Delhi District Court
Cbi vs . 1) A.R.Bhati S/O Sh. P.B. Bhati, on 9 September, 2016
IN THE COURT OF SH. BRIJESH KUMAR GARG
SPECIAL JUDGE:CBI01: CENTRAL: TIS HAZARI, DELHI
Registration No.: 532246/2016
CNR No.: DLCT010000401999
CC No. : 36/2008
RC : 77(A)/1997
PS : CBI/ACB/New Delhi
U/s: Section 120 B IPC,
r/w Sec. 409, 420, 477A,
511 IPC and Sec. 13(2)
r/w Sec. 13 (1) (d) of
The Prevention of Corruption
Act 1988.
CBI Vs. 1) A.R.Bhati S/o Sh. P.B. Bhati,
r/o B20, Vivek Vihar, PhaseII,
Delhi110095.
2) Sanjay Kumar Malhotra S/o Sh. J.L. Malhotra
r/o D1/21, Lodhi Colony,
New Delhi110003.
Date of Institution : 11.10.1999
Judgment Reserved on : 26.08.2016
Judgment Delivered on : 09.09.2016
J U D G M E N T
1.In the present case, accused A.R.Bhati, Sanjay Kumar Malhotra and K.C. Wahi (since deceased), were sent up for trial, for the offences punishable Under Section 120B, 420, 409, 477A CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 1 of 58 Special Judge, CBI01, Central, Delhi & 511 IPC and Section 13(2) r/w Section 13 (1)(d) of The Prevention of Corruption Act, 1988.
2. It has been stated in the charge sheet that a reliable source information was received, regarding malpractices by CPWD officials of Sriniwaspuri subdivision, in connection with the replacement of WC Pans in several quarters of HBlock of Sriniwaspuri. On this information, Inspector P. Balachandran collected the documents, i.e. measurement book, agreement papers and contractor's bills and then a surprise check was conducted on 14th October, 1997. As per the original agreement No. 54/AE/4P/9798, the work for replacement of damaged WC Pans was awarded to contractor Sanjay Kumar Malhotra on 16th August, 1997 for Rs.62,674/, for 130 numbers of WC Pans, 130 Pairs of footrests and demolishing cost. As per measurement book No. 5895, issued to A.R. Bhati, Junior Engineer, CPWD, Sub Division Sriniwaspuri, it had been recorded at page2 of the measurement book that 267 numbers of WC Pans along with the footrests have been installed in 267 quarters in HBlock. The completion certificate given at page7 of the said measurement book reveals that accused A.R. Bhati has certified that the work was physically completed on 25.09.97 and the same was CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 2 of 58 Special Judge, CBI01, Central, Delhi countersigned by accused K.C. Wahi (since deceased), after allegedly completing and certifying the test check. On 29.09.1997, accused K.C. Wahi forwarded the first & final bill of the contractor for Rs.1,75,672/ to the divisional office for passing and payment, along with the deviation statement, test check statement and recovery statement. All the documents were certified and signed by accused A.R. Bhati and K.C. Wahi (since deceased). The deviation from the original estimate of this work, in the final bill was more than 300% and the bill was pending for final payment.
3. It is further stated in the charge sheet that the physical verification of 135 WC Pans, out of 267 WC Pans, purported to have been replaced, as per the entries appearing in the measurement book, was carried out in the presence of independent witnesses Sh. G.R. Sharma and Rajender Krishan, accompanied by Sh. M.L. Roy, the present AE, Sh. A.R. Bhati, JE and Sh. S.K. Gupta, JE. It was found that only 25 WC Pans have actually been replaced, out of 135 WC Pans inspected, which works out to be less than 20%. An observation memo was prepared in this regard.
CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 3 of 58 Special Judge, CBI01, Central, Delhi
4. It is further stated in the charge sheet that the surprise check has revealed that the CPWD Contractor accused Sanjay Kumar Malhotra has raised false bill and the CPWD officials have verified the bill by falsely certifying the work to have been completed, as recorded in the measurement book and thereby they had attempted to cheat the CPWD by abusing their official position as public servants, with the object of causing wrongful pecuniary advantage to the contractor.
5. It is further stated that requirement for carrying out any work in the CPWD is generated by three modes :
a) The demand may come from the side of the allottee of the quarter or through residents' association;
b) The demand may be ascertained through the complaint register which is kept in the Enquiry Office where in each and every allottee is authorized to make complaint about the requirement;
c) By inspection by officials or officers of the CPWD who, on inspection, find defect in the maintenance of quarters and order the same.
6. It is further stated in the charge sheet that in this case, none of CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 4 of 58 Special Judge, CBI01, Central, Delhi the above procedure was followed and there was no apparent necessity to call the tenders. Accused K.C. Wahi was looking after the charge of 4P Sub, Sriniwaspuri and accused A.R. Bhati, J.E was working under him and during the surprise check, it was found that no demand for replacement of any WC Pans or the footrest had come from any corner and no documentary evidence could be produced by the concerned officials about the need for replacement of damaged WC Pans of HType Quarters at Sriniwaspuri and TypeB Quarters at Nehru Nagar.
7. It is further stated in the charge sheet that for execution of any work, the J.E. is supposed to prepare "work estimate" and place it before the A.E., for approval. The repair estimates were required to be checked by A.E. and E.E. to the extent of 25% and 5%, respectively. But, in the present case, no estimate was prepared. As per rules, the A.E. can accord technical sanction if the amount is not more than Rs.60,000/. After the technical sanction, necessary entries are made in the technical sanction register by sub divisional clerk, but, in this case, Shri Ghamandi Lal, Sub Divisional Clerk has not maintained the said technical register. After technical sanction, J.E. is required to prepare schedule of work / quantity and put up before the A.E. After approval, the CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 5 of 58 Special Judge, CBI01, Central, Delhi A.E. gives the schedule of quantity to subdivisional clerk for issuing PWD6. The SubDivisional Clerk prepares NIT and makes entry in the NIT register, but, Shri Ghamandi Lal has not made any entry in the NIT register. After according sanction, NIT is to be made in the technical sanction register maintained in the office of A.E. Thereafter, notice inviting tender (NIT) is prepared in the office of the A.E. and on the basis of this NIT, form PWD6 is issued for circulation and a copy of the same is sent to contractors association and is pasted on the notice board of the subdivisional office, E.E. division and other adjoining sub division, for wide publicity.
8. It is further stated in the charge sheet that as per tender sale register, five persons, including accused Sanjay Kumar Malhotra, purchased the tender documents and these tenders were opened by A.E. and accused Sanjay Kumar Malhotra deposited a sum of Rs.1,264/ as earnest money. Thereafter, Shri Ghamandi Lal prepared comparative statement of percentage rate of tenders and this statement was prepared by Shri Ghamandi Lal, quoting the lowest percentage rate of 24% by accused Sanjay Kumar Malhotra. On this statement, A.E. made endorsement to Mr. Bhati, J.E., to put up the justification on 16.08.1997 and accused CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 6 of 58 Special Judge, CBI01, Central, Delhi A.R.Bhati put up the justification on the same day quoting justified rates as 58.93% above the estimated amount. Thereafter, A.E. K.C.Wahi made endorsement on the same day and awarded the contract to accused Sanjay Kumar Malhotra. Thereafter, award letter was prepared by Sh. Ghamandi Lal and thereafter, agreement was executed between K.C.Wahi, A.E. and contractor Sanjay Kumar Malhotra, for replacement of 130 numbers of WC pans and 130 footrest, vide agreement No. 54/AE/4P/9798.
9. It is further stated in the charge sheet that while preparing the schedule of quantity, accused A.R.Bhati intentionally left the item of "Ptrap", so that the work does not exceed Rs.60,000/ and the said act clearly indicates that the accused persons had the dishonest intention from the very inception.
10. It is further stated in the charge sheet that measurement book No. 5895 was issued to accused K.C.Wahi on 14.08.1997 and subsequently, to accused A.R.Bhati, J.E. on the same date. The entries in measurement book reveals that initially, a running account bill of Rs.1,57,383/ was prepared by accused A.R.Bhati and submitted to A.E., K.C.Wahi (since deceased), who forwarded the same to division office for pass and payment. This CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 7 of 58 Special Judge, CBI01, Central, Delhi bill was processed in the office of the Executive Engineer, but, Executive Engineer refused to sign the bill and lateron, this running bill was canceled by accused A.R.Bhati, without assigning any reason.
