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Delhi District Court

Cbi vs . A.R.Bhati S/O Sh. P.B. Bhati, on 24 February, 2016

                 IN THE COURT OF SH. BRIJESH KUMAR GARG 
          SPECIAL JUDGE:CBI­01: CENTRAL: TIS HAZARI, DELHI
CC No. : 09/2009
Case ID : 02401R0167462000
                                                              RC :  90(A)/1997
                                                              PS :  CBI/ACB/New Delhi
                                                        U/s:  Section 120 B,
                                                                  409, 420, 511, 477A /201
                                                                    IPC and Sec. 13(2)
                                                                r/w Sec. 13 (1) (d) of
                                                               The Prevention of Corruption 
                                                               Act 1988.


CBI  Vs.            A.R.Bhati S/o Sh. P.B. Bhati,
                  r/o B­20, Vivek Vihar, Phase­II,
                 Delhi­110095.


Date of Institution                                       :   07.06.2000
Judgment Reserved on                                      :   12.02.2016
Judgment Delivered on                                     :   24.02.2016


                                                J U D G M E N T  

1. In the present case, accused Phool Singh, Executive Engineer;

K.C. Wahi, Assistant Engineer (since deceased), A.R.Bhati, Junior Engineer and Sh. Khalil Ahmed, contractor, were sent up CBI Vs. K.C.Wahi (CC No. 09/2009) Page 1 of 80 Special Judge, CBI­01, Central, Delhi for trial for the offences Under Section 120 B, 409, 420, 511, 477­ A / 201 IPC and Section 13(2), r/w Section 13 (1)(d) of The Prevention of Corruption Act, 1988.

2. It has been stated in the charge sheet that the present case was registered on 20.11.1997 on the basis of the written complaint of Shri D.K.Singh, Inspector CBI, ACB, New Delhi, wherein it was alleged that during the investigations of case RC No. 77/97 to RC No. 79/97, it was revealed that tenders for repairs of damaged chokhats (door frames) for 648 H­Type quarters, for the year 1997­98, were opened on 19.08.1997 and the contract for an estimated cost of Rs.43,649/­ was awarded to M/s. Khalil Ahmed Wood works. But, no entry about this contract was made in the agreement register.

3. It was further alleged in the said complaint that a reliable source information was also received that accused Khalil Ahmed contractor, A.R.Bhati, J.E., K.C. Wahi, A.E., and Phool Singh, CBI Vs. K.C.Wahi (CC No. 09/2009) Page 2 of 80 Special Judge, CBI­01, Central, Delhi E.E., in pursuance to a criminal conspiracy, submitted a false bill of Rs.1.68 lacs, without executing any work and the same was duly verified and forwarded for payment to the Executive Engineer by accused A.R.Bhati and K.C.Wahi, alongwith measurement book No. 5899 making false entries regarding measurement of work.

4. It was further alleged that on 13.11.1997, the documents relating to this case were seized by Shri Brajesh Kumar and thereafter, on 17.11.97, a surprise check about the execution of the work was done, in respect of the first and final bill dated 16.09.1997 for Rs.1,87,747/­. During surprise check, it was revealed that the contractor Khalil Ahmed had performed only 5 % of the work, claimed to have been carried out by him. He also tried to destroy the evidence of non­execution of work by replacing some of the chokhats on holidays falling on 14.11.1997 to 17.11.1997. The sign of fresh execution of work was visible with naked eyes and in some of the cases, mortar /cement had CBI Vs. K.C.Wahi (CC No. 09/2009) Page 3 of 80 Special Judge, CBI­01, Central, Delhi not even set­in and paint had not even dried. Some of the chokhats were still lying for installation. In some of the cases, it was noticed that the old chokhats were painted, to show, as if these chokhats had been replaced recently.

5. It was further alleged in the said complaint that the deviation in the first and final bill dated 16.09.1997 from the original estimated cost was more than 24 % which is not within the powers of the A.E., but, it was done illegally, to favour the contractor. Furthermore, 60 bags of cement were issued to the contractor from the CPWD Enquiry store at government issue rates and this cement was misappropriated by the accused persons, as the work was not executed.

6. It has been stated in the charge sheet that there are several sub­divisions under the CPWD and each sub­division functions under the direct control of the A.E., and he can get the CPWD work executed through a contractor upto a maximum of Rs. CBI Vs. K.C.Wahi (CC No. 09/2009) Page 4 of 80 Special Judge, CBI­01, Central, Delhi 60,000/­, by inviting tenders, if there was a need or demand for the same. It is further stated that the requirement for carrying out any work in the CPWD is generated by three modes :

a) The demand may come from the side of the allottee of the quarter or through residential association;

b) The demand may be ascertained through the complaint register which is kept in the Enquiry Office, wherein, each and every allottee is authorized to make complaint about the requirement;

c) If the superior officer inspects the quarters and finds any defect, he can order for the same.

7. It is further stated in the charge sheet that in this case, none of the above procedure was followed and there was no documentary evidence to show that there was any need of repair of damaged chokhats of H­type Quarters under Sriniwaspuri sub­division. Furthermore, neither the estimate file nor the estimate register was available about the repair of the damaged chokhats. CBI Vs. K.C.Wahi (CC No. 09/2009) Page 5 of 80 Special Judge, CBI­01, Central, Delhi Furthermore, the AE concerned is required to check 25% of the estimate and accord technical sanction. In the absence of the record, it cannot be ascertained whether the estimate had the technical sanction of the AE. It indicates that the accused persons have either destroyed the record or have willfully caused disappearance of the same, so that the commission of the offences by them may not be detected.

8. It is further stated in the charge sheet that no entry was made in the NIT register, which indicates that the NIT relating to this tender was never issued. For execution of this work, five tenders were sold on 14.08.1997 and only four contractors submitted their tenders on 19.08.1997 and on the same day, the tenders were opened by accused K.C.Wahi, A.E., and the accused Khalil Ahmed quoted the lowest rates and accordingly, the tender was awarded to him with estimated cost of Rs.43,649/­ and tender amount of Rs.79,132/­ with date of completion of the work between 30.08.1997 to 29.09.1997. Agreement No. 59 was CBI Vs. K.C.Wahi (CC No. 09/2009) Page 6 of 80 Special Judge, CBI­01, Central, Delhi executed in this regard, but, in agreement register, the agreement No. 59 pertains to a different work for fixing / damaged slabs and the same relates to the work of another contractor Bhupesh Karir and the said work was never executed by the contractor.

9. It is further stated in the charge sheet that the inspection report given by Shri Baldeo Kumar, EE, further pointed out several shortcomings and irregularities in the tender documents and only 2.6 MT cement was sufficient to execute the required work. But, a quantity of 8 MT cement was stipulated in the tender for issuing to the contractor, which indicates that higher quantity of cement was reflected in the tender agreement, so that the acceptance of tender remained within the power of the AE, i.e. Rs.60,000/­.

10. It is further stated in the charge sheet that the inspecting team inspected the sites and on physical verification of new pressed steel chokhats actually provided, with reference to the measurement recorded by the J.E., in respect of individual H­ CBI Vs. K.C.Wahi (CC No. 09/2009) Page 7 of 80 Special Judge, CBI­01, Central, Delhi type quarters in Sriniwaspuri, were mentioned in Annexure ­A and B. As per Annexure­A, the quantity of the replaced main door chokhats are recorded by the JE, in the measurement book, as 94 in number, whereas, on site verification, it was found only 24 in number. Similarly, as per Annexure­B, quantity of replaced WC and bath chokhats were recorded by the JE in measurement book, as 70 in numbers, whereas, on site verification, it was found only 23 in number. Therefore, as per the annexures, total value of the work as recorded in measurement book, vide first and final bill is Rs.1,87,747/­, whereas, on physical verification, the work executed comes to Rs.53,002/­.

11. It is further stated in the charge sheet that during inspection, it was also observed that a large number of old steel chokhats and a number of old pressed steel chokhats were applied fresh coat of paint to mislead that those chokhats were the newly replaced chokhats and by scratching the layer of paint and other site conditions, the old and new chokhats could be identified and the CBI Vs. K.C.Wahi (CC No. 09/2009) Page 8 of 80 Special Judge, CBI­01, Central, Delhi same was also confirmed by the occupants / residents available at the site, in most of the cases.

12. It is further stated in the charge sheet that accused A.R.Bhati, J.E., prepared measurement book No. 5899, without executing the work and the accused K.C.Wahi, A.E. gave test check endorsements. On the same day, i.e. on 16.09.1997, Shri Ghamandi Lal, SDC, checked the measurement book, prepared the bill and submitted the same to the A.E. Accused Khalil Ahmed also accepted the measurement by making endorsement in the measurement book. As per the test check, AE has checked the work of Rs.1,01,740/­.

13. It is further stated in the charge sheet that the bill reached the office of the Executive Engineer on 16.09.1997 itself and the auditor R.S.Rawat checked the bill on the same day and made endorsement, "AE test check more than 50%. EE test check required. The bill put up for pass and payment." Accountant A. CBI Vs. K.C.Wahi (CC No. 09/2009) Page 9 of 80 Special Judge, CBI­01, Central, Delhi Vishwanathan also made endorsement on 16.09.1997 that, "EE test check required". On 17.09.1997, accused Phool Singh asked for deviation statement from the AE and since the CBI had conducted the surprise check during the period w.e.f. 10.10.1997 to 14.10.1997, accused Phool Singh returned the bill with a note, "bill be put up on site for test check" and this bill was kept pending from 17.09.1997 to 17.10.1997. This bill was again returned by the sub­division to him and was ultimately seized by the CBI, alongwith its annexures from the possession of the Executive Engineer.

14. It is further stated in the charge sheet that a deviation statement was attached with the bill, in the handwriting of accused A.R.Bhati and also bearing signatures of accused K.C.Wahi, AE. It has been checked by auditor R.S.Rawat. This statement was required to be checked by ASW Sh. S.P.S.Verma, but, the same was never sent to him for checking. AE is required to take prior permission from EE, when the necessity arose for CBI Vs. K.C.Wahi (CC No. 09/2009) Page 10 of 80 Special Judge, CBI­01, Central, Delhi getting more work done, than the work awarded to the contractor. This permission can be oral, but, before submitting bill, AE is supposed to take permission in writing. After taking permission, AE is authorised for deviation of 50%, but, in this case, AE got the deviation of 140% and that too, without the written permission of the Executive Engineer. The cement register attached with the bill also depicts that 60 bags of cement (3 MT) were issued to accused Khalil Ahmed, during the period w.e.f. 22.08.1997 to 08.09.1997 and therefore, the cement was misappropriated by the accused persons.

