Delhi District Court
State vs . Trilok Chand Meena & Anr. on 24 May, 2022
1
In the Court of Sh. Dig Vinay Singh: Special Judge (PC Act) (ACB)-02
Rouse Avenue Courts, New Delhi
In re:
CNR No. DLCT110005842019
CC No. 131/19
State Vs. Trilok Chand Meena & Anr.
FIR No. 38/2004
PS ACB
State
Vs.
1. Trilok Chand Meena
S/o Sh. Prabhu Dayal Mina
R/o RZF, 9/2, Gali No. 21B,
Sad Nagar, Palam Colony,
New Delhi-45
2. M. K. Gupta
S/o Sh. R. D. Gupta
R/o 154, Avtaar Enclave,
Paschim Vihar, Delhi
Date of Institution: 21.04.2009
Date of Arguments: 17.05.2022
Date of Judgment: 24.05.2022
JUDGMENT
1. The above named two accused faced trial in the present matter for offences U/s 13(1)(c) r/w Sec. 13(2) of POC Act, 1988 and U/s 120B/409/420/468 & 471 of IPC. At the relevant time accused Trilok Chand Meena (A1) was posted as Junior Engineer (JE) and accused M. K. Gupta (A2) was posted as Assistant Engineer (AE), in MCD. Besides them, one more accused, namely, S. S. Negi was also charge sheeted in the case, who was Executive Engineer, but he was discharged vide order dated 11.10.2013, at the stage of charge.
2. Brief facts of the case are, that in order to avoid water logging during monsoon season, the Conservancy & Sanitation Engineering (CSE) Department of Municipal Corporation of Delhi (MCD), conducts drive to Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 1 of 49 2 desilt the drains in Delhi. For that purpose, preparation of Estimate; Desilting and; then carrying silt up to the Silt Land Fill (SLF) site, is carried out. CSE, Shahdara, West Zone similarly prepared an action plan for the year 2002-03, obtained sanctions required and then the work was executed under the supervision of EE (CSE). For desilting, casual labourers were engaged from open market.
2.1. It is the case of investigating agency that the accused persons while working as JE, AE & EE, entered into criminal conspiracy amongst themselves wherein they reflected fake entries in the Mustor Rolls qua engagement of some of the casual labourers, to misappropriate the wages qua those fake entries and, also that wages of some of the labourers who had actually worked were not paid and was misappropriated. It is also the case of investigating agency that the accused persons forged / got forged the signatures / thumb impressions in token of receipt of wages of many such ghost labourers and then misappropriated the wages.
2.2. Initially, a complaint was received in the Vigilance Department of MCD on 15.05.2002, from one Smt. Shimla Beniwal, alleging irregularities in maintaining Muster Rolls (MR for short) and in making payments to the labourers qua desilting of drains. The allegations in the complaint included;
a) non-issuance of Muster Rolls in time and instead issuing them later on ante-dated;
b) mentioning number of labourers in the Muster Rolls and forging their signatures and thumb impressions in drawing money against it;
c) bogus payment against tractor / trolley for lifting of silt;
d) showing of more than one rounds of trolley to get payment more than once;
e) payment without slip from the SLF site and;
f) lastly, payment against Muster Rolls even without carrying out the desilting work at all.
2.3. On the above-mentioned complaint, the Vigilance Department of MCD conducted an inquiry and recommended registration of FIR as also departmental action against various EE/AE/JE/Accountant/LDC/Cashier and few Beldars. Based on the said inquiry recommendation, a complaint was lodged in police station Anti-Corruption Branch and FIR No. 42/2002 (another case) was registered on 13.08.2002. During investigation of that Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 2 of 49 3 FIR No. 42/2002, various MRs as to engagement of labourers, prepared between the months of March 2002 to June 2002, were seized by the investigating agency. Those MRs were then separated by the investigating agency as per the JE concerned who had prepared those MRs, since for different wards and area, different JEs prepared various such MRs during the period. According to the said separation of MRs, few other FIRs were registered, including the FIR of the present case, which was registered on 04.08.2004.
2.4. The present FIR was registered on the complaint of Inspector Hari Chand from PS ACB who had received 38 MRs from Vigilance Department of MCD vide a letter dated 15.01.2004. Inspector Hari Chand conducted preliminary inquiry and found Nine persons named in Three MRs to be non- existent at the addresses mentioned in the MRs, and thus suspected those entries in the MRs to be fictitious. He also found that Ten persons were named in two MRs prepared for the same date and time but different locations and according to the said MRs those Ten persons had worked at two different places but on the same date and time. He accordingly prepared a rukka and got the present FIR registered.
2.5. Thus, in the present FIR, we are concerned with Thirty-Eight (38) MRs prepared by A1. These 38 MRs were issued to A1 as he was working as JE at the relevant. It is alleged that under the 38 MRs prepared by A1, he claimed to have engaged total 662 labourers for desilting of drains, during the period March to June, 2002. Upon completion of the desilting work and after closing these MRs, A1 submitted them for payment, through A2 and the discharged accused. Total payment of Rs. 13,32,859/- with respect to payment of wages of labourers engaged under those MRs was collected from cashier for disbursement. Out of it, Rs.4,86,220/- was claimed to have been disbursed to the casual labourers, whereas remaining Rs. 8,46,639/- was returned and redeposited in the MCD.
