Delhi District Court
Central Bureau Of Investigation vs Shri Anil Kumar Saini S/O Sh. J.S. Saini on 7 February, 2014
IN THE COURT OF SHRI L.K. GAUR, SPECIAL JUDGE
P.C. ACT (CBI09), CENTRAL DISTRICT,
TIS HAZARI: DELHI
CC No. 06/2011
R.C. No.62(A)/08/CBI/ACB/ND
Case I.D No. 02401R0374942010
Central Bureau of Investigation
Versus
1. Shri Anil Kumar Saini S/o Sh. J.S. Saini
H. No. 9/89, Sector3, Rajinder Nagar,
Sahibabad, U.P.
2. Shri Rakesh Kumar Mittal S/o Sh. Ishwar Dass
Flat No. 123, Pocket H33,
Sector3, Rohini,
Delhi
3. Shri Shailesh Pahuja
S/o Shri Chandrabhan Pahuja,
BI576, Madangir,
New Delhi.
Date of Institution : 30.07.2010
Date of reserving Judgment : 16.01.2014
Date of Pronouncement : 07.02.2014
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JUDGEMENT
The accused persons were sent up for trial with the allegations of having committed offences punishable under Section 120B read with Section 420 IPC read with Section 13(2) read with 13 (1)(d) of the Prevention of Corruption Act, 1988 (herein after Act) and substantive offences therein. INTRODUCTION :
2. Accused no.1 Sh. Anil Kumar Saini was posted as Executive Engineer, PWD, Division M311 in the year 2008.
Accused no.2 Sh. Rakesh Kumar Mittal was posted in the Sub Division M11 as Assistant Engineer. The allegation against them is that they in connivance with the accused no.3 Sh. Shailesh Pahuja proprietor of M/s Rajdhani Suppliers and Services had awarded him the work order dated 26.07.2008 for the installation of 54 spring posts at Punjabi Bagh Flyover on Ring Road at exorbitant rates without conducting any market 06/11 2 of 95 survey with a criminal intention to cause wrongful loss to the Government and corresponding gain to accused no.3 Sh. Shailesh Pahuja.
ALLEGATIONS IN DETAIL :
3. According to the charge sheet filed there was a letter of 10.07.2008 received by the Superintending Engineer, M31, PWD, Punjabi Bagh Crossing, New Delhi, from Sh. Rupinder Kumar, Dy. Commissioner of Police, Traffic (SR), Delhi, requesting for installation of road safety devices on Punjabi Bagh Flyover at Ring Road at the earliest, though there was no time limit fixed in this matter. The accused no.2 Sh. Rakesh Kumar Mittal with the help of one Anil Kumar Gupta, Junior Engineer posted under his control prepared the estimate for the installation of spring posts giving therein the rate of one spring post model DA954 make Dark Eye as Rs.5406.80. This rate was taken for the purpose of calculating the estimate without conducting any market survey by the accused no.2 Sh. Rakesh 06/11 3 of 95 Kumar Mittal or having asked Sh. Anil Kumar Gupta Junior Engineer to prepare the estimate of the same. This rate was given on the basis of a rate list of M/s Texla Plastics & Metals Pvt. Ltd. wherein the rate of one spring post was given to be Rs.
4400/ per piece. This estimate was forwarded to the accused no.1 Sh. Anil Kumar Saini, Executive Engineer along with the history sheet. He had accordingly accorded the technical sanction for the same by letter dated 19.07.2008. Smt. Rameshwari Chauhan the then Draftsman had checked the mathematical calculation of the said estimate before getting it sanctioned and forwarded the same to the accused no.1 Sh. Anil Kumar Saini, Executive Engineer after putting her signatures thereon.
4. Though there was no emergency involved in this matter, but, using the emergency provisions in the matter, spot quotations were invited through three agencies, one of them was accused no.3 Shri Shailesh Pahuja. The spot quotations were submitted by these agencies on 21.07.2008. The same 06/11 4 of 95 were opened by accused no.2 Sh. Rakesh Kumar Mittal in the Sub Division Office in the presence of the representatives of the said agencies who had put their signatures on the Quotation Opening Register on the same day. The spot quotation of accused no.3 was found to be the lowest who had quoted the rates 0.29% below the estimated rates. A comparative statement and a justification statement thereafter was prepared and submitted. The same along with the original quotations and a copy of technical sanction dated 19.07.2008 granted by the accused no.1 Sh. Anil Kumar Saini were then forwarded to the Chief Engineer by letter dated 22.07.2008 under intimation to the Superintending Engineer, PWD, CRMC, M31, New Delhi with the recommendation that the quotation of accused no.3 of M/s Rajdhani Suppliers and Services may be accepted being the lowest.
5. On the basis of the recommendations of accused no.1 Sh. Anil Kumar Saini and also the recommendations of the Superintending Engineer, Sh. O.P. Gadhyan the then Chief 06/11 5 of 95 Engineer had accepted the lowest offer of M/s Rajdhani Suppliers and Services, New Delhi on 24.07.2008. After this approval had been received, the accused no.1 Shri Anil Kumar Saini had awarded the contract to M/s Rajdhani Suppliers and Services vide letter dated 26.07.2008. After the completion of the work the measurements were taken and the payment was made to accused no.3 Sh. Shailesh Pahuja, Prop. of M/s Rajdhani Suppliers & Services by a cheque dated 12.08.2008.
6. According to the charge sheet filed the investigation further revealed that the similar spring posts were got installed by MCD at a much lower rate i.e @ Rs.1473/ per unit. Similarly it was found that M/s Muskaan Safety Solutions Pvt. Ltd. a sister concern of M/s Texla Plastics & Metals Pvt. Ltd. had supplied the spring post of the same brand to various agencies/parties at much cheaper rates ranging between Rs.1100/ to Rs.2050/ inclusive of installation charges.
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7. There is one more angle which has been referred to in the charge sheet that M/s Rajdhani Suppliers and Services of the accused no.3 Sh. Shailesh Pahuja though claimed to have purchased the said spring posts from one M/s Kumar Sales, Shahdara, Delhi, but in fact they were not purchased from the said concern, but only the receipt had been taken from it after having paid the commission @ ½ % of the amount of sale and the sale tax payable. It has also been added that even as per the said receipt the said spring posts were stated to have been acquired at the rate of Rs.4180/ per piece. FRAMING OF CHARGE
8. On the basis of the allegations and after hearing the Ld. Public Prosecutor for CBI and Ld. Defence Counsels, all the accused were charged for having committed offence under Section 120B read with Section 420 IPC read with Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and pursuant to the said conspiracy having caused loss to 06/11 7 of 95 the Government of NCT to the tune of Rs.1,60,340/. Accused no.1 Sh. Anil Kumar Saini, Executive Engineer and accused no. 2 Sh. Rakesh Kumar Mittal, Assistant Engineer were separately charge sheeted for having committed offence under Section 13(d) punishable under Section 13(2) of the Prevention of Corruption Act.
9. During the course of the trial eighteen witnesses had been examined by the prosecution.
10. Witness PW1 Sh. Chander Shekhar Prasad who was working as Director General, CPWD had deposed that he was competent to remove accused no.2 Sh. Rakesh Kumar Mittal from service and, therefore, competent to accord sanction for his prosecution under Section 19 of the Act. He had identified Ex.PW1/A the order of sanction by which he had accorded sanction for prosecution for accused no.2 Sh. Rakesh Kumar Mittal.
06/11 8 of 95 11. Witness PW2 Sh. Raj Kumar Varshneya who was the Under Secretary in the Ministry of Urban Development had
deposed that President of India was the competent authority to accord sanction for prosecution of accused no.1 Sh. Anil Kumar Saini. Therefore, sanction for his prosecution was accorded by the Minister of Urban Development and signed by him as the Under Secretary. He had processed the case for the sanction of prosecution and placed the same before the then Minister of Urban Development Sh. Kamal Nath. He had placed before the Minister all the documents received from CBI, recommendations from the CPWD as well as CVC along with his own analysis of facts. The Minister had gone through the same before according the sanction. He had added that Minister had the delegated powers to authenticate the orders on behalf of the President. He had verified the said orders of sanction before putting his signatures Ex.PW2/A with regard to the sanction of the prosecution of the accused no.1 Sh. Anil Kumar Saini.
06/11 9 of 95 12. Witness PW3 Sh. Gurinder Singh Bhandari, General
Manager of M/s Muskaan Safety Solutions Pvt. Ltd. had deposed that they had an office at 3, Masjid Road, Jangpura, New Delhi. M/s Muskaan Safety Solutions Pvt. Ltd. was dealing in road safety devices such as road studs, delineators, spring posts, reflectors etc. Dark Eye was brand of M/s Texla Plastics & Metals Pvt. Ltd. which was sister concern of M/s Muskaan Safety Solutions Pvt. Ltd. He had explained in his testimony that M/s Muskaan Safety Solutions Pvt. Ltd. had supplied the spring posts to - The Executive Engineer, NH Division, HP, PWD, Solan, H.P @ Rs.2050/ per piece plus taxes vide invoice receipt dated 16.05.2008, Ex.PW3/A; M/s AJS Scale International, Janakpuri, Delhi @ Rs, 1250/ per piece vide invoice dated 21.07.2007, Ex.PW3/B; M/s Grover Sales Corporation, Chandni Chowk, Delhi @ Rs.1100/ per piece plus taxes vide invoice dated 01.10.2007, Ex.PW3/C; M/s KMGS Road Signs Pvt. Ltd., Delhi @ Rs.1150/ per piece plus taxes vide invoice dated 10.10.2007, Ex.PW3.D and M/s DIMTS Ltd., 06/11 10 of 95 New Delhi @ Rs.1533.34 vide invoice dated 16.10.2008, Ex.PW3/E.