15. It is further stated in the charge sheet that on 15.12.1997, accused Khalil Ahmed wrote a letter to EE Sadiq Nagar, New Delhi, mentioning therein that JE and AE were responsible for the wrong entries in the measurement book and under their instructions, the replacement of chokhats started on 13.11.1997 and upto 17.11.1997, only 61 chokhats could be replaced. CBI Vs. K.C.Wahi (CC No. 09/2009) Page 11 of 80 Special Judge, CBI­01, Central, Delhi

16. It is further stated in the charge sheet that the material evidence collected during the investigations, disclosed the commission of offences of cheating, falsification of accounts, attempt to cheat, disappearance of evidence to screen the offender from legal punishment and misuse of official position by the accused persons. The competent authorities have also accorded the sanction for prosecution of accused Phool Singh, EE and A.R.Bhati, JE.

17. After completion of investigation, charge sheet was filed against accused Phool Singh, Executive Engineer, CPWD 'P' Division; K.C. Wahi, Assistant Engineer, CPWD, Sub­Division, Sriniwaspuri and A.R. Bhati, Junior Engineer, Sub Division, Sriniwaspuri and Khalil Ahmed, the contractor.

18. Vide orders, dated 12.08.2004, order on charge was passed by Sh. Dinesh Dayal, Ld. Special Judge, CBI, Delhi, and in pursuance to the said order on 09.05.2005, the charges for the CBI Vs. K.C.Wahi (CC No. 09/2009) Page 12 of 80 Special Judge, CBI­01, Central, Delhi offence punishable under Section 120­B IPC read with Section 420, 477, 511 IPC and also read with Section 13 (2) read with Section 13(1)(d) of The Prevention of Corruption Act, 1988, were framed against all the accused persons. Additional charges for the offences punishable under Section 477­A & 511 IPC read with Section 420 IPC and the offence punishable under Section 13(2) read with Section 13(1) (d) of The P.C. Act, 1988, were also framed against accused K.C. Wahi and A.R. Bhati. Additional charges for the offences punishable under Section 477­A & 511 IPC read with Section 420 IPC, were also framed against accused Khalil Ahmed. Accused Phool Singh, Executive Engineer, was discharged vide orders, dated 12.08.2004.

19. It is pertinent to mention here that during the trial, accused K.C. Wahi, Asstt. Engineer and contractor accused Khalil Ahmed had expired and the proceedings against both of them stand abated vide orders dated 19.11.2013 and 07.01.2008, respectively. CBI Vs. K.C.Wahi (CC No. 09/2009) Page 13 of 80 Special Judge, CBI­01, Central, Delhi Prosecution Evidence

20. During the course of trial, the prosecution has examined the following witnesses, namely:

i) PW­1 Sh. Sukan Pal Singh Verma, who was working as Assistant Surveyor of Works, CPWD, P­Division, Sadiq Nagar and his duty was to check the estimates sent by the Assistant Engineer, before inviting the tenders.

ii) PW­2 Sh. Kirpal Singh, Asstt. Engineer. He had supplied various documents to the I.O., Inspector C.K.Sharma, during the investigations.

iii) PW­3 Sh. A. Vishwanathan, Asstt. Accounts Officer, Ministry of Information & Broadcasting, who was working as Assistant Accounts Officer in CPWD, P­Division, during the period w.e.f.

June 1996 to 1999. He was entrusted with the duty to check the bills submitted by the contractors, which came to the accounts branch of the division, along with the other documents, for payment of the bill amount to the contractor. He used to check the bills in respect to the test checkings by the A.E/E.E, CBI Vs. K.C.Wahi (CC No. 09/2009) Page 14 of 80 Special Judge, CBI­01, Central, Delhi theoretical calculation statements, part rate statements, recovery statements, measurement books etc. He was required to point out the shortcomings in the bill and the documents, if any, and to put the bills before the E.E.

iv) PW­4 Sh. Harish Parmar, LDC from D.D.A., who had accompanied the CBI team, as an independent public witness, during the surprise inspection of H­Type quarters at Sriniwaspuri sub­division on 17.11.1997.

v) PW­5 Sh. Bachhan Singh, a resident of quarter No. H­231, Sriniwaspuri Delhi, who has deposed that he had never given any complaint for changing the main door chokhat of his quarter and no chokhat of his quarter was replaced at any time.

vi) PW­6 Smt. Godambari, a resident of quarter No. H­223, Sriniwaspuri, New Delhi, who has deposed that in the year 1997, no chokhat of the bathroom of her quarter was changed by any contractor or the office of the CPWD.

vii) PW­7 Smt. Sheela Palta, a resident of quarter No. H­9, Sriniwaspuri, who has deposed that no chokhat of her quarter CBI Vs. K.C.Wahi (CC No. 09/2009) Page 15 of 80 Special Judge, CBI­01, Central, Delhi was changed by any contractor or the office of CPWD, at any time.

viii) PW­8 Smt. Savitri, a resident of quarter No. H­163, Sriniwaspuri, who has deposed that she had never lodged any complaint with CPWD for changing the main door chokhat of her quarter and no chokhat of her quarter was changed by any contractor or the office of CPWD during the year 1997 or thereafter.

ix) PW­9 Inspector D.K. Singh, who was posted as Inspector CBI, ACB, New Delhi, in the year 1997. He is the complainant in the present case. In the year 1997, he was conducting the investigations of RC No. 77, 78 and 79 of 1997 relating to non execution of civil work in 4­P sub­division of CPWD, New Delhi. During investigations of the said cases, he came to know that a tender for work for replacing the chokhats in H­Type quarters Sriniwaspuri, was opened, but there was no entry in the agreement register and no chokhats were replaced at any time, but, the bills were raised. The work for replacing the chokhats CBI Vs. K.C.Wahi (CC No. 09/2009) Page 16 of 80 Special Judge, CBI­01, Central, Delhi was given to contractor Khalil Ahmed by accused K.C. Wahi, AE. He collected various documents from the office of the sub­division and conducted physical inspection on 17.11.1997 and prepared observation memo, dated 17.11.1997 Ex.PW.4/A. Thereafter, he lodged complaint dated 18.11.1997 Ex.PW.9/A, on the basis of which, the FIR Ex.PW.9/B was registered in the present case and investigation was entrusted to IO Inspector C.K.Sharma.

x) PW­10 Sh. Sagar, a resident of quarter No. 349, who has deposed that the chokhat of the bathroom of his quarter was changed in the year 2002.

xi) PW­11 Sh. Jagmohan Singh Aswal, a resident of quarter No. H­385, Sriniwaspuri, New Delhi, who has deposed that he was working as Joint Secretary of "Sudhar Samiti" of H­Block Sriniwas Puri, during the period w.e.f. 1995 to 1997 and neither he nor any governing member of the Sudhar Samiti has sent any letter to CPWD regarding the damaged chokhats and replacement of the same, during his tenure.

xii) PW­12 Smt. Krishna, a resident of quarter No. H­131, CBI Vs. K.C.Wahi (CC No. 09/2009) Page 17 of 80 Special Judge, CBI­01, Central, Delhi Sriniwaspuri, New Delhi, in the year 1997. She has deposed that no work was done by the officials of CPWD and she had never lodged any complaint for changing the chokhat of WC / bathroom.

xiii) PW­13 Smt. Kumud Chauhan, a resident of quarter No. 467, H­Type quarters, Sriniwaspuri, New Delhi, during the period 1994 to 1998. She has also deposed that she had not given any complaint for changing the chokhat and no chokhat was changed by any contractor or CPWD during the said period.

xiv) PW­14 Sh. Devender, a resident of quarter No. H­503, Sriniwaspuri, New Delhi. He has deposed that in the year 1997, he was residing at H­501, Sriniwaspuri and he had not given any complaint for changing the main door chokhat and no chokhat of his quarter was changed by any employee of CPWD or by any contractor during the year 1997.

xv) PW­15 Smt. Gopi Devi, a resident of quarter No. H­162, Sriniwaspuri, who has deposed that in the year 1997, she had not lodged any complaint for changing the chokhat and no chokhat was changed by any employee of CPWD or by any contractor. CBI Vs. K.C.Wahi (CC No. 09/2009) Page 18 of 80 Special Judge, CBI­01, Central, Delhi xvi) PW­16 Smt. Asha Rani, a resident of quarter No. H­443, Sriniwaspuri, New Delhi. She has deposed that she had not given any complaint for changing the main door chokhat and no chokhat of her quarter was changed by any contractor or any employee of CPWD.

xvii) PW­17 Sh. Bhupesh Karir. In the year 1997­98, he was working as a contractor and he also tendered for the work pertaining to replacement of damaged main doors, shutters and chokhats of 648 H­type quarters at Sriniwaspuri, New Delhi. But, the contract was not awarded to him.

xviii) PW­18 Sh. Somnath Roy, who was working as LDC in CPWD in the year 1997. He had issued the measurement book No. 5899 to accused K.C.Wahi on 14.08.1997.

xix) PW­19 Sh. Nirmal Praful Toppo. He was working as UDC in DDA, Vikas Sadan, in the year 1997. He also joined the inspection team of the CBI on 17.11.1997, during surprise physical verification of the quarter at Sriniwaspuri, New Delhi. xx) PW­20 Sh. Baldev Kumar, who was working as Executive CBI Vs. K.C.Wahi (CC No. 09/2009) Page 19 of 80 Special Judge, CBI­01, Central, Delhi (Planning & Administration) in CPWD in April, 1998. He also visited the government quarters in Sriniwaspuri, for inspection, with the CBI team and another engineer Sh. G.V.R. , from the CPWD.

