Delhi District Court
Cbi vs . R. K. Sharma & Ors. Page No. 1 on 3 October, 2018
IN THE COURT OF ARVIND KUMAR
SPECIAL JUDGE, CBI-01, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
CC No : 04/2014
CNR No : DLND 01-000904-2014
RC No : 02(A)/2012
Branch : CBI/AC-III/New Delhi
U/S : 120B, 420, 468, 471 IPC &
13(2) r/w 13(1)(d) of P C
Act, 1988
CBI .......Complainant
Versus
1. Rakesh Kumar Sharma
S/O Sh. Ram Kishore Sharma
Executive Engineer , Palika Kendra
17th Floor, NDMC, New Delhi ......Accused no. 1 (A-1)
2. Anil Kumar Dhingra
S/O Late Sh. Major L. R. Dhingra
Managing Director of
M/s Decor India Pvt. Ltd.
C-197, Ground Floor, Defence Colony
New Delhi ......Accused no. 2 (A-2)
(Now deceased)
CBI Vs. R. K. Sharma & Ors. Page No. 1
3. M/s Decor India Pvt. Ltd.
C-197, Ground Floor, Defence Colony
New Delhi
Through its Director Bhagwan Singh .....Accused no. 3(A-3)
Date of Institution : 01.07.2014
Date reserved for judgment : 30.08.2018
Date of Judgment : 03.10.2018
Present : Mr. V.K. Ojha, Ld. PP for CBI.
Sh. Yogesh Verma, Ld. Counsel for
accused no. 1. R.K.Sharma with accused.
Sh. Bhagwan Singh, AR of accused no. 3, M/s
Decor India Pvt. Ltd.
Sh. Shri Singh, Ld. Counsel for accused no.
3, M/s Decor India Pvt. Ltd..
JUDGMENT :-
1. Briefly stating, the case of the prosecution is as under :-
(i) In the month of December, 2007, NDMC invited tenders for construction of NDCC Phase-II, Jai Singh Road, New Delhi (S.H: Civil, Internal Finishes, Plumbing/Sanitary & Fire Suppression in Convention Centre Block "B"). In response to NIT, a single bid was received from M/s Mac Associates quoting Rs.CBI Vs. R. K. Sharma & Ors. Page No. 2
5,01,48,046/- against the estimated cost of Rs. 3,88,56,462/- for civil work. However, the work was not awarded by Sh. Parimal Rai, the then Chairman, NDMC directing to go for composite tender of civil and electrical works.
(ii) In February, 2008, NDMC invited fresh tenders (composite) with an estimated cost of Rs.11,08,93,737/- against which three quotations were received from (1) M/s Ahluwalia Contract (India) Limited with quote of Rs. 17,42,63,395/- (L-1), (2) M/s Modern Radio House (India) Private Limited with quote of Rs. 18,39,31,667/- (L-2) and (3) M/s Decor India Private Ltd. with quote of Rs. 18,90,60,710/- (L-3). The justification of cost was prepared by NDMC to the tune of Rs. 13,22,80,344/-. Additional factors were taken into consideration by NDMC like transporting of labour, insurance policy, cess charges etc and the amount was justified at Rs.14,22,52,967/- (Rs. 13,22,80,344/- + Rs.99,72,623/-). The officers of NDMC pleaded that the rates of L-1 were 17.60% above the justified rate of Rs. 14,22,52,967/-. Thus the officers of NDMC in criminal conspiracy with Architect Consultant M/s Raja Aederi did not award the work to L-1 even though during negotiation, it has agreed to reduce the rates from Rs.17,42,63,395/- to Rs. 16,72,92,859/-. In CBI Vs. R. K. Sharma & Ors. Page No. 3 June 2008, Sh. Parimal Rai rejected the tendering process and ordered for re-tendering.
(iii) In July, 2008, the 3rd call of tender was issued in furtherance of criminal conspiracy wherein M/s Decor India Pvt. Ltd. (previously L-3) was the only bidder with final quote of Rs.16,72,27,074/- almost at par with previous offer of M/s Ahluwalia Contracts India Ltd. This time, the justification of rates was increased from Rs. 14,22,52,967/- to Rs 16,28,01,017.48 showing hike in rates of Sound Reinforcement and Stage Lighting work from Rs. 7,01,10,840/- to Rs. 8,14,93,231.53 and other items without conducting any fresh market survey. This time, the officers of NDMC namely Sh. Rakesh Kumar Sharma, Vijay Kumar Jha, Primal Rai and others justified the quote of M/s Decor India Pvt. Ltd. and awarded the work of Internal Finishes, Plumbing and Sanitary, Furniture, Escalator, Sound Reinforcement & Stage Lighting and Escalator vide agreement dated 09.02.2009 for Rs.16,72,27,074/-. Sh. Anil Kumar Dhingra, Managing Director (A-2) (now deceased) was instrumental on behalf of his company for entire works from bidding to completion of work including issuance of certificate and its submission to NDMC.
CBI Vs. R. K. Sharma & Ors. Page No. 4(iv) It is further alleged that the entire work relating to Sound Reinforcement and Stage Lighting was sub-contracted by M/s Decor India Pvt. Ltd. to M/s Esco Audio Visual Pvt. Ltd., Mumbai, on back to back terms and conditions, at a cost of Rs. 3,82,07,965/- only. M/s Esco Audio Visual Pvt. Ltd. did not fulfill the essential qualifications, in terms of previous experience of similar works as required in the NIT. M/s Decor India Pvt. Ltd. is basically a construction firm and was awarded the work without verifying its credentials as well as of M/s Esco Audio Visual Pvt. Ltd.
(v) It is alleged that M/s Esco Audio Visuals (India) Ltd was engaged as sub-contractor by M/s Decor India Pvt. Ltd. (A-3) for the work of Sound Reinforcement. The work of stage lighting was got executed through M/s Effectron Luminex Pvt. Ltd.
(vi) It is alleged that a proper market survey was not conducted by Sh. Rakesh Kumar Sharma, the then Executive Engineer, NDMC during 3rd bid. He was responsible for the preparation of justification of cost on behalf of NDMC and cross checking the rates given by M/s Raja Aederi Consultants Pvt. Ltd. Sh. Vijay Kumar Jha, the then Superintending Engineer, NDMC (Project CBI Vs. R. K. Sharma & Ors. Page No. 5 Leader) and presently Chief Engineer, NDMC was the Project Leader during the 3rd call of tender and had examined the tender documents along with justification. He by abusing his official position and in conspiracy with others justified the rates. Sh. O.P.Gupta, the then Superintending Engineer did not point out the ineligibility of M/s Esco Audio Visual India Pvt. Ltd deliberately. He had visited Hyderabad and Bangalore alongwith Sh. Parimal Rai but did not point out that the work claimed to be carried out by M/s Esco Audio Visual India Pvt. Ltd. had actually been carried out by a Singapore based Company.
(vii) It is further stated that Sh. Parimal Rai was working as Chairman, NDMC during the year 2008. Sh. O.P. Gupta was working as Additional Chief Engineer, Electrical in NDMC during the relevant period and retired in 2011. Sh. Vijay Kumar Jha came on deputation to NDMC on 23.04.2008 as Superintending Engineer. He was given the post of Chief Engineer in September 2008. He acted as Project Leader of the aforesaid work. Sh. Rakesh Kumar Sharma (A-1) worked as Executive Engineer (Electrical). He was entrusted with the responsibility for 3rd call of tender for composite work. He was responsible for making available tender documents CBI Vs. R. K. Sharma & Ors. Page No. 6 after scrutiny of eligibility of the tenderer as per NIT condition.
(viii) It is further stated that the allegation against Sh. Parimal Rai, the then Chairman, NDMC, Sh. Vijay Kumar Jha, the then Chief Engineer, NDMC, Sh. O.P. Gupta , the then CE, NDMC (retired)) and Sh. Sunil Mehan of M/s Esco Audio Visual Pvt. Ltd. could not be substantiated.
(ix) Another allegation pertained to use of fake documents by M/s Raja Aederi Consultant Pvt. Ltd. for preparation of estimates and justification as per agreement between the former and NDMC.
(x) It is relevant to mention that my Ld. Predecessor vide order dated 15.03.2016 observed that the offences alleged to have been committed by accused A.P. Pandey, accused Uday Bhatt and M/s Raja Aederi Consultant Pvt. Ltd. on one hand, and offences alleged to have been committed by accused R. K. Sharma, M/s DECOR India Private Ltd. and Anil Kumar Dhingra (now deceased) on other hand, are different and joint trial of both the sets of accused would cause delay in the matter and would also prejudice both the sets of accused. It is CBI Vs. R. K. Sharma & Ors. Page No. 7 further observed that it is not in the interest of justice to allow the joint trial of both the sets of accused. The case of accused A.P. Pandey, accused Uday Bhatt and M/s Raja Aederi Consultant Pvt. Ltd. regarding commission of offence U/S 120B r/w Section 420, 468 and 471 IPC was transferred to the court of Chief Metropolitan Magistrate with further direction to the IO to file separate copy of charge-sheet along with copies of all relevant documents before the concerned court.
(xi) Now I turn to the allegations made against accused no. 1, R.K.Sharma, accused no. 2, Anil Dhingra (now deceased) and accused no. 3, M/s Decor India Pvt. Ltd., represented through its Director Sh. Bhagwan Singh. It is alleged that M/s Decor India Pvt. Ltd. (A-3) was not eligible as per conditions of NIT. NIT stipulated furnishing of certificates of experience for previous execution of work not less than Rs. 4 crores in the field of similar nature of work. M/s Decor India Pvt. Ltd. (A-3) submitted certificate showing experience for execution of work to the tune of Rs.4 crores, without executing any single work of such amount.
(xii) It is alleged that the 3rd call of tender was invited in the month of July, 2008. The NIT specified CBI Vs. R. K. Sharma & Ors. Page No. 8 certain eligibility conditions to be adhered by the bidders. One of the condition is as under:-
Tender will be issued to eligible contractors provided they produce definite proof from the appropriate authority, which shall be to the satisfaction of the competent authority of having satisfactorily completed the work of magnitude specified below:-
The contractor/agency having experience of successfully completed work during the last 7 years ending last day of the month previous to the one in which tender was invited.
One completed work of interiors of convention center or Auditorium or Conference Hall including furnishing/furniture amounting to Rs. 400 Lacs.
OR
One completed work of sound
Reinforcement/Stage Lighting of convention Centre or Auditorium or Conference Hall amounting to Rs. 500 Lacs.
Note:
Tenderer whose tender will be accepted, will get the other works carried out through the venders fulfilling following criteria:-CBI Vs. R. K. Sharma & Ors. Page No. 9
a) Interiors : One work of
Rs. 300 Lacs.
b) Furniture : One work of
Rs. 40 Lacs.
c) Sound Reinforcement/
Stage Lighting : One work of
Rs. 400 Lacs.
(xiii) It is alleged that an application dated
11.07.2007 of Anil Dhingra (A-2) (now deceased) of M/s Decor India Pvt. Ltd. was submitted to NDMC for issuance of tender documents. It was followed by another application enclosing relevant documents including certificate issued by Sh. J R Bhalla of M/s SDB Consultant Pvt. Ltd..
(xiv) This application was marked to the Head
Assistant by R.K.Sharma, EE (A-1) on 15.07.2008 for
issuance of tender documents after scrutinizing the relevant certificate. The tender documents were issued to M/s Decor India Pvt. Ltd. (A-3) on 17.07.2008 by NDMC after approval by R K Sharma (A-1).
(xv) It is alleged that M/s Decor India Pvt. Ltd. (A-
CBI Vs. R. K. Sharma & Ors. Page No. 103) was issued tender documents on the basis of certificate dated 15.07.2008 issued by Sh. J R Bhalla of M/s SDB Consultant Pvt. Ltd.. The contents of certificate are about gross total of work done by M/s Decor India Pvt. Ltd..
(xvi) It is alleged that M/s Decor India Pvt. Ltd. (A-
3) did not execute any single work order/contract at India Habitat Center (IHC) amounting to Rs. 4 crores or above. Similarly, NFI (National Foundation of India ) having office at India Habitat Centre confirmed that no single work order to the tune of Rs. 4 crores or above was ever awarded to M/s Decor India Pvt. Ltd. (A-3).
(xvii) It is alleged that Delhi Urban Art Commission (DUAC) and Council for Advancement of People's Action and Rural Technology (CAPART), having office at India Habitat Centre denied of issuing any single work order to the tune of Rs. 4 crores or above to M/s Decor India Pvt. Ltd..
(xviii) Sh. J.R.Bhalla of M/s SDB Consultant confirmed the issuance of certificate to M/s Decor India Pvt. Ltd. (A-3) for execution of total works to the tune of Rs.4 crores. He clarified that India Habitat Centre did not place any single work order to M/s Decor India Pvt. Ltd.
CBI Vs. R. K. Sharma & Ors. Page No. 11for Rs. 4 crores. The certificate issued to M/s Decor India Pvt. Ltd. was based on various work orders. There is no single work order to the tune of Rs. 4 crores or above.
(xix) Similar certificate was used by Sh. Anil Dhingra (A-2) (now deceased) of M/s Decor India Pvt. Ltd. (A-3). He got issued a certificate dated 03.11.2008 from M/s Jubilant Organosys Pvt. Ltd. and submitted to NDMC. It was found that the amount mentioned in the certificate is the sum total of various work orders placed on M/s Decor India Pvt. Ltd.(A-3). No single work order of Rs.4 crores or above was ever been awarded to M/s Decor India Pvt. Ltd. (A-3).
(xx) It is alleged that the certificate issued to any agency/contractor should be specific as per CPWD Work Manual, 2007, which is adhered in NDMC on procedural aspects. It should have name of the contractor/agency, name of the work and its nature, agreement number/work order number, tender amount/contractual amount, date of start, date of completion etc. In the absence of such particulars, the verification is necessary to ascertain the genuineness of the document submitted by the contractor/bidder/agency. CPWD Works Manual, 2007 specified the particulars to be incorporated in certificate CBI Vs. R. K. Sharma & Ors. Page No. 12 issued to the contractor for execution of work. The Appendices 20 and 34 of aforesaid Work Manual are complied for issuance of such certificate in favour of contractor/agency.
(xxi) It is alleged that M/s Decor India Pvt. Ltd. (A-
3) did not possess requisite certificate/experience as required in the NIT. The certificate dated 15.07.2008 enabled M/s Decor India Pvt. Ltd. as technically responsive bidder in the 3rd call of tender. The bid documents were made available by R K Sharma (A-1) without examining the particulars of the certificate either at the time of making available tender documents or at the time of technical examination of bids after its opening. R K Sharma (A-1) did not raise any objection on the certificate furnished by M/s Decor India Pvt. Ltd.(A-3) deliberately. The certificate was quite general in nature. It did not mention the details of any work order, agreement, tender amount, date of completion etc. It mentioned the total quantum of works executed by M/s Decor India Pvt. Ltd. till April, 2004. It was devoid of the particulars stipulated in CPWD Work Manual, 2007, which is applicable in NDMC on procedure.
(xxii) It is further alleged that the Finance CBI Vs. R. K. Sharma & Ors. Page No. 13 Department made observation regarding authenticity of document submitted by the bidder i.e. M/s Decor India Pvt. Ltd. (A-3) and requirement of definite proof of the competent authority of having satisfactorily completed the work. R K Sharma (A-1) fraudulently and dishonestly responded the aforesaid query to the effect that tender documents were issued to M/s Decor India Pvt. Ltd. (A-3) after scrutiny of the eligibility of M/s Decor India Pvt. Ltd. (A-3) knowing it very well that the document i.e. certificate was not genuine and devoid of requisite particulars. Thus, R K Sharma (A-1) in connivance with Anil Dhingra (A-2) (now deceased) of M/s Decor India Pvt. Ltd. accepted fake document and issued tender document to ineligible bidder. Sh. R K Sharma (A-1) opened the tender and did not raise any objection even during technical examination of M/s Decor India Pvt. Ltd. M/s Decor India Ltd. was accepted as technically responsive and finally contract was awarded for Rs.16,72,27,074/- for the work of NDCC Block "B", Phase-III in the month of February 2009.
(xxiii) It is alleged that aforesaid facts and circumstances established that Rakesh Kumar Sharma, EE (A-1) and Anil Dhingra (A-2) (now deceased) of M/s Decor India Pvt. Ltd. (A-3) entered into a criminal CBI Vs. R. K. Sharma & Ors. Page No. 14 conspiracy with the object to cheat NDMC. In furtherance of criminal conspiracy he showed favour to M/s Decor India Pvt. Ltd. by misusing his official position. Thus, they committed offence U/S 120-B r/w 420 IPC and 13(1)
(d) r/w 13(2) of P C Act, 1988.
2. After completing investigation, charge-sheet was filed on 01.07.2014 against accused no.1 Rakesh Kumar Sharma, accused no.2 Anil Kumar Dhingra and accused no.3 M/s Decor India Pvt. Ltd. (through its Director Bhagwan Singh) for the offence punishable under Section 120B IPC r/w 420,468,471 IPC and 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, 1988. Sh. Anil Dhingra, accused no. 2 died on 17.03.2017, hence, the proceedings against him are abated.
3. It is alleged that since, accused no.1 Rakesh Kumar Sharma was a public servant at the time of commission of alleged offence, necessary sanction under Section 19 of Prevention of Corruption Act, 1988, was obtained qua him by the CBI.
4. Vide orders dated 05.06.2017, it was held that a prima facie case is made out against accused no.1, Rakesh Kumar Sharma under Section 13(1)(d) punishable under Section 13(2) of P.C. Act. It was further held that prima facie a case is made out against accused no. 1 and 3 for an offence punishable under Section 120B IPC r/w CBI Vs. R. K. Sharma & Ors. Page No. 15 Section 13(1)(d) r/w Section 13(2) of P. C. Act and Section 420 IPC. It is further held that a charge for the offence punishable U/S 420 IPC is made out against accused no. 3, M/s Decor India Pvt. Ltd..
5. On 08.06.2017, formal charges were framed against the accused persons, wherein, they pleaded not guilty and claimed trial.
6. In order to bring home the guilt of the accused, prosecution has examined as many as following 27 witnesses :-
PW-1 Mr. P.L.Malik, Deputy Registrar of Companies (Retired) deposed about registration of M/s Decor India Pvt. Ltd. with Registrar of Companies.
PW-2 Sh. Jalaj Srivastava, Additional Secretary, Government of India, Ministry of Agriculture, Krishi Bhawan, New Delhi. He deposed regarding grant of sanction for prosecution of accused Rakesh Kumar Sharma.
PW-3 Sh. Praveen Chaudhary, General Manager, M/s Jubilant Life Sciences Ltd. He deposed regarding work done by M/s Decor India Pvt. Ltd..CBI Vs. R. K. Sharma & Ors. Page No. 16
PW-4 Mr. Raj Kumar Aggarwal, Additional General Manager, M/s India Habitat Centre. He deposed about the work orders awarded to M/s Decor India Pvt. Ltd..