2.6. During investigation of the present case, the investigating officer verified Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 3 of 49 4 various labourers named in the MRs and as per the final report, following Three persons claimed that though they had worked for desilting of drains, but payment was not made to them and instead their signatures/thumb impressions in token of receiving wages on the Four entries in the Four MRs, were forged. The tabulated information of those 3 persons, qua the 4 entries in the 4 MRs, as mentioned in the charge sheet, is as follows (hereinafter referred to as Table A);
2.7. During investigation, it was also learnt that in two MR no. 722 & 729, name and address of following Ten persons were mentioned, according to which those 10 persons were shown to have worked for desilting at two different places, but on the same date and time, which is not possible. No amount was paid to anybody against those entries though. The details of those 10 persons are as follows (hereinafter referred to as Table B).
2.8. It was also learnt during investigation that in 3 MRs there were 9 entries Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 4 of 49 5 under which 9 persons were shown to have worked, and payments were also shown to have been made to them, but those persons were not found residing at the given address and therefore were suspected to be not existing. Their details are as follows (hereinafter referred to as Table C);
2.9. The case of investigating agency is that under CPWD Manual Rule 9.5, 9.12 & 9.13, as applicable to the MCD, the AE & EE both were responsible to conduct surprise checks at the site and since they failed to notice and detect the bogus names in the MR and did not check the labourer working at the site, therefore they were in connivance.
2.10. Sanction U/s 19 of POC Act, 1988 were obtained against the accused persons and they were charge sheeted for the above-mentioned offences.
3. Vide order dated 11.10.2013, S. S. Negi was discharged by the Ld. Predecessor Court observing that there was no direct role attributed to him as regards the preparation of MRs or Certification thereof and payments were also not made in his presence, therefore, EE cannot be roped in U/s 120B of IPC.
4. Qua the remaining two accused, charge U/s 120B of IPC and Sec.
13(1)(c)/13(2) of POC Act, 1988 and, section 420/409/468/471 r/w Sec. 120B of IPC was framed. Both the accused pleaded not guilty and claimed trial.
5. In support of its case, prosecution examined total 19 witnesses.
Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 5 of 49 65.1. PW1 Devak Ram was the handwriting expert who examined the questioned signatures on the MRs with the specimen signatures of the three labourers, namely, Rajender, Naveen and Annu (named in Table A). Vide his report Ex.PW1/A, he opined that Naveen's specimens S-3 & S-4 on Ex.PW1/G & H, did not match with the questioned signatures Mark Q-2 & Q-3 Ex.PW1/B & C. This witness was not cross examined by the accused, despite opportunity.
5.2. From amongst the MCD officials, the witnesses examined are PW11, PW12, PW17 & PW18.
5.2.1. PW11 K. S. Mehra & PW12 Naresh Kumar, accorded and proved Sanction U/s 19 of POC Act, respectively, against A2 & A1, as Ex.PW11/A & Ex.PW 12/A. In the cross examination of PW12 Naresh Kumar, conducted on 16.05.2015, after he was recalled for cross examination, PW12 admitted that JE falls in Category C as per DMC Act, and his appointing authority was the Commissioner, MCD. But he also deposed that Commissioner, MCD includes Additional Commissioner, MCD and the power to appoint and remove JE were delegated to Additional Commissioner. This witness was Additional Commissioner at the time of according Sanction U/s 19 of POC Act against A1.
5.2.2. PW17 Bharat Bhushan Behel, was Senior Vigilance Inspector in MCD at the relevant time. He deposed that the 38 MRs in question were issued to A1 under which A1 had employed casual labourers for desilting of drains. Initially, the witness claimed that no payment was disbursed to the labourers under his supervision. Thereafter, he was cross examined by the Prosecution after declaring him hostile, in which the witness admitted that a Vigilance Team was constituted for disbursement of wages under the 38 MRs in question. He admitted that Rs. 2,57,923/- was disbursed as wages in presence of Vigilance Team and the remaining amount of Rs. 8,46,639/- was deposited back in MCD treasury. The witness also claimed that the concerned JE and AE were present at the time of disbursement of wages in Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 6 of 49 7 presence of Vigilance Team and that both JE and AE had identified and verified the identity of labourer at the time of disbursement of wages.
During cross examination by the accused, the witness admitted that as per Mark PW12/DC (subsequently exhibited as Ex.DW1/D1), it is not mentioned that this witness was to be present at the time of disbursement of wages to the labourers. This communication of MCD is dated 14.01.2003 qua deputing three persons namely Ashok Kumar, Naresh Kumar and Surender Singh for disbursement of wages. PW17 also stated that he can neither admit nor deny that no wages in the present case were disbursed in his presence. The witness even claimed ignorance as to compliance to Circular dated 25.09.2002 at the time of disbursement of wages. 5.2.3. PW18 Hawa Singh was head clerk at the relevant time in MCD, West Zone, CSE Department. He deposed that he had handed over MRs to the Vigilance Branch of MCD. When the witness did not divulge any other fact, he was declared hostile and was cross examined by the prosecution. In his cross examination by the Prosecution, the witness denied that during investigation he had told the IO that the 38 MRs in question were issued to A1 or that he had identified signatures of A1 on those MRs. The witness claimed that even after seeing the MRs Ex.P1 to P-38 he cannot say that the same were issued to A1. However, he claimed that in respect of the 38 MRs in question, he had released cash amount to A1 who was JE, towards payment of wages to the labourers. The witness also admitted that it was A1 who had identified the labourers at the time of payments and, on his verification payment of wages were made to the labourers. The witness also admitted that it was the responsibility of JE to identify the labour named in the MR at the time of payment.