11. It is further stated in the charge sheet that the measurement book No. 5895 indicates that the work had started on 26.08.1997 and was completed on 25.09.1997 and accused A.R.Bhati and K.C.Wahi had certified that the work of 267 WC pans has been physically completed on 25.09.1997. The review notes of A.E. K.C.Wahi shows that he checked the value of measurements to the tune of Rs.1,02,949/ and satisfied himself by putting his signatures on 16.09.1997. Accused contractor Sanjay Kumar Malhotra accepted the measurements by making endorsement on 29.09.1997. On the same date, the first and final bill of accused Sanjay Kumar Malhotra for Rs.1,75,672/ was submitted by accused K.C.Wahi for pass and payment.
12. It is further stated in the charge sheet that on 10.10.1997, 13.10.1997 & 14.10.1997, surprise checks were conducted by Inspector P. Balachandran and various documents pertaining to agreement No. 54/AE/4P/9798, besides five photographs of the CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 8 of 58 Special Judge, CBI01, Central, Delhi accused persons, were seized.
13. It is further stated in the charge sheet that as per the initial checking by the CBI party, only 25 number WC pans were replaced, out of 135 number of WC pans. Thereafter, a board was constituted, after registration of the case, comprising of T.K.Majumdar, E.E. and Shri S.K.Bansal, A.E., both from Vigilance Department of CPWD Headquarter and the checking was done in the presence of A.E. Sh.M.L.Roy; accused A.R.Bhati; SI Rajesh Prasad; SI Brijesh Prasad; and SI K.Lokho. During the checking, it was found that in actual, only 25 number WC pans and 26 pairs of footrests were found replaced, as per AnnexureA of the report submitted by Shri T.K.Majumdar and Shri S.K.Bansal.
14. It is further stated in the charge sheet that during investigations, it was observed that prior approval for doing deviation work was mandatory, but, no prior approval was taken in the present case.
15. It is further stated in the charge sheet that during investigations, it was revealed that 1.5 MT i.e. 1500 Kgs. cement CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 9 of 58 Special Judge, CBI01, Central, Delhi was shown as issued for executing the work, but, as per the work actually executed, only 139 Kgs., cement could have been used for performing the said work. Therefore, it is evident that the cement weighing about 1361 kgs., worth Rs.3,164/, has been misappropriated by the accused persons.
16. It is further stated in the charge sheet that the schedule of quantity prepared by accused A.R.Bhati speaks that a total cement weighing about 1.6 MT was required to complete the work, but, on the other hand, cement weighing 1.5 MT has been shown as consumed after doing the deviation of 108.40%. This act was done to reduce the tendered amount and to bring it within the limit of Rs.60,000/. The net value of the work awarded by A.E., works out to Rs.50,544/ and on adding 24% above the tendered amount, i.e. Rs.12,130/, it comes to Rs.62,674/, which exceeds the competency limit of the A.E. This fact depicts the fraudulent intention of the accused persons.
17. It is further stated in the charge sheet that the result of the investigations had revealed that the accused persons had wilfully omitted the required procedure before awarding the contract to accused Sanjay Kumar Malhotra and in furtherance of their CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 10 of 58 Special Judge, CBI01, Central, Delhi criminal conspiracy, they had created a false bill, with intention to cheat the government. An attempt was made by accused A.R.Bhati and K.C.Wahi, by corrupt and illegal means and by abusing their position as a public servant to obtain a pecuniary advantage for coaccused Sanjay Kumar Malhotra, the contractor.
18. It is further stated in the charge sheet that handwriting experts of CFSL, New Delhi have confirmed the writings and signatures of accused persons on the questioned documents and the statements of the witnesses, recorded during the investigations had confirmed the allegations.
19. It is further stated in the charge sheet that the competent authority had accorded sanction for prosecution of accused .A.R.Bhati and accused K.C.Wahi, Assistant Engineer (since deceased) had already retired from service.
20. It has been further stated in the charge sheet that the investigations had primafacie disclosed the commission of offences punishable under Sections 120B, 409, 477A & 511 IPC and under Section 13 (2) read with Section 13 (1)(d) of The CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 11 of 58 Special Judge, CBI01, Central, Delhi Prevention of Corruption Act, against the accused persons.
21. On 09.05.2005, the order on charge was passed by Sh.
Dinesh Dayal, Ld. Special Judge, Ld. Predecessor of this court and in pursuance to the said orders, the charges for the offence punishable under Section 120B read with Section 409, 420, 477 A, 511 IPC and read with Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 were framed against all the accused persons. The substantive charges for the offences punishable under Section 477A, 409, 511 IPC r/w 420 IPC were also framed against all the accused persons. The substantive charge for the offence punishable u/s 13(2) r/w 13(1)(d) of the P.C. Act, 1988 were also framed against accused K.C.Wahi and A.R.Bhati. All the accused persons pleaded not guilty for all the charges and claimed trial.
22. It is pertinent to mention here that during the trial, the accused K.C.Wahi, A.E., had expired and therefore, vide orders dated 19.11.2013, the proceedings against him were dropped, since abated.
CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 12 of 58 Special Judge, CBI01, Central, Delhi Prosecution Evidence
23. During the course of trial, the prosecution has examined the following witnesses, namely:
i) PW1 Sh. P. Balachandran, DSP, EOUI, CBI, Delhi, who conducted surprise checks and observation at Sriniwaspuri Sub Division of CPWD, on 10.10.1997, 13.10.1997 & 14.10.1997, along with Inspector C.K. Sharma, SI Brajesh Kumar and other staff members and the independent witnesses Shri G.R.Sharma and Rajender Prasad. He checked the work related to the present agreement in 135 quarters and observed that the work was done at 25 quarters only. He seized the relevant files and documents, including the measurement book. He lodged the complaint Ex.PW1/A, on the basis of which FIR Ex.PW1/B was registered.
ii) PW2 Sh. A. Vishwanathan, who was working as Assistant Accounts Officer in CPWD, PDivision, during the period w.e.f.
June 1996 to 1999. He was entrusted with the duty to check the bills submitted by the contractors, which came to the accounts branch of the division, along with the other documents, for payment of the bill amount to the contractor. He used to check the bills in respect to the test checkings by the A.E/E.E, theoretical calculation statements, part rate statements, recovery CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 13 of 58 Special Judge, CBI01, Central, Delhi statements, measurement books etc. He was required to point out the short comings in the bill and the documents, if any, and to put the bills before the E.E.
iii) PW3 Sh. Jeetan Singh r/o H475, Sriniwaspuri, New Delhi, who had deposed that he has not given any complaint to change WC pan of his flat. He has also deposed that the WC of his flat bearing No. H475 has not been replaced since the year 1995, till date.
iv) PW4 Sh. Rajender Krishan, who was posted as Telegraphman (indoor), Central Telegraph Office, Janpath, Connaught Place, New Delhi. He was a member of the CBI team, which conducted the physical verification of work at Htype quarters at Sriniwaspuri, on various dates.
v) PW5 Sh. T.K. Majumdar, who was working as Executive Engineer in Vigilance Department of CPWD at its Headquarter, in October 1997. He was deputed by his office to inspect and check the work done at HType Quarters at Sriniwas Puri and Nehru Nagar, along with the CBI team. After checking of the quarters, regarding the execution of work, he submitted his report Ex.PW5/A. He had reported that in the checking conducted on 07.11.1997, he found that only 25 WC pans and 26 pairs of footrest were actually replaced, instead of a total quantity of 130 CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 14 of 58 Special Judge, CBI01, Central, Delhi WC Pans and 130 pairs of footrest, as mentioned in the measurement book.
vi) PW6 Inspector D.K. Singh, who was posted as Inspector CBI, ACB, New Delhi, in the year 1997. He is the investigating officer of the present case.
vii) PW7 Smt. Suman Jaiswal, who was a resident of quarter No. H7, Sriniwaspuri, Delhi, during the period w.e.f. February 1997 to 2003. She is having no knowledge about the change of WC Pan of her toilet.
viii) PW8 Sh. Jagmohan Singh Aswal, who was a resident of quarter No. H385, Sriniwaspuri, New Delhi, during the period w.e.f. 1992 to 2004 and was also working as Joint Secretary of "Sudhar Samiti" of HBlock Sriniwas Puri, during the period w.e.f. 1995 to 1997. He has deposed that neither he nor any governing member of the Sudhar Samiti has sent any letter to CPWD, regarding the replacement of WC Pans and footrest.
ix) PW9 Smt. Sushma Devi, who was a resident of quarter No. H466, Sriniwaspuri, New Delhi, in the year 1997. She has deposed that no WC Pan of her flat was ever replaced or repaired during the year 1997.
x) PW10 Sh. Gobind Ram Sharma, who was posted as telegraph master (operative) in the office of C.T.O., New Delhi.
CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 15 of 58 Special Judge, CBI01, Central, Delhi He accompanied the CBI officials to Sriniwas Puri SubDivision of CPWD, for conducting the surprise checks on 10.10.1997, 13.10.1997 & 14.10.1997.
xi) PW11 Sh. Rajender Singh Rawat, he was working as Auditor at PDivision, CPWD, Sadiq Nagar, New Delhi, during the period w.e.f. June 1996 to April 1998. This witness has deposed about the procedure for award of the maintenance work to the contractors. He has also checked the first running bill Ex.PW2/F and the relevant annexures and documents, attached with it.
xii) PW12 Sh.Kripal Singh, who was posted as Asstt. Engineer in 4P Subdivision of CPWD at Sriniwaspuri, New Delhi, during the year 1998. He has also deposed about the procedure of tendering process. He had supplied various documents to the I.O. Inspector D.K. Singh, during the investigations.
xiii) PW13 Sh. S.K. Bansal, who was posted as Asstt. Engineer, Vigilance Branch, CPWD, Head Quarter, New Delhi. He has also deposed about the procedure for awarding a tender to a contractor at Subdivision level. He has also assisted PW4 T.K.Mazumdar, during the inspection / checking of work on 07.11.97 and 11.11.97.
xiv) PW14 Sh. Manindra Lal Roy. He was working as Assistant Engineer in CPWD sub division 3P, Andrews Ganj Extension in CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 16 of 58 Special Judge, CBI01, Central, Delhi the year 1997. He was also given the additional charge of sub division 4P, Sriniwaspuri, at that time. He has deposed about the procedure for preparation of the estimates of the repair work and the process for calling of the tenders. He has also joined PW4 T.K.Mazumdar & PW13 Sh. S.K.Bansal and the CBI officials, during inspection / checking of work on 07.11.97 and 11.11.97.
xv) PW15 Sh. Rajender Kumar, who was working as reception clerk in Hotel Gulmarg at Distt. Mandi, Himachal Pradesh. He has deposed that as per the guest register, one S.K. Malhotra along with three other persons, stayed in the hotel on 24.08.97 and 25.08.97.
xvi) PW16 Smt. Hansi Devi, a resident of quarter No. H78 Sriniwaspuri, New Delhi, who has deposed that the WC Pan of her quarter was neither replaced nor renovated, for the last about 20 years.
xvii) PW17 Sh. Sukan Pal Singh Verma, who was posted as Assistant Surveyor of the work in PDivision at Sadiq Nagar office of CPWD during the period w.e.f., the year 1991 to 1999. He was required to check / calculate the estimate and the deviation statements of the sub divisional office, which were marked to him by the Executive Engineer of the Division.
CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 17 of 58 Special Judge, CBI01, Central, Delhi xviii) PW18 Sh. N.C. Kapoor, who was also a contractor for the CPWD. He has identified the signatures of accused K.C.Wahi (since deceased), on the tender opening register Ex.PW.2/C. xix) PW19 Sh. G.G. Garg, who was posted as Executive Engineer in Delhi Central CircleV, East BlockIV, R.K. Puram, Sector1, New Delhi, in August, 1997. He has deposed that on 23.08.97, he alongwith accused Phool Singh and two other persons, visited Shimla.
xx) PW20 Sh. S. K. Gupta, who was posted as JE, CPWD in 4 P, SubDivision, Sriniwaspuri, New Delhi. He has witnessed the search of the office of the subdivision on 10.10.97, 14.10.97 & 16.10.97.
xxi) PW21 Sh. N.K. Jain, who was posted as Jr. Engineer in CBI, ACB, New Delhi, in the year 1997. He accompanied the CBI team during the surprise check of the work pertaining to replacement of WC pan and SW pipe and manhole covers, at Sriniwaspuri, New Delhi, on 10.10.97, 13.10.97 & 14.10.1997. xxii) PW22 Smt. Indu Nanda, a resident of flat No. H453 Sriniwaspuri, New Delhi. She has deposed that the footrest of WC Pan of her toilet in her quarter was not replaced in the year 1997. However, the WC Pan was replaced.
xxiii) PW23 Smt. Shyama Devi, a resident of quarter No. B CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 18 of 58 Special Judge, CBI01, Central, Delhi 1/19, Nehru Nagar, who has occupied the said flat during the period w.e.f. September 1997 to February 1998. She has deposed that no WC Pan in the toilet of her quarter was changed, during her occupation of the flat.
xxiv) PW24 Smt. Asha, occupier of quarter No.448, HBlock, Sriniwaspuri, New Delhi, during the period w.e.f. the year 1994 to 2003. She has deposed that during the period of her occupation, the WC Pan of the common toilet was never replaced. xxv) PW25 Sh. S.K. Bhowmik, occupier of flat No. B4/86, Nehru Nagar, New Delhi, during the period w.e.f. January 1997 to December 2006, who has deposed that in the month of January 1997, the WC Pan of his quarter was changed.
xxvi) PW26 Dr. Rajender Singh, Director CFSL, New Delhi. He has examined the various documents and has compared the handwritings of the accused in the said documents with their specimen handwritings and signatures. He has proved his report as Ex.PW.26/A. This report was forwarded by him to SP, CBI, ACB, under the signatures of Shri T.R.Nehra, Director, vide letter Ex.PW.26/B. xxvii) PW27 Sh. Virender Thakran, who was posted as Inspector, CBI, ACB, New Delhi. He accompanied the complainant, Inspector P. Balachandran, along with other CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 19 of 58 Special Judge, CBI01, Central, Delhi officials, for conducting the surprise check at CPWD subdivision office at Sriniwaspuri, New Delhi, on 10.10.97. xxviii) PW28 Sh. Rajesh Kumar Prasad, SubInspector, ACB, CBI, New Delhi. He was also the member of the CBI team, which conducted surprise check at Sriniwaspuri, New Delhi, on 10.10.97, 13.10.97 & 16.10.97.
xxix) PW29 Sh. Brajesh Kumar, who was posted as sub inspector, ACB, CBI, New Delhi, in the year 199798. He was also a member of the CBI team, which conducted the surprise check and physical verification of Htype quarters at Sriniwaspuri, on 10.10.1997 & 13.10.1997.
xxx) PW30 Smt.Kamla, occupier of quarter No. B4/31, Nehru Nagar New Delhi, who has deposed that the WC pan of the toilet of her quarter was replaced once, during her occupation of the flat.
xxxi) PW31 Smt. Janki Kandpal, who was the occupant of quarter No. B5/101, Nehru Nagar, New Delhi, in the year 1997
98. She has not deposed anything against the accused. xxxii) PW32 Smt. Prem Lata, who was the occupant of quarter No.H95, Sriniwaspuri, New Delhi, during the period w.e.f. the year 1996 to 2004. She has deposed that during the period of her occupation, no WC pan was ever changed.
CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 20 of 58 Special Judge, CBI01, Central, Delhi xxxiii) PW33 Smt. Poonam, who was the occupant of quarter No.H409, Sriniwaspuri, New Delhi, during the period w.e.f. the year 1983 to 2002. She has deposed that during the period of her occupation, no WC pan was ever changed.
xxxiv) PW34 Smt. Anjana Devi, who was the occupant of quarter No.H364, Sriniwaspuri, New Delhi, during the period w.e.f. the year 1996 to 2005. She has deposed that during the period of her occupation, no WC pan was ever changed. But, some minor repairs were carried out in the toilet. xxxv) PW35 Smt. Gandhimati Natrajan, UDC, who was working with Sh. S.K. Singhal, Superintending Engineer, PWD, New Delhi, in the year 2000. She has identified the signatures of Sh. S.K. Singhal, Superintending Engineer, on the sanction order Ex.PW6/K. xxxvi) PW36 Sh. N.N. Singh, Superintendent of Police, Anti Corruption Branch, CBI, New Delhi, who got the FIR, Ex.PW1/B, registered on the complaint of Inspector P. Balachandran, on 20.10.1997. He has proved his letter dated 22.10.97, as Ex.PW6/A, vide which he wrote to Sh. K.K.Verma, Chief Engineer (Vigilance), CPWD Head Quarters, Nirman Bhawan, New Delhi, for constituting a team of technical officers to inspect and evaluate the relevant work and submit a technical report.
CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 21 of 58 Special Judge, CBI01, Central, Delhi
24. After completion of the prosecution evidence, the statements of the accused persons were recorded, u/s 313 Cr.P.C., wherein, both the accused denied all the incriminating evidence against them and have deposed that they are innocent and have been falsely implicated in this case.