PW-5 Mr. Sandeep Kapoor, General Manager, Finance, Indian Habitat Centre. He deposed about the total work done by M/s Decor India Pvt. Ltd. from 1996 to 2004.
PW-6 Mr. Surender Kumar, Assistant Engineer (Electrical), NDMC. He deposed that he was involved in the work of Convention Center, NDMC. He exhibited different notings regarding tender. He also stated about tender process and application of M/s Decor India Pvt. Ltd. and certificates given by it. He also exhibited agreement dated 09.02.2009 executed between NDMC and M/s Decor India Pvt. Ltd..
PW-7 Sh. Mohinder Paul Dheer, Head Assistant, Water Division, NDMC. He deposed regarding tender process and different notings regarding tender process.
PW-8 Sh. Anil Kumar Gupta, Manager( Accounts), M/s Jubilant Life Sciences Ltd. He deposed about the work done by M/s Decor India Pvt. Ltd. for M/s Jubilant Life Sciences.CBI Vs. R. K. Sharma & Ors. Page No. 17
PW-9 Sh. Bachan Singh, Executive Engineer, Maintenance, Vidhut Bhawan, APJ Kalam Road. He deposed about the procedure involved in the tender of work related to construction in Block B,Convention Center and about the bids as per NIT.
PW-10 Sh. Gurbaksh Singh, Chief Engineer, CPWD. He deposed about the necessary contents of Completion Certificate or performance certificate of work executed.
PW-11 Sh. Bhopal Singh , Deputy Financial Advisor, NDMC. He deposed that he was was associated with New Delhi Convention Centre at Block B Project as Member Finance and his duty was to examine the proposals on the basis of information/record made available by Project Leader.
PW-12 Sh. Abdul Wahid Ansari, Joint Director, Information & Technology, NDMC. He deposed regarding proforma regarding performance report of the work and client certificate regarding performance of the contractor.
PW-13 Sh. Sanjeev Kumar, Project Manager, M/s Decor India Pvt. Ltd. He exhibited the tender documents CBI Vs. R. K. Sharma & Ors. Page No. 18 submitted by M/s Decor India Pvt. Ltd. and other documents related to tender.
PW-14 Sh. Manikant Singh,Chief Contracts Manager, Indian Oil Corporation, Scope Complex, Lodhi Road, New Delhi. He stated about proforma for Completion Certificate.
PW-15 Sh. Rakesh Kumar Kayesth, Superintending Engineer, NDMC. He deposed about the completion certificate issued to M/s Decor India Pvt. Ltd. relating to completion of modular furniture project at Shastri Bhawan.
PW-16 Sh. Pardeep Kaushik, Accountant in M/s SDB Consultants Pvt. Ltd.. He deposed that M/s SDB Consultants Pvt. Ltd. was engaged in construction of India Habitat Centre and about the certificate forwarded by J.R.Bhalla, MD, M/s SDB Consultants Pvt. Ltd..
PW-17 Sh. Amit Mukherji, Consultant (Administration) in Delhi Urban Art Commission. He deposed about work done by M/s Decor India Pvt. Ltd. and payments made to it.
PW-18 Sh. Chandra Shekhar Pandey, Director in CBI Vs. R. K. Sharma & Ors. Page No. 19 CAPART. He exhibited the documents relating to work done by M/s Decor India Pvt. Ltd..
PW-19 Sh. Davinder Singh Virdi, the then Assistant Engineer, NDMC deposed about handing over of different documents to CBI.
PW-20 Sh. R.Moon Dutt, Finance Manager, M/s
National Foundation for India deposed regarding the
work done by M/s Decor India Pvt. Ltd. for National Foundation for India.
PW-21 Sh Om Prakash Gulati, the then Executive Engineer, NDMC deposed about tender process and certificate required in support of eligibility of bidder.
PW-22 Sh. Sudhir Chander Singh, Dy Financial Advisor, NDMC deposed about tendering process.
PW-23 Sh. Naresh Verma, Executive Engineer, NDMC deposed about eligibility conditions and completion certificate required.
PW-24 Sh. Shobhit Shrivastav, Deputy Registrar of Companies. He deposed about documents pertaining to CBI Vs. R. K. Sharma & Ors. Page No. 20 registration of M/s Decor India Pvt. Ltd. with Registrar of Companies.
PW-25 Sh. Pawan Gupta, Executive Engineer of M/s Jubilant Life Sciences deposed regarding documents pertaining to its transaction with M/s Decor India Pvt. Ltd. .
PW-26 DSP C.R.Mukund is IO of the case.
PW-27 Sh. Naresh Verma, Senior Manager (Human
Resources-Administration), IREDA Ltd. He deposed regarding payments made by IREDA Ltd. to M/s Décor India Pvt Ltd..
7. The accused no.1 Rakesh Kumar Sharma was examined under Section 313 Cr.PC. The accused stated that he is innocent in the entire case and he has nothing to do with the commission of alleged offence. Accused stated that the said tender was opened on 21.07.2008 in the presence of Executive Engineer (Civil) as well as Electrical Accountant and Assistant Engineer (E) and the accused. Accused stated that Executive Engineer Sh. O.P Gulati (Civil) and the Divisional Accountant had checked documents at the time of issuance of tender documents at the second call. Accused stated that thereafter on the third call the Divisional Accountant had also checked CBI Vs. R. K. Sharma & Ors. Page No. 21 the eligibility criteria before issuing the tender documents to the bidder. Accused stated it is the duty of Divisional Accountant to check the eligibility before issuing the tender documents in view of the Section 15.4.5 of CPWD manual 2007 and thereafter, when the tender was opened at the third time Sh. O.P Gulati was present who had already perused the said documents at the time of second call then there was no occasion for accused to check the eligibility again because it had already been verified by the three officers of the department. Accused stated that so far as the query raised by Sh. Bhopal Singh, Member Finance, it was duly replied by Sh. Bachan Singh and it was forwarded by accused to the Project Leader after satisfying himself with the reply/clarification dated 08.09.2008. Accused stated that even thereafter, the financial advisor did not raise any objection in view of the query raised by the member finance. Accused further stated that he was transferred from this office/division on 09.02.2009 and work was started after his transfer. Accused stated that the work was approved by the Council Member and they also did not raise any objection in this regard. Accused further stated that no payment was released during his tenure as per witness PW-9. Accused further stated that there was no evidence on record to show that he was in touch with the co-accused. Accused further stated that there was no evidence to show that there was any pecuniary gain to him and a loss to the department. Accused further stated that no payment was made by the NDMC to M/s Decor India Pvt. Ltd. during his tenure with the said office.
CBI Vs. R. K. Sharma & Ors. Page No. 228. On behalf of accused no.3 i.e M/s Decor India Pvt. Ltd represented by its Director Sh. Bhagwan Singh, it is stated that the depositions of the various witnesses led by the prosecution disprove the CBI case, despite the fact that the CBI has tried to implicate M/s Decor India Pvt. Ltd for motivated reasons. He stated that the CBI has continuously withheld material documents from this Court and has tried to introduce false certificates under the Evidence Act, 1872 even at a late stage of prosecution evidence. He stated that M/s Decor India Pvt. Ltd is innocent and is not involved in any conspiracy with accused no.1. He stated that the falsity and lack of tenability of the case of the CBI is apparent even at a prima facie level, since the original case of the CBI was cleaved into two parts by this Court, as it was found that PW-26 and the CBI had illegally joined two alleged conspiracies in one chargesheet, whereas there was no link between the two alleged conspiracies, even as per the CBI. He stated that the case of the CBI has constantly changed from the FIR, to the charge-sheet, to the stage of charge and during the course of the trial itself. He stated that the CBI constantly tried to alter its allegations to continue to cause prejudice to M/s Decor India Pvt. Ltd and co-accused persons. He stated that M/s Decor India Pvt. Ltd is innocent and had been validly given the contract for NDCC-II in the 3rd call of the tender. He stated that M/s Decor India Pvt. Ltd has not entered into any conspiracy with accused no.1 or any other person. He stated that the certificate in question was neither illegal, improper CBI Vs. R. K. Sharma & Ors. Page No. 23 or in any way deficient. He stated that the CBI cannot make up ex post facto requirements for M/s Decor India Pvt. Ltd to have followed. He stated that the NIT did not disclose any format for eligibility certificates. He stated that this fact has been proved by a number of prosecution witnesses and is clear from a bare reading of the NIT. He stated that the certificate Ex PW4/B was a valid certificate, despite all attempts made by the CBI to call it into question, starting from alleging that it was a forged document, which attempt was falsified by the statement of the author, late Jai Rattan Bhalla, who unfortunately passed away during the pendency of these proceedings and could not depose before this Court. He stated that the CBI has tried to portray the certificate as a document that contains false information-which has also been falsified by statement of officers from IREDA, India Habitat Centre, DUAC, NFI and CAPART. He stated further that all these officers have asserted and re-asserted that their organizations have indeed used the services of M/s Decor India Pvt. Ltd for construction/interior work in their offices situated at the India Habitat Centre. He further stated that the CBI has not been able to prove that the India Habitat Centre is not a convention centre, does not have auditorium, conference rooms etc. He further stated that the CPWD Manual itself does not prescribe any format for an eligibility certificate in Appendix 34, as alleged by the CBI. M/s Decor India Pvt. Ltd was fully compliant with the NIT, in both the 2nd call and the 3rd call of the tender. He further stated that the case of the CBI is falsified by the fact that M/s Decor India Pvt. Ltd could not have progressed in the CBI Vs. R. K. Sharma & Ors. Page No. 24 2nd call of tender to the last stage or financial scrutiny of its documents, unless it stood pre-qualified. He further stated that witnesses brought by the prosecution have testified in favour of M/s Decor India Pvt. Ltd in this regard. He further stated that witnesses have expressly stated that certificates given by M/s Decor India Pvt. Ltd were scrutinized before M/s Decor India Pvt. Ltd financial bid was opened in the 2nd call. Therefore, it is submitted that there was no intention to cheat or in fact any cheating committed by M/s Decor India Pvt. Ltd as alleged or at all. There was no material to file the final report/charge-sheet against M/s Decor India Pvt. Ltd.. There is no loss caused to the government or to the NDMC. No complaint in this regard has been filed by the NDMC. To the knowledge of M/s Decor India Pvt. Ltd., no writ or other proceeding was filed by any private party/bidder against M/s Decor India Pvt. Ltd winning the bid in the 3rd call of the tender. M/s Decor India Pvt. Ltd has completed the project as per specifications and the work has been satisfactorily completed, even according to the NDMC. In fact, it is the NDMC who has breached the agreement between M/s Decor India Pvt. Ltd and NDMC for the NDCC-II project, inasmuch as it has illegally withheld payments due to M/s Decor India Pvt. Ltd with regard to this project. In this regard M/s Decor India Pvt. Ltd has filed an arbitration proceeding against NDMC which is pending before the Delhi High Court Arbitration Centre with Justice ( Retd) Dinesh Dayal where the next date of hearing is 22.03.2018.
CBI Vs. R. K. Sharma & Ors. Page No. 259. The accused examined following one witness in his defence.
DW-1: Ms. Asha Verma. DW-1 deposed that she is posted as Section Officer in NDMC. She has brought the summoned record i.e. Transfer Order dated 05.02.2009,Ex. DW1/A and joining report of 16.02.2009, Ex. DW1/B.
10. I have heard Ld. Counsels for the accused as well as Ld. PP for CBI.
CONTENTIONS OF COUNSEL FOR CBI
11. Ld. Counsel for CBI contended that accused persons have conspired and have granted favour to accused no. 3 by awarding tender of renovation to M/s Decor India Pvt. Ltd. in utter violation of guidelines. It is submitted that accused no. 1 has malafidely certified that accused no. 3 was eligible bidder although accused no. 3 was not fulfilling the eligibility conditions as mentioned in bid documents that the bidder must fulfill the conditions of having done a single work of similar nature of Rs. 400 Lac during the last seven years, besides other conditions.
CBI Vs. R. K. Sharma & Ors. Page No. 2612. It is submitted that accused no. 3 was not having any experience of having done any work of Rs.400 Lac and had fraudulently stated in certificate issued by J.R. Bhalla of M/s Consultants regarding such experience. It is further submitted that accused no. 3 being in connivance with accused no. 1 deceived the NDMC and succeeded in getting the tender in favour of accused no. 3 causing unlawful gain to accused no. 3 and thus cheated the NDMC.
13. It is also submitted by Ld. Counsel for CBI that testimony of witnesses has established that the certificate furnished by accused no. 3 was not in proper format nor gave requisite details in the said certificate. He further submitted that the proforma of certificate required in compliance of NIT regarding the bidder having done single work of Rs. 400 Lac has clearly been mentioned in CPWD Manual, 2005 which was applicable to the NDMC. Ld. Counsel for CBI also submitted that it was the duty of accused no. 1 Executive Engineer to scrutinize the documents submitted by the bidder and accused no. 1 did not point out any discrepancy in the certificate rather certified that the bidder was eligible although objections have been raised by the Finance Department in this regard. It is submitted that accused no. 1 in connivance with accused no. 2 and 3 has committed criminal misconduct and thus liable to be punished.
14. Ld. Counsel for the CBI has relied upon the following judgments (1) V.Thevar Vs. State, 1957 Cr.L.J. SC Full Bench 1000;
CBI Vs. R. K. Sharma & Ors. Page No. 27(2) Sucha Singh Vs. State of Punjab, 2003 Cr.L.J. SC 3876; (3) Ram Sagar Pandit Vs. State of Bihar, 1964 (2) CR.L.J. SC 65; (4) Indu Bhushan Chaterji Vs. State of West Bengal, 1958 Cr.L.J. SC 279; (5) C.S.Krishnamurthi Vs. State of Karnataka, 2005 Cr. L.J. SC 2145; (6) State of Maharashtra Vs. Mahesh G Jain, 2013 Cr. L.J. SC 3092; (7) Chaudhary Praveen Sultana Vs. State of West Bengal, 2009 Cr. L.J. SC 1388; (8) P.K.Pradhan Vs. State of Sikkim, 2001 Cr. L.J. SC 3505; (9) N.K.Chakraborty Vs. State of West Bengal; 1977 Cr. L.J. SC 1961 SC; (10) CBI Vs. Vijay Kumar Kataria & Ors., RC. No. 1A/2007/CBI/ACU-IX/New Delhi.
CONTENTIONS OF COUNSEL FOR ACCUSED NO. 115. Ld. Counsel for accused no. 1 submitted that there was no fault on the part of accused no. 1 as he has relied upon the certificate furnished by accused no. 3 and certificate mentions that "Total Work Executed" which meant that only one work and word "Work" and not "Works" is written in the said certificate. It is submitted that the said bidder has also taken part in first and second call of tender and was found technically qualified on the basis of similar certificate and there was different set of officials of NDMC who considered certificate furnished by accused no. 3 at second call of tender and third call of tender, hence, there was no question of any collusion or conspiracy as alleged by CBI. It is also submitted that other NDMC officials also considered it to be correct certificate and CBI Vs. R. K. Sharma & Ors. Page No. 28 no objections have been raised and there was no fault on the part of accused no. 1 in certifying that accused no. 3 was eligible bidder since he relied upon the said certificate.
16. Ld. Counsel for accused no. 1 further contended that the bid documents were issued by Divisional Accountant and Section 15.4.5 of CPWD Manual, 2005 clearly mentions that eligibility of the bidder is to be seen by Divisional Accountant and the Divisional Accountant too did not find any discrepancy in the said certificate. Ld. Counsel for accused no. 1 contended that the said certificate was seen by Sh. O.P.Gupta and he also did not raise any objection. The certificate contained the requisite details and there was no set proforma regarding the said experience certificate. It is submitted that Appendix 34 Annexure 4 of CPWD Manual, 2005 is for enlistment of contract and did not apply when the parties apply in response to the said bid.
17. The next contention of Ld. Counsel for accused no. 1 is that sanction authority did not apply its mind and the sanction is bad in the eyes of law and the accused is liable to be acquitted on this short ground alone. It is submitted that PW 2 Jalaj Srivastava has clearly stated that complete documents were not placed before him and the documents were being further called. Ld. Counsel for accused no. 1 pointed out that number of witnesses and documents in the court file are more than the documents and the statement of witnesses that CBI Vs. R. K. Sharma & Ors. Page No. 29 were placed before the Competent Authority. It is submitted that there is no application of mind in granting sanction. It is also clear from the facts that sanction order records that during tenure of accused no. 1 payment has been made while as a matter of fact payments were made later on and by that time accused no. 1 had already been transferred from that Section.
18. It is also submitted that PW-6 Surender Kumar and PW-7 Mohinder Paul Dheer had clarified that the application was marked to accused no. 1 R.K.Sharma and accused R.K.Sharma marked the application to Divisional Accountant and PW-7 Divisional Accountant satisfied himself and then issued the documents. It is also submitted that concurrence was given by the Finance Department. It is also submitted that the said file had routed through different officials and they checked the file and did not find any discrepancy in the certificate. Ld. Counsel for accused pointed out that note dated 02.09.2008, Ex.PW9/G which was prepared by Sh. Bachan Singh and was sent to Finance Department and Finance Department concurred with it. He also submitted that earlier also similar kind of certificates were furnished and found to be in order.
19. Ld. Counsel submitted that there is nothing in the NIT or the bid documents that it required any particular kind of certificate regarding experience of the bidder and this fact is established from the testimony of PW-12 Abdul Wahid Ansari who clearly stated that no CBI Vs. R. K. Sharma & Ors. Page No. 30 format as such was being followed in NDMC. PW-11 Bhopal Singh clarified that no objection was raised at the time of second call of tender when accused no. 3 has submitted similar kind of certificate.
20. Ld. Counsel for accused no. 1 has relied upon the following judgments (1) Om Prakash Vs. State & Ors., 2009 (2) JCC 1210 (DHC); (2) K.C.Singh Vs. CBI, Crl. Appeal No. 976/2010 (DHC); (3) Tirath Prakash Vs. State, Crl Appeal No. 205/77 (DHC); (4) Ashok Tshering Bhutia Vs. State of Sikkim, 2011 (3) LRC 93 (SC); (5) Sumativijay Jain Vs. State of MP, 1992 Crl. L.J. 97; (6) Baijayanti Swain & Anr. Vs. State of Orissa, 2013 (3) Crimes 89 (Orissa); (7) A.Siva Prakash Vs. State of Kerela, AIR 2016 (SC) 2287; (8) P.K.Narayanan Vs. State of Kerela, 1995 (1) SCC 142; (9) State of MP Vs. Sheetla Sahai & Ors., 2009 (8) SCC 617; (10) Abdulla Mohd. Pagarkar Vs. State of Goa, AIR 1980 (SC) 499.
CONTENTIONS ON BEHALF OF ACCUSED NO. 321. Ld. Counsel for accused no. 3 M/s Decor India Pvt. Ltd. submitted that there is absolutely no material on record to infer any conspiracy on the part of the accused persons. There is nothing on record to show that accused no. 2 and accused no. 3 have ever met with accused no. 1 and there are no circumstances on record to indicate that there was any conspiracy on the part of accused persons.
