 submitted by contractor with respect to the purchase of Johnson Pipe are true and genuine bills, whereas the testimony of PW1 is not truthful and the statement of ledger account produced by him is apparently incorrect and not admissible. The payments were released to the contractor only after verification of the bills in question and therefore no question of having submitted forged bills arises. The alleged forged bills / vouchers Ex. PW 1/A to Ex. PW 1/D were not submitted by Madho Singh (A2) and therefore his signatures are not appearing on the same. No proper investigation has been conducted to ascertain as to from where the alleged forged bills were got printed or procured. The investigation with respect to the records of M/s Bharti Waters Private Limited have not been thoroughly conducted to substantiate the statement of PW 1 that unique number cannot be repeated or that cash transactions are rarely done. The RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 31 of 57 testimony of PW 1 is otherwise doubtful with respect to the purchase voucher issued in favour of Aggarwal Tube Company Ex. PW 1/L (Mark P4/B). It has also been submitted on behalf of A2 that due to moss formation and deposits over a period of time, it is not possible to find out the nature of the pipes used in the borewell and the method adopted by PW2 is not correct and conclusive. The Compact Disc (CD) prepared by PW2 is not admissible as there is no report of CFSL to substantiate its genuineness. The use of Johnson Pipe is clearly evident from the documents proved on record and also with the fact that borewell is functioning properly even till date. False case has been registered by CBI against the contractor (A2) who has carried out his job according to the requirements and prescribed procedure and no criminal liability can be attributed to him.

19. I have given due consideration to the rival contentions, facts, evidence and record of the case. I have also gone through the written arguments filed by the accused persons. The video CD has also been played and viewed in the court during the trial and at final stage.

20. The points of determination as required u/s 354 (i) (b) Code of Criminal Procedure, 1973 in this case, are as under:

(i) As to whether accused Pradeep Kumar (A1) and RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 32 of 57 accused Madho Singh (A2) entered into criminal conspiracy to cheat DJB and in pursuance thereof forged bills Ex. PW 1/A to Ex. PW 1/D were submitted and payments were got released,

(ii) Whether requirements of contract were not fulfilled and the requisite Johnson Pipes were not inserted in the borewell and

(iii) Whether false entries were made in the official records by accused JE Pradeep Kumar showing installation of Johnson Screen Pipe with respect to site Samadhi Sultanpur.

21. The present case pertains to reboring of five tubewells at Aya Nagar, Sultanpur, Mangla Puri, Pahari, Chatterpur Pahari. It is important to understand the procedure to grant the work and to release the payment. On completion of procedural formalities, Bill of Quantity (BOQ) is ascertained and tender is floated. BOQ contains requirements of using and providing Johnson Screen Pipes. The work is awarded through contract and contractor is required to execute the work at the site under the supervision of JE, AE and EE. The boring of tubewells involves boring on the ground upto the specified depth as provided in strata chart in loose soil as well as rocky strata. On completion of boring, RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 33 of 57 tubewell pipe assembly is lowered in accordance with the strata chart to facilitate the inflow of water from underground to above level of ground water. The pipes of different kinds are joined as per strata chart. During execution of work, physical test check is 100 per cent by JE, 50 per cent by AE and 10 per cent by EE. The measurements are noted in the Measurement Book (MB) signed by all above three and based on the quantity noted therein, the completion report is prepared by JE and signed by AE and EE and the contractor. The contractor is required to submit purchase voucher, (copy thereof is retained) and also the strata chart and certificates etc. On scrutiny of all the documents including the purchase voucher/bill, the payment is approved.

22. The case of prosecution is primarily based on two allegations, firstly that the bills submitted by the contractor on the basis of which the payment was released were found to be forged and secondly the work has not been executed as per the work order and BOQ and requisite Johnson screen pipe was not used at the site, (which fact is confirmed through physical inspection by putting bore hole camera and videography of the same) thereby cheating the government and causing wrongful loss.