During his cross examination by the accused, the witness admitted that in terms of Circular dated 25.09.2002, the wages were to be disbursed through the Vigilance Department, but claimed that it was to be done in the presence of JE concerned. Though the witness also admitted that in the said Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 7 of 49 8 circular there was no reference as to the role of JE at the time of disbursement of wages, however, he claimed that in practice, it was the JE who could have identified the labour. The witness also admitted that at the time of payment of wages, the Id proofs of those labourers were obtained and no wages were disbursed to those labourers who did not carry Id proof. But the witness also admitted that at the time of payment, he was not present at the spot and he had no personal knowledge as to what methodology was adopted at the time of disbursement of wages. The witness even claimed that he had obtained signatures of A1 on a register in token of handing over cash to him towards wages and claimed that the said register was not seized by the investigating officer.
5.3. From amongst the police officials, the witnesses examined are PW2, PW7, PW13, PW15 & PW19.
5.3.1. PW2 SI K. L. Meena was the duty officer who proved registration of FIR Ex.PW2/A and the corresponding DD entries in that regard. 5.3.2. PW7 Ct. Manoj witnessed obtaining of specimen signatures of the three labourers namely Rajender, Naveen and Annu, on 16.01.2008. This witness also carried documents to the FSL, Rohini on 19.05.2008, for comparison by the hand writing expert.
5.3.3. PW15 Hari Chand (the then Inspector), deposed that he had received 38 MRs in question and during preliminary inquiry he found that 9 labourers named in few MRs, who were shown to be residents of C-Block in Madipur, were not actually residing there, although those addresses existed. He even deposed that during inquiry he found names of 10 labourers mentioned in two MR Ex.P28 & P-29, according to which those 10 persons had worked on the same date and time at two different sites. Witness deposed that after registration of FIR he conducted part investigation during which he visited 40-45 addresses mentioned in the MRs, but did not find the labourers named in the entries to be residing at those addresses. According to him, only two labourers were actually found residing at the given address and both of them Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 8 of 49 9 had claimed that they had worked as labourers and they had even received their wages.
In the cross examination by the accused, the witness admitted that he did not collect any office order / notesheet / circular Mark PW12/DA, DB and DC. Witness also admitted that he did not verify the procedure followed for disbursement of wages and he did not come to know that wages were disbursed by Vigilance Department of MCD. The witness also admitted that he did not record the statement of any resident of those 40-45 addresses which he had visited during inquiry / investigation as to non-staying of persons at those addresses.
5.3.4. PW13 the then ACP H. P. S. Sodhi conducted part investigation in the present matter, during which he obtained specimen signatures of the above named three persons. The witness also deposed that even he verified addresses of persons named in the MRs and found that some of the addresses were fake; some addresses were correct but the residents claimed to have not worked or been engaged as labourer and; some claimed that they did work as such but they were not paid their wages. Accordingly, he recorded statements of ten persons namely Rajender (PW10), Naveen Kumar (PW4), Annu (PW3), Bishan Lal (PW14), Naseem (PW16), Nanak Ram (PW8), Satish (PW5), Badhani Devi (PW9), Suraj (PW6) and, Ramphal (Mis spelled as Rajpal) S/o Beegha Ram. (Ramphal could not be examined as he expired by then.) The witness also deposed that he sought Sanction for prosecution against A1.
During cross examination by the accused, even this witness admitted that he did not collect that office order / note sheet / circular Mark PW12/DA, DB & DC. He also admitted that he did not record statement of any MCD official to the effect whether desilting was done satisfactorily and completely or not.
5.3.5. PW19 Roop Lal (the then Inspector), conducted further investigation of the case. He got the specimen signatures compared with the questioned Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 9 of 49 10 signatures from FSL; arrested A1; obtained Sanctions against the accused persons; collected their bio-data. The witness also deposed that during investigation he came to know that some money was paid as wages to the labourers by the accused persons of their own whereas some wages were disbursed in presence of the Vigilance Team constituted by the MCD. The witness however did not clarify as to which particular payment/s was/were made by the accused without presence of Vigilance Team and which were made in presence of the Vigilance Team. This witness also deposed that as per CPWD Manual which was applicable in MCD vide circular dated 02.09.1964, particularly Rule no. 9.5, 9.12 & 9.13, it was duty of JE to verify and mark attendance of casual labour employed whereas the AE and EE were supposed to conduct surprise checks to verify the engagements and the presence of labourers and that they were responsible to sign the MRs in token of discharge of their responsibilities. Witness also claimed that during investigation he had attempted to collect the relevant registers about issuance of MRs to the JE concerned and regarding release of cash amount of wages to the JE for disbursement. No such details / registers were proved in this case. The witness deposed that as per material collected during investigation, it was found that a sum of Rs. 13,32,859/- was entrusted to A1, out of which Rs. 4,86,220/- was claimed to have been disbursed. He also deposed that signatures of three labourers on the MR, namely Rajender, Naveen and Annu, were found forged.
In his cross examination by the accused, the witness admitted that he did not record statement of any MCD official and did not collect any report as to whether the work of desilting was done or not or was done incompletely. The witness also admitted that he could not seize any record to indicate that the JE had identified the labourers at the time of disbursement of wages, claiming that he sought that information but it was not provided from the office of Executive Engineer. Similarly, the witness also admitted that he tried to collect records from the Vigilance Department to indicate Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 10 of 49 11 that JE had identified the labour at the time of disbursement, but no such record was provided to him.
5.4. From amongst the labourers / public persons, the prosecution examined Nine witnesses. Out of them, PW3, PW4 & PW10 are the labourers, whose signatures on the MRs against receipt of payments were claimed to be forged. The remaining six witnesses PW5, PW6, PW8, PW9, PW14 & PW16 were examined to prove that no person named as labourer in few of the MRs, ever resided at the addresses of these witnesses. The testimonies of these nine public witnesses is being discussed hereinafter at appropriate stage, in order to avoid repetition.