CBI Vs. R. K. Sharma & Ors. Page No. 3122. Ld. Counsel for accused no. 3 submitted that there is no positive evidence to prove that accused no. 3 was favoured by accused no. 1, therefore, Section 13(1)(d) of P.C. Act is not attracted at all. It is also submitted that there is also no evidence to show that accused no. 2 and accused no. 3 tried to deceive any one or had played fraud in obtaining the said contract.
23. Ld. Counsel for accused also contended that sanction to prosecute is not proper and is bad in the eyes of law and if the sanction fails, Section 120 (B) IPC cannot be sustained. Ld. Counsel for accused referred to judgment of State of Madhya Pradesh Vs. Sheetla Sahai and Others, [(2009) 8 SCC 617].
24. Ld. Counsel for accused no. 3 contended that NIT for second and third calls of tender were identical stipulating same condition with regard to the experience required from the bidders and the certificate submitted at the time of second call of tender was seen and scrutinized by different set of officials of NDMC and accused no. 3 was found to be eligible on the basis of said certificate. Ld. Counsel further submitted that certificate clearly mentions "Total Work" and there is no misrepresentation in the said certificate clearly mentioning about the work of Rs.415 Lac done by the accused.
25. It is also submitted that no wrongful loss has been caused to the NDMC nor any wrongful gain is caused to accused no.
CBI Vs. R. K. Sharma & Ors. Page No. 323 and the CBI has failed to establish that any loss has been caused to NDMC. It is also submitted that it is not the case of CBI that the work done by accused no. 3 was not upto the mark or was sub standard. He also submitted that there was also no set proforma for giving experience certificate. Ld. Counsel for accused no. 3 relied upon the judgments: (1) Lalita Kumari Vs Govt. of Uttar Pradesh [(2014) 2 SCC-1]; (2) Shashikant Vs CBI [(2007) 1 SCC-630]; (3) State Vs N S Gnaneswaram [(2013) 3 SCC-594]; (4) P. Sirajuddin Etc Vs State of Madras [(1970) 1 SCC-595]; (5) Gokulchand Dwarkadas Vs King [AIR 1948 PC 82]; (6) R. Balakrishna Pillai Vs State of Kerala & Ors. [(1996) 1 SCC 478]; (7) State of Madhya Pradesh Vs. Sheetal Sahai [(2009) 8 SCC-617]; (8) Ashok Kumar Aggarwal Vs CBI & Ors. [(2016) 154 DRJ 489]; (9) Matajog Dubey Vs H C Bhari [AIR 1956 SC 44]; (10) P K Pradhan Vs. State of Sikkim [(2001) 6 SCC-704]; (11) Girdhari Lal Vs Lal Chand [ AIR 1970 Raj 145]; (12) State of Madhya Pradesh Vs Sheetla Sahai [(2009) 8 SCC-617]; (13) Lennart Schlusser Vs Directorate of Enforcement [(1970) 1 SCC-152]; (14) Subramanian Swamy Vs A. Raja [(2012) 9 SCC-257]; (15) Vijayan Vs State of Kerala [(1999) 3 SCC-54]; (16) CBI Vs K. Narayana Rao [(2012) 9 SCC-512]; (17) ACRI Vs NIMRA Cerglass Technics ( P ) Ltd. [(2016) 1 SCC-348]; (18) Prem Chand Vs. State [AIR 1953 ALL 381]; (19) NN Burjorjee Vs Emperor [AIR 1935 Rangoon 456]; (20) Supt. & Remembrancer of Legal Affairs, Bengal Vs Manmatha Bhushan Chaterjee & Ors. [AIR 1924 Cal 495]; (21) Mojey Vs The Queen 1890 ILR (17) 606 ( Calcutta High Court); (22) Smt. Runu Vs CBI [Cri CBI Vs. R. K. Sharma & Ors. Page No. 33 Appeal 482/2002, decided on 21.12.2011]; (23) Dr. Manmohan Singh Vs. CBI [Leave granted vide Order dated 01.04.2015, converted to Crl.Appeal No. 562-563/2015]; (24) Stephen Senevirante Vs. King (1936) 44 LW 661; (25) Tomaso Bruno Vs. State of UP (2015) 1 SCC 498; (26) Derry Vs. Peek, 1889 (14) AC 337; (27) Abdulla Mohammed Pagarkar Vs. State, (1980) 3 SCC 110; (28) C. Chenga Reddy and Others Vs. State of AP, (1996) 10 SCC 193.
SANCTION TO PROSECUTE
26. The first point for consideration is whether proper sanction was accorded by competent authority for prosecuting accused R. K. Sharma.
27. Here the testimonies of PW-2 Jalaj Srivastav and PW-26 DSP MC.R. Mukund are relevant.
28. PW-2 Sh. Jalaj Srivastava stated that he was Chairman, NDMC and was the disciplinary authority for the Executive Engineer posted in NDMC. PW-2 stated that the sanction order dated 27.06.2014 and letter dated 30.06.2014, Ex. PW2/B (colly) bear his signature. PW-2 stated that a request of CBI regarding granting sanction for prosecution of accused Rakesh Kumar Sharma was received in the Office of Chief Vigilance Officer, NDMC and then request of CBI was sent to his office. PW-2 stated that the matter was CBI Vs. R. K. Sharma & Ors. Page No. 34 placed before him and it comprised of SPs report alongwith list of witnesses and list of documents. As the record showed that all the relevant documents had not been enclosed, CBI was requested to convey the relevant documents and after they were received on 11.06.2014, he studied the same and granted sanction for prosecution vide orders dated 27.06.2014 and 30.06.2014. He conveyed the same to CBI vide letter dated 27.06.2014, Ex.PW-2/A. PW-2 stated that he came to the conclusion that there existed a fit case for sanction for prosecution of accused Rakesh Kumar Sharma and after issuance of the main sanction order dated 27.06.2014, they realised that erroneously they omitted to include the Sections 120-B, and 420 IPC and these were rectified and included in the letter dated 30.06.2014.
29. During cross-examination PW-2 stated that he did not give any personal hearing to the accused before granting sanction. PW-2 stated that vide noting dated 15.05.2014 of Joint Director, Vigilance, it is stated that the draft for sanction for prosecution and the relevant documents (original or copy) have not been added with the said letter of DIG, CBI. PW-2 stated that the file, Ex. PW2/C which he had brought contained the list of documents, list of witnesses alongwith sanction order only and it did not contain statement of witnesses under Section 161 Cr.PC, documents which are mentioned in the list of documents. copy of the charge-sheet and FIR. PW-2 also stated that the list of witnesses, which was in the file brought by CBI Vs. R. K. Sharma & Ors. Page No. 35 him, there were 46 witnesses and the list of documents contained 58 documents. PW-2 also stated that Vigilance Department had prepared the draft of sanction order and pursuant to that he had passed sanction order dated 27.06.2014. He denied the suggestion that he had accorded the sanction purely on the basis of draft proforma supplied by Vigilance Department.
30. PW-26 DSP MC.R.Mukund stated that a letter dated 01.05.2014 was written by Sh. Arun Bothra to CVO, NDMC enclosing SP's Report and list of documents and list of witnesses requesting for granting sanction for prosecution of Sh. R.K.Sharma. PW-26 stated that he had enclosed the sanction order of accused R. K. Sharma for prosecution, list of witnesses, list of documents and charge-sheet. During cross-examination, PW-26 stated that he had sent the names of 46 witnesses and 58 documents to NDMC, Vigilance Section for sanction purpose. He further stated that list of witnesses contained 51 witnesses.
31. Section 19 of the Prevention of Corruption Act,1988 deals with the sanction necessary for prosecution . Section 19(1) reads as under :-
"Previous sanction necessary for prosecution. - (1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 allged to have been committed by a public servant, except with the previous sanction [save as otherwise CBI Vs. R. K. Sharma & Ors. Page No. 36 provided in the Lokpal and Lokayuktas Act, 2013]-
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
32. Hon'ble Supreme Court of India in 2005 CRI. L.J. 2145 "C.S. Krishnamurthy Vs. State of Karnataka, while dealing with the issue regarding validity of sanction, observed as under :
".......It is no doubt true that the sanction is necessary for every prosecution of public servant, this safeguard is against the frivolous prosecution against public servant from harassment. But, the sanction should not be taken as a shield to protect corrupt and dishonest public servant."
"The sanction itself shows that there is something to be accounted by the accused. When the sanction itself is very expressive, then in that case, the argument that particular material was not properly placed before the sanctioning authority for according sanction and sanctioning authority has not applied its mind becomes unsustainable. When sanction order itself is CBI Vs. R. K. Sharma & Ors. Page No. 37 eloquent enough, then in that case only formal evidence has to be produced by the sanctioning authority or by any other evidence that the sanction was accorded by a competent person with due application of mind."
33. Hon'ble Supreme Court of India in State of Maharashtra Vs. Mahesh G Jain, reported in 2013 Cri. L.J. 3092, observed as under :
....... The learned trial Judge, as it seems, apart from other reasons has found that the sanctioning authority has not referred to the elementary facts and there is no objective material to justify a subjective satisfaction. The reasonings, in our considered opinion, are absolutely hyper-technical and, in fact, can always be used by an accused as a magic trick to pave the escape route. The reasons ascribed by the learned trial Judge appear as if he is sitting in appeal over the order of sanction. True, it is, grant of sanction is a sacrosanct and sacred act and is intended to provide a safeguard to the public servant against vexatious litigation but simultaneously when there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. The flimsy technicalities cannot be allowed to become tools in the hands of an accused. In the obtaining factual matrix, we must say without any iota of hesitation that the approach of the learned trial Judge as well as that of the learned single Judge is wholly incorrect and does not deserve acceptance.
34. It is clear from aforesaid judgments that entire material CBI Vs. R. K. Sharma & Ors. Page No. 38 should be placed before the competent authority and there should be application of mind by competent authority while granting sanction for prosecution of the concerned person. It would be enough for the prosecution to prove that sanctioning authority had all the relevant papers before it and it was satisfied that it was necessary in the ends of justice to accord prosecution sanction. While granting sanction, it is not for sanctioning authority to judge the truth of all the allegations made against the accused by insisting or calling for the records of the accused. It is also well settled that when the application of the mind by the sanctioning authority to the facts consisting the offences is discernible exfacie from the sanction order itself, there is no need for the sanctioning authority to depose before the Court with regard to the satisfaction arrived at by him in the case.
35. The sanction order dated Ex. PW2/B is signed by Sh. Jalaj Srivastava, PW-2 and he proved the sanction order. PW-2 also proved the letter dated 30.06.2014 (part of Ex.PW2/B) sent to the CBI regarding modification of the sanction order.
36. Perusal of the sanction order Ex. PW2/B shows that it clearly speaks of offences allegedly committed by accused and it shows that PW-2 had examined FIR and statement of witnesses recorded U/S 161 CrPC and other documents collected during investigation by CBI and placed before him in respect of the said allegations.
CBI Vs. R. K. Sharma & Ors. Page No. 3937. Thus, it is clear that entire material such as FIR, statement of witnesses U/S 161 CrPC and documents collected during investigation were put before the Competent Authority. He clearly stated that after considering the record he granted sanction to prosecute the accused R.K.Sharma. The sanction order is expressive and eloquent and, therefore, it cannot be said that the competent authority has not applied its mind. Further, it is also clear from testimonies of aforesaid witnesses that entire material has been placed before competent authority. Hon'ble Supreme Court in State of Maharashtra Vs. Mahesh G Jain, has clearly observed that flimsy technicalities should not be allowed to be raised.
38. The contention of Ld. Counsel for accused is that draft order and sanction order are same and therefore it leads to inference that Competent Authority has not applied its mind. Ld. Counsel also contended that entire material was not placed on record before competent authority.
39. Ld. Counsel for accused no. 1 contended that Vigilance File, Ex. PW2/C brought by PW-2, Jalaj Saxena, does not contain FIR, statement U/S 161 CrPC. It is also contended by Ld. Counsel for accused no. 1 that the list of documents sent by IO to Sanctioning Authority contained names of 46 witnesses while on record there are CBI Vs. R. K. Sharma & Ors. Page No. 40 51 witnesses in list of witnesses and similarly IO sent list of documents to sanctioning authority mentioning 58 documents while the list of documents which is on record contains 61 documents. Ld. Counsel further submitted that sanction order speak about payment made to M/s Decor India Pvt. Ltd. while in fact payment were not made to M/s Decor India Pvt. Ltd. in the tenure of accused no. 1, R.K.Sharma. In this regard Ld. Counsel for accused referred to testimony of DW-1, Asha Verma. Ld. Counsel for accused has referred the judgment Ashok Aggarwal Vs. Vs CBI & Ors. (2016) 154 DRJ 489, Om Prakash Vs. State & Ors., 2009 (2) JCC 1210 (DHC), K.C.Singh Vs. CBI, Crl Appeal No. 2976/2010 (DHC) and Tirath Prakash Vs. State, Crl Appeal No. 205/77 (DHC).
40. The judgment of Ashok Aggarwal V/s CBI, is not applicable under the facts and circumstances of the present case as in that case relevant documents were not placed before the Sanctioning Authority and further the draft order and sanction order were found verbatim same. While in the matter in hand, sanction order speaks about the fact constituting offence committed by the accused and has also stated that elaborate report along with supporting documents were placed before the competent authority. Hence, under the facts and circumstances, it is also not the case that sanctioning authority did not apply mind to material placed before it or on the draft order, hence, sanctity of the sanction order is also not effected.
41. Here it is also noted that the file brought by PW-2, CBI Vs. R. K. Sharma & Ors. Page No. 41 Ex.PW2/C did not contain statements U/S 161 CrPC, documents as mentioned in the list of documents and the copy of FIR. However, that does not shake the credibility of the testimony of PW-2 who had clearly stated in sanction order that he had seen the statements U/S 161 CrPC and other documents and FIR. The file Ex.PW2/C contains noting dated 15.05.2014 which mentions that draft for sanction for prosecution and the relevant documents (Original or copy) have not been added with the enclosed report received from DIG of Police dated 01.05.2014 and it further mentions that CBI may be asked to provide both the above said documents to NDMC at the earliest. The noting dated 12.06.2014 (part of Ex. PW2/C) of one Mr. Ravinder, DD- II (Vigilance) shows that the copy of the record was received by the Vigilance Department by 11.06.2014. Further, the said file (Ex.PW2/C) also contains letter dated 20.05.2014 written by Geetika Sharma, Director, Vigilance requesting the DIG, CBI to provide relevant original record of the case to enable objective and independent application of mind by the sanctioning authority. It shows that some more documents were called by the Competent Authority including originals, which, no doubt, cannot form part of file Ex. PW2/C. These documents were received on 11.06.2014 and the competent authority applied its mind.
42. It is noted that list of documents which was sent to Vigilance Authority mentions 58 documents while the list of documents before the Court contains 61 documents. It is noted that documents CBI Vs. R. K. Sharma & Ors. Page No. 42 no. D-59, D-60 and D-61 pertain to the sanction and could not have been the part of list of documents which was sent to the Vigilance Authority, NDMC. So far as increase in number of witness is concerned, the same is due to addition of some witnesses related to sanction and some other witnesses. It is noted that all the relevant material have been placed before the Competent Authority. It is noted that Competent Authority was having sufficient relevant record and the Competent Authority had applied mind on the material which was available to it granting sanction to prosecute accused no. 1.
43. Ld. Counsel for accused referred number of judgments. In the judgment titled Om Prakash Vs. State & Ors., 2009 (2) JCC 1210 (DHC), Hon'ble Delhi High Court observed that it is required to be tested as to what were the documents which were perused by the sanctioning authority and it is not sufficient for sanctioning authority to state that documents placed before him were perused by him.
44. In the judgment K.C.Singh Vs. CBI, Crl. Appeal No. 976/2010 (DHC), Hon'ble Delhi High Court observed that sanction order is without application of mind by the sanctioning authority as the sanction order was verbatim copy of draft sanction order wherein the similar error was there and there was infirmity that CFSL report was not seen by the competent authority.
45. In the judgment Tirath Prakash Vs. State, Crl Appeal mo.
CBI Vs. R. K. Sharma & Ors. Page No. 43205/77 (DHC), Hon'ble High Court observed that the prosecution was launched without valid sanction and therefore, cognizance taken by Special Judge was without jurisdiction.
46. In the judgment Ashok Tshering Bhutia V. State of Sikkim, Hon'ble Supreme Court of India observed that a mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby.
47. Here it is relevant to refer to the judgment of Hon'ble Supreme Court in Indu Bhushan Chaterji V. State of West Bengal, 1958 CrLJ SC 279, wherein Hon'ble Supreme Court observed that the sanction is valid when the papers which were placed before him apparent gave him the necessary material from which he decided that it was necessary in the ends of justice to accord sanction.
48. Thus, from the above said discussions it is clear that competent authority has applied its mind and took decision on the basis of relevant record. Hence, there is no substance in the contentions as raised by Ld. Counsel for accused no. 1. None of the judgments referred above help the case of accused no. 1.
49. Another contention of Ld. Counsel for accused no. 1 and 3 is that no sanction has been granted U/s 197 CrPC, therefore, accused cannot be prosecuted under Section 120B r/w Section 420 CBI Vs. R. K. Sharma & Ors. Page No. 44 IPC. Ld. Counsel for accused persons referred the judgment of R. Balakrishnaa Pillai Vs. State of Kerela & Ors., (1996) 1 SCC 478.
50. In the judgment R. Balakrishnaa Pillai Vs. State of Kerela & Ors., (1996) 1 SCC 478. Hon'ble Supreme Court observed that act of minister was directly and reasonably connected with the official duty as a minister and therefore attracts protection under Section 197 CrPC.
51. Here it is relevant to refer to judgment of Praveen Sultana V. State of West Bengal, 2009 Cr.LJ SC 1388, wherein Hon'ble Supreme Court observed that if the authority vested in a public servant is misused for doing things which are not other wise permitted under the law, such acts cannot claim the protection of Section 197 CrPC.
52. The judgment of P.K.Pradhan V. State of Sikkim, 2001 CrL.J. SC 3505 is also relevant wherein Hon'ble Supreme Court observed that there must be reasonable connection between act complained of and official duty.
53. It is noted that sanction order clearly refers the role of the accused no. 1 as to how the deception has been caused to NDMC and NDMC is fraudulently induced to grant contract in favour of accused no. 3. The sanction has been granted clearly stating therein "
CBI Vs. R. K. Sharma & Ors. Page No. 45for the said offence and for any other offences punishable under the provision of law in respect of the acts aforesaid" which squarely covers the offences alleged to have been committed under IPC and other statute. Even otherwise the act of accused in conspiring with other accused persons to commit cheating cannot be said to fall within the scope "colour of duty" or "in discharge of duty". The alleged acts of omission and commission committed by public servant cannot be said to have been committed in discharge of his official duties.
54. Therefore, the contention of Ld. Counsel for accused persons that sanction U/s 197 CrPC was not granted and the sanction is bad in law, is without any basis. None of the judgments cited by accused no. 1 and 3 help the case of accused no. 1 and 3.
