Delhi District Court
Rc No. 26(A)/2006/Cbi/Acb/N.D vs (A1) Sh. Ramesh Kumar Bhatia on 15 September, 2014
1 RC No. 26 (A)/2006/CBI/ACB/N.D
IN THE COURT OF SHRI SANJEEV JAIN: SPECIAL JUDGE (PC
ACT), CBI03, SOUTH DISTRICT, SAKET COURT, NEW DELHI
CC No. 01/2012
RC No. 26(A)/2006/CBI/ACB/N.D
U/s 120B r/w section 420/468/471 IPC and
Section 13 (2) r.w. 13 (1) (d) of Prevention of Corruption Act, 1988
Central Bureau of Investigation
Versus
(A1) Sh. Ramesh Kumar Bhatia
s/o Dr. D.R Bhatia
r/o B3/78, Sector16, Rohini,
Delhi85
(A2) Sh. Sanjay Sahini
s/o Sh. Om Parkash Sahini
r/o Bel Watika, near Gurudwara,
Daltonganj, Jharkhand.
(A3) Sh. Badri Naryan Singh
s/o Late Sh. Sarju Singh
r/o RD160/B, Dharampura Extn.
Najafgarh, New Delhi110043
Permanent address: Village Post
Patar, DistrictGhazipur, UP
2 RC No. 26 (A)/2006/CBI/ACB/N.D
(A4) Sh. Khwaja Mohd. Abbas Khan
s/o Mohd. Shahabuddin Khan
r/o Muslim Nagar, Daltonganj,
Palamu, Jharkhand.
(A5) Smt. Pushpa Singh
s/o Sh. Badri Narayan Singh
r/o RD160/B, Dharampura Extn.
Najafgarh, New Delhi.
Permanent Address: Village Post
Patar DistrictGhazipur, UP
Date of FIR : 29.06.2006
Date of filing of Chargesheet : 02.01.2009
Arguments heard on : 30.08.2014
Date of judgment : 15.09.2014
Appearance:
For prosecution : Sh. S. Islam, Ld.Sr.PP for CBI
For accused : Sh. Gaurav Dalal, advocate for A1 Ramesh Kr.
Bhatia
Ms. Kanika Chauhan, Advocate for A2 Sanjay
Sahani and A4 Khawja Mohd. Abbas.
Sh. Mohd. Talat, advocate for A3 Badri Naryan
and A5 Pushpa Singh.
3 RC No. 26 (A)/2006/CBI/ACB/N.D
JUDGMENT
BRIEF FACTS OF PROSECUTION CASE
1. Chargesheet has filed by CBI against Ramesh Kumar Bhatia (A1), Sanjay Sahani (A2), Badri Narayan (A3), Khawaja Mohd. Abbas (A4) and Smt. Pushpa (A5) (hereinafter referred as A1, A2, A3 , A4 and A5 respectively and /or by name).
1.1 Briefly, it is disclosed in the report under Section 173 Cr.P.C that the above mentioned case was registered by the CBI on the basis of source information on the allegations that accused persons entered into a conspiracy with the object of dishonestly defrauding Kendriya Vidyalya Sangthan in the matter of award of labour contract, supply of building material and work for earth filling for construction of 10 numbers of temporary class rooms of Kendriya Vidyalya, Sector25, Rohini, Delhi (hereinafter referred as "Kendriya Vidyalya") and A1 Ramesh Kumar Bhatia, the principal of Kendriya Vidyalya in his capacity as public servant intentionally favoured A2 Sanjay Sahni, A3 Badri Narayan, A4 Khawaja Mohd Abbas, A5 Pushpa and their firms by allowing participation of dummy firms. The accused persons in pursuance to 4 RC No. 26 (A)/2006/CBI/ACB/N.D criminal conspiracy caused wrongful gain for themselves and corresponding loss to Government by claiming bills for exorbitant quantity of material purportedly purchased from M/s P.S.B. Construction whereas actual material used in the construction was much lesser. 1.2 As per the facts disclosed in the chargesheet, on 15.12.2003, Shri Sudhir Mandal, the then assistant commissioner, Kendriya Vidyalya communicated sanction of funds for construction of 10 temporary classrooms and cheques of Rs.7 lacs and Rs.20 lacs were remitted to Kendriya Vidyalya. A1 Ramesh Kumar Bhatia, the then principal Kendriya Vidyalaya sent letters to a obscure newspaper, namely, "Hum aur Aap (Hindi)" to publish a tender notice for the construction of temporary classrooms. Tender notice was published in the said newspaper on 8.01.2004. A1 Ramesh Kumar Bhatia constituted an executive committee comprised of Ms. Kalpana Pandey, Ms.Sumedha Megnon, Ms.Meenakshi and Ms. Alka as teacher members and Shri A.K.Sharma was included as a member from the parents quota. A1 Ramesh Kumar Bhatia was also the members of the said committee. As per allegations, A1 Ramesh Kumar Bhatia threatened the teacher members with transfer to NorthEastern States and asked them to sign all documents related to construction of 5 RC No. 26 (A)/2006/CBI/ACB/N.D temporary classrooms.
