Delhi District Court
Title : State (Cbi) vs . on 7 August, 2014
IN THE COURT OF MS. SWARANA KANTA SHARMA, SPECIAL JUDGE,
CBI05, PATIALA HOUSE COURTS, NEW DELHI.
CC No. : 87/12
RC no. : DAI 2011A0031
Unique Case ID no. : 02403R0087132012
Title : State (CBI)
Vs.
1. K.N. Dhyani @ Keshav Anand Dhyani,
S/o. Sh. Baldev Prashad Dhyani.
R/o. 10/B1, Hindustan Times Apartment, Mayur Vihar PhaseI, Delhi91.
Permanent Address: Vill. Ranakot, P.O. Ranakot, P.S. Devprayag, Distt.
Pouri Garhwal, Uttarakhand.
2. Mukut Mani @ Mukut Mani Vashisth,
S/o. Sh. Daya Ram.
R/o. 120 Sarai Kale Khan, Nizammudin, New Delhi13.
3. B. Jaypal Reddy,
S/o. Sh. Penta Reddy.
R/o. J3/145, DDA Flats, Kalkaji, New Delhi110019.
Permanent Address: 17102/6162 Sai Enclave, Habsi Guda, Hyderabad
50000, AP.
4. M/s. Raghvendra Borewell through its Proprietor B. Jaipal Reddy,
Address: J3/145, DDA Flats, Kalkaji, New Delhi110019.
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.1 of 58
U/s : 120 B r/w Sec. 420, 471 IPC and Sec. 13(2) r/w Section 13(1)(d) of
P.C. Act 1988
Date of Institution : 21.12.2012
Date of reserving order : 01.8.2014
Date of pronouncement : 07.8.2014
Appearance:
Sh. Akshay Gautam, Ld. Senior PP for CBI.
Sh. Rakesh Kakkar, Advocate, Ld. Counsel for accused no. 1 K.N. Dhyani and
accused no. 2 Mukut Mani along with the accused persons.
Sh. Sandeep Dhingra and Sh. Arun Satija, Advocates, Ld. Counsels for accused
no. 3 B. Jaypal Reddy and accused no.4 M/s. Raghvendra Borewell along with
accused no. 3 B. Jaypal Reddy in person.
J U D G M E N T
1. The instant case was registered on 28.12.2011 in CBI/ACB against
accused persons.
2. It is alleged that in the year 200607, Delhi Jal Board had got
executed works of installation of tube wells for drinking waker at different
places falling within SouthI Division through Private Contractors. As per
the terms and conditions of the contract, the contractors were supposed to
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.2 of 58
use slotted pipes of Johnson make in the tube wells. However, the
contractors had submitted fake bills of purchase of Johnson Pipes from
M/s Bharti Water Pvt. Ltd. On the basis of these fake bills payments were
released to them by Delhi Jal Board.
3. During investigation, Bore Wells situated at L489, L1826 at
Sangam Vihar were inspected by the concerned experts. They had
submitted the report that no Johnson Pipes had been used in these Tube
Wells. It has come on record during investigation that accused K.N.
Dhyani, Assistant Engineer, accused Mukut Mani, Junior Engineer in
furtherance of conspiracy with contractor B. Jaipal Reddy, Proprietor M/s
Raghavendra Bore Well had taken pecuniary advantage from him to cheat
Delhi Jal Board and had fraudulently and dishonestly made false entries in
the respective completion reports and had stated that Johnson Pipes had
been used as per the terms of the contract. In furtherance of this criminal
conspiracy accused K.N. Dhyani, Assistant Engineer had certified the test
checked report in respect of use of Johnson Pipes, which were actually
not used.
4. All the accused persons had appeared in the Court and
copies of documents, as required by the Section 207 Cr.P.C., were
supplied to them to their satisfaction.
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.3 of 58
5. Charges against all the accused persons u/s. 120 B r/w 420,
471 IPC and Section 13(2) r/w 13(1)(d) of PC Act were framed to which
they pleaded not guilty and claimed trial.
6. CBI in support of their case have examined 14 witnesses.
5. PW 1 - Sh. Manoj Jain, Proprietor, M/s. Jain Traders stated
that their firm is working since 1995 and provides the work of laying of
water lines for Delhi Jal Board being Civil Contractor. He stated that they
are also registered as Civil Contractors with Delhi Jal Board. He proved
the original purchase voucher of M/s. Bharti Waters, copy of bank
statement showing the transaction of purchase of Johnson Pipe
Ex.PW1/A, Ledger Statement of VAT Ex.PW1/B.
He also proved the purchase voucher dated 23.5.2006
reflecting the purchase of 200 MM Dia for amount of Rs.82,742.40/ make
Johnson Ex.PW1/C and the bank statement Ex. PW1/D. He stated that
the aforesaid stainer pipe was purchased for installing in Delhi Jal Board,
Vikaspuri. He further stated that he had not sold that stainer pipe to
anybody else for installation in Delhi Jal Board.
On being cross examined by Sh. Rajesh Kakkar, Ld. Counsel
for accused no. 1 K.N. Dhyani and accused no. 2 Mukut Mani he stated
that he has not brought any document to prove that he was the proprietor
of M/s. Jain Traders. He stated that he had written letter Ex.PW1/A on the
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.4 of 58
telephonic request of a CBI Official who had introduced himself as Pramod
Tyagi, pertaining to the invoice. He stated that M/s. Bharti Waters Pvt.
Ltd. is sole dealer of Johnson Pipes in Delhi as per his knowledge. He
stated that his statement was recorded in CBI Office. The CBI had called
him by issuing mail to him for his presence in their office. He stated that
he had handed over all the documents to the CBI Officials on the date of
recording his statement. He further stated that they place the orders with
M/s. Bharati Waters Pvt. Ltd. by visiting their office and handing over the
cheque towards articles purchased.
Sh. Sandeep Dhingra and Sh. Arun Satija, Ld. Counsels for
accused no. 3 B. Jaipal Reddy adopted the same cross examination as
conducted by Ld. Counsel for accused no. 1 K. N. Dhayni and accused no.
2 Mukut Mani.
6. PW2 Ms. Debashree Mukherjee, CEO, Delhi Jal Boad
proved the Sanction Order dated 19.12.2012 Ex.PW2/A. She stated that
she was competent to remove accused K.N. Dhyani from his service and
also to take disciplinary action against him. She further stated that upon
receipt of request letter from CBI and after perusing the documents sent
alongwith the said request, she had applied his independent mind and had
granted sanction for prosecution of accused K.N. Dhyani.
On being cross examined by Sh. Sandeep Dhingra and Sh.
Arun Satija, Ld. Counsels for accued no. 3 B. Jaipal Reddy, she stated
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.5 of 58
that she is the competent authority to remove any officer up to the rank of
Executive Engineer under the Delhi Jal Board Act and Rules and as such
no notification is required. She stated that at present she cannot recall all
the documents which were perused by her for grant of sanction, however,
she remembered having gone through report of NGRI and statement of
witnesses and the fact that accused who was responsible for 50%
checking, had certified that Johnson Pipes had been used as per the
contract with the contractor. After going through the Sanction Order she
stated that in this particular case since she was to deal with only one
particular order, after weighing the evidence, she had reached the
conclusion that there was material to grant sanction against accused K.N.
Dhyani only. She denied that she had not applied independent mind
while going through the documents placed before her by CBI and had
granted sanction for prosecution mechanically and in casual manner.
On being cross examined by Sh. Rakesh Kakkar, Ld. Counsel
for accused no. 1 K.N. Dhyani and accused no. 2 Mukut Mani she stated
that the files remain in custody of Vigilance Department and not in her
custody. She also stated that she takes decision herself to proceed in
cases against employees. The files pertaining to the internal disciplinary
inquiries or for grant of sanction are not kept under her custody at any
point of time and they remain in the Vigilance Department and are put up
before her as and when required. She stated that Vigilance Department is
under her administrative control.
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.6 of 58
She admitted that name of the Executive Engineer Sh. Anil
Sharma was mentioned in the record of investigation sent to her by CBI.
She stated that she had joined as CEO, DJB in May, 2012 and by that
time, the case must have been ripe for taking action against the erring
officers, however, after she joined, no officer of DJB had either pointed out
or shown her the bills regarding any fraud committed by accused K.N.
Dhyani. She further stated that Sh. Anil Kumar Sharma had not met her in
connection to this case at any point of time. As far as Sh. Anil Kumar
Sharma, Executive Engineer, the documents produced before her did not
merit his prosecution after she had applied her mind to the documents.
She stated that the fact that Sh. Anil Kumar Sharma had not certified the
fact of use of Johnson Pipes had weighed with her when she had decided,
not to grant sanction for his prosecution. No document was put before her
to prove that Sh. Anil Kumar Sharma had certified use of Johnson Pipes
and thus, prove his role in the present case. She stated that she had not
personally perused the documents regarding certification of use of
Johnson Pipes by accused K.N. Dhyani. However, since the investigation
report of CBI has stated so, she had formed her opinion on the basis of
the report. She denied that she has not seen any document before
granting sanction against the accused.
7. PW3 Sh. Vikas Rathi, Junior Engineer, Delhi Jal Board
stated that he was posted as J.E. (Civil) in Vigilance Department, Delhi Jal
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.7 of 58
Board in August, 2012. He stated that he had handed over certain
documents mentioned in Ex.PW3/A Production Memo to the IO. He
identified his signatures on the Site Plan Ex.PW3/C1 which was prepared
in his presence. He stated that Civil Sites were visited in August, 2012 and
26.6.2012. The documents of the same were also handed over to CBI.
He proved the Inspection Memo using bore hole camera dated 27.6.2012
Ex.PW3/E. He stated that he had also provided certified copy of circular
dated 28.5.2008 issued by E.O to Member (Water Supply/ Drainage)
Ex.PW3/G.