25. Accused A.R. Bhati has also stated that he had worked honestly and performed the entire work at the site 100% and the same was physically checked and verified by the senior officers and he has rechecked the entire work and the payment was not released to the contractor. He has further stated that he was not authorized to release or stop the payment to the contractor and has withdrawn the bill on 09.10.1997, before the CBI raid, for the purposes of reverification of the work done and other formalities. The quarter number H448, has not been recorded in the measurement book No. 5895, pertaining to WC pan work.
26. Accused Sanjay Kumar Malhotra has also stated that he had worked honestly. No physical inspection was ever carried out at the spot. The work was carried out as per the tender awarded and as per the procedure envisaged in the CPWD CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 22 of 58 Special Judge, CBI01, Central, Delhi Manual. Nothing incriminating has come against him in the evidence. The FIR is false and he has been falsely chargesheeted.
27. After completion of the trial, final arguments were addressed by Shri Praneet Sharma, Ld. Sr. PP for the CBI; Shri Y.K.Kahol, Advocate, for accused A.R.Bhati and Sh. Dinesh Parashar & Sh. Amit Goel, Advocates for accused Sanjay Kumar Malhotra.
Arguments on behalf of the CBI / Prosecution
28. It has been argued by Shri Praneet Sharma, Ld. Sr. PP for the CBI that the prosecution has successfully proved its case against all the accused persons. He has argued that the work for replacement of damaged 130 WC pans and 130 pairs of footrest, along with demolition cost, was awarded to accused Sanjay Kumar Malhotra, for Rs.62,674/, in respect of which, contract agreement bearing No. 54/AE/4P/9798, Ex.PW2/E (D7) was executed and award letter Ex.PW2/E2 was issued to accused Sanjay Kumar Malhotra, under signatures of accused K.C. Wahi (since deceased). Both these documents have been admitted by the accused persons, during the trial.
CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 23 of 58 Special Judge, CBI01, Central, Delhi
29. The Ld. Sr. PP for the CBI has further argued that a source information was received by PW1 DSP P.Balachandran, regarding nonexecution of work, with respect to the replacement of damaged WC pans and footrests at Sriniwaspuri Subdivision of CPWD, on which, he conducted surprise check and observation of the alleged tendered work on 10.10.1997, 13.10.1997 and 14.10.1997 and found that the work was not done completely. Thereafter, he lodged the complaint Ex.PW1/A, in this regard, with his the then SP CBI Sh. N.N. Singh, on the basis of which, FIR Ex.PW1/B, was registered.
30. The Ld. Sr. PP for the CBI has further argued that the measurement book No. 5895, Ex.P6 (admitted document), was issued to accused A.R. Bhati, J.E., through coaccused K.C. Wahi, A.E. (since deceased), and he made false entries in this measurement book, regarding the replacement of 267 WC pans and 267 pairs of footrests and the same were wrongly checked and verified by coaccused K.C. Wahi, Asstt. Engineer, and were forwarded to coaccused Phool Singh, E.E., along with the first running bill of Rs.1,57,383/ Ex.PW2/F, for passing & payment.
31. The Ld. Sr. PP for the CBI has further argued that after CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 24 of 58 Special Judge, CBI01, Central, Delhi registration of FIR, the investigation was entrusted to PW6 Inspector D.K.Singh. Thereafter, vide letter dated 22.10.97 Ex.PW.6/A, Sh. N.N. Singh, the then SP, CBI requested the CPWD, to constitute a vigilance team for physical verification of the tendered work. Thereafter, PW5 T.K.Majumdar & PW13 S.K. Bansal were deputed to inspect and check the work at H type quarters at Sriniwaspuri and Nehru Nagar, alongwith the CBI team. They conducted the physical verification of the sites and submitted their report Ex.PW.5/A, which was communicated to Sh. N.N. Singh, SP CBI, vide letter dated 20.11.97, Ex.PW5/B. As per this report, only 25 numbers of WC pans and 26 pairs of footrests were found replaced, as per 'AnnexureA' of the report, but, as per measurement book No. 5895, a total of 267 numbers of WC pans and 267 pairs of footrests in HBlock, Sriniwaspuri and 4 numbers of WC pans and 4 pairs of footrests in BBlock of Nehru Nagar, were recorded as replaced.
32. The Ld. Sr. PP for the CBI has further argued that the contractor, accused Sanjay Kumar Malhotra has replaced only 25 numbers of WC pans and 26 pairs of footrests, instead of 271 WC pans & 271 pairs of footrests. But, a first running bill for Rs.1,57,383/, (Ex.PW2/F), was prepared and was wrongly CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 25 of 58 Special Judge, CBI01, Central, Delhi checked and verified by coaccused A.R. Bhati & K.C. Wahi (since deceased) and was forwarded to the office of executive engineer Sh. Phool Singh, for passing & payment. But, the said bill was not cleared by the executive engineer Phool Singh and therefore, the said bill was not passed and the payment could not be made to accused Sanjay Kumar Malhotra. Lateron, this running bill was cancelled and withdrawn by accused A.R. Bhati, without any reason.
33. The Ld. Sr. PP for the CBI has further argued that accused A.R. Bhati, K.C. Wahi and Sanjay Kumar Malhotra have hatched a conspiracy to cheat the CPWD and in pursuance to the said conspiracy, accused A.R. Bhati made false entires in the measurement book No. 5895, Ex.P6 (D11) and the same were also wrongly checked and verified by coaccused K.C. Wahi, A.E, (since deceased), as correct and thereafter, the first running bill Ex.PW2/F, along with other documents and the measurement book were forwarded to the office of Phool Singh, E.E. and thereby they had attempted to cheat the CPWD of the said amount.
34. The Ld. Sr. PP for the CBI has further argued that the CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 26 of 58 Special Judge, CBI01, Central, Delhi deviation in the work done, as recorded in the measurement book was more than 300%, but still, no prior sanction of the competent authority was taken by the accused persons. He has further argued that 1.5 metric ton, i.e., 1500 kilograms, of cement was issued for executing the tendered work, but, as per the actual work executed, only 139 kilograms of cement should have been used by the contractor. Therefore, the cement weighing about 1361 kilograms, worth Rs.3,164/ has been misappropriated by the accused persons. False entries have been made by accused A.R. Bhati and K.C. Wahi, in the documents, in this regard.
35. The Ld. Sr. PP for the CBI has further argued that the residents of HBlock, Sriniwaspuri, namely, PW3 Jeetan Singh; PW7 Suman Jaiswal; PW8 Jagmohan Singh; PW9 Sushma Devi; PW16 Smt. Hansi Devi; PW23 Smt. Shyama Devi; PW24 Smt. Asha; PW32 Smt. Prem Lata and PW33 Smt. Poonam, have all supported the prosecution case and have all deposed that no WC pan or footrest of their toilets were ever replaced by the CPWD or any contractor.
36. The Ld. Sr. PP for the CBI has further argued that PW5 T.K. Majumdar and PW13 S.K. Bansal have also supported the CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 27 of 58 Special Judge, CBI01, Central, Delhi prosecution case and they have proved their report Ex.PW5/A and its' 'AnnexureA' as Ex.PW5/A1.
37. The Ld. Sr. PP for the CBI has further argued that PW1 Inspector P. Balachandran has also proved his complaint, Ex.PW1/A, the surprise check memos, dated 10.10.97 & 13.10.97 and the observation memo, dated 14.10.97, as Ex.PW1/C to Ex.PW1/E, respectively, and the other prosecution witnesses have corroborated his testimony and have also proved these memos. He has further argued that the report Ex.PW5/A and its' 'AnnexureA', Ex.PW5/A1, have established on record that accused Sanjay Kumar Malhotra, contractor, has not done the entire work and inflated entries were made in the measurement book No. 5895, Ex.P6, and it has been established on record, beyond a shadow of doubt that only 25 WC pans & 26 pairs of footrests were replaced by the contractor Sanjay Kumar Malhotra, instead of a total of 271 WC pans & 271 pairs of footrests. But, a first running bill for the said work was raised, checked, verified and submitted to the office of executive engineer for passing & making payment to accused Sanjay Kumar Malhotra.
38. Ld. Sr. PP for the CBI has further argued that the competent CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 28 of 58 Special Judge, CBI01, Central, Delhi authority has also granted the required sanction, under Section 19 of The Prevention of Corruption Act, 1988, for prosecution of accused A.R.Bhati, JE, vide sanction orders Ex.PW6/K, after going through the entire evidence and documents on record. The testimony of the prosecution witnesses and the material evidence on record has proved the prosecution case against the accused persons, beyond a shadow of doubt, and therefore, all the accused persons, be held guilty and convicted for the offences charged against them.
