Delhi District Court
Cbi vs . 1) Phool Singh S/O Late Sh. Sugan Singh on 27 October, 2016
IN THE COURT OF SH. BRIJESH KUMAR GARG
SPECIAL JUDGE:CBI01: CENTRAL: TIS HAZARI, DELHI
Case Registration No. 532292/2016
CC No. : 08/09
Case ID : 02401R0171812000
RC : 78(A)/1997
PS : CBI/ACB/New Delhi
U/s: Section 120 B IPC,
r/w Sec. 409, 420, 477A, 511
IPC and Sec. 13(2)
r/w Sec. 13 (1) (d) of
The Prevention of Corruption
Act 1988.
CBI Vs. 1) Phool Singh S/o Late Sh. Sugan Singh
r/o House No. 138, Ward No. 10,
Barh Mohalla, Old Faridabad, Haryana.
2) A.R.Bhati S/o Sh. P.B. Bhati,
r/o B20, Vivek Vihar, PhaseII,
Delhi110095.
3)Bhupesh Karir s/o Late Krishan Kumar Karir,
r/o C43, Panchsheel Enclave,
New Delhi.
4) Sanjay Kumar Malhotra S/o Sh. J.L. Malhotra
r/o D1/21, Lodhi Colony,
New Delhi110003.
Date of Institution : 23.06.2000
Judgment Reserved on : 19.10.2016
Judgment Delivered on : 27.10.2016
CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 1 of 92 Special Judge, CBI01, Central, Delhi
J U D G M E N T
1. In the present case, accused Phool Singh, K.C. Wahi,
A.R.Bhati, Sanjay Kumar Malhotra and Bhupesh Karir were sent
up for trial for the offences Under Section 120B, 420, 477A,
420/511 IPC and Section 13(2) r/w Section 13 (1)(d) of The
Prevention of Corruption Act, 1988.
FACTS OF THE CASE
2. It has been stated in the charge sheet that the present case was registered on 20.10.97 on the written complaint of Inspector P. Balachandran, wherein, it was alleged that on the basis of relied information regarding malpractices by the CPWD officials at Sriniwaspuri, relating to replacement of manhole covers in H Block of Sriniwaspuri, a surprise check was conducted on 14.10.97 and the relevant documents, such as measurement book, agreement papers and contractor's bill were taken into possession. As per the original agreement No. 60/AE/4P/9798, the work of providing and fixing 90 PFRC rectangular manhole covers of size 670x520 mm was awarded to contractor Bhupesh Karir on 01.09.97, for an amount of Rs.54,000/ @Rs.600/ per CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 2 of 92 Special Judge, CBI01, Central, Delhi piece. As per the measurement book No. 5904, issued to A.R. Bhati, J.E., 282 Nos. manhole covers were replaced in Nehru Nagar and HBlock of Sriniwaspuri, out of which 200 Nos. were installed alone in HBlock. As per the completion certificate, the work was completed on 29.09.97 and was countersigned by the then A.E. Sh. K.C. Wahi. On 29.09.97, the first and final bill of the contractor for Rs.1,85,274/ was submitted to the division office for pass and payment along with the test check statement, deviation statement and recovery statement, which had been certified and signed by Sh. A.R. Bhati, J.E. and countersigned by Sh. K.C. Wahi, A.E. The deviation from the original estimate of this work, in first and final bill is more than 300%. The bill was pending for payment.
3. It was further stated in the complaint that on conducting physical verification, it was found that not even a single manhole cover was replaced in HBlock of Sriniwaspuri, whereas, 172 manhole covers were claimed to have been replaced in the said block, as per measurement book and the bills. An observation memo was also prepared about the physical verification.
4. It is further stated in the chargesheet that the investigations CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 3 of 92 Special Judge, CBI01, Central, Delhi have revealed that there were several subdivisions under CPWD and each subdivision functions under the direct control of the A.E.. If he desires, to get the CPWD work executed through contractor, he has the power to award the contract upto an amount of Rs.60,000/. Before inviting tenders, there must be a need and demand, which can be by three sources or modes, viz,
a) The demand may come from the side of the allottee of the quarter or through residents' association;
b) The demand may be ascertained through the complaint register which is kept in the Enquiry Office where in each and every allottee is authorized to make complaint about the requirement;
c) By inspection by superior officers of the CPWD who, on inspection, find defect in the maintenance of quarters and order the same.
5. 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 actually any demand for the replacement of damaged manhole covers.
6. It is further stated in the charge sheet that as per rules, when CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 4 of 92 Special Judge, CBI01, Central, Delhi the necessity arises about execution of any work, J.E. is supposed to prepare "work estimate" and place it before the A.E., for approval and as per CPWD Manual, the prepared estimate should be checked by A.E. / E.E. to the extent of 25% & 5% respectively. But, in the present case, no estimate was prepared. Even the estimate register was not available in the office. As per rules, A.E. was required to check 25% of the estimate and record technical sanction. But, no record was available. After recording technical sanction, an entry is to be made in the technical sanction register and thereafter, notice inviting tender (NIT) was to be prepared in the office of the A.E.
7. It is further stated in the chargesheet that accused A.R. Bhati , J.E., directly prepared the schedule of quantity and placed before A.E., K.C. Wahi, who in turn, directed Sh. Ghamandi Lal, SDC, to issue PWD6 for the work S/R to 648 HType Quaters of Sriniwaspuri, during the year 199798 (SH; improvement of manhole conditions). In the schedule of quantity, accused A.R. Bhati, J.E. had mentioned under the heading, description of items at S.No. 1, "providing and fixing of PFRC, rectangular manhole covers size 670x520 mm, as per directions of Engineer Incharge".
CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 5 of 92 Special Judge, CBI01, Central, Delhi
8. It is further stated in the charge sheet that four tenders were sold on 01.9.97 out of which three tenders were submitted and the tenders were returned on 04.09.97 and Sh. Ghamandi Lal prepared the comparative statement and accused A.R. Bhati, prepared the justification statement. The tender of accused Bhupesh Karir, contractor, was lowest as he had submitted the tender @ 9.50% above the estimated cost. On the basis of justification statement prepared by A.R. Bhati @ 11.10% above the estimated cost, the tender of accused Bhupesh karir was accepted and he was awarded the contract on 05.09.97, vide letter No. 17/AE/4P/9798/215 dated 05.09.97 and the same was issued by K.C. Wahi, A.E. Thereafter, the agreement was executed between A.E., K.C. Wahi and Bhupesh Karir. As per the agreement, the work was to start on 15.09.97 and was to be completed on 04.10.97 with estimated cost of Rs.54,000/ and tender amount of Rs.59,130/.
9. It is further stated in the charge sheet that accused A.R. Bhati, J.E. made entries in measurement book No. 5335 and the first running account bill dated 16.09.97 for providing 260 nos of PFRC rectangular manhole covers, for an amount of Rs.1,54,225/ was sent to divisional office for pass and payment CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 6 of 92 Special Judge, CBI01, Central, Delhi and accused Bhupesh Karir accepted the bill and measurement by making an endorsement in the measurement book. But, this bill was not passed and no payment was made to him. As such, accused A.R. Bhati, J.E., cancelled the bill in measurement book No. 5335, without mentioning any cause.
10. It is further stated in the charge sheet that a fresh first and final bill was prepared and sent to the division office on 29.09.97 and entries relating to this bill were made in measurement book No. 5904 and in this bill, fixing of 282 manhole covers had been shown, but, as per the agreement only 90 manhole covers were to be provided. Therefore, there was a deviation of 214.44%. A completion certificate was given on 29.09.97, in the measurement book and a bill of Rs.1,85,274/ was prepared and submitted to the divisional office for payment of Rs.1,75,153/ (Rs.185274 minus recoveries of Rs.10,121/) . But, no payment was made.
11. It is further stated in the charge sheet that Sh. T.K. Mazumdar, E.E. and S.K. Bansal, A.E., from CPWD Vigilance Department were deputed by S.E. (Vigilance), vide letter dated 23.10.97 to evaluate and inspect the relevant work, claimed to have been carried out by the contractor in the bills and the measurement CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 7 of 92 Special Judge, CBI01, Central, Delhi books and to submit the inspection report. In the inspection report, it was mentioned that in actual, 64 numbers manhole covers of size 670x520 mm were found at Nehru Nagar BBlock, placed loosely over small size SW drains, instead of any manhole. No manhole cover was found at any other place. For covering the SW drains, covers of less cost were required, whereas, the manhole covers were exclusively meant for covering the manholes.
12. It is further stated in the charge sheet that on 02.08.97 accused A.R. Bhati, submitted a schedule of quantity for the work S/R to CGHS Dispensary and Maternity Centre and 648 HType Quarters at Sriniwaspuri during 199798 (SH; P/F of PFRC rectangular manhole covers) and on the same day, accused K.C. Wahi called spot quotations for the said work. As per this schedule of quantity, 150 number of PFRC rectangular manhole covers of size 670x520 mm were to be provided.
13. It is further stated in the charge sheet that in pursuance to the spot quotations, three quotations were received and SDC Ghamandi Lal again prepared the comparative statement and the rates quoted by accused Sanjay Kumar Malhotra were the lowest CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 8 of 92 Special Judge, CBI01, Central, Delhi i.e. at 10.33 % above the estimated rates. Thereafter, A.R. Bhati prepared the justification statement @ 20.36% above the estimated rates and after negotiations, work order was issued on the negotiated rates of 9.95% above to accused Sanjay Kumar Malhotra on 04.08.97, vide work order No. 9/EE/P Division/9798 dated 05.08.97.
14. It is further stated in the charge sheet that accused A.R. Bhati made entries in measurement book No. 5633 on 12.08.97 and accordingly, first running account bill of Rs.96,167/ was sent to the divisional office and accused Sanjay Kumar Malhotra, accepted the bill and measurement in writing. The first running bill dated 12.08.97 of Rs.96,167/ was passed and its payment was made vide cheque No. 94020 dated 12.08.97.
15. It is further stated in the charge sheet that the second and final bill was prepared by accused A.R. Bhati on the basis of entries made in measurement book No. 5633, wherein, accused Sanjay Kumar Malhotra made endorsement of acceptance of measurement. Accused A.R. Bhati gave completion certificate on 22.08.97 and a final bill of Rs.809/ was sent to the divisional office by accused K.C. Wahi, but the payment was not made.
CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 9 of 92 Special Judge, CBI01, Central, Delhi
16. It is further stated in the charge sheet that during the period w.e.f. 02.08.97 to 29.09.97, a total of 282 manhole covers were claimed to have been fixed at various places under the CPWD 4P SubDivision Sriniwaspuri, but, on physical verification and inspection done by CPWD (Vigilance), only 64 manhole covers were found on site. Therefore, the investigations had revealed that all the accused persons had conspired together to cheat the CPWD.
17. It is further stated in the charge sheet that during investigations, five photographs were recovered from the table drawer of accused A.R. Bhati, which shows that the accused A.R.Bhati, Phool Singh and Sanjay Kumar Malhotra had gone to Shimla together on a pleasure trip, which establishes their closeness and intimacy. The CBI has alleged commission of offences punishable under Sections 120B, 420, 477A, 420/511 IPC and under Section 13 (2) read with Section 13 (1)(d) of The Prevention of Corruption Act, by the accused persons.
CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 10 of 92 Special Judge, CBI01, Central, Delhi CHARGE
18. On 16.09.2005, the order on charge was passed by Sh.
Dinesh Dayal, Special Judge, CBI, the Ld. Predecessor of this Court and in pursuance to the said order, the charge for the offence punishable under Section 120B IPC read with Section 420, 477A, 420/511 IPC and Section 13 (2) read with Section 13(1)(d) of The Prevention of Corruption Act, 1988, was framed against all the accused persons, on 16.12.2005. Additional charges for the substantive offences punishable under Section 477A, 420 & 511 r/w 420 IPC and the offence punishable under Section 13(2) r/w Section 13(1) (d) of the P.C. Act, 1988, were also framed against the accused Phool Singh, A.R. Bhati and K.C. Wahi. The charges for the substantive offences punishable under Section 420 and 511 read with Section 420 IPC were also framed against accused Sanjay Kumar Malhotra and Bhupesh Karir. All the accused pleaded not guilty, for all the charges and claimed trial.