6. On completion of prosecution's evidence, all the incriminating evidence was put to the two accused.
6.1. In his statement, A1 admitted that he was working as JE in West Zone, CSE, MCD during the relevant time, but he generally denied the evidence against him. As to issuance of MRs to him, he claimed ignorance, but at the same time claimed that he had engaged the casual labourers from open market as at that time there was no requirement of checking the identity of labourer or collecting their Id proof. He claimed that the wages were not issued to him and the disbursement of wages were assigned to a Committee specially constituted for that purpose. Qua the ten persons named in two different MRs Ex. P28 & 29 the witness claimed that no payment was made to those persons. He claimed that he has been implicated falsely as the desilting work was completed, no wrongful loss was caused to MCD and he did not commit any offence. As to the Sanction, he claimed that the Sanction was granted mechanically, without application of mind and by an incompetent person. 6.2. Similarly, A2 also generally denied the evidence against him. Though, he admitted that he was working as Assistant Engineer in the concerned Zone at the relevant time and his co-accused A1 was working as JE, but he claimed that the engagement of labourers was not his responsibility; it was the responsibility of JE. He claimed that his responsibility was confined to Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 11 of 49 12 supervise the completion of work and conduct surprise checks and it was not his responsibility to check or verify the identity of labourers at any stage. Even this accused claimed that disbursal of wages was not his responsibility and it was assigned to a Committee constituted by the MCD and; that no payment was made to the ten persons named in two different MR Ex. P28 & 29. He claimed that there was no conspiracy between him and his co- accused; no complaint was received that the work was not done and no wrongful loss was caused to anybody.
7. Both the accused opted to lead evidence in their defence and examined two defence witnesses.
7.1. DW1 Smt. Pramod Verma proved certain official notes, communications as Ex.DW1/A-1, Ex.DW1/B-1, Ex.DW1/C-1, Ex.DW1/D-1 & Ex. DW1/E-
1. Out of it, Ex.DW1/A-1 is an office note dated 21.01.2002 which was signed by DW2 Ravi Dass. In this office note, it is mentioned that for the purposes of desilting of drains below 6 feet in depth and width which are supposed to be got done by labour engaged on MRs basis, the trucks and labour be taken from market. Ex.DW1/B-1 is a circular dated 25.09.2009 in which it is mentioned that all the payments to the labourers should be made by 07.11.2002 but only in the presence of officials of Vigilance Department and some other independent observer of MCD and payment should be made only when some convincing proof of residence is furnished by the labour such as attested copy of ration card, election Id card, driving license or an affidavit duly signed by the Executive Magistrate / SDM. It is also mentioned in Ex.DW1/B-1 that after 07.11.2002 no payment should be made to the MR employees and in future without mentioning complete bio- data with proof of residence, age and three photographs no one should be employed on MR. Ex.DW1/C-1 prescribed that the circular Ex.DW1/B-1 be strictly complied with. Ex.DW1/D-1 is a letter dated 14.01.2003 under which a team of three officials was constituted to oversee the disbursal of payments. Similarly, the communication Ex.DW1/E-1 dated 16.03.2004, Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 12 of 49 13 circular issued by Direction-in-Chief, CSE, specifies that since the departmental labour were not available locally, and in view of urgency of work of desilting before monsoon, the labourer may be engaged even from belonging outside Delhi and the concerned EE(CSE) shall not insist on the condition of ration card for engaging the labour and payment to such labourers may be made in cash instead of cheque in order to avoid delay and inconvenience to the labourers.
7.2. DW2 Ravi Dass identified his signature on Ex.DW1/A-1 as well as E-1. He had worked as Director in CSE. He deposed that the work of desilting of drains of such a nature that most of the labourers would not like to do that work and the said work used to be got done from labourers in open market who otherwise could not find any other work to do and it was not expected from those persons to carry Id proof. He claimed that no complaint was received from any corner that the work was not done or was done unsatisfactorily. In the cross examination, he admitted that it was the responsibility of JE to remain present at the time of disbursement of wages. He also claimed that that AE was also supposed to be present at the time of payment to oversee that the person receiving payment is signing the MR.
8. I have heard Ld. Prosecutor for the State and Ld. Counsels for both the accused.
8.1. Ld. Prosecutor for the State argued that from the testimonies of the public persons/labourers examined in this case, it is proved beyond doubt that various labourers who were claimed to have been engaged for desilting by A1 in the MRs in question actually did not work and did not sign the MRs against receipt of payments whereas payments were claimed to have been made to them or that the persons named in the MRs were not residing at the given addresses and ten such persons were shown to have worked under two different MRs for the same date and time, therefore the case of prosecution about the MRs prepared falsely, forgery of signatures, using forged MRs for collecting payments from the cashier, misappropriation of money is made Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 13 of 49 14 out against both the accused.