xxi) PW­21 Sh. Rajender Singh Rawat. In the year 1998, he was working as UDC (Auditor) P­Division, CPWD Sadiq Nagar, New Delhi. This witness has deposed about the procedure for award of the maintenance work to the contractors. He has also checked the first and final bill Ex.PW.3/H and the relevant annexures and documents, attached with it.

xxii) PW­22 Sh. Manindra Lal Roy. He was working as Assistant Engineer in CPWD sub­division 3­P, Andrews Ganj Extension in the year 1997. He was also given the additional charge of sub­division 4­P Sriniwaspuri, at that time. He has also deposed about the procedure for preparation of the estimates of the repair work and the process for calling of the tenders. xxiii) PW­23 Sh. Prem Chand, a resident of quarter No. H­67, Sriniwaspuri in the year 1997. He has deposed that in the year CBI Vs. K.C.Wahi (CC No. 09/2009) Page 20 of 80 Special Judge, CBI­01, Central, Delhi 1997, officials of CPWD changed the old chokhat of his quarter with a new one and in the month of November, 1997, they again came to his quarter and replaced the chokhat again. xxiv) PW­24 Sh. Jagdish Raj, a resident of quarter No. H­57, Sriniwaspuri, New Delhi. He has also deposed that in the year 1997, the officials of CPWD changed the old chokhat of his main door with a new one.

xxv) PW­25 Ms. Rajni, a resident of quarter No.H­284, Sriniwaspuri, New Delhi. She has deposed that in the year 1997, neither the chokhat of the main door of her quarter was replaced nor it was painted.

xxvi) PW­26 Smt. Shakuntala, a resident of quarter No. H­161, Sriniwaspuri, New Delhi, who has deposed that in the month of November, 1997, the main door chokhat of her quarter was painted by CPWD and the same was replaced, one year prior to its painting.

xxvii) PW­27 Inspector C.K. Sharma. He is the Investigating officer of the present case.

CBI Vs. K.C.Wahi (CC No. 09/2009) Page 21 of 80 Special Judge, CBI­01, Central, Delhi xxviii) PW­28 Sh B.R. Sharma, a resident of quarter No. H­511, Sriniwaspuri, New Delhi. He has deposed that he remained Secretary of Sudhar Samiti of the locality during the period w.e.f. 1995 to May 1997 and during his tenure, he had never asked the J.E., or A.E., of the CPWD to replace or change the chokhat, SW pipe, WC pan and manhole covers in H­Block, Sriniwaspuri. xxix) PW­29 Smt. Sunita, a resident of quarter No. H­558, Sriniwaspuri, who has deposed that during the period 1996 to 1997, no chokhat of her quarter was replaced.

xxx) PW­30 Sh. N.C. Joshi, resident of quarter No. H­448, Sriniwaspuri, Delhi. He has deposed that he made a request to change the chokhat of main door of his quarter, but, the same was never changed.

xxxi) PW­31 Dr. Rajender Singh, Director CFSL, New Delhi. He has examined the various documents and compared the handwritings of the accused in the said documents with their specimen handwritings and signatures. He has proved his report as Ex.PW.31/A. CBI Vs. K.C.Wahi (CC No. 09/2009) Page 22 of 80 Special Judge, CBI­01, Central, Delhi xxxii) PW­32 Inspector Rajesh Kumar Prasad, who was posted as Sub­Inspector, ACB, CBI, New Delhi, during the period w.e.f. the year 1997 to September, 1998. He was also a member of the CBI team, which conducted the surprise check and physical verification of H­type quarters at Sriniwaspuri, on 17.11.1997. He has proved his observation memo, dated 17.11.1997, Ex.PW4/A. xxxiii) PW­33 Sh. Brajesh Kumar, who was also posted as sub­ inspector, ACB, CBI, New Delhi, in the year 1997. He was also a member of the CBI team, which conducted the surprise check and physical verification of H­type quarters at Sriniwaspuri, on 17.11.1997.

xxxiv) PW­34 Smt. Simar Kaur, a resident of quarter No. H­341, Sriniwaspuri, Delhi, who has deposed that in the month of May or June, 1997, the chokhat of the main door of her quarter was replaced.

xxxv) PW­35 Smt. Bala Devi, a resident of quarter No. H­266, Sriniwaspuri, Delhi. She has deposed that she never made any request to the concerned department for replacement of the main CBI Vs. K.C.Wahi (CC No. 09/2009) Page 23 of 80 Special Judge, CBI­01, Central, Delhi door chokhat of her quarter. She has further deposed that the same was never replaced in her presence. But, in her cross­ examination, she has admitted that the main door frame of her quarter was replaced.

xxxvi) PW­36 Sh. Ganga Sharan, a resident of quarter No. H­330, Sriniwaspuri, Delhi. He has not supported the prosecution case and has deposed that the renovations used to be made by the concerned department in his quarter, from time to time. xxxvii) PW­37 Smt. Sushila, a resident of quarter No. H­257, Sriniwaspuri, Delhi. She has also not supported the prosecution case.

xxxviii) PW­38 Smt. Asha, a resident of quarter No. H­17, Sriniwaspuri, Delhi. She has also not supported the prosecution case.

xxxix) PW­39 Smt. Kamla, a resident of quarter No. H­245, Sriniwaspuri, Delhi. She has also not supported the prosecution case.

xL) PW­40 Sh. Virender Kumar, a resident of quarter No. H­96, CBI Vs. K.C.Wahi (CC No. 09/2009) Page 24 of 80 Special Judge, CBI­01, Central, Delhi Sriniwaspuri, Delhi. He has deposed that he never complained about replacing of any chokhat of his quarter, during his occupation. However, the chokhat was painted once during his occupation.

xLi) PW­41 Smt. Godavari, a resident of quarter No. H­404, Sriniwaspuri, Delhi. She has deposed that the chokhat of the main door of her quarter was never changed or repaired during her occupation.

xLii) PW­42 Smt. Gandhimati Natrajan, UDC, who was working with Sh. S.K. Singhal, Superintending Engineer, PWD, New Delhi, in the year 2000. She has identified the signatures of Sh. S.K. Singhal, Superintending Engineer, on the sanction order Ex.PW42/A. xLiii) PW­43 N.N. Singh, Superintendent of Police, Anti Corruption Branch, CBI, New Delhi, who got the FIR, Ex.PW9/B, registered on the complaint of Inspector D.K. Singh, on 20.11.1997. Vide letter dated 20.11.97, he wrote to Sh.K.K. Verma, Chief Engineer (Vigilance), CPWD Head Quarters, CBI Vs. K.C.Wahi (CC No. 09/2009) Page 25 of 80 Special Judge, CBI­01, Central, Delhi Nirman Bhawan, New Delhi, for constituting a team of technical officers to inspect and evaluate the relevant work and submit a technical report. Vide letter Ex.PW27/A, he received the report from the Superintending Engineer (Vigilance). Vide letter Ex.PW27/F, he forwarded the questioned writings / signatures of the accused persons to Director, CFSL, for comparison and expert opinion.

21. After completion of the prosecution evidence, the statement of the accused was recorded, u/s 313 Cr.P.C., wherein, the accused A.R. Bhati has denied all the incriminating evidence against him and has deposed that he is innocent and has been falsely implicated in this case. He has further stated that he has worked honestly and performed the entire work at the site 100% and the same was physically checked and verified by his senior officers, which was again re­checked and the payment of the work done was not released to the contractor. He has also stated that he was not authorized to release or stop the payment to the CBI Vs. K.C.Wahi (CC No. 09/2009) Page 26 of 80 Special Judge, CBI­01, Central, Delhi contractor. He has also examined Sh. Anjan Chaudhary, Asstt. Engineer, CPWD, who was working as Jr. Engineer in Sub­ Division 4­P at Sriniwaspuri, New Delhi, in the month of January 1998, in his defence. This witness has proved the charge report dated 17.01.1998, prepared by the accused as Ex.DW1/A.

22. After completion of trial, final arguments were addressed by Shri Praneet Sharma, Ld. Senior PP for the CBI and Shri Y.K.Kahol, Advocate, for accused A.R. Bhati, at length. Arguments on behalf of the CBI / Prosecution

23. It has been argued by Shri Praneet Sharma, Ld. Sr. PP for the CBI that the prosecution has successfully proved its case against the accused A.R. Bhati. He has argued that the work for replacement of damaged chokhats of 648 H­type quarters in Sriniwaspuri Sub­division of CPWD, was awarded to accused Khalil Ahmed (Since deceased), proprietor of M/s Khalil Ahmed Wood Works for an estimated amount of Rs.43,639/­, with CBI Vs. K.C.Wahi (CC No. 09/2009) Page 27 of 80 Special Judge, CBI­01, Central, Delhi tendered amount of Rs.78,132/­, in respect of which agreement Ex.PW3/B was executed. The terms & conditions of the agreement are Ex.PW3/A. Both these documents have been admitted by the accused persons, during the trial.

24. The Ld. Sr. PP for the CBI has further argued that inspector D.K. Singh was investigating RC No. 77, 78 & 79 of 1997, relating to the non­execution of the civil work in 4­P sub­division of CPWD, New Delhi and during investigations, he came to know that the work for replacing the chokhats in H­Type quarters was not performed by accused Khalil Ahmed. But, still a first and final bill for Rs.1,87,747/­, Ex.PW3/H, with a deviation of 140% was raised and passed by the accused persons. The said bill is also an admitted document.

25. The Ld. Sr. PP for the CBI has further argued that measurement book No. 5899, Ex.PW3/F, was issued to accused A.R. Bhati, through co­accused K.C. Wahi and he made false CBI Vs. K.C.Wahi (CC No. 09/2009) Page 28 of 80 Special Judge, CBI­01, Central, Delhi entries in this measurement book, regarding the replacement of the 164 chokhats, pertaining to the tendered work and the same was checked and verified by accused K.C. Wahi, Asstt. Engineer, and were forwarded to Executive Engineer Phool Singh, along with the bill for checking and passing. He has further argued that the entries regarding the work done in earlier agreement No. 43/AE/4­P/97­98 were again made in the measurement book No. 5899, Ex.PW3/F, which indicates that the accused had connived together with the contractor Khalil Ahmed and have cleared the bill against the present agreement No. 59/AE/4­P/97­98 also. The measurement book Ex.PW3/F, is also an admitted document.