On being cross examined by Sh. Rakesh Kakkar, Ld. Counsel
for accused no. 1 K.N. Dhyani and accused no.2 Mukut Mani, he stated
that he did not remember the date and month when the CBI had
conducted raid in the office of Delhi Jal Board, however, it was in the year
2011. The raid was conducted by CBI at 1015 places. The documents
were handed over to CBI in unsealed condition. He stated that the
Production Memo Ex.PW3/A was prepared in Delhi Jal Board Office on
their computer. He, after going through the Site Identification Memos,
stated that these were printed proformas and the blanks of the same were
filled up at the site. He stated that the site plans were not prepared by
him. They were either either of the J.E. or A.E. concerned in the Office of
the Executive Engineer, Saket. He stated that no video recording of place
of boring was conducted on 22.6.2012. He stated that he does not
remember the number of spots or sites he had visited on 22.6.2012. No
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.8 of 58
public person was requested in his presence to join the proceedings by
the IO. He admitted that the tubewells were found in running condition
which were inspected on 22.6.2012.
On being cross examined by Sh. Arun Satija and Sh.
Sandeep Dhingra, Ld. Counsels for accused no. 3 B. Jaypal Reddy and
accused no. 4 M/s. Raghvendra Borewell, he stated that as per circular of
Delhi Jal Board Ex.PW3/G, after the work of boring is concluded the same
is checked by J.E., E.E. and A.E. He stated that he did not remember the
exact date when the bore hole camera proceedings were conducted in this
case. Accused K.N. Dhyani, Dr. D.V. Reddy, Inspector Pramod Kumar, Sh.
Y.B. Kaushik and accused Mukut Mani were present when these
proceedings were conducted. The proceedings were conducted with the
Digital Camera. He stated that no CD was prepared in his presence. He
stated that the recording was not transferred in any computer, laptop or
palmtop. He had not seen the recording in the camera. The camera was
not seized by the IO. He stated that Dr. Reddy had not explained
anything about the working of the camera. He stated that the blanks in
Ex.PW3/F5 were filled by Inspector Pramod Kumar with blue ink pen at the
spot.
On being further crossexamined by Sh. Rakesh Kakkar, Ld.
Counsel for accused no. 1 K.N. Dhyani and accused no. 2 Mukut Mani he
stated that he did not personally informed the Executive Engineer about
that days proceedings since it was already 7:00 pm but he had informed
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.9 of 58
him through telephone. The proceedings were not submitted in writing to
the Executive Engineer on the same day, however, the same were
intimated after few days.
8. PW4 Sh. Kamal Kumar Aggarwal stated that he is the
Director of M/s. Bharati Waters Pvt. Ltd. which is the sole distributor of
Strainer Filter Pipe manufactured by Johnson Filtration System,
Ahmadabad in Delhi since the year 2004. He stated that he had
provided documents to CBI vide Memo Ex.PW4/A. He had also proved
copy of statements of accounts of his company for the year20062010 in
respect of M/s. Raghvendra Borewell Delhi Ex.PW4/B. The Counsel for
accused had objected to the mode of proof since Ex.PW4/B were copies
of the statements of accounts which were self attested. He has also
proved the original invoice dated 23.5.2006 in the name of M/s. Jain
Traders Delhi Ex.PW4/C, the original invoice dated 25.9.2007 in the name
of M/s. Bharati Enterprises, Tilak Nagar and original invoice dated
13.10.2007 in the name of M/s. Executive Engineer, Ludhiana E.xPW4/D
and Ex.PW4/E. After going through the record the witness stated that as
per the ledger account of their company for the year 20062007 in respect
of M/s. Raghvendra Borewell, four invoices/ vouchers were made in favour
of M/s. Raghvendra Borewell which were dated 11.4.2006 for an amount of
Rs.81,744/ i.e. voucher no. 12, Voucher no. 120 dated 12.7.2006 for an
amount of Rs.82,744/, voucher no. 209 dated 11.9.2006 for an amount of
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.10 of 58
Rs.1,13,570/ and voucher no. 366 dated 15.02.2007 for an amount of Rs.
1,11,702/.
He also stated that photocopy of the invoice no.
BW/69/200607 dated 22.5.2006 issued in favour of M/s. Raghvendra
Borewell having description of item as stainer filter in pipe from LCG Water
Screen 150 MM size make Johnson amounting to R.4,00,545/ dated
26.11.2011 which was signed by him and endorsed as "Seen" was not
issued by his company and this number of the invoice or amount is not
mentioned in the ledger of the financial year 20062007. He stated that the
signatures appearing at point B of the said voucher cannot be of his
employee since the said invoice was never issued by his company. The
witness proved certified copies of the invoice of M/s. Bharati Water Pvt.
Ltd. bearing no. 69, 162, 171, 247 and certified copies of ledger accounts
of Ms. Bharati Waters Pvt. Ltd. in respect of Sh. Raghvendra Borewell,
N.S. Borewell, Ravi Goel, CSTN Company and Kadri Tubewell. The
receipt memo was proved as Ex.PW4/F. The certified copies of the
invoice were proved as Ex.PW4/G collectively. The certified copies of the
ledger account of M/s. Bharati Water Pvt. Ltd. were proved as ExPW4/H in
respect of M/s. Raghvendra Borewell. The photocopy of the invoice of
M/s. Bharati Water Pvt. Ltd. in respect of invoice no. 69 dated 22.5.2006,
invoice no. 162 dated 08.8.2007 and 171 dated 30.7.2007 were shown to
him by CBI and he had given statement that they were forged. The same
were proved as Ex.PW4/J1 to Ex.PW4/J4. He stated that the invoice of
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PW4/C, Ex.PW4/D and Ex.PW4/D are the genuine invoices which bear his
signatures at point A. He stated that these invoices have been issued in
the name of Jain Traders, Aarti Enterprises and The Executive Engineer,
Punjab Mandi Board, Ludhiana respectively.
On being cross examined by Sh. Rakesh Kakkar, Ld. Counsel
for accused no. 1 K.N. Dhyani and accused no. 2 Mukut Mani, he stated
that he has not brought any letter of intent and authority issued by M/s.
Johnson Pipes for appointing them as sole distributor for Delhi region. He
stated that he has not appointed any dealers or subdealers. He stated
that he does not have any letter to prove that they cannot appoint any
dealer or sub dealer. He stated that he had provided the copies of the
ledger accounts of the company which contain the information regrding the
purchase by particular parties. He stated that he had mentioned the
details of the case and parties who had purchased Johnson pipes from
them in their income tax and sales tax returns including Ex.PW4/C,
Ex.PW4/D and Ex.PW4/E. He stated that he can distinguish between the
original and the alleged fake bills since the proforma in original and fake
bills is different. He stated that only those bills are genuine which find
mention in the ledger accounts. He stated that Ex.PW4/J1 to Ex.PW4/J4
are the proforma invoices which were used earlier by his company and
mention the name of his company as Bharati Waters whereas now his
company is known as Bharati Waters Pvt. Ltd. and therefore, Ex.PW4.J1
toEx.PW4/J4 must be forged. He admitted that earlier the company was a
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.12 of 58
partnership firm in the name and style of M/s. Bharati Waters and bills
during that period must have been issued in that name only.
9. PW5 Sh. Satya Prakash , Senior Accounts Officer, Project
(Water)I, New Delhi stated that during the year 2006, he was posted as
Accountant in Circle, Superintendent in Delhi Jal Board and had remained
there till 02.6.2010. He stated that his duty for processing bills of
contractors included that after receipt of bill from contractor through
concerned J.E., Z.E. and E.E.. Junior Accountant is to check the bill for
any arithmetic mistake, if it is correct then he records Pay Order and
before recording the Pay order he will see whether completion report of
the work is approved by the competent authority i.e. Executive Engineer or
Superintendent Engineer. Junior Accountant will also see whether test
check report, measurement book and the certificate in measurement book,
the work has been completed as per specification available with bill form
which is duly signed by J.E., Z.E., E.E. and Contractor. Junior Accountant
also checks whether the budget/ fund is available or not. Pay order is
issued only after sufficient budget is available for the work. Thereafter
purchase voucher of the store items purchased by the contractor will be
received in original by the Engineer InCharge and attested photocopies
will be annexed with the bill form. It is duty of the Accountant and
Assistant Chief Accountant to monitor the budget and payment up to
allocation of budget/ fund. He admitted that he has dealt with the file Ex.
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.13 of 58
PW5/A pertaining to L Block, Sangam Vihar, SouthI, Delhi regarding
boring of five tubewells and at page no. 80 of this file there is noting of Sh.
Sukhai Ram, Superintendent Engineer regarding approval of Rs.
13,86,825/ subject to concurrence in Finance in accordance with the
noting at point A dated 26.6.2006. After the approval, the file was marked
to him by Sh. Sukhai Ram, S.E. and he had signed as Accountant at point
B. Thereafter, file was marked to Assistant Chief Accountat Sh. Jeet
Singh for financial concurrence. He also stated that at page no. 76 of this
file which is final acceptance of rates of contractors given by Sh. Sukhai
Ram,S.E. Since the file was marked to him for its compliance on
18.2.2006 he had forwarded it to ACA (South) being a competent authority
vide his noting on Ex.PW5/A3. Upon seeing the bill in the sum of Rs.