Whether offence of cheating U/S 420 IPC is made out
55. The first question is whether M/s Decor India Pvt. Ltd.,accused no. 3 and accused no. 2, Anil Dhingra, Managing Director of said Company (since deceased) had put NDMC under deception and acted dishonestly and fraudulently and got contract by misrepresenting or concealing the facts and thereby committed cheating.
56. Before adverting to the facts of case, it will be beneficial to have a glance of the ingredients of the offence of cheating as CBI Vs. R. K. Sharma & Ors. Page No. 46 defined in Section 415 IPC, which are as follows :-
"1. Deception of any person.
2. (a) Fraudulently or dishonestly inducing that person :
(i) to deliver any property to any person, or
(ii) to consent that any person shall retain any property, or
(b) Intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
However when in pursuance of deception so exercised, any property is delivered, the said act of cheating becomes punishable u/s 420 IPC."
57. The offence of cheating is made of two ingredients. Deception of any person and fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property. The word "dishonestly" as defined in Section 24 of the IPC implies a deliberate intention to cause wrongful gain or wrongful loss and when this is coupled with deception and consequent of delivery of property, the offence of cheating as defined under Section 415 of IPC is completed.
CBI Vs. R. K. Sharma & Ors. Page No. 4758. In the judgment Ram Jas Vs. State of U.P., Hon'ble Supreme Court observed that, "The ingredients required to constitute the offence of cheating are -
(I) there should be fraudulent or dishonest inducement of a person by deceiving him ;
(ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or
(b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived ; and
(iii) In cases covered by (ii)(b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.
Testimonies of witnesses relevant for deciding aforesaid point
59. Testimonies of PW-3, Sh. Praveen Chaudhary, PW-4, Sh. Raj Kumar Aggarwal, PW-5, Sandeep Kapoor, PW-6, Sh. Surender Kumar, PW-8, Anil Kumar Gupta, PW-9, Sh. Bachan Singh, PW-10, Sh. Gurubaksh Singh, PW-11, Sh. Bhopal Singh, PW-13, Sh. Sanjeev Kumar, PW-15 Sh. Rakesh Kumar Kayesth, PW-16 Sh. Pardeep CBI Vs. R. K. Sharma & Ors. Page No. 48 Kaushik, PW-17, Sh. Amit Mukherji, PW-18, Sh. Chandra Shekhar Pandey, PW-19, Sh. Davinder Singh Virdi, PW-20, Sh. R. Moon Dutt, PW-21, Sh. Om Prakash Gulati, PW-25, Sh. Sh. Pawan Gupta, PW- 26, DSP M.C.R.Mukund and PW-27, Sh. Naresh Verma are relevant.
60. PW-3 who worked in M/s Jubilant Life Sciences as General Manager deposed that the total value of purchase order as per Ex.PW3/A(colly), placed on M/s Decor India Pvt. Ltd. were Rs.48168426.33. He also proved certificate dated 03.11.2008 Ex. PW 3/B regarding the work done by M/s Decor India Pvt. Ltd..
61. PW-4, Raj Kumar Aggarwal, General Manager, India Habitat Centre stated that his nature of duties consisted of Project Management and to look after general upkeep of India Habitat Centre. He further stated that Consultants of different projects were appointed by India Habitat Centre. Sh. J.R.Bhalla was appointed as consultant by India Habitat Centre who issued work orders relating to M/s Decor India Pvt. Ltd.. PW-4 identified signature of Jai Rattan Bhalla (deceased), who worked as Consultant on certificate dated 15.07.2008, Ex. PW4/B. PW-4 stated that as per detail, Ex.PW 4/A M/s Decor India Pvt. Ltd. had done work for sum of Rs.1,80,98,083/- against 6 work orders. He stated that it is not in his knowledge and not in their office record regarding any work order amounting to Rs.4 Crore executed by M/s Decor India Pvt. Ltd.. PW-4 stated that apart from the documents provided under cover of Ex. PW4/A, there may CBI Vs. R. K. Sharma & Ors. Page No. 49 be other documents/work orders of other institutions that are in the India Habitat Centre premises but independent of the office of Director, India Habitat Centre.
62. During cross-examination he admitted that there were 37 different offices at India Habitat Centre during 2009-10 occupied by different institutions such as NGOs and government institutions. PW-4 admitted that all the offices at the India Habitat Centre do not come within their jurisdiction and he could not say whether these offices/institutions gave work order to M/s Decor India Pvt. Ltd..
63. PW-5, Sandeep Kapoor, the then General Manager (Finance) deposed that late Mr. J.R.Bhalla was an architect and they had forward the office record pertaining to the total work done by M/s Decor India Pvt. Ltd., from 1996 to 2004 in the office of India Habitat Centre amounting to Rs.180.95 Lacs. He deposed that besides aforesaid work no other work was done by M/s Decor India Pvt. Ltd., in the office of India Habitat Centre during the said period. He deposed that he and Mr. R.L.Aggarwal collected relevant documents from their office record and compiled and forwarded to CBI vide letter dated 09.11.2012. PW-5 stated that India Habitat Centre was incorporated as a society in the year 1989 and is functioning since 1994.
64. PW-6, Surender Kumar deposed that the first tender CBI Vs. R. K. Sharma & Ors. Page No. 50 proceedings which were initiated were aborted as it was decided to issue composite tender comprising of civil and electrical work and the process was initiated regarding composite tender vide note dated 25.01.2008, Ex. PW6/L. The second call of tender proceedings which were initiated regarding composite tender were rejected vide recommendations of Superintending Engineer which was approved by Chairman on 03.06.2008 and note in this regard is Ex. PW6/M. Thereafter, Sh. G.P Sharma, CE (Civil-I) approved the NIT for third call of tender vide his Note dated 03.07.2008, Ex. PW6/O and note dated 07.07.2008, Ex. PW6/P was initiated by Electrical Accountant, EA(C-V) regarding publication of NIT in news papers and Sh. R.K. Sharma directed to issue tender notice on publication. Note of Sh. R.K. Sharma dated 11.07.2008, Ex. PW6/Q is regarding pre-bid conference regarding third call of tender, in presence of parties, Executive Engineer and Superintending Engineer. The Executive Engineer, C-V informed that consultant had prepared comparative statement and justification, Project Leader has directed to get it checked from Planning Division for scrutiny.
65. PW-6 stated that on application of M/s Decor India Pvt. Ltd. dated 11.07.2008, Ex.PW6/S, Sh.R.K.Sharma, Executive Engineer marked the application requesting to issue tender, to Electrical Accountant and Electrical Accountant put his signatures. PW-6 also stated that vide note of Sh. R.K.Sharma dated 22.08.2008, CBI Vs. R. K. Sharma & Ors. Page No. 51 Ex. PW 6/T, he put up the file before Executive Engineer (C-VI) Civil and then the matter was sent to Finance Department and Sh. Manoj Sethi, Additional Finance Advisor gave his opinion, Ex. PW 6/U.
66. PW-6 stated that in this case the bidder must have experience of past performance of one completed work of interiors of Convention Centre or Auditorium or Conference Hall amounting to Rs. 400 Lac in last seven years. PW-6 exhibited the certificate Ex. PW6/V (colly). PW-6 further stated that in CPWD Manual, format of certificate to be submitted by bidders regarding past performance/experience is prescribed and he cannot tell the exact details needed in the said certificate. However, detail of similar work, quality of performance and the date of completion etc. should be there in the certificate. PW-6 exhibited the agreement dated 09.02.2009 between NDMC and M/s Decor India Pvt. Ltd. as Ex. PW 6/W.
67. During cross-examination PW-6 stated that proforma given in Annexure-4 of Appendix-34 is applicable to the Contractors who apply for enlistment as Contractor for CPWD, however, they also consider this proforma for bidders. PW-6 stated that the first tender in the present case was turned down without any bid having been received and in the second composite tender there were three bidders. He further stated that note Ex. PW6/DX-1 shows that the financial bids of tenderers for the second call of tender is described in CBI Vs. R. K. Sharma & Ors. Page No. 52 the said note sheet and M/s Ahluwalia Contractors (India) Ltd. were the lowest bidders in the second call of the tender and M/s Decor India Pvt. Ltd were on the third position. PW-6 exhibited the copy of Section 16 titled "Publicity of Tenders" of CPWD Works Manual, 2007 as Ex.PW6/DX-2. It is also stated that though the enlistment/registration of contractors is done by CPWD, such enlisted/registered contractors are also recognized for works to be conducted by NDMC. He further stated that he was aware that Government of India has designated certain companies/firms as being micro, small and medium enterprises (MSME). He further stated that in the third call of tender, there was only one bidder i.e., M/s Decor India Pvt. Ltd.. He further stated that the financial bid of M/s Decor India Pvt. Ltd. was opened in both the second and third call of the tender.
68. PW-8, Anil Kumar Gupta employee of M/s Jubilant Life Sciences Ltd. stated that total payments were made to M/s Decor India and M/s INTCON upto 31.10.2008 of Rs.44029089.03 and there was no single work of Rs. 4 crore placed on M/s Decor India Pvt. Ltd. M/s INTCON. PW-8 stated about different purchase orders placed on M/s Decor India Pvt. Ltd. (part of Ex. PW3/A) and payments made to M/s Decor India Pvt. Ltd. (part of Ex. PW3/A).
69. PW-9, Bachan Singh deposed that in the year 2006 he was posted as AE in Electric Department in C-V Division of NDMC.
CBI Vs. R. K. Sharma & Ors. Page No. 53PW-9 proved the relevant noting regarding opening of tender as Ex. PW 9/A. PW-9 stated that pre bid conference was held in the Chamber of Chief Engineer on 11.07.2008 and note in this regard was Ex. PW 6/Q. PW-9 stated that M/s Decor India Pvt. Ltd. has filed bid documents in response to NIT for third call, Ex. PW 9/B, which was the part of agreement entered into between the parties. PW-9 has proved the entries regarding proceeding pertaining to opening of tenders as Ex. PW 9/C. He stated that the file was marked to Project Leader by Sh. R.K.Sharma, Electrical Engineer vide his note Ex. PW 9/D. PW-9 exhibited the different notings as Ex. PW 9/E. PW-9 stated that R.K.Sharma, Executive Engineer (C-V) vide his note dated 26.08.2008 recommended for negotiation with the lowest tenderer i.e. M/s Decor India Pvt. Ltd. and note in this regard is Ex. PW 9/F and then the file was sent to Finance Department. PW-9 proved the negotiation report as Ex. PW9/I. PW-9 stated that accused R.K.Sharma vide his note from Portion B to B, Ex. PW9/J recommended to award the work in favour of M/s Decor India Pvt. Ltd. on quoted rates and after concurrence from the Finance Department and Empowered Committee, file was put up by R.K.Sharma vide his note dated 18.11.2007, through Project Leader, before NDMC Council for consideration and necessary approval along with relevant documents and draft agenda and his note is Ex. PW 9/K. PW-9 stated that before issuing bid documents, the eligibility of the bidder is checked by Electrical Accountant of Account Department and after Electrical Accountant certify eligibility of the bidder, bid documents are CBI Vs. R. K. Sharma & Ors. Page No. 54 issued. PW-9 further stated that there is no such certificate issued by Electrical Accountant, however, the Electrical Accountant has written in his noting dated 21.08.2008 that bidder was eligible and the noting dated 21.08.2008 is Ex.PW7/A. PW-9 also stated that he had seen the NIT, Ex.PW9/B (colly) and certificate dated 15.07.2008 and as per him, the bidder was fulfilling the eligibility criteria as required under the NIT, since NIT prescribes work amount to be 400 Lac for the last 7 years. He stated that the bid was two envelope system. PW- 9 also stated that the eligibility condition is given in NIT. He further stated that the word 'definite proof' qualifies condition of being NDMC approved Class-I contractor, must have experience of work of interior upto Rs.4 Crore or work of Rs.5 Crore of reinforcement/stage lighting of convention center and certificate regarding filing of income tax return before Department of Trade & Taxes.
70. PW-9 was cross-examined by Ld. Counsel for CBI. PW- 9 stated that he stated to the CBI that experience certificate did not specify agreement number, work order number, tendered amount, date of completion and such other particulars and its a general certificate without any specific data. He further stated that he had stated to the CBI that experience certificate must contain following information for the satisfaction of competent authority- name of the contractor/agency, name of the work and its nature, agreement number /work order number, tendered amount/contractual amount, CBI Vs. R. K. Sharma & Ors. Page No. 55 date of start and date of completion. The witness also stated that bidder was required to file eligibility certificate in terms of Annexure-4 of Appendix 34 of CPWD Manual i.e client certificate regarding performance of contractor.
71. During cross-examination by Ld. Counsel for accused no. 1, he stated that he was AE at the time of 3rd tender and remained involved in the entire processing of tender. He further stated that file regarding first tender was also seen and processed by his superior officers, R. K. Sharma, EE, Mr. Jha, Project Leader and the said file was also sent to Planning Division, Finance Department and then to Chairman, NDMC and thereafter to Council, NDMC which gave its final approval and no one had any objection. PW 9 stated that in response to different tenders, the private parties were filing certificates in the format as of Ex. PW9/DX-1 and whenever any govt agency was filing any certificate that used to be in format prescribed in CPWD Manual, 2007. PW9 also stated that CBI officials had informed him that experience certificate must contain the details i.e. the name of the contractor/agency, name of the work and its nature and agreement number/work order number, tendered amount/contractual amount, date of start and date of completion. He stated that tender documents were being issued by Divisional Accountant and as per Section 15.4(5) of CPWD Manual, 2007, it was the duty of Divisional Accountants to ensure that the tenders are issued to those contractors who satisfy the eligibility criteria for issue of the tenders CBI Vs. R. K. Sharma & Ors. Page No. 56 as issued in the Press notice. He also stated that Divisional Accountant is to properly scrutinize the applications received for issue of tenders, keeping in view the eligibility criteria and then to put up before Executive Engineer for decision. He exhibited the extract of CPWD Manual, 2007, particularly Section 15.4 (5) is Ex. PW9/DX-2. PW-9 stated that application dated 11.07.2008, Ex. PW6/S was marked to Divisional Accountant who wrote on the application "be issued tender documents" and when this tender was opened on 21.07.2008, EE (Civil) Sh. O.P.Gulati was also present as part of tender opening process. PW-9 stated that when the 2nd tender was opened by Civil Department of NDMC, similar certificate Ex. PW 6/S was used by the tenderer. He also stated that no payment was made to M/s Decor India Pvt. Ltd. by NDMC in respect of 3rd tender in the tenure of R. K. Sharma.
72. The witness was also cross-examined by Counsel for accused no. 3. PW-9 stated that during 2nd call of tender there were three bidders and M/s Decor was one of the bidder but not the lowest bidder. He stated that 2nd call of tender was rejected as the rates quoted were found to be exorbitant and during 3rd call of tender there was only one bid, that of M/s Decor India Pvt. Ltd.. He also stated that 3rd call was made by NDMC within a few months of rejection of second call. He stated that M/s Decor India Pvt. Ltd. is a Class-I contractor registered with CPWD.
CBI Vs. R. K. Sharma & Ors. Page No. 5773. PW-9 stated that no format is mentioned with regard to filing eligibility certificate by bidder in pages 3 to 6 of Ex. PW9/B (colly). He stated that annexure 4, part of Appendix 34 of CPWD Manual, 2007 provided rules for enlistment of contractors.
74. PW-9 stated that during investigation the CBI officials checked whether the work done by M/s Decor India Pvt. Ltd. was as per specifications including equipment etc. and in his presence the CBI officials had stated that the work was satisfactory and no short comings were pointed out by them. PW-9 further proved the file regarding approval of vendor of sound reinforcement as Ex. PW9/DX- 3 and measurement book as Ex. PW9/DX-4. PW-9 exhibited another file relating to comparative statement as Ex. PW9/DX-5.
75. PW-10, Gurubaksh Singh deposed that he remained posted in CPWD as AE, EE and at present he was to join as Chief Engineer in CPWD. PW-10 stated that completion certificate is the performance certificate of work executed by the agency and is issued by the officer of rank of AE or EE on completion of the work. The completion certificate is issued in proforma given in Work Manual, 2007. He stated that completion certificate contains date of start, date of completion, performance of agency. After seeing Annexure -IV part of Appendix 34 of CPWD Manual, 2007, PW-10 stated that the clients certificate regarding the performance of contractor is analogous to performance certificate, Ex.PW10/A. PW-10 proved the completion CBI Vs. R. K. Sharma & Ors. Page No. 58 certificates issued by him to M/s Decor India Pvt. Ltd. as Ex. PW10/B and Ex. PW 10/C (colly). PW-10 stated that in CPWD, completion certificate as prescribed in Works Manual for CPWD is considered for eligibility of the agency in tendering process. PW-10 stated during cross-examination that certificate Ex.PW10/B and Ex.PW10/C are not exactly in the format as given in proforma in Ex. PW10/A which is client certificate regarding performance of contractor. PW-10 when suggested that there is no rule that proforma, Ex. PW10/A would apply to bidders in response to the tender, he stated that in bidding process it depends on prescribed procedure of relevant organization. It would depend on notice inviting tender authority in which format they need the eligibility certificate. PW-10 also stated that he had remained involved in some projects where M/s Decor India Pvt. Ltd. was granted work and its work had been satisfactory and there had not been any complaint against the work of M/s Decor India Pvt. Ltd.. He also stated that sometimes they call tender from registered contractor only and then no experience certificate is required to be submitted by the applicant.
76. PW-11 Sh. Bhopal Singh stated that he was associated with New Delhi Convention Centre at Block B Project as Member Finance and his duty was to examine the proposals on the basis of information/record made available by Project Leader. Besides him, there was Member of Planning and Project Leader involved in the said project. PW-11 stated about the first call of tender which was rejected CBI Vs. R. K. Sharma & Ors. Page No. 59 vide order dated 28.01.2008 of Chairman, NDMC, Ex. PW-11/C. PW- 11 stated that the process of second call of tender regarding NDCC Phase-II Project started and same was also rejected. PW-1 exhibited the note sheet dated 23.04.2008 to 03.06.2008, Ex. PW11/D (colly). PW-11 stated that vide note dated 27.08.2008, the Project Leader had marked the file to Member Finance, NDCC, Phase-II and his note is at page no. 99 to 100 from Portion B to B, Ex. PW 11/E. In para no. 4 of his note, eligibility conditions as required in the specific certificate are mentioned.