23. Accused Pradeep Kumar (A1) Junior Engineer under Delhi RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 34 of 57 Jal Board is the public servant and is discharging public duties. He has been chargesheeted on the basis of preliminary inquiry and before filing the chargesheet, the sanction has been obtained from the competent sanctioning authority. The said competent authority has been examined in the present case as PW 13 Dr. Jayadev Sarangi and also the sanction order has been placed on record as Ex. PW 13/A. On examining the testimony of competent authority i.e. PW 13 and the record of the case, it is clear that sanction has been properly granted by the competent authority with due application of mind. The sanction order Ex. PW 13/A is supported with due reasons on consideration of material available and it cannot be said that sanction has been mechanically granted. No question has been raised on behalf of A1 to the effect that PW 13 is not the competent authority to remove him from the post in question. Therefore, it is clear that PW 13 is the appropriate and competent authority to grant the sanction and it is evident that sanction has been properly accorded in terms of section 19 of The Prevention of Corruption Act, 1988. I am not in agreement with Ld. Counsel for A1 that sanctioning authority should have called the witnesses and verified the records as sanctioning authority is not supposed to hold parallel investigation while considering the question of grant of sanction. The CBI submitted its report along with the relevant record of the case to sanctioning authority and on consideration of the same, the sanction has RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 35 of 57 been granted and same is sufficient legal compliance.

24. To establish forgery, the prosecution is mainly relying upon the testimony of PW 1 Kamal Kumar Aggarwal, who has been the Managing Director of M/s Bharti Waters Private Limited. He deposed that invoices Ex. PW 1/A to PW 1/D are not issued by his company. The office copies of genuine invoices Ex. PW 1/L (colly) have been produced in evidence. Also according to the testimony of PW 3 Sh. Ravinder Reddy, PW 10 Sh. Baljinder Singh and PW 4 Sh. Vipin Aggarwal, they have made the purchases vide original invoices Ex. PW 1/E, Ex. PW 1/F and office copy of Ex. PW 1/L.

25. The issue in this regard is whether Ex. PW 1/A to Ex. PW1/D are forged and fabricated documents. According to the sequence of events, CA No. 80/200708 was executed on 31/07/2007 under which work of borewell situated at Sultanpur was to be completed. The completion report Ex. P4/1 shows that the work of the borewell under contract started on 10/08/2007 and completed on 14/09/2007. The payment was released to the contractor on the basis of completion report / final bill. On examination of the bills Ex. PW 1/A to Ex. PW 1/D and alleged genuine invoices Ex. PW 1/L (colly), Ex. PW 1/E, Ex. PW 1/F and Ex. PW 1/H, it is evident that format of the bill is printed but RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 36 of 57 other details like unique number, date of bill, order date, name of the purchaser, particulars of the material and amount etc are filled up through the printer at the time of preparation of invoices. The font and style of the printed material is exactly similar if forged invoices are compared with genuine original invoices but there is no investigation as to from where A2 could procure the similar stationary for being put to use for preparing forged and fabricated bills. The source of making forged bills not found out by investigating officer nor any efforts made to seize any incriminating material by conducting search in the office of A 2 or by subjecting accused (A2) to interrogation.

26. According to IO, he only believed the statement of PW 1 to come to the conclusion that Ex. PW 1/A to Ex. PW 1/D are forged bills. If it is assumed that Ex. PW 1/A to Ex. PW 1/D are forged bills then the question arises as to how it contains the exact particulars and format of that of genuine bills of the relevant time. There is nothing on record to show as to how the unique number is generated and put on invoices whether it is done in sequence, chronologically or randomly. The original bill book from where the genuine purchase vouchers were issued has not been produced for scrutiny of the court to show the manner and consistency of putting unique number. No statement of any employee or official of Bharti Waters Private Limited was recorded to show the RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 37 of 57 procedure for generating unique number whether it is done by computer automatically or manually put through the printer. PW 1 has also failed to identify the signatures of his employee appearing on genuine bills. It becomes more doubtful in view of testimony of PW 1 whereby he has failed to give confident statement about the invoice issued to Aggarwal Tube Company (Mark P4/B). The invoice issued to Aggarwal Tube Company creates doubt firstly, having not been identified confidently by PW 1 [as he was not sure as to whether this (D20) is genuine or fake], secondly, original not produced by PW Vipin Aggarwal (he too procured the copy from M/s Bharti Waters Private Limited). The transaction as demonstrated through the bill shows that only four meters Johnson pipe was purchased and it was only one time transaction whereas the payment has been credited after the lapse of more than one year through the cheque amounting to Rs. 5,583/. It seems improbable that bill of such a small quantity was issued that too on credit for a long period of more than a year. This all raises serious doubts about the aforesaid transaction.