20,00,430 by M/s. Raghvendra Borewell he stated that this bill was
prepared by J.E. And was sent by Z.E. and Executive Engineer. At that
time Z.E. was accused K.N. Dhyani. He identified the signatures of
accused K.N. Dhyani and Anil Kumar, Executive Engineer. The bill was
proved as Ex.PW5/A4.
He further stated that after compliance of work, the
compliance report was prepared and submitted to S.E. He proved the
compliance report Ex.PW5/A5 which bears signatures of accused K.N.
Dhyani and then Executive Engineer which was duly checked by the
Draftsman. He stated that the noting of the Superintendent Engineer for
approval of the compliance report was not available on file Ex.PW5/A and
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might have been misplaced. He proved the invoice bearing no.
BW/69/20062007 dated 22.5.2006 from M/s. Bharati Water issued in the
name of M/s. Raghvendra Borewell for purchasing of Strainer Printer, SCG
Water Screen 150 MM diameter of Johnson for total cost of Rs.4,0045/.
He stated that this bill was certified by J.E. And Z.E. with remarks
"consumed material 245 only". He stated that this bill bears signatures
and remarks of accused K.N. Dhyani.
He also proved test check report signed by Z.E. and E.E.
Ex.PW5/A7 which bears signatures of accused K.N. Dhyani, Z.E. and Sh.
Anil Sharma, E.E. He also proved pay order for Rs.17,71,409/ signed by
him as Junior Accountant Smt. Satya Dhingra and Executive Engineer Sh.
Anil Sharma which is Ex.PW5/A4. He stated that the pay order was
signed by Junior Engineer and Executive Engineer and thereafter put up
before Accountant for signatures. The payment was made to the
concerned contractor by the Division.
On being cross examined by Sh. Rakesh Kakkar, Ld. Counsel
for accused no. 1 K.N. Dhyani and accused no. 2 Mukut Mani he stated
that no inquiry was made by CBI from him about Sh. Sukhai Ram who was
working as Superintendent Engineer at the relevant time. The
Measurement Book which was unsealed was shown to him by CBI when
his statement was recorded by the IO. He admitted that the Measurement
Book has not been placed in the file Ex.PW5/A.
On being cross examined by Sh. Arun Satija and Sh.
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Sandeep Dhingra, Ld. Counsel for accused no. 3 B. Jaypal Reddy and
accused no. 4 M/s. Raghvendra Borewell he stated that the file was
received by him from Executive Engineer in this case at the time of
estimate, there were no other documents except the estimate, noting of
Junior Engineer, Zonal Engineer and Executive Engineer. When the file
was received the second time, it was after acceptance of the tender for
financial concurrence. When the file was received int his case for the third
time, it contained measurement book, agreement file, completion report,
test check report and bill forms etc. duly signed by the concerned
Engineers for signing the pay orders. He stated that he had not verified
the purchase vouchers and invoices. These were verified by the
concerned J.E. and Z.E. who had worked at the Site.
10. PW6 Ms. Lekha Pawar, Head Draftsman, Office of
Superintendent Engineer (South West), Delhi Jal Board, New Delhi stated
that from April, 2003 to January, 2012 she was posted as Draftsman in the
office of Executive Engineer, South Zone. She stated that as part of her
duty she was to check estimate prepared by the Junior Engineer for any
work and after preparation of the said estimate it is initiated by the Junior
Engineer and it is submitted to the Assistant Engineer who further marks it
to the Executive Engineer. A draftsman received the file regarding
estimate through Executive Engineer for checking of estimates. She
stated that the file Ex. PW5/A is regarding boring of tubewell5 numbers
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.16 of 58
R/S at A,B and L Block, Sangam Vihar, SouthI. She stated that as per
this file the history sheet was prepared by accused Mukut Mani for an
amount of Rs. 13,86,285/. The case history sheet was proved as Ex.
PW6/A. She also proved two other estimates prepared by accused K.N.
Dhyani and Anil Sharma Ex. PW6/B. She stated that the estimate was
forwarded to her by Executive Engineer. The estimates were checked by
Smt. Usha Arora another draftsman in their office. The file was put up
before Sh. Anil Sharma dated 25.4.2006 through Junior Accountant for
sanction. Sanction was granted by Superintendent Engineer on
26.4.2006. She also stated that the last date for submissions of tenders
was fixed 08.5.2006. She also stated that as per file Ex. PW5/A 9 tenders
were received on 09.5.2006 and M/s Raghvendra Borewell had quoted
lowest rates. She also proved completion report Ex. PW5/A5. She stated
that the work is entered in the measurement book. As per completion
report, total 150 MM Johnson Pipe of 245 meters have been used. The
completion report bears signatures of Executive Engineer, Delhi Jal Board.
The completion report was marked to her for checking and after checking
the same, Executive Engineer had approved the completion report.
On being cross examined by Ld. Counsel for accused persons
she stated that after completion report the file was marked to her through
Executive Engineer for checking. She stated that Executive Engineer is
not supposed to sign each and every document attached with the file. She
stated that the Measurement Book entry starts as soon as the work starts
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.17 of 58
at the site. The Executive Engineer signs all the relevant documents of
the job work. She stated that the Measurement Book is kept in the
accounts office till the final payment is made to the party. The
Measurement Book is not issued for any particular job, but is common for
number of jobs undertaken by Delhi Jal Board, however, one Junior
Engineer is issued one Measurement Book for all the works undertaken by
him. The Measurement Book is not kept in sealed cover and remains in
the office of Junior Engineer in the accounts office. She stated that she
does not know who can have access to the Measurement Book at different
level. She stated that she does not know whether the Measurement Book
was sent to CBI. She denied that she was deposing falsely.
11. PW7 Dr. D.V. Reddy, Senior Principal Scientist, National
Geophysical research institute stated that in June, 2012 he had helped
CBI to inspect the Borewells of Delhi Jal Board Using the bore hole
camera. On seeing memos and site plans Ex.PW3/E, Ex.PW3/F1 to
Ex.PW3/F8, he stated that the same were prepared in his presence and
he had signed them in token of their correctness. He also identified his
signatures on the said memos and site plans. He proved Expert report
dated 27.11.2012 Ex.PW7/A consisting of 13 pages and stated that the said
report was prepared by him at the request of CBI and bears his signatures
and official seal on each page. He proved the CD pertaining to the sites in
the present case Ex.PW7/D and after it was played, he stated that page
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no. 389 of his report Ex.PW7/A pertains to the video file name "Sangam
Vihar L4897 and page no. 387 of his report Ex.PW7/A pertains to video
file name "Sangam Vihar L1". He also stated that in both the videos, no
Johnson Pipe could be seen.
On being cross examined by Sh. Arun Satija and Sh.
Sandeep Dhingra, Ld. Counsels for accused no. 3 B. Jaypal Reddy and
accused no. 4 M/s. Raghavendra Borewell he stated that he does not
remember as to whether the borewell was in running condition when they
had reached the spot for the inspection. He stated that he had not
prepared any Compact Disk on the day of the inspection. He had
prepared the CD in the laboratory at Hyderabad after a month. He stated
that he had prepared one or two CDs pertaining to this case. The CDs
were handed over to CBI officials who had visited Hyderabad in unsealed
condition. The camera which was used for the purpose of recording the
proceedings during the inspection was not seized by the Investigating
Officer. At the time of inspection, video recording of the borewell was
done in a palmtop. The palmtop was not seized by the Investigating
Officer. For preparing the CD, the data recorded in the Palmtop was
initially downloaded in the laptop and later on the same was transferred in
the CD. For that purpose MP4 format was used. He stated that he does
not know as to whether MP4 format can be edited or not. He admitted
that there is no inbuilt mechanism in the camera used for inspection and
recording proceedings in the present case to know at which depth the
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.19 of 58
camera had been lowered to. The camera had graduated cable which has
marking regarding the depth. Whenever the cable is lowered, the depth at
which the camera is, will be recorded by the voice using the microphone.
The cable and the recording system are also part of the camera. He
denied that the cable did not have marking measurement. He denied that
a false report had been given by him at the instance of CBI to suit
prosecution's case. He denied that the CD prepared during the inspection
of the site i.e. L1 Block, Sangam Vihar does not reveal as to which pipe
had been installed. He stated that he can tell the difference between MS
Slotted Pipes and Johnson Pipes. He stated that MS Slotted pipes have
four vertical slots with some gap around the pipes and the same thing
continues at the entire length. He stated that the Johnson Pipes are
entirely different and have a fine wire mesh wrapped over with some
supporting rods. He stated that if the water quality is around 1000 to 2000
Micro Semens per centimetre, the life of the borewell will be around 20
years or even more if Johnson Pipes are installed. Even in case MS
Slotted Pipes are installed its life will be around 15 years or more. He
stated that he cannot tell the quality of the water of the site he had
inspected in the present case. He admitted that if the water is muddy, the
camera is not able to take picture of the borewell. He admitted that in the
report Ex. PW7/A, page no. 387 and 389 in the head of observations it is
no where mentioned that Johnson Pipes were not used. He stated that as
per the strata chart given by the contractor the well was drilled and
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.20 of 58
completed upto 159 meters and the present well depth is 145 meters. The
casing had been done only upto 94 meters.