8.2. On behalf of both the accused, it is argued that there was no complaint or allegation from any corner that the work of desilting was not completed or it was unsatisfactorily done and therefore necessary inference is that the said work was done and the number of labourer reflected in the MRs were not only required but were also engaged and those labourers worked for desilting. It is also argued that Rs.4,86,220/- was disbursed, by the Vigilance Team, and the remaining amount of Rs. 8,46,639/- was deposited back in the MCD, therefore, there was no wrongful loss caused to MCD and consequently there is no wrongful gain to the accused persons. Accused argues that the alleged discrepancies in the MRs does not indicate any culpability of accused as wages were disbursed by the Vigilance Team in terms of Ex.DW1/B1. It is argued that the labourers were engaged from open market in terms of Ex.DW1/A1 and since the number of labourer engaged were very high, the same were engaged through contractors, which is also admitted by PW10, and JE cannot feasibly engage 662 labourers without contractor, therefore A1 cannot be faulted with. It is also argued that Ex.DW1/A1 did not stipulate any requirement of either checking or verifying or keeping on record Id proof or residence proof of the labourers engaged and, due to the very nature of work of desilting, it used to be done by only those persons who could not find any other work and such persons might have given incorrect particulars or particulars of someone else to conceal their identities in order to save themselves from embarrassment for doing such kind of work. It is also claimed that the said fact is also corroborated from Ex.DW1/E1, circular dated 16.03.2004, which speaks about engagement of labour from outside Delhi due to non-availability of departmental labour and, as to non-insisting upon the condition of ration card and payment of wages in cash to the labourers. It is also argued that few of the public witnesses examined in this case admitted that they do not know any engineer of MCD or either of the accused and they saw the Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 14 of 49 15 accused in the Court for the first time during their deposition, therefore it strengthens the arguments of A1 that A1 did not engage those labourers and instead they were engaged by the contractors, otherwise how else A1 would have come to know and note the particulars of those witnesses in the MR. It is also argued that even though the wages to the labours were disbursed by the vigilance team and as per Ex.DW1/D1 dated 14.01.2003, pursuant to Ex.DW1/B1 dated 25.09.2002, name of Ashok Kumar, Naresh Kumar and Surender Singh were mentioned as the persons deputed for disbursement of payment, yet despite the fact that they disbursed the payments, none of them have been examined as witnesses in this case. It is argued that there is no evidence led by the prosecution to show that payments to any of the disputed entries in question in this case were released in presence of either of the accused, which is even otherwise against circular Ex.DW1/B1 dated 25.09.2002. It is claimed that in order to save the members of Vigilance Team, the accused persons have been implicated. It is also argued that Sanction granted against both the accused is illegal as the documents Ex.DW1/A1 to E1 were deliberately concealed by the investigating agency from the sanctioning authority as also the fact as to who disbursed the amount and therefore sanction is illegal and invalid. Qua the repetition of names of ten persons in two MRs claiming that that the set of ten persons worked on the same dates at two different locations, it is argued that since no payment was released to any of them, therefore there is no culpability.
9. As mentioned above, it is an admitted case of the two accused that both of them were respectively posted as JE and AE in the concerned Ward at the relevant time. It is not in dispute that under the MRs in question work of desilting was initiated and for that purpose A1 engaged casual labourers from open market and named 662 total number of casual labourers in the 38 MRs.
10. Though, both the accused challenged the Sanction, claiming that the Sanction was accorded without application of mind by the Sanctioning Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 15 of 49 16 Authority, but besides making those bald allegations no substantive argument could be raised and nothing substantive could be shown to the Court by either of the accused as to why the Sanctions Ex.PW11/A & 12/A are not valid. The two Sanction orders, specifically mentions in detail as to the material taken into consideration by the sanctioning authority before according the sanctions. Merely because the Sanctioning Authority did not personally peruse the MRs in question, and the subsequent circulars as to payments of wages and engagements of labourers were not sent to the Sanctioning authority, it is insufficient to hold that the Sanctioning authority accorded Sanction without application of mind.
10.1. In the case of Vinod Kumar Garg v. State (NCT of Delhi), (2020) 2 SCC 88, it is observed as follows;
"25. On the said aspect, the later decision of this Court in State of Maharashtra v. Mahesh G. Jain [State of Maharashtra v. Mahesh G. Jain, (2013) 8 SCC 119: (2014) 1 SCC (Cri) 515: (2014) 1 SCC (L&S) 85] has referred to several decisions to expound on the following principles of law governing the validity of sanction: (SCC pp. 126-27, para 14) "14.1. It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
14.2. The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution. 14.3. The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it.
14.4. Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
14.5. The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 16 of 49 17 sanction order.
14.6. If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction.
14.7. The order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper technical approach to test its validity."
...............
28. This Court in Ashok Tshering Bhutia v. State of Sikkim [Ashok Tshering Bhutia v. State of Sikkim, (2011) 4 SCC 402: (2011) 2 SCC (Cri) 258: (2011) 2 SCC (L&S) 697] referring to the earlier precedents has observed that a defect or irregularity in investigation however serious, would have no direct bearing on the competence or procedure relating to cognizance or trial. Where the cognizance of the case has already been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless a miscarriage of justice has been caused thereby. Similar is the position with regard to the validity of the sanction. A mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby. Section 19(1) of the Act is matter of procedure and does not go to the root of the jurisdiction and once the cognizance has been taken by the court under the Code, it cannot be said that an invalid police report is the foundation of jurisdiction of the court to take cognizance and for that matter the trial."