13. According to this witness the rates of spring posts during the year 200708 were any where between Rs.1000/ to Rs. 2000/. He had identified the price list Ex.PW3/F of January 2006 wherein the rate of a spring post had been given to be Rs. 4400/. He had provided the explanation that in this price list the price which was given was negotiable and after 2006 the price of spring post had been going down continuously owing to two factors, first there were more competitors in the market and secondly unlike the earlier times after 2006 the orders used to come in bulk for supply of spring posts. He had further added that after 2006 the Company had stopped the practice of issuing such price lists. He had identified in his testimony the copy of the Certificate of Registration of Design of the said spring post Ex.PW3/G. 06/11 11 of 95
14. Witness PW4 Sh. Laxmi Narain a Chartered Accountant had identified the bill Ex.PW4/A of M/s Kumar Sales dated 17.07.2008 issued in favour of M/s Rajdhani Suppliers & Services, Madangir, Delhi. As per this bill the spring post and solar studs had been supplied to M/s Rajdhani Suppliers & Services for Rs.4180/ per piece. According to his testimony the said spring posts mentioned in the said bills in fact had never been sold to M/s Rajdhani Suppliers & Services and only the bills had been issued on the request of one Ashwani Kumar who was the proprietor of M/s Rajdhani Suppliers & Service. The payment was received against the said bills by a cheque of Rs.5 lacs and the remaining amount of Rs.5935/ was received in cash. This cheque was deposited in the account of M/s Kumar Sales at Punjab National Bank, Khari Baoli, Delhi and after getting the credit against the said cheque and deducting the commission, the money was returned to Sh. Ashwani Kumar in cash. When he was asked about accused no.3 i.e Sh. Shailesh Pahuja, he had deposed that Sh. Shailesh Pahuja was perhaps the brother of Sh. Ashwani Kumar. This witness had further 06/11 12 of 95 identified the documents of M/s Kumar Sales such as attested copy of the Registration Certificate (Central) Ex.PW4/B1 and Registration Certificate for local sales Ex.PW4/B2. As per his testimony Sh. Ashwani Kumar had supplied copy of rate list of M/s Texla Plastics & Metals Pvt. Ltd. on the basis of which the Bill Ex.PW4/A was prepared.
15. Witness PW5 Sh. Trilok Singh had deposed that he was working as Manager with M/s KMGS Road Signs Pvt. Ltd. He had identified the invoice Ex.PW3/D with regard to the spring post 14 in number supplied to M/s KMGS Road Signs Pvt. Ltd. by M/s Muskaan Safety Solutions Pvt. Ltd. @ Rs.1150/ per piece. He had identified Ex.PW3/DX1 as the copy of the said receipt.
16. Witness PW6 Sh. Mohan Lal, Executive Engineer of MCD had deposed about the agreement entered between MCD and one M/s Super Bristle Brushware Manufacturing Co. for the fixing of spring posts at various locations. He had further 06/11 13 of 95 identified the work order issued in favour of M/s Super Bristle Brushware Manufacturing Co. Ex.PW6/B wherein the rate of one spring post was given to be Rs.1473/ which was inclusive of cost of installation. In his testimony he also referred to the sample of the Bollard sent to Shriram Institute of Industrial Research for testing by one document Ex.PW6/C and the receipt of the report Ex.PW6/D from Shriram Institute of Industrial Research whereby on testing the sample was found to be O.K. This report was approved by him, Junior Engineer and Assistant Engineer by making a note on the back side of this report Ex.PW6/D1. After the installation was complete, the bill was raised and payment was made. He had identified the bill and the note related thereto Ex.PW6/E and Ex.PW6/A1, respectively.
17. Witness PW7 Sh. Desh Raj Puria who was working as Divisional Accountant with PWD in August 2009 and posted at Division No.311 had deposed about the seizure memos Ex.PW7/A to Ex.PW7/C by which he had supplied the 06/11 14 of 95 documents to CBI such as Quotation Opening Register Ex.PW7/A1, Measurement Book Ex.PW7/A2, Bunch of papers relating to the work order Ex.PW7/A3 to Ex.PW7/A16 and also Justification Statement Ex.PW1/X12 and the CPWD Manual Ex.PW7/C.
18. Witness PW8 Sh. Subhash Chand who was working as Value Added Tax Officer in the year 2009 had identified the letter Ex.PW8/A by which he had supplied the copy of the DVAT 06 and Central Sales Tax Registration Form B in respect of M/s Kumar Sales i.e Ex.PW4/B1 and Ex.PW4/B2 to CBI.
19. Witness PW9 Sh. Anil Oberoi from Punjab National Bank had identified production cum seizure memo Ex.PW9/A by which he had supplied the Statement of Account Ex.PW9/B to CBI of the current account to M/s Kumar Sales, Subhash Nagar, Naveen Shahdara, Delhi for the period July 2008 to December 2008.
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20. PW10 Sh. Rajender Singh workng as ACP (Traffic) in November 2011 had deposed that in May, 2009 he was posted as ACP Traffic, West District. On 18.02.2009 Inspector B.M. Meena from CBI had came to his office and shown to him a letter of DCP Traffic Sh. Rupender Kumar written to the Superintending Engineer, Punjabi Bagh in the year 2008 Ex.PW10/A. Purpose of this letter was to make a request to PWD i.e Superintending Engineer for installing Bollards at Punjabi Bagh Flyover. As per his testimony such letters were only of advisory nature and not obligatory.
21. Witness PW11 Sh. Harpreet Singh working as General Manager with M/s AJS Scale International had identified the Purchase Invoice Ex.PW3/B by which the spring post had been supplied to his Company, 12 in number, @ Rs.1250/ per piece.
22. Witness PW12 Sh. V.K. Malik had deposed about the procedure to be followed while awarding work by PWD and had also identified the seizure memo Ex.PW12/A by which he had 06/11 16 of 95 supplied two documents to CBI Ex/.PW12/A1 and Office Memorandum issued by the office of DGW laying down the guidelines/procedure regarding delegation of official powers to different officials of CPWD and Office Memorandum Ex.PW12/A2 relating to local purchase being made of stationary and other articles from Kendriya Bhandar, NCCF and other Multi State Cooperative Societies.
23. Witness PW13 is the Director of M/s Muskaan Safety Solutions Pvt. Ltd. He had deposed that in the year 200708 the rates of spring posts model Dark Eye DA954 were in the range of Rs.1000/ to Rs.2000/ and the same were negotiable depending upon the quantity and the terms of payment.
24. Witness PW14 Sh. Sanjay Sharma, Assistant Engineer, Project Division, MCD had identified the seizure memo Ex.PW14/A by which he had supplied the documents referred to in the testimony of the witness PW6 Sh. Mohan Lal Ex.PW6/A to Ex.PW6/E 06/11 17 of 95
25. Witness PW15 Inspector Pankaj Vats is the complainant on whose complaint the present case was registered. According to his testimony he had conducted preliminary inquiry in this matter and on inquiry he had found the irregularities being committed in the awarding of contract. According to him he had found prima facie that the offences under the Prevention of Corruption Act and Penal Code had been committed. He had identified his complaint Ex.PW15/A on the basis of which the FIR Ex.PW15/B was registered by the then S.P Sh. Vinit Agarwal.
26. Witness PW16 Sh. Brij Mohan Meena is the Investigating Officer in this case to whom the investigation was handed over after the FIR Ex.PW15/B was registered on the basis of the complaint Ex.PW15/A made by S.I Pankaj Vats. He had referred in his testimony to various documents which he had collected during the course of the investigation and also statements related to various witnesses.
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27. The testimony of witness PW17 Sh. Manish Kumar an Officer working with ICICI Bank remained inconclusive and in his place one witness PW18 Sh. Suresh Kumar working as Manager with ICICI Bank was examined who had placed on record the statement of account of M/s Rajdhani Suppliers and Services for the period 1.08.2008 till 31.12.2008 certified by him under Section 2A of the Banker's Book of Evidence Act. He had proved the said certificate as Ex.PW18/A and the Statement of Account as EX.PW18/A1. As per the entry dated 20.08.2008 at point X1 an amount of Rs.8,73,451/ was deposited in the account of M/s Rajdhani Suppliers and Services by a cheque no.657120.
28. All the incriminating evidence which had come on record was put to the accused persons under Section 313 Cr.P.C and their statements were recorded.
06/11 19 of 95 Defence Evidence :
29. The defence evidence was led in this case by the accused no.1 and 2 by examining nine witnesses.
30. Witness DW1 Sh. Hari Singh had deposed that in the year 2010 he was posted as Executive Engineer, PWD, Division M112, Delhi and he was also APIO of his Department. He had identified one letter Ex.DW1/A written by him to Sh. Anil Kumar Saini accused no.1 supplying the information to him along with the annexures under Right to Information Act. As per his testimony he had supplied this information on the basis of the records available which included:
Cash voucher by which the payment was made to NCCF @ Rs.5500/ per spring post DA954 inclusive of installation cost but excluding Sales Tax cost Ex.DW1/B1;
06/11 20 of 95 Cash voucher dated 06.11.2007 by which the payment
was made to Kendriya Bhandar @ Rs.6150/ per spring post DA954 inclusive of installation cost but excluding Sales Tax Ex.DW1/B2;
Cash voucher dated 11.7.2007 by which the payment was made to Kendriya Bhandar @ Rs.6150 per spring post DA954 inclusive of installation cost but excluding Sales Tax Ex.DW1/B3; and Cash voucher dated 24.10.2007 by which the payment was made to Kendriya Bhandar @ Rs.6150/ per spring post DA954 inclusive of installation cost but excluding Sales Tax Ex.DW1/B4.
31. Witness DW2 Sh. K.S Gaur had identified the reply dated 2.2.2010 supplied by Smt. Sadhna Baul under Right to Information Act to accused no.2 Sh. Rakesh Kumar Mittal along 06/11 21 of 95 with the extract of the Duties of the Officers of CPWD Departmental Code Ex.DW2/A. He had also identified one office copy of the reply dated 7.1.2010 also supplied to Sh. Rakesh Kumar Mittal bearing the signatures of Smt. Sadhna Baul along with office Memorandum dated 17.1.2003 as Ex.DW2/B collectively. As per his testimony Smt. Sadhna Baul was working as PIO of the System Development Unit. He had identified her signatures as she had been working under him.
32. DW3 Sh. Tejender Singh who was posted as Superintending Engineer, PWD, in the year 2006 to 2009 had identified one Extra Item Statement no.4 dated 30.3.2007 Ex.DW3/A bearing his signatures according to which spring post DA 954 size 710X200 were to be installed at Mathura Road. The cost of one spring post DA 954 which was approved was Rs.5490/ inclusive of cost of installation including epoxy and Sales Tax. He had identified one proposal submitted by the Executive Engineer to the Superintending Engineer relating to the Extra Item Statement No.II prepared by one Giani Ram 06/11 22 of 95 Executive Engineer with letter dated 16.3.2007. As per the letter and the proposal collectively Ex.DW3/B, the cost of one spring post DA954 size 710X200mm. was given to be Rs. 5903.50. He had, however, approved Rs.5500/ as rate of one spring post. He had identified the said document as Ex.DW3/C. He in his testimony had also identified still one another Extra Item Statement no.1 Ex.PW3/D wherein the cost of installation of one spring post DA954 size 710X200 mm. Inclusive of cost and tax had been given as Rs.5500/.