77. During cross-examination PW-11 stated that certificate Ex. PW 9/DX-1 and the certificate dated 21.05.2001 , Ex. PW 11/DX- 1 are almost same except amount figure and date of completion. PW-11 stated that the certificate dated 21.05.2001 Ex. PW11/DX-1 was furnished by M/s Decor India Pvt. Ltd. at the time of second call of tender and certificate Ex. PW9/DX-1 was furnished by M/s Decor India Pvt. Ltd. at the time of third call of tender. PW-11 stated that at the time of second call of tender he did not give any suggestion regarding eligibility certificate. PW-11 volunteered that at the time of second call of tender M/s Decor India Pvt. Ltd. was not recommended for award of work. PW-11 stated that at the time of third call M/s Decor India Pvt. Ltd. was found eligible for grant of work by the Division and that is why suggestion was raised regarding re-checking of eligibility criteria. PW-11 also stated that Ex. PW9/F mentions about the negotiations recommended with the lowest tenderer i.e. M/s CBI Vs. R. K. Sharma & Ors. Page No. 60 Decor India Pvt. Ltd to reduce the rates to maximum extent. He further stated that negotiation was made with the eligible bidder. PW-11 also stated that he had given suggestions in Ex. PW11/E for consideration of Project Leader and the file was sent to Project Leader who marked the said file to EE(Electrical) who further marked the same to AE (Electrical) and thereafter a note was prepared by AE (Electrical) and it was sent by EE (Electrical) to Project Leader and thereafter Project Leader marked the file to Finance Department. PW- 11 stated that Project Leader had not raised any objection regarding eligibility of M/s Decor India Pvt. Ltd..
78. PW-12 Sh. Abdul Wahid Ansari stated that he was posted as Joint Director, Information Technology in NDMC. PW-12 stated that he had submitted proforma regarding performance report of the work and client certificate regarding performance of the contractor. He stated that he had provided proforma Ex. PW 10/A, Ex. PW 12/B to Insp. M C R Mukund along with his forwarding letter Ex.PW12/A. PW- 12 stated that after completion of work, certificates and the aforesaid proforma is issued by Electrical Engineer and a certificate is issued by officer not below the rank of Superintendent Engineer. PW-12 stated that the work order and completion certificate were being asked from the contractor/medium contractor or the clients and he did not remember if there was any proforma prescribed to claim eligibility regarding past performance by the bidder. PW-12 stated that the details as suggested in question that the date of start of work, its CBI Vs. R. K. Sharma & Ors. Page No. 61 completion, amount of contract, agreement and work order number and performance are required in the certificate to be submitted by the bidder in response to the tender.
79. PW-13 Sanjeev Kumar deposed that he worked in M/s Decor India Pvt. Ltd. from 2002 to 2014 and Mr. Anil Dhingra and Bhagwan Singh were the Directors. He further stated that Anil Dhingra was Incharge of day to day affairs of M/s Decor India Pvt. Ltd.. PW-13 proved the pre-bid conference attendance sheet dated 07.03.2008, Ex. PW13/B. He also proved the tender documents as Ex. PW 13/C. He identified signature of Mohd. Nayeem on tender opening register Ex. PW 13/E on behalf of M/s Decor India Pvt. Ltd.. PW-13 exhibited the documents related to tender as Ex. PW 13/G. He also identified signature of Late Anil Dhingra (Accused no. 2) and signature of Bhagwan Singh on Point B on 40extract of Board Resolution vide which Late Anil Dhingra was authorized to sign the work document for the project NDCC, page no. 2, NDMC, Ex. PW13/I. During cross- examination, PW-13 stated that in 2008 M/s Decor India Pvt. Ltd. was designated as Small Scale Industry and also as MSME (Medium Small or Micro Enterprise) Unit. He also stated that mandatory eligibility clause of minimum turn over is not imposed for such Units in government tenders. He also stated that M/s Decor India Pvt. Ltd. had applied for government tenders citing its status as MSME/SSI Units for waiver of earnest money deposit and minimum eligibility. PW-13 Sanjeev Kumar exhibited letters dated 28.08.2002 and CBI Vs. R. K. Sharma & Ors. Page No. 62 29.03.2003 regarding grants of benefits of Small scale industries in government purchase and Price Reference Policy as Ex. PW 13/J. PW-13 during re-examination by Ld. PP stated that copy of aforesaid letters Ex. PW 13/J ar4400e not filed with the bid documents.
80. PW-15 Sh. Rake40s40h Kumar Kayesth deposed that completion certificate Ex. PW 1405/A was issued to M/s Decor India Pvt. Ltd. relating to completion of40 modular furniture project at Shastri Bhawan. He further stated 40that the name of the work, name of contractor, agreement number, amount of work done, date of completion, whether extension of time if required is given with or without levy of compensation, financial soundness and quality of work etc. are required in the certificate to substantiate the past performance of the bidder. He also stated that a request may be sent to the client of executed work who got the work executed for ascertaining the details of actual work done in the absence of any certificate regarding past performance.
81. During cross-examination PW 15 stated that as per Ex. PW 15/A, the estimated cost was Rs.40,47,430.00 and the value of the work done was Rs.48,71,041.00 and this deviation of work often occurs in contracts on account of cost escalation, additional work done or other factors. PW-15 stated that the certificate Ex. PW 15/DX- 1 does not bear the date of issuance. He further stated that no date CBI Vs. R. K. Sharma & Ors. Page No. 63 of issuance on Ex. PW15/A and Ex. PW 15/DX-1 makes them invalid. He further stated that as per certificate Ex. PW15/DX-1, the estimated cost was Rs.25,55,652/- whereas the value of work done was Rs.29,48,474/-.
82. PW-16 Sh. Pradeep Kaushik deposed that he had been working in M/s SDB Consultants Pvt. Ltd. as an Accountant. He deposed that SDB Consultants Pvt. Ltd. was engaged in construction of India Habitat Centre and Mr. J. R.Bhalla was Managing Director of said company. He deposed that certificate Ex. PW 4/B was issued by Mr. J. R.Bhalla. He also stated that photocopy of certificate dated 15.07.2008, Ex. PW 9/DX-1 was the photocopy of certificate Ex. PW 4/B.
83. PW-17 Amit Mukherjee, Consultant in Delhi Urban Art Commission exhibited the computer print out of statement of payment made to M/s Decor India Pvt. Ltd. as Ex. PW 17/C. He deposed that there was no single work of Rs.4 Crore executed by M/s Decor India Pvt. Ltd. for DUAC.
84. PW-18 Chander Shekhar Pandey exhibited the agreement between CAPART and M/s Decor India Pvt. Ltd. as Ex. PW18/B and pay orders as Ex. PW18/E (colly). He deposed that he cannot say if CAPART ( Council for Advancement of People's Action & Rural Technology) had placed an order for work to M/s Decor India CBI Vs. R. K. Sharma & Ors. Page No. 64 Pvt. Ltd. to the amount of Rs. 4 Crore or more. PW-18 stated during cross-examination that PW18/A, which contains details of payment, does not contain grand total of amounts paid to M/s Decor India Pvt. Ltd.. PW-18 stated that pay order dated 20.12.1994 for Rs.1,50,000/- and pay order dated 28.02.1995 for Rs. 10 Lac are not reflecting in letter Ex. PW18/A.
85. PW-19 Sh. Davinder Singh Virdi deposed that he joined NDMC as JE in the year 1978 and retired as Assistant Engineer in the year 2016. He identified the signature of Sh. Sanjeev Kumar, representative of contractor on Ex. PW9/DX-1. He proved the seizure memos dated 06.09.2012 as Ex. PW 19/A, dated 09.07.2012 as Ex. PW 19/B and copy of an agreement wherein M/s Raja Aederi Architect Consultant Pvt. Ltd. was one of the party as Ex. PW 19/C.
86. During cross-examination PW-19 stated that as per seizure memo Ex. PW19/B, he had supplied the tender documents of M/s MAC Associate, Ex. PW19/DE and also supplied the tender documents and supporting documents of M/s Ahluwalia Contractors and the two volumes, Ex. PW19/DB and Ex. PW 19/DC. He further stated that he had also supplied two volumes of document vide seizure memo Ex. PW 19/B and exhibited the documents as Ex. PW 19/DA. PW-19 exhibited the Comparative Statement as Ex. PW 19/DD and tender documents of MAC Associates as Ex. PW 19/DE.
CBI Vs. R. K. Sharma & Ors. Page No. 6587. PW-20, R.Moon Dutt stated that he was working in National Foundation for India (NFI) as Finance Manager since 2005 and his duties were to manage the finance of the Organization. PW- 20 stated about the document provided to CBI vide letter dated 12.02.2013, Ex. PW-20/B. PW-20 stated that M/s Decor India Pvt. Ltd. had not completed any single work order for NFI for Rs.4 Crore or more.
88. During cross-examination PW-20 stated that the office of NFI is in the India Habitat Centre, Delhi. PW-20 stated that as per letter dated 14.01.2013, Ex. PW-20/A, NFI paid to the Architect (SAI) a sum of Rs. 21,14,884/-, which was higher than the approved price of Rs. 19,40,879/-. PW-20 stated that he had deposed on the basis of the records with the NFI and as shown to him.
89. PW-21 Sh. Om Prakash Gulati deposed that he joined NDMC as Junior Engineer (Civil) in the year 1972 and he was associated with NDCC, Phase-II along with Executive Engineer Sh. D.K.Girotra till mid of 2009. Thereafter, he was transferred to some other section and his duties were supervision of project and planning work in relation to project of NDCC. PW-21 exhibited the Tender Opening Register dated 04.12.2007 as Ex. PW 21/A. PW-21 stated that there was only one bid in proceedings dated 04.12.2007 and hence, was rejected. PW-21 stated that the tender opening proceedings were done in the presence of inter alia aforesaid CBI Vs. R. K. Sharma & Ors. Page No. 66 signatories namely Sh. R.K.Bansal, Assistant Engineer, Sh. D.S. Virdhi, Junior Assistant and Sh. R. K.Sharma, Electrical Engineer. He further stated that he participated in the aforesaid tender.
90. PW-21 stated that in the second call of tender opening proceedings dated 18.03.2008, M/s Ahluwalia Contracts India Ltd. was the lowest bidder. PW-21 stated that the second call of tender was also rejected due to higher rates quoted by the bidders which were much more than the justified rates. Even after negotiation, there was much difference between the quoted rates and justified rates, hence, the second call of the tender was also cancelled. M/s Decor India Pvt. Ltd. was the third lowest bidder in this call. PW-21 stated that as per general practice, the bidder was required to furnish certificate regarding past performance as per the conditions of tender documents. He further volunteered that their accountant checked the certificate. PW-21 stated that as per NIT conditions contained in tender documents Ex. PW13/C (colly), specific details of the work done were required from the bidder and the certificate Ex. PW 11/DX- 1 does not contain specific details of the work done rather it had mentioned about total work done by it. He further stated that as per procedure they scrutinize the tender documents before awarding of the tender and the Accountant examined the tender documents to ensure that tender documents fulfill the condition as per the NIT. He further stated that evaluating members also scrutinized the tender documents at the time of evaluation of the bid. He also volunteered CBI Vs. R. K. Sharma & Ors. Page No. 67 that the documents are scrutinized at different levels. He also stated that as M/s Decor India Pvt. Ltd. was the third lowest bidder in second call of tender so the specific details of the work executed by M/s Decor India Pvt. Ltd. was not verified. The normal procedure is that they verify the documents of the first lowest bidder and if the award is granted to the first lowest bidder, they do not scrutinize the documents of second or third lowest bidders.
91. During cross-examination by Ld. PP for the CBI, PW-21 stated that Portion A to A of his statement U/S 161 CrPC, Ex. PW21/B was correctly recorded. PW-21 was cross-examined by Ld. Counsel for accused no. 3. PW-21 stated that the second call of tender was in the form of two envelope system and in this system firstly a bidder's technical bid is opened and only thereafter the financial bid is opened. Only those bidders whose technical bids are approved, have their financial bids opened and until the technical evaluation of all the bidders is complete, the financial bids will not be opened. PW-21 stated that the Accountant who sits with the tender opening team was in possession of the NIT for the second call of tender. He further stated that the NIT is not a confidential document and all members of the tender opening team had access to the same. PW-21 exhibited the letter dated 21.07.2008, sent by M/s Decor India Pvt. Ltd. to Executive Engineer (C-VI) is Ex. PW-21/DX-1. PW-21 stated that Ex. PW-11/DX-1 was given by the bidder to fulfill the eligibility criteria even at the time of the second call of the tender and they had seen CBI Vs. R. K. Sharma & Ors. Page No. 68 the certificate and they had opened the technical bid of accused no.3, M/s Decor India Pvt. Ltd. after finding that its documents including certificate, Ex. PW-11/DX-1, was in order. PW-21 further stated that he signed on copy of certificate dated 15.07.2008 and exhibited the copy of certificate dated 15.07.2008, copy of allotment of TIN to M/s Decor India Pvt. Ltd. and a print out of receipt of on line return of M/s Decor India Pvt. Ltd. as Ex. PW21/DX-2.
92. PW-25, Deputy Manager (Accounts) in M/s Jubilant Life Sciences deposed that he had received certain documents which were authenticated by him and were enclosed with the letter dated 27.11.2017, Ex. PW 25/A.
93. PW-26 DSP MC.R. Mukund is the Investigating Officer of the case. He stated about the different documents collected from NDMC officials and offices in India Habitat Centre. He proved the search list cum seizure memo dated 29.06.2012 as Ex. PW26/D whereby search was conducted and case property mentioned therein was seized from the office premises of M/s Decor India Pvt. Ltd.. He also proved the seizure memo dated 16.10.2012, Ex. PW 26/E vide which various certificates issued to M/s Decor India Pvt. Ltd. by various departments were seized from Late Anil Dhingra of M/s Decor India Pvt. Ltd.. He proved the seizure memo dated 27.02.2013, Ex. PW26/F regarding seizure of Tender Opening Register of EE(E), C-5 Division in the year 2006-07. He also proved the letter dated CBI Vs. R. K. Sharma & Ors. Page No. 69 07.05.2015 along with its enclosures, Ex. PW 26/G issued by IREDA. PW-26 stated that on the basis of investigation he concluded that accused R.K. Sharma, Executive Engineer (Electrical), NDMC in connivance with Late Anil Dhingra, Director of M/s Decor India Pvt. Ltd. accepted the certificates regarding completion of work order amounting to Rs. 4 Crores and above. It is also stated by PW-26 that the certificate dated 15.07.2008 issued by J.R.Bhalla of M/s SDB Consultants were furnished to get the tender documents issued from NDMC and it was processed by R.K.Sharma, Executive Engineer, NDMC and got issued the tender documents through Divisional Accountant. PW-26 stated that M/s Decor India Pvt. Ltd. again submitted aforesaid certificates along with other certificates at the time of submission of bid documents which formed the part of technical bids. PW-26 stated that a general certificate devoid of any specifications like work order number, agreement number, contractual amount, date of completion etc got issued dishonestly and fraudulently from M/s SDB Consultant and submitted in NDMC as M/s Decor India Pvt. Ltd. had not done any single work order amounting to Rs. 4 Crore or above. PW-26 stated that the certificate having no details at all was processed, finalized and accepted by R.K.Sharma, Executive Engineer, NDMC deliberately ignoring the very command of NIT stipulations. PW-26 stated that the tender was opened on 21.07.2008 wherein the said certificate was the integral part of technical bids along with other certificates. The technical bids enclosed various certificates including the certificate dated 15.07.2008 issued by M/s CBI Vs. R. K. Sharma & Ors. Page No. 70 SDB Consultant. All the other certificates issued by CPWD and other such departments clearly stipulated the agreement number, work order number, contractual amount and other particulars except the certificate dated 15.07.2008 which procured the eligibility of M/s Decor India Pvt. Ltd. as technically qualified bidder.
94. PW-26 further stated that accused R.K.Sharma, Executive Engineer, NDMC knowingly accepted the certificate dated 15.07.2018. The work orders pertained to renovation of Convention Centre and that no single work order was ever placed to M/s Decor India Pvt. Ltd. amounting to Rs.4 Crore and above and remained silent when the tender was opened on 21.07.2008 and when the finance department raised queries regarding the authenticity of the certificate dated 15.07.2008 as a definite proof of eligibility in response to NIT stipulations. Sh. R.K.Sharma responded the query and again approved the genuineness of the certificate with the object to pave the way for eligibility of M/s Decor India Pvt. Ltd.. It is disclosed that R. K.Sharma abused his official position as a government servant and accepted the certificate dated 15.07.2008 and showed favour to M/s Decor India Pvt. Ltd. and finally the contract was awarded to M/s Decor India Pvt. Ltd.. M/s Decor India Pvt. Ltd. used the certificate deliberately with the object to bag the contract from NDMC despite the fact that no single work amounting to Rs. 4 Crore or more was ever executed by M/s Decor India Pvt. Ltd. for any department.
CBI Vs. R. K. Sharma & Ors. Page No. 7195. During cross-examination by Ld. Counsel for accused no. 1, PW-26 stated that he did not charge-sheet Sh. Parimal Rai, the then Chairman, NDMC, Sh. Vijay Kumar Jha, Chief Engineer, NDMC, Sh. O.P. Gupta, Chief Engineer, NDMC, M.D. ESCO Audio Visual India Pvt. Ltd. and M/s ESCO Audio Visual India Pvt. Ltd., who were named in the FIR. PW-26 stated that the Performance Certificate is analogous to the Experience Certificate. PW-26 stated that the Experience Certificate dated 24.05.2007, Ex.PW26/DX-1 and Experience Certificate dated 16.07.2007, Ex.PW26/DX-2 are not containing the columns as mentioned in Ex. PW 12/E. He stated that the contents of the Certificate dated 15.07.2008, Ex. PW 9/DX-1 and the contents of Experience Certificate dated 21.05.2001, Ex. PW 11/DX-1 are same except the amount, date and period of completion. PW-26 stated that Ex. PW 11/DX-1 was used in the second tender by the Civil Division. He admitted that the Certificate dated 15.07.2008, part of Ex. PW 21/DX-2 (colly) bears signature of Sh. O.P. Gulati, Executive Engineer. He stated that the work of third call of NIT was to be looked after by Civil as well as Electrical Division and the composite work of third call of tender was headed by Sh. R.K. Sharma, Executive Engineer (Electrical). PW-26 admitted that the civil work was the responsibility of Civil Division and the electrical work was the responsibility of Electrical Division. PW-26 stated that he did not seize the call detail record of R. K. Sharma for the relevant period as the same was not available with service provider as the case was registered in 2012 while the incident is of 2007-2009. PW-26 stated CBI Vs. R. K. Sharma & Ors. Page No. 72 that he had sent the names of 46 witnesses and 58 documents to NDMC, Vigilance Section for sanction purpose and now the list of witnesses, part of Ex. PW26/H (colly) contains the names of 51 witnesses.
96. PW-26 is cross-examined by Ld. Counsel for accused no. 2. PW-26 stated that he had recorded the statement of Late. J.R. Bhalla, Ex. PW26/DX-4 on 22.02.2013. PW-26 stated that Late J.R.Bhalla identified his signature on certificate dated 15.07.2008, Ex. PW4/B but he did not put signature on Ex. PW 11/DX-1 to J.R.Bhalla as it pertained to second call of tender. PW-26 admitted that NIT or the 2nd call of tender was finally drafted/prepared by Civil Division which must have taken the inputs from the Electrical Division before finalizing the NIT and the NIT for the 3rd call of tender was drafted/prepared by Electrical Division but inputs must have been taken from the Civil Division before finalizing NIT. PW-26 stated that NIT was prepared by JE and marked to AE and then to Executive Engineer then to Project Leader/Superintendent Engineer and thereafter, the NIT is forwarded to Chief Engineer for final approval.