19. It is pertinent to mention here that during the trial, accused K.C. Wahi, A.E., had expired and therefore, the proceedings against him were dropped since abated, vide order, dated 19.11.2013.
CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 11 of 92 Special Judge, CBI01, Central, Delhi PROSECUTION EVIDENCE
20. During the course of trial, the prosecution has examined the following witnesses, namely:
I) PW1 Sh. A. Vishwanathan, who was working as Assistant Accounts Officer in CPWD, PDivision, during the period w.e.f.
June 1996 to 1999. He was entrusted with the duty to check the bills submitted by the contractor, which came to the account branch of the division, along with the other documents, for payment of the bill amount to the contractor. He used to check the bills in respect to the test checkings by the A.E/E.E, theoretical calculation statements, part rate statements, recovery statements, measurement books etc. He was required to point out the short comings in the bill and the documents, if any, and to put the bills before the Executive Engineer.
ii) PW2 Sh. T.K. Majumdar, who was working as Executive Engineer in Vigilance Department of CPWD at its Headquarter, in October 1997. He was deputed by his office to inspect and check the work done at HType Quarters at Sriniwas Puri and Nehru Nagar, along with the CBI team. After checking of the quarters, regarding the execution of work, he submitted his report Ex.PW2/A. CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 12 of 92 Special Judge, CBI01, Central, Delhi
iii) PW3 Inspector C.K. Sharma, ACB Branch of CBI, Delhi, who accompanied complainant, Inspector P. Balachandran and other officials of the CBI and independent witnesses, for the purpose of surprise check of sites at Sriniwas Puri Sub Division of CPWD, on 10.10.97, 13.10.97 & 14.10.97.
iv) PW4 SI D.K. Singh, who was posted as Inspector CBI, ACB, New Delhi, in the year 1997. He is the investigating officer of the present case. He has also obtained the sanction orders Ex.PW4/R & Ex.PW6/A under Section 19 of The Prevention of Corruption Act, 1988, regarding prosecution of accused A.R. Bhati, J.E., and Phool Singh, E.E., from the competent authority.
v) PW5 Sh. Rajendra Kumar, who was posted as Officer, Oriental Bank of Commerce, Noida, UP. He handed over the documents pertaining to account No. 300965 of accused Sanjay Kumar to the IO, vide seizure memo Ex.PW.4/P.
vi) PW6 Sh. Munish Girdhar, who was posted as Under Secretary to the Government of India, Ministry of Urban Development, New Delhi, in the year 2000. He has conveyed the sanction for prosecution of accused Phool Singh, Executive Engineer, CPWD, on behalf of the Hon'ble President of India, vide sanction order, dated 03.02.2000, Ex.PW6/A.
vii) PW7 Sh. Jagmohan Singh Aswal, a resident of quarter CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 13 of 92 Special Judge, CBI01, Central, Delhi No. H385, Sriniwaspuri, New Delhi, who was working as Joint Secretary of "Sudhar Samiti" of HBlock Sriniwas Puri, during the period w.e.f. 1995 to 1997. He has deposed that neither he nor any governing member of the Sudhar Samiti had sent any request letter to CPWD regarding the replacement of manhole covers.
viii) PW8 Sh. Govind Ram Sharma, who was posted as telegraph master (operative) in the office of C.T.O., New Delhi. He accompanied the CBI officials to Sriniwas Puri SubDivision of CPWD, for conducting the surprise checks on 10.10.1997, 13.10.1997 & 14.10.1997.
ix) PW9 Sh. Rajender Krishan, who was posted as Telegraphman (indoor), Central Telegraph Office, Janpath, Connaught Place, New Delhi. He was also a member of the CBI team, which conducted the physical verification of work at Htype quarters at Sriniwaspuri, on 10.10.97, 13.10.97 & 14.10.97.
x) PW10 Sh. Manindra Lal Roy. He was working as Assistant Engineer in CPWD sub division 3P, at Andrews Ganj Extension, in the year 1997. He was also given the additional charge of sub division 4P Sriniwaspuri, at that time. He has also deposed about the procedure of preparation of the estimates of the repair work and the process of calling of the tenders.
CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 14 of 92 Special Judge, CBI01, Central, Delhi
xi) PW11 Sh. Rajender Singh Rawat. In the year 1998, he was posted as Executive, Planning & Administration in CPWD, New Delhi. This witness has also deposed about the procedure for award of the maintenance work to the contractors. He has also checked the first running bill Ex.PW1/X and the relevant annexures and documents, attached with the bills. He has categorically stated that the bill Ex.PW.1/X was prepared on the basis of abstract of work recorded in the measurement book and an amount of Rs.96,167/ was paid against first running bill, vide cheque No. 94020 dated 12.08.97 to accused Sanjay Kumar Malhotra .
xii) PW12 Sh. Rajender Kumar, who was working as reception clerk in Hotel Gulmarg, Distt. Mandi, Himachal Pradesh. He has deposed that as per their guest register, one S.K. Malhotra along with three other persons, stayed in their hotel on 24.08.97 and 25.08.97.
xiii) PW13 Sh. Kripal Singh, who was posted as Asstt. Engineer in 4P Subdivision of CPWD at Sriniwaspuri, New Delhi in December, 1997. He has also deposed about the procedure of the tender process. He had supplied various documents to the I.O., Inspector D.K. Singh, during the investigations.
xiv) PW14 Sh. P. Balchandran, DSP, EOUI, CBI, Delhi, who is CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 15 of 92 Special Judge, CBI01, Central, Delhi the complainant of the present case. He conducted surprise check and observation at Sriniwaspuri SubDivision of CPWD, on 10.10.1997, 13.10.1997 & 14.10.1997, along with Inspector C.K. Sharma, SI Brajesh Kumar and other staff members. He randomly checked works related to the replacement of manhole covers and observed that replacement work of the manholes was not executed. He seized the relevant files and the measurement book and verified the measurement book from the actual work done at the site and lodged the complaint Ex.PW3/D, to the then S.P. CBI, on the basis of which, FIR Ex.PW3/E was got registered by Sh. N.N. Singh, the then SP, CBI, ACB, Delhi.
xv) PW15 Sh. S.K.Bansal, who was posted as Asstt. Engineer, Vigilance Branch, CPWD, Head Quarter, New Delhi. He has also deposed about the procedure of awarding a tender to a contractor at Subdivision level. He has also assisted PW2 T.K.Mazumdar, during inspection / checking of work on 05.11.97. xvi) PW16 Sh. Sukan Pal Singh Verma, who was posted as Assistant Surveyor of work in PDivision at Sadiq Nagar office of CPWD, during the period w.e.f., the year 1991 to 1999. He was required to check / calculate the estimate and the deviation statements of the sub divisional office, which were marked to him by the Executive Engineer of the Division.
CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 16 of 92 Special Judge, CBI01, Central, Delhi xvii) PW17 Sh. N.C.Kapoor, who was also a contractor for CPWD. He has identified the signatures of accused K.C.Wahi (since deceased), on the tender opening register Ex.PW.1/C. xviii) PW18 Sh. G.G.Garg, who was posted as Executive Engineer in Delhi Central CircleV, East BlockIV, R.K. Puram, Sector1, New Delhi, in August, 1997. He has deposed that on 23.08.97 he along with accused Phool Singh and two other persons, visited Shimla.
xix) PW19 Dr. S.C.Mittal, who was Principal Scientific Officer & Dy. DirectorcumAssistant Chemical Examiner, CFSL/CBI, New Delhi. He has compared the handwriting and signatures of the accused persons with the questioned bills and documents and has proved his report as Ex.PW19/A. This report was forwarded by him to SP, ACB, CBI, vide letter dated 05.08.1999 Ex.PW.19/A1.
xx) PW20 Sh. S.K.Gupta, who was posted as JE, CPWD in 4P, SubDivision, Sriniwaspuri, New Delhi. He has witnessed the office search of the office of subdivisional clerk Ghamandi Lal, SDC, on 16.10.97. He has proved the search / seizure memo as Ex.PW10/A and the receipt memo as Ex.PW14/B. xxi) PW21 Sh. N.K.Jain, who was posted as Jr. Engineer in CBI, ACB, New Delhi, in the year 1997. He also accompanied CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 17 of 92 Special Judge, CBI01, Central, Delhi the CBI team during the surprise check of the work pertaining to replacement of WC pans, SW pipes and manhole covers, at Sriniwaspuri, New Delhi, on 10.10.97, 13.10.97 & 14.10.1997. xxii) PW22 Sh. S.K.Bhowmik, who was the resident of house No. B4/86, Nehru Nagar, Delhi. He has deposed that he did not notice any open manhole in the vicinity of his flat. xxiii) PW23 Smt. Shyama Devi, who was the resident of house No. B1/19, Nehru Nagar, Delhi. She has deposed that some cemented manhole covers were lying in the area and some repair work was carried out.
xxiv) PW24 Sh. B.R.Sharma, a resident of quarter No. H511, Sriniwaspuri, New Delhi, who was working as Secretary of "Sudhar Samiti" of HBlock Sriniwas Puri, during the period w.e.f. 1995 to 1997. He has deposed that he never wrote any letter to the JE or AE of CPWD, regarding the replacement of the manhole covers.
xxv) PW25 Dr. Rajender Singh, Director CFSL, New Delhi. He has examined the various documents and has compared the handwritings of the accused, in the said documents, with their specimen handwritings and signatures. He has proved his report as Ex.PW.25/A. xxvi) PW26 Sh. Virender Thakran, who was posted as CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 18 of 92 Special Judge, CBI01, Central, Delhi Inspector, CBI, ACB, New Delhi. He also accompanied the complainant, Inspector P. Balachandran, along with other officials, for conducting the surprise check, CPWD subdivision office at Sriniwaspuri, New Delhi, on 10.10.97. xxvii) PW27 Sh. Rajesh Kumar Prasad, SubInspector, ACB, CBI, New Delhi. He was also a member of the CBI team, which conducted surprise check at Sriniwaspuri, New Delhi, on 10.10.97 & 13.10.97.
xxviii) PW28 Sh. Brajesh Kumar, who was posted as sub inspector, ACB, CBI, New Delhi, in the year 199798. He was also a member of the CBI team, which conducted the surprise check and physical verification of Htype quarters at Sriniwaspuri, on 13.10.1997.
xxix) PW29 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.PW4/R. xxx) PW30 Sh. N.N.Singh, Superintendent of Police, Anti Corruption Branch, CBI, New Delhi, who got the FIR, Ex.PW3/E, registered on the complaint of Inspector P. Balachandran, on 20.10.1997. He has also proved his letter dated 22.10.97, as CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 19 of 92 Special Judge, CBI01, Central, Delhi Ex.PW4/A, vide which he requested Sh. K.K.Verma, Chief Engineer (Vigilance), CPWD Head Quarters, Nirman Bhawan, New Delhi, to constitute a team of technical officers to inspect and evaluate the relevant tendered work and to submit a technical report.
DEFENCE OF THE ACCUSED PERSONS
21. After completion of the prosecution evidence, the statements of the accused persons were recorded, u/s 313 Cr.P.C., wherein, all the four accused have denied all the incriminating evidence against them and have deposed that they are innocent and have been falsely implicated in this case.
22. Accused Phool Singh, in his statement, u/s 313 Cr.P.C., has stated that he is innocent and he has been falsely implicated in this case. He has also stated that he did not conduct any test check in respect of the work of the contractor Bhupesh Karir, nor his bill was ever presented before him. He has not examined any witness in his defence, despite opportunity.