33. Witness DW4 Sh. Pramod Kumar, working as Executive Engineer with PWD M212 and also as PIO, had identified the reply Ex.DW4/A with regard to the information which was supplied to Sh. Anil Kumar Saini. In this reply the rates of spring posts at which the same were procured from NCCF and Kendriya Bhandar were mentioned.
34. Witness DW5 Sh. Mohan Lal who was working as PIO at Division F122 had identified the information Ex.DW5/A supplied 06/11 23 of 95 to Sh. Anil Kumar Saini along with the documents mentioned therein. He had identified the documents which were supplied to Sh. Anil Kumar Saini as Ex.DW5/A1 to Ex.DW5/A11 which included various indents and final bills. As per the indents i.e Ex.DW5/A1 to A9 the price of one spring post given was Rs. 5,000/ exclusive of VAT. As per the final bill Ex. PW5/A10 related to one Agreement No.43/EE/PWD213/0708 the price of one spring post given was Rs.5500/ inclusive of taxes and installation charges. As per the final bill relating to Agreement No.64/EE/PWD213/0708 the price of one spring post given was Rs.5000/ inclusive of tax and installation charges.
35. Witness DW6 Sh. Chander Prakash who was working as UDC with PWD, Govt. of NCT, Division F132 had produced the file of one Agreement No.12/EE/EPDF132/200809 of Work Construction of Grade Separators at Mangol Puri Chowk, Delhi. He had identified the documents relating to the said agreement as DW6/A1 to A4. As per his testimony according to the agreement the spring posts were to be installed of Dark Eye 06/11 24 of 95 DA954 make and the price of one such spring post was Rs. 5420/ inclusive of tax and installation charges.
36. Witness DW7 Sh. Mahesh Singhal Executive Engineer National Highway Division, H.P, PWD, Solan, Himachal Pradesh had appeared in the Court and informed that there was one application filed under Right to Information Act by Sh. Anil Kumar Saini asking for information with regard to one invoice bearing no.028 dated 16.5.2008 of M/s Muskaan Safety Solutions Pvt. Ltd. by which some spring posts and road studs were stated to have been purchased by Executive Engineer, NH Division, HP PWD, Solan, H.P. In his capacity as PIO of Solan, NH Division, HP, PWD he had checked all the records and supplied the information stating interalia that NH Division, Solan, HP, PWD had not purchased any item against the said invoice. He had placed on record a copy of the application as well as the information he had supplied Ex.DW7/A and Ex.DW7/B respectively.
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37. Witness DW8 Sh. M.C Yadav working as Executive Engineer (Planning) in the office of Chief Engineer, Northern Zone5, CPWD, Jammu had deposed that in December 2009 and January 2010 he was posted as Executive Engineer, PWD, Division M211 and was also PIO of the said Division. After having seen the relevant record he had stated that he had supplied the necessary information Ex.DW8/A along with the copies of the record to Sh. Anil Kumar Saini. As per his testimony the annexures attached with the reply would show that the cost of one spring post Dark Eye model DA954 was Rs.5500/ except for two instances where the rates were given as Rs.5378.40 and Rs.6650.05. He had also identified four cash vouchers Ex.DW8/B1 to B4 relating to the payments made in respect of the installation of said spring posts.
38. Witness DW9 Sh. N.V.N Krishnan who was posted as Inspector of Police with CBI, ACB, New Delhi in January 2009 had identified his signatures on the seizure memo Ex.DW9/A vide which he had seized document related to this case during 06/11 26 of 95 a search conducted at the office premise of accused no.1 Sh. Anil Kumar Saini. As per this seizure memo he had also seized file Ex.DW9/B bearing particulars Agreement no.8/EE/PWD VI/200405 pertaining to providing and fixing of spring posts. ARGUMENTS
39. I have heard Ld Defence Counsels and Ld Prosecutor for CBI. I have gone through record of the case as well as written submissions from both sides.
No Urgency For Calling Spot Quotations:
40. One of the allegations in the Charge Sheet is that in this case there was no such urgency involved which could have justified the calling of spot quotations. The letter which was received from Shri Rupinder Kumar, Dy. Commissioner of Police, Traffic (SR) Delhi dated 10.07.2008 addressed to the Superintending Engineer did not provide any time limit within 06/11 27 of 95 which the road safety devices (spring post) should have been fixed justifying calling the spot quotations. As per the case of the prosecution such letters were being sent in routine from the office of the DCP (traffic). The letter which was written by the DCP (traffic) is a very small letter and I am reproducing the same here as under for ready reference : "There is a heavy flow of traffic which pass through Punjabi Bagh flyover on the Ring Road. The motorists tend to drive at a high sped which may cause accidents. In order to ensure that accidents do not take place we need to provide flexible bollards to segregate the straight and the traffic intend to take turn. Also, reflective delineators are also required on Punjabi Bagh flyover to caution the motorists during night time.
It is, therefore, requested that the matter may kindly be taken up on priority and get the above mentioned road safety measures provided at the earliest. For any further queries, the PWD officials may contact the area Traffic Inspector/Punjabi Bagh at Police Post MIG flats, 06/11 28 of 95 Rajouri Garden either personally or on phone no. 01125917400".
41. In order to establish that the said letter did not convey any emergency or urgency as was made out by the accused persons to make a diversion from the normal process of tendering and resort to spot quotations, the prosecution had examined witness Shri Rajinder Singh Son of Shri Mehar Singh PW10 retired ACP from Delhi Police. He had deposed "I would like to clarify that as ACP, Traffic, may be even for DCP Traffic, it was our duty to ensure the safety of roads and regulation of traffic on the roads and, therefore, in this context we used to have meetings with various agencies including the officials of PWD for issues like installation of safety devices on roads etc. We also used to write letters to them in this respect. The letter of the said DCP Traffic shown to me was one such letter". He had further added when he was asked about the purpose of writing the above letter Ex. PW10/A. 06/11 29 of 95 "Q: Can you tell the Court the purpose of writing of this letter ?
Ans: This letter was a request which was made to the officers of PWD i.e. Superintending Engineer making a request for the installation of bollards on Punjabi Bagh flyover. I would like to clarify that such letters were written in routine to various civic agencies for ensuring proper flow of traffic, but such letters are only advisory in nature and not obligatory".
42. The prosecution had examined one another witness Shri V.K. Malik working as Superintending Engineer (Contract & Manual) with CSQ Unit, PWD at the relevant time. The same letter was put to this witness to find out if the said letter conveyed any urgency. He had deposed as under :
"It is a letter from DCP (traffic) SR, Delhi. In this letter the word used is "priority". In my opinion it is left to the authority who is competent to accept the spot quotations whether work is urgent or not. It is difficult to say on the basis of this letter whether there was any urgency to execute this work or not.
06/11 30 of 95 Q: Can you tell the Court from your experience that in such like cases where such request had been received whether such requests had been considered to be urgent so as to call spot quotations instead of following the regular process of inviting tenders. Also clarify if such letters of request are considered by the department as advisory or mandatory in nature? A: It depends upon circumstances and competent authority has to take a view whether open bids are to be invited or work to be executed on the basis of spot quotations. Sometime such requests are of mandatory in nature and to be decided on its own merits."
43. The distinction I can find in the testimony of the witness PW10 Shri Rajender Singh, ACP and the testimony of witness PW12 Shri V.K. Malik is that the witness PW10 has given an outsider's perspective in interpreting the above letter and the testimony of the witness PW12 gives an insider's perspective in interpreting the same letter. The testimonies of PW10 and PW12 are only in the form of opinion on the said letter. I would like to further add that PW10 Shri Rajender Singh was not 06/11 31 of 95 involved in anyway in the issuance of the above letter Ex. PW10/A. He was not even posted in the West District where the said road safety devices (spring posts) were to be installed. He had no personal knowledge about this particular letter having been written by DCP (traffic) Shri Rupinder Kumar. Perhaps, if the prosecution had examined Shri Rupinder Kumar he would have been in a better position to tell the Court as to whether for him the said letter was a letter written in routine or he actually wanted the spring post to be installed "on priority"
"at the earliest". For the reason best known to the prosecution he had not been cited as a witness. Admittedly this witness PW10 Shri Rajender Singh had not even given this opinion in consultation with Shri Rupinder Kumar. In my opinion the testimony of the witness Shri Rajender Singh, PW10 can not be a substitute for the testimony of the witness Shri Rupinder Kumar who had written the said letter.
44. I am of the view that the question of urgency is a matter which is required to be seen in the given facts of the case from 06/11 32 of 95 the point of view as to whether the accused persons had a justification to treat this letter as conveying "urgency". It may be noted that in matters like this it would also depend on person to person as to whether he would like to treat this matter as urgent or not so urgent. Like it was deposed by Shri V.K. Malik that it was difficult to state on the basis of the letter that there was any urgency to execute this work or not and it would depend on circumstances and competent authority as to what view it is going to take on such a matter that is to invite tenders or to get the work executed on the basis of spot quotations.
45. Though the above letter does not lay down any outer limit but it gives a background that in order to regulate the traffic and to ensure that the accident do not take place the installation of flexible bollards was considered necessary. The letter also uses the expression "may kindly be taken upon priority and get the above mentioned road safety measurement provided at the earliest".
06/11 33 of 95 1
46. Section 5.4.1 of the CPWD Manual while providing for situations where the spot quotations are to be called refers to "critical situations" such as: "in the case of breakdown of an essential services or works which brooks no delay". When it 2 however, comes to section 14.1(1) of CPWD Manual, it merely states "in urgent cases or where the interest of the work so demands or where it is not expedient to do so works may be awarded without call of tenders after approval of the competent authority." If one were to read section 5.4.1 and 14.1 together 1 5.4.1 Situations for calling spot quotations - competent authority (1) Wherever a work is to be taken up, or a material is to be procured under critical situations, such as in the case of a breakdown of an essential service, or works which brooks no delay, spot quotations may be collected from reputed and established agencies dealing with the work or supply of material, and the work awarded or sup ply order placed immediately. (2) In case of a situation where there is a shortage of a critical material that is required to be arranged departmentally for the execution of a work, and its rate is not stable, and there is a wide daytoday fluctuation in its rate in the market, spot quotations may be collected from reputed and established agencies dealing with the material, and supply order may be placed immediately for such quantities of material that are immediately required, and as are available with the agency. Spot quotations should be collected by EE or AE only. (3) Prior approval of such authority should be obtained, in oral if not in writing, before awarding the work or placing the supply order. Reference thereof should be mentioned while forwarding the case for obtaining the written approval of this authority, and the same should be sought at the earliest possible opportunity but not later than 10 days. 2 14.1 Procedure (1) Normally tenders should be called for all works costing more than Rs.50,000/. In case there the work is to be awarded expeditiously, the prescribed period of notice may be reduced . In urgent cases, or when the interest of the work so demands, or where it is more expedient to do so, works may be awarded without call of tenders after approval of the competent authority as per powers delegated in AppendixI. 06/11 34 of 95 one would find that not only in the case of grave urgencies but also matters where the "interest of the work so demands" or where "it is more expedient to do so" the spot quotations can be invited. The above letter of Shri Rupinder Kumar, DCP may not project a critical situation or a grave emergency as one may find in section 5.4.1 (supra) but it certainly would fall in the category "when the interest of the work so demands" as the safety of the motorist cannot be a matter which can be postponed for long.