26. The Ld. Sr. PP for the CBI has further argued that on 17.11.1997, a surprise inspection was conducted by a joint team of the CBI, along with the senior officers of the CPWD and the actual physical verification of the site was done, in which various discrepancies were noted by them. An observation memo Ex.PW4/A (D­2) was also prepared. Thereafter, PW­20 Baldev CBI Vs. K.C.Wahi (CC No. 09/2009) Page 29 of 80 Special Judge, CBI­01, Central, Delhi Raj, Superintending Engineer, was also directed to conduct a fresh physical verification of all the sites, pertaining to the tendered work and he also conducted the physical verification, in the presence of Sh. GVR Rao, another engineer of CPWD and submitted his report Ex.PW20/B, wherein, it was reported that only 47 chokhats, out of a total of 194 chokhats, were replaced by contractor accused Khalil Ahmed.

27. The Ld. Sr. PP for the CBI has further argued that the contractor accused Khalil Ahmed had replaced only 47 chokhats worth Rs.53,002/­ only. But, a first and final bill worth Rs. 1,87,747/­, for replacement of 164 chokhats was prepared & passed for payment and he in connivance with accused A.R. Bhati, J.E., K.C. Wahi, A.E. and Phool Singh, Executive Engineer, hatched a conspiracy to cheat the CPWD. He has further argued that in pursuance to the said conspiracy, accused A.R. Bhati made false entires in the measurement book No. 5899, Ex.PW3/F, and the same were also checked and verified by CBI Vs. K.C.Wahi (CC No. 09/2009) Page 30 of 80 Special Judge, CBI­01, Central, Delhi accused K.C. Wahi A.E. (since deceased) and thereafter, the bill Ex.PW3/H, along with other documents and the measurement book were forwarded to accused Phool Singh, E.E. (already discharged), for checking and passing. But, these accused persons were having the knowledge about the previous investigations by the CBI in RC No. 77, 78 & 79 and therefore, they directed accused Khalil Ahmed to complete the tendered work and thereafter, accused Khalil Ahmed attempted to perform some of the tendered work during the period, w.e.f. 13.11.97 to 17.11.97. But, still the entire tendered work could not be completed by him. However, the bill Ex.PW3/H, worth Rs. 1,87,747/­ was not cleared by Phool Singh, Executive Engineer and therefore, the amount of the said bill could not be released to accused Khalil Ahmed.

28. The Ld. Sr. PP for the CBI has further argued that accused Khalil Ahmed had himself written a letter dated 15.12.97, Ex.P­38 (admitted document), wherein, he has admitted that the entire CBI Vs. K.C.Wahi (CC No. 09/2009) Page 31 of 80 Special Judge, CBI­01, Central, Delhi tendered work could not be completed by him and accused A.R. Bhati and K.C. Wahi (since deceased) have forged and fabricated the entries in the measurement book Ex.PW3/F. In the said letter, he has also admitted that he has replaced only 61 chokhats during the period, w.e.f. 13.11.97 to 17.11.97.

29. The Ld. Sr. PP for the CBI has further argued that PW­5 Bachan Singh, PW­7 Sheela Palta, PW­8 Savitri, PW­13 Kumud Chauhan, PW­14 Devender, PW­15 Gopi Devi, PW­16 Asha Rani, PW­25 Rajni, PW­29 Sunita, PW­30 N.C. Joshi, PW­35 Bala Devi, PW­40 Virender Kumar and PW­41 Godambri Devi have all supported the prosecution case and have all proved that the chokhats of the main door of their quarters were never replaced by the CPWD or accused Khalil Ahmed, but still the chokhats of their quarter were shown as replaced in the first and final bill Ex.PW3/H.

30. The Ld. Sr. PP for the CBI has further argued that PW­4 CBI Vs. K.C.Wahi (CC No. 09/2009) Page 32 of 80 Special Judge, CBI­01, Central, Delhi Harish Parmar and PW­19 Nimal Prafful Toppo have also supported the prosecution case and they have proved the observation memo, Ex.PW4/A. Furthermore, PW­9 Inspector D.K. Singh has also proved his complaint, Ex.PW9/A and the observation memo Ex.PW4/A and PW­32 SI Rajesh Kumar Prasad has corroborated his testimony. PW­20 Baldev Kumar has also proved his inspection report, Ex.PW20/B, which has established on record that only 24 main door chokhats and 23 WC & Bath chokhats were replaced by the contractor Khalil Ahmed, instead of 94 chokhats and 70 chokhats, respectively. But still, a first and final bill for replacement of a total of 164 chokhats was raised and checked, verified and forwarded to Executive Engineer Phool Singh for passing.

31. Ld. Sr. PP for the CBI has further argued that the competent authority has also granted the sanction under Section 19 of The Prevention of Corruption Act, 1988, against the accused A.R.Bhati, JE, vide sanction order Ex.PW.42/A, after going CBI Vs. K.C.Wahi (CC No. 09/2009) Page 33 of 80 Special Judge, CBI­01, Central, Delhi through the entire evidence and material on record and the testimony of the prosecution witnesses has proved the prosecution case against the accused, beyond a shadow of doubt and therefore, the accused A.R. Bhati, be held guilty and convicted for the offences charged against him.

32. The Ld. PP for the CBI has relied upon the following judgments, in support of his above contentions:

(i) State of Bihar & Ors. vs. Rajmangal Ram, reported as AIR 2014 Supreme Court 1674;

(ii) State of Maharashtra Through C.B.I. vs. Mahesh G. Jain, reported as (2013) 8 SCC 119;

(iii) Tehsildar Singh & Anrs. Vs. State of UP, reported as AIR 1959 Supreme Court 1012.

Arguments in defence, on behalf of accused A.R. Bhati

33. On the other hand Sh. Y.K.Kahol, Advocate, for accused A.R. Bhati has argued that the prosecution has miserably failed to prove any case against the accused. He has argued that Sh. S.K. Singhal, Superintending Engineer, had granted sanction for CBI Vs. K.C.Wahi (CC No. 09/2009) Page 34 of 80 Special Judge, CBI­01, Central, Delhi prosecution of accused A.R. Bhati under Section 19 of the P.C.Act 1988, vide sanction order Ex.PW42/A. But, the said order is not a valid and legally sustainable sanction order, as the same is a verbatim reproduction of the entire charge sheet and does not disclose anything, as to what material or documents were perused by Sh. S.K. Singhal, Superintending Engineer, while passing the said sanction order.

34. The Ld. Defence counsel has further argued that there are a large number of material contradictions in the depositions of the prosecution witnesses and the documentary evidence on record, which makes the entire prosecution case doubtful. He has argued that the surprise inspection was allegedly conducted by the CBI team, headed by Inspector D.K. Singh, on 17.11.1997 and he prepared an observation memo, Ex.PW4/A, dated 17.11.1997, but, no such surprise inspection was ever conducted by the CBI team, at the site. He has further argued that all the prosecution witnesses, who allegedly conducted the surprise visit CBI Vs. K.C.Wahi (CC No. 09/2009) Page 35 of 80 Special Judge, CBI­01, Central, Delhi and physical inspection on 17.11.1997, have deposed that the physical checking of all the H­Type Quarters, was done only on 17.11.1997, within a period of about 4 to 5 hours, which is practically impossible.

35. The Ld. Defence counsel has further argued that the FIR in the present case was registered on the written complaint of inspector D.K. Singh on 20.11.1997, by Sh. N.N. Singh, the then SP CBI and on the same day, SP Sh. N.N. Singh, had issued a letter Ex.PW27/A (D­7), to Sh. K.K. Verma, Chief Engineer (Vigilance), CPWD Headquarters, Nirman Bhawan, New Delhi, wherein, it was mentioned that the investigation of this case has been entrusted to inspector C.K. Sharma and all the record and documents were in his custody. But, the production­cum­seizure memo Ex.PW9/C, dated 03.12.1997, indicates that Inspector D.K. Singh had handed over the documents to Inspector C.K. Sharma only on 03.12.1997, which indicates that all the documents were forged and fabricated by Inspector C.K. Sharma, later on. CBI Vs. K.C.Wahi (CC No. 09/2009) Page 36 of 80 Special Judge, CBI­01, Central, Delhi

36. The Ld. Defence counsel has further argued that accused Khalil Ahmed (since deceased) had performed the entire work of replacement of 164 chokhats at H­type quarters at Sriniwaspuri and accordingly, accused A.R. Bhati had made the necessary entries in the measurement book No. 5899, Ex.PW3/F, after due verification. He has further argued that none of the witnesses, who conducted alleged physical inspection on 17.11.1997 and thereafter, on 04.12.1997 or 08.12.1997, was aware about the fact that the wooden chokhats of H­type quarters at Sriniwaspuri, were to be replaced with iron frames (chokhats) and the iron frames were to be filled up with concrete and cement. He has further argued that the public witnesses, who were allegedly the occupants of the various H­type quarters, have also not supported the prosecution case.

37. The Ld. Defence counsel has pointed out various discrepancies in the observation memo Ex.PW4/A, dated 17.11.1997, prepared by inspector D.K. Singh and the report CBI Vs. K.C.Wahi (CC No. 09/2009) Page 37 of 80 Special Judge, CBI­01, Central, Delhi Ex.PW20/B, prepared by Engineer Sh. Baldev Kumar, SW­cum­ EE (HQ), DCC­VI, CPWD, New Delhi and has argued that the contradictions in these two documents and the annexures, makes the alleged inspections doubtful. He has further argued that a large number of H­Type quarters were found locked, when the alleged inspections were carried out and therefore, it was not possible to conduct the physical verification of the main door room chokhats, but still, it has been mentioned in these reports that the chokhats were not replaced. He has further argued that all these H­Type quarters at Sriniwaspuri, were Type­1 quarters and were having one room only with attached kitchen and the bathroom / toilet was situated outside the quarter and was common for two quarters. He has further argued that the entry to these quarters was through the door of the kitchen only and there was no separate entry to the room. The occupant of the room was required to enter the kitchen first and only then, he could enter the room. Therefore, if the door of the kitchen was locked, no person can enter the quarter and therefore, it was impossible to inspect, CBI Vs. K.C.Wahi (CC No. 09/2009) Page 38 of 80 Special Judge, CBI­01, Central, Delhi whether the chokhat of the room was replaced or not.