27. The invoice issued to Sumer Chand and Sons Ex. PW 1/L (original) and Ex. PW 1/H (certified photostat copy) shows dealing between M/s Bharti Waters Private Limited and Sumer Chand and Sons and it is admitted fact that Sumer Chand and Sons belongs to PW 1 himself. Admittedly the firm Sumer Chand and Sons is not dealing in RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 38 of 57 Johnson Pipe nor involved in installation of borewells. It is not explained as to for what purposes bulk purchases were done by Sumer Chand and Sons when the firm is involved in the business of non woven cloth and its import and has no connection with trade and purchases relating to Johnson Pipes particularly after the year 2004. IO too has not investigated these transactions to find out truthfulness of the same. Also the original invoice is shown to have been seized from PW 1 Sh. Kamal Kumar Aggarwal of Bharti Waters through memo D9 Ex. PW 1/K and certified copy thereof also from Sh. Kamal Kumar Aggarwal as partner of Sumer Chand vide D23 Ex. PW 1/G and it is how possible that original invoice is lying with Bharti Waters Private Limited and not with Sumer Chand and Sons. This transaction also appears to be doubtful.

28. The remaining two invoices allegedly issued in favour of firm of PW 3 Sh. Ravinder Reddy and PW 10 Sh. Baljinder Singh, show the transactions made through the purchase vouchers but it is also evident that cash transactions are also done by M/s Bharti Waters Private Limited. No Physical checking of the records maintained by M/s Bharti Waters Private Limited, was conducted to find out as to how frequently the cash transactions were entered into. Alleged forged bills Ex. PW 1/A to Ex. PW 1/D are photostat copies and it is difficult to conclude that same are forged particularly in view of statement of PW 1 that prior to RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 39 of 57 company M/s Bharti Waters Private Limited, it was a partnership firm under the name of M/s Bharti Waters. The left over stationary of the partnership firm was used by the company although necessary changes must have been made. PW 1 has failed to give categorical statement as to during what period the stationary of erstwhile partnership firm was being used on behalf of the company.

29. On the other hand, the existence of bills no. 77 and 78 dated 07/06/2006 Ex. PX (colly) has not been disputed and it is evident from the testimony of PW 1 and statement u/s 161 Cr. PC Ex. PW 8/DA as well as from the ledger account that Johnson Pipes were purchased from time to time on behalf of M/s M.S. Borewell and sister concern CST & Co. from M/s Bharti Waters Private Limited. In the present contract there were five sites of borewells and as per the completion report total 258 meters of Johnson Screen Pipe was installed. In these circumstances, the purchase of Johnson Screen Pipe by M/s MS Borewell from M/s Bharti Waters Private Limited is clearly established and it becomes improbable that despite having purchased Johnson Pipe from time to time, the contractor chose not to install the same in one borewell in order to cheat DJB.

30. The another important factor is whether the alleged forged RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 40 of 57 bills can be attributed to A2. The submission of Ex. PW 1/A to Ex. PW 1/D to DJB for payment is strongly disputed and denied and instead it is pleaded that bills no. 77 and 78 were given for payment. The prosecution has failed to bring sufficient and reliable evidence on this aspect. No witness has been examined who could depose that the bills Ex. PW 1/A to Ex. PW 1/D were directly submitted by the contractor A2. Although, the records have been seized from DJB through PW 9 Sh. Vikas Rathi but there is no direct evidence to the effect that bills were submitted by contractor for payment. They also do not bear the signatures of either accused. The particulars of the bills is nowhere mentioned either in the MB or in the completion report and therefore, it cannot be concluded that payment was released to M/s MS Borewell on the basis of bills Ex. PW 1/A to Ex. PW 1/D. The signatures of AE Sh. A.P. Garg are appearing on Ex. PW 1/A to Ex. PW 1/D and therefore he could be the appropriate witness to depose as to whether these bills were submitted by A2 for seeking payment under the contract in question. However, AE Sh. A.P. Garg has not been examined despite the fact that his statement was recorded by IO u/s 161 Cr. PC during the investigation. ZE Sh. A.P. Garg has not been cited as a witness nor his statement so recorded has been relied upon by the prosecution. The presumption u/s 114(g) Indian Evidence Act clearly arises as the available evidence has not been brought on record by the prosecution. It is further noticed that forged RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 41 of 57 bills Ex. PW 1/A to Ex. PW 1/D show purchase of Johnson Pipes to the extent of 200 meters, whereas payment has been released for 258 meters as per completion report or final bill. There is no explanation as to how without taking bill for rest of 58 meters payment has been released. No objection was ever raised by concerned officers and by officials of accounts department of DJB about this at any point of time.