47. I am of the view on the basis of the above background given and expression used if someone interpreted the letter as conveying urgency cannot be blamed. As already stated above that this is a matter to be examined from the point of view of the accused persons as to whether they could have treated this matter as urgent or not. In my opinion on the basis of the said letter it was quite possible for the accused no. 1 Shri A.K. Saini and accused No. 2 Shri R.K. Mittal to have interpreted the said letter as conveying urgency.
06/11 35 of 95 The question of urgency to be examined by the Chief Engineer.
48. As the discussion under the next heading would show that the authority competent to call for the spot quotations which involved an amount of less than Rs. 10 lacs as per the Appendix 1 of the CPWD Manual was the Chief Engineer. The spot quotations in this matter, as per section 5.4.1(3) (supra) and Section 14.1(1) (supra) of the CPWD Manual could not have been called without the prior approval of the Chief Engineer. This approval could be both verbal or in writing. In other words, the primary responsibility to make an assessment whether there was an urgency and hence necessity to call spot quotations lay with the Chief Engineer and not with the Accused No. 1 Shri A.K. Saini or the Accused No. 1 Shri R.K. Mittal in this case. He is also not a witness in this case to show that he had been misled by the accused No. 1 Shri A.K. Saini or the Accused No. 1 Shri R.K. Mittal to believe that the matter was urgent and, therefore, there was necessity to call spot quotations.
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49. The document Ex. PW7/A6 which is a proposal signed by the Accused No. 1 Shri A.K. Saini would specifically show that there was verbal approval taken from the Chief Engineer before calling for spot quotations. It was specifically noted in the said note "due to urgency of work and shortage of time, spot quotations for the above work were collected to get the work completed at the earliest after verbal approval of competent authority."
50. It has not been disputed that the Chief Engineer was competent to not to accept the proposal submitted by Executive Engineer. It is also not in dispute that the office of the Executive Engineer was not just to accept the proposal which had been submitted by the Executive Engineer but the entire issue was required to be reexamined in his office, interalia, also from the angle of urgency. There were questions put to witness PW12 Shri V.K. Malik examined as an expert on procedure in tthis regard. He had deposed as under : 06/11 37 of 95 "Q: Is it correct that after opening the spot quotations same are sent alongwith comparative statement, justification and copy of the technical sanction is sent by the Executive Engineer to the office to Chief Engineer and Chief Engineer only after having satisfied himself as to the reasonability of the rates and also the technical sanction and the urgency involved justifying the invitation of spot quotations?
Ans. Yes, it is correct. Sometimes, however, it is routed through Superintending Engineer as I have already explained above.
Q. Is it correct that in the office of Chief Engineer there is JE / Draftsman, AE(P) and EE(P) also posted to assist the Chief Engineer in arriving at his satisfaction as to the reasonability of the rates, technical specifications and the urgency involved justifying the awarding of works by way of spot quotations?
Ans. It depends upon office to office of Chief Engineer whether such posts of JE / Draftsman, AE(P) and EE(P) are available. However, in case such posts are there then the purpose of their 06/11 38 of 95 posting in the office of Chief Engineer is to assist him in arriving at the right conclusions, which would include looking at the rates and all other aspects and make an independent assessment of it, if necessary and they are also competent to advise the Chief Engineer otherwise, if they are not satisfied on these counts.
51. The proposal Ex. PW7/A6 was submitted by the Executive Engineer with relevant documents to the office of the Chief Engineer, thereafter, the acceptance of the above proposal and awarding of work to accused No. 3 Shri Shailesh Pahuja, Prop. of M/s Rajdhani Suppliers & Services was conveyed by letter Ex. PW12/DX1. Unlike in other connected matter (C.C. No. 19/11) the Investigating Officer in this case had not seized the files of the office of the Chief Engineer as that would have thrown light as to how this matter was considered in the office of the Chief Engineer and the issue or urgency was dealt with. Since the prosecution has withheld those important files of the office of the Chief Engineer there could be an 06/11 39 of 95 adverse inference be drawn under section 114 of Indian 1 Evidence Act against him that if the said files had been produced in the Court, they would have shown, like in the other case (C.C. No. 19/11) that on examination it was found by the office of the Chief Engineer that indeed there was urgency involved in the matter.
52. From the above discussion there can be two conclusions drawn, first, that the Accused No. 1 Shri A.K. Saini, Executive Engineer and Accused No. 2 Shri R.K. Mittal, Assistant Engineer were acting under the verbal directions of the Chief Engineer and they had called for the spot quotations under his direction and, therefore, they cannot be blamed for calling the spot quotations. Secondly, it also can be said that if at all the Accused No. 1 Shri A.K. Saini, Executive Engineer and the 1 114. Court may presume existence of certain facts. The Court may presume the existence of any fact which it thinks to have happened, regard being had to be common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations The Court may presume xxxxxxxxx
(g) That evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it.
06/11 40 of 95 Accused No. 2 Shri R.K. Mittal, Assistant Engineer are said to have considered this matter as urgent then they were not alone in taking this decision. This decision had the ultimate approval of the Chief Engineer as well.
In all cases involving cost of Rs. 50,000/ the work is to be executed by floating tenders.
53. It has been alleged in the opening paragraph of the Charge Sheet that as per the CPWD manual work costing more than Rs. 50,000/ should be awarded only after inviting the tenders. In the main body of the Charge Sheet, however, this allegation has not been repeated. In any case I have examined this angle if it is the case as per the manual and also if there has been any evidence lead by the prosecution in this regard.
54. After having gone through the testimonies of the witnesses I find that none of the witnesses have referred to this fact in their testimony including the witness Shri V.K. Malik, PW12 who was examined as an expert witness on procedure.
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55. During the course of the argument it was submitted on behalf of the accused that it is not a thumb rule that in every case involving more than Rs. 50,000/ necessarily the work is to be awarded only after calling the tenders. The reference was made to section 14.1(1) of the CPWD manual and also Appendix1 of the manual. According to section 14.1.(1) the works could be awarded without the call of tenders after approval of the competent authority as per the powers delegated in Appendix1. The same reads as under: "Normally tenders should be called for all works costing more than Rs. 50,000/. In case where the work is to be awarded expeditiously, the prescribed period of notice may be reduced. In urgent cases, or when the interest of the work so demands, or where it is more expedient to do so, works may be awarded without call of tenders after approval of the competent authority as per powers delegated in Appendix1"
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56. The relevant part of Appendix1 reads as under : S. NO. Nature of power Designation of Extent of Remarks / the Officer power Reference (in Rupees)
17. Award of work AE/AEE 20,000 DGW/MAN/ without call of 129 tenders dt. 30.12.05 (Sr. No. 5) EE 1.25 lacs SE 4.5 lacs Under his own CE 10 lacs authority.
With prior approval CE 45 lacs
of ADG
With prior approval CE 90 lacs
of DGW
With prior approval CE Full
of C.W. Board powers
57. The combined reading of Section 14.1(1) and Appendix1 would show first of all that it can not be a thumb rule, as submitted by defence, that in every case involving more than Rs. 50,000/ the works can be awarded only after inviting 06/11 43 of 95 tenders. Secondly, in the context of this case it would show that in this case, since, the matter involved was more than Rs. 4.5 Lacs and less than Rs. 10 Lacs the competent authority with whose approval the work could be awarded without the call of tenders was the Chief Engineer. This approval as noted under the previous heading from the competent authority was not necessarily required to be obtained in writing before initiating the process of calling for spot quotations. One may refer to Section 5.4.1(3) here. The same reads as under : "Prior approval of such authority should be obtained, in oral if not in writing, before awarding the work or placing the supply order. Reference thereof should be mentioned while forwarding the case for obtaining the written approval of this authority, and the same should be sought at the earliest possible opportunity but not later than 10 days".
58. In conclusion one may say that the spot quotations could be invited in a case involving more than Rs. 50,000/ and though in such cases the approval of the competent authority 06/11 44 of 95 was required which could be given verbally or in writing and that in this case it was given verbally by the Chief Engineer. Taking exorbitant value of Spring Post
59. It has been alleged in the charge sheet that after the investigation it was found that spring post of model DA 954 make Dark Eye manufactured by M/s Texla Plastics & Metals Pvt. Ltd. was available in the market in the range of Rs. 1,100/ to Rs. 2,000/ per piece. The price given of Rs. 4,400/ of the said spring post in the rate list was the maximum retail price which was negotiable. In order to prove and to disprove this fact the evidence has been led from both the sides. Let us look at the entire evidence one by one.
60. PW3 Shri G.S. Bhandari in his testimony had produced various documents in the form of invoices by which M/s Muskaan Safety Solutions Pvt. Ltd. had sold the spring post to different buyers.
06/11 45 of 95 (A) Invoice No. 028 dated 16.05.2008 - Ex. PW3/A
60.1 By invoice No. 028 dated 16.05.2008 Ex. PW3/A 100 spring posts had been sold to Executive Engineer, N.H. Division, H.P, PWD, Solan, H.P. @ 2,050/ per piece plus taxes. The witness PW3 had deposed that by the above invoice the said number of spring posts were sold to the Executive Engineer, N.H. Division, H.P, PWD, Solan, H.P. After going through this invoice one can find that there is no reference of model number or the size of the spring post. It may be noted that as per the rate list on record there are 3 models of spring posts which are being sold by M/s Muskaan Safety Solutions Pvt. Ltd. under the Trade mark of Dark Eye. They are DA 954, DA 960 and DA 961. All these spring posts have different rates and different sizes. The same are reproduced as under: MODEL SIZE RATE (Rs.) DA 954 Length : 710mm, 4,400/ upper dia 80 mm & bottom dia 210 mm.