12. PW8 Sh. Anil Kumar Ahuja, stated that in July, 2012 he
was posted as Special Assistant, Corporation Bank, Jal Vihar, Lajpat
Nagar. He has proved production cum seizure memo dated 24.7.2012
which was seized by CBI from his possession. He stated that the
certificate in respect of statement of account in the name of M/s
Raghvendra Borewell was issued by him.
On being cross examined by Ld. Counsel for accused persons
he stated that his statement under Section 161 Cr.P.C was not recorded by
CBI. He admitted that the statement of account does not bear his
signatures or signatures of any officer of the Bank. He admitted that
certificate Ex. PW8/A2 does not bear date of issuance of the said
certificate.
13. PW 9 Sh. Vivek Nand Badoni, UDC, Delhi Jal Board, Office
of Executive Engineer, SouthI, Saket, New Delhi stated that he is posted
in Delhi Jal Board since 2003. He stated that he has worked with and is
still working with Sh. Anil Sharma, Executive Engineer and thus can
identify his signatures. He proved the letter dated 11.2.2012 regarding
description of the documents/article/information Ex.PW9/A and stated that
the same bears the signatures of Sh. Anil Sharma at point A. He also
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.21 of 58
proved letter dated 02.11.2012 regarding posting details of the
officers/officials working in the division Ex.PW9/B and identified the
signatures of Sh. Anil Sharma at point A. He further proved the posting
details of the officers annexed with the said letter Ex.PW9/B signed by Sh.
Ramesh Kumar, OS, South Ex.PW9/C.
On being cross examined by Sh. Rakesh Kakkar, Ld. Counsel
for accused no. 1 K.N. Dhyani and accused no. 2 Mukut Mani he admitted
that he has no personal knowledge regarding the contents of documents
Ex.PW9/A, Ex.PW9/B and Ex.PW9/C. He stated that he has merely
identified the signatures of Sh. Anil Sharma since he has seen him writing
and signing during the course of his official duties. He admitted that on
the day when he was called for verification and identification of signatures
of Sh. Anil Sharma, he was working in Delhi Jal Board and was in Delhi.
Sh. Arun Satija and Sh. Sandeep Dhingra, Ld. Counsels for
accused no. 3 B. Jaypal Reddy and accused no. 4 M/s. Raghvendra
Borewell adopted the same cross examination as conducted by Ld.
Counsel for accused no. 1 and 2.
14. PW10 Sh. Bansi Lal, Assistant Accounts Officer, Delhi Jal
Board, Office of Executive Engineer, SouthI, J Block, Saket, New Delhi
stated that he is working as Assistant Accounts Officer Since December,
2010 in EE (South) I, Saket. In case of tube wells, estimate is prepared by
the JE and sent to Junior Account for booking of budget. Thereafter, the
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.22 of 58
estimate is sent to the Accountant/AO for concurrence of estimate if the
expenditure to be incurred is more than Rs. 50,000/. After concurrence of
Accountant on estimate, the tenders are called through NIT. The tenders
are opened by the Junior Accountant in the presence of EE and Tender
Clerk. Signatures are endorsed by the Junior Account and EE on the
tendered documents so opened. After opening the tender, the entries of
tenders are made in tender opening register by Tender Clerk and tender
register is signed by him, Junior Accountant and EE. Thereafter,
comparative statement is prepared by the JE and L1 is selected and the
file is sent for preparation of justification of rates. After accepting the
lowest tender by EE the file is forwarded to Junior Accountant by EE for
obtaining concurrence of Accountant/AO. In the meantime, JO checks the
calculation before forwarding the file to the AO. After concurrence given
by the AO the file is sent back to EE for issuing work. In case where rate
of L1 is much lesser than the rates of justification then the observation is
made by the EE and AO to the effect that it is not feasible by the tenderer
to execute the work and tender is rejected by EE with the concurrence of
AO. After completion of work, the bills are submitted to Junior Accountant
through EE for payment. The bill is submitted with the documents i.e.
Labour Insurance submitted by the Contractor, Purchase Voucher
Submitted by the Contractor duly verified by the concerned JE, AE and
EE, water testing report, test check report duly signed by concerned AE
and EE, completion report duly signed by JE, AE, EE and Drafts Man,
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.23 of 58
Strata Chart duly signed by the contractor, JE, AE and EE and
degree/diploma of the person engaged by the Contractor for executing of
work. After ensuring that the above documents are attached with the bill,
the JA scrutinizes the rates and makes necessary deductions viz income
tax, VAT etc. for reaching the final calculation for payment of the bill and
then file is sent to Accountant for signatures on pay order and payment is
released to the Contractor through Cheque or EFT.
On being cross examined by Sh. Sandeep Dhingra and Sh.
Arun Satija, Ld. Counsels for accused no. 3 B. Jaypal Reddy and accused
no. 4 M/s Raghvendra Borewell he stated that his statement was recorded
by the IO at CBI office in this case but he does not remember on which
date his statement was recorded. No summons were issued by CBI for
the purpose of recording his statement. He also stated that he has no
personal knowledge about the present case or the documents in this case
being handed over to the CBI. These cases pertain to the year 2006 to
2009 whereas he had joined the present posting in December, 2010. He
had appeared in the Court only on the asking of the CBI to depose about
the general procedure followed by Delhi Jal Board. He admitted that the
EE is the approving authority of the completion report and the purchase
voucher in original submitted by the contractor is duly verified by the
concerned JE, AE and EE. He also admitted that all the bills should be
passed after seeing the MB Book and verified from the same. There is no
MB Book in the Court Record. He stated that the procedure described by
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.24 of 58
him is mentioned in the CPWD Manual and without MB Book no bill can
be passed.
Sh. Rakesh Kakkar, Ld. Counsel for accused no. 1 K.N.
Dhyani and accused no. 2 Mukut Mani, adopted the same cross
examination as conducted by Ld. Counsels for accused no. 3 B. Jaypal
Reddy and accused no. 4 M/s. Raghvendra Borewell.
15. PW11 Sh. Shiv Kumar Bharadwaj, Superintendent
Engineer, Delhi Jal Board (South), Jal Sadan, Lajpat Nagar, New Delhi
stated that during the year 2006, decision regarding boring of tubewell
used to be taken on recommendation of Junior Engineer and AE by the
EE or Superintendent Engineer based on water requirement in the area.
For boring of fresh tube well, permission from District Advisory Committee
under Chairmanship of Deputy Commissioner of the concerned district is
required, however, reboring in place of old defunct tube well can be done
by Delhi Jal Board with the permission from Chief Engineer of that area.
The boring of the tube well involves boring on the ground up to the depth
of specified as per the strata chart in loose soil as well as rocky strata.
After boring is completed, the tube well pipe assembly is lowered in the
tubewell. First of all, the lower most portion of pipe assembly i.e. a blank
cap or 'MS screw cap' is fitted with 'MS steel pipe' and lowered at the
bottom of bore hole. Thereafter, Johnson (Slotted/Strainer) pipe is welded
and further lowered in the said bore hole. The Johnson slotted pipe made
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.25 of 58
of iron with holes is utilized to facilitate the in flow of water from the
surrounding under ground water sources. Above the level of ground water,
MS Steel Pipe is welded with Johnson Pipe and further lowered into the
bore well. This MS Steel Pipe is fitted up to to the ground level and at
sometime slightly above the ground level as per requirement. The
proportion of MS Steel Blank Pipe along with screw cap Johnson Pipe and
MS Steel Pipe assembly varies from bore well to bore well depending
upon the under ground strata of the soil and availability of under ground
water level. In rocky strata, where the depth of bore is very deep, boring
and lowering is done in two stages.
He further stated that as regards preparation and approval of
estimate is concerned, the concerned Junior Engineer of the area submits
the basic prerequisite requirement of the said work in the case for
boring/reboring of tubewells. He also prepares the estimate based on
previously circulated rates by Delhi Jal Board. The rates were circulated
by Planning Division of Delhi Jal Board. The estimate is put up to
Assistant Engineer who forwards it to Executive Engineer with
recommendation for technical and administrative approval. While
forwarding the estimate, Assistant Engineer has to check estimate
technically as to whether the requirement mentioned in the estimate by
Junior Engineer are required or otherwise. In case, Assistant Engineer
has any observation in the estimates he can send it back to Junior
Engineer for revision and correction. After recommendation, the Assistant
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.26 of 58
Engineer submits estimate to EE for technical and administrative approval.
In the same way, after having gone through the estimate the EE marks it to
Draftsman for checking of the rates and calculations mentioned in the
estimate. The draftsman checks the estimates on the basis of rates
mentioned in DSR and approved rates of Delhi Jal Board and put up the
estimate of Executive Engineer for approval. The Executive Engineer
marks the estimate to Junior Accountant for booking tentative budget
liability under appropriate head of account. After booking the liability,
Junior Accountant puts up the estimate to Executive Engineer for approval.
The EE then sends the estimate to accountant for financial concurrence.
After concurrence by the accountant, the EE approves the estimate
technically and administratively up to Rs. 10 lakhs. If, the estimated cost is
more than Rs. 10 lakhs, the EE recommends the estimates to the
concerned SE for technical and administrative approval. SE gets the
estimate checked from Circle Head Draftsman and sends the estimate to
Assistant Chief Accountant for concurrence. After concurrence, the
estimate up to Rs. 25 lakhs is sanctioned by SE and sent back to the
division for further necessary action.