38. The Ld. Defence counsel has further argued that the dismantled chokhats were taken back by the officials of the CPWD, to the store room and were duly deposited there, but the same was not considered by the investigating officer, while preparing the charge sheet. He has further argued that the entire work of the tender was duly performed by accused Khalil Ahmed and the same was duly checked by accused A.R. Bhati and therefore, they have not committed any offence and therefore, the accused A.R. Bhati may be acquitted for the offences, alleged against him.

OBSERVATIONS / FINDINGS

39. I have carefully perused the case file and I have given my considered thoughts to the arguments addressed by the Ld. Sr. PP for the CBI and the Ld. Defence counsel and I have also perused the various judgments, cited by them.

CBI Vs. K.C.Wahi (CC No. 09/2009) Page 39 of 80 Special Judge, CBI­01, Central, Delhi

40. Perusal of the record shows that to prove its case, the prosecution / CBI has examined the complainant Inspector D.K. Singh as PW­9. Complainant Inspector D.K. Singh, has deposed that in the year 1997, he was conducting the investigation of RC No. 77, 78 & 79 of 1997, relating to the non­execution of civil work in 4­P Sub­division of CPWD at Sriniwaspuri, New Delhi and during investigations of those cases, it came to his knowledge that the tender for the work of replacing the chokhats in H­type quarters, Sriniwaspuri was opened, but there was no entry in the agreement register. It was also revealed that the chokhats were never replaced, but the bills were raised. He has further deposed that he collected the measurement book and bills from the sub division and conducted a physical verification on 17.11.97 along with CPWD staff and independent witnesses and prepared a detailed report, in the form of an observation memo, dated 17.11.97, Ex.PW4/A. He has further deposed that Annexure­A of this observation memo, pertains to the physical checking of the execution / non­ execution of the work related to replacement of CBI Vs. K.C.Wahi (CC No. 09/2009) Page 40 of 80 Special Judge, CBI­01, Central, Delhi chokhats. He has further deposed that the physical inspection revealed that the chokhats were not replaced in most of the cases. In few cases, chokhats were found replaced within 2 or 3 days i.e. after detection of this information. In some cases, old chokhats were repainted to conceal the fact of non­replacement of chaukhts. In some cases, chokhats were replaced long back in other one year old contract, but , were repainted to conceal the non­replacement of chokhats in the present contract. He has further deposed that on the basis of the surprise physical inspection, he lodged the complaint dated 18.11.97, Ex.PW9/A, on the basis of which, FIR Ex.PW9/B was registered by Sh. N.N. Singh, the then SP, ACB, CBI, and after registration of the FIR, investigation of this case was entrusted to Inspector C.K. Sharma.

41. Perusal of the record further shows that after registration of the FIR, PW­43 Sh. N.N. Singh, the then Superintendent of Police, ACB, CBI, wrote a letter Ex.PW27/A dated 20.11.1997, to Sh. K. K. Verma, Chief Engineer (Vigilance), CPWD Headquarters, CBI Vs. K.C.Wahi (CC No. 09/2009) Page 41 of 80 Special Judge, CBI­01, Central, Delhi Nirman Bhawan, New Delhi, requesting him to constitute a team of the technical officers to inspect and evaluate the relevant work and submit a technical report in this regard.

42. Perusal of the record further shows that vide letter dated 24.11.97, Ex.PW27/B, Sh. M.K . Goel Superintending Engineer (Vigilance), informed Sh. N.N. Singh, S.P., ACB, CBI, that Sh. Baldev Kumar, SW­cum­EE (HQ), DCC­VI, CPWD and Sh. G.V.R. Rao, ASW of SSW (NDZ­III), CPWD, have been nominated to inspect and evaluate the work checked by CBI. He further requested that Inspector C.K. Sharma may be directed to join the team for inspection.

43. Perusal of the record further shows that in pursuance to the said directions, vide letters dated 20.11.97 & 24.11.97, the physical verification of the work of replacement of chokhats in H­ type quarters at Sriniwaspuri, New Delhi, was conducted on 04.12.97 & 08.12.97, as mentioned in Annexure­A of the report by CBI Vs. K.C.Wahi (CC No. 09/2009) Page 42 of 80 Special Judge, CBI­01, Central, Delhi Sh. Baldev Kumar (PW­20). This report was submitted to Sh. N.N. Singh, SP, ACB,CBI, vide letter dated 30.12.97, Ex.PW20/A.

44. Perusal of the record further shows that in order to prove the original physical verification by Inspector D.K. Singh, vide 'observation­memo', dated 17.11.97 Ex.PW4/A, the prosecution has examined the members of the team, Sh. Harish Parmar, LDC from DDA; Sh. Nirmal Praful Toppo, UDC from DDA; and Sh. Rajesh Kumar Prasad, SI, ACB, CBI, as PW­4, PW­19 & PW­32, respectively.

45. PW­4 Harish Parmar has deposed that in the year 1997, he was called to the CBI office to associate him as an independent witness for checking the flats, pertaining to the chokhats in the said flats. He has categorically stated that the observations were correctly recorded by the CBI officer, as per the observations revealed at the spot. He has further stated that Annexure­A pertains to the inspection of main room chokhats and Annexure­B CBI Vs. K.C.Wahi (CC No. 09/2009) Page 43 of 80 Special Judge, CBI­01, Central, Delhi pertains to WC and bath chokhats. He has further deposed that some of the chokhats were found not replaced but, painted on the mentioned dates, as stated by the occupants of the said quarters. During his cross­examination, he has categorically stated that he stayed at the sites for about 4 / 5 hours. He has further stated that the premises inspected were either Janta flats or LIG flats. He has also stated that as far as he recollect, the chokhats which have been seen were either of WC or of the toilet. He has also admitted that one or two flats, which were visited by the team were found locked and the said flats could not be checked. He has also stated that the chokhats were of iron. He has further deposed that the entry in the observation memo, against each of the flats, was made while standing outside the respective flat, after inspection. He has volunteered that the recordings in the observation memo were made on the basis of the statements of the occupants.

46. PW­19 Sh. Nirmal Praful Toppo has also deposed that in the CBI Vs. K.C.Wahi (CC No. 09/2009) Page 44 of 80 Special Judge, CBI­01, Central, Delhi year 1997, he was working as UDC in DDA and on 17.11.1997, he was instructed to visit CBI office, along with PW­4 Harish, LDC and they were told to visit Sriniwaspuri, New Delhi to inspect the construction work. During inspection, some of the construction was found complete, while some of it was incomplete and there was some repair work going on. He has further deposed that he accompanied the CBI team to see the chokhats, WC and bathrooms of the flats. He has categorically stated that some of the work appeared to have been completed just recently and some chokhats were painted only recently. He has further deposed that the occupants of the flats were also questioned and they told them that the job was done only yesterday, while the others had said that it was not done completely. During his cross­ examination, this witness has also deposed that it took about 6 / 7 hours to complete the inspection during the period w.e.f. 10.00 a.m. to 5.00 p.m. He has further deposed that they were having no instrument with them for checking the work done and the report was prepared only on the basis of the observations made CBI Vs. K.C.Wahi (CC No. 09/2009) Page 45 of 80 Special Judge, CBI­01, Central, Delhi visually. He has categorically stated that no team members had entered any of the house and they had seen WC and the bathrooms from outside, as they were situated outside the flat.

47. PW­32 SI Rajesh Kumar Prasad has also deposed that during the surprise check on 10.10.1997, at the office of P­Sub­division of CPWD, it was revealed that certain civil works awarded to contractor Kahlil Ahmed were executed only on paper and the bills for payment were submitted by concerned CPWD officers. He has further deposed that CBI conducted a random surprise check in the flats, in which the work had allegedly been done and found that no work had actually been carried out. He has further deposed that the observations made during the random surprise check, were mentioned in Annexure­A & B, attached to the surprise check memo. In his cross­examination, he has admitted, after going through the observation memo Ex.PW4/A, that they inspected the chokhats of main room and also the WC and bath as mentioned in Annexure A & B. He has categorically stated that CBI Vs. K.C.Wahi (CC No. 09/2009) Page 46 of 80 Special Judge, CBI­01, Central, Delhi the observation memo was written by him, after visit to the site, on the dictation of inspector D.K. Singh. During his cross­ examination, he has also admitted that the accommodation available in H­type quarters was one room and kitchen and the toilets were common. He has further deposed that the kitchen was on the front side and the entry to the room was from the kitchen. He has also admitted that during inspection, some of the quarters were found locked and in the remark column, the same was left blank. During his cross­examination, he has also stated that the inspected chokhats were having wooden frames, but, he again said that there were iron frames also. He has categorically stated that the checking was done randomly.

48. Perusal of the testimonies of the complainant Inspector D.K. Singh (PW­9) and the members of the inspection team, namely PW­4 Harish Parmar, PW­19 Nirmal Praful Toppo and PW­32 SI Rajesh Kumar Prasad has proved, beyond a shadow of doubt that on 17.11.1997, a surprise physical inspection and verification was CBI Vs. K.C.Wahi (CC No. 09/2009) Page 47 of 80 Special Judge, CBI­01, Central, Delhi conducted by them at H­type quarters at Sriniwaspuri, New Delhi, randomly and it was found that the claimed work of replacement of chokhats was not completed by the contractor, accused Khalil Ahmed, till that day. The depositions of these witnesses finds corroboration from the testimonies of the occupants of H­type quarters at Sriniwaspuri, New Delhi. PW­5 Bachan Singh, resident of H­231; PW­6 Smt. Godambari, resident of H­223; PW­7 Smt. Sheela Palta, resident of H­9; PW­8 Smt. Savitri, resident of H­163; PW­13 Kumud Chauhan, resident of H­467; PW­15 Smt. Gopi Devi, resident of H­162; PW­16 Smt. Asha Rani, resident of H­443; PW­25 Smt. Rajni, resident of H­284; PW­29 Smt. Sunita, resident of H­558; PW­30 Sh. N.C.Joshi, resident of H­448; PW­40 Sh. Virender Kumar, resident of H­96 and PW­41 Smt. Godambri Devi, resident of H­404, have all deposed that the chokhats of their quarters were never changed by any official of the CPWD or any contractor.