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DA 960 Length : 300 mm, Rs. 2,800/
upper dia 80 mm &
bottom dia 200.
DA 961 Length : 600 mm, Rs. 3,700/
upper dia 75.85 mm
& bottom dia 200.
In the absence of the model number being given it would be difficult to say that which of the spring post was sold to the Executive Engineer, N.H. Division, H.P, PWD, Solan, H.P. 60.2 In any case in respect of this particular invoice the allegation of the defence is that there was no such supply ever made to the Executive Engineer, N.H. Division, H.P, PWD, Solan, H.P as per the information they had received under Right to Information Act from the office of the Executive Engineer, N.H. Division, H.P, PWD, Solan, H.P. In the defence the witness DW7 Shri Mahesh Singhal posted as Executive Engineer, National Highway Division, PWD, Solan, H.P. had been examined. He had identified the application Ex. DW7/A 06/11 47 of 95 which had been submitted by the Accused No. 1 Shri A.K. Saini and also a reply submitted by him Ex. DW7/B by which it was informed that against the above invoice No. 028 dated 16.05.2008 by M/s Muskaan Safety Solutions Pvt. Ltd., no material had been purchased by his Division. This witness was crossexamined by the Ld. Prosecutor for CBI wherein he had stated that the above reply he had given was after checking the record i.e. monthly account vouchers wherein he did not find any payment being made against invoice No. 028 dated 16.05.2008. He had also stated that he had personally checked all the records relating to the payments made in the year 2008 after getting the said record from the Superintendent (Accounts).
60.3 In the above given circumstances it would not only be not possible to use the said invoice to determine as to whether the cost of a spring post DA 954 was Rs. 2,050/ as referred to in the said invoice but also there is a serious question, if at all any such supply had been made to Executive Engineer, N.H. 06/11 48 of 95 Division, H.P, PWD, Solan, H.P. Thus, this document cannot be relied upon to determine the price of a spring post. (B) Invoice No. 031 dated 31.07.2007 - Ex. PW3/B 60.4 The witness PW3 Shri G.S. Bhandari had deposed that by the above invoice 12 pieces of spring posts @ Rs. 1,250/ had been sold to M/s AJS Scale International. Again one finds that in this spring post there is no reference to any model number. I would also like to note here that neither in the testimony of this witness PW3 who had sold the spring posts referred to in the above invoice nor in the testimony of PW11 Shri Harpreet Singh to whom the said spring posts were sold, it is stated that the spring posts which were sold under the said invoice were Spring Post DA 954. Thus, on the basis of this invoice, it would not be possible to say if the spring posts sold in this invoice was of model DA 954.
06/11 49 of 95 60.5. In any case in the crossexamination the carbon copy of the same invoice Ex. PW3/BX1 was put to the witnesses PW3 and PW11. In terms of the content the original and the carbon copy were found to be the same but on the close examination it was found that there were differences between the two, like the gaps in between different words, the way figures had been written etc. The above differences were clearly noted down in the testimony of PW11. The same reads as under: "Q.: Can you examine the Ex.PW3/B and Ex.PW3/BX1 and inform the Court as to whether there are differences in the writings/signatures and the place where the writing has been made and also inform the Court that is it not that Ex.PW3/BX1 is purported to be shown as the carbon copy of Ex.PW3/B?
A.: It is correct that Ex.PW3/BX1 is the
carbon copy of Ex.PW3/B. I cannot say with
certainty that there is any difference in signature appearing at point X on Ex.PW3/B and Ex.PW3/BX1. It is, however, correct that there is some difference as to how the figure "12.5" has been shown at point X2 while 06/11 50 of 95 mentioning the rate of VAT on Ex.PW3/BX1 and PW3/B. It is also correct that there is some difference in the style of writing of words "spring post"
written at point X3 on Ex.PW3/B and Ex.PW3/BX1.
It is also correct that there is some difference in the style of writing the words "pcs" written at point X4 on Ex.PW3/B and Ex.PW3/BX1.
It is also correct that there is some difference in the style of writing the digits "15000" written at point X5 on Ex.PW3/B and Ex.PW3/BX1.
As far as I remember, I had given the original of purchase invoice Ex.PW3/B and not its carbon copy to the CBI officer. It was delivered at the office of CBI at Lodhi Road. I do not remember now but after having delivered the original for our record I must have taken some acknowledgement with the CBI officer with regard to having taken said document from me."
06/11 51 of 95 60.6 There is no explanation, however, in the testimony of PW3 Shri G.S. Bhandari or PW11 Shri Harpreet Singh that as to how such differences could arise between the original and the carbon copy. When one speaks of a carbon copy, it mean exact copy in every respect, even minor differences would sufficient to declare that one is not the copy of the other. Thus it cannot be said that Ex. PW3/BX1 is the carbon copy of Ex. PW3/B. In other words the integrity of this document is also questionable. 60.7 In the above given circumstances in my opinion the above invoice also cannot be used for determining the price of a spring post DA 954.
(C) Invoice No. 062 dated 01.102.007 Ex. PW3/C 60.8 As per this Invoice 25 pieces of spring posts were sold to M/s Grover Sales Corporation @ Rs. 1100/ per spring post. In this receipt also there is no reference if these spring posts were model DA 954 or some other spring posts. On the same logic it 06/11 52 of 95 also cannot be utilized for determining the cost of Spring Post DA 954.
(D) Invoice No. 068 dated 10.10.2007 Ex. PW3/D 60.9 As per this Invoice 14 pieces of spring posts were sold to M/s KMGS Road Signs (P) Ltd. The reference to this document had been made both in the testimony of PW3 Shri G.S. Bhandari, General Manager, M/s Muskaan Safety Solutions Pvt.
Ltd. as well as PW5 Shri Trilok Singh, Manager, M/s KMGS Road Signs Pvt. Ltd.
60.10 Both these witnesses were shown during the course of their crossexamination one another document Ex. PW3/DX1 which appears to be the carbon copy of Ex. PW3/D i.e. both these documents bear the same invoice number and the same date. On the examination of two documents i.e. one referred to as the original and the other which is referred to as a carbon copy of the original, one would find that at Sl. No. 2 in the 06/11 53 of 95 original what is shown to have sold is "Bollard" one in number @ Rs. 2,350/ and the carboy copy at Sl. No. 2 what is mentioned is not "Bollard" but "Search Light" though the amount shown is the same. It was admitted by the witnesses also. I am reproducing the relevant para from the testimony of PW5 Trilok Singh as under: Q. Please go through the document Ex.
PW3/D and also the carbon copy Ex. PW3/DX1 and inform the Court that is it not that at the Sr. No. 2 in Ex. PW3/D the item mentioned is "Bollard" and at Sr. No. 2 in the carbon copy Ex. PW3/DX1 the item mentioned is "Search Light".?
A: It is correct. (Vol.) As far as I am concerned, I was only asked about the Spring Post and I had only focused on the item Spring Post at the time of replying of the queries by the CBI officials."
60.11 It is difficult to understand if these documents are original and carbon copy how could in one document the word 06/11 54 of 95 "Bollard" and in the other document "Search Light" could appear. There has been no explanation given that as to how this glaring difference occurs in these two documents. It creates a serious doubt as to the integrity of these documents. In this invoice also there is no description of the model of the spring post. It does not say whether the spring post sold was DA 954 or any other spring post.
60.12 Considering the above two aspect, I am of the view that firstly this document itself is not reliable and secondly, it cannot be used in determining price of a spring post DA 954. (F) Invoice No. 202 dated 16.10.2008 Ex. PW3/F 60.13 As per this invoice there were 100 spring posts sold to M/s DIMTS Ltd. There is no description of the model of the spring post sold against the said invoice, thus cannot be relied upon for determining the price of spring post DA 954.
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61. One may conclude that the invoices, which have been produced by prosecution in determining the price of spring post DA 954 cannot be relied upon to support the case of the prosecution that the price of spring post during the relevant period ranged between Rs. 1,100/ to Rs. 2,000/. Document put to the witness PW3 Shri G.S. Bhandari during his crossexamination.
62. In order to discredit the oral testimony of witness PW3 Shri G.S. Bhandari, General Manager, M/s Muskaan Safety Solutions Pvt. Ltd. that the price of the spring post DA 954 during the relevant period were in the range of Rs. 1,000/ to Rs. 2,000/ there were number of documents put to him to show that his own company had submitted the tenders / spot quotations etc. to various authorities giving the price of a spring post DA 954 in the range of Rs. 4,400/. I would like to refer to these documents one by one herein below: 06/11 56 of 95 Quotation of spring post submitted to Executive Engineer, Project Division IV, PWD, Okhla Industrial Area, Shambhu Dayal Marg, New Delhi - Ex. PW3/DX2.
62.1 The witness PW3 Shri G.S. Bhandari had admitted his signatures on this document and had also admitted that in this document the price quoted of a spring post by him was Rs. 4,400/ with an additional amount of Rs. 500/ to be charged as installation charges and VAT @ 12.5%. Admittedly unlike the documents which have been produced by the prosecution in this document there is a specific reference to spring post DA 954. When this document was put to the witness he had deposed as under: "It is correct that it is a quotation submitted by our Company. It is also correct that it has been signed by someone from our Company on my behalf, although I am not in a position to identify who has signed this document on my behalf. It is correct that as per this quotation the price of a spring post of Dark Eye make, model DA954, has been given as Rs.4400/ per 06/11 57 of 95 piece besides the installation charges @ Rs.
500/ per piece and VAT @ 12.5%. The
document is now Ex.PW3/DX2. Original
returned."
Quotation submitted to Executive Engineer, CW122, PWD, New Delhi - Ex. PW3/DX3.
62.2 The witness PW3 Shri G.S. Bhandari had admitted his signatures on this document. As per this document for the installation of spring post DA 954 the unit price quoted under the signatures of this witness on behalf of M/s Texla Plastics & Metals Pvt. Ltd. Was Rs. 4,200/. This was inclusive of the installation charges @ Rs. 150/, Epoxy Rs. 50/ etc. and VAT @ 12.5%. The witness had deposed in this respect as under: "(At this stage one quotation submitted on behalf of M/s Texla Plastics & Metals Pvt. Ltd. to Executive Engineer, CW 122, PWD is shown to the witness brought from the office of Executive Engineer, M441, ZoneIV.) I can identify this document. It was a quotation submitted by our 06/11 58 of 95 Company. It also bears my signature at point A. It is correct that in this quotation the rate quoted for one piece of spring post Dark Eye make, mode DA954, length 710 mm., has been given as Rs.4200/ exclusive of VAT 12.5% and installation @ Rs.150/ each and exclusive of epoxy Rs.50/ extra. The document is now Ex.PW3/DX3.