1.3 On the basis of the tender notice published in the newspaper, 4 firms namely, M/S P.S.B. Constructions, Global Constructions, M/S Gagandeep Builders and M/s H.K.A Trading company participated in the tender for labour contract, earth filling and supply of material. As per the allegations, two firms, namely, M/S Gagandeep Builders and M/S H.K.A Trading company were nonexistent and fake companies. Other two firms i.e M/S P.S.B. Constructions and Global constructions belong to the same persons i.e., Badri Barayan (A3), Smt. Pushpa Singh (A5), Khawaja Mohd. Abbas (A4). As the rates offered by M/s P.S.B. Constructions and Global construction were lowest, work order were awarded for supply of material to M/S P.S.B. Constructions, for earth filling to M/S P.S.B. Construction and for labour constract to Global Constructions. 1.4 As per allegations, one of the quotation submitted by M/S H.K.A Trading Company (nonexistence firm) for earth filing was verified by (A5) proprietor of M/S P.S.B constructions. The work was carried out by abovementioned firms and after construction of classrooms, same was handed over to (A1). After completion of work, bills were submitted for payments and accordingly, payment to the tune of Rs.2842878/ was 6 RC No. 26 (A)/2006/CBI/ACB/N.D released to the account of M/S P.S.B. Constructions and Global Constructions.
1.5 It is concluded in the chargesheet that all the five accused entered in the criminal conspiracy and caused wrongful loss to the Government by way of illegal award of contract to the firms belonging to A2, A3 and A5 and in order to facilitate the conspiracy, A5 forged one of the quotation of a fake firm. During investigation, the opinion of GEQD was taken in respect of the forged documents and signatures of various persons on incriminating documents and positive opinion has been given by GEQD in respect of disputed handwritings/signatures. 1.6 In substance, it is alleged that from the facts and circumstances of the case, commission of offence by accused persons u/s 120 (b) r.w. 420, 468 and 471 of Indian Penal Code (in short " IPC") and section 13 (2) r.w. 13 (1) (d) of Prevention of Corruption Act, 1988 (in short "P.C Act") has been disclosed.
2 After filing of chargesheet on 02.01.2009, copies were supplied to accused persons in accordance with section 207 Cr.PC. After hearing arguments, order on charge was passed on 16.03.2013 and the charges were framed on 15.04.2013 against all five accused for the offences u/s 7 RC No. 26 (A)/2006/CBI/ACB/N.D 120B of IPC r.w section 420,468, 471 IPC and section 13 (1)(d) r.w section 13 (2) P.C Act. Separate charge was also framed against accused Ramesh Kumar Bhatia (A1) for the offence u/s 13 (2) r.w. 13 (1) (d) of P.C Act. All the accused pleaded not guilty and claimed trial. 3 In order to prove its case, prosecution has examined as many as 20 witnesses. The birds eye view of the statement of witnesses is as follows: 3.1 PW1 Sh. Yogesh Kumar Sharma was the Editor of Hindi daily newspaper "Hum Aur Aap" . He stated that fax message dated 07.01.2004 was received in his office from A1 and accordingly advertisement was published in newspaper "Hum Aur Aap" in relation with the tender notice for construction of class rooms. PW1 also stated that payment of Rs.1250/ was received by his office as publication charges. He proved the relevant portion of advertisement in newspaper as Ex.PW1/A (D7). PW1 also stated that in the year 2004, the said newspaper was circulated (about 35000 copies per day) in Delhi and outside Delhi.
3.2 PW2 Arvind Kumar Sharma, Executive Engineer, DDA office was one of the nominated member from parents quota in Vidalaya Management Committee (in short "VMC"). PW5 Smt. Sumedha, PW6 Smt. Meenakshi, PW7 Smt. Poonam Narang and PW8 Smt.Alka Chawla, 8 RC No. 26 (A)/2006/CBI/ACB/N.D were the teachers members of VMC. All these witnesses mainly stated that they singed the various documents during tender process as per the instructions/request of A1.
3.3 PW9 Sh. Bhoop Singh was Primary Teacher in Kendriya Vidalaya. He stated that one day when he was teaching in class room, he was called in office of Sh. N.K Srivastav, UDC who asked him that A1 had instructed him to sign comparative statements Ex.PW2/E , Ex.PW2/J and Ex.PW2/N and accordingly, he signed the abovementioned comparative statements. He also stated that his specimen signatures Ex.PW9/A (S35 to S39, four pages of D54) were taken during investigation.
3.4 PW14 Sh. S. Wali was Superintendent of Regional Office of Kendriya Vidalaya Sangathan. He stated that Sh. Sudhir Modawal, Assistant Commissioner in Kendriya Vidalaya Sangathan has already expired in the year 20132014. He identified the signature of Sh. Sudhir Modawal on Ex.PW4/A (D6) and by this letter sanction was granted on 15.12.2003 for construction of ten temporary class rooms in Kendriya Vidalaya, Sector25, Rohini. PW14 also identified the signatures of Ms. Indu Goswami on Ex.PW14/A (D42) to prove that by this letter two 9 RC No. 26 (A)/2006/CBI/ACB/N.D relieving orders of Sh. N.K Srivastav, UDC were sent to CBI. PW14 further proved Ex.PW14/B ( part of D42) signed by A1 i.e the relieving order of Sh. N.K Srivastav, UDC for his joining in the office of Assistant Commissioner, Kendriya Vidalaya Sangathan. PW14 further proved Ex.PW14/C (part of D42) signed by Sh. Sudhir Modawal i.e letter dated 28.01.2004 to prove the relieving order of Sh N.K. Srivastav, UDC for his joining in the office of Kendriya Vidalaya, Sector25, Rohini on 29.01.2004. PW14 also proved Ex.PW14/D (D55) signed by Sh. G.R Dua in respect of consultancy report on structural adequacy/safety of school building. During cross examination, PW14 admitted that power to transfer a UDC in Kendriya Vidalaya Sangathan/School was initially vested in Assistant Commissioner, Regional office and thereafter, it was vested in the head office.