31. In view of strong denial by A2 about the submission of Ex. PW 1/A to Ex. PW 1/D, there is no evidence to prove this fact either through oral or documentary evidence and therefore, it is not established that on the basis of Ex. PW 1/A to Ex. PW 1/D the payment has been claimed and granted. The accused JE Pradeep Kumar (A1) has also not signed Ex. PW 1/A to Ex. PW 1/D admittedly and therefore, the processing of these bills also cannot be attributed to him for any purpose. It is clear through the evidence of PW 5 Anil Kumar and circular Ex. PW 5/DA dated 06/09/2000 that verification was required to be done by the accounts department from the concerned vendor before releasing the payment and further the accounts department is required to check MB before preparing final bill. No liability can be fastened on concerned AE or JE for verification of the genuineness of the bills. Ex. PW 7/D1 (instructional order) dated 02/11/2014 further puts onus on the executive engineer (EE) in the following manner: RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 42 of 57 NO. DJB/DIR(F&A)/PREAUDIT/2004/148122 to 148313 DATED 02/11/2004 INSTRUCTIONAL ORDER SUB: PROCUREMENT VOUCHERS In most of the divisions of E&M, Bearings of different size of FAG/SKF make are being supplied by M/s. V.V. Grasons & Co., 73, Shardhanand Marg, (1st Floor), G.B. Road, Delhi. It has already been made clear to the divisions that original Procurement Vouchers be obtained from the Contractor. M/s. V.V. Grasons & Co. adopted a policy of supplying photocopies of very old (for the year 2000 to 2003) Procurement Vouchers of Bearings and the same are being accepted by almost all the divisions despite repeated observations of the PreAudit Cell. It is not possible for the PreAudit Cell to maintain an account showing that in how many divisions the said Contractor had supplied photocopy of a Procurement Voucher. Further, Test Certificate and Guarantee of the manufacturer of the Bearing and other items are not being obtained by the Division from the Contractor.

In view of above, Executive Engineers are directed for strict compliance that:

a) Original Procurement Voucher of bearings and other items be obtained from the Contractor. C.A No. and consumption be noted thereon and then attested copy be enclosed with the Bill. Cuttings & use of white/coloured correcting fluid on the Procurement Voucher is prohibited;

b) Test Certificate and Guarantee of the Bearings and other items (issued by the manufacturer) be obtained from the Contractor alongwith the Bill.

Any laxity for not adhering to the above instructions will be viewed seriously.

All Accountants                                          Sd/
All Jr. Accountants                                      DIRECTOR (F&A)
Copy to:

1.      Member (Finance) for information.
2.      All EEs of Maintenance, SDW & E&M division

3. All ACAs with the instructions to ensure the above before releasing the payment."

32. PW 5 categorically supported the fact that accounts department was bound to verify the bills. In the present case, payment was released to A2 on 10/10/2007 and the officers of DJB were bound to follow the instructions contained in the above orders. The RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 43 of 57 instructions contained in Ex. PW 5/DA and Ex. PW 7/D1 have not been followed and during evidence none of DJB witnesses have come out with clear version about procedure of verification of the invoice submitted by the contractor. It is evident that DJB witnesses are evasive on this count and are avoiding the specific responsibility for verification. Therefore, I conclude that bills Ex. PW 1/A to Ex. PW 1/D cannot be attributed either to the contractor (A2) or to JE (A1). The evidence is not found convincing and credible to substantiate the factum of using forged documents by A2 in collusion with JE A1 so as to hold them liable for the offences punishable u/s 471 IPC r/w 120B IPC.