Abstract of cost from file of work order of 20082009 of the Office of the Executive Engineer, M441 (earlier - 121) - Ex. PW3/DX4.
63.3 After going through this document and a copy of envelope submitted with this document, it is apparent that with regard to this work to be executed at Bridge across River Yamuna near Geeta Colony providing of fixing of road safety equipments at Geeta Colony and Shantivan side and the rate quoted on behalf of M/s Texla Plastics & Metals Pvt. Ltd. for the installation of a spring post DA 954 was Rs. 5,500/ which was exclusive of installation charges. The testimony of this witness in respect of this document reads as under: 06/11 59 of 95 "[At this stage one abstract of cost from another file work order 200809 brought from the office of Executive Engineer, M441 (earlier CW121) is shown to the witness. A photocopy of the same is taken on record.] I have seen this document as well as the envelope in which it was submitted to PWD. Although I cannot identify the initials of the person who may have initialled it, but it bears the stamp of our Company and this envelope is also of our Company and this document had been submitted on behalf of our Company. The document along with the photocopy of the envelope is collectively Ex.PW3/DX4. It is correct that in this document the cost of one spring post of Dark Eye make, Model No.DA954 has been given as Rs.5500/ inclusive of the installation charges. Original returned."
Quotation submitted to Executive Engineer, CRM Division, PWD (M312), Sainik Vihar, Delhi.
62.4 Above is the quotation submitted on behalf of M/s Texla Plastics and Metals Pvt. Ltd. wherein the price of a spring post DA 954 was given to be Rs. 4,500/ as on 18.05.2008 i.e. 06/11 60 of 95 around the same period when the work order in question was awarded. In addition to quoting the price of Rs. 4,500/ it was stated therein that Rs. 500/ per piece for installation and VAT @ 12.% would be charged etc. Relevant part of the testimony of witness reads as under: "[At this stage one quotation submitted on behalf of M/s Texla Plastics & Metals Pvt. Ltd. to Executive Engineer, CRM Division, PWD (M312) is shown to the witness from the file brought from the Court of Sh. M.R Sethi, Ld. Special Judge, CBI, Delhi. A copy of the same is retained on record.] I admit this document to be correct, though I cannot identify the person who had signed this document on behalf of our Company. It is correct that as per this document the rate quoted for one spring post of Dark Eye make, Model DA954 is Rs.4500/ wherein the length of the spring post is given as 710mm, upper dia 80 mm and bottam dia 210 mm. It is also mentioned therein that the Company would be charging installation charged @ Rs.500/ per piece and the VAT @ 12.5% would also be extra. The document is now Ex.PW3/DX5 collectively along with the envelope. (Original returned)."
06/11 61 of 95 62.5 I am of the view considering all the above documents where witness had admittedly himself submitted quotations, giving the price of a spring post at Rs. 4,400/ and above, it would be difficult to believe his testimony when he states that the price of a spring post DA 954 during the relevant period was in the range of Rs. 1,000/ to Rs. 2,000/.
63. In the same vain I am not inclined to believe the testimony of PW13 Shri D.P. Singh, Director of M/s Muskaan Safety Solutions Pvt. Ltd. wherein without referring to any document he had orally deposed before the Court that the price of a spring post during the period 20072008 ranged between Rs. 1,000 to Rs. 2,000/.
64. To conclude on the basis of above testimony and admission of documents by PW3 Shri G.S. Bhandari himself on the one hand one may say that the testimonies of Shri G.S. Bhandari Shri D.P. Singh are not believable that price of a 06/11 62 of 95 spring post in the year 20072008 was in the range of Rs. 1,000/ to Rs. 2,000/ and on the other hand it comes to the aid of the accused person that as per the quotations submitted by M/s Texla Plastics & Metals Pvt. Ltd. the price of a spring post was in the range of Rs. 4,200/ to Rs. 4,500/. Other witness examined to prove the price of spring post DA 954 in the range of Rs. 1,000/ to Rs. 2,000/.
65. Witness PW6 Shri Mohan Lal posted as Executive Engineer, MCD at Central Store at Moti Nagar, Delhi in the year 2007 was examined in respect of contract awarded by the MCD to M/s Super Bristel Burshware Manufacturing Co. for providing and fixing of spring post (Bollard) at various signalised junctions of roads in S.P. And City Zone. As per the work order Ex. PW6/B the spring posts were to be provided and fixed at various signalised junctions @ Rs. 1,473/ each which also included the cost of installation.
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66. In respect of above quotation of M/s Super Bristel Burshware Manufacturing Co., it may be noted that the MCD itself had considered the rate to be abnormally low as according to their own justification prepared the rate of a spring post was Rs. 3,655/. When the Work order Ex. PW6/B was put to this witness there was a question put to him in this regard and he had deposed as under: "Q.: Please go through this note and inform the Court on what criteria did you find the rates quoted by M/s Super Bristle Brushware Manufacturing Co. as abnormally low?
A.: It was concluded that the rates given by the said contractor were abnormally low after it being compared with the justification prepared by us where the market rate of the spring post had been given as Rs.3655/.
The Justification Ex.PW6/DX2 had been prepared by the Jr. Engineer after verifying the rates from the market.
It was only the sample (spring post) of the Super Bristle Brushware Mfg. Co. which was 06/11 64 of 95 sent for testing to Sriram Institute of Industrial Research and not of any other tenderer."
67. There is a lot of confusion about the specification of the spring post provided and fixed by M/s Super Bristel Burshware Manufacturing Co. At some places the Base dia is given as 80mm and at some places it has been given as 100mm. In some places the description has been given to be as 710 x 200 mm which would mean that the height of the spring post would be 710 mm and its base dia would be 200 mm. I have found that at one place this issue was examined jointly by the Executive Engineer i.e. the witness himself, the Assistant Engineer and also the Junior Engineer. This portion was separately exhibited as Ex. PW6/D1. The same reads as under: "The test report has been examined and it is submitted that in the description of item, base dia has been inadvertently mentioned as 80mm whereas as per the enclosing drawing of spring post, it is clear that 80mm is the top dia of the spring post and 100mm is the base dia. All he others elements of the report are as per 06/11 65 of 95 requirement. Hence, the spring post is as per desired specification.
Submitted please.
Sd. Sd/ Sd/
AE(S) II EE(S)I AE (S)II JE(s)"
68. If I take this as the final specification of the spring post provided and fixed by M/s Super Bristel Burshware Manufacturing Co. then its specification would read as under: Height : 710 mm Top Dia : 80 mm Base Dia : 100 mm
69. It is a matter which has already been discussed above that the base dia of a spring post Dark Eye DA 954 is 210 mm and, therefore, the spring post provided and fixed by M/s Super Bristel Burshware Manufacturing Co. cannot be compared with the spring post Dark Eye DA 954 which is the subject matter in this case. It is clear that the spring post which was provided by 06/11 66 of 95 M/s Super Bristel Burshware Manufacturing Co. was not Dark Eye DA 954.
70. Therefore, the spring post provided and fixed by M/s Super Bristel Burshware Manufacturing Co. at Rs. 1,473/ also cannot be utilized for determining the price of a spring post Dark Eye DA 954.
71. There were number of documents put to this witness in the crossexamination in order to show that as per the justification of rates prepared by the officials of MCD in other work order again the rates were not in the range of Rs. 1,000/ to Rs. 2,000/. I would like to refer to out of them only two justification statements Ex. PW6/DX2 and Ex. PW6/DX6 alongwith documents Ex. PW6/DX3 and Ex. PW6/DX7 which are nothing but same documents. The document Ex. PW6/DX3 would show that as per approved rate spring post (Bollard) based on DRS 1997 was Rs. 4,116/. But the rates of Bollards were being taken based on market rate of PWD and rates of PWD and 06/11 67 of 95 NDMC . The justification statements Ex. PW6/DX2 and Ex. PW6/DX6 bearing the signatures of this witness as well would show that the market value of the spring post was taken to be Rs. 3,280/ though it is not clear from it if it could be said to be Dark Eye DA 954. In any case it would show that the market value of a spring post with the size 710 x 200 mm was not in the range of Rs. 1,000 to Rs. 2,000/ as claimed by the prosecution but as stated above despite not being of sure that the spring post referred to here is Dark Eye DA 954 it can still be said that as per the market rate at that time the spring posts were in the range of Rs. 3,000/.
Witnesses examined and documents produced in defence.
72. There were five witnesses examined by the defence on the same question. I would like to discuss their testimony herein below one by one.
06/11 68 of 95 72.1 DW1 Shri Hari Singh son of Shri Tashi had identified and proved the documents showing the price of a spring post Dark Eye DA 954 which was procured by PWD itself from NCCF / Kendriya Bhandar. The information derived from the said documents is being reproduced here as under: Ex. DW1/B1 Cash Voucher dated 24/10/07 for making payment to NCCF. As per this voucher payment was made to NCCF @ Rs. 5500/ per spring post DA954 inclusive of installation charges but excluding sales tax. Ex. DW1/B2 Cash Voucher dated 06/11/07 for making payment to Kendriya Bhandar. As per this voucher payment was made to Kendriya Bhandar @ Rs. 6150/ per spring post DA954 inclusive of installation charges but excluding sales tax. Ex. DW1/B3 Cash Voucher dated 11/07/07 for making payment to Kendriya Bhandar. As per this voucher payment was made to Kendriya Bhandar @ Rs. 6150/ per spring post DA954 inclusive of installation charges but excluding sales tax.
06/11 69 of 95 Ex. DW1/B4 Cash Voucher dated 24/10/07 for making
payment to Kendriya Bhandar. As per this voucher payment was made to Kendriya Bhandar @ Rs. 6150/ per spring post DA954 inclusive of installation charges but excluding sales tax. 72.2 The above documents on 07.11.2013 were exhibited subject to production of original and on the next date of hearing i.e. on 28.11.2013 the original of the said documents had been produced. I have seen the crossexamination of the witness and there is nothing to doubt with regard to the authenticity of the said documents.
72.3 The witness DW3 Sh. Tejender Singh who was working as Superintending Engineer, PWD, Govt. of NCT of Delhi during the period 200809 had proved following documents :
Ex. DW3/A Extra item statement no. 4 dated 30/03/07. As per this statement, the cost of a spring post DA954 which was approved was Rs. 5490/ inclusive of cost of installation including epoxy and sales tax.
06/11 70 of 95 Ex. DW3/B Extra item statement no. 4 dated 16/03/07.