3.5 PW18 Sh. N.K Srivastava was UDC in Kendriya Vidalaya. He stated that he declined to prepare comparative lists of tenders as it was not in accordance with rules and the tender notice was required to be published in "National Newspaper" for the work of more than Rs.2 lakhs. He also stated that when he was called in the office, one Mr. Sahani, owner of a construction agency was also sitting in the office of A1. He 10 RC No. 26 (A)/2006/CBI/ACB/N.D further deposed that he was transferred from Kendriya Vidalaya, sector 25 to Regional office and remained in regional office till 28th / 29th January, 2004 and thereafter, he was again transferred to the same school. PW18 stated that he was attached to regional office for the period of 25 days with the view to keep him out from the entire tender process and construction work as he was not ready and willing to comply with the directions of A1 in violation of rules. He also stated that bill Ex.PW5/A1 (D33) of M/S Global Construction Consultant dated 02.06.2004 was processed by him on the instructions of A1, but he personally did not verify about the condition of different works, labour charges and supply of material. PW18 also stated that his specimen signature Ex.PW18/A (part of D54 i.e S59 to S68) were taken during investigation. He proved cheques Ex.PW17/C1 to Ex.PW17/C7 (D34 to D40) signed by A1 and stated that through these cheques, payments were released to the parties in respect of construction work of class rooms. In his cross examination, he stated that no written objection was received from any superior authority of Kendriya Vidalaya Sangathan in respect of tender notice in newspaper "Hum Aur Aap". He further stated that it was his duty to check the rates and calculations of the bills. The 11 RC No. 26 (A)/2006/CBI/ACB/N.D committee of teachers was required to certify the completion of work/supply of material and on the basis of verification, the bills were being processed by him and were finally passed by A1. PW18 deposed that there was no separate department to verify the bills pertaining to construction. During cross examination, he also admitted that he did not lodge any complaint to any senior officer in respect of publication to tender notice in local newspaper instead of national newspaper. PW18 admitted that power to transfer him was not vested in A1 and he was attached to R.O as per order of Assistant Commissioner which was a routine attachment.
3.6 PW3 Sh. S.P Jain, VATO from department of Trade and Taxes stated that vide letter Ex.PW3/A (D51), he furnished the information to IO that as per record of his office and enquiry in this regard M/S Gagandeep Builders was not registered in ward no.62 and M/S H.K.A Trading Company was not existing in the area of the said ward. Similarly, PW16 Smt. Nirmaljeet Kaur, Vigilance Officer from department of Trade and Taxes stated that vide her letter Ex.PW16/A (D52), she informed the IO that H.K.A Trading Company was not registered in the department of Trade and Taxes.
12 RC No. 26 (A)/2006/CBI/ACB/N.D3.7 PW4 Sh. Jagbir Singh, Assitant in Kendriya Vidalaya Sangathan, Head Quarter mainly deposed about the rules and procedure pertaining to the management of Kendriya Vidalaya. He stated that for monitoring day to day affairs of Kendriya Vidalaya a committee called " Vidalaya Management Committee" (in short "VMC") is constituted and the Principal of concerned Kendriya Vidalaya worked as Secretary of the VMC. In VMC, one senior teacher of the school, one educationist and one member from the parents of students are also involved. He further stated that the major construction work are monitored/ executed by head office and small construction work are supervised and executed by Principal of Kendriya Vidalaya being Secretary of VMC. In respect of small projects, VMC worked through sub committee i.e Executive and Purchase Committee. PW4 stated that in construction work up to Rs.2 lacs, sealed quotation are invited whereas in the work of more than Rs.2 lakhs, the tenders are invited through wide publicity in newspapers and other means. He proved sanction order dated 15.12.2003 Ex.PW4/A (D6) signed by Sh. Sudhir Modawal, Assistant Commissioner of Delhi region of Kendriya Vidalya. Vide letter Ex.PW4/A, the sanction was granted for construction of ten temporary class rooms.
13 RC No. 26 (A)/2006/CBI/ACB/N.D3.8 Pw7 Smt. Poonam Narang, LDC, Kendriya Vidalya stated that document Ex.PW5/D are tender invitation forms pertaining to M/S PSB constructions, M/S Gagandeep Builders and M/S H.K.A Trading Company and column of same are filled by her are in her own handwriting on instruction of A1. She also stated that Ex.PW2/E (D20) i.e comparative statement for construction of rooms and varandah pertaining to M/S Gagandeep Builders, H.K.A Trading Company and M/S Global Constructions; Ex.PW2/J (D24) i.e list of comparative statements for earth filling in class rooms and varandah of M/S PSB Constructions, M/S H.K.A Trading Company and M/S Gagandeep Builders; and Ex.PW2/N (D28) i.e comparative statement for construction of rooms with Varandah pertaining to M/S Gagandeep Builders, H.K.A Trading and M/S PSB constructions were put up by her before A1 with her notes mentioned in "red ink". She further stated that her specimen signatures/handwriting Ex.PW7/A (D54 , internal page 35 to 39) and Ex.PW7/A1 colly (D54 , internal page 98 to 100) were taken during investigation. 3.9 PW10 Jagdish Chander was Postman. He proved envelope Ex.PW10/A (D50) with his endorsement. He stated that he made enquiries from the owner Sh. Sanjay Goel and one resident Smt. Arvinder 14 RC No. 26 (A)/2006/CBI/ACB/N.D Kaur and they told that firm in the name of H.K.A Trading Company was not existing at GH14/366. Another postman PW13, Sh. Om Parkash proved his endorsement on Ex.PW13/A (D49) addressed to M/S Gagandeep Builders. He stated that at the time of his visit, the apartment i.e quarter no.26A, Sunder Apartments, Paschim Vihar, New Delhi was vacant and on enquiry he came to know that office of M/S Gagandeep Builders was not located at above mentioned address. 3.10 PW11 Sh. B.C Joshi, Executive Engineer, CPWD proved his inspection report dated 09.02.2007 Ex.PW11/A (D2), calculation sheet Ex.PW11/B (part of D2) and physical inspection report dated 26.12.2006 Ex.PW11/C. As per the report, about 1,25,000 bricks were used in construction.