10.2. In the case of Girish Kumar Suneja v. CBI, (2017) 14 SCC 809, a three judges bench of Supreme Court made following observations: -
"67. In CBI v. V.K. Sehgal [CBI v. V.K. Sehgal, (1999) 8 SCC 501: 1999 SCC (Cri) 1494] it was held that for determining whether the absence of, or any error, omission or irregularity in the grant of, sanction has occasioned or resulted in a failure of justice, the court has a duty to consider whether Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 17 of 49 18 the accused had raised any objection on that score at the trial stage. Even if it had been raised at the trial and early enough, it would not be sufficient to conclude that there was a failure of justice. Whether in fact and in law there was a failure of justice would differ from case to case but it was made clear that if such an objection was not raised in the trial, it certainly cannot be raised in appeal or in revision. It was explained that a trial involves judicial scrutiny of the entire material before the Special Judge. Therefore, if on a judicial scrutiny of the evidence on record the Special Judge comes to a conclusion that there was sufficient reason to convict the accused person, the absence or error or omission or irregularity would actually become a surplusage. The necessity of a sanction is only as a filter to safeguard public servants from frivolous or mala fide or vindictive prosecution. However, after judicial scrutiny is complete and a conviction is made out through the filtration process, the issue of a sanction really would become inconsequential."
11. Here, it would be pertinent to discuss the testimonies of public witnesses examined in this case. For the sake of clarity, the evidence led by the prosecution from amongst the public persons is being discussed as per Table A to C, as mentioned above.
12. Qua Table A, the case of prosecution was that, PW3 Annu, PW4 Naveen & PW10 Rajender had actually worked as labourers, but they were not paid their wages, whereas payment qua them was shown to have been made, and that the signatures in token of payment received by them on the four MRs, were forged.
12.1. When PW3 Annu stepped into the witness box, he deposed that he worked as a labourer under entry at Sl.No. 25 in MR Ex.PW1/D (Ex.P-2), but he did not receive any wages whereas the said entry contained endorsement as to payment of Rs. 1440/-, containing his purported signature, which was not appended by him. The witness also deposed that during investigation he gave specimen signatures Ex.PW1/I & 1/J. Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 18 of 49 19 During cross examination by the accused, the witness claimed that the MR Ex.PW1/D (Ex.P-2) was seen by him for the first time in the Court and that signatures at Point A can possibly be of him. Thereafter, the witness was re- examined by the prosecution in which the witness deposed that he was never paid the amount mentioned therein, and after understanding the meaning of signatures on the Revenue Stamp he stated that the said signature did not belong to him. Thereafter, the witness was again cross examined by the accused, but the witness stood the ground claiming that the signature in question were not his signatures and that he did not receive any such payment.
12.1.1. In the arguments advanced on behalf of the accused persons, a lot of emphasis is made on the answer of this witness in his initial cross examination wherein the witness stated that the signature in question could be his signature. But the said argument has to be rejected as the witness categorically in his re-examination and his re-cross examination stated that the signature in question were not his signature.
12.2. PW4 Naveen also deposed that he worked as a labour under entries at Sl.No. 13 in two MRs no. 534 Ex.PW1/B (Ex. P-4) (wrongly written as 543 in the chargesheet) and, in MR No.593 Ex.PW1/C (Ex. P-3), but he claimed that he did not receive wages for the work done by him, particularly stating that he did not receive Rs. 2674/- each against the two entries. He also categorically deposed that the questioned signatures in token of receipt of payment against those two entries were not appended by him and they were forged. Nothing substantial could be brought out in the cross examination of this witness by the accused persons. Though, the witness admitted in his cross examination that he saw the two MR in question for the first time in the Court, but not much can be read in that statement in favour of the accused persons. The hand writing expert's report Ex.PW1/A establishes that the specimen signatures of Naveen did not match with the questioned signatures on the two MRs. The testimony of PW1, the hand writing expert remained Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 19 of 49 20 unrebutted, as mentioned above.
12.3. PW10 Rajender also similarly deposed that he had worked as a labour under MR no. 469 Ex.PW1/A (Ex.P-1). He deposed that he was paid wages for the work done, but he did not remember the amount paid to him. However, he also claimed that the signatures against entry at Sl.No. 2 in token of receipt of Rs. 1713/- on this MR were forged as he cannot read or write English but he can sign in Hindi, whereas the questioned signature at Point A are in English.
The witness was partially declared hostile by the prosecution and was cross examined by the Ld. Prosecutor in which the witness deposed that he did not receive Rs. 1713/- as indicated in the MR in question.
In the cross examination by the accused the witness claimed that he did not remember whether the amount received by him was more than Rs. 2000/-. The witness also admitted that he was engaged by one labour contractor namely Mukesh and that he was paid his wages by none other than A1 Trilok Chand Meena who was also identified by the witness in the Court. The witness also admitted that he never met A2 M. K. Gupta prior to that day.
12.3.1. This part of testimony as to payment of wages to this witness by A1 and identification of A1 came in the cross examination by A2, yet A1 did not chose to cross examine this witness at all leaving the testimony of this witness as unrebutted so far as the fact that the questioned signature of this witness in the questioned entry were forged and also that the wages to this witness were paid by A1.
12.3.2. Though, in the testimony of this witness during cross examination by the Prosecutor it has come that the witness did not receive Rs. 1713/- as indicated in the questioned entry, but in his examination in chief the witness claimed that he received his wages and also in the cross examination by A2 the witness admitted that he had received wages from A1. Therefore, Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 20 of 49 21 prosecution cannot claim that this witness did not receive wages and only thing which is proved is that the questioned signature on the questioned entry of this witness does not belong to the witness. In the cross examination of even this witness by the accused, nothing material could be brought out on record. The witness though admitted that he was engaged by a labour contractor namely Mukesh and that he was paid wages by A1, which amount was more than Rs. 2000/-, but no question was asked to the witness as to his signatures or as to payment by A1, in the cross examination by the accused. Thus, from the testimony of this witness, it is established that A1 paid the amount to this witness and that the signature of this witness on the MR were not appended by the witness.