49. The deposition of the members of the inspecting team as well CBI Vs. K.C.Wahi (CC No. 09/2009) Page 48 of 80 Special Judge, CBI­01, Central, Delhi as the depositions of the occupants of these quarters has also established on record that all these H­type quarters at Sriniwaspuri were Type­1 quarters, having one room only and the kitchen was also situated in its front portion. In all these quarters, the toilet and bathroom were separate from the quarter and were situated at some distance from the quarters and one toilet and bathroom was common for two quarters. Annexure­A to observation memo Ex.PW.4/A has been prepared regarding replacement or non­replacement of the main door / room chokhat, whereas, Annexure­B has been prepared in respect of the replacement of the chokhat of the WC and bathroom of these quarters. Perusal of these two annexures indicates that there are several entries in which it has been mentioned that the chokhats have not been replaced despite of the fact that the quarters or the WC and bathroom were found locked. In the considered opinion of this court, the locking of these quarters or the WC & bathroom at the time of inspection shall not make any difference, as the WC & bathroom was not situated inside the quarter, and it was CBI Vs. K.C.Wahi (CC No. 09/2009) Page 49 of 80 Special Judge, CBI­01, Central, Delhi situated separately at a distance of about 2 meters from the quarters. Furthermore, the H­type quarters at Sriniwaspuri, were all Type­1 quarters, having a single entry to the quarter / room, wherein, the kitchen was also situated, in its front portion. The deposition of the prosecution witnesses has indicated that all these quarters were like single room 'studio­apartments'. Therefore, locking of its front main door shall not prevent the officials or the members of the inspection team from reporting a correct situation about the replacement or non­replacement of the main door chokhat of the quarter / room.

50. Perusal of the record further shows that all these prosecution witnesses have been cross­examined at length by the Ld. Defence counsel. But, no material discrepancy or contradiction has come on record to discard their entire depositions. However, some minor contradictions have appeared in their depositions, during their cross­examinations. But, in the considered opinion of this court, these contradictions are not fatal to the prosecution CBI Vs. K.C.Wahi (CC No. 09/2009) Page 50 of 80 Special Judge, CBI­01, Central, Delhi case, as such kind of minor contradictions are bound to occur during the cross­examination of the witnesses, when the witnesses depose in the court in consistent manner and that too, after a gap of several years. The present case was registered in November, 1997 and PW­4 Harish Parmar was examined in February, 2007; Inspector D.K.Singh, PW­9 was examined in March, 2008; PW­19 Nirmal Praful Toppo was examined in November, 2009; PW­20 Baldev Kumar was examined in August, 2014; PW­21 Rajender Singh Rawat was examined in the year 2010; and PW­22 Manindra Lal Roy was examined in the year 2010 and 2011. The time lag in recording their evidence may have also caused some dent in the memory of these witnesses.

51. It has been held by the Hon'ble Supreme Court, in case titled as, "Prem Singh Yadav vs. CBI, reported as, 2002 Law Suit (SC) 43 ", as under :­

7. Before proceeding to see the veracity of the testimony of this witness, in the light of the testimonies of other witnesses, namely PW3, PW5 and PW6 and to see as to CBI Vs. K.C.Wahi (CC No. 09/2009) Page 51 of 80 Special Judge, CBI­01, Central, Delhi whether the discrepancies as pointed out by learned Counsel were material as alleged by him or insignificant as submitted by learned Counsel for the prosecution, it may be appropriate to refer to the judgment in the case of Zamir Ahmed v. State, 1996 Crl. Law Journal 2354. with regard to the discrepancies, it was observed by the Division Bench of this Court that :

"It would be a hard not to crack to find out a case which is bereft of embellishment, exaggeration, contradictions and inconsistencies. The said things are natural. Such contradictions and inconsistencies are bound to creep in with the passage of time. If the witnesses are not tutored, they would come out with a natural and spontaneous version on their own. The two persons on being asked to reproduce a particular incident which they have witnessed with their own eyes would be unable to do so in like manner. Each one of them will narrate the same in his own words, according to his own perception and in proportion to his intelligence power of observation."

(emphasis supplied by me)

52. Furthermore, the Hon'ble Supreme Court of India, way back in the year 1959, in the case titled as "Tehsildar Singh & Anrs. vs. State of U.P." (Supra), (as relied by the Ld. PP for the CBI), has held as under:

19. "Contradict" according to the Oxford Dictionary CBI Vs. K.C.Wahi (CC No. 09/2009) Page 52 of 80 Special Judge, CBI­01, Central, Delhi means to affirm to the contrary, Section 145 of the Evidence Act, indicates the manner in which contradiction is brought out. The cross­examining Counsel shall put the part or parts of the statement which affirms the contrary to what is stated in evidence. This indicates that there is something in writing which can be set against another statement made in evidence. If the statement before the police­officer - in the sense we have indicated - and the statement in the evidence before the Court are so inconsistent or irreconcilable with each other that both of them cannot co­exist, it may be said that one contradicts the other.

(emphasis supplied by me)

53. Even in the present case, the cross­examination of the aforesaid witnesses have indicated that there are some minor contradictions in their depositions but, the same are not so inconsistent or irreconcilable from their statements recorded in the court that their depositions in their examination­in­chief and the cross­examination cannot co­exist and therefore, the contradictions or the minor discrepancies in their cross­ examination cannot be termed as fatal to the prosecution case. CBI Vs. K.C.Wahi (CC No. 09/2009) Page 53 of 80 Special Judge, CBI­01, Central, Delhi

54. Perusal of the record further shows that, on the basis of the complaint Ex.PW.9/A, FIR Ex.PW.9/B was registered on 20.11.1997 and investigation of the case was entrusted to Inspector C.K.Sharma, by the orders of the then SP, CBI, ACB, Sh. N.N.Singh. Vide letter dated 20.11.1997 Ex.PW.27/A, SP, CBI, ACB, Sh. N.N.Singh requested Shri K.K.Verma, Chief Engineer (Vigilance), CPWD Headquarters, New Delhi, to constitute a team of technical officers to inspect and evaluate the relevant work and to submit the technical report, at an early date. In pursuance to the said letter, PW­20 Shri Baldev Kumar, SW­ cum­EE (HQ), DCC­VI, CPWD, New Delhi and Shri G.V.R. Rao, ASW of SSW (NDZ­III), CPWD, were appointed by Shri M.K.Goel, Superintending Engineer (Vigilance­II), CPWD, New Delhi, to inspect and evaluate the work checked by the CBI.

55. PW­20 Sh. Baldev Kumar has deposed in the court that vide letter dated 24.11.1997, he was directed to conduct the inspection of the government accommodation, alongwith the CBI officials CBI Vs. K.C.Wahi (CC No. 09/2009) Page 54 of 80 Special Judge, CBI­01, Central, Delhi and accordingly, he visited the government quarters in Sriniwaspuri, New Delhi, alongwith the CBI officers and another engineer from the CPWD. He has proved his report, regarding his inspection as Ex.PW20/B. Perusal of the report Ex.PW.20/B also indicates that PW­20 Sh. Baldev Kumar and Shri G.V.R.Rao have visited the concerned H­type quarters at Sriniwaspuri, New Delhi, on 04.12.1997 and 08.12.1997 and they prepared two annexures, regarding the physical verification of replacement of the chokhats. Annexure­A of his report Ex.PW.20/B pertains to the execution of the work regarding replacement of the main room chokhats. Annexure­B pertains to the replacement of the chokhats of WC and bathroom. Annexure­A indicates that all the 94 quarters were visited by Shri Baldev Kumar and Shri G.V.R.Rao and all the 70 WC and bathroom were also inspected by them. The names of the allottees or the persons available at the site, at the time of inspection are also mentioned in these annexures. Some of these persons, whose names find mention in these annexures, have also been examined during the trial as CBI Vs. K.C.Wahi (CC No. 09/2009) Page 55 of 80 Special Judge, CBI­01, Central, Delhi prosecution witnesses. Annexure­A has established on record that out of a total of 94 quarters, the chokhats in respect of 24 quarters only were replaced. Annexure­B of the report has also established that out of the total of 70 WC and bathrooms visited by this team, the chokhats of only 23 WC and bathrooms were found replaced. A total of 70 main room chokhats of the quarters and 47 chokhats of the WC and bathroom were found, not replaced.

56. Perusal of the record further shows that the measurement book No. 5899, Ex.PW.3/F, finds mention that a total of 164 chokhats were replaced and all these measurements were done by accused A.R.Bhati and the same were verified as correct by co­ accused K.C.Wahi (since deceased). Co­accused Khalil Ahmed (since deceased) has also accepted these measurements as correct. The measurement book is an admitted document and the entries in it have been admitted by the accused persons, as correct. On the basis of the measurement book, Ex.PW.3/F, the CBI Vs. K.C.Wahi (CC No. 09/2009) Page 56 of 80 Special Judge, CBI­01, Central, Delhi first and final bill Ex.PW.3/H was prepared in respect of the replacement of 164 chokhats. But, actually only 47 chokhats were replaced by the accused persons, till 17.11.1997. The first and final bill Ex.PW.3/H, is also an admitted document. It is also an admitted fact that this bill was prepared and this bill, alongwith the measurement book Ex.PW.3/F, was verified and forwarded by accused A.R.Bhati to co­accused K.C.Wahi (since deceased), who again verified the bill and forwarded the same to Phool Singh, Executive Engineer. But, Executive Engineer Phool Singh kept the said bill with him as he was aware of the fact that the CBI was conducting the investigations in the connected matters. Therefore, this bill was never passed and the payment was never released to co­accused Khalil Ahmed. This bill was recovered by the CBI / IO from the possession of EE Phool Singh, during the investigations, of this case.

57. Perusal of the record further shows that in order to prove the procedure of tendering process, the preparation of the bill, its CBI Vs. K.C.Wahi (CC No. 09/2009) Page 57 of 80 Special Judge, CBI­01, Central, Delhi checking and verification and forwarding to the concerned senior authorities for passing the same for payment to the contractor, the prosecution has examined PW­3 Shri A.Vishwanathan, Asstt. Accounts Officer; PW­21 Shri Rajender Singh Rawat, UDC (Auditor), P­Division, CPWD, Sadiq Nagar, New Delhi and PW­22 Shri Manindra Lal Roy, Assistant Engineer, CPWD, New Delhi.