He also stated that as regards inviting of tenders, the work
involving more than Rs. 10 lakhs, a Draft Tender Document is prepared
and sent for approval of competent authority i.e. SE. In other cases (Less
than Rs. 10 lakhs), a tender is prepared by Head Clerk and sent to EE for
approval. No tender committee is constituted for tendering process up to
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.27 of 58
Rs. 25 lakhs. NIT is finalized and issued under signatures of EE. The
tenders are invited in two parts i.e. Technical Bid and Financial Bid. While
issuing the tender form to the contractors, the technical eligibility of the
contractors is checked and thereafter, tender form for financial bid are
issued. The NIT is circulated through notice board at divisional office,
website of Delhi Jal Board and the copies are sent to various offices in the
headquarter and to registered contractors etc.
He also stated that when tenders are issued, the EE sends
the estimate file to Draftsman section for preparation of advance
justification of rates. The justification of rates for work up to Rs. 10
lakhs/Rs. 25 lakhs is approved by EE and SE respectively. The tenders
are received in the office of EE in the tender box or through post or by
hand and the same are opened on the date fixed in the tender documents.
No tender is received after expiry of the date and time mentioned in the
NIT. At the time of opening of tender, EE and Junior Accountant sign on
each and every tender and encircle and sign the rates mentioned by the
respective tenderer. The tender clerk records the details of tenders in the
presence of EE and Junior Accounts Officer in tender opening register and
the same is signed by them. The tenders are invited in two parts (Part A:
Technical Bid and Part B: Financial Bid). Firstly, the part A is opened and
if found eligible, then financial bids are opened. In case of tubewells
percentage rate, tenders are invited in which the contractors are required
to mention the percentage rate above or below the bill of quality amount.
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.28 of 58
A comparative chart is prepared by the head clerk and the proposal is put
up before EE for award of work. Ordinarily, eligible contractor who has
quoted the lowest rate is selected for execution of work. The justification
of the rates are opened and compared with the rates of L1. The Tender
Clerk/Head Clerk/Dealing Hand moves the noting in file that rates quoted
by the contractors are higher/lower than justification of rates in terms of
percentage and put up to EE after recommendation of AE. The file is sent
to Junior Accountant for checking from financial point of view and their
recommendations. If the quoted rates of the L1 are within the justification
of rates and comparable to the recently received rates for similar works,
the EE accepts the rates for works up to Rs. 10 lakhs and sends the file to
the Accountant for concurrence. After concurrence of accounts, the work
order is issued. If the quoted rates of L1 are higher than the departmental
justification of rates or if there is any scope for reduction in rates even if
the rates are lower than the departmental justification then the L1 is called
for negotiations in the chamber of EE/SE for works costing Rs. 10
lakhs/Rs. 25 lakhs respectively. The work order is awarded to the L1 on
negotiated rates after concurrence from Finance and acceptance by the
competent authority. If the contractor does not reduced rates within the
justification rates of department, then the tenders are reinvited.
Work order is issued by the Executive Engineer to L1.
Contract Agreement is signed between Executive Engineer on behalf of
Delhi Jal Board and the Contractor. The contract agreement includes the
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.29 of 58
general conditions, special conditions, safety clauses etc. Tubewell boring
starts at site. During boring soil/rock strata coming out of bore is
preserved and examined and based on soil/rock strata, actual length of
slotted and blind pipe to be lowered in the bore is determined. This may
differ from the actual quantities taken in the bill of quality. The pipes are
brought at site by the contractor. Pipe brought at site are to be checked
physically in a random manner for dia, thickness, length as per
specification mentioned in the bill of quality by Field Engineers i.e. JE, AE
and EE. On being satisfied with the material, the execution of work is
permitted, however, their findings are not recorded anywhere regarding the
checking of the material. After completion of boring, the lowering of pipes
takes place and then Pea gravel is filled all around the pipe and then
development of bore is started by compressor till the bore starts giving
clean and continues supply of water. After that electrical fitting and
lowering of submersible pump is done by E & M Wing.
He stated that as per Delhi Jal Board Circular No. 56103
dated 28.5.2008 already exhibited as Ex. PW3/G (D22) and earlier to this
circular while executing the work, the JE is supposed to conduct 100% test
check and he will record the measurements in the Measurement Book.
The AE in the same manner is required to conduct test check 50% of the
work the EE to conduct 10% test check of the total work. The test check is
recorded in the MB duly signed by JE, AE and EE. So far as meaning of
10% is concerned, it is clarified that 10% of total cost of the work.
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.30 of 58
Accordingly, these entries of MB are reflected in the test check report
which is signed by the AE and EE. During the course of payment, the JE
prepares bill form, completion report in agreement with MB Book. The
contractor will submit the purchase voucher in original and strata chart to
the JE and after endorsing the signatures on these documents by JE, AE
and EE the same will be enclosed with the bill. He also stated that as per
guidelines stipulated in instructional order issued vide memo No. DJB/DIR
(F and A) 2000/290 dated 06.9.2000 already exhibited as Ex. PW3/B1
under the signatures of Sh. Vinay Kumar Jha, Director (Finance and
Accounts) the contractor will submit the original purchase voucher for
clearing the bills. All finance officers are duty bound to ensure that
contractors bills submitted to them for clearance are duly and properly
verified, including the verification of the procurement bill is original. At the
time of submitting bill, the contractor also submits a certificate viz.
diploma/degree of the persons who have been engaged by him for day to
day supervision of the work to be conducted at the site. A certificate to the
effect that the contractor has not used any infrastructure of the Delhi Jal
Board exclusively of the water used during the installation of the tube wells
is to be given by the contractor which is also enclosed with the bill at the
time of payment.
He stated that Completion report prepared by the JE and
signed by the ZE is marked to EE to draftsman for checking. The
completion report up to Rs. 10 lakhs and variation up to 10% is approved
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.31 of 58
by the EE. If completion cost is more than Rs. 10 lakhs and up to Rs. 25
lakhs, then it is recommended by EE to SE. The report is checked by
Circle Head Draftsman and accountant and thereafter, it is approved by
SE. In the course of tendering if only one responsive bid is received, then
work order can be given to that contractor on single tender with the
approval next higher authority (higher to the authority who had delegated
powers for accepting tenders of that amount). In this case rates are
checked whether they are reasonable or not i.e. Below the departmental
justification. The repeat order can also be issued in case of urgency and
on the rates of previously awarded work of similar nature with the approval
of Chief Engineer and concurrence of finance. On seeing the letter No.
DJB/DIR (F&A) 2000/240 dated 06.9.2000 having instructional orders from
Director (F&A) already Ex. PW3/B1 (D15) he stated that the Finance
officer according to this letter has to ensure that contractors bill submitted
for payment has to include the original procurement bills of material such
as pipes, cement, steel and valves etc. He also stated that as per letter
dated 16.2.2012 already collectively exhibited as Ex. PW3/B2 (D15)
issued by Chief Engineer (C1) Johnson make pipe was suggested for use
in tube well by Central Ground Water Board. He also stated that as per
letter dated 27.5.2004 already Ex. PW3/B3 (D15) issued by the Director
(F&A) delegations of power have been mentioned. As per the annexure of
this letter, EE is competent up to Rs. 10 lakhs and above this up to Rs. 25
lakhs, SE is competent. As per letter dated 26.02.2008 issued by EO to
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.32 of 58
Member (WS), rates are adopted in Delhi Jal Board. The said letter is
already exhibited as Ex. PW3/B4 (D15). The letter dated 14.01.2004
issued by Member (WS) procedure and maintenance of MB Book is
mentioned and as per this JE is responsible for maintenance and Junior
Accountant has to conduct review of MBs and the same was already
exhibited as Ex. PW3/B5 (D15).
On being cross examined by Sh. Arun Satija and Sh.
Sandeep Dhingra, Ld. Counsels for accused no. 3 B. Jaypal Reddy and
accused no. 4 M/s Raghvendra Borewell he stated that the normal life of
the borewell depends upon quality of water and quantity of water i.e.
Water table. It may vary from 3 years to 5 years. But, sometime due to
depletion of ground water table, the tubewell may become defunct even in
a year. He stated that for making a tubewell functional, MS Blank Pipe
and Slotted Pipe are required. The slotted pipe facilitates entry of ground
water into the tubewell. Without slotted pipe, tubewell will not function as
ground water will not be able to enter into the tubewell. He also stated that
there are certain directions from the department circulated vide circular
vide which Junior Engineer has to check 100%, Assistant Engineer has to
test check 50% and Executive Engineer has to test check 10% of cost of
work. He clarified that the test check means checking of quality, quantity
and dimensions (Physical/Execution of work). He admitted that it is
mandatory for all civil works unless some other conditions are mentioned
in the contract. He stated that he is not aware about the facts of the
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.33 of 58
present case and has no knowledge about the quantum of test checking in
the present case. He admitted that all the entries regarding the physical
execution of work done is mentioned in the Measurement Book. He
admitted that on the basis of the entires in the Measurement Book, the
payment of the contractor is released after completion of all the formalities.
The contractor has to submit bills regarding procurement of materials
utilized in the work. He also admitted that as per the circular passed by
Director (Finance), checking of the documents has to be done before
making of payments. He stated that he is not sure that the signatures of
AE, JE and EE are made on all the bills/documents simultaneously, but a
certificate is given by the Junior Engineer and Assistant Engineer
regarding the quantity of that material utilized for the work. He also stated
that he is not sure as to whether the same is counter signed by the
Executive Engineer.