33. Prosecution has alleged conspiracy between JE (A1) and contractor (A2) to submit forged invoices for payment. 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 conspiracy RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 44 of 57 is 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. 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 or partly implied.

34. In "Shivanarayan v. State of Maharashtra", AIR 1980 Supreme Court 439, it was held that "It is manifest that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from the inferences drawn from acts or illegal omission committed by the conspirators in pursuance of a common design."

35. In the case of State of Maharashtra and Others vs Som Nath Thapa and Others, (1996) 4 SCC 659, it was held that "To establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 45 of 57 prosecution has not to establish that particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use."

36. Coming to the case in hand, alleged conspiracy is with respect to forged invoices. It is strange that invoices Ex. PW 1/A to Ex. PW 1/D bear the signatures of ZE Sh. A.P. Garg but he has not been brought either as a witness or accused to share the responsibility of the bills / invoices. There is no material evidence on record to suggest that A 1 contributed to the submission of forged bills or that he verified or certified the same as genuine in pursuance of criminal conspiracy. The PW 5 Anil Kumar EE who had checked the file before final payment, has failed to depose that Ex. PW 1/A to Ex. PW 1/D were submitted by contractor A2. In fact, Ex. PW 1/A to Ex. PW 1/D, have not been connected to Pradeep Kumar JE A1 by bringing concrete evidence or even to A2 for that matter, in the absence of their signatures. Therefore, for the submission of the bills no liability can be fastened upon JE unless he has certified the same as genuine.

37. For the aforesaid reasons, I conclude that prosecution has RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 46 of 57 failed to prove beyond reasonable doubt the charge of forgery as well as conspiracy against both the accused i.e. A1 and A2.

38. Now we are left with expert scientific evidence only on the issue of non use of Johnson pipe. According to BOQ and Strata Chart the contractor was required to install 150 mm Johnson pipe of total length of 50 meters at Sultanpur. The prosecution has relied upon expert and scientific evidence on this issue and have examined PW 2 Dr. D.V. Reddy and also played CD Ex. PW 2/E. The defence has challenged the inspection report and very expertise of PW 2 and very strongly argued about admissibility of CD which is electronic evidence, due to non confirmation by forensic report. The defence Counsels have relied upon State of H.P. Vs Jai Lal and Others, (1999) 7 SCC which says: "...................

18. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions.

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..................

20. The question for consideration is whether the evidence of Shri P.C. Panwar who was examined as an expert witness measures up to the well accepted principles for judging the credibility of such an evidence. As noted earlier, Shri Panwar has not stated anything in his testimony to show that he had made any scientific study or research in assessing the productivity of apple trees in the State of Himachal Pradesh. He does not even state whether he had undertaken any such work prior to the present case. No doubt as an officer of the Horticulture Department of the State Government he might have acquired some experience in the matter but that is not sufficient to make him an expert in the field and to give the label of 'expert evidence' to his testimony. ...........

................."

39. PW 2 Dr. D.V. Reddy is M.Sc. (Geology) and M.Sc.

(Tech.), Hydrogeology from Hyderabad. The inspections of borewell in question was conducted by him on 17/09/2013. He has 30 years of experience in ground water studies in different Hydrogeologic environs. The witness has put bore hole camera into the well and scanned total length and he has given his report Ex. PW 2/A. The video recording was done by him on his palm top and on the same date transferred the material into a CD. The report and CD are duly accompanied by the certificate issued u/s 65B of Indian Evidence Act.

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40. As per his profile, PW 2 has done doctorate in groundwater investigations from NGRI and is involved in groundwater studies. The main objective of the witness was to find out the depth and length of the borewell and type of casing used therein. The simple under water camera was used and considering the qualification and experience of PW 2, it is clear that he had relevant expertise.

41. Coming to the evidentiary value of contents of CD and inspection report, PW 2 has used simple method to assess the depth of the well and nature of casing used. The bore hole camera was put inside the bore well and it had the provision of lighting and also the audio and video recording, connected with the monitor on ground surface and the images were visible on the monitor. The witness visited the site on 17/09/2013 and the officials of DJB were also present. In his report Ex. PW 2/A, the expertise, procedure and experiment have been detailed by the witness. According to the report, no Johnson pipe was found / seen in the borewell.