3.11 PW12 Sh. Rajesh Rana was Architect. He stated that he signed completion certificate Ex.PW12/A in his office on the request of A1 but he never supervised the work. He also stated that he received his professional fee of Rs.5000/or Rs.6000/ from (A1) . 3.12 PW15 Sh. S.N. Sinha, Professor (retired), Department of Civil Engineer, IIT, Delhi proved his report Ex.PW14/D (D55). He stated that he was approached by Kendriya Vidalaya to inspect one of its school 15 RC No. 26 (A)/2006/CBI/ACB/N.D in respect of construction of temporary class rooms and after inspection, he submitted the report Ex.PW14/D dated 22.03.2006. During cross examination, PW15 admitted that he did not assess the estimated cost of construction. He also stated that there were ten temporary class room and generally, in such constructions, rich specifications are not used. PW15 further stated that he did not verify the budget of the construction of class rooms. PW15 could not remember whether he asked Principal or any other staff member of the school about details of budgetary provisions in respect of temporary class rooms.
3.13 PW19 Dr. Sh. Ahmed was handwriting expert from CFSL and he proved his report Ex.PW19/A. 3.14 PW20 Manish Kumar Upadhaya, Inspector, CBI was the Investigation Officer (in short "IO"). He stated that permission was granted by the court to investigate the case vide order Ex.PW20/A (D55). He also proved FIR Ex.PW20/B (D1); Chargesheet Ex.PW20/C; production cum seizure memo dated 12.10.2006 Ex.PW20/D (D5); letter dated 10.01.2008 received from Manager of Punjab and Sindh Bank Ex.PW20/E; letter dated 18.12.2007 received from Manager, Bank of Maharastra Ex.PW20/F; letter dated 31.08.2007 received from Branch 16 RC No. 26 (A)/2006/CBI/ACB/N.D Manager, Bank of Maharastra Ex.PW20/G; notices u/s 161 Cr.PC sent by him to M/S Gagandeep Builders and M/S H.K.A Trading Company i.e Ex.PW20/H (D49) and Ex.PW20/H1 (D50); and letter dated 14.01.2008 received from Punjab and Sindh Bank Ex.PW20/J (D43). STATEMENT OF ACCUSED 4 After prosecution evidence, statements of accused persons were recorded u/s 313Cr.PC. Accused persons denied the incriminating evidence.
4.1 A1 Ramesh Kumar Bhatia mainly stated that he is innocent and has been falsely implicated in the case; that he performed his duty bonafidely; he neither obtained any undue benefit from anyone and nor gave any undue benefit to anyone; he had no connection with any of co accused; and that for temporary class rooms, the standard of construction could not be equal to permanent structure and entire case may be considered accordingly.
4.2 A2 Sanjay Sahani stated that he is permanent resident of Jharkhand; due to problem of nexalisum in the area of Jharkhand, he came to Delhi to earn livelihood; and he came in contact with accused 17 RC No. 26 (A)/2006/CBI/ACB/N.D Badri Narain and they planned to start small business. He further stated that in order to complete the tender work of Kendriya Vidalaya Sangathan, he financed Rs.1,50,000/ and became only financial partner of M/S PSB Construction. He also stated that he never met A1 Ramesh Kumar Bhatia, Principal of Kendriya Vidalaya. He pleaded that he is innocent and falsely implicated in the case.
4.3 A3 Badri Naryan Singh stated that he was not involved in any criminal conspiracy; he completed the work as per the terms of quotations and used proper material; and that the quality of material was according to limited budget and nature of temporary class rooms. 4.4 A4 Khawaja Mohammad Abbas Khan stated that he did not finance anything in M/S Global Construction and Consultants; he was looking after the work pertaining to arrangement and supervision of labour; and he was working at the site and hardly earned Rs.30004000/ per month.
4.5 A5 Smt. Pushpa Singh stated that she has studied upto 10th class and can not understand English language; She is housewife; for sometime, she was partner in M/S PSB Construction with her husband Sh. Badri Naryan; entire work was looked after by her husband; she was only 18 RC No. 26 (A)/2006/CBI/ACB/N.D a sleeping partner; She might have signed some papers on the asking of her husband Badri Naryan; and she could not understand the contents of the documents.
5 No defence evidence was lead by the accused persons. 6 I have heard the Ld. Sr.PP for CBI and Ld. Defence counsels for accused persons. I have carefully gone through the testimony of witnesses , documents proved on record and written submissions filed by A2 Sanjay Sahani, A3 Badri Naryan and A5 Smt. Pushpa Singh. I have carefully considered the submissions of Ld. Sr.PP and ld.defence counsels. 7 Let us first consider the evidence on the material allegations of the prosecution case.
A1 Ramesh Kumar Bhatia was the public servant 8 There is ample evidence on record that A1 Ramesh Kumar Bhatia was posted and working as Principal in Kendriya Vidalaya, Sector25, Rohini, Delhi at the relevant time and PW2 , PW5, PW6, Pw8,PW9 , PW4 and PW18 have deposed in this regard. This fact has not been denied by A1 in his statement u/s 313 Cr.PC. It is also not in dispute that A1 falls within the definition of "public servant". As per prosecution case, A1 R.K. Bhatia was already retired from the service and therefore, 19 RC No. 26 (A)/2006/CBI/ACB/N.D for taking cognizance of offence, sanction for prosecution was not required in accordance with section 19 of P.C Act. From the side of defence also, there was no dispute about the retirement of A1 R.K Bhatia.