97. PW-26 stated that he was unable to recollect the name of the individual officer responsible for increasing the time period, for experience of having successfully completed work to seven years in Ex. PW9/B (colly) and Ex. PW13/C (colly) as against 5 years given in Ex. PW 26/DX-3. PW-26 stated that the draft of NITs for both tenders CBI Vs. R. K. Sharma & Ors. Page No. 73 were approved by the then Chief Engineer after its preparation/scrutiny right from concerned JE in each case upto the competent authority. PW-26 stated that the changes would be done/authorized as long as they are in the larger interest of the NDMC/public interest. PW-26 stated that certain tenders issued by the NDMC must get approved by the NDMC Council alone due to the pecuniary value of the tender. The contract in question came within the consideration of the NDMC Council where the Chairman of NDMC was one of the members. PW-26 stated about the seizure of the NDMC Council's decision and resolution dated 19.11.2008, Ex. PW26/DX-5. PW-26 stated that there was no Form or Annexures in the NIT and the NIT was to follow the CPWD Manual, 2007 wherein appendix 20 provided the appropriate form and in case of any doubt regarding requisite form, the issue may be taken up during pre-bid meeting by the agency/contractor/bidder. PW-26 stated that it was two envelope system in second and third calls of tender. He also stated that firstly technical envelope is opened and only then the financial envelope is opened if the person is found to be technically qualified. PW-26 admitted that he know regarding the circular dated 29.07.2003 issued by the office of The Development Commissioner (MSME), Ministry of Micro Small and Medium Enterprises, Government of India and as per the circular certain benefits were to be afforded to Agency/contractors who comes within the definition of MSME. PW-26 volunteered that these benefits are to be afforded only if the circular forms the part of the NIT Document. PW-26 stated that during the CBI Vs. R. K. Sharma & Ors. Page No. 74 course of his investigation, he along with a technical expert visited the site where NDCC-II was being constructed but he did not find that the work conducted by M/s Decor India Pvt. Ltd. was either substandard or contrary to specifications. PW-26 stated that he did not receive any complaint from the NDMC regarding any objection to the contract or work executed by M/s Decor India Pvt. Ltd..
98. PW-27 Naresh Verma, Senior Manager (Human Resources Administration), IREDA deposed that he had forwarded copy of letter dated 07.05.2015 to SP, CBI and it was photocopy of work order and agreement. PW-27 exhibited letter 09.03.2016 along with enclosures as Ex. PW 27/A and stated that it was with regard to payments made by IREDA to M/s Decor India Pvt. Ltd. regarding execution of work order.
Analysis
99. Before proceeding further, it would be appropriate to reproduce the mandatory requirement as mentioned in NIT (notice inviting tender) (part of Ex.PW9/B) issued by NDMC.
"Tender will be issued to eligible contractors provided they produce definite proof from the appropriate authority, which shall be to the satisfaction of the competent authority of having CBI Vs. R. K. Sharma & Ors. Page No. 75 satisfactorily completed the work of magnitude specified below:-
The contractor/agency having experience of successfully completed work during the last 7 years ending last day of the month previous to the one in which tender was invited.
One completed work of interiors of convention center or Auditorium or Conference Hall including furnishing/furniture amounting to Rs.400 Lacs.
OR
One completed work of sound
Reinforcement/Stage Lighting of convention Centre or Auditorium or Conference Hall amounting to Rs. 500 Lacs.
Note:
Tenderer whose tender will be accepted, will get the other works carried out through the vendors fulfilling following criteria:-
a) Interiors One work of Rs. 300 Lacs.
b) Furniture One work of Rs. 40 Lacs.
c) Sound Reinforcement/
Stage Lighting One work of Rs. 400 Lacs."
100. It is clear from the bare perusal of NIT conditions regarding experience that the bidder must have undertaken the one CBI Vs. R. K. Sharma & Ors. Page No. 76 completed work of Rs.400 Lac of interiors of convention centre or auditorium or conference hall including furnishing/furniture amounting to Rs. 400 Lac during the last seven years. It is also clear that bid documents were to be issued to eligible contractors, provided they produce definite proof from appropriate authority and it should be to the satisfaction of competent authority. The purpose behind the requirement of said condition is that the bidder must have handled/undertaken the work of the magnitude as mentioned in NIT and should be competent to handle work of that magnitude. There is no vagueness or lack of clarity in the said condition.
101. Now I turn to certificate furnished by accused no. 3 in support of its eligibility to bid for tender. The certificate Ex.PW4/B (copy also exhibited as Ex. PW9/DX-1 and as part of Ex. PW 21/DX-
2) dated 15.07.2008 is reproduced herein:-
"SDB CONSULTANTS (PVT) LTD ARCHITECTS ENGINEERS PLANNERS CONSULTANTS D-29, First Floor, Defence Colony, New Delhi-110024 Phone 91-11-46095300-307/65429461-62 Fax 46095306 E-mail [email protected] July 15, 2008 TO WHOMSOEVER IT MAY CONCERN " This is to inform that Decor India Pvt.
Ltd. were the interior Contractors for the Indian CBI Vs. R. K. Sharma & Ors. Page No. 77 Habitat Centre where we were the Architects for the project. M/s Decor India Pvt. Ltd.
furnished/executed various Seminar Rooms, Conference Rooms, Auditoriums, Library, Meeting Rooms, Exhibition Halls and various Office Areas. The total work executed by them for all these areas exceeded Rs. 415 Lacs approximately. The last segment of the Project Re-exhibition Area/Conference Area was completed in April, 2004.Their work and conduct was found to be satisfactory."
sd J.R.Bhalla"
102. It is emerged from the testimonies of PW-4, Raj Kumar Aggrawal, Additional General Manager, M/s India Habitat Centre, PW- 5, Sandeep Kapoor, General Manager, Finance, India Habitat Centre and PW-26, DSP C.R.Mukund, IO that India Habitat Centre has its offices and conference hall etc. and also houses offices of CAPART (Council for Advancement of People's Action and Rural Technology), IREDA (Indian Renewable Energy Development Agency Limited), NFI(National Foundation of India), DUAC (Delhi Urban Art Commission) besides offices of different institutions, NGOs and government institutions totalling 37, in 2009 and 2010. PW-4, Raj Kumar Aggarwal has stated that India Habitat Centre has its Director, Manager and it has no jurisdiction over the offices of the aforesaid CBI Vs. R. K. Sharma & Ors. Page No. 78 Institutions which are independent of India Habitat Centre, which is a separate entity. It has also emerged from the testimony of PW-5 Sandeep Kapoor that India Habitat Centre was incorporated as a society in the year 1989 and was functioning since 1994.
103. The certificate Ex. PW4/B furnished by M/s Decor India Pvt. Ltd. says that M/s Decor India Pvt. Ltd. were the interior contractors for the India Habitat Centre of which M/s J.R. Bhalla was the Architect for the project and it further says that last leg of the project lasted in April, 2004. PW-5, Sh. Sandeep Kapoor, General Manager, Finance, Legal & Coordination, India from India Habitat Centre stated that M/s Decor India Pvt. Ltd has not done any single work of Rs.400 Lac for M/s India Habitat Centre. PW-5 further stated that total work done by M/s Decor India Pvt. Ltd. for India Habitat Centre was for Rs.180.95 Lac as mentioned in documents Ex.PW4/A. PW-5 has categorically stated that M/s Decor India Pvt. Ltd. has done total work of 180.95 Lac for India Habitat Centre from 1996 to 2004 and besides this work no other work was done by M/s Decor India Pvt. Ltd. in office of India Habitat Centre during the said period.
104. It is also clear from the testimony of PW-4, Raj Kumar Aggarwal and PW-5, Sandeep Kapoor that Sh. J.R.Bhalla was appointed Architect Consultant by India Habitat Centre which is separate entity/institution from other institutions which had office at India Habitat Centre, vide agreement, part of Ex. PW4/A (colly). It is CBI Vs. R. K. Sharma & Ors. Page No. 79 thus clear that M/s Decor India Pvt. Ltd. has not done work of 415 Lac as mentioned in the certificate, Ex.PW4/B and this fact is false.
105. Contention of Ld. Counsel for accused no. 3 is that the India Habitat Centre has different offices of different NGOs or organization /entities and M/s Decor India Pvt. Ltd has done work for all these offices and the total work was more than Rs. 400 Lac and the certificate does not contain any false facts.
106. It needs to be mentioned that Sh. J.R. Bhalla was appointed Architectural Consultant by India Habitat Centre and there is nothing on record to show that J.R. Bhalla was also the Architect Consultant of any other institution/organization whose offices are housed in India Habitat Centre. There is nothing on record nor there is anything in the testimonies of witnesses PW-17, Amit Mukherjee, Consultant (Administration), Delhi Urban Art Commission, PW-18, Chandra Shekhar Pandey, Director, CAPART, PW-20, R.Moon.Dutt, Finance Manager, M/s National Foundation for India and PW-27, Naresh Verma, Senior Manager, Human Resource Administration, IREDA that M/s Decor India Pvt. Ltd. was Architect Consultant for other offices situated in India Habitat Centre. Therefore, it makes clear that certificate is in respect of work done by M/s Decor India Pvt. Ltd. for India Habitat Centre, the body incorporated as society and does not include the work done by M/s Decor India Pvt. Ltd. for other institutions housed in India Habitat Centre. It has come in testimony of CBI Vs. R. K. Sharma & Ors. Page No. 80 PW-5 that each office at India Habitat Centre or other institutions, is responsible for its internal maintenance and upkeep. Even otherwise the certificate, Ex.PW4/B does not mention name of any other institutions or NGOs whose offices are in India Habitat Centre and the work admittedly is of 180.95 Lac and not 415 Lac. Therefore, the certificate contains false facts.
107. The NIT (part of Ex. PW9/B) further says definite proof regarding eligibility should be from Competent Authority. Needless to say that J.R. Bhalla was not even competent to issue certificate regarding work done for India Habitat Centre and the same should have been issued by some competent/authorized person of India Habitat Centre i.e. Director or General Manager of India Habitat Centre.
108. Further the certificate mentions about the project but in investigation no such project has been found rather testimonies of PW-4, Sh. Raj Kumar Aggarwal and PW-5, Sh. Sandeep Kapoor shows that there were different work orders issued to M/s Decor India Pvt. Ltd by India Habitat Centre from 1996 to 2004 for Rs.180.95 Lac.
109. Having held that certificate contains false facts with regard to work done by M/s Decor India Pvt. Ltd. for India Habitat Centre, now the question arises as to whether the certificate reveals information as required from the bidder to fulfill the eligibility criteria as CBI Vs. R. K. Sharma & Ors. Page No. 81 laid down in aforesaid NIT or there is concealment of facts on the part of accused no. 3.
110. The NIT (part of Ex.PW9/B) mentions that the eligible contractors must provide definite proof from Competent Authority regarding their eligibility. The certificate, Ex.PW4/B furnished by accused no. 2 and 3 does not mention the work order number/ contract number, date of start of the work, estimated cost and the actual cost paid to M/s Decor India Pvt. Ltd. and also does not clarify the period during which the aforesaid project continued. These details of the work are not there which a certificate should reasonably contain.
111. As per prosecution the certificate should be as per proformas provided in Appendix-34, Annexure-IV, CPWD Manual, 2007, Ex.PW10/A i.e.,certificate for enlistment of contractor and as provided in Appendix-20, Form E, Ex.PW12/B. Here the testimony of PW-9 Bachan Singh, Executive Engineer (Maintenance) as well as PW-10 Gurbaksh Singh, Chief Engineer, CPWD is relevant. PW-9, Bachan Singh has clearly stated that there is no definite rule or definite proforma for bidder to submit, in NDMC, at the time of filing bid to show its eligibility as per the aforesaid NIT. The other witness Gurbaksh Singh, PW-10 states that there is no fixed proforma for the certificate, the bidder has to file to show that it was eligible to participate in the bid, however, same is also clear from the documents CBI Vs. R. K. Sharma & Ors. Page No. 82 such as completion certificate, Ex.PW10/B and other certificates Ex.PW1/0/C (colly) submitted by Sh. Gurbaksh Singh, PW-10 where the contents of the performance/completion certificates are not same as mentioned in the proforma provided in Appendix-34 of CPWD Manual, 2007 or provided in Appendix 20, Form E, Ex.PW12/B. PW- 10, Gurbaksh Singh during cross-examination admitted that certificate, Ex.PW10/B and Ex.PW10/C are not exactly in the format as given in Ex.PW10/A.
112. Admittedly, the proforma provided in CPWD Manual, 2007 in Appendix 34 is for enlistment of contractors and proforma given in Appendix 20, Form E, Ex.PW12/B is for performance reports of work. Therefore, I have no hesitation in holding that there was no set or fixed proforma for the bidder to submit to show its eligibility. Even the NIT does not specify any format for eligibility certificate. There is no dispute on the point that CPWD Manual, 2007 was applicable and was being followed in NDMC.
113. However, it is clear from the testimony of PW-10, Gurbaksh Singh, Chief Engineer, CPWD, PW-12 Abdul Wahid Ansari , Joint Director, Information & Broadcasting, NDMC and PW-15 Rakesh Kumar Kayesth, Superintending Engineer, NDMC, as well as it is reasonable that the certificate should at least contain particulars, such as work order number/contract number, date of start of work, date of completion of work, estimated amount and the actual amount.CBI Vs. R. K. Sharma & Ors. Page No. 83
The certificate Ex. PW 10/B and Ex.PW10/C (colly) , PW15/A indicate that aforesaid particulars are necessary in certificate to be submitted by bidder to show its eligibility. The certificate Ex.PW10/B, Ex. PW10/C, Ex. PW15/A, were issued to M/s Decor India Pvt. Ltd.. As per NIT, the bidder must have done one work of interiors of convention Centre or auditorium or Conference Hall of amount not less than Rs. 400 Lacs during the last seven years and the NIT used words "definite proof from Competent Authority", therefore, the period of one work (date of start and date of completion), detail/nature of work and the amount is the essence of the eligibility certificate. Further the certificate must be issued by owner or some competent authority as is clear from testimony of PW-10, Gurbaksh Singh.
114. It has already been observed that the Certificate Ex. PW4/B dated 15.07.2008 does not mention one work but mention "total work" and further does not specify when the work was commenced or the contract number or how many work orders were placed and it only states that last segment of project was completed in April, 2004. The certificate dated 15.07.2008, Ex. PW4/B reveals about some project. Therefore, it is clear that the certificate does not reveal clearly the facts as required to be disclosed for claiming eligibility as per NIT condition regarding experience or the past performance. Therefore, there is concealment of facts by accused no.
3. CBI Vs. R. K. Sharma & Ors. Page No. 84
115. Now it takes us to next point as to whether necessary particulars were deliberately not given in the said certificate and whether accused no. 3, infact had experience as desired in NIT.
116. Having held that M/s Decor India Pvt. Ltd. had not done any single work of Rs.400 Lac for India Habitat Centre, it is necessary to discuss whether M/s Decor India Pvt. Ltd. had done any single work as mentioned in NIT for Rs. 400 or more, for any other Institution. It is clear from the testimonies of PW-3, Praveen Chaudhary, General Manager, M/s Jubilant Life Sciences Ltd. and PW-8, Anil Kumar Gupta, Manager Accounts from M/s Jubilant Life Sciences Ltd., PW- 17 Amit Makheja of DUAC, PW-18 Chandra Shekhar Pandey from CAPART, PW-20, R.Moon Dutt from NFI and PW-27 Navesh Verma from IREDA that M/s Decor India Pvt. Ltd has not done single work of Rs.400 Lac of furnishing of any conventional centre or conference hall in any of the offices situated in India Habitat Centre or in M/s Jubilant Life Sciences Ltd.. It is also clear that M/s Decor India Pvt. Ltd has not done any one single work of Rs.400 Lac even for the offices other than offices housed at India Habitat Centre. Thus, M/s Decor India Pvt. Ltd. had no experience as desired in NIT.
117. Here, it is noted that there is one more discrepancy in the Certificate, Ex.PW4/B furnished by accused no. 2 and 3. It will be appropriate to reproduce the certificate submitted by accused no. 3 at the time of second call of tender. The contents of the CBI Vs. R. K. Sharma & Ors. Page No. 85 certificate Ex. PW11/DX-1 are as under:-
"SDB CONSULTANTS (PVT) LTD..
ARCHITECTS ENGINEERS PLANNERS CONSULTANTS SUNDER NAGAR, NEW DELHI-110003 Phone 24358236/24358237 Fax 91-11-24352597/24358252 E-mail [email protected] May 21st, 2001 TO WHOMSOEVER IT MAY CONCERN This is to inform that Decor India Pvt.
Ltd. were the Interior Contractors for the Indian Habitat Centre where we were the Architects for the project. M/s Decor India Private Limited furnished/executed various Seminar Rooms, Conference Rooms, Auditorium, Library, Meeting Rooms, Exhibition Halls and various Office Areas. The total work executed by them for all these areas exceeded Rs.400 Lac. Their work and conduct was fund to be satisfactory."
sd/-
J.R. Bhalla"
118. This certificate submitted at the time of second call of tender bears date 21.05.2001 showing that accused had done total work of more than Rs. 400 Lac and the later certificate dated 15.12.2008, Ex. PW4/B showing the work of Rs. 415 Lac till 2004 and CBI Vs. R. K. Sharma & Ors. Page No. 86 there is no difference in certificates submitted at second call and third call of tender except amount mentioned therein. Therefore, the necessary inference is that M/s Decor has done the work of Rs. 15 Lac during the period after 21.05.2001 till 2004. . It only shows that even if both the certificates are believed to be correct, the accused no. 3 had not done the work of Rs.415 Lac during last seven years from July 2008 when third call of tender was invited. This shows that period of project/works have not been specified as the same would have revealed that during last seven years work of Rs. 400 Lac was not done by M/s Decor India Pvt. Ltd..
119. Therefore, the aforesaid discussion leaves no doubt that M/s Decor India Pvt. Ltd has not done any single work of Rs.400 Lac of furnishing interiors of Conventional Centre or Convention Hall amounting to Rs.400 Lac during the last seven years and therefore was not eligible to apply for the tender.
120. The aforesaid discussion makes it clear that wrong facts were given in Certificate Ex.PW4/B in order to mislead NDMC and accused no. 2 and 3 deliberately did not give number of facts which, if given, would have disentitled the accused no. 3 from applying as one of the bidder and accused no. 3, M/s Decor India Pvt. Ltd. would have been out at the threshold and would not have succeeded in getting the contract.CBI Vs. R. K. Sharma & Ors. Page No. 87
121. It is relevant to note that accused no. 3 was Class-I contractor and was aware of the conditions of the NIT, however, he gave certificate, Ex.PW4/B in support of his claim for eligibility representing him to be eligible for applying for the bid in the third call of tender while admittedly he was not eligible to apply for want of requisite experience of undertaking work of furnishing of 400 Lac in any conference hall or convention centre during last seven years and thus caused misrepresentation with regard to his eligibility and put NDMC under deception.