As per this statement, the cost of a spring post DA954 which was approved was Rs. 5903.50/ inclusive of cost of installation and sales tax.
Ex. DW3/C Extra item statement no. 4 dated 22/03/07. As per this statement, the cost of a spring post DA954 which was approved was Rs. 5500/ inclusive of cost of installation and sales tax.
Ex. DW3/D Extra item statement no. 4 dated 15/10/07. As per this statement, the cost of a spring post DA954 which was approved was Rs. 5500/ inclusive of cost of installation and sales tax.
72.4 In respect of this witness also there is no cross examination on the question of the authenticity of these document. I would like to, however, highlight one important aspect of the matter referred to the in the testimony of the 06/11 71 of 95 witness. When the question was put to the witness if the same item in the market could have been purchased from any agency other than M/s Dinesh Chand Sharma to whom the Work Order was given. He had given a reply that it was important that the Department should engage an agency which is reliable and would not leave the Department in lurch. I am reproducing the said question and answer herein below: "Q.; Would it be correct to say that there could be other suppliers of the same item in the market other than M/s Dinesh Chand Sharma who had supplied the spring posts as the above Extra Item Statement at cheaper rates?
A.: There may be number of suppliers, but the agency supplying and fixing should be reliable and should be competent to complete the job within the time frame required. It is more important to have a reliable agency instead of any other cheaper agency who does not perform and leaves the Department/Purchaser in lurch and which may lead to accidents due to nonfixation of the above road safety items."
06/11 72 of 95 72.5 The witness DW5 Sh. Mohan Lal, Executive Engineer, PWD, Govt. of NCT of Delhi had proved the documents showing the rates of spring post at which they had procured by PWD on intent basis from Kendriay Bhandar / NCCF. The same are being reproduced hereunder.
Ex. DW5/A1 Indent no. 244683/AE1 dated 23.06.08. As per this document the price of a spring post exclusive of VAT has been given to be Rs. 5000/.
Ex. DW5/A2 Indent no. 798423/AE2 dated 31.03.08. As per this document the price of a spring post exclusive of VAT has been given to be Rs. 5000/.
Ex. DW5/A3 Indent no. 798424/AE2 dated 12.06.08. As per this document the price of a spring post exclusive of VAT has been given to be Rs. 5000/.
Ex. DW5/A4 Indent no. 9307/AE3 dated 12.02.08. As per this document the price of a spring post exclusive of VAT has been given to be Rs. 5000/.
06/11 73 of 95 Ex. DW5/A5 Indent no. 9310/AE3 dated 25.05.08. As per this document the price of a spring post exclusive of VAT has been given to be Rs. 5000/.
Ex. DW5/A6 Indent no. 9311/AE3 dated 18.06.08. As per this document the price of a spring post exclusive of VAT has been given to be Rs. 5000/.
Ex. DW5/A7 Indent no. 009274/AE4 dated 27.05.08. As per this document the price of a spring post exclusive of VAT has been given to be Rs. 5000/.
Ex. DW5/A8 Indent no. 009275/AE4 dated 10.06.08. As per this document the price of a spring post exclusive of VAT has been given to be Rs. 5000/.
Ex. DW5/A9 Indent no. 009276/AE4 dated 10.06.08. As per this document the price of a spring post exclusive of VAT has been given to be Rs. 5000/.
06/11 74 of 95 Ex. DW5/A10 Final bill related to Agreement no.
64/EE/PWD213/0708. As per this document the price of a spring post inclusive of taxes and installation charges has been given to be Rs. 5500/.
Ex. DW5/A11 Final bill related to Agreement no. 43/EE/PWD213/0708. As per this document the price of a spring post inclusive of taxes and installation charges has been given to be Rs. 5000/.
In this case also there is nothing in the crossexamination to create any doubt about these documents. 72.6 Witness DW6 Shri Chander Prakash, UDC from PWD, Govt. of NCT had produced an agreement No. 12/EE/FPDF132/200809 relating to Work Construction of Grade Separators at Mangol Puri Chowk, Delhi providing and fixing of Road Safety Devices. The said agreement executed between PWD and the vendor was produced in the Court 06/11 75 of 95 alongwith the relevant record Ex. DW6/A1 to A4. As per the Agreement for spring post being installed of make Dark Eye DA 954 the price of one such spring post was Rs. 5,420/ inclusive of tax and installation charges, which is comparatively the same as in the present case, which is Rs. 5,406/ inclusive of tax and installation charges.
72.7 Witness DW8 Shri M.C. Yadav, who was posted as Executive Engineer, PWD Division M221 had proved the documents Ex. DW8/B1 to B4 invoices of NCCF which would show that the spring post Dark Eye DA 954 had been purchased by the PWD at the rate ranging between Rs. 5,378.40 to Rs. 6,650.05, the said information is being produced hereunder: Ex. DW8/B1 Cash Voucher dated 21/05/08 for making payment to NCCF. As per this voucher payment was made to NCCF @ Rs. 5500/ per spring post DA954 Exclusive of installation charges and taxes.
06/11 76 of 95 Ex. DW8/B2 Cash Voucher dated 02/07/08 for making
payment to NCCF. As per this voucher payment was made to NCCF @ Rs. 5500/ per spring post DA954 Exclusive of installation charges and taxes.
Ex. DW8/B3 Cash Voucher dated 09/06/08 for making payment to NCCF. As per this voucher payment was made to NCCF @ Rs. 5500/ per spring post DA954 Exclusive of installation charges and taxes.
Ex. DW8/B4 Cash Voucher dated 26/05/08 for making payment to NCCF. As per this voucher payment was made to NCCF @ Rs. 5500/ per spring post DA954 Exclusive of installation charges and taxes.
72.8 Witness DW9 Shri N.V.N. Krishnan who was posted as Inspector of Police, CBI in January, 2009 and had conducted the search in the office of the accused No. 1 on 16.01.2009 had seized one agreement No. 8/EE/PWDVI/200405 pertaining to 06/11 77 of 95 providing and fixing of spring post in this case itself. But this document was withheld by the prosecution and not relied upon. This agreement which was collected during the course of investigation itself shows that as per the agreement the spring post Dark Eye DA 954 to be provided and fixed at Peera Garhi Chowk to ensure lane discipline and the work was awarded to one M/s Satyam Construction Co. @ Rs. 5,300/ per spring post inclusive of installation charges and taxes which is marginally lower than the rates in this case, which were Rs. 5,406/. Conclusion
73. In view of foregoing discussion and the evidence which has been brought on record from both the sides, I am of the view that the prosecution has not been able to show that the price of a spring post during the year 20072008 was in the range of Rs. 1,000/ to Rs. 2,000/ and on the contrary the defence has been able to establish that the rate of a spring post was somewhere in the range of Rs. 4,400/ per piece and that 06/11 78 of 95 after including the taxes and the installation charges, it was in the range of Rs. 5,300/ to 5,400/ and thus the awarding of work order to the accused No. 3 at the rate of Rs. 5,406/ inclusive of installation and taxes cannot be said to be either excessive or exorbitant, as alleged by the prosecution. Preparing estimates without conducting any market survey.
74. It is alleged in the charge sheet that the estimate in this case was prepared without conducting any market survey giving the cost of a spring post as Rs. 4,400/ per piece. The precise allegation in the charge sheet reads as under: "It revealed that accused Shri Rakesh Kumar Mittal, Asstt. Engineer neither conducted any market survey nor he directed Sh. A.K. Gupta JE to do the same and he just prepared the estimate for providing and fixing of road safety devices at Punjabi Bagh Flyover i.e. Spring Posts make Dark Eye - DA 954 on the basis of a rate list of M/s Texla Plastics & Metals Pvt. Ltd., in which rate of spring Post is mentioned as Rs. 4,400/ per piece."
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75. I have gone through the examination of all the witnesses. There are two witnesses examined from PWD. One is witness PW7 Shri Deshraj Puria . His deposition is confined to handing over of the documents to CBI relating to this case. The other witness is PW2 Shri V.K. Malik. His testimony relates to the procedure. His testimony would reveal that as a practice preparation of estimates was the responsibility of the Junior Engineer. There was a question put to him in this regard to which he had given the reply that the practice in the Department was that the estimates were first prepared by Junior Engineers. The relevant portion of the crossexamination reads as under: Q. Please inform the Court that is it not that as per the CPWD procedure and as per the duties laid down for Junior Engineer, it is the JE who prepares the estimates?
Ans. Presently, I am not full aware about the duties of JE specified in the Manual laying down the duties of different levels of officers but it is a practice in the Department that the estimates are first prepared by Junior Engineer."
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76. Thus at least it is clear that so far as the preparation of estimates is concerned on the basis of market survey, it was by and large the responsibility of the Junior Engineer Shri A.K. Gupta, who had given the estimates in this case. The allegation, however, against the Accused No. 2 Shri Rakesh Kumar Mittal, Assistant Engineer is that it was on his direction Shri A.K. Gupta, Junior Engineer had prepared the estimate on the basis of a rate list of M/s Texla Plastics & metals Pvt. Ltd. in which the rate of a spring post mentioned to be Rs. 4,400/ per piece. The best witness to prove this allegation could have been Shri A.K. Gupta himself. Shri Gupta, however, has neither been cited as a witness nor as an accused in this case. In the absence of examination of Shri A.K. Gupta as a witness it would be difficult to say that he was not asked by Shri Rakesh Kumar Mittal to conduct the market survey or that he was directed to prepare the estimate just on the basis of the rate list of M/s Texla Plastics & Metals Pvt. Ltd. Thus there is no material to substantiate this allegation against the Accused No. 2 Shri Rakesh Kumar Mittal.
06/11 81 of 95 Nonexamination of Shri O.P. Gaddhyan, Chief Engineer
77. As per the case of the prosecution itself Shri O.P. Gaddhyan was the Chief Engineer, PWD, M3, New Delhi who had ultimately accepted the lowest offer of Rs. 9,27,813/ of Accused No. 3 M/s Rajdhani Suppliers & Services and conveyed the same by letter dated 24.07.2008 Ex. PW12/D1X1.
78. It has also been noted above that ultimately the spot quotations were invited with the approval of the Chief Engineer. It is also clear from the testimony of the witness PW12 that before the final approval and the recommendation of the Executive Engineer both relating to the urgency as well as the responsibility of rates are checked in the office of Chief Engineer independently and it is only after independently it is checked the final approval is accorded by the Chief Engineer. It was deposed by Shri V.K. Malik as under: 06/11 82 of 95 Q. Would it be correct to say that as per the procedure is it not that it is only after going through the justification of rates and the requirement for the work Superintending engineer forwards the recommends for the approval of the competent authority?