39. The Ld. Sr. PP for the CBI has relied upon the following judgments, in support of his above contentions:
(i) State of Maharashtra Through C.B.I. vs. Mahesh G. Jain, reported as (2013) 8 SCC 119;
(ii) Tehsildar Singh & Anrs. Vs. State of UP, reported as AIR 1959 Supreme Court 1012.
Arguments in defence, on behalf of accused A.R. Bhati, J.E.
40. Sh. Y.K.Kahol, Advocate, for accused A.R. Bhati, J.E., has argued that the prosecution has miserably failed to prove any case against the accused persons. He has argued that Sh. S.K. Singhal, Superintending Engineer, had granted sanction for prosecution of accused A.R. Bhati under Section 19 of the CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 29 of 58 Special Judge, CBI01, Central, Delhi P.C.Act 1988, vide sanction order Ex.PW6/K. But, the said order is not a valid or legally sustainable sanction order, as the same does not disclose anything about the material evidence or the documents, perused by the competent authority, before passing of the said sanction order.
41. The Ld. Defence counsel has further argued that there are a large number of material contradictions in the depositions of the prosecution witnesses, which makes the entire prosecution case doubtful. He has argued that the surprise inspections were allegedly conducted by the CBI team, headed by PW1 Inspector P.Balachandran, on 10.10.1997, 13.10.1997 and 14.10.1997, but, no such surprise inspections were actually conducted by him, at the site. Furthermore, these surprise inspections were conducted on the basis of some secret information, but, the said secret information was never reduced into writing and were never produced before the Court, during the trial. He has further argued that the CBI manual has not been followed , in this regard.
42. He has further argued that the FIR in the present case was registered on 20.10.1997, on the basis of the written complaint of Inspector P. Balachandran dated 20.10.1997. But, PW1 CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 30 of 58 Special Judge, CBI01, Central, Delhi P.Balachandran has lodged his complaint after an unexplained delay of about 7 to 10 days, from the alleged surprise inspections, which also castes a doubt on the prosecution case.
43. The Ld. Defence counsel has further argued that accused Sanjay Kumar Malhotra had performed the entire work of replacement of 271 WC pans & 271 pairs of footrests and accordingly, accused A.R. Bhati, J.E., had made the necessary entries in the measurement book No. 5895, Ex.P6, (D11) after due verification.
44. He has further argued that there are a large number of material discrepancies in the report Ex.PW.5/A and its 'Annexure A', Ex.PW5/A1, which indicates that these documents were prepared by PW13 S.K.Bansal and PW5 T.K.Mazumdar as per the wishes of the IO and the CBI officials. Furthermore, the original of 'AnnexureA', Ex.PW5/A1, was never produced before the court, during the trial and it was reported that the same was not traceable and therefore, this 'AnnexureA', Ex.PW5/A1, cannot be read in evidence, against the accused, in support of the report Ex.PW5/A. Furthermore, even the contents of 'AnnexureA', Ex.PW5/A1, indicate that the said alleged physical CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 31 of 58 Special Judge, CBI01, Central, Delhi verification was never carried out and this annexure was a false & fabricated document.
45. He has further argued that it is the admitted case of the prosecution that two quarters were having a common toilet, but, 'AnnexureA', Ex.PW5/A1, has indicated that separate toilets were existing in each quarter, which is factually incorrect. Furthermore, it is almost impossible for any expert to check or verify the work of replacement of WC pans or footrests, by occular examination only, after a lapse of about one and a half month. He has further argued that several public witnesses, who were the occupants of the various Htype quarters, have also not supported the prosecution case and have turned hostile.
46. The Ld. Defence counsel has also pointed out various discrepancies in the report Ex.PW5/A and its 'AnnexureA', Ex.PW5/A1, and has argued that these discrepancies clearly indicate that the alleged physical verifications were never conducted at the site. It is further argued by him that the AnnexureA Ex.PW5/A1, could not be proved during the trial, as only the photocopy of this document has been filed on record and the accused and their Ld. Defence counsels had raised CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 32 of 58 Special Judge, CBI01, Central, Delhi objections regarding the mode of proof of this document, during the prosecution evidence, at the appropriate stage. He has further argued that the details of the alleged physical verification of the toilets were entered in this 'AnnexureA', Ex.PW5/A1 and this annexure is the basis of the report Ex.PW5/A and in the absence of required proof of 'AnnexureA', Ex.PW5/A1, the report Ex.PW5/A, cannot be read against the accused persons.
47. The Ld. Defence counsel has further argued that no admissible evidence has come on record to prove any conspiracy between the accused persons. He has further argued that the accused have not made any false entries in any record and they have also not misappropriated any cement and all the documents and reports have been forged and fabricated by the CBI officials, to falsely implicate the accused persons in the present case.
48. The Ld. Defence counsel has also relied upon the following judgments in support of his above contentions :
(i) Balbir Singh vs. State of Haryana, reported as, AIR 1987 Supreme Court 1053;
(ii) State, Inspector of Police, Vishakhapatnam vs. Surya Sankaram Karri, reported as, 2006 Cri. L.J. 4598.
CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 33 of 58 Special Judge, CBI01, Central, Delhi Arguments on behalf of accused Sanjay Kumar Malhotra
49. Sh. Dinesh Parashar and Sh. Amit Goel, Advocates, for accused Sanjay Kumar Malhotra have also argued that the observation memo Ex.PW.1/E and the report Ex.PW.5/A and its 'AnnexureA', Ex.PW.5/A1, are all forged and fabricated documents and were prepared as per the directions of the CBI officials. They have also pointed out various discrepancies in these documents and have also pointed out various contradictions in the statements of the prosecution witnesses, to support their contentions.
50. The Ld. Defence counsels have further argued that the public witnesses are also not reliable as they have turned hostile and have not supported the prosecution case and therefore, not much reliance can be placed on their depositions to corroborate the reports Ex.PW5/A & 'AnnexureA' Ex.PW5/A1.
51. The Ld. Defence counsels have further argued that accused Sanjay Kumar Malhotra, who is the contractor in the present case, has performed and completed the entire work as mentioned in the measurement book and the same was duly verified by the CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 34 of 58 Special Judge, CBI01, Central, Delhi concerned officials of the CPWD and accordingly, he submitted the first running account bill for Rs.1,57,383/, Ex.PW2/F.
52. The Ld. Defence counsel has further argued that accused Sanjay Kumar Malhotra has completed the entire work, as per rules and has followed the various guidelines issued by the CPWD as per the CPWD Manual and therefore, he has not committed any illegality and therefore, he may be acquitted of all the charges.
OBSERVATIONS / FINDINGS
53. I have carefully perused the case file and I have given my considered thoughts to the arguments addressed by the Ld. Sr. PP for the CBI and the Ld. Defence counsels and I have also perused the various judgments, cited by them.
54. In order to prove the charges, the prosecution has examined the complainant Inspector P. Balachandran as PW1. He has deposed in the court that in the year 1997, he gave a complaint to his the then SP, CBI, for registration of the FIR against CPWD officials of Sriniwaspuri Sub Division, New Delhi, regarding the nonexecution of work, with respect to the replacement of WC CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 35 of 58 Special Judge, CBI01, Central, Delhi pans and accessories. The complaint dated 20.10.1997 has been proved on record as Ex.PW.1/A.
55. PW1 complainant Inspector P. Balachandran has further deposed that the said complaint was given on the basis of the surprise check and observations conducted in Sriniwaspuri Sub Division of CPWD on 10.10.1997, 13.10.1997 and 14.10.1997. The surprise check memos, dated 10.10.1997 and 13.10.1997, have been proved on record as Ex.PW.1/C & Ex.PW.1/D, respectively. The observation memo, dated 14.10.1997 regarding the random physical verification of various sites, in respect to the work done by the contractor accused Sanjay Kumar Malhotra, regarding replacement of WC pans in HBlock (Type1) residential quarters at Sriniwaspuri, has been proved on record as Ex.PW.1/E. As per this observation memo, 135 quarters were randomly inspected by the CBI team on 14.10.97, in the presence of independent witnesses and on physical verification, it was found that the WC pans were replaced at only 25 quarters.