Publication of advertisement in newspaper "Hum Aur Aap" 9 One of the allegations of the prosecution is that intentionally, the tender inviting notice was published in a local newspaper "Hum Aur Aap" having very low circulation which was contrary to the norms for such publication in two National newspapers. None of the witness referred any rule in support of the contention that publication was required in two national newspapers. PW1 Yogesh Kumar Sharma was the owner and editor of newspaper "Hum Aur Aap". He clearly stated that newspapers circulation was about 35000 copies per day which was being circulated in Delhi and outside Delhi. In view of testimony of PW1, it cannot be said that newspaper "Hum Aur Aap" was insignificant newspaper having very low circulation. In my view prosecution has not been able to prove this allegation.
20 RC No. 26 (A)/2006/CBI/ACB/N.D
Transfer of Sh. N.K Srivastav , UDC 10 As per prosecution case, Sh. N.K Srivastav was posted as UDC. He declined to prepare the comparative lists of the tenders and told A1 that advertisement of tender notice was not in accordance with rules as the same was required to be published in National newspaper. Another allegation is that Sh. N.K. Srivastav was transferred from the school and attached to the regional office of Kendriya Vidalaya for about 25 days to avoid his objections to the illegalities committed in tender process and construction work. PW18 N.K. Srivastav admitted in his cross examination that power to transfer him was not vested in A1 and he was attached to regional office as per the order of Assistant Commissioner which was a routine attachment. His testimony supported the defence version of A1 R.K Bhatia that it was routine transfer. There is no evidence to show the involvement of A1 in the transfer of Sh. N.K. Srivastava. As discussed above, no rule was referred by the witnesses to show that publication of tender process was required in national newspaper and therefore, testimony of PW18 in this regard is not acceptable. In my view, prosecution has failed to establish this circumstance against the accused persons.
21 RC No. 26 (A)/2006/CBI/ACB/N.D
Participation of non existent/fictitious firms in tender process 11 As per prosecution case, the four firms participated in tender process and the two firms i.e M/S H.K.A Trading Company and M/S Gagandeep Builders were fictitious/non existent firms and their tenders were manipulated by accused persons just to complete the formalities of tender process. In order to prove this fact, prosecution has examined two postmen i.e PW10 Sh. Jagdish Chander and PW13 Sh. Om Parkash. As per the testimony of PW10 and PW13 they made enquiries at the given addresses of above mentioned firms and the said firms were not existing and therefore, the envelopes sent at the addresses of said firms by CBI, New Delhi were returned. Further, PW3 Sh. S.P Jain from VATO Department, Trade and Taxes, Govt of NCT, Delhi deposed that M/S H.K .Trading Company was not existing in the area of ward no.62 and he proved the report Ex.PW3/A (D51). PW16 Smt. Nirmaljeet Kaur, officer from Department of Trade and Taxes, Govt of NCT of Delhi proved her letter Ex.PW16/A (D52). She stated that M/S H.K.A Trading Company was not registered in the department of Trade and Taxes. 11.1 On the basis of testimony of these four witnesses Ld. Sr.PP for CBI argued that M/S H.K.A Trading Company and M/S Gagandeep 22 RC No. 26 (A)/2006/CBI/ACB/N.D Builders were non existing firms.
11.2 It was submitted by Ld. Defence counsels that no enquiry was made by the IO at the spot by visiting at the given address of these firms and firms might have changed their addresses. 11.3 After careful consideration, in my opinion, the testimony of PW3 and PW16 does not help the prosecution as the registration of firms was never claimed in the tender process. IO has relied on the reports of the postmen PW10 and PW13. There is always possibility that firms might have changes its addresses. In my opinion, in the given circumstances, the best option was that IO should have visit at the given addresses of these firms for making enquiries from the owner of the premises in question and the public persons of the locality. Such owners or the public persons could have been examined as a prosecution witness to prove the relevant facts. In view of the testimony of PW3, PW10, PW13 and PW16, convincingly, it cannot be said that M/S H.K.A Trading Company and M/S Gagandeep Builders were non existent /fake firms. The possibility of change of address of these firms cannot be ruled out.
FIRMS OF COMMON PERSONS 12 It was argued by Ld. Sr.PP that tender was granted to M/S 23 RC No. 26 (A)/2006/CBI/ACB/N.D PSB construction and Global construction which were the firms of common accused persons and therefore, the tender process was only a formality.
12.1 Ld. Defence counsel submitted that there is no evidence on record that tender of any firm was stopped in the process by the accused Ramesh Kumar Bhatia and others. The partnership firm is a legal entity. There may be common accused persons in different partnership firms and there is no illegality in the firms.
12.2 The argument is that tender process was formality. Admittedly, tender process was published in newspaper and sufficient time was given to the public to apply for the tender process. There is no evidence on record to show that any other person had submitted the tender. There is nothing to show that tender process of any other person/firm was avoided or concealed by A1 Ramesh Kumar Bhatia and other accused persons. Four firms participated in the tender process and work was awarded as per the comparative list of rates. In these circumstances, convincingly, it cannot be concluded that tender process was only a formality to favour the particular person/firms. One person may be partner in more than one such firms and there is no illegality in the 24 RC No. 26 (A)/2006/CBI/ACB/N.D same.