Ans. I want to clarify that it is always not necessary to route the papers to the Chief Engineer's office through the office of Superintending Engineer. But in normal cases the papers are routed through the Superintending Engineer's Office. Needless to say that before passing on these papers to the Chief Engineer's office he is expected to go through the same and satisfy himself that all the papers are in order and also to satisfy himself with regard to reasonability of rates."
79. He had further deposed that : Q. Would it be correct to say that the estimates prepared by the JE forwarded to the Executive Engineer by the AE is thoroughly scrutinized by the Draftsman / AE (P) in the Division Office and it is only thereafter it is technically sanctioned by the Executive Engineer?
06/11 83 of 95 Ans. Yes. The estimates prepared by the JE before it reaches Executive Engineer is checked by Draftsman / AE(P) and is put up to Executive Engineer for technical sanction provided it is within the financial powers of Executive Engineer. Draftsman / AE(P) is required to check the arithmetical calculations and AE(P) is also supposed to examine the analysis of rates prepared on market rate basis.
Q. Is it correct that there are two types of divisions in PWD, one with AE(P) and other without AE(P) and financial powers of divisions without AE(P) are much less than divisions where AE(P) is posted?
Ans. In CPWD it is true that the powers of Executive Engineer are different in case of AE(P) posted in his office. Power without AE(P) are much less. The reason for it is that where the financial involvements are of higher level in that case it is expected that the Executive Engineer would need assistance from another level of officer who in such cases happens to be AE(P)."
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80. Inexplicably the Investigating Officer had not collected any file of the office of Executive Engineer or Chief Engineer, which would have shown that this matter had been scrutinized in the office of Chief Engineer. Unlike in the other connected case (RC No. 61/2008) where Shri D.P. Gupta, Superintending Engineer was examined from the office of the Chief Engineer to prove the documents which were prepared in the office of Chief Engineer with regard to the urgency and reasonability of rates.
81. The testimony of the Chief Engineer Shri O.P. Gaddhyan would have been of vital importance in this case as he was the best person to explain that how did he ultimately accepted the recommendation of the Executive Engineer. It was important because he was not supposed just to act on the recommendation of the Executive Engineer but also have the same checked in his office independently. It may be noted that in the similar circumstances Shri O.P. Gaddhyan was examined as a witness by the prosecution in the other connected case.
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82. After having seen the nature of evidence, which has come in the other connected case i.e. R.C. No. 61/2008 and in the given facts of the case, I am of the view that it is a fit case where adverse inference should be drawn against the case of the prosecution u/s 114 Illustration (g) of Indian Evidence Act (supra) that if the prosecution had examined Shri O.P. Gaddayan, Chief Engineer and had produced the records of the office of the Chief Engineer the same would have gone against the case of the prosecution.
Purchase of material by the accused No. 3 from M/s Kumar Sales.
83. The prosecution had examined the witness PW4 Shri Laxmi Narain who had deposed that he was the Accounts Manager of M/s Kumar Sales, Naveen Shahdara, Delhi from whom the spring posts shown to have been purchased. He had identified the signatures of one Shri Amit Kumar, Accountant working with M/s Kumar Sales on the Invoice Ex. PW4/A. As per his testimony though on paper the spring posts were shown 06/11 86 of 95 to have been sold @ Rs. 4,180/ per piece to M/s Rajdhani Suppliers & Services but this transaction was only on paper. According to him this bill was issued on a request being made by one Shri Ashwini Kumar who was Prop. of M/s Rajdhani Suppliers & Servies after taking half percent of commission on the total amount of the bill and the taxes as per the bill. He had added that as per the bill a cheque of Rs. 5 lacs was received against the said bill and the remaining amount of Rs. 5,935/ was received in cash. The cheque was deposited in the account of M/s Kumar Sales. After getting the credit as against the said cheque after deducting the commission the money was returned in cash to Shri Ashwini Kumar. He had also added that he had been supplied a copy of rate list by Shri Ashwini Kumar on the basis of which the said bill was prepared. He had claimed Shri Ashwani Kumar is brother of Shri Shailesh Pahuja. It is fact seriously disputed by the accused Shri Shailesh Pahuja. According to him he has no brother by the name of Shri Ahwini Kumar.
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84. In the crossexamination this witness, however, had stated that he was not sure whether he was approached by Shri Ashwini Kumar or Shri Shailesh Pahuja for the issuance of the bill and he had given the name of Shri Ashwini Kumar as he thought that Shri Ashwilni Kumar was linked with M/s Rajdhani Supplies and Services.
85. Before proceeding further, I would like to note that it is not an allegation if the Accused No. 1 Shri A.K. Saini or Accused No. 2 Shri R.K. Mittal had anything to do with the purchase of spring post by Accused No. 3 Shri Shailesh Pahuja. Therefore, if this was some kind of offence committed the same could have been a matter of a separate investigation. It would have also assumed significance if the case of the prosecution had been that there were not spring posts installed for which the work was awarded. In fact on an inspection being done on 16.04.2009 and as per the inspection memo Ex. PW16/H the said spring posts were found to be installed at the site.
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86. In any case I have still examined the matter on its own merit, if there could be any support found either by way of circumstantial evidence or direct evidence that after taking Rs. 5 lacs by way of cheque the money was returned to Shri Shailesh Pahuja in cash by M/s Kumar Sales as alleged.
87. There is noting in the testimony of PW4 Shri Laxmi Narain that this money was returned in his presence to Shri Shailesh Pahuja or Shri Ashwini Kumar, Thus his testimony in this regard at best remains only hearsay. I have checked bank statement of M/s Kumar Sales and also that of M/s Rajdhani Suppliers and Services. My first impression about the two banks accounts is that they were very active accounts with continuous transactions. That would rule out the possibility that the accounts were created only for the purpose of depositing the cheque and taking out the money . On the same day when the cheque of Rs. 5 lacs was deposited in the account of M/s Kumar Sales there were 3 more cheques deposited which also involved the sums like Rs. 4 laca, 2 lacs and Rs. 12,480/. There is a transaction of 06/11 89 of 95 withdrawal of Rs. 5 lacs on 11.09.2008. This cheque was not collected during the course of investigation to establish that this cheque was given to Shri Shailesh Pahuja by M/s Kumar Sales bearer so that he could withdraw the money in cash. I find, therefore, no clinching evidence to reach the conclusion that M/s Kumar Sales had returned the money in cash after accepting the cheque of Rs. 5 lacs after deducting 0.5% as its commission.
88. I accordingly, hold that the prosecution has failed to prove this allegation.
Sanction
89. It has been submitted by the Ld. Defence counsels for the Accused No. 1 Shri Anil Kumar Saini and also for accused No. 2 Shri Rakesh Kumar Mittal that in this case the sanction had been accorded for their prosecution under the pressure of CBI though earlier sanction for their prosecution had been declined. There had also been reference to the reports of Chief Vigilance 06/11 90 of 95 Officers who was of the view that in this case no criminal case is made out though it could be a case of disciplinary inquiry.
90. It may be so that at one point of time the competent authority and its Department was of the view that no criminal angle is involved in this case and, therefore, it is not a case for according sanction for their prosecution under section 19 of Prevention of Corruption Act. It may also be so that the Chief Vigilance Commission as well as CBI may have written some letters to the respective competent authorities but what matters is the final view, which is taken. It may be noted that the administrative decision making is a consultative process and what matters is the final decision taken and not the various stages in between it may have gone through. Unless one could show that the Administrative Authority had fettered its jurisdiction and had completely gone by what other authority had dictated. It does not appear to be so in this case. I would like to reproduce what PW1 had deposed in this case: 06/11 91 of 95 "Q. Would it be correct to say that you had signed merely put your signatures on the draft sanction order, which is PW1/X2 without the application of mind?
Ans. It is not correct. This draft sanction was received from the CBI office in 2009 and thereafter there had been series of investigation within CPWD, inputs from CBI, joint meetings in CVC and letters, interactions between CPWD and CBI and with the Ministry of Urban Development where a detailed summary of the entire case was examined in depth from various angles and finally with the best application of mind and inconformity with the Supreme Court and the High Court decisions the sanction order was issued."
91. Similarly, the other witnesses Shri Raj Kumar Varshneya, PW2 who had authenticated the decision taken by Minister of Urban Development on behalf of President of India had deposed as under: "We had placed before the Minister all the documents etc. which were received from CBI, the recommendations from CPWD as well as 06/11 92 of 95 CVC and our own analysis of facts. The Minister had gone through the same before according the sanction. The sanction order was signed by me after the Minister had accorded the sanction for the prosecution of Shri Anil Kumar Saini under the provisions of Prevention of Corruption Act. The Minister had the delegated powers of the President of India to accord sanction. I had the delegated powers to authenticate the orders on behalf of the President."
92. There is nothing I could find of substance in the cross examination of the witness which may indicate that the Ministry had accorded the sanction without the application of mind.
93. There is another issue raised with regard to the draft sanction order being supplied by the CBI. I am of the view if it had merely been a case of draft sanction order being supplied without any material to reach the conclusion by the competent authority independently it would have gained some importance but it is not denied by any of the witnesses that CBI had supplied the entire material collected during the course of the 06/11 93 of 95 investigation to the competent authority. In my view, therefore, merely because the draft sanction order had been supplied would not indicate that sanction was accorded without application of mind.
94. I, accordingly, conclude that it cannot be said that the sanction accorded for the prosecution of either Accused No. 1 Shri Anil Kumar Saini or Accused No. 2 Shri Rakesh Kumar Mittal was without the application of mind. Order:
95. In view of the forgoing discussion and the facts and circumstances of the case, I conclude that the prosecution has not been able to prove the offences punishable under section 120B read with Section 420 IPC read with Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 against all the accused. The prosecution has also not been able to prove that the Accused No. 1 Shri Anil Kumar Saini and 06/11 94 of 95 Accused No. 2 Shri Rakesh Kumar Mittal have committed the offence under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 as charged.
96. In view of above, I am acquitting all the accused persons as charged. Their bail bonds are cancelled. Sureties are discharged. Their bail bonds furnished under section 437A Cr.P.C. wtill remain in force for a period of six months subject to any order which may be passed by the appellate Court in case of an appeal being preferred by CBI against the judgment of this Court.
File be consigned to Record Room.
Announced in the Open Court ( L. K. GAUR )
on 7th February, 2014 Special Judge, P.C. Act
(CBI09), Central District,
Delhi.
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