56. Perusal of the record further shows that the complainant PW 1 Inspector P. Balachandran has reported in his complaint dated CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 36 of 58 Special Judge, CBI01, Central, Delhi 20.10.1997, Ex.PW.1/A, that vide Agreement No. 54/AE/4P/97 98, Ex.PW2/E, the work for replacing the damaged WC pans was awarded to the contractor, accused Sanjay Kumar Malhotra, on 16.08.1997, for an amount of Rs.62,674/, for 130 numbers of WC pans, 130 pairs of footrests and the demolishing cost. The complaint Ex.PW.1/A further states that as per the measurement book No. 5895, Ex.P6, issued to accused A.R.Bhati, J.E., 267 nos. of WC pans, alongwith the footrests, were reported to have been installed in 267 quarters at HBlock. On 29.09.1997, the contractor, accused Sanjay Kumar Malhotra, submitted the first and final bill for Rs.1,75,672/ to the Divisional Office for pass and payment alongwith the deviation statement, test check statement and recovery statement. All the said documents were certified and signed by A.R.Bhati and K.C.Wahi. The deviation from the original estimate of this work in final bill was more than 300%. It was further reported that the bill was pending for final payment.
57. The complaint Ex.PW.1/A further stated that on conducting the random physical verification, in the presence of independent witnesses G.R.Sharma and Rajender Krishan and Sh. M.L.Roy, present A.E., accused A.R.Bhati, JE and Sh. S.K.Gupta, JE, it was found that out of the total replacement of 267 WC pans, as CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 37 of 58 Special Judge, CBI01, Central, Delhi recorded in the Measurement book, only 25 WC pans were actually replaced, which works out to be less than 20% of the 135 numbers inspected.
58. The complainant, PW1 Inspector P. Balachandran has further deposed that during the surprise check, they recovered five photographs from the table drawer of accused A.R.Bhati, J.E., which contains the photographs of Phool Singh,E.E., accused A.R.Bhati, J.E. and accused Sanjay Kumar Malhotra, contractor. He has further stated that the files and the measurement books were also seized vide seizure memo Ex.PW.1/D and the same are Ex.P6 & Ex.P7 respectively (admitted documents).
59. During the trial, the photographs have been proved on record, as Ex.P1 to Ex.P5 (admitted documents). These photographs indicate that accused A.R. Bhati & Sanjay Kumar Malhotra, have visited Shimla, together, alongwith Phool Singh, E.E. The photographs Ex.P1 to Ex.P4 depicts accused A.R. Bhati and Sanjay Kumar Malhotra, whereas, photograph Ex.P5 depicts all the three persons. Furthermore, PW15 Rajender Kumar, reception clerk from Hotel Gulmarg, Shimla (H.P.), has produced CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 38 of 58 Special Judge, CBI01, Central, Delhi the photocopies of the hotel record (guest register) for 24.08.97 & 25.08.97 and has deposed that as per his hotel record, one S.K. Malhotra, resident of D1/21, Lodhi Colony, New Delhi, along with three other persons, checkedin at his hotel on 24.08.97 at about 6.30 p.m. and they checked out on 25.08.97 at about 9.00 a.m. These photographs clearly indicates that accused A.R. Bhati was well acquainted with coaccused Sanjay Kumar Malhotra and was having good friendly relations with him. These photographs have been admitted by the accused persons and it is a settled legal position that the admitted documents, need not be proved.
60. PW19, G.G.Garg, who was also posted as Executive Engineer, in CPWD, in the year 1997, has also deposed that on 23.08.1997, he alongwith Phool Singh and two other persons, visited Shimla, in a car and they stayed at Shimla for one day, on 24.08.1997. This witness was crossexamined by the Ld. Sr. PP for the CBI and during his crossexamination, he admitted that the other two persons, visiting Shimla were accused A.R.Bhati and Sanjay Malhotra. He has also admitted that he took the photograph Ex.P5, of accused A.R.Bhati, Sanjay Malhotra and Phool Singh, with his camera. He has also admitted that he got CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 39 of 58 Special Judge, CBI01, Central, Delhi the photographs developed from Deepak Colour Lab. The envelope containing the photographs has been proved on record as Ex.PW4/B.
61. Perusal of the record further shows that on the basis of the complaint Ex.PW.1/A, PW36 Shri N.N.Singh, SP, ACB, CBI, got the FIR Ex.PW.1/B registered on 20.10.1997 and on 22.10.1997, he wrote the letter Ex.PW.6/A to Shri K.K.Verma, Chief Engineer (Vigilance) CPWD Headquarters, Nirman Bhawan, New Delhi, for constituting a team of officers of proven integrity to inspect and evaluate the relevant work, claimed to have been carried out by the contractor accused Sanjay Kumar Malhotra, in the bills and to submit the expert report, in this regard. He further informed that the team of experts may also assist the IO Inspector D.K.Singh, in the present case.
62. In pursuance to the letter dated 22.10.1997, Ex.PW.6/A, PW 5 Shri T.K.Majumdar, E.E.(Vigilance) and PW13 Shri S.K.Bansal, A.E. (Vigilance) were deputed to verify and check the work done at the sites, with the assistance of the CBI officials. The SP, CBI was intimated, accordingly, vide letter dated 23.10.1997, Ex.PW6/A1. Thereafter, the physical verification of CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 40 of 58 Special Judge, CBI01, Central, Delhi the sites was conducted by a joint team and the work done in respect of three tenders vide Agreement No. 54/AE/4P/9798 (replacement of WC pan and accessories in respect of which present RC 77(A)/97DLI was registered); Agreement No. 60/AE/4P/9798 (replacement of manhole covers in HBlock in respect of which RC 78(A)/97DLI was registered); and Agreement No. 56/AE/4P/9798 (regarding replacement of SW pipes), were conducted during the period w.e.f. 05.11.1997 to 11.11.1997. A consolidated report Ex.PW.5/A alongwith its' AnnexureA (Ex.PW5/A1) and AnnexureB was submitted by PW5 Shri T.K.Majumdar, E.E., and Shri S.K.Bansal, A.E., on 20.11.1997 and was duly sent to Sh. N.N.Singh, SP (ACB) CBI, vide letter dated 20.11.1997, Ex.PW.5/B.
63. Perusal of the report Ex.PW.5/A shows that the physical verification, of various sites at residential quarters in HBlock Sriniwaspuri, pertaining to the present case were conducted on 06.11.1997, 07.11.1997 and 11.11.1997, by PW5 Shri T.K.Majumdar & PW13 Shri S.K.Bansal, in the presence of PW 14 Shri Maninder Lal Roy; PW6 Inspector D.K.Singh; PW28 SI Rajesh Prasad; and PW29 SI Brajesh Kumar and the accused A.R.Bhati. The report Ex.PW.5/A further mentions that the CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 41 of 58 Special Judge, CBI01, Central, Delhi tender, vide agreement No. 54/AE/4P/9798, Ex.PW2/E, for replacement of WC pans and accessories was awarded to contractor accused Sanjay Kumar Malhotra, for replacement of 130 pairs of footrest. But, in the measurement book No. 5895 Ex.P6, the measurements for replacement of 267 numbers WC pans and 267 pairs of footrest in 'H Block and 4 numbers WC pans and 4 pairs of footrest in 'B' Block, Nehru Nagar have been recorded. It has been specifically mentioned that in actual, only 25 numbers WC pans and 26 pairs of footrests were found replaced, as per AnnexureA (Ex.PW.5/A1) of the report.
64. Perusal of the AnnexureA (Ex.PW.5/A1), also shows that the residential quarters at HBlock, Sriniwaspuri were inspected and physically verified on 06.11.1997, 07.11.1997 and 11.11.1997, for replacement of WC pans and footrests. In order to prove this physical verification report Ex.PW.5/A and its AnnexureA (Ex.PW.5/A1), and to prove that the work as mentioned in the measurement book No. 5895, Ex.P6, was not completely done, the prosecution has examined six witnesses, namely, PW5 Sh. T.K.Majumdar, E.E.; PW6 Inspector D.K.Singh; PW13 Sh. S.K.Bansal, A.E; PW14 Sh. M.L.Roy, A.E.; PW28 Sh. Rajesh Prasad and PW29 SI Brajesh Kumar.
CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 42 of 58 Special Judge, CBI01, Central, Delhi Out of these six witnesses, PW5 Shri T.K.Majumdar, E.E. (Vigilance) and PW13 Shri S.K.Bansal, A.E. (Vigilance), were the experts, who were appointed by the Chief Engineer, CPWD Shri K.K. Verma, in response to the letter dated 22.10.1997 of Shri N.N.Singh, SP, CBI.
65. PW5, T.K.Majumdar has stated in the court that he was deputed by his office to inspect and check the work done at H type quarters, Sriniwaspuri and Nehru Nagar quarters, alongwith the CBI team and after physical verification of the quarters, regarding the execution of work, he submitted his report. He has proved his report as Ex.PW.5/A, its AnnexureA as Ex.PW.5/A1 and the forwarding letter as Ex.PW.4/B. He has further deposed that in the checking, he found that only 25 WC pans had been replaced in the quarters. Rest of the WC pans had not been replaced. About 26 pairs of footrest were found to be replaced in 4P, Sriniwaspuri.