42. Following table would show the difference about the casing details, between the strata chart and observations as per video footage: RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 49 of 57 Chart of location: Near Samadi, Sultanpur. (Ex. PW 2/A1) Casing Lengths Casing Depth (m) Time slot details as (m) details (approximate) min per diagram observed 200mm 79.19 Blank Pipe 072.0 4:26 MS plain 200mm 12.14 MS slotted 72.077.7 4:265:10 MS slotted 200mm 6.20 Blank pipe 77.783.2 5:105:37 MS plain 150mm 9.0 Blank pipe 83.291.5 5:378:31 MS plain 150mm 50.0 Detached and 91.5150 8:31 onwards JS slotted damaged MS 150mm ~1.0? slotted MS plain Description as per the Strata Chart As per the strata chart given by M.S. Borewell, the bore well was drilled up to 161 m in two sizes. Top 97 m is shown with 200 mm dia casing (79.19 m blank pipe, 12.14 MS slotted pipe and 6.2 m blank pipe). Bottom about 60 m is shown with 150 mm casing (9.0 blank pipe, 50 m Johnson type slotted pipe and about 1 m blank pipe) with some overlap at well reduction.

RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 50 of 57

Observation The well was scanned on 17/9/13 using borehole camera and measured the present depth as 152+m bgl. Top 72 m blank pipe, followed by MS slotted pipe from 72 to 77.7 m and 77.7 to 83.2 m blank pipe seen. Up to 83 m the well dia is 200 mm and later it reduced to 150 mm. From 83 m to 91.5 m blank casing followed by detached (not continuous) and heavily damaged MS slotted pipe is seen for its total depth. Though the casing is covered with mass, MS slots were seen at several places.

43. PW 2 was summoned at the site for specific purpose to ascertain the use or non use of Johnson pipes. While conducting the inspection, PW 2 is able to ascertain the depth and heard declaring about the various levels of depth reached. He could also see the video images on his palm top at the site but he did not make any observations or comments about non use of Johnson pipes nor he revealed or discussed his observations to any person particularly the DJB officials who were also experts in the field of identifying the nature of Johnson pipes. PW 2 should have made comments about existence of pipes or strata and their nature, at the spot itself while he was noticing the same. Witness particularly PW 5 Anil Kumar has admitted that due to deposits and moss formation, it is difficult to identify the nature of pipes in bore wells.

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44. PW 2 in his report has not clearly spelt out as to on what basis he came to the conclusion about non use of Johnson pipes. He has failed to support or substantiate his findings with due reasons in his report. There is no explanation as to how could the difference in nature of pipes was visible to him through bore hole camera. PW 2 or any other prosecution witness has nowhere given any particular characteristics of Johnson screen pipe nor disclosed how they are different from slotted and plain pipes. The prosecution has not physically produced the specimen of slotted, plain and Johnson pipe during the trial before the court to enable the court to see and ascertain the difference thereof. The technical specifications of different pipes have not been detailed or brought to the notice of the court.

45. It is also true that defence has failed to show that any other method has been more proper or perfect than the one used by PW 2. However, the question remains whether expert evidence is conclusive or corroborative and to what extent can be relied upon.

46. It is not disputed that inspection has been conducted after a lapse of 5 years. Even at the time of inspection, borewell was functioning and there was presence of water. As per report itself, Johnson RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 52 of 57 Screen Pipe was to start from 106.53 meters in accordance with strata chart but after 91.5m, the heavily damaged and detached MS slotted pipe is seen. It is difficult to find out and ascertain even after careful viewing of the CD as to what was the nature of pipes installed. The movement of video is fast and jerky. Even the CFSL opinion not obtained to confirm the genuineness of CD.