122. The next contention of Ld. Counsel for accused no. 2 is that M/s Decor India Pvt. Ltd. is a small scale industry and hence need not comply with the conditions as laid down in NIT regarding experience of having done work of Rs.400 Lac during last seven years.
123. Here it is noted that the NIT (part of Ex. PW9/B) does not speak about SSI Unit. There is no exemption for any applying bidder, if it belong to any particular category. Had it been so, the accused no. 3 would have applied as SSI Unit which it did not, and in the NIT there is no such exemption for SSI unit. Therefore, contention of Ld. Counsel for accused that it was SSI Unit hence, exempted from having experience of one work of amount of Rs.400 Lac, is without any basis. Further, there was no need for accused no. 3 to submit certificate of having done work of 415 Lac to NDMC, if any such CBI Vs. R. K. Sharma & Ors. Page No. 88 exemption was there. However, this argument of Ld. Counsel for accused no. 3 makes it further clear that accused no. 3 did not have experience of one work of Rs.400 Lac as desired in NIT.
124. Another contention of Ld. Counsel for accused no. 3 is that other officials at the time of second call of tender had seen similar certificate, Ex,PW11/DX-1 and did not raise objection and found accused no. 3 qualified. Here it needs to be mentioned that the issue regarding second call of tender is not before this Court and no finding can be given with regard to the validity of second call of tender. Further, if officials have favoured accused no. 3 at the time of second call of tender by accepting certificate Ex.PW11/DX-1 that will not exonerate accused no. 3 from the wrong done by accused no. 3.
125. Ld. Counsel for accused relied upon the judgments (1) ACRI Vs. Nimra Cerglass Technies (P) Ltd., (2016) 1 SCC 348 (2) Prem Chand Vs. State, AIR 1953 Allahabad 381 (3) In Supt & Remembrancer of Legal Affairs, Bengal Vs.Manmatha Bhushan Chaterjee & Ors., AIR 1924 Cal 495 to contend that offence of cheating is not made out.
126. In the judgment ACRI Vs. Nimra Cerglass Technies (P) Ltd., (2016) 1 SCC 348, Hon'ble Supreme Court observed that dishonest intention need to be established in order to bring the case of offence of cheating. It is not merely sufficient to prove that a false CBI Vs. R. K. Sharma & Ors. Page No. 89 representation was made, but knowledge of accused that representation was false and was made in order to deceive complainant need to be established.
127. In the judgment Prem Chand Vs. State, AIR 1953 Allahabad 381, Hon'ble Allahabad High Court observed that there must be loss or damage which is the proximate result of wrong act.
128. In Supt & Remembrancer of Legal Affairs, Bengal Vs.Manmatha Bhushan Chaterjee & Ors., AIR 1924 Cal 495, Hon'ble Calcutta High Court observed that direct damage from deceit is necessary.
129. Here it is relevant to mention the judgment N.K.Chakraborty V. State of West Bengal, 1977 Cr.LJ. SC 961 wherein Hon'ble Supreme Court observed that even if the thing has no money value, in the hand of the person cheated, but becomes a thing of value, in the hand of the person who may get possession of it, as a result of cheating practiced by him, it would still fall within the condition of the term 'property' in Section 420 IPC.
130. It has already been discussed that accused M/s Decor India Pvt. Ltd. was not having the experience as desired in the NIT and the accused 2 & 3 deliberately gave false information in the said certificate regarding the total work done by it to the tune of Rs.415 CBI Vs. R. K. Sharma & Ors. Page No. 90 Lac approximately while in fact it has done the work of 180.95 Lac against different work orders during 1996 to 2004 for India Habitat Centre for which it was Architect. Further, the accused 2 and 3 had concealed the material facts by not giving the experience certificate in the format which should contain work order number/contract number, date of commencement and completion of the work, number of work orders, estimated cost, actual cost etc. M/s Decor India Pvt. Ltd. has further misrepresented M/s Decor India Pvt. Ltd. to be the competent bidder while in fact it was not competent to apply for the bid for having not done any single work of Rs. 400 Lac or above of furnishing any convention centre or conference hall during last seven years and further dishonestly and fraudulently induced to grant tender in favour of M/s Decor India Pvt. Ltd..
131. Ld. Counsel for accused no. 3 to 5 after referring testimonies of DW-3, Mr. B.L. Meena and PW-14, DSP Surender Malik, contended that NDMC did not suffer any loss, hence, offence of cheating is not made out.
132. The NDMC was deprived of services of competent and eligible bidder because of the misrepresentation and concealment of fact by the accused no. 2 and 3. Therefore, it cannot be said that no loss has been caused to the NDMC. It is not in dispute that accused no. 3 succeeded in getting tender and therefore, gain was caused to the accused no. 3. M/s Decor India Pvt. Ltd.. Here it is relevant to CBI Vs. R. K. Sharma & Ors. Page No. 91 refer the judgment passed by Hon'ble Supreme Court in Dr. Vimla Vs. Delhi Administration, 1963 (2) Cri.L.J. 434 SC. Hon'ble Supreme Court clearly observed that if there is gain then there is corresponding loss and the prosecution need not establish loss, if it had succeeded in proving that the accused had gained benefit. Here it is seen that accused no. 2 & 3 bagged the contract despite being not eligible by misrepresenting and concealment of relevant facts.
133. The aforesaid facts clearly shows that M/s Decor India Pvt. Ltd. has given false facts in the certificate Ex.PW4/B and put NDMC under deception and fraudulently induced them to award contract in favour of M/s Decor India Pvt. Ltd. and thus commited offence of cheating.
The next question to be decided is whether public servants accused no. 1 committed any misconduct as defined U/S 13(1)(d) of P.C. Act.
134. Section 13(1)(d) and (2) of Prevention of Corruption Act reads as under :-
"13 Criminal misconduct by a public servant. - (1) A public servant is said to commit the offence of criminal misconduct, -
(a) .....
(b) .....
CBI Vs. R. K. Sharma & Ors. Page No. 92
(c) .....
(d) if, he, -
(I) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage ; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e) .....
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than [four years] but which may extent to [ten years] and shall also be liable to fine."
135. The essential ingredient of Section 13(1)(d) of P.C. Act are :-
The person should be public servant.
He should have used corrupt or illegal means or otherwise abused his position as such/public servant and obtained valuable thing(s) or pecuniary advantage for himself or for any other person or he should have obtained valuable thing(s) or pecuniary advantage for himself or for any person without any public interest.
TESTIMONIES RELEVANT FOR DECIDING THIS POINT CBI Vs. R. K. Sharma & Ors. Page No. 93
136. Testimonies of PW-6, Sh. Surender Kumar, PW-7, Sh. Mohinder Paul Dheer, PW-9, Sh. Bachan Singh, PW-10 Sh. Gurubaksh Singh, PW-11, Sh. Bhopal Singh, PW-12, Sh. Abdul Wahid Ansari, PW-14, Sh. Manikant Singh, PW-15, Sh. Rakesh Kumar Kayesth, PW-19, Sh. Davinder Singh Virdi, PW-21 Sh. Om Prakash Gulati, PW-22, Sh. Sudhir Chander Singh, PW-23, Sh. Naresh Verma and PW-26, DSP M.C.R.Mukund are relevant.
137. The relevant portion of the testimonies of PW-6, PW-9, PW-10, PW-11, PW-12, PW-15 PW-19, PW-21 and PW-26 have already been reproduced while dealing earlier issue.
138. PW-7 Sh. Mohinder Paul Dheer deposed that he was posted in NDMC, Electric Distribution, North Zone and was given additional charge of Electrical Division (C-V). He retired as Head Assistant from Water Division, NDMC and his duties were to check the NIT prepared by Dealing Assistant, to pass the muster roll bills and payment to contractors. PW-1 stated that he was associated with composite tender of NDCC, Block B, Phase-II. PW-7 stated that note dated 21.08.2008 was prepared by the technical staff of Electric C-V Division and was regarding construction of NDCC, Block- B, Phase-II. It was with regard to Comparative statement of the tenders for the work of stage lighting in Conventional Centre, Block B of NDMC. PW-
CBI Vs. R. K. Sharma & Ors. Page No. 947 stated that he had dealt this file only till 21.08.2008 and thereafter he got this file again on 04.12.2008 for issuing award letter to the contractor. PW-7 further stated that vide his note Ex. PW7/C Sh. Rakesh Sharma directed to issue award letter and marked the file to Dealing Assistant Sh. Sunil Sharma. PW-7 referred the note of Sh. R.K.Sharma as Ex. PW 7/C. PW-7 stated that he was directed to issue tender documents and he had put his signatures on the endorsement and then directed Sh. Sunil Sharma, Dealing Assistant to issue tender. Thereafter, the file was sent to Executive Engineer. PW-7 stated that vide letter dated 25.07.2008, Ex. PW7/F, he had sent the file for justification.
139. During cross-examination by Ld. Counsel for accused no. 1, PW 7 stated that tender documents were checked by concerned JE and AE and the applications for issuance of tender was received in the office of Executive Engineer and same was marked to Head Assistant/Divisional Accountant. PW-7 stated that the eligibility of the applicant/vendor was checked by technical staff and not by Head Assistant. PW-7 stated that they make noting regarding issue of tender only after the technical staff verify/check the eligibility of applicant and inform them to this effect. PW-7 stated that in the present case eligibility of applicant/vendor was checked by technical staff and thereafter he made noting directing the Senior Assistant to issue challan to applicant/vendor and the technical staff included JE and AE. The said witness was cross-examined by Ld. PP for CBI, CBI Vs. R. K. Sharma & Ors. Page No. 95 however, he denied all the suggestions as made by Ld. PP .
140. PW-14 Sh. Manikant Singh deposed that he was working as Chief Materials Manager in Indian Oil Corporation and his duties were to invite bids, evaluate the same and processing proposal for award of work. PW-14 stated that the parameters for judging the past performance of the bidder contains two parameters first one is work experience in the same field for which bid is invited and second is financial capability of the bidder. PW-14 stated that the completion certificate issued to the bidder by any agency before submission of bid for similar type of job and for financial capability, they see the audited financial results/turnover of the company. PW-14 stated that there is no standard proforma regarding completion certificate and it depends on the company/ agency, which is issuing the completion certificate.
141. PW-14 during cross-examination stated that at times there are difference between the tendered cost and the amount of final bill with respect to the tender awarded to the party. The reasons for this variance could be because of difference in bid quantities and executed quantities.
142. PW-22, Sh. Sudhir Chander Singh deposed that he joined NDMC in the year 1984 as Junior Clerk. He was promoted to the post of AAO in 1993 and thereafter, he was promoted as AO in the year 2010. PW-22 stated that Finance Department examined the CBI Vs. R. K. Sharma & Ors. Page No. 96 proposals and checked if the codal process is followed in referred cases. PW-22 deposed about the process of awarding the contract in NDMC. He deposed that there should be administrative approval and expenditure sanction for further processing. The department prepare preliminary estimate for administrative approval and expenditure sanction and thereafter the same is submitted before the Finance Department for concurrence. He further deposed that the Executive Engineer invites the tenders and after examining the technical bid as per the NIT conditions and after being satisfied about the eligibility criteria, open the financial bid of technically eligible bidders. PW-22 also stated that the technical eligibility is checked by tender opening authority i.e. Executive Engineer and only after being satisfied about the eligibility conditions, the financial bid is opened. After opening the financial bids, the bids are evaluated by the Opening Authority and justification of statement is prepared by the Technical Officers/Executive Engineer and then it is submitted for approval of competent authority.
143. During cross-examination PW-22 deposed that NDMC follows the two envelopes/bid system for tendering, in which one envelope contains the technical bids and the second envelop contains the financial bids. Firstly, the technical bids are opened and thereafter the financial bids of technically qualified bidders are opened. During technical evaluation, the conditions regarding financial position, experience and performance are evaluated as per the records CBI Vs. R. K. Sharma & Ors. Page No. 97 submitted by the bidders and once this process is over, only then the financial bids are opened.
144. PW-22 was further cross-examined by Ld. Counsel for accused no. 1. PW-22 deposed that the tender documents are issued by the Divisional Accountant after checking the eligibility criteria of the bidder but under the approval of Executive Engineer. PW-22 admitted that as per Section 15.4.(5) of CPWD Manual, 2007, it is the duty of Divisional Accountant to ensure that the tender are issued only to those Contractors who satisfies the eligibility criteria for issue of tenders as inserted in the Press Notice and he should properly scrutinize the applications received for issue of tender, keeping in view the eligibility criteria, and then put them up before Executive Engineer for decision. He further stated that in case Member Finance raises any objection then the matter is sent to the concerned department, to clear the objections and resubmit to Member Finance or to Finance Department, as the case may be. PW-22 stated that if the Finance Advisor is satisfied with the explanation of the concerned department then the matter is sent to the concerned department for further processing. He also stated that the Finance Advisor had not raised any objection after the explanation given by the concerned department regarding the objection raised by Member Finance relating to eligibility.
145. PW-23, Sh. Naresh Verma deposed that he was working CBI Vs. R. K. Sharma & Ors. Page No. 98 as Executive Engineer (Electrical) in 2006. He explained the process of tendering. He stated that on receipt of sanction of preliminary estimate, a detailed estimate of work is prepared and is sent to competent authority for technical sanction. After technical sanction of PE is received, NIT is prepared and submitted to competent authority for its approval after scrutiny by Planning Department. On receipt of approval of NIT from competent authority, tender is issued. On receipt of bids against tender, evaluation of bids is done within the Divisional Office and thereafter the tender case is sent to Planning Department for their scrutiny. PW-23 further stated that in case of two bids process, firstly, technical bid is opened and evaluation of the same is done. He further stated that NIT has the eligibility conditions. The documents submitted by the bidders are checked as to whether the same are as per the eligibility conditions of the NIT. Eligibility conditions are checked by Divisional Accountants, Junior Engineers, Assistant Engineers and then Executive Engineers. He further stated that Executive Engineer being the Incharge of Division, looks after overall work of the Division and after scrutiny of bids by the Division, the findings are submitted to Planning Department for their scrutiny of the case. He also stated that any query or objection raised by Planning Department, is seen and again examined within the Division and clarification/compliances are again submitted to Planning Department for their scrutiny. On receipt of final clearance from Planning Department, the case is then submitted by the Executive Engineer to the competent authority, for seeking approval for opening CBI Vs. R. K. Sharma & Ors. Page No. 99 financial bid of eligible bidders. PW-23 also stated that after the financial bids of eligible bidders are opened and the case is prepared for award of work to lowest bidder. After the case is seen and cleared by Planning Department, the case is submitted to the Finance Department for their scrutiny and concurrence for the award of work to the lowest bidder. He also stated that the Electricity Department is headed by Chief Engineer (Electrical) submits the cases to Financial Advisor, who is the Head of Finance Department. PW-23 stated that the bidder is required to submit documents in support of past performance regarding eligibility conditions. He also stated that in NDMC, CPWD Work Manual is followed and so far as he remembered, no format is prescribed regarding the certificate of the past performance of a bidder. He submitted that bidders submitted completion certificate in respect of the work executed by them and completion certificate normally has name of work, amount of work, date of start and completion of work and status about satisfactory/unsatisfactory completion of work by the Contractor.
146. During cross-examination PW-23 stated that eligibility documents are checked by the Divisional Accountant before issuing tender documents to the Contractor and normally when a document is scrutinized once, there is no need to examine it again. However, it is not hard and fast rule and it depends upon official to official whether he is satisfied with the documents. He also stated that complete file along with an Agenda is sent to the Council, NDMC, for consideration CBI Vs. R. K. Sharma & Ors. Page No. 100 and it is up to the members of the Council to scrutinize all the documents or to only consider the Agenda and give their approval. PW-23 stated that the Agenda Notes contains all the questions/objections and clarification given by different officials during processing of the file.
ANALYSIS
147. It is noted that the NIT (part of Ex.PW9/B) clearly mentioned "bidder must have undertaken the one completed work of Rs.400 Lac of interiors of conventional centre or auditorium or conference hall including furnishing/ furniture amounting to Rs.400 Lac during the last 7 years". It also mentioned that "tender will be issued to eligible contractors provided they produce definite proof from appropriate authority, which shall be to the satisfaction of competent authority of having satisfactorily completing the work of magnitude given below." The NIT (part of Ex.PW9/B) clearly lays down the aforesaid condition for the bidder to participate in the bid.
148. The certificate dated 15.07.2008, Ex.PW4/B mentions that "M/s Decor India Pvt. Ltd. furnished/executed various Seminar Rooms, Conference Rooms, Auditoriums, Library, Meeting Rooms, Exhibition Halls and various Office Areas. The total work executed by them for all these areas exceeded Rs. 415 CBI Vs. R. K. Sharma & Ors. Page No. 101 Lacs approximately. The last segment of the Project Re- exhibition Area/Conference Area was completed in April, 2004." It does not mention work number/contract number, the date of start of the work, estimated cost and the actual cost paid to M/s Decor India Pvt. Ltd. and also does not clarify the date during which the aforesaid project continued. The certificate does not mention the word "one work" but mentions "total work" and further mentions that project was completed in the year 2004. The certificate is bereft of necessary particulars and does not show that accused no. 3 has done one work of furnishing any conventional centre/conference hall to the tune of Rs.400 Lac during the last seven years and by no stretch of imagination can be said to be "definite proof" as required as per NIT. It has already been discussed that accused no. 3 was not eligible to apply in the said bid.
149. From the testimonies of the witnesses, it has emerged that accused R.K. Sharma, accused no. 1 was the Incharge of the IIIrd call of tender. The accused no. 1 was well aware of the conditions of NIT since he was Heading NDMC officials who dealt with the 3rd call of tender and he had got the NIT published. The accused no. 1, R. K. Sharma has remained involved in the process since beginning till tender is awarded in favour of accused no. 3.
150. It has come on record that accused no. 1, R. K. Sharma passed directions for issuance of tender documents to accused no. 3 CBI Vs. R. K. Sharma & Ors. Page No. 102 and same is reflecting on the application dated 11.07.2008, Ex. PW6/S of M/s Decor India Pvt. Ltd.. It is not in dispute that bid documents are to be issued to the applicant only after finding that applicant is eligible to apply for bid as per the conditions laid down in NIT. NIT clearly says that tender documents are to be issued to eligible contractor on their providing definite proof from appropriate authority to the satisfaction of Competent Authority.
151. Therefore, it is clear that accused no. 1, R. K. Sharma had seen the certificate, Ex.PW4/B before issuing the bid documents to accused no. 3. Photocopy of the certificate dated 15.07.2008, (part of Ex. PW21/DX-2) shows that accused R.K.Sharma and Om Prakash Gulati, the then Engineer, NDMC had put their initials on the said certificate on 21.07.2008. It shows that accused no. 1, R. K. Sharma was well conversant with the contents of the said certificate dated 15.07.2008, Ex.PW4/B ( photocopy of which is part of Ex. PW 21/DX-2).