66. But, in his crossexamination, several material contradictions and discrepancies have come on record. During his cross examination, this witness has admitted that the WC and toilet was common, either for two houses or for more than two houses and CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 43 of 58 Special Judge, CBI01, Central, Delhi on seeing the WC, it could not be known, whether it was an old one or a new one. He has further stated that he prepared his report on the spot, but, the inspection memo Ex.PW.5/A1 was not prepared by him and the same was prepared by Sh. S.K.Bansal, AE, at the spot. He has further stated that public witnesses were joined from the locality at the time of inspection, but signatures of none of the public persons were obtained by him on the inspection report. He has again stated that his report Ex.PW.5/A was prepared by him in the office and not at the spot. He had further stated that he prepared the inspection report on 07.11.1997, but, he again said that no proceedings were written by him on 07.11.1997 or 11.11.1997. He has further admitted that the quarter no. B102 and B19, Nehru Nagar, were not personally verified as the same were found locked. He has also admitted that the measurement book was available with them at the time of inspection, but they had not compared the actual position at the site, with the measurement book, at the time of inspection.
67. PW13 Shri S.K.Bansal, A.E. (Vigilance) CPWD, New Delhi has also stated that he was deputed by his department to assist PW5 Shri T.K.Majumdar, for inspection / checking of work at CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 44 of 58 Special Judge, CBI01, Central, Delhi Sriniwaspuri, New Delhi, regarding the annual repair and maintenance of 648 HType Quarters at Sriniwaspuri and 135 TypeIII quarters at Nehru Nagar, New Delhi, during 199798 (subhead replacement of damaged water closet pans), executed in 4P subdivision, Sriniwaspuri. He has further deposed that he alongwith Mr. Majumdar, Mr. Roy Asstt. Engineer, Mr. Gupta J.E., accused A.R.Bhati and some CBI officials inspected the spot and he prepared the AnnexureA, Ex.PW.5/A1. He has also identified his signatures on the report Ex.PW.5/A. He has further stated that both the reports were sent to CBI through forwarding letter dated 20.11.1997 (Ex.PW.5/B).
68. The cross examination of this witness has also indicated various shortcomings and discrepancies in 'AnnexureA', Ex.PW.5/A1. In his crossexamination, this witness has admitted that AnnexureA, Ex.PW.5/A1 is the photocopy of the original and the original thereof was submitted by him to his senior officer Sh. T.K.Majumdar (PW5). He has further stated that the original of Ex.PW.5/A1 was bearing signatures of all the officers present at the time of the inspection, but, photocopy of AnnexureA, Ex.PW.5/A1 indicates that it bears the signatures of only this witness and the signatures of Shri T.K.Majumdar (PW5). In this CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 45 of 58 Special Judge, CBI01, Central, Delhi document, the signatures of any CBI official are not there. This witness has also shown ignorance about the existence or availability of the original of Ex.PW.5/A1. He has further stated that when the surprise inspection was conducted, they have been noting down the house numbers and simultaneously tallying the same with measurement Book Ex.P1, Ex.P2 & Ex.P6. But, this deposition is in contradiction to the deposition of PW5, who had categorically stated that the measurement book was not checked / tallied at the time of inspection.
69. During his crossexamination, PW13 S.K.Bansal has also admitted that the quality and quantity of the material used in the structure cannot be found out without dismantling the same and similarly, the hidden items cannot be checked without digging the same. He has admitted that during their inspection, they had neither dismantled any structure nor dug up underneath material. In respect of the Nehru Nagar quarters, bearing Qr. No. B31, B 86, B102 and B19, he has deposed that the report dated 11.11.1997 mentions the fact that these quarters were found mostly locked, not verified and it was mentioned that the WC pans and footrests were not replaced. He has admitted that this report was written incorrectly, inadvertently and it was CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 46 of 58 Special Judge, CBI01, Central, Delhi inadvertently mentioned that the WC pans and footrests were not replaced. He has further admitted that they had deviated in mentioning the quarter numbers in their report Ex.PW.5/A1, as the same were not being reflected in measurement Book No. 5895, Ex.P6. He has also admitted that the report was submitted only on the basis of the physical observation and no test was carried out. He has further admitted that 'Ptrap' is a hidden item and he gave his report regarding nonreplacement of 'Ptrap' on the basis of his visual observation regarding WC pans. He has admitted that he had not given any observation regarding the 'Ptrap' replacement. He has also admitted that an amount of Rs.59,997/ was mentioned towards the cost of 'Ptraps' which was additional amount, being the price of extra items, i.e. 'Ptrap', which was sanctioned by the competent authority. He has further admitted that no percentage of work done has been mentioned in his report Ex.PW.5/A and AnnexureA, Ex.PW.5/A1 and he had given the figure of consumption of cement at 139 kgs., merely on theoretical basis.
70. PW6, SI D.K.Singh has deposed that on 20.10.1997, the present case was registered on the complaint of complainant Inspector P. Balachandran and was entrusted to him for further CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 47 of 58 Special Judge, CBI01, Central, Delhi investigation. He has also deposed that vide letter dated 22.10.1997 (Ex.PW.6/A), CPWD was requested to constitute a vigilance team for physical verification of the work. He has further deposed that vide reply Ex.PW.6/A1, it was informed that Sh. T.K.Majumdar and S.K.Bansal had been nominated for inspection and evaluation of the work.
71. PW6 SI D.K.Singh has further deposed that he received the documents from Inspector P. Balachandran, vide seizure memo Ex.PW.1/F and conducted inspection of work i.e. WC pans and footrests in HBlock Quarters at Sriniwaspuri and BBlock Quarters at Nehru Nagar, New Delhi, on 06.11.1997, 07.11.1997 and 11.11.1997. He has further stated that 'AnnexureA' Ex.PW5/A1 was prepared by Shri S.K.Bansal, A.E. (Vigilance) and at the time of inspection, Shri T.K.Majumdar, E.E.; Shri M.L.Roy, A.E. and accused A.R.Bhati, J.E., were also present. He has also deposed that the memo was prepared progressively during the inspection and the inspection was done on the basis of the entries recorded in the measurement book.
72. In the crossexamination of this witness also, several material contradictions have come on record. He has also admitted that CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 48 of 58 Special Judge, CBI01, Central, Delhi the physical verification of WC pans at Nehru Nagar could not be carried out as the quarters were found locked. He has also stated that during investigations, he had gone through the CPWD manual, but, he was under the impression that 'Ptrap' had to be replaced, as the same might get broken, while replacing the WC pans. He has also admitted that the CBI also has a technical wing and they carry out technical tests to find out such facts, relating to the technical aspects, but, no officer of the technical division of the CBI had accompanied them to Sriniwaspuri or Nehru Nagar, during the inspections.
73. PW14 Shri Manindra Lal Roy, A.E. has also deposed that in the month of November, 1997, physical checking of the work was done by Shri T.K.Majumdar, A.E. of CPWD and one Mr. Bansal, A.E., alongwith the CBI officials, in respect of CGHS Dispensary and maternity centre and community centre and 648 Htype quarters at Sriniwaspuri, New Delhi. But, this witness has not given any account of the physical inspection of the work done in the month of November, 1997 i.e. on 06.11.1997, 07.11.1997 and 10.11.1997. He has also not deposed anything about the preparation of AnnexureA (Ex.PW.5/A1) and the subsequent report, dated 20.11.1997, Ex.PW.5/A. CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 49 of 58 Special Judge, CBI01, Central, Delhi
74. Several material discrepancies have come on record during the crossexamination of this witness also. During his cross examination, he had deposed that he was not remembering whether he was also a member of the CBI team. He has admitted that during his presence, no digging was done by the CBI officials at the site. He has further stated that to verify whether any underground repairs had been carried out or not, it was not possible even for central design lab of CPWD to tell. Without digging, it was not possible to ascertain as to how old any particular article was. He has also admitted that he had not checked and verified the work done and the repairs done, personally.
75. PW28, SI Rajesh Kumar Prasad and PW29, SI Brajesh Kumar, who allegedly accompanied Inspector D.K.Singh of CBI and Shri T.K.Majumdar, A.E. and Shri S.K.Bansal, A.E. of CPWD, have not deposed anything about the physical verification of the work done, in the month of November, 1997. Both these witnesses have deposed only about the surprise checks and inspections by the CBI team on 09.10.1997, 13.10.1997 and 16.10.1997. None of these witnesses have deposed about the CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 50 of 58 Special Judge, CBI01, Central, Delhi alleged physical inspections conducted on 06.11.1997, 07.11.1997 and 11.11.1997. None of these witnesses have deposed anything about the preparation of either the AnnexureA Ex.PW5/A1 or the report Ex.PW.5/A.