On being cross examined by Sh. Rakesh Kakkar, Ld. Counsel
for accused no. 1 K.N. Dhyani and accused no. 2 Mukut Mani he stated
that CPWD specifications are there which are used for execution of civil
works. He stated that he has no specific knowledge regarding the code
"CPWD" is for hidden items. The completion report is prepared by the JE,
signed by the AE and then EE either approve it or recommend it for the
approval to the Superintendent Engineer based on delegation of powers
by the department. He admitted that completion report is prepared based
on the quantities mentioned in the Measurement Book. He further
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.34 of 58
adopted the same cross examination as conducted by Ld. Counsel for
accused B. Jaypal Reddy and accused M/s Raghvendra Borewell.
16. PW12 Sh. Y.B. Kaushik, Superintending HydroGeologist,
Central Ground Water Board, West BlockII, R.K. Puram, stated that in
September, 2012 he was posted as ScientistD, Central Ground Water
Board, North Western Region, Chandigarh. He stated that the Central
Ground Water Board had authorized him to assist CBI in this case to find
out the type of wellassembly in the tubewell. The camera and
measurement proceedings were conducted in my presence and
documents in this regard were also prepared. He stated that the Site
Inspecting Memo Ex.PW3/F5, Rough Site Plan Ex.PW3/F6, Site
Inspection Memo dated 11.9.2012 Ex.PW3/F7 and Rough Site Plan
Ex.PW3/F8 were prepared in his presence and he had signed them after
going through the contents of the same having found them correct. He
identified his signatures of these Memos and Site Plans at point C.
On being cross examined by Sh. Arun Satija and Sh.
Sandeep Dhingra, Ld. Counsel for accused no. 3 B. Jaypal Reddy and
accused no. 4 M/s. Raghvendra Borewell he stated that he has not
brought the written authorization given by his department to assist CBI in
the present case. He stated that Dr. D.V. Reddy was not appointed at his
recommendation by CBI. He stated that they had suggested CBI to
approach NGRI as they had borewell cameras to assist them in this case.
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.35 of 58
He had assisted Dr. D.V. Reddy on technical aspect such as informing him
about hydrogeology of the area. He admitted that the borewell camera
can view only up to the depth till it is obstruction less, even if mud or any
obstruction is at a particular level the camera cannot view below that
obstruction or mud. He stated that the borewell camera procedure is full
proof method subject to visibility and the passage being obstruction less.
He admitted that if there is any obstruction or mud at a level of 150 meters
or any level, the camera cannot scan beneath it. He stated that this was
for the first time when he had assisted any organization in such work. He
stated that document work was conducted at the spot and everyone had
signed it at the spot.
On being questioned by Ld. Counsel as to how many days a
borewell can sustain without pipes, he stated that it depends on the
aquifer (rock type) of the area. If it is hard rock, tube well will remain for
long time for years together, but if it is alluvial area, tube well may not
sustain for long without pipes. He stated that in the present case hard
rocks are overlained by alluvium. He denied that he was not present at
the site mentioned in the aforesaid memos. He further denied that his
signatures were taken on the aforesaid memos and site plans by CBI at
CBI Office. He had not brought any document to show his presence at the
sites mentioned above on the relevant time. He denied that there is no
other record to show his presence at the site.
On being cross examined by Sh. Rakesh Kakkar, Ld. Counsel
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.36 of 58
for accused no. 1 K.N. Dhyani and accused no. 2 Mukut Mani, he stated
that he does not know as to how many persons were present at the time of
inspection, however, 1012 persons used to be present at the spot. He
also stated that he does not remember whether the camera inserted by Dr.
D.V. Reddy in the borewell situated at L489, Gali no. 7, Sangam Vihar,
New Delhi had been put once or many times. He could not say as to how
much time was consumed in the inspection of the borewell in the present
case. He stated that the report was not prepared in his presence by Dr.
D.V. Reddy, therefore, he does not know as to whether he had mentioned
in it that he had assisted him technically. Dr. D. V. Reddy had recorded
the scanning on IPad was not handed over to the CBI in his presence.
He adopted the same suggestions as made by Sh. Sandeep
Dhingra, Ld. Counsel for accused no. 3 B. Jaypal Reddy and accused no.
4 M/s. Raghuvendra Borewell.
17. PW13 Inspector Kailash Sahu, CBI, ACB, New Delhi stated
that he was posted as Inspector, CBI, ACB, New Delhi in the year 2011.
He also stated that initially Preliminary Enquiry bearing no. P.E. DAI2011
A0010/CBI/ACB/ND was conducted and during the preliminary enquiry he
had seized the documents through ProductioncumReceipt Memo dated
23.11.2011 from Sh. Pradeep Shekar, A.E., Civil, Vigilance Department,
Delhi Jal Board. He proved the same as Ex.PW13/A and stated that the
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.37 of 58
documents mentioned in the said Memo at serial no. 1 (a) is CA file which
is already Ex.PW5/A and another document mentioned in the said Memo
at serial no. 1 (b)a are from page no. 1 to 20 which includes Ex.PW5/A4 to
Ex.PW5/A8. He proved another ProductioncumSeizure Memo dated
11.01.2012 as Ex.PW13/B and stated that vide this Memo the documents
enlisted at serial no. 1 to 5 were seized from him by Inspector Pramod
Kumar. He further proved another ProductioncumReceipt Memo dated
25.11.2011 as Ex.PW13/C and stated that vide this memo document
enlisted at serial no. 1 to 3 were received by him from Sh. Raj Krishna
Singhal. The documents mentioned at serial no. 1 of the said memo are
certified copies of ledger accounts of Bharati Water Pvt. Ltd. and same are
already Ex.PW4/H. He further stated that vide ProductioncumReceipt
memo Ex.PW4/F the documents from serial no. 1 to 2 were received by
him from Sh. Kamal Kumar Aggarwal and bears his signatures at point B.
He further stated that vide ProductioncumReceipt Memo dated
28.11.2011 he had received the documents mentioned at Serial no. 1 to 6
from Sh. Vikas Rathi and the said memo bears his signatures at point A.
He also stated that the preliminary enquiry conducted by him was later on
converted into RC vide RC no. DAI2011A0031.
On being cross examined by Sh. Rakesh Kakkar, Ld. Counsel
for accused no. 1 K.N. Dhyani and accused no. 2 Mukut Mani he stated
that he had obtained documents on different dates from the respective
persons. The documents pertaining to Delhi Jal Board were received in
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.38 of 58
the Office of Delhi Jal Board and the documents of M/s. Bharati Waters
Pvt. Ltd. were received in the CBI Office. He stated that these documents
were not sealed by him. He had gone alone to the office of Delhi Jal
Board for collecting the documents.
On being cross examined by Sh. Arun Satija and Sh.
Sandeep Dhingra, Ld. Counsel for accused no. 3 B. Jaypal Reddy and
accused no. 4 M/s. Raghvendra Borewell he stated that he had issued a
letter to M/s. Bharati Waters Pvt. Ltd. for production of the required
documents. He had recorded the statements of some of those persons
from whom he had collected the documents. He stated that the
preliminary enquiry conducted by him, preliminary enquiry report and
statements recorded by him during preliminary enquiry are not on judicial
file. He stated that IO Inspector Pramod Kumar had not recorded his
statement. He denied that he had not conducted preliminary enquiry
properly and that the case was not fit for conversion into RC. He stated
that he does not remember whether he had recorded any statements of
the accused persons or had called them during preliminary enquiry. He
denied that the preliminary enquiry was conducted in biased manner.
18. PW 14 Inspector Pramod Kumar is the Investigating Officer
who stated that in the year 2011 he was posted as Inspector in CBI and
the present case was entrusted to him for investigation by the then SP Sh.
Ganesh Verma. He stated that he had collected documents in this case
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.39 of 58
from Inspector Kailash Sahu who had conducted the preliminary inquiry in
this case. He had also collected the documents from M/s Bharti Waters
Pvt. Ltd. through its Proprietor Sh. Kamal Aggarwal vide production cum
seizure memo Ex. PW4/A. He also proved other documents seized during
the investigation and the memos were prepared during the investigation.
He stated that he had recorded statement of witnesses under Section 161
Cr.P.C correctly and after completion of challan he had filed the charge
sheet.
On being cross examined by Ld. Counsel for accused persons
he stated that PW7 Dr. D.V. Reddy is not on the panel of CBI. He stated
that in the present case, instructions to take services of Dr. D.V. Reddy
were issued orally by their DIG Sh. Santosh Rastogi. The FIR in the
present case was lodged after conversion of PE. PE was conducted by
Inspector Kailash Sahu. He had tagged the documents relating to the
aforesaid PE with the Judicial File. He stated that during the investigation
he had neither collected nor verified any documents from M/s Bharti Water
Pvt. Ltd. so as to show that M/s Bharti Water Pvt. Ltd. was the sole
distributor of Johnson Pipes. He also stated that he had also not collected
the documents or verified the fact that M/s Bharti Water Pvt. Ltd had
appointed any dealer or subdealer to sell Johnson Pipes. He also stated
that he had not collected any resolution of M/s Bharti Water Pvt. Ltd. or
any memorandum of articles to show that Sh. Kamal Aggarwal was the
Director of M/s Bharti Water Pvt. Ltd. He admitted that he had not verified
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.40 of 58
the stocks and sales position of Johnson Pipes of M/s Bharti Water Pvt.