Forgery of quotation submitted by M/S H.K.A Trading Company 13 As per prosecution case, the quotation submitted by H.K.A Trading Company was forged by A5 (the proprietor of M/S PSB Construction) which was a non existent firm. In view of above discussion, it could not be convincingly proved that H.K.A Trading Company was a non existing firm. The allegation against A5 are based on her signature at Q221 on D23 Ex.PW2/H (colly), which is the quotation of H.K.A Trading Company . At Q221, there appears to be signature in the name of "Smt. Pushpa Singh". As per the report Ex.PW19/A (D48) of handwriting expert, PW19 Dr. S. Ahmed, the signature at Q221 is in the handwriting of A5. It is not clear from document Ex.PW2/H that in what capacity document has been signed at Q221. As per allegation, Smt. Pushpa Singh has signed to verify the quotation Ex.PW2/H. It is not the case of the prosecution that Smt. Pushpa Singh has singed in the name of any other person to forge the signature of someone else. Admittedly, the quotation Ex.PW2/H on behalf of H.K.A Trading Company was submitted. The allegation of forgery of this document by A5 Pushpa Singh are on the assumption that H.K.A Trading company was a non existent firm. After 25 RC No. 26 (A)/2006/CBI/ACB/N.D careful consideration and in view of above discussion, in my opinion, document Ex.PW2/H does not come within the category of "false document" and therefore, allegation of forgery against A5 Pushpa Singh is not proved. Further, verification of quotation was not essential and there appears not dishonest or fraudulent intentions as nobody was mis led due to signature of at point Q221.
Poor quality of construction work 14 The case of prosecution is that in pursuance to criminal conspiracy extremely poor quality of construction work was raised. The allegations of poor construction are based on the statement of PW11 Sh. B.C Joshi, Executive Engineer, CPWD and his reports Ex.PW11/A , Ex.PW11/B and Ex.PW11/C and statement of PW15 Sh. S.N. Sinha, Professor, Department of Civil Engineer, IIT, Delhi and his report Ex.PW14/D. 14.1 In report Ex. PW11/A (D2) in respect of quality of construction, it is stated that quality of visible bricks, plaster work, floor, placement and fixing of asbestos sheets was very poor. Since, it was raining season, the roof of the class rooms was leaking from some places. 14.2 In report Ex.PW14/D (D55) prepared by PW15, it is 26 RC No. 26 (A)/2006/CBI/ACB/N.D mentioned that :
(i) Foundation of the building was not uniform but the foundation of wall may be safe and adequate for consolidation of soil.
(ii)Construction was very bad.
(iii)Alignment trusses were not proper. It was not placed properly and joints were not good.
(iv)Asbestos roof sheets were not properly aligned and part of roof trusses was over turned due to heavy wait.
(v) Asbestos sheets is health hazard and should not be used.
(vi)Finishing of floor and plaster of wall is very bad.
(vii)The flooring was redone at many places and it comes out easily.
(viii)The plaster had come out from many places.
(ix)The boards were not proper.
(x) The quality of frames and penal of doors and window are very bad.
(xi)No designed details of school building were available. It may be inferred that construction had been done at thumb rule without any design.
14.3 As per the testimony of PW11 and PW15, the Principal of school or any of the accused were not present at the time of inspections. 27 RC No. 26 (A)/2006/CBI/ACB/N.D Therefore, no opportunity was given to the accused persons to explain their position. The reports of PW11 and PW15 are related to the poor quality of material, workmanship and technical defects. It is admitted case of prosecution that construction was for temporary class rooms within the limited budget. Quality of construction is a comparative term. The same construction may be considered poor than the other and superior to the other one. As per testimony of PW11 & PW15 neither the building material was sent to any lab nor total cost of the construction was estimated. The deficiency in workmanship or technical aspect does not automatically prove the allegations of corruption. The technical defects and poor craftmanship may be the result of limited budget or casual approach or negligence. On account of allegation of poor quality of construction as mentioned in the reports of PW11 and PW15 , the allegations of criminal conspiracy cannot be safely inferred in the facts and circumstances of the case.
Claim of exorbitant bills 15 Case of the prosecution is that a loss of about Rs.4,63,484/ was caused by accused persons due to payment of exorbitant bills in respect of building material and earth filling. It is also alleged that bills 28 RC No. 26 (A)/2006/CBI/ACB/N.D were raised at the higher prices than the quoted prices. 15.1 Letter Ex.PW4/A (D6) dated 12.05.2003 is the sanction order issued by Assistant Commissioner of K.V Sangathan for 10 temporary class rooms. As per this letter, the construction was required to be undertaken as per guidelines/instructions issued vide letter dated 22.03.2003 of Kendriya Vidalaya which is Ex.CW1/1. As per Ex.PW4/A construction was required to be completed by 31.03.2004. It is clear from Ex.PW4/A that the entire process of tender and construction was to be completed between 15.12.2003 to 31.03.2004. As per guidelines mentioned in Ex.CW1/1 :
(i) ultimately permanent class rooms were to be constructed;
(ii)the work was to be executed departmentally by procuring material and engaging labour through "labour contract" as per the procedure laid down in Vidalya Vikas Nidhi.
(iii)the work was to be carried out under supervision of Vidalaya Management Committee.
(iv)So it is clear that as per Ex.PW4/A and Ex.CW1/1 it was not a contract for over all construction by a builder. The construction was required to be raised by arranging supply of material and the labour.29 RC No. 26 (A)/2006/CBI/ACB/N.D
The tender notice was published in newspaper dated 08.01.2004 and tender process was to be submitted within 5 days. So approximately from 12.01.2004 to 31.03.2004, there was about 2 and ½ months to complete the entire project.