58. It has been stated by PW­3 Shri A. Vishwanathan, Assistant Accounts Officer that the Assistant Engineer can award the work upto an amount of Rs.60,000/­. He has further deposed that the requirement for the repair work in respect of the residential flats is made on the basis of the complaints of the residents and if no complaint is received, then the requirement of work is estimated on the basis of the policy of the department. Thereafter, the estimate of the work is prepared by the Junior Engineer and he puts up the same to the Asstt. Engineer. If the estimate is above the amount of Rs.60,000/­, then the proposal is sent to the XEN, otherwise, it is dealt by the Asstt. Engineer himself. He has CBI Vs. K.C.Wahi (CC No. 09/2009) Page 58 of 80 Special Judge, CBI­01, Central, Delhi further stated that if the work to be carried out is within the power of Asstt. Engineer, i.e. upto Rs.60,000/­, a tender is to be made by the Asstt. Engineer himself and if the work is more than Rs. 60,000/­, then the tender is to be floated by the XEN.

59. PW­3 Shri A.Vishwanathan has further deposed that the supervision of execution of the work is to be done by the JE / AE and the XEN and a measurement book is maintained by the JE and the entries are made in the book, as per the work done at the site. The contractor is also required to sign the measurement book in token of the correctness of the measurements.

60. PW­3 Shri A.Vishwanathan has further deposed that the Sub­ Divisional Clerk prepares the bill on the basis of the measurements recorded in the measurement book and thereafter, the bill is put up before the JE and the AE. If there is any deviation, the bill is put up for signatures before the XEN and thereafter, the bill is sent to the accounts branch of the division. If CBI Vs. K.C.Wahi (CC No. 09/2009) Page 59 of 80 Special Judge, CBI­01, Central, Delhi the bill is found in order, the accounts branch passes the same for payment. He has further stated that sometimes, running bills are also made on the basis of the work done and interim payments are made to the contractor as making of the final bill takes time.

61. PW­3 Shri A.Vishwanathan has further deposed that the work relating to the repair of the damaged chokhats (door frame) was awarded to M/s. Khalil Ahmad Wood Works, vide Agreement No. 59/AE/4B/97­98 pertaining to special repair to 640 H­Type quarters at Sriniwaspuri, New Delhi, during 1997­98, with an estimated cost of Rs.43,649/­ and the tendered amount of Rs. 78,132/­. He has further deposed that the measurement book No. 5899 was issued for measurement of the work and the first and final bill for Rs.1,67,027/­ was submitted to the divisional office for passing the same by accused K.C.Wahi (since deceased). This witness has proved the conditions of the contract as Ex.PW3/A and the contract as Ex.PW3/B. The tender has been proved as Ex.PW3/C and the tender award letter has been proved as CBI Vs. K.C.Wahi (CC No. 09/2009) Page 60 of 80 Special Judge, CBI­01, Central, Delhi Ex.PW3/D. The schedule of quantity has been proved as Ex.PW3/E. The measurement book has been proved as Ex.PW3/F.

62. PW­3 Shri A.Vishwanathan has further deposed that the measurements were recorded by the accused A.R.Bhati, JE, in the measurement book No. 5899, Ex.PW.3/F, from page No. 128 and it also contains the signatures of co­accused K.C.Wahi (since deceased). He has further deposed that accused A.R.Bhati had allowed the first and final bill in favour of accused Khalil Ahmed for a sum of Rs.1,67,027/­ and the contractor had accepted the measurements.

63. PW­3 Shri A.Vishwanathan has further deposed that the scrutiny sheet for payment of first and final bill, Ex.PW.3/G, also bears the signatures of accused K.C.Wahi (Since deceased). This witness has further deposed that there was a deviation of about 140 % and the same was endorsed for approval by Shri CBI Vs. K.C.Wahi (CC No. 09/2009) Page 61 of 80 Special Judge, CBI­01, Central, Delhi R.S.Rawat (PW­21). He has further deposed that in the present case, the supervision to be done by the XEN was 10% and the supervision by the AE was 50% and the supervision by the accused A.R.Bhati, JE, was 100%.

64. PW­21 Shri Rajender Singh Rawat has also deposed in a similar manner and has also deposed about the process of opening of the tenders. He has further deposed that the tenders are opened in the presence of the contractor / tenderer and the AE and thereafter, the Sub­Divisional Clerk prepares a comparative statement, reflecting the rates quoted by the contractors. Then the comparative statement is marked to JE by the AE for preparation of the justification. If the lowest rate is within the justification, the AE would award the contract to the lowest bidder. He has further deposed that after the start of the work at the site, after issuance of the award letter, the responsibility to look after the site work is of the concerned JE and the AE.

CBI Vs. K.C.Wahi (CC No. 09/2009) Page 62 of 80 Special Judge, CBI­01, Central, Delhi

65. PW­21 Shri Rajender Singh Rawat has further deposed that after completion of the work, the bills from the sub­division comes to him and he checks the measurements from the measurement book and in case, there is any discrepancy, the same is brought to the notice of the Assistant Accounts Officer and thereafter, to the AE and the EE. He has further deposed that before checking the bill, he was to ensure that the AE had carried out the test check of more than 50% and the EE had carried out the test check of more than 10%. He has further deposed that the concerned ASW branch will also check the deviation statement enclosed with the bill and if the deviation statement is enclosed with the bill, then it should have prior permission of the EE, taken by the AE.

66. PW­21 Shri Rajender Singh Rawat has further deposed that in the present case, there was no test check by the EE, regarding the work for which, the bill was raised and there were deviations at the work and therefore, he raised the objections in the bill that CBI Vs. K.C.Wahi (CC No. 09/2009) Page 63 of 80 Special Judge, CBI­01, Central, Delhi there was no test check of the EE. He has further deposed that he made endorsement to the effect that, "EE test check required", and thereafter, the bill was put up before the EE Phool Singh, who also made an endorsement, "bill put up at site for test check". He has further deposed that the endorsement was also made by the EE Phool Singh that the deviation statement may be asked from the AE and thereafter, he made an endorsement that, "deviation statement attached" and after the objection, the bill was returned back to accused A.R.Bhati on 18.10.1997. He has further deposed that he checked the deviation statement Ex.P­1 (admitted document) and made an endorsement that the deviation is 140.29 % above and he made the said endorsement on 17.09.1997 and thereafter, he again put up the bill to the Executive Engineer. He has further deposed that on 17.10.1997, the Executive Engineer made an endorsement on the bill, "bill put up at site for test check".

67. PW­21 Shri Rajender Singh Rawat has further deposed that as CBI Vs. K.C.Wahi (CC No. 09/2009) Page 64 of 80 Special Judge, CBI­01, Central, Delhi per the directions of Phool Singh (EE), he checked the deviation statement and found that the deviation was to the tune of 140.29% above and after checking, he put up the seal of accused Phool Singh (EE) on the deviation statement. He has further deposed that in case of any deviation, prior permission of the EE is required by the AE and in case the prior approval is not taken, then the approval is required for passing of the bill. In this case, prior permission of the EE for deviation is not taken and the bill was also not passed.

68. PW­22 Shri Manindra Lal Roy, Assistant Engineer, CPWD, New Delhi, has also deposed that there are 3­4 sources for preparation of estimates for calling tender and the estimate is prepared by the JE in consultation and direction of the AE. After preparation of estimate by the JE, it is submitted to the Asstt. Engineer for his approval and after checking of 25% of the estimate, AE will technically sanction the estimate and the same is recorded in the technical sanction register. Thereafter, the AE CBI Vs. K.C.Wahi (CC No. 09/2009) Page 65 of 80 Special Judge, CBI­01, Central, Delhi directs the JE to prepare the schedule of work and quantity for calling the tender and an estimate file is maintained in the sub­ division. Thereafter, the AE directs the sub­divisional clerk to issue NIT (Notice Inviting Tender) and a copy of the same is sent to the divisional office for circulation. He has further stated that on the stipulated date, AE opens the tenders and the same are entered into a tender opening register and on the same day, all the earnest money has to be deposited in the office of the Executive Engineer. Thereafter, the AE directs the JE to prepare the justification of rates and also directs the sub­divisional clerk to prepare a comparative statement of the percentage rates of tenders and thereafter, the AE awards the work to the lowest tenderer, with proper reasons and he may also call the contractor for negotiation. Thereafter, the SDC prepares the award of work letter and the same is issued and signed by the AE.

69. PW­22 Shri Manindra Lal Roy has further deposed that JE is supposed to supervise the work, which is to be performed as per CBI Vs. K.C.Wahi (CC No. 09/2009) Page 66 of 80 Special Judge, CBI­01, Central, Delhi the specifications and the JE has to record the measurement of the work done and also to prepare the abstract of the cost, as per the directions of the AE and AE has to check 50% of the work done. The contractor has to sign the measurement book for acceptance of the bill and thereafter, the bill is sent to divisional office for pass and payment. The bill is to be forwarded by the JE and at the divisional office, the bill is checked by the auditor and the assistant accounts officer and thereafter, the Executive Engineer has to check the 10% of the work done.

70. Perusal of the record shows that the testimonies of the prosecution witnesses has established on record, beyond a shadow of doubt that accused A.R. Bhati , J.E., K.C. Wahi, A.E. (since deceased), have entered into a conspiracy with the contractor accused Khalil Ahmed (since deceased) to cheat the CPWD by abusing their official positions with the common object of the conspiracy to cause wrongful pecuniary loss to the CPWD and corresponding wrongful pecuniary gain / advantage to their CBI Vs. K.C.Wahi (CC No. 09/2009) Page 67 of 80 Special Judge, CBI­01, Central, Delhi co­accused Khalil Ahmed (contractor) (since deceased).