Ltd. during the relevant time for the relevant period. He stated that he had
also not checked physical stock of Johnson Pipes with M/s Bharti Water
Pvt. Ltd. He stated that he does not remember whether the documents
seized from Ajay Arora were got verified from the Banks, Income Tax
Department or Chartered Accountant of Sh. Ajay Arora or verified from the
stock position of Sh. Ajay Arora. He admitted that the payment in this
case had been released to accused B. Jaypal Reddy of M/s Raghvendra
Borewell after completion of work. He stated that all the bills and vouchers
were properly verified by the accounts department as well as by the other
officers with the measurement book and completion report and thereafter
the payment was released. He admitted that the borewell in question in
this case were in running condition at the time of inspection. He admitted
that he had not verified anything about the employees working with M/s
Bharti Waters Pvt. Ltd. in the year 200607. He had not seized any
computer or typewriter from the office of M/s Bharti Waters Pvt. Ltd. He
admitted that the employees of M/s Bharti Waters Pvt. Ltd. had signed the
bills and invoices, but he had not examined them. He had not investigate
the sale/purchase record of M/s Bharti Waters Pvt. Ltd. He had also not
made any inquiry from the Sales Tax Department and Income Tax
Department regarding the sale/purchase record of M/s Bharti Waters Pvt.
Ltd. during the period 200607. He stated that he had not seized any bill
book of M/s Bharti Waters Pvt. Ltd. He stated that the Measurement Book
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.41 of 58
in CA No. 57/200607 is missing from the office of Delhi Jal Board. He
stated that the documents collected from M/s Jain Traders were not got
verified from banks or from any other authority. He stated that the had not
recorded the statement of Bankers of M/s Jain Traders. He stated that he
had not obtained specimen handwriting and specimen signatures of any
accused or any witness. He stated that he does not know as to when the
file for obtaining sanction for prosecution was sent to the Sanctioning
Authority. He stated that he had not collected documents to show the type
of strata in Sangam Vihar, LBlock. He had not prepared memo regarding
verification of functioning of camera and specification of its make at the
time of inspection. He stated that the recording of the borewell was done
on the palmtop. He had not seized the said camera and the said palmtop
in this case used by Dr. D.V. Reddy for recording and transferring the data.
The CD was not prepared in his presence and was received by him from
SP office. The CD was in unsealed condition. He had not sent the CD to
CFSL. He stated that he cannot say whether the document Ex. PW4/C to
Ex. PW4/E are computer generated documents. He had not made any
inquiry from Mr. Kamal Aggarwal whether the above documents are
computer generated or typed. He had not shown these documents to any
employee of Mr. Kamal Aggarwal to find out as to who had prepared or
signed these documents. He had not verified the TIN number mentioned
on the bill from the concerned Department. He stated that he had not
contacted or issued any notice to manufacturer of Johnson Pipes. CBI
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.42 of 58
has also never verified from the Manufacturer of M/s Johnson Pipes
whether M/s Bharti Waters Pvt. Ltd. were the sole authorized distributors
in Delhi. He had also not obtained any document in respect of the
authorization given by the manufacturer to M/s Bharti Waters Pvt. Ltd. as
their sole distributor in Delhi. He has also not seized any Johnson Pipe or
the other pipe used in the borewell from the tubewell sites inspected by
them with Delhi Jal Board. He has also not verified as to whether M/s
Bharti Waters Pvt. Ltd. was doing their business with some other name
earlier to incorporation as M/s Bharti Waters Pvt. Ltd. He has not verified
from the office of Registrar of Company whether M/s Bharti Waters Pvt.
Ltd. had been registered with them. He admitted that the Executive
Engineer Anil Sharma is responsible for the text check upto 10% of the
work order. He admitted that Executive Engineer Anil Sharma had counter
signed the bills signed by accused K.N. Dhyani and accused Mukut Mani.
He stated that they had seized rules and regulations of Delhi Jal Board
which are on the case file.
19. PWs Sh. Sukhchain Singh, Sh. Ajay Arora and Sh. Raj
Kumar Jain mentioned at serial no. 6, 7 and 9 from the list of witnesses
were dropped vide separate statements of Ld. Senior PP for CBI dated
10.4.2013, 26.7.2013 and 27.5.2014 respectively since the facts which were
to be proved by them, were already proved by the other witnesses.
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.43 of 58
20. Prosecution Evidence was closed thereafter.
21. Statement of accused K.N. Dhynai, accused Mukut Mani and
accused B. Jaypal Reddy were recorded U/s 313 Cr.P.C in which the
accused persons have stated that they are innocent and have been falsely
implicated in this case. They refused to lead any evidence in their
defence.
22. Final arguments were heard on behalf of Sh. Akshay Gautam
Ld. Special PP for CBI as well as Ld. Counsel for accused persons. I
have heard arguments at bar and have carefully gone through the case
file.
23. The main contention of CBI in this case is that as per terms
and conditions of the contract, the contractor was supposed to use slotted
pipe of the Johnson make in the tubewells. However, the contractor in this
case has submitted not only fake and forged bills of purchase purported to
be of Johnson pipe from M/s. Bharati Waters Pvt. Ltd. but had also failed
to use Johnson slotted pipes as per the contract. To prove so, CBI has
examined Dr. D.V. Reddy, Scientist, National GeoPhysical Research
Institute, who has experience in ground water in different Hydro Geological
environs. He has used a camera known as Bore Hole Camera with
provision for lightening, audio and video recording. This camera can be
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.44 of 58
used by connecting it with monitor on the ground surface and the images
so captured can be seen and recorded in the recording device and can be
seen on the monitor. Similarly, with the help of voice recording, other
related information as to depth, obstacle etc. can also be recorded.
24. Therefore, to prove the case of prosecution regarding the
point as to whether slotted Johnson Pipes were used or not the most
crucial testimony is to PW7 Dr. D.V. Reddy as well as PW12 Sh. Y.B.
Kaushik. I have gone through the testimony of Dr. D.V. Reddy who has
explained the procedure of evaluation of the depth of the well and the type
of casting used. He has deposed that as per his inspection report Ex.PW
7/A, at site Sangam Vihar L1 Block there was total 600 m pipe out of
which 400 m was blank pipe and 200 mm was MS slotted pipe and there
was no Johnson pipe. As far as Site L489, Sangam Vihar is concerned
there was total 650 m pipe out of which 200 m was blank pipe and 300 m
was dia blank pipe and there was no Johnson pipe.
25. Since the entire case of the prosecution depended on the
video footage contained in CD, it was played during the course of trial at
the time of recording of evidence of the relevant witnesses as well as
during the course of final arguments. I have seen the video footage. The
video footage shows that Dr. D.V. Reddy while lowering the graduated
cable can be heard declaring the various levels of depths reached, striking
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.45 of 58
of water level, noticing of stones and obstacles while lowering the
graduated cable and camera. At no point of time of the video footage he
can be heard as to what kind of casing or pipes have been used and up to
what particular level. There is also no mention as to where no casing can
be seen. It will be noteworthy that Dr. D.V. Reddy could see the images
on the palmtop while this video footage was being prepared. It is not clear
as to why Dr. D.V. Reddy who had been specifically assigned, the duty of
finding out the casing and the type of pipes used in the bore well, did not
utter a word about the same.
26. It is clear that during the inspection proceedings, the images
were viewed from the bore hole camera. When we turn to the report
which he has prepared at his lab in Hyderabad, it reflects that the same is
not conclusive. Since he has observed that as per the well assembly
chart, depth of the well is about 180 m, where top 76.8 m covered with 200
mm dia blank pipe followed by 12 m ERW slotted pipe and further 6 m
blank pipe. At about 94 m the well diameter is reduced to 150 mm and 12
m blank pipe followed by 75 m Johnson type screen and last 6 m is with
blank pipe is fixed. By scanning the bore well with bore hole televiewer, it
is observed that present depth of the well is about 148 m. Top 82 m of the
well is covered with 200 mm dia blank pipe followed by 13 m. MS slotted
pipe and 6 m blank pipe. Well diameter reduced to 150 m at about 100 m
and from there about 40 m heavily damaged MS slotted pipe is seen.
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.46 of 58
27. Moreover, the fact that installation in this case had been done
in the year 20062007 and the bore hole camera had been put inside the
tubewell after about six years, the pump was still working and the water
was available, therefore, at that level Chemical and Geographical changes
due to continuous presence of water, formation of moss and impurities
cannot be ruled out.
Admittedly, the only difference between the MS slotted pipes
and Johnson Slotted pipes is of the mesh. The mesh of the Johnson
pipes is very thin and fine and in case of Moss formation or corrosion, it
would not be possible for camera to find out the nature of pipe or even the
fact whether there is any pipe or not.
The movements of the camera was fast and jerky. In my
opinion if the difference between the MS slotted Pipes, Blank pipes and
Johnson Slotted Pipes was to be found out, the inspection should have
been carried out with that specific purpose in mind. It was the duty of the
Investigating Officer to have ensured that the expert should have focused
the camera at important places, such as the joints etc., to find out the
exact nature of the pipes used. However, as I have observed above, the
inspection, in this case, for borewell was complete within 1015 minutes.
28. It has also come in evidence of PW12 Sh. Y.B. Kaushik that
in case of muddy water, the bore hole camera does not work properly and
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.47 of 58
the images cannot be seen. When the CD was seen in the Court, this fact
becomes clear though this Court is not an expert. There was, however,
reason for seeking scientific help and expert assistance to reach just
decision of this case. When the CD was seen, I could see some places
properly, pipes, water, mud, stones and recuse at the bottom. The
necessary assistance noted by the court was not forthcoming from the
report or from the video footage or the testimony of witnesses. As I have
already observed above that since both the borewells were under pumping
condition and had been installed since long neither the casing, the slotted
portion, blank portion could be seen due to Moss, or corrosion. The
lengths can also not be seen or assessed.