23. Accused A.R. Bhati, in his statement, u/s 313 Cr.P.C., has stated that he is innocent and has been falsely implicated in this CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 20 of 92 Special Judge, CBI01, Central, Delhi case. He has also stated that he got the work done at site 100% as per the directions of Engineerincharge (AE/EE) / his superiors and they had also physically checked the work done 100% at site of work carried out by the contractor. He had withdrawn the contractor's proposed bills on 09.10.97, much prior to the surprise check by the CBI, for the purposes of rechecking of the work done by the contractor. Even his Engineerincharge / superior forwarded the contractor's bills for pass and payment. Since the proposed bill had never been sent to the account branch again, there was no question of verification of the contractor's bills for payment. The proposed bills were under re checking stage at his level. He had no power to pass or reject the contractor's bills as per CPWD manual Vol. I, appendix XXVI (duties of JE). He has also stated that there is no 'B' Block at Nehru Nagar or HBlock in Sriniwaspuri, where inspection was alleged to have been carried. He has further stated that the reports have been prepared without any basis, under pressure of CBI, in office itself. Accused A.R. Bhati has not examined any witness in his defence, despite opportunity.
24. Accused Sanjay Kumar Malhotra, in his statement, u/s 313 Cr.P.C., has also stated that he is innocent and has been falsely CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 21 of 92 Special Judge, CBI01, Central, Delhi implicated in this case. He has further stated that his work regarding the contract was not checked by the CBI and no witness has deposed against him. He has also not examined any witness in his defence, despite opportunity.
25. Accused Bhupesh Karir, in his statement, u/s 313 Cr.P.C., has also stated that he is innocent and has been falsely implicated by the CBI. He has also not examined any witness in his defence, despite opportunity.
26. After completion of trial, final arguments were addressed by Shri Praneet Sharma, Ld. Sr. PP for the CBI; Shri Y.K.Kahol, Advocate, for accused A.R. Bhati; Sh. Dinesh Parashar, Advocate, for accused Phool Singh and Bhupesh Karir; and Sh. Amit Goel, Advocate, for accused Sanjay Kumar Malhotra, at length. Sh. Amit Goel, Advocate, has also submitted the written arguments.
ARGUMENTS ON BEHALF OF THE CBI / PROSECUTION
27. It has been argued by Shri Praneet Sharma, Ld. Sr. PP for the CBI that the prosecution has successfully proved its case against all the accused persons. He has argued that the work for CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 22 of 92 Special Judge, CBI01, Central, Delhi replacement of 90 manhole covers in Htype quarters, at Sriniwaspuri, was awarded to accused Bhupesh Karir, for an amount of Rs.59,130/, in violation of the rules and procedure, as mentioned in the CPWD manual, in respect of which agreement No. 60/AE/4P/9798, Ex.PW1/N (D70) was executed and award letter Ex.PW1/P dated 05.09.97, was issued. Both these documents have been admitted by the accused persons, during the trial.
28. The Ld. Sr. PP has further argued that the tender was awarded to accused Bhupesh Karir without following the due procedure, as prescribed under the CPWD manual, as no estimate was prepared regarding the award of tender. He has further argued that there was no requirement for any repair work or replacement of the manhole covers at any place under the P Division Sriniwaspuri, but, still the process for replacement of the manhole covers was started by accused K.C.Wahi, A.E. (since deceased). He has further argued that no technical sanction was obtained from the competent authority, prior to the start of the process and no "N.I.T." (Notice Inviting Tender) was ever issued. He has further argued that the PWD FormVI was directly issued, without inviting any NIT and no approval of any deviation was CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 23 of 92 Special Judge, CBI01, Central, Delhi taken from the competent authority, i.e. the Executive Engineer in the present case.
29. The Ld. Sr. PP has further argued that a source information was received by PW14 DSP P.Balachandran, regarding non execution of work, with respect to the replacement of manhole covers, at Sriniwaspuri Subdivision of CPWD, on which, he conducted surprise check and observation of the alleged tendered work on 10.10.1997, 13.10.1997 and 14.10.1997 and found that the work was not done completely. Thereafter, he lodged the complaint Ex.PW3/D, in this regard, with his the then SP CBI Sh. N.N. Singh, on the basis of which, FIR Ex.PW3/E, was registered.
30. The Ld. Sr. PP has further argued that the Measurement Book No. 5904 (D62) Ex.PW.1/Q and Measurement Book No. 5335 (D65) Ex.PW.1/R were issued to accused A.R. Bhati, J.E., through coaccused K.C. Wahi, A.E. (since deceased), and he made false entries in the measurement books, regarding the replacement of manhole covers, pertaining to the tendered work and the same were checked and verified by coaccused K.C. Wahi, Asstt. Engineer, and were forwarded to coaccused Phool CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 24 of 92 Special Judge, CBI01, Central, Delhi Singh, E.E., along with the first running account bill for Rs.1,63,703/ Ex.PW.1/G (D27) for checking and passing, on 16.09.1997. But, the said bill was withdrawn and the payment was not made to accused Bhupesh Karir. Thereafter, on 29.09.1997, a fresh first and final bill for Rs.1,85,274/ Ex.PW.1/J (D28) was forwarded to accused Phool Singh, E.E., for passing and payment. But, the payment of the said bill was also not released to accused Bhupesh Karir.
31. The Ld. Sr. PP for the CBI has further argued that accused Bhupesh Karir had not performed the tendered work and during the pendency of the work, a spot quotation was called by accused K.C.Wahi, A.E. (since deceased) and vide spot quotation dated 02.08.1997, Ex.PW.1/R, a part of the work was also awarded to accused Sanjay Kumar Malhotra, without following the procedure, as prescribed under the CPWD manual.
32. The Ld. Sr. PP for the CBI has further argued that accused Sanjay Kumar Malhotra raised the first running bill dated 12.08.1997 for a sum of Rs.96,167/, Ex.PW.1/X and the payment of the said amount was made to him vide cheque No. 94020, dated 12.08.1997. He has clarified that a total amount of CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 25 of 92 Special Judge, CBI01, Central, Delhi Rs.1,90,368/ was paid to accused Sanjay Kumar Malhotra vide cheque No. 94020 dated 12.08.1997, which included an amount of Rs.96,167/, pertaining to the present case and an amount of Rs.94,201/ pertaining to the other tendered work. The copy of the cash book (receipt side) (D59) had been admitted by the accused persons during the trial and the same has been placed on record as Ex.P25. The entries bearing No. 84 & 85 on page 2 of the cash book Ex.P25 (admitted document) clarifies this position. He has further argued that the cheque No. 94020, dated 12.08.1997 was duly deposited in the savings account of accused Sanjay Kumar Malhotra and was duly cleared on 18.08.1997. The statement of account has been proved on record as Ex.PW.5/B.
33. The Ld. Sr. PP has further argued that the accused Sanjay Kumar Malhotra raised the second and final bill dated 22.08.97, for Rs.809/ and submitted the same for passing and payment. But, the payment of the said bill was not released to him.
34. The Ld. Sr. PP has further argued that after registration of the FIR, the investigation was marked to PW4 SubInspector D.K.Singh. Vide letter dated 22.10.1997, Ex.PW.4/A, CPWD was CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 26 of 92 Special Judge, CBI01, Central, Delhi requested to constitute a vigilance team for physical verification of the work. Thereafter, PW2 T.K.Majumdar & PW15 S.K. Bansal were deputed to inspect and check the tendered work at Htype quarters at Sriniwaspuri and Nehru Nagar, alongwith the CBI team. They conducted the physical verification of the sites and submitted their report Ex.PW.2/A. As per this report, only 64 numbers new manhole covers were found replaced at Nehru Nagar, BBlock and no manhole cover was found replaced at other places. But, the total quantity of 282 numbers of manhole covers were recorded in Measurement Book No. 5904.
35. The Ld. Sr. PP for the CBI has further argued that the contractor, accused Bhupesh Karir has replaced only 64 manhole covers instead of 282 manhole covers. But, the first running bill for Rs.1,63,703/, dated 16.09.1997 and the fresh first & final bill dated 29.09.1997 for Rs.1,85,274/, were submitted by accused Bhupesh Karir for pass and payment. Similarly, coaccused Sanjay Kumar Malhotra raised first running bill dated 12.08.1997 for Rs.96,167/ and second and final bill of Rs.809/ dated 22.08.1997. Both these accused, in connivance with accused A.R. Bhati, J.E., K.C. Wahi, A.E. (Since deceased) and Phool Singh, Executive Engineer, have hatched a conspiracy to cheat CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 27 of 92 Special Judge, CBI01, Central, Delhi the CPWD. He has further argued that in pursuance to the said conspiracy, accused A.R. Bhati made false entires in the measurement books and the same were also checked and verified by accused K.C. Wahi A.E (since deceased), as correct and coaccused Bhupesh Karir and Sanjay Malhotra also made endorsements regarding these entries as correct. Accused Phool Singh, E.E. also falsely verified the bill, dated 12.08.1997 for Rs.96,167/ and passed it for payment. Thereafter, a payment of the said bill was made to accused Sanjay Kumar Malhotra, vide cheque No.94020, dated 12.08.1997.
36. The Ld. Sr. PP has further argued that the deviation in the work done, as recorded in the Measurement Book No. 5904 was more than 212%, but still, no prior sanction of deviation was taken from the competent authority. Accused K.C. Wahi, A.E., (since deceased), should have obtained the prior sanction of the competent authority, i.e., the Executive Engineer, in the present case.
37. The Ld. Sr. PP has further argued that the residents of H type quarters at Sriniwaspuri, namely, PW7 Jagmohan Singh Aswal and PW24 B.R. Sharma, have also supported the CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 28 of 92 Special Judge, CBI01, Central, Delhi prosecution case and have deposed that no request for replacement of manhole covers was ever made by them.
38. The Ld. Sr. PP has further argued that PW2, T.K. Majumdar and PW15, S.K. Bansal have also supported the prosecution case and have proved their report Ex.PW2/A. PW14 Inspector P. Balachandran has also proved his complaint, Ex.PW3/D and the observation memo, dated 14.10.97, Ex.PW3/C, and the other prosecution witnesses have corroborated his testimony and have also proved the observation memo.
39. The Ld. Sr. PP has further argued that the report Ex.PW2/A and the deposition of the prosecution witnesses has established on record that accused Bhupesh Karir and Sanjay Kumar Malhotra, contractors, had not executed the entire work and inflated entries were made in the measurement books. He has further argued that it has been established on record, beyond a shadow of doubt that only 64 manhole covers were replaced by the contractor Bhupesh Karir, instead of 282 manhole covers. But, still several bills were raised by accused Bhupesh Karir and Sanjay Kumar Malhotra, in connivance with coaccused A.R.Bhati, J.E.; K.C.Wahi, A.E., (since deceased) and Phool CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 29 of 92 Special Judge, CBI01, Central, Delhi Singh, E.E, who checked and verified the documents and the bills as correct and the amount of Rs.96,167/ was paid to accused Sanjay Kumar Malhotra.
40. The Ld. Sr. PP for the CBI has further argued that the competent authorities have also granted the sanction, under Section 19 of The Prevention of Corruption Act, 1988, for the prosecution of accused A.R.Bhati, JE and Phool Singh, E.E., vide sanction orders Ex.PW4/R & Ex.PW.6/A respectively, after going through the entire evidence and documents on record. Therefore, the testimony of the prosecution witnesses and the material evidence on record has proved the prosecution case against all the accused persons, beyond a shadow of doubt, and therefore, all the accused persons, be held guilty and convicted for the offences charged against them.
41. The Ld. Sr. 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;
CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 30 of 92 Special Judge, CBI01, Central, Delhi
(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, J.E.
42. Sh. Y.K.Kahol, Advocate, for accused A.R. Bhati, J.E., has argued that the prosecution has miserably failed to prove any case against the accused persons. He has argued that Sh. S.K. Singhal, Superintending Engineer, had granted sanction for prosecution of accused A.R. Bhati, under Section 19 of the P.C.Act 1988, vide sanction order Ex.PW4/R, without going through the entire record and the sanction order has been passed in a mechanical manner without application of mind. He has further argued that the said order is not a valid or legally sustainable sanction order, as the same does not disclose anything about the material evidence or the documents perused by the competent authority, before passing the said sanction order.