12.4. From the testimonies of PW3 & 4, it is clear that these witnesses though worked as labourers, but neither they were paid their wages nor they signed the disputed entries. Instead their signatures were forged by someone. From the testimony of PW 10, it is also proved that though this witness received his wages from A1 but the questioned signature on the questioned entry did not belong to this witness and were forged. In cross examination of none of the above mentioned 3 persons anything material came out in favour of the accused to create any doubt as to the veracity of these witnesses.
12.5. Thus, the prosecution succeeds in proving that the signatures in the 4 disputed entries in Table A, pertaining to PW3, 4 & 10 were forged. Also wages were not paid to PW3 & 4, to the tune of Rs. 2674/- each qua PW4 and Rs. 1440/- qua PW3, totaling Rs. 6788/-.
13. Regarding the 10 persons, as named in Table B, who were claimed to have worked at different locations on the same dates by showing their presence in the MR no. 722 & 729, respectively Ex.P-29 & P-28, the prosecution did not make an attempt to call anybody from the residential addresses of those ten persons to prove whether any such person existed or not. Nevertheless, despite the fact that no one has been examined from the addresses of those ten persons, it is clear on the face of it that one person cannot work manually Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 21 of 49 22 for desilting on the same date and time at two different locations.
13.1. MR no. 722 Ex. P-29 reveals that this MR was prepared qua so-called desilting work of an "open drain in Kirti Nagar, C-124". This MR also reveals that the work under it was performed between 01.06.2002 to 29.06.2002. Besides the rest days for the labours who allegedly worked under this MR, the working days comes out to be 25 days, between 01.06.2002 to 29.06.2002. Under this MR, rest was given to the labourers on 2nd, 9th, 16th and 23rd June, 2002. Under this MR, total 21 labourers are claimed to have worked.
13.2. MR no. 729 Ex. P-28 also reveals that this MR was prepared qua so-called desilting work of a "drain from Natraj Culvart to N G Drain C-123". This MR also reveals that the work under it was performed between 01.06.2002 to 23.06.2002. Besides the rest days for the labours who allegedly worked under this MR, the working days comes out to be 19 days, between 01.06.2002 to 23.06.2002. Under this MR also, rest was given to the labourers on 2nd, 9th, 16th and 23rd June, 2002. Under this MR, total 34 labourers are claimed to have worked.
13.3. Thus on the same dates, between 01.06.2002 to 23.06.2002, the ten persons are claimed to have worked at two different sites and locations for desilting. It is not even claimed by the accused that the work was undertaken at those two sites at different shifts of morning and evening. The said fact itself is enough to prove that at least Ten entries each in the above mentioned two MRs were incorrectly prepared.
13.4. The tabulated information as to the serial numbers under the two MRs containing same name of labourer, parentage and address, is as follows;
Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 22 of 49 2314. Qua the so-called non-existent labourers, as mentioned in Table C, prosecution examined six witnesses PW5, PW6, PW8, PW9, PW14 & PW16, whose testimonies are as follows. These six witnesses deposed that no one resided at their addresses by the name and address of the persons as mentioned at Sl.No.1, 2, 4, 5, 8 & 9 of Table C. Regarding Fateh Singh named at Sl.No. 3 in Table C, its owner could not be examined as he expired by then. Regarding remaining two persons named at Sl.No. 6 & 7 in Table C, namely, Sadh Ram and Shyam Singh, no one was even named in the list of witnesses and no one is examined.
14.1. PW5 Satish deposed that he was residing at the given address since birth and that no person by the name of Vishnu ever resided at the said address in any capacity whatsoever. In MR no. 464 Ex.P-14 at Sl.No. 11 name of "Vishnu S/o Jai Prakash" is mentioned to have worked as a labourer. The address mentioned in the MR is "C-82, Madipur, ND", that is the address of Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 23 of 49 24 the witness.
14.2. Similarly, PW6 Surje, deposed that he was residing at C-42, Madipur Village, New Delhi since 1968 and that no person by the name of Sarvesh Singh S/o Ram Singh ever resided at the said address in any capacity whatsoever. In MR no. 467 Ex.P-17 at Sl.No. 15 name of "Sarvesh S/o Ram Singh" is mentioned to have worked as a labourer. The address mentioned in the MR is "C-42, Madipur Colony, New Delhi".
14.3. Similarly, PW8 Nanak Ram deposed that his brother owned and occupied house no. C-192, Madipur and that no person by the name of Dalip Kumar S/o Raj Singh ever resided at the said address in any capacity whatsoever. In MR no. 467 Ex.P-17 at Sl.No. 2 name of "Dilap Singh S/o Raj Singh" is mentioned to have worked as a labourer. The address mentioned in the MR is "C-192, Madipur Colony, New Delhi".
14.4. Similarly, PW9 Smt. Badani Devi deposed that she was owner of the said house and that no persons by the name of Suresh S/o Ram Chandra & Roop Singh S/o Dharam Singh ever occupied her house in any capacity whatsoever. In MR no. 467 Ex.P-17 at Sl.No. 18 name of Suresh S/o Ram Chandra is mentioned to have worked as a labourer. The address mentioned in the said entry in the MR is "C-235, J. J. Colony, Madipur, New Delhi", the address of the witness. In none of the MRs name of Roop Singh S/o Dharam Singh could be found by this Court regarding whom also this witness testified.