15.2 As per quotations Ex.PW2/F (D21) and Ex.PW2/L (D26) of M/S P.S.B Construction, the estimated quantity, rate and amounts of various items/material were given. As per Ex.PW2/D (D19) of M/S Global Construction Consultant, the labour charges were quoted at the rate of Rs.78 per square feet. These documents reflect that the rates of the building material/items quoted by M/S PSB construction were only estimated rates. Therefore, the allegations of exorbitant rates of different items appears to be without substance. Moreover, there is no evidence on record in respect of the items/building material except the bricks and earth filling and nothing was argued in this regard.
15.3 The allegations of exorbitant claim of bricks and earth filling is mainly based on the statement of PW11 B.C Joshi, Executive Engineer, CPWD and his reports Ex.PW11/A, Ex.PW11/B and Ex.PW11/C (part of D2). As per Ex.PW11/B, approximately 1,25,000 bricks might have been used in the construction. The allegations of the prosecution is that forged 30 RC No. 26 (A)/2006/CBI/ACB/N.D bills were raised in respect of use of 1,90,000/ bricks. There is no dispute from the side of accused persons that bills were raised in respect of 1,90,000 bricks. The defence is that apart from the construction of temporary class room and varanda, the remaining bricks were used in construction of damaged boundary wall and staircase and some bricks were also used in earthfilling. It was submitted on behalf of accused persons that bricks were supplied in the school and same were received and entered in records.
15.4 Earth filling used under the floors of class rooms was estimated as 278.85 M3. The allegation is that bills were raised by accused persons for 1210 M3 for a total amount of Rs.1,63,350/. During investigation, register D8 was seized which is pertaining to the record of building material used in construction. On 14.08.2014, it was stated by Ld.Sr.PP that register D8 could not be proved and he requested to call a witness to prove the said register. Ld. Defence counsel submitted that the transaction mentioned in D8 has also been mentioned in the bills Ex.PW5/K1 to Ex.PW5/K25 and therefore, there was no dispute from the side of defence. As the record of register was admitted by both the parties, Register D89 is now referred as Ex.ADX. As per register D8, 31 RC No. 26 (A)/2006/CBI/ACB/N.D bill pertaining to the quantity, price and bill number have been mentioned in respect of different building materials like bricks, earthfilling , cement and iron etc. As per register (D8), on different dates and by different bills total 1,90,000 bricks were received and receipt has been signed by teachers and the Principal. Similarly, as per D8, earth filling was also received and signed by teachers and the Principal. There is no evidence on record to prove that the bricks and earth filling shown in D8 were not received. The reports of PW11 are based on approximation and only the area of 10 temporary class rooms has been taken into consideration. There may be some difference in the estimate of PW11. The contention of ld. Defence counsel was that the depth and area of earth filling has been taken on lesser side than actual and at the time of inspection neither the Principal nor any accused was involved. The investigating officer relied only on report of PW11 and did not carry any further investigation to find out the actual receipt of bricks and earthfilling and its use in the school for the purpose other than ten temporary class rooms. It was also inappropriate that neither Principal nor staff nor any other accused was involved at the time of inspection of PW11 and his team to explain their position. On the aspect of exorbitant claim on account of bricks and earth 32 RC No. 26 (A)/2006/CBI/ACB/N.D filling, there are contrary claim of prosecution and defence. Register D8 reflects the actual receipt of bricks and earth filling claimed by accused persons. Report of PW11 estimated lesser use of bricks and earth filling. In these circumstances, there may be some doubt in respect of exorbitant bills but the doubt cannot take place of proof. On the basis of evidence, it cannot be safely concluded that infact the quantity of bricks and earth filing was not supplied and used as claimed in the bills. In my view, prosecution has not been able to prove these allegations beyond doubt by convincing evidence .
PROPOSITION OF LAW 16 In order to prove criminal conspiracy, prosecution is required to establish that accused persons entered into agreement to commit offence or illegal act or an act by illegal means. Generally, in the case of criminal conspiracy, it is difficult to find direct evidence. Criminal conspiracy are generally conceived and executed in celandines manner to avoid detection of crime. Still, from complete chain of circumstantial or direct evidence, prosecution is required to prove meeting of mind between the accused persons and overt act of each accused.
33 RC No. 26 (A)/2006/CBI/ACB/N.DINGREDIENTS OF SECTION 420 IPC 16.1 The ingredients of section 420 IPC are as under:
(i) Deception of any persons;
(ii)Fraudulently or dishonestly inducing any person to deliver any property;or
(iii)To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.
16.2 In order to prove offence u/s 468 IPC, prosecution is required to prove that some forgery of documents was committed with the intention to use the said forged documents for the purpose of cheating. In order to prove the charge u/s 468, firstly the forgery of documents should be proved as per requirements of section 463 & 464 IPC.
16.3 In order to prove the ingredients u/s 471 IPC, prosecution is required to prove that accused fraudulently or dishonestly used the forged documents as genuine knowingly or having reason to believe the same to be a forged documents. In order to prove offence u/s 471 IPC, the 34 RC No. 26 (A)/2006/CBI/ACB/N.D fraudulent or dishonest intention and the use of forged documents is required to be proved.
CRIMINAL MISCONDUCT 16.4 As regards section 13 (1) (d) of P.C Act, to my mind, the term "criminal misconduct" does not imply mere bending of rules or cutting corners. It does not envisage committing a mistake or error of judgment, even serious one. It must be a mistake or irregularity that is of a high degree that can be termed as unconscionable, fallen way below , or far below, the standards expected of a public servant. Reference here can be had to observations in the case of "State of M.P. Vs. Sheetla Sahai, 2009 Cr.L.J 4436" wherein the observation in the case of Prem Chand Vs. Govt of NCT of Delhi & ors. AIR 2007 SCW 2532, were reiterated as under:
"Misconduct has been defined in Balck's Law Dictionary, Sixth Edition at page 999 thus:
'A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, willful in character, improper or wrong 35 RC No. 26 (A)/2006/CBI/ACB/N.D behaviour , its synonyms are misdemeanor, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.' Misconduct in office has been defined as: "Any unlawful behaviour by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly and failure to act in the face of an affirmative duty to act."