43. The Ld. Defence counsel has further argued that there are a large number of material contradictions in the depositions of the prosecution witnesses, which makes the entire prosecution case CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 31 of 92 Special Judge, CBI01, Central, Delhi doubtful. He has argued that the surprise inspections were allegedly conducted by the CBI team, headed by PW14 Inspector P.Balachandran, on 10.10.1997, 13.10.1997 & 14.10.1997, but, no such surprise inspections were actually conducted by him, at the site. Furthermore, the said surprise inspections were conducted on the basis of some secret information, but, the said secret information was never reduced into writing and was never produced before the Court, during the trial.
44. He has further argued that the FIR in the present case was registered on 20.10.1997, on the basis of the written complaint, Ex.PW3/D, of Inspector P. Balachandran. But, PW14 P.Balachandran has lodged this complaint after an unexplained delay of about 6 days, from the alleged surprise inspection on 14.10.97, which also castes a doubt on the prosecution case.
45. The Ld. Defence counsel has further argued that as per procedure and the CPWD Manual, the tender was floated for the required repair work and the tender for the replacement of manhole covers was awarded to accused Bhupesh Karir. Thereafter, agreement No. 60/AE/4P/9798 (Ex.P5), was duly CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 32 of 92 Special Judge, CBI01, Central, Delhi executed by accused K.C. Wahi, A.E., (since deceased), in favour of accused Bhupesh Karir. He has further argued that the entire tendered work was duly performed by accused Bhupesh Karir and accordingly necessary entries were made in measurement book No. 5904, Ex.PW1/Q, after due verification.
46. The Ld. Defence counsel has further argued that there are a large number of material discrepancies in the report Ex.PW.2/A, which indicates that this report was prepared by PW2 T.K. Mazumdar and PW15 S.K.Bansal, as per the wishes of the IO and the CBI officials.
47. The Ld. Defence counsel has also pointed out various contradictions and discrepancies in the statements of the prosecution witnesses and has argued that the prosecution witnesses have given contradictory statements and are therefore, not reliable. He has further argued that PW2 T.K. Mazumdar has deposed that the report Ex.PW2/A was prepared by him in his office on 18.11.1997. But, PW15 S.K. Bansal has also reported that this report was prepared by him and was approved by T.K. Mazumdar. Furthermore, the report has specifically mentioned that the inspections were carried out at Nehru Nagar, CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 33 of 92 Special Judge, CBI01, Central, Delhi 'BBlock', and 'HBlock', Sriniwaspuri, But, there is no 'BBlock' or 'HBlock' in Nehru Nagar and Sriniwaspuri, respectively. This fact clearly indicate that this report was prepared while sitting in the office and no actual physical verification at the site was ever conducted.
48. The Ld. Defence counsel has further argued that the report Ex.PW2/A, was prepared on 18.11.1997, on the basis of the rough notes, which were kept by PW2 T.K. Majumdar with him. But, the said notes have not been placed on record as the same were never seized during the investigations. He has further argued that the alleged inspection was carried out on 05.11.1997. But, the report was prepared in the office on 18.11.1997 and therefore, it was humanely impossible for any public witness to recollect the entire details and numbers of quarters etc. at various sites. The Ld. Defence counsel has relied upon the following judgments, in support of his contentions :
(i) Balbir Singh v State of Haryana, reported as, AIR 1987 Supreme Court 1053;
(ii) State, Inspector of Police, Vishakhapatnam vs. Surya Shankaram Karri, reported as, 2006 CriL.J. 4598 (SC) CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 34 of 92 Special Judge, CBI01, Central, Delhi ARGUMENTS ON BEHALF OF ACCUSED PHOOL SINGH, E.E. & BHUPESH KARIR, CONTRACTOR
49. Sh. Dinesh Parashar, Advocate, for accused Phool Singh, E.E. and accused Bhupesh Karir, contractor, has also pointed out various contradictions and discrepancies in the physical inspection report dated 18.11.97, Ex.PW2/A, from the depositions of the various prosecution witnesses. He has also argued that accused Phool Singh, Executive Engineer, has passed the first running account bill, Ex.PW1/X, for Rs.96,167.0, in favour of co accused Sanjay Kumar Malhotra and therefore, he has been made an accused in the present case. The Ld. Defence counsel has further argued that accused Phool Singh, E.E., has not awarded the tender to any of the accused and has not even test checked or passed the bills of coaccused Bhupesh Karir and therefore, there is no evidence on record to prove any conspiracy between him and the other accused persons and therefore, the accused Phool Singh be acquitted of all the charges.
50. The Ld. Defence counsel has further argued that the accused Bhupesh Karir had completed the entire tendered work against agreement No. 60/AE/4P/9798 and accordingly, the necessary entries were made by accused A.R. Bhati, J.E., in the CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 35 of 92 Special Judge, CBI01, Central, Delhi measurement book No. 5335. Thereafter, the accused Bhupesh Karir raised the first running account bill, Ex.PW1/G, on 16.09.97, for Rs.1,63,703/, but, the said bill was never cleared, as the said bill was withdrawn by accused A.R. Bhati, J.E., on 09.10.97. He has further argued that accused Bhupesh Karir also raised a fresh first and final bill for Rs.1,85,274/, Ex.PW1/J, on 29.09.97, and necessary entries were made in measurement book No. 5904 by accused A.R. Bhati, J.E. But, even this bill was not cleared and no payment was made to accused Bhupesh Karir. He has further argued that the bills raised by accused Bhupesh Karir were withdrawn on 09.10.97, i.e., even prior to the first surprise visit or raid conducted by PW14 P. Balachandran.
51. The Ld. Defence counsel has further argued that accused Bhupesh Karir has not received any payment and the bills raised by him were under rechecking of A.R. Bhati, J.E., and therefore, no offence could be proved against accused Bhupesh Karir also. He has further argued that no material evidence has come on record to prove any conspiracy between the accused persons and therefore, all the accused persons be acquitted of all the charges.
CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 36 of 92 Special Judge, CBI01, Central, Delhi ARGUMENTS ON BEHALF OF ACCUSED SANJAY KUMAR MALHOTRA
52. Sh. Amit Goel, Advocate, for accused Sanjay Kumar Malhotra has filed his written arguments and has also addressed the final arguments orally. He has argued that the report Ex.PW.2/A was a forged and fabricated document and was prepared as per the directions of the CBI officials. He has also pointed out various discrepancies in the other prosecution documents and has also pointed out various contradictions in the statements of the prosecution witnesses.
53. The Ld. Defence counsel has also argued that the public witnesses are also not reliable and have turned hostile and have not supported the prosecution case and therefore, not much reliance can be placed on their depositions to corroborate the report Ex.PW2/A.
54. The Ld. Defence counsel has further argued that accused Sanjay Kumar Malhotra had not performed any work under the agreement No. 60/AE/4P/9798, Ex.P5 and in the month of August, 1997, due to emergency conditions, the spot quotations were called and the work order dated 05.08.97 bearing No. CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 37 of 92 Special Judge, CBI01, Central, Delhi 9/EE/PDivision/9798, Ex.PW1/U, was issued to accused Sanjay Malhotra, to perform the work of repair / replacement of PFRC manhole covers at Htype quarters at Sriniwaspuri, Delhi, by accused Phool Singh, Executive Engineer. The letter dated 02.08.97, Ex.PW1/T, mentions the urgency and reasons for issuance of the work order dated 05.08.97.
55. The Ld. Defence counsel has further argued that accused Sanjay Kumar Malhotra, had performed and completed the entire work as mentioned in the measurement book No. 5633 (D64) and after issuance of the work order dated 05.08.97, the work was completed by him by 15.08.97. The same was duly verified by the concerned officials of the PWD and accordingly, the necessary entries were made in the Measurement Book No. 5633 by accused A.R. Bhati, J.E. Thereafter, the accused Sanjay Kumar Malhotra submitted the first running bill for Rs.98130.38p and after deducting the income tax of Rs.1963/, the bill for Rs.96,167/ was passed in favour of accused Sanjay Kumar Malhotra and he duly received the payment of the said amount.
56. The Ld. Defence counsel has further argued that accused Sanjay Kumar Malhotra also raised the second and final bill for CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 38 of 92 Special Judge, CBI01, Central, Delhi Rs.809/ dated 22.08.97, but, the said final bill was never cleared and no payment was made to accused Sanjay Kumar Malhotra.
57. The Ld. Defence counsel has further argued that the work against work order dated 05.08.97 had already been completed by accused Sanjay Kumar Malhotra, till 15.08.97, much prior to the execution of the agreement No. 60/AE/4P/9798 Ex.P5, in favour of coaccused Bhupesh Karir and accused Sanjay Kumar Malhotra was having no concern with the work pertaining to the said agreement. He has further argued that the work was performed by accused Sanjay Kumar Malhotra at HType quarters Sriniwaspuri, but, no inspection of the said work was conducted at HType quarters Sriniwaspuri. The report Ex.PW2/A clearly indicate that the work pertaining to the agreement No. 60/AE/4P/9798 and measurement book No. 5904 only, was inspected by the CBI team on 05.11.1997. there is no mention of the measurement book No. 5633, in which the entries regarding the work done by accused Sanjay Malhotra were made.
58. The Ld. Defence counsel has further argued that the accused Sanjay Kumar Malhotra has completed the entire work, assigned to him as per rules and has followed the various CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 39 of 92 Special Judge, CBI01, Central, Delhi guidelines issued by the CPWD as per the CPWD Manual and therefore, he has not committed any offences and therefore, he may be acquitted of all the charges.
OBSERVATIONS / FINDINGS
59. I have carefully perused the case file and I have given my considered thoughts to the arguments addressed by the Ld. Sr. PP for the CBI and the Ld. Defence counsels. I have also perused the written arguments submitted by the Ld. Defence counsel for accused Sanjay Kumar Malhotra. I have also perused the various judgments, cited by them.
60. Perusal of the record shows that the complainant Inspector P. Balachandran (PW14) has deposed in the court that on 10.10.1997, he alongwith his team and two independent witnesses, namely, Sh. Rajender Krishan and G.R.Sharma conducted a surprise check at CPWD subdivision office at Sriniwaspuri, New Delhi, on the basis of a source information regarding the malpractices in Sriniwaspuri subdivision. He has further deposed that on 10.10.1997, the rooms occupied by the J.E. and A.E. were sealed and on 13.10.1997, the said rooms were reopened and examined and the documents relating to the CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 40 of 92 Special Judge, CBI01, Central, Delhi maintenance work were seized.
61. PW14 Inspector P. Balachandran has further deposed that on 14.10.1997, the physical examination of the work, relating to the replacement of rectangular manhole covers in Htype quarters at Sriniwaspuri, was done by comparing with the measurement book No. 5904, Ex.PW.1/Q and after inspection, it was found that the work was not executed at all. He has further deposed that on actual physical inspection, no work was found to have been executed, as was mentioned in Measurement Book Ex.PW.1/Q at pages7 & 8. He has further deposed that he mentioned all these facts in his observation memo Ex.PW.3/C.
62. PW14 Inspector P. Balachandran has further deposed that on the basis of the surprise checks, he made the complaint Ex.PW.3/D to Shri N.N.Singh, the then SP, ACB, CBI, New Delhi on 21.10.1997, on the basis of which, FIR Ex.PW.3/E was registered. He has further deposed that after registration of the FIR, the investigation of the case was entrusted to Sh. D.K.Singh, Inspector CBI, New Delhi. As per the observation memo Ex.PW.3/C, 15 sites were inspected at HType Quarters at Sriniwaspuri, New Delhi by PW14 Inspector P. Balachandran CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 41 of 92 Special Judge, CBI01, Central, Delhi and the CBI team on 14.10.1997 and on physical verification, it was observed that the tender work was not executed at all in any of the said 15 sites.
63. Perusal of the record further shows that in the complaint dated 20.10.1997, Ex.PW.3/D, it has been stated by PW14 Inspector P. Balachandran that as per the original agreement No. 60/AE/4P/9798, the work of providing and fixing PFRC rectangular manhole covers of size 670 x 520 mm was awarded to contractor accused Bhupesh Karir on 01.09.1997 for an amount of Rs.54,000/ for 90 manhole covers @ Rs.600/ per piece. As per Measurement Book No. 5904 issued to accused A.R. Bhati, J.E., 282 manhole covers had been replaced in Nehru Nagar and HBlock Sriniwaspuri, New Delhi, out of which, 200 numbers were recorded as installed in HBlock, Sriniwaspuri, alone. Accused A.R. Bhati, J.E., had certified that the work was physically completed on 29.09.1997 and the same was countersigned by accused K.C.Wahi, A.E. (since deceased). On 29.09.1997, the first and final bill of the contractor for Rs.1,85,274/ was submitted to the division office for payment alongwith relevant documents. But, the bill was still pending for final payment.
CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 42 of 92 Special Judge, CBI01, Central, Delhi
64. The complaint Ex.PW.3/D further states that during the inspection, it was found that not even a single manhole cover was replaced in HBlock Sriniwaspuri, New Delhi, whereas, 172 manhole covers were replaced at the said places as per the Measurement Book and the bills. It further states that the surprise check had indicated that the CPWD officials, in connivance with the contractor Bhupesh Karir, had raised the false bills, without executing the specified work and they had attempted to cheat the CPWD, by abusing their official positions as such public servants with the object of causing wrongful pecuniary advantage to the contractor.
65. Perusal of the record further shows that on the basis of the complaint Ex.PW.3/D, dated 20.10.1997, FIR Ex.PW.3/E was got registered by PW30 Shri N.N.Singh, the then SP, ACB, CBI, New Delhi. On 22.10.1997, he wrote a letter to Shri K.K.Verma, Chief Engineer (Vigilance) CPWD Headquarters, Nirman Bhawan, New Delhi, for constituting a team of technical officers to inspect and evaluate the relevant work and to submit a technical report. The said letter has been proved on record as Ex.PW.4/A. CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 43 of 92 Special Judge, CBI01, Central, Delhi
66. In pursuance to the letter Ex.PW.4/A, the Superintending Engineer (Vigilance) CPWD, informed PW30 Shri N.N.Singh, SP, CBI, Delhi, vide letter Ex.PW.4/B that PW2 Sh. T.K. Majumdar, Executive Engineer and PW15 Sh. S.K.Bansal, Assistant Engineer were deputed to verify and check the work done at the sites with the assistance of the CBI officials. Thereafter, the physical verification of the sites was conducted by a joint team and the work done in respect of agreement No. 60/AE/4P/9798 (replacement of manhole covers in HBlock Sriniwaspuri) was conducted on 05.11.1997 and the report Ex.PW.2/A, dated 18.11.1997, was submitted by PW2 Sh. T.K.Majumdar and PW15 Sh. S.K.Bansal, on 20.11.1997.
67. Perusal of the report Ex.PW2/A shows that the physical inspections pertaining to agreement No. 54/AE/4P/9798 (relating to replacement of WC pans and accessories), agreement No. 56/AE/4P/9798 (relating to replacement of SW pipes) and agreement No. 60/AE/4P/9798 (relating to replacement of manhole covers in HBlock), were conducted by the joint team comprising of PW2 T.K. Majumdar, PW15 S.K. Bansal and the CBI officials on 05.11.1997, 06.11.1997, 07.11.1997, 09.11.1997 and 11.11.1997. Thereafter, the report Ex.PW2/A, along with its CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 44 of 92 Special Judge, CBI01, Central, Delhi annexures, was prepared on 18.11.1997. The relevant portion of the report Ex.PW2/A relating to the replacement of manhole covers in HType Quarters at Sriniwaspuri, in respect of which agreement No. 60/AE/4P/9798 was executed with accused Bhupesh Karir, is reproduced below :
1. Replacement of manhole covering Agreement No. 60/AE/4P/9798 Checking of the above mentioned work was conducted on 5.11.97, (AN) in the presence of following officers.
1. Shri T.K. Majumdar EE (V), CPWD
2. Shri S.K. Bansal AE (V), CPWD
3. Shri M.L. Roy AE/4P Subdn., CPWD
4. Shri A.R. Bhati JE/4P Subdn., CPWD
5. Shri D.K. Singh Insp./ACB/CBI
6. Shri Rajesh Prasad SubInsp./ACB/CBI
7. Shri Brajesh Kumar Sub.Insp./SCB/CBI According to the agreement 90 manhole covers to be provided in Nehru Nagar, 'B' Block qrs.
As per MB No. 5904 measurements for 282 manhole covers were recorded which were of size 670 m. X 520 mm. in the following places.
1. Nehru Nagar 'B' Block 64 Nos.
2. Community Centre 8 Nos.
3. Dispensary 10 Nos.
4. 'H' Block 200 Nos.
282 Nos.In actual, 64 Nos. New manhole cover of size 670 m. X 520 mm. were found at Nehru Nagar, 'B' Block placed loosely over small size S.W. drains instead of any manhole. No manhole cover was found at other places viz. Community Centre, Dispensary and 'H' Block qrs".
CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 45 of 92 Special Judge, CBI01, Central, Delhi
68. Perusal of this report indicates that the joint team of CPWD and CBI had inspected the various sites / spots on 05.11.1997, only pertaining to agreement No. 60/AE/4P/9798. These spots / sites were physically verified as per Measurement Book No. 5904, Ex.PW.1/Q only. No inspection of any spot or site was conducted as per the Measurement Book No. 5633, Ex.PW.1/Z.
69. It is pertinent to mention here that in Measurement Book No. 5633, Ex.PW.1/Z, relevant entries were made by accused A.R. Bhati, J.E., in respect of the work pertaining to providing of the manhole covers at Htype quarters, at Sriniwaspuri, New Delhi. These entries were made in respect of the work done by accused Sanjay Kumar Malhotra against the work order Ex.PW.1/U. This work order was issued by accused Phool Singh, Executive Engineer, in favour of accused Sanjay Kumar Malhotra on 05.08.1997, on the basis of the spot quotation Ex.PW.1/R.
70. Perusal of the record further shows that on 02.08.1997, spot quotations were called for replacement of PFRC rectangular manhole covers at CGHS Dispensary & Maternity Centre and 648 Htype quarters, at Sriniwaspuri, New Delhi. The reason for calling of the spot quotation on 02.08.1997 has been mentioned CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 46 of 92 Special Judge, CBI01, Central, Delhi in the letter dated 02.08.1997, Ex.PW.1/T, which was written by accused K.C.Wahi, A.E. (since deceased) to accused Phool Singh, Executive Engineer. Perusal of the letter Ex.PW.1/T shows that these spot quotations were called due to emergency situation, as some manhole covers were missing and mosquitoes were coming out of the manhole and foul smell was spreading and there was an apprehension of spreading dengue fever.
71. In response, three spot quotations were received, wherein, the quotation of accused Sanjay Kumar Malhotra was found at the lowest rate. Thereafter, negotiations were held with accused Sanjay Kumar Malhotra and accused Sanjay Kumar Malhotra wrote two letters, Ex.P17 & Ex.P18 (admitted documents) to the Executive Engineer and the Assistant Engineer, respectively, and agreed to perform the work @ 9.95% above the estimated rates. On the basis of the documents forwarded by accused K.C.Wahi, A.E. (since deceased), alongwith his letter dated 02.08.1997, the work order dated 05.08.1997, Ex.PW.1/U, was granted to accused Sanjay Kumar Malhotra for fixing of 150 PFRC rectangular manhole covers, for a total amount of Rs.98,955/.
72. Perusal of the record further shows that necessary entries CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 47 of 92 Special Judge, CBI01, Central, Delhi regarding replacement of manhole covers pertaining to the work order Ex.PW.1/U have been made in Measurement Book No. 5633, Ex.PW.1/Z and accused Sanjay Kumar Malhotra raised his first running account bill on 12.08.1997, for a total amount of Rs.98,130/. This bill was duly forwarded to the division office by accused A.R. Bhati, J.E. and accused K.C.Wahi, A.E. (since deceased), for passing and payment. The entries in Measurement Book No. 5633 were also verified by accused K.C.Wahi, A.E. (since deceased) and were also admitted as correct by accused Sanjay Kumar Malhotra. The relevant documents were also forwarded with the aforesaid bill and the said bill was cleared by accused Phool Singh, Executive Engineer for a sum of Rs.96,167/, after deducting an amount of Rs.1,963/ as incometax. The payment of this amount was made to accused Sanjay Kumar Malhotra, vide cheque No. 94020, dated 12.08.1997 and the said cheque was duly cleared in the account of accused Sanjay Kumar Malhotra. His statement of account has been proved on record as Ex.PW.5/B.
73. Perusal of the work order Ex.PW.1/U; Measurement Book No. 5633 Ex.PW.1/Z; bill dated 12.08.1997 Ex.PW.1/X; letter of accused K.C.Wahi, A.E. (since deceased), dated 02.08.1997 CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 48 of 92 Special Judge, CBI01, Central, Delhi Ex.PW.1/T; letter of accused Sanjay Kumar Malhotra Ex.P17 & Ex.P18 and the spot quotation Ex.PW.1/R, clearly indicate that the work awarded to accused Sanjay Kumar Malhotra against the work order dated 05.08.1997, bearing No. 9/EE/Pdiv./9798, for replacement of 150 PFRC rectangular manhole covers at Htype quarters, at Sriniwaspuri, is totally different from the tendered work awarded to accused Bhupesh Karir, vide agreement No. 60/AE/4P/9798, Ex.P5. The entries relating to the work order Ex.PW.1/U were made in Measurement Book No. 5633 Ex.PW.1/Z, whereas, the entries relating to agreement No. 60/AE/4P/9798, Ex.P5, were made in Measurement Book No. 5904 Ex.PW.1/Q.
74. Perusal of the record further shows that the report Ex.PW.2/A has mentioned only about the physical verification of the sites / spots at various places, in respect to the entries made in the Measurement Book No. 5904 only. No mention has been made in respect of the entries made in the Measurement Book No. 5633. Furthermore, the physical verification of the various sites was conducted only as per Measurement Book No. 5904 and no physical inspection of the sites was conducted as per Measurement Book No. 5633. Even otherwise, this CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 49 of 92 Special Judge, CBI01, Central, Delhi Measurement Book No. 5633 was not in possession of the CBI on 05.11.1997, as the same was seized by the Investigating Officer of the CBI, only on 01.06.1998. Therefore, there was no question of the joint team of the CPWD and the CBI to actually inspect or verify the entries in Measurement Book No. 5633 from the actual work done at the sites on 05.11.1997, when the physical verification was allegedly conducted.
75. Perusal of the aforesaid documents and record further indicate that accused Sanjay Kumar Malhotra was never awarded any work pertaining to agreement No. 60/AE/4P/9798, Ex.P5 and therefore, he was not supposed to perform any work relating to the said agreement. Furthermore, no physical verification of his work done against the work order Ex.PW.1/U was conducted by the joint team of CPWD and CBI on 05.11.1997, as reflected in the inspection report Ex.PW.2/A and therefore, it cannot be said with certainty that accused Sanjay Kumar Malhotra had connived with accused Phool Singh, Executive Engineer; accused K.C.Wahi, A.E. (since deceased) and accused A.R. Bhati, J.E., for obtaining the work order and he has not performed the required work.
CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 50 of 92 Special Judge, CBI01, Central, Delhi
76. Let us now discuss the work done by accused Bhupesh Karir, as awarded to him vide Agreement No. 60/AE/4P/9798, Ex.P5.
77. In order to prove the physical verification report Ex.PW.2/A and to prove the fact that accused Bhupesh Karir has not performed the complete tendered work and has raised false bills, in connivance with his other coaccused, the prosecution has examined Sh. T.K. Majumdar, Executive Engineer (Vigilance) as PW2; Shri S.K.Bansal, Asstt. Engineer (Vigilance) as PW15; Shri Manindra Lal Roy as PW10; Inspector D.K.Singh as PW4; SI Rajender Kumar Prasad as PW27 and SI Brajesh Kumar as PW28.