152. It is also noted that bid was opened in presence of accused no. 1, R.K.Sharma, representative of M/s Decor India Pvt. Ltd. and other NDMC officials on 21.07.2008. It is also clear from the testimonies of the witness PW-22 Sh. Sudhir Chander Singh that at the time of opening of bid financial position, experience and performance are evaluated which mean that accused no. 1, R.K.Sharma must have scrutinized all the bid documents including CBI Vs. R. K. Sharma & Ors. Page No. 103 certificate Ex. PW4/B.
153. The certificate Ex.PW4/B was not disclosing the requisite details regarding eligibility as laid down in NIT despite that bid documents were directed to be issued to accused no. 3, M/s Decor India Pvt. Ltd. by accused no. 1, R.K.Sharma. The number of particulars were not given in the said certificate, Ex. PW4/B, and it is not clear whether the condition of 7 years as mentioned in NIT is fulfilled or not. The minimum particulars which a certificate should contain are not given in the said certificate. The certificate, Ex. PW4/B says total work and not single work while as per NIT it should be single work of Rs.400 or more. The NIT (part of Ex. PW9/B) mandates applying contractor to furnish definite proof from competent authority regarding their eligibility. Under these circumstances, it was incumbent on accused no. 1, R.K.Sharma to have verified the eligibility of accused no. 3, M/s Decor India Pvt. Ltd. from the person issuing certificate or from the owner/competent person of the institution where the accused no. 3, M/s Decor India Pvt. Ltd. had rendered his services. The accused no. 1., R.K.Sharma also examined documents when bid was opened but he did not point out that accused no. 3 was not eligible and held him to be eligible.
154. Here it also need to be mentioned that Finance Member Sh. Bhopal Singh posed a query on 02.09.2008 as reflecting in note sheet, Ex. PW11/E which reads as:-
CBI Vs. R. K. Sharma & Ors. Page No. 104"4. As per eligibility criteria given in NIT, definite proof is required to be submitted by the intending tenderers from the appropriate authority of having satisfactorily completed the work of interiors of Convention Centre or Auditorium or Conference Hall including furnishing/furniture amount to Rs. 400 Lac or one completed work of sound reinforcement/stage lighting of Convention Centre or Auditorium or Conference Hall amounting to Rs.500 Lakh. A specific certificate to the effect that the last participant fulfills the laid down para meters of eligibility criteria as stated to the satisfaction of the tender opening authority may be recorded."
155. The accused no.1, R. K. Sharma has replied to the said query vide note sheet, Ex. PW9/G, dated 08.09.2008. The relevant portion of said reply is as under:-
"4. The tender was issued to the firm after scrutiny of eligibility of the tenderer. However, it is also certified that the tenderer fulfill the eligibility criteria."
156. The accused no. 1, Mr. R.K.Sharma has certified about the eligibility of accused no. 3 although the certificate, Ex.PW4/B lacked the material particulars and there was no definite proof from CBI Vs. R. K. Sharma & Ors. Page No. 105 Competent Authority regarding eligibility of accused no. 3 and admittedly M/s Decor was not having experience of one work of 400 or more of furnishing conference hall or convention centre during last seven years as discussed above. It only shows that accused no. 1 intended that the contract should be awarded to M/s Decor India Pvt. Ltd. despite it not having requisite experience. There is no reason or explanation from accused as to why he had certified accused no. 3 to be eligible bidder as per NIT although accused no. 1 was not entitled to apply for bid. Therefore, it is manifest that accused had abused his official position in order to grant favour to accused no. 2 and 3.
157. One of contention of Ld. Counsel for accused no. 1 is that it was the duty of Divisional Accountant to issue tender documents after satisfying itself regarding eligibility of the bidder and since the Divisional Accountant has checked the eligibility criteria, the accused no. 1 was having no reason to suspect the decision of Divisional Accountant.
158. Here it would be beneficial to reproduce Section 15.4 (5) of CPWD Manual, 2007:
"Section 15.4 (1)...........
(2)...........
(3)...........CBI Vs. R. K. Sharma & Ors. Page No. 106
(4)...........
(5) Responsibility of the Divisional Accountant
(I) ...................
(ii) It will also be the duty of the Divisional
Accountant to ensure that the tenders are issued only to those contractors who satisfy the eligibility criteria for issue of tenders as inserted in the Press Notice. He should properly scrutinize the applications received for issue of tenders, keeping in view the eligibility criteria, and then put them up to the Executive Engineer for a decision."
159. As per Section 15.4(5) of CPWD Manual, 2007 it was the duty of Divisional Accountant to check the eligibility of the bidder at the time of issuing tender documents, however, the said Section further says that the documents were to be put before Executive Engineer for decision. It was the Executive Engineer who was to take final decision as to whether bid documents be issued to the accused or not. If the Divisional Accountant had to take decision on eligibility then the aforesaid Section 15.4 (5) of CPWD Manual, 2007 would not have mentioned "put them upto Executive Engineer for a decision." It leaves no doubt that even as per Section 15.4(5), it is the Executive Engineer who is to take decision regarding eligibility of bidder. The PW-7 Mohinder Paul Dheer, Head Assistant had deposed that it was the technical staff, AE, JE who check the eligibility. Further, NIT (part of Ex.PW9/B) also mentions "definite proof from Appropriate CBI Vs. R. K. Sharma & Ors. Page No. 107 Authority subject to satisfaction of Competent Authority". It makes clear that eligibility documents must be definite proof of eligibility and Executive Engineer, accused no. 1 must be satisfied only then bid documents were to be issued. Even otherwise the bid was opened in presence of accused no. 1 and he checked the experience/eligibility. He also certified about the eligibility of accused no. 3 despite having knowledge regarding the certificate as well as the eligibility conditions as contained in the NIT.
160. Another contention of Ld. Counsel for accused no. 1 is that accused no. 3 was found eligible at the time of second call of tender also, on the basis of similar certificate dated 21.05.2001, Ex.PW11/DX-1 and these kind of certificate were accepted in NDMC, as proper certificate. The certificate submitted by accused no. 2 and 3 at the time of second call of tender was different from the certificate furnished at the third call of tender. However, other officers, if did any wrong by holding accused no. 3 eligible at the time of second call of tender, will not allow the accused no. 1 to act in the same manner and take this defence at the time of his prosecution. Further, it has already been discussed that the certificate furnished by accused no. 3 is not the proper certificate and has not disclosed number of particulars and cannot be said to be "definite proof" regarding eligibility.
161. The next contention of Ld. Counsel for accused no. 1 is that Finance Member had also seen the bid documents and had found CBI Vs. R. K. Sharma & Ors. Page No. 108 M/s Decor India Pvt. Ltd. to be eligible. It had already been discussed that it was duty of accused no. 1, who was Incharge of 3rd call of tender to have permitted only the eligible bidder to participate in the bid process. Not only accused no. 3 got bid documents issued to accused no. 3 but also certified accused no. 3 to be eligible for tender when the query was posed by Finance Department. The accused no. 1 was aware of certificate Ex.PW4/B and NIT conditions and despite that permitted accused no. 3 to participate in the bid process which resulted in accused no. 3 getting tender in its favour.
162. Ld. Counsel for accused relied upon the judgments (1) Shiva Prakash Vs. State of Kerela, AIR 2016 (SC) 2287 (2) State of MP Vs. Sheetla Sahai & Ors, 2009 (8)SCC 617 and (3) Abdulla Mohd. Pagarkar Vs. State of Goa, AIR 1980 (SC) 499.
163. In the judgment A.Siva Prakash Vs. State of Kerela, AIR 2016 (SC) 2287, Hon'ble Supreme Court referred observation made by it in C. Chenga Reddy & Ors. V. State of AP that even when codal violations were established and it was also proved that there was irregularities committed by allotting/awarding the work in violation of surplus, that by itself was not sufficient proof that a criminal case was made out.
164. In the judgment State of MP Vs. Sheetla Sahai & Ors, 2009 (8)SCC 617, Hon'ble Supreme Court held that an offence CBI Vs. R. K. Sharma & Ors. Page No. 109 cannot be said to have been committed only because the public servant has obtained either for himself or for any other person any pecuniary advantage. He must do so either by abusing his position or by holding the offence as a public servant. In the latter category of cases, absence of any public interest is a sine qua non. The material on record in no manner suggests that respondents 1 to 7 had either abused their positions or had provided pecuniary advantage to respondents 8 to 10 without any public interest.
165. In the judgment Abdulla Mohd. Pagarkar Vs. State of Goa, AIR 1980 (SC) 499, Hon'ble Supreme Court observed "no doubt there were several irregularities giving rise to small suspicion in regard to the bonafides of the accused in the matter of execution of the work but suspicion, however, strong, could not be a substitute for proof. And it was not permissible place the burden of proof of innocence on the person accused of a criminal charge."
166. It is noted that none of the judgment referred by Counsel for accused no. 1 is applicable under the facts and circumstances of present case. It has been clearly established that accused R.K.Sharma was aware of the NIT conditions as well as the contents of the certificate furnished by accused no. 2 and 3 and got bid documents issued to accused no. 3 despite accused no. 3 being not eligible to apply for the said bid. The accused no. 1 has further cleared the technical bid of accused no. 3 and did not point out, at CBI Vs. R. K. Sharma & Ors. Page No. 110 the time of opening of bid that accused no. 3 was not possessing requisite experience to apply for the bid and further he also certified that accused no. 3 was eligible bidder. The prosecution has successfully established the criminal misconduct on the part of accused no. 1 and it also cannot be said that it was merely a negligence on the part of accused no. 1. Thus, I hold that accused no. 1 has committed criminal misconduct by abusing his official position and granted favour to accused no. 3 in getting award in favour of accused no. 3.
WHETHER THERE WAS CRIMINAL CONSPIRACY BETWEEN ACCUSED NO. 1 AND ACCUSED NO. 3
167. Here it is relevant to refer Section 120B IPC which reads as under :-
120-B Punishment of criminal conspiracy. - (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as CBI Vs. R. K. Sharma & Ors. Page No. 111 aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.]
168. To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither is it necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implication. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. Criminal conspiracy is an independent offence in the Penal code. The unlawful agreement is sine qua non for constituting offence under the Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express or partly implied. Even Section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the act done by one is admissible against the co- conspirators.
CBI Vs. R. K. Sharma & Ors. Page No. 112169. Here the testimonies of PW-21, Om Prakash Gulati, the then Executive Engineer, NDMC, PW-22, Sudhir Chander Singh, Deputy Financial Advisor, NDMC, PW-23, Naresh Sharma, Executive Engineer, NDMC and PW-26 DSP C.R.Mukund, IO and other witnesses are relevant. The relevant portion of the testimonies of these witnesses have already been reproduced while dealing with other issues.
170. It is clear from testimonies of aforesaid PWs that accused R.K.Sharma has passed direction for issuing tender document, as reflecting in application dated 11.07.2008, Ex. PW6/S of M/s Decor India Pvt. Ltd.. Thereafter the tender was opened on 21.07.2008 and representative of Decor India Pvt. Ltd. namely Sanjeev Kumar, PW-13 and accused no. 1 were present there alongwith other officials of NDMC. Further, accused no. 1 has signed the copy of certificate (part of Ex.PW21/DX-2) which shows that accused was aware of the certificate furnished by M/s Decor India Pvt. Ltd..
171. Thereafter the objection was raised by the Member Finance Department, but accused no. 1 certified that accused no. 3 is eligible to apply for the tender which fact clearly shows that accused no. 1 R.K.Sharma was in connivance with accused no. 2, Managing Director of accused no 3, who has signed all bid documents for CBI Vs. R. K. Sharma & Ors. Page No. 113 accused no. 3, and accused no. 3, otherwise there was no reason for accused no. 1 to certify that accused no. 3 was eligible for the bid. Here it has also come on record that accused no. 2 was acting on behalf of the company and took different steps during the processing of tender. Further accused no. 2 and 3 were the beneficiaries of the said tender.
172. Ld. Counsel for the accused relied upon judgments (1) Sumativijay Jain Vs. State of MP, 1992 Crl.L.J 97 (2) Baijayanti Swain &. Anr Vs. State of Orissa, 2013 (3) Crimes 89 (Orissa) (3) P.K.Narayanan Vs. State of Kerela, 1995 (1) SCC 142 and (4) Leenart Schlusser Vs. Directorate of Enforcement, (1970) 1 SCC 152 (5) Subramanian Swamy Vs. A. Raja, (2012) 9 SCC 257 and (6) CBI Vs. K. Narayana Rao, (2012) 9 SCC 512.
173. In the judgment Sumativijay Jain Vs. State of MP, 1992 Crl.L.J 97, Hon'ble MP High Court observed that in the absence of evidence as to with whom accused conspired, the charge U/S 120B shall be groundless.
174. In the judgment Baijayanti Swain &. Anr Vs. State of Orissa, 2013 (3) Crimes 89 (Orissa), Hon'ble Orissa High Court observed that without there being any acceptable material pointing to the circumstances, no inference about commission of conspiracy can be drawn.
CBI Vs. R. K. Sharma & Ors. Page No. 114175. In the judgment P.K.Narayanan Vs. State of Kerela, 1995 (1) SCC 142, Hon'ble Supreme Court observed that an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by prudent evidence.
176. In the judgment Leenart Schlusser Vs. Directorate of Enforcement, (1970) 1 SCC 152, Hon'ble Supreme Court after discussing ingredients of conspiracy as stipulated U/S 120B IPC observed that entire agreement must be viewed as a whole and it has to be ascertained as to what in fact the conspirators intended to do or the object they wanted to achieve.
177. In Subramanian Swamy Vs. A. Raja, (2012) 9 SCC 257, Honble Supreme Court observed that official meetings between two ministers could not by themselves lead to an inference of conspiracy. Mere suspicion could not be a substitute of prima facie evidence need to proceed against Finance Minister.
178. Further Hon'ble Supreme Court in CBI Vs. K. Narayana Rao, (2012) 9 SCC 512, Hon'ble Supreme Court observed that to fasten criminal liability on a panel advocate of bank there in need for evidence to show that lawyer in question aided or abetted the other conspirator.
CBI Vs. R. K. Sharma & Ors. Page No. 115179. The judgments referred by Ld. Counsel for accused persons are not applicable under the facts and circumstances of the present case in view of clear cut established fact regarding conspiracy between accused no. 1 and accused no. 2 and 3. The accused no. 2 being the Director of accused no. 3 has signed different bid documents and had been involved in the bid process from the beginning. It has also been discussed that at the time of bid opening accused no.1 as well as representative of accused no. 3 were present and the bid was approved by the accused no. 1 at the time of opening of bid. Further accused no. 1 had certified that accused no. 3 to be eligible bidder although accused no. 3 was not having requisite experience to apply for the bid. The aforesaid facts clearly show that accused no. 1, R.K.Sharma and 3 through its Managing Director, Anil Kumar Dhingra (now deceased), who had signed all bid documents, Ex. PW3/C on behalf of accused no. 3, was Incharge of day to day affairs of accused no. 3, wrote letter dated 18.03.2008, Ex. PW13/D for submission of tender documents and signed agreement dated 09.02.2009, Ex.PW6/W, conspired and dishonestly obtained the tender in favour of accused no. 3 by misrepresentation and concealment of facts after putting official of NDMC under deception. Conspiracy on part of aforesaid accused is clear from the role of aforesaid accused no. 1, 2 and 3.
180. Before parting with the judgment, I will deal with the last CBI Vs. R. K. Sharma & Ors. Page No. 116 contention of accused no. 3 that preliminary inquiry should have been conducted by the CBI before registering FIR. Ld. Counsel for accused no. 3 relied upon the judgments (1) Lalita Kumari Vs. Govt of Uttar Pradesh, (2014) 2 SCC 1 (2) Shashikant V. CBI, (2007) 1 SCC 630 (3) State Vs. N.S. Gnaneswaram, (2013) 3 SCC 594 and (4) P.Sirajjudin etc. Vs. State of Madras, (1970) 1 SCC 595.
181. In the judgment of Lalita Kumari Vs. Govt of Uttar Pradesh, (2014) 2 SCC 1, Hon'ble Supreme Court observed that preliminary inquiry may be conducted in the cases owing to change in genesis and novelty of crime with the passage of crime and the cases wherein preliminary inquiry is to be conducted will depend on the facts and circumstances of each case and the preliminary inquiry may be made in corruption cases, matrimonial disputes, medical negligence cases, commercial offences.
182. In the judgment of Shashikant V. CBI, (2007) 1 SCC 630, Hon'ble Supreme Court observed that preliminary inquiry is permissible in case of anonymous complaint and there was no need to lodge FIR and initiate investigation process immediately on receipt of complaint.
183. In the judgment of State Vs. N.S. Gnaneswaram, (2013) 3 SCC 594, Hon'ble Supreme Court observed that non compliance of Section 154 CrPC, if the case is registered on the basis of information CBI Vs. R. K. Sharma & Ors. Page No. 117 received suo moto by CBI after specifying that the information reveals prima facie cognizable offence against respondent and the CBI found fit for investigation not following provisions of Section 154 CrPC, does not vitiate the FIR.
184. In the judgment of P.Sirajjudin etc. Vs. State of Madras, (1970) 1 SCC 595, Hon'ble Supreme Court observed that the inquiry officer must not act under any preconceived idea of guilt of person whose conduct was being inquired into or pursue the inquiry in such a manner as to lead to an inference that he was bent upon securing the conviction of the said person by adopting measures which are of doubtful validity or sanction.
185. It is clear from aforesaid judgments that preliminary inquiry is not always mandatory for CBI officials to do before registering of FIR and same would depend from case to case. The accused persons failed to show as to what prejudice has been caused to them because of absence of preliminary enquiry. Further, the CBI has already established its case beyond reasonable doubt. Thus, the absence of PE had no effect on the present case.
186. Conclusion Pondering over the ongoing discussion, I am of the considered opinion that :-
CBI Vs. R. K. Sharma & Ors. Page No. 118i. Prosecution has succeeded to bring home the guilt of accused no. 1, R.K.Sharma, U/S 13(2) r/w Section U/S 13 (1)(d) of PC Act, 1988. Accordingly, I hereby hold him guilty thereunder.
ii. Prosecution has also succeeded to bring home the guilt of accused no. 3, M/s Decor India Pvt. Ltd, U/S 420 IPC. Accordingly, I hereby hold it guilty thereunder.
iii. Prosecution has also succeeded to bring home the guilt of accused no. 1, R.K. Sharma and accused no. 3, M/s Decor India Pvt. Ltd., U/S 120 B IPC r/w Section 420 IPC and Section 13(2) r/w 13(1)(d) of PC Act, 1988 beyond shadow of all reasonable doubts. Accordingly, I hereby hold them guilty thereunder.
Digitally signed by ARVIND ARVIND KUMAR KUMAR Date: 2018.10.03 16:10:50 +0530 Announced in the open Court (Arvind Kumar) on this 3rd day of October, 2018 Special Judge-CBI-01 PHC/New Delhi CBI Vs. R. K. Sharma & Ors. Page No. 119 CBI Vs. R. K. Sharma & Ors. Page No. 120 CBI Vs. R. K. Sharma & Ors. Page No. 121 CBI Vs. R. K. Sharma & Ors. Page No. 122