76. Perusal of AnnexureA, Ex.PW.5/A1 and the report Ex.PW.5/A shows that the alleged inspections of the toilets, attached with the HType quarters at Sriniwaspuri were allegedly conducted on 06.11.1997 and 07.11.1997. Whereas, the toilets attached with the quarters at BBlock, Nehru Nagar, were allegedly inspected on 11.11.1997. The AnnexureA, Ex.PW.5/A1, could not be proved during the trial, in accordance with law, as the original of this document was never produced before the court. Furthermore, this document bears the signatures of PW5 T.K.Majumdar, EE and PW13 S.K.Bansal, AE, only. This document does not bear the signatures of any other witness or the CBI officials, who were also the members of the team, which conducted the inspections on 06.11.1997, 07.11.1997 & 11.11.1997.
77. Perusal of Annexure1, Ex.PW5/A1, further indicates that the numbers of two quarters have been mentioned against the CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 51 of 58 Special Judge, CBI01, Central, Delhi inspection of one common toilet, attached with these two quarters, which were inspected on 06.11.1997. But the number of only one quarter has been mentioned against the inspection of the common toilet, for a large number of quarters, inspected on 07.11.97. However, the numbers of two quarters have been again mentioned at several places, in the end of this physical verification report, dated 07.11.1997. It is further observed that the number of a single quarter has been mentioned against the toilets inspected in BBlock Nehru Nagar on 11.11.1997. Since a toilet was common for two quarters in both the HType quarters at Sriniwaspuri, as well as in BBlock, Nehru Nagar, the inspection team should have mentioned the numbers of both the quarters in the alleged inspection report dated 07.11.1997 and 11.11.1997, against all the toilets inspected by them, as done in initial part of this AnnexureA.
78. Perusal of the measurement Book No. 5899 Ex.P6 also indicates that the number of a single quarter has been mentioned in it, regarding one common toilet attached with two quarters and therefore, it appears that the same pattern has been followed by the inspecting team by copying the particulars from the measurement book in this inspection report on 07.11.1997 and CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 52 of 58 Special Judge, CBI01, Central, Delhi 11.11.1997.
79. Perusal of AnexureA, Ex.PW.5/A1, further indicates that a large number of quarters were found locked during the alleged inspections, but still, it has been reported that the WC pans and footrests were not replaced. Furthermore, the quarters at Sriniwaspuri and Nehru Nagar have been assigned odd numbers on one side and even numbers on the other side and one toilet is common to two quarters, who are having either the odd numbers or the even numbers. But, the AnnexureA, Ex.PW.5/A1, has mentioned the odd and even quarter numbers simultaneously to two quarters, which have been allotted a common toilet. This court has also failed to understand, as to why the various quarters were visited or physically inspected by the team, when these common toilets were situated outside the quarters. For inspection of toilets, about replacement of WC pans and the footrests, there was no need, for the inspecting team to enter the quarters, as the toilets are admittedly situated outside the quarters. The AnnexureA, Ex.PW.5/A1, is therefore, factually incorrect and is a false document. It appears that the same has been prepared by PW13 S.K. Bansal and also signed by PW5 T.K. Mazumdar, as per their own whims and fancies or as CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 53 of 58 Special Judge, CBI01, Central, Delhi directed by the CBI officials. AnnexureA, Ex.PW.5/A1 is the basis of the report Ex.PW.5/A and therefore, the report Ex.PW.5/A also becomes doubtful and unreliable. Furthermore, the report Ex.PW.5/A does not mention anything about the consumption of cement, for the replacement of WC pans and the footrests.
80. Perusal of the record further shows that there is no other witness, to prove on record, that the accused A.R. Bhati and Sanjay Kumar Malhotra had conspired together with accused K.C. Wahi (since deceased), for cheating CPWD, by not completing the entire tendered work and by making false records. The witnesses, other than those discussed above, are only formal witnesses. PW2 A. Vishwanathan, Asst. Accounts Officer in CPWD PDivision, PW11 Rajender Singh Rawat, Auditor at P Division of CPWD, PW12 Kirpal Singh Asst Engineer at 4P Sub Division of CPWD at Sriniwaspuri, PW17 Sukan Pal Singh Verma, Asstt. Surveyor of Work at PDivision at Sadiq Nagar office of CPWD, New Delhi, have deposed about the tendering process, the preparation of the bills, it's checking, verification and forwarding by the concerned J.E. & A.E., to the Executive Engineer for passing and making the payment to the concerned CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 54 of 58 Special Judge, CBI01, Central, Delhi contractor. These witnesses were not concerned with the investigations of the case and were never involved in the process of physical verification of the tendered work.
81. Perusal of the record further shows that PW4 Rajender Krishan, PW10 Govind Ram Sharma, PW20 S.K. Gupta, PW21 N.K. Jain & PW27 Inspector Virender Thakran, are also formal witnesses, as they had accompanied the CBI team constituted by complainant PW1 P. Balachandran, DSP, for conducting surprise check and observations at Sriniwaspuri Sub Division of CPWD on 10.10.97, 13.10.97 & 14.10.97. These witnesses were not the members of the CBI team, which conducted physical verification of the work done in the month of November, 1997, during the period w.e.f. 05.11.97 to 11.11.97. The surprise check and observations on 10.10.97, 13.10.97 & 14.10.97, were conducted by DSP P. Balachandran, on some source information and he conducted these surprise checks and observations on 'adhoc' basis. The entire work done in respect of various agreements were not physically verified on the aforesaid dates. These surprise checks and observations were conducted only for the purposes of verification of the source information and on the basis of these surprise checks and observations, the complaint CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 55 of 58 Special Judge, CBI01, Central, Delhi Ex.PW1/A was lodged. The aforesaid witnesses have not participated in the physical verification of the work done, which was conducted in the month of November, 1997.
82. Perusal of the record further shows that PW3 Jiten Singh, PW7 Suman Jaiswal, PW8 Jagmohan Singh Aswal, PW9 Sushma Devi, PW16 Smt. Hansi Devi, PW22 Indu Nanda, PW 23 Smt Shyama, PW24 Smt Asha, PW25 S.K. Bhoumik, PW30 Smt. Kamla PW31 Janki Kandpal, PW32 Prem Lata, PW33 Smt. Poonam & PW34 Smt. Anjana Devi, are also formal witnesses as they were the residents of various HType quarters at Sriniwaspuri, during the relevant period in the year 1997. These witnesses have deposed that the WC pans of their quarters were not replaced, but, they have also deposed that they were never joined by the CBI, during the investigations and their statements were never recorded by the CBI.
83. PW18 N.C. Kapoor is also a formal witness and he has only identified the signatures of accused K.C. Wahi (since deceased) on the tender opening register Ex.PW2/C. PW26 Dr. Rajender Singh, Director, CFSL, New Delhi, has examined the specimen handwriting and signatures of the accused persons. But, the CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 56 of 58 Special Judge, CBI01, Central, Delhi accused persons have already admitted their signatures and writings on various documents and during the course of arguments, they had stated that the entire tendered work, as mentioned in the measurement book Ex.P6 was completed by them and no false entries were made by them in the measurement book. But, during the trial, it could not be established on record, beyond a shadow of doubt that the entire tendered work was never completed.
RESULT
84. In view of above discussions, I am of the considered opinion that the prosecution has failed to prove its' case against the accused persons, beyond a shadow of doubt. In the present case the benefit of doubt has to be extended to the accused persons. Accordingly, both the accused are hereby acquitted of all the charges for all the offences, as framed against them on 09.05.2005, in pursuance to the order on charge dated 09.05.2005.
85. Their bail bonds are cancelled and sureties are discharged.
The accused A.R. Bhati and Sanjay Kumar Malhotra have already submitted their bail bonds, under Section 437A Cr.P.C CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 57 of 58 Special Judge, CBI01, Central, Delhi and the same have already been accepted on 26.04.2016. The same shall remain in force for a period of six months from today.
86. The accused are also directed to appear before the Appellate Court, if any summons are issued to them by the Appellate Court, in any appeal, if preferred by the prosecution against their acquittal by this court.
It is ordered accordingly.
File be cosigned to record room, after due compliance.
Announced in open Court on 9th day of September, 2016 BRIJESH KUMAR GARG Special Judge:CBI01 Central District. Delhi CBI Vs. K.C.Wahi etc. (CC No. 36/2008) Page 58 of 58 Special Judge, CBI01, Central, Delhi