78. PW2 Sh. T.K.Mazumdar has deposed before the court that in the month of October 1997, he was working as Executive Engineer in Vigilance Department of CPWD Headquarters, New Delhi and he was deputed by his office to inspect and check the Htype quarters, at Sriniwaspuri and Nehru Nagar, alongwith the CBI team. He has further stated that in the checking on 05.11.1997, they found that only 64 numbers of manhole covers were found at Nehru Nagar BBlock, placed loosely over small size SW drains instead of any manhole. He has further stated CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 51 of 92 Special Judge, CBI01, Central, Delhi that no manhole cover was found at other places, i.e. community centre; dispensary and HBlock quarters. He has proved his report as Ex.PW.2/A. During his crossexamination, he had admitted that the report Ex.PW.2/A was prepared by him in his office on 18.11.1997 and he had obtained the signatures of Shri S.K.Bansal, on it.
79. PW15 Sh. S.K.Bansal, Asstt. Engineer (Vigilance) has corroborated the deposition of PW2 T.K. Majumdar and has deposed that during the period 199798, he was working as Assistant Engineer in Vigilance Branch of CPWD Headquarters, New Delhi and he was deputed by his department to assist Shri T.K.Mazumdar for inspection / checking of work S/R to 648 H type quarters, at Sriniwaspuri, New Delhi, during the year 1997 98, regarding improvement of manhole condition. He has further stated that the inspection was conducted by the team on 05.11.1997 and after physical inspection / checking, Shri T.K.Mazumdar submitted his inspection report No. 17/10/97VSI, dated 20.11.1997. He has further deposed that during the physical inspection / checking, only 64 numbers of new manhole covers of size 670 x 520 mm were found at Nehru Nagar BBlock, placed loosely over small size SW drain instead of any manhole.
CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 52 of 92 Special Judge, CBI01, Central, Delhi Furthermore, no manhole cover was found at other places, i.e. community centre, dispensary and HBlock in 4P SubDivision of Sriniwaspuri, New Delhi. He has further deposed that as per Measurement Book No. 5904, J.E. had recorded that 282 numbers of manhole covers, i.e., 64 manhole covers at Nehru Nagar; 10 at Dispensary; 8 at Community Centre; and 200 at 648 HBlock, Sriniwaspuri, were replaced and as per rules, the prior approval is necessary for deviation of work, to the estimated work, before passing of the final bill. During his cross examination, this witness has admitted that the percentage of the deviation was not mentioned in the report Ex.PW.2/A. But his submission regarding the deviation was based on the work awarded and the final bill, as no work was performed. He has categorically stated that as per Measurement Book Ex.PW.1/Q, it has been mentioned that 64 manhole covers were kept over open / SW drain, but manhole covers were never used to cover the open SW drain. During his crossexamination, he has further admitted that the inspection was carried out as per the measurement book and 64 new manhole covers were found at Nehru Nagar BBlock placed loosely over small size SW drains. He has also admitted that no inspection was conducted regarding the work performed by any other contractor regarding the CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 53 of 92 Special Judge, CBI01, Central, Delhi manhole covers.
80. PW4 SI D.K.Singh has also corroborated the testimonies of these two witnesses and has deposed that after registration of the case on 20.10.1997, on the complaint of Inspector P.Balachandran, the further investigation of the case was entrusted to him and on the basis of the entries recorded in the measurement book, physical inspection of the work, i.e. manhole covers in Htype quarters, at Sriniwaspuri; BBlock quarters at Nehru Nagar; community centre and dispensary was conducted on 05.11.1997. During his crossexamination, he has stated that during the investigation, the physical verification of manhole covers vide indent No. AE/4P/9798/798815, dated 19.07.1997, purchased from NCCF Ltd. was also carried out by him alongwith the contracts of other manhole covers. He has admitted that no separate physical verification report of the work of manhole covers under the work order No. 9/EE/P.Div./9798, dated 05.08.1997, carried out by accused Sanjay Kumar Malhotra, was prepared. He has categorically stated that he had physically verified the number of manhole covers alongwith Shri T.K.Mazumdar at Nehru Nagar BBlock and only 64 numbers were found.
CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 54 of 92 Special Judge, CBI01, Central, Delhi
81. The testimonies of the aforesaid three witnesses has proved on record, beyond a shadow of doubt that only 64 numbers of manhole covers were found replaced at Nehru Nagar BType quarters and no manhole covers were found replaced at other places, i.e. at Community Centre, Dispensary and Htype quarters, at Sriniwaspuri, New Delhi.
82. Perusal of the record further shows that PW14, Sh.P. Balachandran; PW2, Sh. T.K. Majumdar; PW15, Sh. S.K. Bansal and PW4, SI D.K Singh (IO), have all been cross examined at length by the Ld. Defence counsels. 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 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 a consistent manner and that too, after a gap of several years. The present case was registered on 20.10.1997 and PW14 Sh. P. Balachandran was examined on 02.05.2011; PW2, Sh. T.K. CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 55 of 92 Special Judge, CBI01, Central, Delhi Majumdar was examined on 28.02.2007; PW4 Inspector D.K.Singh was examined on 01.03.2007 and PW15, Sh. S.K. Bansal was examined on 27.09.2011, 19.01.2012, 01.02.2012, 18.04.2012 & 10.05.2012. The time lag in recording their evidence might have caused some dent in their memory.
83. 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 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 nut 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 CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 56 of 92 Special Judge, CBI01, Central, Delhi 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)
84. 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 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 police officer - 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)
85. Even in the present case, the crossexaminations of the aforesaid four witnesses have indicated that there are some minor contradictions in their depositions. But, the same are not CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 57 of 92 Special Judge, CBI01, Central, Delhi 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, in the present case.
86. Perusal of the record further shows that in measurement book No. 5904, Ex.PW1/Q (D62) (admitted document), it has been mentioned at page No. 6 to 10 that a total 282 numbers of PFRC Rectangular Manhole covers of size 670x520 mm, have been replaced. All these measurements were done by accused A.R.Bhati and accordingly, he made entries in Measurement Book No. 5904, Ex.PW1/Q, at page 6 to 10. These entries have been verified as correct, by coaccused K.C.Wahi (since deceased). The accused A.R. Bhati, J.E., has also given a completion certificate in this regard, on 29.09.1997. Accordingly, first and final bill for a sum of Rs.1,85,274/ was approved by accused A.R. Bhati and K.C. Wahi (since deceased). Co accused Bhupesh Karir has also accepted the bill and the measurements as correct, by making an endorsement on page 10, as "bill & measurement accepted". The measurement book is CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 58 of 92 Special Judge, CBI01, Central, Delhi an admitted document and the entries in it have been admitted by the accused persons, as correct. On the basis of the measurement book No. 5904, Ex.PW1/Q, the first running bill, Ex.PW1/K, was prepared and approved. This first running bill Ex.PW.1/K, is also an admitted document. This bill was checked and forwarded to the division office for pass & payment by accused K.C. Wahi, alongwith the measurement book Ex.PW1/Q and the other relevant documents. But, this bill was neither checked nor passed by accused Phool Singh, Executive Engineer, and therefore, no payment of this bill was made to accused Bhupesh Karir.
87. Perusal of the record further shows that the measurement book No. 5335, Ex.PW1/P (D65) (admitted document), mentions at page No. 98 to 100 that a total 260 numbers of PFRC Rectangular Manhole covers of size 670x520 mm, have been replaced. All these measurements were also done by accused A.R.Bhati and accordingly, he made entries in Measurement Book No. 5335, Ex.PW1/P, at page 98 to 100. These entries have been verified as correct, by coaccused K.C.Wahi (since deceased). The first and final bill for a sum of Rs.1,54,225/ was approved by accused A.R. Bhati and K.C. Wahi (since CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 59 of 92 Special Judge, CBI01, Central, Delhi deceased). Coaccused Bhupesh Karir has also accepted the bill and the measurements as correct, by making an endorsement on page100, as "bill & measurement accepted". This measurement book is also an admitted document and the entries in it have been admitted by the accused persons, as correct. On the basis of the measurement book No. 5335, Ex.PW1/P, the first running bill, was prepared and approved. But, this first running bill is not on judicial record. As per this measurement book Ex.PW1/P, this bill was also checked and forwarded to the division office for pass & payment by accused K.C. Wahi, alongwith the measurement book Ex.PW1/P and the other relevant documents. But, this bill was withdrawn by accused A.R. Bhati and he also cancelled the aforesaid entries in the measurement book.
88. Perusal of the record further shows that in order to prove the procedure of tendering process, the preparation of the bill, its checking and verification and forwarding to the concerned senior authorities, for passing the same for payment to the contractor, the prosecution has examined PW1 Shri A.Vishwanathan, Asstt. Accounts Officer; PW16 Sh. Sukanpal Verma, Asstt. Surveyor; PW11 Shri Rajender Singh Rawat, UDC (Auditor), PDivision, CPWD, Sadiq Nagar, New Delhi; PW10 Shri Manindra Lal Roy, CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 60 of 92 Special Judge, CBI01, Central, Delhi Assistant Engineer, CPWD, New Delhi and PW13, Sh. Kripal Singh, J.E.
89. It has been stated by PW1, 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 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.
90. PW1 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 CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 61 of 92 Special Judge, CBI01, Central, Delhi 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.
91. PW1 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 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.
92. PW1 Shri A.Vishwanathan has further deposed that the work relating to the replacement of manhole covers was awarded to accused Bhupesh Karir, vide Agreement No. 60/AE/4P/9798, Ex.PW1/M, with an estimated cost of Rs.54,000/ and the tendered amount of Rs.59,130/. He has further deposed that the measurement book No. 5335 was issued for measurement of the CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 62 of 92 Special Judge, CBI01, Central, Delhi work and the first running bill of Rs.1,54,225/ of accused Bhupesh Karir was submitted to the divisional office for passing & payment and the same was checked and verified by accused A.R.Bhati and K.C.Wahi (since deceased). This witness has proved the general conditions of the contract as Ex.PW1/N. The tender has been proved as Ex.PW1/O and the tender award letter has been proved as Ex.PW.1/P.
93. PW1 Shri A.Vishwanathan has further deposed that another measurement book No. 5904 (sic 5633), Ex.PW1/Q, (D62), was also issued for measurement of the work and a fresh first running bill for a sum of Rs.1,85,274/, Ex.PW1/K, of accused Bhupesh Karir was also submitted to the divisional office for passing & payment and the same was checked and verified by accused A.R.Bhati and K.C.Wahi (since deceased). He has further deposed that the completion certificate was also given by accused A.R. Bhati and was countersigned by accused K.C. Wahi. This witness has proved the photocopy of the tender sale register as Ex.PW1/A. The entries in the register at S.No. 8, regarding sale of PWDVI forms has been proved as Ex.PW1/B. The tender opening register has been proved as Ex.PW1/C and the agreement register has been proved as Ex.PW1/D. The CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 63 of 92 Special Judge, CBI01, Central, Delhi comparative statement prepared by SDC Ghamandi Lal, has been proved as E.xPW1/E. The justification statement of analysis of the rates, prepared by accused A.R. Bhati, with his note, has been proved on record as Ex.PW1/F1 and Ex.PW1/F2 respectively. The carbon copy of the part rate statement has been proved as E.xPW1/H. The test check statement prepared by accused A.R. Bhati has been proved on record as Ex.PW1/H
1. The recovery statement bearing signatures of accused A.R. Bhati and K.C. Wahi has been proved on record as Ex.PW1/H2. The scrutiny sheet pertaining to the work has been proved on record as Ex.PW1/J. The first and final bill bearing signatures of accused K.C. Wahi has been proved on record as Ex.PW1/K. The test check statement, deviation statement PartI & II and the recovery statement, have been proved on record as Ex.PW1/L1 to Ex.PW1/L3 respectively.
94. PW1 Shri A.Vishwanathan has further deposed that the measurements were recorded by accused A.R.Bhati, JE, in the measurement book No. 5335, Ex.PW1/R, and measurement book No. 5904, Ex.PW1/Q, and the same were duly checked by co accused K.C.Wahi (since deceased). He has further deposed that the measurement books bear the signatures of accused A.R. CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 64 of 92 Special Judge, CBI01, Central, Delhi Bhati and K.C.Wahi. The contractor Bhupesh Karir had accepted the bills and measurements, by making his endorsements in both the measurement books.