71. It has been held by the Hon'ble Supreme Court of India, in case titled as "K.R.Purushothaman Vs. State of Kerala", reported as (2005) 12 Supreme Court Cases 631, as under :

11. Section 120­A IPC defines "criminal conspiracy".

According to this Section when two or more persons agree to do, or cause to be done (i) an illegal act, or (ii) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. In Major E.G.Barsay V. State of Bombay Subba Rao J., speaking for the Court has said :(SCR p.228) "The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts."

12. In State V. Nalini it was observed by S.S.M. Quadri, J. at JT para 677: (SCC pp.568­69, para 662) "In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. CBI Vs. K.C.Wahi (CC No. 09/2009) Page 68 of 80 Special Judge, CBI­01, Central, Delhi Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus with the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences."

13. 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 take 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, CBI Vs. K.C.Wahi (CC No. 09/2009) Page 69 of 80 Special Judge, CBI­01, Central, Delhi 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. While appreciating the evidence of the conspiracy, it is incumbent on the court to keep in mind the well­known rule governing circumstantial evidence viz. each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. 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 and partly implied. Mere knowledge, even discussion, of the plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement.

14. Suspicion cannot take the place of legal proof and prosecution would be required to prove each and every circumstance in the chain of circumstances so as to complete the chain. It is true that in most of the cases, it is not possible to prove the agreement between the conspirators by direct evidence but the same can be CBI Vs. K.C.Wahi (CC No. 09/2009) Page 70 of 80 Special Judge, CBI­01, Central, Delhi inferred from the circumstances giving rise to conclusive or irresistible inference of an agreement between two or more persons to commit an offence. It is held in Noor Mohd. Mohd. Yusuf Momin V. State of Maharashtra, that:

(SCC pp.699­700, para 7) "[I]n most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material."

15. It is cumulative effect of the proved circumstances which should be taken into account in determining the guilt of the accused. Of course, each one of the circumstances should be proved beyond reasonable doubt. The acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. While speaking for the Bench it is held by P. Venkatarama Reddi, J. in State (NCT of Delhi) V. Navjot Sandhu (p.63) as follows: (SCC pp.691­92, para 103) "103. We do not think that the theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design even if such offences were ultimately committed by some of them, without the participation of others. We are of the view that those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal CBI Vs. K.C.Wahi (CC No. 09/2009) Page 71 of 80 Special Judge, CBI­01, Central, Delhi conspiracy; but, the non­participant conspirators cannot be found guilty of the offence or offences committed by the other conspirators. There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them. Criminal offences and punishments therefor are governed by the statute. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy or by extension of a common law principle.

(emphasis supplied by me)

72. In the present case, the prosecution witnesses examined by the CBI, during the trial, have proved, beyond a shadow of doubt that accused Khalil Ahmed (since deceased) had not performed the complete tendered work, which he was supposed to perform under the agreement No. 59/AE/4­P/97­98 and he replaced only 47 chokhats, instead of replacing a total of 164 chokhats. Accused A.R. Bhati, J.E., has also willfully and intentionally, in conspiracy with his co­accused, had made false entries in the measurement book No. 5899, Ex.PW3/F and the said false entries were also accepted by co­accused Khalil Ahmed (since CBI Vs. K.C.Wahi (CC No. 09/2009) Page 72 of 80 Special Judge, CBI­01, Central, Delhi deceased), as correct. Thereafter, the first and final bill Ex.PW3/H worth Rs.1,87,747/­, was prepared and was forwarded by accused A.R. Bhati, J.E., to his co­accused K.C. Wahi , A.E. (since deceased). Accused K.C. Wahi (since deceased) was required to check and verify the bills and the measurement books and was supposed to verify the 50% entries of the work done. But, he has also falsely verified these entries and forwarded the bill along with the other relevant documents and the measurement book to the Executive Engineer Phool Singh, through the divisional office, for passing and payment. Accused K.C. Wahi (since deceased) was further required to take the prior written permission of Executive Engineer Phool Singh, regarding the deviation of 140.29% in the first and final bill, before making verification and checking of the measurement book and the bill. But, no such procedure was adopted by accused K.C. Wahi (since deceased).

CBI Vs. K.C.Wahi (CC No. 09/2009) Page 73 of 80 Special Judge, CBI­01, Central, Delhi Sanction for Prosecution

73. During the final arguments, the Ld. Defence counsel has also objected to the validity of the sanction for prosecution of the accused A.R. Bhati, J.E. Perusal of the record shows that the prosecution has failed to examine the competent authority Sh. S.K. Singhal, Superintending Engineer, P.W.D., Circle­IV, New Delhi, who has granted the sanction for prosecution of the accused A.R. Bhati, J.E., under Section 19 of The Prevention of Corruption Act, 1988, for the offences punishable under Section 120­B, 420/511, 477­A, 201, 409 IPC and Section 13(2) read with Section 13 (1)(d) of The Prevention of Corruption Act, 1988, vide his sanction order Ex.PW.42/A, as Sh. S.K. Singhal was reported to have already expired. However, the prosecution has examined PW­42 Smt. Gandhimati Natrajan, UDC, to prove the signatures of Sh. S.K. Singhal, S.E., on the sanction order Ex.PW42/A, as she had worked with Sh. S.K. Singhal, S.E., for about four years and has accordingly identified his signatures. CBI Vs. K.C.Wahi (CC No. 09/2009) Page 74 of 80 Special Judge, CBI­01, Central, Delhi

74. In case titled as, "State of Maharashtra through CBI vs. Mahesh G. Jain" (Supra), it has been held by the Hon'ble Supreme Court of India, as under :

9. In "C.S. Krishnamurthy vs. State of Karnataka", it has been held as follows: ­ "....... sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself then the satisfaction of the sanctioning authority is apparent by reading the order."

10. In R. Sundarajan vs. State by DSP, SPE, CBI, Chennai, while dealing with the validity of the order of sanction, the two learned judges have expressed thus:­ "it may be mentioned that we cannot look into the adequacy or inadequacy of the material before the sanctioning authority and we cannot sit as a court of appeal over the sanction order. The order granting sanction shows that all the available materials were placed before the sanctioning authority who considered the same in great detail. Only because some of the said materials could not be proved, the same by itself, in our opinion, would not vitiate the order of sanction. In fact in this case there was abundant material before the sanctioning authority, and hence we do not agree that the sanction order was in any way vitiated."

11. In State of Karnataka vs. Ameerjan, it has been opined that an order of sanction should not be construed in CBI Vs. K.C.Wahi (CC No. 09/2009) Page 75 of 80 Special Judge, CBI­01, Central, Delhi a pedantic manner. But, it is also well settled that the purpose for which an order of sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning authority is the best person to judge as to whether the public servant concerned should receive the protection under the Act by refusing to accord sanction for his prosecution or not.

12. In Kootha Perumal vs. State through Inspector of Police, Vigilance and Anti­Corruption, it has been opined that the sanctioning authority when grants of sanction on an examination of the statements of the witnesses as also the material on record, it can safely be concluded that the sanctioning authority has duly recorded its satisfaction and, therefore, the sanction order is valid.

13. From the aforesaid authorities the following principles can be culled out:­

(a) It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.

(b) The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution.

(c) The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him.

                              d)    Grant   of   sanction   is   only   an   administrative  


CBI  Vs. K.C.Wahi (CC No. 09/2009)      Page  76   of  80                         Special Judge, CBI­01, Central, Delhi 

function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.

(e) The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.

(f) If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction.

(g) The order of sanction is a pre­requisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigants,but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be hyper­technical approach to test its validity.

(emphasis supplied by me)

75. It was further held by the Hon'ble Supreme Court, in the said case, as under :

16. Presently, we shall proceed to deal with the contents of the sanction order. The sanctioning authority has referred to the demand of the gratification for handing over TDS certificate in Form 16A of the Income­ Tax Act, the acceptance of illegal gratification by the accused before the panch witnesses and how the accused was caught red handed. That apart, as the order would reveal, he has fully examined the material CBI Vs. K.C.Wahi (CC No. 09/2009) Page 77 of 80 Special Judge, CBI­01, Central, Delhi documents, namely, the FIR, CFSL report and other relevant documents placed in regard to the allegations and the statements of witnesses recorded under Section 161 of the Code and, thereafter, being satisfied he has passed the order of sanction. 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 hyper­technical 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 filmsy 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.

(emphasis supplied by me)

76. Perusal of the sanction order Ex.PW42/A shows that while CBI Vs. K.C.Wahi (CC No. 09/2009) Page 78 of 80 Special Judge, CBI­01, Central, Delhi granting the sanction for prosecution, Sh.S.K. Singhal, S.E., had perused the FIR, the CBI report, statements of the witnesses and other related material on record and has also considered the facts and circumstances of the present case, against the accused A.R. Bhati, J.E. The sanction order Ex.PW42/A clearly indicates that the competent authority had gone through the entire relevant documents and has considered all the relevant facts and circumstances of the case and has applied his mind before granting sanction for prosecution of accused A.R. Bhati, J.E., in the present case. Therefore, in the considered opinion of this court, the sanction order Ex.PW42/A cannot be said to be suffering from any infirmity and it cannot be said that the sanction for prosecution of accused A.R. Bhati, J.E., was granted by the competent authority in a mechanical manner, without application of mind.

77. In view of above discussions, I am of the considered opinion that the prosecution has successfully proved its case, against the CBI Vs. K.C.Wahi (CC No. 09/2009) Page 79 of 80 Special Judge, CBI­01, Central, Delhi accused A.R.Bhati, J.E., beyond a shadow of doubt, for the offences punishable under Section 120­B, read with Section 477­ A/420/511 IPC and Section 13 (2) read with Section 13 (1) (d) of The Prevention of Corruption Act, 1988. The prosecution has also succeeded in proving its case against him, beyond a shadow of doubt, for the substantive offences punishable under Section 477­A IPC, Section 420/511 IPC and the offence punishable under Section 13 (2), read with Section 13 (1)(d) of The Prevention of Corruption Act, 1988. The accused A.R.Bhati, J.E., is accordingly held guilty and convicted for the said offences. It is ordered accordingly.

Announced in open Court on 24 day of February, 2016 th BRIJESH KUMAR GARG Special Judge:CBI­01 Central District. Delhi CBI Vs. K.C.Wahi (CC No. 09/2009) Page 80 of 80 Special Judge, CBI­01, Central, Delhi