47. It is very important to note that PW 2 has not elaborated his findings and simply stated that no Johnson screen pipes were seen. He has not done any scientific analysis nor he has demonstrated any special skill. Analyzing the circumstances of the present case, the report is not a strong piece of evidence. The report itself mentions that MS slotted is lying heavily damaged and there is moss formation around the casing. It is improbable that the nature of the pipe could be clearly seen and observed in such circumstances. PW 5 Anil Kumar has also got practical experience about the working of borewell and according to his testimony, the Johnson Pipe is made of metal and deposits and moss formation occur quickly due to which shape of holes gets varied and in that case it is difficult to find out the nature of pipe. Generally, the life of borewell is 5/7 years and due to pressure Johnson Pipe may get squeezed and also in the event of damaged pipe, borewell would collapse. He admitted that there is no complaint about the working of borewell in RCDAI2012A0023 CC No. 07/15 CBI vs. Pradeep Kumar & Ors. Page 53 of 57 question. In this way, PW 5 has given counter testimony and has not supported the findings of expert witness. If the testimony of PW 5 Sh. Anil Kumar is taken into consideration, the report cannot be termed as conclusive proof and much significance cannot be attached to the same.

48. The expert has not offered any explanation as to how in case of damaged or detached pipe with moss covering, the quality and nature of pipe could be discovered and how the borewell is functioning properly. It is also evident from the site inspection memo and site plan that N. Jyoti Kumar, ScientistC, Certified Ground Water Professional (CGWP), New Delhi, was also present during the inspection. This witness has not been examined by the prosecution to substantiate the facts spelt out in the expert report. There is no explanation as to for what purpose scientist Sh. N. Jyoti Kumar joined the inspection. His testimony, if recorded, would have further clarified the facts as to the expert report Ex PW2/A. The report of expert witness therefore is not free of doubts and absolute reliance cannot be placed on the same to reach to clear conclusion about the nature of the pipe. In my opinion, it would not be safe to absolutely rely upon the evidence of PW 2 to conclude that Johnson pipes were not used.

49. I have already held that evidence of forged bills is doubtful.

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The procedure of PW 2 and his findings cannot be termed as conclusive or clinching evidence and therefore, it would not be safe to conclude that Johnson pipe was not installed in the borewell (Samadhi Sultanpur). I conclude that prosecution has failed to establish this fact beyond reasonable doubt.

50. The documents / paper work of this case is in proper order. It is evident from the depositions of DJB witnesses that work has been executed as per contract and requirements and to the satisfaction of JE, AE and EE concerned. It is not the case of prosecution that functioning of borewell has failed, thereby causing loss to the department. Also there is no evidence about the actual and wrongful loss resulted to the Government due to the borewell work executed by the contractor. It is clear that purpose of installation of reboring stands fulfilled and it is still providing water as per the requirements. The satisfaction certificates were issued by all the concerned officials in favour of the contractor. The AE Sh. A.P Garg was the important witness having signed the alleged forged purchase vouchers and was also present on 22/08/2007 when the Johnson Pipe was installed in the borewell in question. The said witness has not been examined despite his statement was recorded during the investigation and u/s 114 (g) inference is clear that his evidence would have been favourable to the accused persons.

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51. Needless to state that prosecution is required to prove its case through unimpeachable evidence beyond any shadow of doubt. It has also come on record that the entries in the record such as MB, final bill, completion report have not been made by A1 Pradeep Kumar and therefore the charge u/s 477 A with respect to incorrect official entries also does not stand against the accused (A1).

52. In the same manner, the charge of abusing the official position by corrupt and illegal means to provide gains to the contractor u/s 13(1) (d) of the Prevention of Corruption Act, 1988, also fails.

53. In the end, I conclude that prosecution has failed to bring home the guilt of accused A1 and A2 beyond shadow of doubt. The benefit of doubt is given to accused persons and they are acquitted of all the charges. Their bail bonds are canceled and previous sureties are discharged and the accused persons are directed to submit the bonds u/s 437A Cr. PC in the sum of Rs. 30,000/ each.

54. Ahlmad is directed to page and bookmark the file so as to enable digitization of the entire record.

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55. File be consigned to record room on compliance of section 437A Cr. PC.



                                      (Anju Bajaj Chandna)
Announced in open court               Special Judge (PCAct)(CBI)6,
today i.e., 23/05/2016                Patiala House Court, 
                                      New Delhi




RCDAI2012A0023    CC No.  07/15   CBI vs. Pradeep Kumar & Ors.   Page 57 of 57

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Cbi vs . Pradeep Kumar & Ors. on 23 May, 2016