The video footage CD is in MP4 format. Though the witness
has stated that he does not know as to whether the same can be edited or
not but as per scientific information available, MP4 format can be edited.
There is nothing on record to suggest that the CD had been sent to CFSL
to rule out possibility of tampering.
29. Dr. D.V. Reddy has also stated that the tubewell was
functioning and all the witnesses examined by the prosecution including
the witnesses of Delhi Jal Board had deposed that there are no complaints
regarding working of the tubewells.
By way of reproducing the video footage, CBI seeks to prove
its case primarily on the basis of the video footage contained in the CD
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.48 of 58
Ex.P1. The same is covered under electronic evidence covered under I.T.
Act, 2000 and Indian Evidence Act. Section 45 A and Section 65 B of the
Indian Evidence Act may throw light regarding this evidence.
30. Section 45 A Indian
Evidence Act : Opinion of Examiner
of Electronic Evidence - When in a
proceeding, the court has to form an
opinion on any matter relating to any
information transmitted or stored in any
computer resource or any other
electronic or digital form, the opinion of
the Examiner of Electronic Evidence
referred to in Section 79 A of the
Information Technology Act, 2000 (21 of
2000) is a relevant fact.
Explanation For the purpose of this
section, an Examiner of Electronic
Evidence shall be an expert]
31. Section 65 B Indian
Evidence Act : Admissibility of
electronic records -
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.49 of 58
(1) Notwithstanding anything contained
in this Act, any information contained in
an electronic record which is printed on
a paper, stored, recorded or copied in
optical or magnetic media produced by
a computer (hereinafter referred to as
the computer output) shall be deemed
to be also a document, if the conditions
mentioned in this section are satisfied in
relation to the information and computer
in question and shall be admissible in
any proceedings, without further proof
or production of the original, as
evidence of any contents of the original
or of any fact stated therein of which
direct evidence would be admissible.
(2) The conditions referred to
in .........................................................
................................................................
...........................................................
(3) Where over any period ..................................................... ................................................................ CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.50 of 58 ................................................................ ......
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of the electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in subsection (2) relate, and purporting to be signed by a person CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.51 of 58 occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
32. A perusal of these sections makes it clear that as per Section 45 A, the opinion of the examiner of electronic evidence referred to in section 79 A of the Information Technology Act, 2000 is relevant fact. However, to make such evidence admissible in law, the compliance with provisions of Section 65 B of the Indian Evidence Act is essential.
33. Coming back to the facts of the present case, the CD Ex. P1 was not sealed at any point of time. As per Dr. D.V. Reddy the CD was sent in unsealed condition to the IO and accordingly the same was sent to this court also in unsealed condition. The CD, thereafter, was not sent to CFSL to rule out any possibility of editing or tampering or interpolation. The camera, the palm top, the lap top from which the CD had been CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.52 of 58 prepared has not been produced int he Court. Nothing has been brought on record to prove as to who had the lawful control over the computer from which the CD had been prepared. Even at this point regarding the admissibility of CD Ex. P1, I agree with the contention of Ld. Counsel for the accused persons that credible piece of evidence and be discarded. However, while stating so I also remain aware of the fact that this is corroborative piece of evidence only. But in the present case the entire case of CBI largely depends on video footage and evidence of Dr. D.V. Reddy. Regarding forgery of the bill Ex. PW5/A6, it is stated that the bill Ex.PW5/A6 dated 22.5.2006 allegedly issued by M/s. Bharati Waters Private Limited (photocopy of which is Ex.PW4/J1) has infact not been issued to M/s. Raghvendra Borewell but to one Jain Traders. It is stated that Sh. Manoj Jain has been examined to prove that original bill regarding purchase of Johnson Pipes etc. was issued to them on 23.5.2006 and they had proved the same on record. The Ld. Senior PP for CBI has vehemently argued that ledger and the bills produced by PW4 Sh. Kamal Aggarwal, Director, M/s. Bharati Waters Private Limited clearly show that the bill submitted by M/s. Raghvendra Borewell is forged and therefore, not only are they are liable to be punished for committing forgery. The accused persons who had recommended the use of Johnson Pipes and had forwarded the bills should also be punished as they were in conspiracy with M/s Raghvendra Borewell.
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.53 of 58
34. To prove forgery, the prosecution was to prove the alleged forged bill to be forged as per law. In the present case, however, I find that PW Sh. Kamal Aggarwal, in his cross examination, has clearly stated that they were earlier running a partnership firm in the name of M/s. Bharti Waters and as such the bill must have been issued in the said name. A perusal of the alleged forged bill presented by M/s. Raghuvendra Borewell infact mentions the TIN number of Bharti Waters Private Limited which was earlier known as M/s. Bharti Waters. Therefore, the possibility of the bill being issued from the old bill book cannot be ruled out, more so, since the ledger of accounts and the bills produced before the Court were not verified by CBI. CBI has also not verified the fact regarding M/s. Bharti Waters Private Limited being earlier run as M/s. Bharti Waters. The signatures on the alleged forged bill have not been verified to be of any of the accused persons. Specimen signatures of none of the accused persons were taken at any point of time. Stock position of sale and purchase of M/s. Bharti Waters Private Limited was not taken, produced or verified. Even the fact as to whether M/s. Bharti Waters Private Limited were the sole distributors of Johnson slotted pipes in Delhi has not been verified. The computers or account books etc. or the bill books of M/s. Bharti Waters Private Limited have not been seized for reasons best known to CBI. CBI has also not bothered to record statement of any employee of M/s. Bharti Waters Private Limited to ascertain as to who had signed the alleged genuine bills and as to whether the alleged forged bill CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.54 of 58 had been issued from an old bill book or not. There is nothing on record to show as to what happened to the old bill books of M/s. Bharti Waters Private Limited and therefore, in my opinion CBI has not been able to prove beyond reasonable doubt that alleged bill in question allegedly forged had been forged by the accused persons or that there was any conspiracy amongst the accused persons for producing a forged bill and payment being released on strength thereof.
35. Since I have already expressed my opinion above that prosecution has not been able to prove as to whether Johnson Pipes were used in the concerned borewell or not when read along with the above observation, they lead me to one conclusion that prosecution has not been able to prove its case beyond reasonable doubt against any of the accused persons under Section 120 B r/w Sec. 420, 471 IPC and Sec. 13(2) r/w Section 13(1)(d) of P.C. Act 1988.
I, accordingly, acquit all the accused persons of the charges framed against them under Section 120 B r/w Sec. 420, 471 IPC and Sec. 13(2) r/w Section 13(1)(d) of P.C. Act 1988.
I, accordingly, acquit accused No. 1 K.N. Dhyani and accused no. 2 Mukut Mani of the individual charges framed against them under Section 420 IPC and Section 13(2) r/w 13(1)(d) of PC Act.
I, accordingly, acquit accused no. 3 B. Jaypal Reddy of the individual charges framed against him under Section 420, 471 IPC. CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.55 of 58 I, accordingly, acquit accused no. 4 M/s. Raghvendra Borewell, through its proprietor B. Jaipal Reddy of the individual charges framed against it under Section 420 IPC.
36. Bail bond of the accused persons are cancelled and their sureties are discharged. Documents of the sureties be returned to them, after cancellation of endorsement, if any, thereon. However, fresh bail bonds be furnished u/s. 437 A Cr.P.C.
Fresh bail bonds have been furnished and accepted till 07.11.2014.
37. Before parting with this judgment I want to express my anguish regarding the way the procedure for the purpose of calling tenders by Delhi Jal Board as well as their manner of execution of the work of tube wells is carried out. In the present case the Superintendent Engineer has mentioned that it is the duty of the Executive Engineer to check 10% of the execution work. He has failed to do so. Interestingly, he has not only failed to do his duty, the Measurement Book through which it could have been ascertained as to how much work had been done by the contractor is missing. There is nothing on record to suggest that any internal enquiry had been initiated regarding the missing of the Measurement Book in this case as well as as to why the Executive Engineer had not done his part of duty.
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.56 of 58
38. PW7 Dr. D.V. Reddy and HydroGeologist Sh. Y.B. Kaushik have deposed that in Delhi the water level has decreased considerably and the tube well assembly to be used depends on the type of soil and strata which is found under the earth where tube well is to be digged. However, it seems without any regard to the kind of soil strata, similar kind of costlier pipes are being used by Delhi Jal Board. It is also strange that though technology has advanced a lot, Delhi Jal Board has not switched over to plastic pipes which is apparent from the present case.
The inspection procedure too does not seem to be effective. The higher most authority has been entrusted the least responsibility which is very strange.
As per CPWD Manual, XEN has been designated as Engineer InCharge, but he has not been given final responsibility of inspection and checking. The duty of inspection should be specific. Neither the system of checking nor system adopted for inspection of tubewell is scientific. The officers posted on higher positions should have been entrusted with more responsibility as the money of the public is used for installing of tubewell etc. Due to such faults in the system, the real culprits are never caught and the water distribution system in Delhi, undoubtedly, suffers the most. DJB needs to take relook at their systems and internal procedures at the earliest.
CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.57 of 58
39. File be consigned to Record Room.
Announced in the open court on 07.8.2014 (SWARANA KANTA SHARMA) SPECIAL JUDGE, (CBI05), NEW DELHI/07.8.2014 CC No. 87/12 State (CBI) Vs. K.N. Dhyani etc. Page no.58 of 58