In P. Ramanatha Aiyar's Law Lexicon, 3rd edition, at page 3027, the term 'misconduct' has been defined as under:
"The term 'misconduct' implies, a wrongful intention and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude.
The word 'misconduct' is a relative term and has to be construed with reference to the subjectmatter and the context wherein the term occurs, having regard to the scope of the Act or statue which is being construed. Misconduct literally means wrong conduct or improper conduct."36 RC No. 26 (A)/2006/CBI/ACB/N.D
16.5 Another significant case that comes to mind is Abdulla Mohd. Vs. State (Union Territory of Goa) AIR 1980 SC 499, wherein a public servant and a contractor were prosecuted under the Prevention of Corruption Act and Ss420, 468, 471 Penal Code for defrauding the Government by submitting false bills of the work done. Though, the work was to be done departmentally, it was alleged that infact the public servant got the work done through the contractor whose tender was not accepted. It was held that:
"Though, the work was got executed in flagrant disregard of the relevant Rules and even of ordinary norms of procedural behaviour of governmental officials and contractors, such disregard did not amount to any of the offences alleged against them. The onus of proof of the existence of every ingredient of the charge always rests on the prosecution and never shifts. It was incumbent therefore on the State to bring out, beyond all reasonable doubt, that the number of labourers actually employed in carrying out the work was less than that stated in the summaries appended to the bills paid for by the 37 RC No. 26 (A)/2006/CBI/ACB/N.D Government. The accused could not be convicted relying on the mere impression of the prosecution witnesses regarding the number of labourers employed from time to time. No doubt there were several irregularities giving rise to a strong suspicion in regard to the bonafides of the accused in the matter of the execution of the work but suspicion, however strong, could not be a substitute for proof. And it was not permissible to place the burden of proof of innocence on the person accused of a criminal charge."
17 In view of above discussion, it is clear that case of the prosecution is based on different circumstances. The said circumstances may prima facie create suspicion. It is settled preposition of law that the suspicion howsoever strong it may be cannot take the place of proof. It is the duty of the prosecution to prove its case beyond the shadow of any reasonable doubt by leading convincing evidence. The entire circumstances of the case are required to be seen from the angle that it was construction of temporary class rooms through contract of material and labour. The work was to be supervised by the Principal of the school and a committee of teachers. The work was to be completed in a short 38 RC No. 26 (A)/2006/CBI/ACB/N.D time of about 2 & ½ months within the limited budget about Rs.28 lacs. Court cannot ignore the fact that in ordinary course, the Principal of a school and teachers may not technically trained persons in the field of civil engineering, construction work, accounting and finance. Therefore, there is always a possibility of error in decision making. Moreover, the Principal and teachers of a schools are primarily expected to perform their duty as teachers and the supervision of construction work may be an additional burden. As Principal and teachers are not expected to be an expert in civil engineering and construction work, they are required to depend upon the assistance of their staff and the experts. 17.1 The charges cannot be proved unless the guilty intention of accused persons is proved. In the facts and circumstances of the case, it will not be safe and proper to infer element of dishonest and fraudulent intention or the criminal conspiracy. In view of the above mentioned judgments, due to deviation in rules or deficiency in construction, it is not safe to infer criminal conspiracy unless the allegations are proved by prosecution beyond the shadow of reasonable doubt. 17.2 This case is mainly based on circumstantial evidence. It is settled preposition of law that in the cases of circumstantial evidence, the 39 RC No. 26 (A)/2006/CBI/ACB/N.D chain of circumstances should be so complete to prove the guilt that it does not leave any hypothesis leading towards the innocence of accused. 17.3 In view of above discussion, the material circumstances of the case could not be proved by prosecution by convincing evidence. There are serious doubts in the prosecution case and the hypothesis of innocence of accused persons cannot be ruled out.
17.4 Investigating Officer (PW20) admitted that no direct evidence was found to show any personal relation or acquaintance between A1 Ramesh Kumar Bhatia, Principal and other accused persons. It was also stated by PW20 that there was no direct evidence to show acceptance of any pecuniary gain by A1 Sh. R.K. Bhatia.
18 Before concluding the judgment, I may observe that the government departments should take care that such technical project of construction etc should not be given in the hands of the employees who are not trained in such field. The work of technical nature should be carried out through the specialized agencies, so that there may not be additional burden on the employees who are not technically equipped in the field. I may also mention that decision of construction of temporary class room must be relooked in future, particularly when there is plan to 40 RC No. 26 (A)/2006/CBI/ACB/N.D construct permanent class rooms. Temporary class rooms/construction in school is always unsafe and may cost more to the government. 19 In view of the above findings, prosecution has failed to prove its case against accused persons beyond the shadow of reasonable doubt. Therefore, on account of benefit of doubt, all the accused persons are hereby acquitted. Personal bond and surety bond of accused persons stands cancelled. Original documents of the accused persons and sureties (if any) be returned after cancellation of endorsement (if any). All the accused persons are directed to furnish personal bond of Rs.20,000/ with one surety of the like amount each in accordance with section 437(A) Cr.PC with undertaking to appear before the Ld. Appellate Court , in case any appeal is filed by the prosecution.
Announced in the open court (Sanjeev Jain) on this 15th September, 2014. Special Judge (PC Act), CBI03 South District, Saket Courts New Delhi