95. PW16 Sh. Sukan Pal Singh Verma has deposed about the deviation statement. In the year 1991, he was posted as Assistant Surveyor of Works in PDivision at Sadiq Nagar Office of the CPWD and his job was to check / calculate the estimate and the deviation statement submitted by the subdivisional office. He has categorically stated that the Assistant Engineer is the incharge of the subdivision and at the relevant time, the Assistant Engineer was empowered to award the work in one tender upto Rs.60,000/ and in case, there was any deviation and work was extended beyond Rs.60,000/, then the Assistant Engineer would obtain the consent of his immediate senior and get the work done. He had categorically stated that the deviation statement, pertaining to the agreement No. 60/AE/IVP/9798, Ex.PW1/K, submitted by accused K.C.Wahi (since deceased) A.E., never came to him for checking. He has further stated that as per this deviation statement, initial work was awarded for Rs.88,685/ whereas, the actual work carried out was for Rs.1,85,274/ and balance was Rs.96,579/. He had categorically CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 65 of 92 Special Judge, CBI01, Central, Delhi stated that this deviation statement was prepared by accused K.C. Wahi (since deceased).
96. PW10 Shri Manindra Lal Roy, Assistant Engineer, CPWD, New Delhi, has also deposed that there were 34 sources for preparation of estimates for calling tender and the estimate was prepared by the JE in consultation and direction of the AE. After preparation of estimate by the JE, it was to be 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 was to be recorded in the technical sanction register. Thereafter, the AE 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 was entered into a tender opening register and on the same day, all the earnest money was 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 CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 66 of 92 Special Judge, CBI01, Central, Delhi 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.
97. PW10 Shri Manindra Lal Roy, has further deposed that JE is supposed to supervise the work, which is to be performed as per 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.
98. PW10 Sh. Manindra Lal Roy has also deposed that in the month of November, 1997, physical checking was done by T.K. Majumdar, Executive Engineer, CPWD along with A.E. Mr. Bansal and the CBI officials, in respect of CGHS Dispensary & Maternity Center, Community Centre and 648 HType Quarters at CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 67 of 92 Special Judge, CBI01, Central, Delhi Sriniwaspuri. He has proved the observation memo Ex.PW10/A (D16) and the surprise check memo dated 13.10.97 (sic 13.10.95) as Ex.PW3/A. He has also proved the observation memo dated 14.10.97 as Ex.PW3/C, the seizure memo dated 05.11.97 as Ex.PW10/B, handing over memo 4.11.97 as Ex.PW10/C and the receipt memo, dated 11.11.97 as Ex.PW4/O.
99. PW11, Shri Rajender Singh Rawat, has also deposed in a similar manner and has corroborated the testimonies of PW1 A.Vishwanathan and PW10 Sh. Manindra Lal Roy. He has also deposed about the process of opening of the tenders. He has also deposed that the tenders are opened in the presence of the contractor / tenderer and the AE and thereafter, the Sub Divisional 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. If the rate quoted by the lowest bidder was not justified, then the rates were negotiated with the contractor and if he agrees during the negotiation, with the justification, the contract will be awarded to him.
CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 68 of 92 Special Judge, CBI01, Central, Delhi
100. PW11, Shri Rajender Singh Rawat, has also proved the various documents, pertaining to the agreement Ex.PW1/N, vide which the tender was awarded to accused Bhupesh Karir. He has also identified the signatures of accused A.R. Bhati and K.C. Wahi on various documents, measurement books and the bills. He has categorically stated that as per agreement No. 60/AE/4P/9798 Ex.P5, only 90 manhole covers were to be replaced in HBlock, Sriniwaspuri, whereas, measurement book No.5904, Ex.PW1/Q, mentions that 200 manhole covers were replaced in HBlock, Sriniwaspuri; 8 in Community Centre; 10 in Dispensary and 64 in Nehru Nagar. Therefore, there is a deviation of the work from the agreement and for deviation statement Ex.PW1/L2, it is necessary to obtain the prior approval of the competent authority in writing, at the time of the finalization of the bill. The competent authority in this case is the executive Engineer of the division . However, he has admitted that the bill was not put up before the Executive Engineer and no payment of the bill was made.
101. PW13 Kirpal Singh has also deposed in a similar manner about the process of lodging of complaints, regarding execution of the repair works, preparation of the estimates, technical CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 69 of 92 Special Judge, CBI01, Central, Delhi sanction and issuance of the tender, for the repair work. The testimony of this witness corroborates the testimonies of PW1 A.Vishwanathan, PW10 Manindra Lal Roy and PW11 Rajender Singh Rawat, on all the material points. This witness has also identified the signatures of the various accused persons on the various documents.
102. During the investigations, the specimen signatures and handwritings of accused persons, along with the seized questioned documents and measurement books, were sent to CFSL, New Delhi, for comparison and expert opinion. PW19 Dr.S.C. Mittal has deposed that the questioned, specimen and admitted documents were received in the CFSL, vide letter No. DLI/AC/CR/3/78(A)/97/9110, dated 27.07.98, from SP, ACB, CBI and further material was received, vide memo No. DLI/AC/CR/3/78&79(A)/97DLI/5313, dated 07.06.99, in RC 78 & 79(A)/97DLI. Further material was also received in the form of standard writings and signatures marked S1 to S43, S67 to S 129, S130 to S177 and A1 to A289, A512 to A640 in RC 90(A)/97DLI, vide letter No. DLI/AC/CR/3/90(A)/97/8395, dated 10.07.98, and admitted writings marked A1 to A21 were received in RC 77(A)/97DLI.
CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 70 of 92 Special Judge, CBI01, Central, Delhi
103. PW19 Dr. S.C. Mittal has further stated that the present case was marked to him for scientific examination and opinion on questioned documents in comparison with the specimen and admitted documents. After carefully examining the documents with various scientific instruments, he arrived at several opinions, which were incorporated by him in his detailed report. He has proved his detailed report as Ex.PW19/A. He forwarded his report to S.P., ACB, CBI, vide forwarding letter (D24) Ex.PW19/A1.
104. PW25 Dr. Rajender Singh, Director, CFSL, has also proved the report bearing No. CFSL/98/D377, dated 31.12.98, (D26), Ex.PW25/A, which was prepared by Sh. N.K. Aggarwal, Principal Scientific Officer of CFSL, New Delhi. The original of this report has been kept in RC 77(A)/97 as D34. He has also deposed that the report Ex.PW25/A was forwarded to SP, ACB, CBI, vide forwarding letter dated 11.1.99, Ex.PW25/B, under the signatures of Sh. T.R. Nehra, for the Director CFSL. Both these reports have proved on record that accused A.R. Bhati, K.C. Wahi (since deceased) and Bhupesh Karir have made various entries in the measurement books, the bills and the documents and they have CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 71 of 92 Special Judge, CBI01, Central, Delhi checked, verified and signed the same, as correct.
105. The material evidence on record and the testimonies of the prosecution witnesses, as discussed above, has established on record, beyond a shadow of doubt, that accused A.R. Bhati, J.E., K.C. Wahi, A.E. (since deceased) and accused Bhupesh Karir, Contractor, have entered into a criminal conspiracy to cheat the CPWD and accused A.R. Bhati and K.C. Wahi had abused 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 coaccused Bhupesh Karir (contractor).
106. 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 CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 72 of 92 Special Judge, CBI01, Central, Delhi 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. 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 CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 73 of 92 Special Judge, CBI01, Central, Delhi 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, 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 well known 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 CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 74 of 92 Special Judge, CBI01, Central, Delhi 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 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.699 700, 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 conspiracy; but, CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 75 of 92 Special Judge, CBI01, Central, Delhi 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)
107. In the present case also, the prosecution witnesses examined by the CBI, during the trial, have proved, beyond a shadow of doubt that accused Bhupesh Karir (contractor) had performed the work of replacement of only 64 numbers PFRC Rectangular Manhole covers, but, inflated and false entries were made by the accused A.R.Bhati, JE, in the measurement book No. 5904, Ex.PW1/Q, to show that a total of 282 PFRC rectangular manhole covers were replaced. Coaccused K.C.Wahi, AE has also, intentionally and wilfully, in conspiracy, with the other accused persons, has falsely verified and test checked these false entries in the measurement book No. 5904, as correct. The first & final bill for Rs.1,85,274/ Ex.PW1/K, was submitted by accused Bhupesh Karir and was forwarded by CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 76 of 92 Special Judge, CBI01, Central, Delhi 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, the measurement book and other documents and was supposed to verify the 50% of the entries of the work done. But, he has falsely verified these entries and forwarded the bill along with the other relevant documents and the measurement book to the coaccused Executive Engineer, Phool Singh, at the divisional office for passing and payment. Accused Phool Singh, Executive Engineer was required to take the prior written permission of the competent authority. But, no such procedure was followed by accused K.C. Wahi (since deceased).
108. The relevant rules of procedure, as per the prevailing CPWD Manual, regarding the deviations in the contract are reproduced below, for ready reference :
Definition 25.1 Deviation in the contract would normally comprise of:
(a) New items of work, i.e., items completely new and in addition to the items in contract. These are commonly known as Extra or Additional items.
(b) Substituted items, i.e., items which substitute the existing ones or are taken up in lieu of those already provided in the contract. These can be with slight modification or partially omitting items of work in the CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 77 of 92 Special Judge, CBI01, Central, Delhi contract.
(c) Deviation in quantities of items, i.e., where there is increase or decrease in the quantities of items of work in the agreement. In other words, the nomenclature of work remains the same but the quantities vary with those provided in the agreement. In order to exercise effective control over deviations, instructions have been issued from time to time to keep these to the minimum and to obtain approval of the competent authority, where required. All plus and minus deviations beyond ten percent of the stipulated quantities in respect of Non A.H.R. & A.L.R. Items should invariably be approved by the tender accepting authority.
Deviation to be Avoided 25.2 A Divisional Officer is strictly prohibited from making or permitting any deviations, except trifling deviations from the quantities specified in the Schedule of Quantities, except under specific authority of the competent authority or in the case of emergency. In the latter case the change should be forthwith reported to the SE.
25.3 To obviate large scale deviations after call of tenders, the following instructions should be followed :
(i) Detailed estimates should be based on adequate plans and designs. Authority according technical sanction should satisfy itself that the proposals are structurally sound and estimates are based on adequate data.
(ii) Architectural working plans and elevations and other detailed drawings which are required to be mentioned in the nomenclature of various items in the detailed estimates should be ready before sanctioning the detailed estimate. Structural details of foundations and roof of ground floor should also be ready by then. Specifications incorporated in the detailed estimates CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 78 of 92 Special Judge, CBI01, Central, Delhi should be precise and comprehensive and should be scrutinized carefully by the officer sanctioning the estimate.
(iii) Changes in the specifications from those indicated in the contract documents should be made with the specific orders of the authority technically sanctioning the detailed estimates for the project.
Prior sanction of competent authority necessary for deviations 25.4 If deviations from the sanctioned plans and estimates become necessary, these should ordinarily be first discussed by the JE/AE, with the EE and, if he agrees in principle, then the proposals should be formulated. The EE shall be responsible to obtain the prior sanction of the competent authority to such deviations. The fact that the deviations are shown in the architect's plans should not be construed as having the sanction of the competent authority. The Architect should, similarly, obtain prior concurrence of the competent authority for making deviations from the approved plans, on the basis of which, estimates have been framed and tenders called for. In the case of Architects, the competent authority will be the same authority who has sanctioned the estimate technically.
109. Perusal of the above provisions clearly indicate that the accused were strictly prohibited from making or approving the variations to the extent of 211%, as done by them in the present case. Accused were required to obtain the prior written permission of the competent authority.
CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 79 of 92 Special Judge, CBI01, Central, Delhi
110. It has been held by the Hon'ble High Court of Delhi, in case titled as, "Runu Ghosh vs. C.B.I", reported as, "2011 SCC OnLine Del 5501", as under :
" 73. Having regard to the previous history of the statute, the amendments to the 1947 Act, its avowed objects and the distinctive structure which Parliament adopted consciously, under the 1988 Act, despite being aware of the preexisting law, as well as the decisions of the Courtthe conclusion which this court draws is that mens rea is inessential to convict an accused for the offence under Section 13(1)(d)(iii). It would be sufficient if the prosecution proves that the public servant "obtains" by his act, pecuniary advantage or valuable thing, to another, without public interest. The inclusion of public interest, in the opinion of the Court, tips the scale in favour of a construction which does not require proof of mens rea. There can be many acts of a public servant, which result in pecuniary advantage, or obtaining of a valuable thing to someone else; typically these may relate to payment of royalty, grant of license or concessions, issuance of permits, authorizations, etc. Yet, such grants, concessions, or other forms of advantages to third parties would not criminalize the public servant's actions, so long as they have an element of public interest. They (acts of the public servant) are outlawed, and become punishable, if they are "without public interest".
xxxx xxxx xxxx xxxx "78. In a previous part of this judgment, what constitutes "public interest" and the trust element, which informs every decision of a public servant or agency, was discussed and emphasized. The State CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 80 of 92 Special Judge, CBI01, Central, Delhi in its myriad functions enters into contracts, of various kinds, involves itself in regulation, awards or grants largesse, and holds property. Each action of the State must further the social or economic goals sought to be achieved by the policy. Therefore, when a public servant's decision exhibits complete and manifest disregard to public interest with the corresponding result of a third party obtaining pecuniary advantage or valuable thing, he is fastened with responsibility for "criminal misconduct" under Section 13(1)(d)(iii). There is nothing reprehensible in this interpretation, because the "act" being "without public interest" is the key, the controlling expression, to this offence. If one contrasts this with "abuse" of office resulting in someone "obtaining" "pecuniary advantage or valuable thing", it is evident that Section 13(1)(d)(ii) may or may not entail the act being without public interest. This offenceunder Section 13(1)(d)(iii) advisedly does not require proof of intent, or mens rea, because what Parliament intended was to punish public servants for acts which were without public interest. This kind of offence is similar to those intended to deal with other social evils, such as food and drug adulteration, (offences under Prevention of Food Adulteration Act, Section 13(1), Drugs and Cosmetics Act:, Section 7(1) Essential Commodities Act, 1955, Section 25, Arms Act, 1959), possession of explosives, air and water pollution, etc.
79. What then is the behaviour or act which attracts such opprobrium as to result in criminal responsibility? It is not every act which results in loss of public interest, or that is contrary to public interest, that is prosecutable offence. There can be no doubt that all acts prejudicial to public interest, can be the CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 81 of 92 Special Judge, CBI01, Central, Delhi subject matter of judicial review. In those cases, courts consider whether the decision maker transgressed the zone of reasonableness, or breached the law, in his action. However, it is only those acts done with complete and manifest disregard to the norms, and manifestly injurious to public interest, which were avoidable, but for the public servant's overlooking or disregarding precautions and not heeding the safeguards he or she was expected to, and which result in pecuniary advantage to another that are prosecutable under Section 13(1)(d)(iii). In other words, if the public servant is able to show that he followed all the safeguards, and exercised all reasonable precautions having regard to the circumstances, despite which there was loss of public interest, he would not be guilty of the offence. The provision aims at ensuring efficiency, and responsible behaviour, as much as it seeks to outlaw irresponsibility in public servant's functioning which would otherwise go unpunished. The blameworthiness for a completely indefensible act of a public servant, is to be of such degree that it is something that no reasonable man would have done, if he were placed in that position, having regard to all the circumstances. It is not merely a case of making a wrong choice; the decision should be one such as no one would have taken.
xxxx xxxx xxxx xxxx
81. As notice previously, the silence in the statute, about the state of mind, rules out applicability of the mens rea or intent standard, (i.e. the prosecution does not have to prove that the accused intended the consequence, which occurred or was likely to occur). Having regard to the existing law Section 13(1)(1)(e) (which does not require proof of criminal intent) as CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 82 of 92 Special Judge, CBI01, Central, Delhi well as the strict liability standards prevailing our system of law, therefore, a decision is said to be without public interest, (if the other requirements of the provision, i.e. Section 13(1)(d)(iii) are fulfilled) if that action of the public servant is the consequence of his or her manifest failure to observe those reasonable safeguards against detriment to the public interest, which having regard to all circumstances, it was his or her duty to have adopted.
82. It would be useful to in this context, take recourse to certain examples. For instance, in not adopting any discernable criteria, in awarding supply contract, based on advertisements calling for responses, published in newspapers having very little circulation, two days before the last date of submission of tenders, which result in a majority of suppliers being left out of the process, and resultant award of permits to an unknown and untested supplier, would result in advantage to that individual, and also be without public interest, as the potential benefit from competitive bids would be eliminated. Likewise, tweaking tender criteria, to ensure that only a few applicants are eligible, and ensure that competition (to them) is severely curtailed, or eliminated altogether, thus stifling other lines of equipment supply, or banking on only one life saving drug supplier, who with known inefficient record, and who has a history of supplying substandard drugs, would be acts contrary to public interest. In all cases, it can be said that public servant who took the decision, did so by manifestly failing to exercise reasonable proper care and precaution to guard against injury to public interest, which he was bound, at all times to do. The intention or desire to cause CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 83 of 92 Special Judge, CBI01, Central, Delhi the consequence may or may not be present; indeed it is irrelevant; as long as the decision was taken, which could not be termed by any yardstick, a reasonable one, but based on a complete or disregard of consequence, that act would be culpable.
83. The test this Court has indicated is neither doctrinaire, nor vague; it is rooted in the Indian legal system. A public servant acts without public interest, when his decision or action is so unreasonable that no reasonable man, having regard to the entirety of circumstances, would have so acted; it may also be that while deciding or acting as he does, he may not intend the consequence, which ensues, or is likely to ensue, but would surely have reasonable foresight that it is a likely one, and should be avoided. To put in differently, the public servant acts without public interest, if his action or decision, is by manifestly failing to exercise reasonable precautions to guard against injury to public interest, which he was bound, at all times to do, resulting in injury to public interest. The application of this test has to necessarily be based on the facts of each case; the standard however, is objective. Here, one recollects the following passage of Justice Holmes in United States vs. Wurzach 1930 (280) US 396 :
"Wherever the law draws a line there will be cases very near each other on opposite sides. The precise course of the line may be uncertain, but no one can come near it without knowing that he does so, if he thinks, and if he does so it is familiar to the criminal law to make him take the risk"
(emphasis supplied by me) CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 84 of 92 Special Judge, CBI01, Central, Delhi
111. In the present case, the evidence on record has established, beyond a shadow of doubt that the accused A.R.Bhati and K.C.Wahi (since deceased) have connived with coaccused Bhupesh Karir to falsify the records and to approve the deviations to the extent of 211% in utter disregard to the rules as prescribed under the CPWD Manual, with the sole motive of causing unlawful pecuniary gain to their coaccused Bhupesh Karir. They have verified and forwarded the first & final bill, worth Rs.1,85,274/, on the basis of the falsified records. The evidence on record clearly indicate that no approval of the deviations was taken by the accused persons from the competent authority. The aforesaid officers of the CPWD, while approving the deviations and forwarding the bill of accused Bhupesh Karir had abused and misused their authority to benefit the coaccused Bhupesh Karir, without any public interest. The falsification of the records and documents by them, can, by no stretch of imagination, be termed as a part of their official duties.
Sanction for Prosecution
112. During the course of final arguments, the Ld. Defence counsels for accused A.R. Bhati and Phool Singh have also objected to the validity of the sanction orders Ex.PW.4/R & CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 85 of 92 Special Judge, CBI01, Central, Delhi Ex.PW6/A, regarding the prosecution of the accused A.R. Bhati, J.E.. and Phool Singh, Executive Engineer.
113. 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 CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 86 of 92 Special Judge, CBI01, Central, Delhi 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 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 Anti Corruption, 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 function and the sanctioning authority is required to CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 87 of 92 Special Judge, CBI01, Central, Delhi 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)
114. In the present case, the prosecution could not examine the competent authority, i.e., 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, vide sanction order Ex.PW.4/R, as Sh. S.K. Singhal was reported to have already expired. But, the prosecution has examined PW29 Smt. Gandhimati Natrajan, UDC, to identify and prove his signatures on the sanction order Ex.PW4/R, as she had worked with Sh. S.K. Singhal, S.E., for about four years and has CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 88 of 92 Special Judge, CBI01, Central, Delhi accordingly identified his signatures.
115. Perusal of the sanction order Ex.PW4/R shows that while 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.PW4/R 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. Therefore, in the considered opinion of this court, the sanction order Ex.PW4/R cannot be said to be suffering from any infirmity or illegality 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.
116. Sanction order Ex.PW.6/A, regarding grant of sanction under Section 19 of The Prevention of Corruption Act, 1988, for prosecution of accused Phool Singh, E.E., by the President of India, has been proved by PW6 Sh. Munish Girdhar, Under CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 89 of 92 Special Judge, CBI01, Central, Delhi Secretary to the Government of India, Ministry of Urban Development, New Delhi. He has categorically stated that the sanction order Ex.PW.6/A, for prosecution of accused Phool Singh, Executive Engineer, CPWD, was accorded by the Ministry of Urban Development, on behalf of the President of India, on the basis of the incriminating material, i.e., the documents and the statements of witnesses, produced by the Investigating Agency. He has categorically stated that he signed the sanction order, being the competent conveying authority, under the Business Conduct Rules.
117. Perusal of the sanction order Ex.PW.6/A, dated 15.02.2000 also indicates that the entire details of the case and the evidence against accused Phool Singh has been narrated therein and it has been specifically mentioned that the President of India, being the authority competent to remove Phool Singh, Executive Engineer, from the office, after fully and carefully examining the material, including the statements of the witnesses recorded by the Investigating Agency under the provisions of Section 161 of the Cr.P.C., placed before him, in regard to the allegations and the circumstances of the case, has considered that accused Phool Singh, the then Executive Engineer has committed the CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 90 of 92 Special Judge, CBI01, Central, Delhi offence and he should be prosecuted in the court of law, for the said offences. The details mentioned in the sanction order dated 15.02.2000, Ex.PW.6/A, clearly indicate that the entire material, which was collected by the Investigating Agency, during the investigations, was placed before the competent authority, for his perusal. Therefore, in the considered opinion of this court, the sanction order Ex.PW.6/A, which was conveyed by PW6 Sh. Munish Girdhar, on behalf of the President of India, cannot be said to be an invalid or illegal sanction order.
RESULT
118. In view of the above discussions, I am of the considered opinion that the prosecution has successfully proved its case, against the accused A.R. Bhati, J.E. and accused Bhupesh Karir, Contractor, beyond a shadow of doubt, for the offences punishable under Section 120B read with Section 477A, 511 r/w 420 IPC & Section 13(2) read with Section 13(1) (d)(iii) of The Prevention of Corruption Act, 1988. The prosecution has also successfully proved its case against accused A.R.Bhati, J.E., beyond a shadow of doubt, for the substantive offences punishable under Sections 477A & Section 511 read with Section 420 IPC and the offence punishable under Section 13(2), CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 91 of 92 Special Judge, CBI01, Central, Delhi read with Section 13 (1)(d)(iii) of The Prevention of Corruption Act, 1988. The prosecution has also successfully proved its case, beyond a shadow of doubt, against the accused Bhupesh Karir, for the substantive offence punishable under Section 511 read with Section 420 IPC. The accused A.R. Bhati, J.E. and Bhupesh Karir, contractor, are accordingly, held guilty and convicted for the said offences.
119. However, the prosecution has failed to prove any case, against accused Phool Singh, Executive Engineer and Sanjay Kumar Malhotra, contractor, beyond a shadow of doubt, as already observed in Para75 of this judgment. Accordingly, both these accused persons are hereby acquitted of all the charges, as framed against them, on 16.12.2005.
Let the convicts be heard on the 'pointofsentence' on the next date of hearing.
It is ordered accordingly.
Announced in open Court on 27th day of October, 2016 BRIJESH KUMAR GARG Special Judge:CBI01 Central District. Delhi CBI Vs. Phool Singh etc. (RC No.78(A)/1997) Page 92 of 92 Special Judge, CBI01, Central, Delhi