14.5. Similarly, PW14 Bishan Lal deposed that he was owner and residing house no. C-465, Madipur, J. J. Colony, Delhi since 1986 and that he did not know any person by the name of Jagmohan S/o Suraj Bhan. However, in his examination in chief, the witness claimed that he did not even know whether any such person resided in his house as a tenant. He was then subjected to cross examination by the prosecution after declaring him partially hostile in which he claimed that he did not even remember having told the IO that no Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 24 of 49 25 such person resided in his house. Thus, the testimony of this witness did not specifically establish whether anybody by the name of Jagmohan resided in his house or not. In MR No. 464 Ex.P-14 at Sl.no. 3 name and address of one "Jagmohan S/o Suraj Bhan R/o C-465, Madipur, New Delhi", is mentioned.
14.6. Similarly, PW16 Naseem deposed that he was residing at the address since 1996 and that no person by the name of Ajeet Singh S/o Raju ever resided at the said address in any capacity whatsoever. In MR no. 466 Ex.P-16 at Sl.No. 12 name of "Ajeet Singh S/o Raju" is mentioned to have worked as a labourer. The address mentioned in the MR is "C-95, Madipur, ND".
14.7. In the cross examination of PW5, 6, 8, 9, & 16 on the point that the labourers named in the MRs never occupied their respective houses, nothing material could be brought out on record by the accused persons to discredit their testimonies. All that was asked to these witnesses were whether they knew either of the accused or whether the witness furnished their addresses to either of the two accused. To both the questions, the witnesses replied in the negative. The witnesses were asked whether they had ever seen or met the accused prior to the day of the testimony of the witness, to which also the witnesses replied in the negative.
14.8. Thus, the prosecution succeeds in proving that out of the 9 disputed entries in Table C, the 5 disputed entries pertaining to PW5, PW6, PW8, PW9 & PW16 were falsely made in the concerned MRs and that none of those 5 persons named in the MRs existed or worked as claimed. Perusal of those 5 disputed entries would reveal that a sum of Rs. 2284/-; Rs. 1142/-; Rs. 2093/-; Rs. 2093/- and Rs. 2093/-, respectively (totaling Rs. 9,705/-) were shown to have been paid in the name of the so-called labourers as mentioned at Sl.No. 2, 4, 5, 8 & 9 of Table C, respectively. Also, perusal of those 5 disputed entries in the MR no. 464, 466 & 467 would reveal that qua the said 5 so-called labourers signatures / thumb impressions exists against the 5 entries in the name of those so-called labourers claiming that those so-called Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 25 of 49 26 labourers accepted the said amount as wages. Out of them the so-called labourer at Sl.No. 2 & 5 allegedly appended thumb impressions whereas the other Three appended their signatures. Thus, even the signatures / thumb impressions of those 5 persons, who did not exist, falls in the category of forged signatures / thumb impressions.
14.9. Though the prosecution never even attempted to collect specimen or admitted signatures / thumb impression or writings of either of the accused and never got it compared with the disputed entries and the forged signatures / thumb impressions and therefore it is not proved by the prosecution that it was either of the two accused or more particularly A1 who forged those entries, but nevertheless the 4 entries in Table A, which bears forged signatures of PW3, 4, & 10 are proved to be forged by someone, as also the Five signatures of the Five purported labourers as mentioned in Table C, were forged by someone.
15. To sum up, prosecution succeeds in proving the facts that:
15.1. The disputed signatures on four entries in four MRs as mentioned in Table A, were not signed by the three witnesses PW3, 4 & 10 and were forged. Out of them PW3 & 4 did not even get their wages.
15.2. The ten entries each in two MRs no. 722 & 729, respectively Ex.P-29 & P-28, as to Table B, on the face of it proves that those persons could not have worked manually for desilting on the same dates and time at two different locations, therefore, those entries in the two MRs were falsely made.
15.3. Out of the Nine disputed entries in Table C, the Five witnesses PW5, 6, 8, 9 & 16 clearly proved that no person by the name, parentage and address of the so called engaged labourer mentioned against the entries in the three MRs no. 464, 466 & 467 ever lived in their houses. Thereby it proves that no such Five persons lived or existed and therefore, those entries in the three MRs were falsely made. Thereby, it is also proved Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 26 of 49 27 that the signatures / thumb impressions of these Five persons were also forged by someone and those Five persons were not paid their respective wages despite that it was claimed that the wages were paid to them.
16. The question however is whether either of the accused can be held liable for forgery or using forged documents, Criminal breach of trust or criminal misconduct?
16.1. The argument of accused that the MRs cannot be called forged documents, as they were legitimately prepared for desilting, is without force. The Mustor Rolls as a whole may not have been a forged document when they were prepared for the purposes of desilting by A1. However, the moment signatures / thumb impressions qua the disputed entries were forged / got forged, the said entries became forgery as it would fall within the definition of preparing false document as defined in Sec. 463 & 464 of IPC. Section 470 of IPC provides that a false document made wholly or in part by forgery is designated "a forged document". But the question is whether those forgeries can be attributed to the accused?
16.2. Perusal of the nine MRs in question qua which the disputed entries have been proved in this case i.e. MR no. 464 (Ex. P-14); MR no. 466 (Ex. P-16); MR no. 467 (Ex. P-17); MR no. 469 (Ex. P-1); MR no. 534 (Ex. P-4); MR no. 593 (Ex. P-3); MR no. 722 (Ex. P-29); MR no. 723 (Ex. P-2) and; MR no. 729 (Ex. P-28), reveals that on the last page of each of the MRs, there are four proforma certificates/Tables. The first proforma certificate talks about Sanction of amount for payment of wages to the labourers, which is signed in each of the 9 MRs by the Executive Engineer and the Accountant. The Certificate no. 2 speaks about the amount disbursed and balance amount, if any. The third certificate is a certificate which is to be issued and signed by the JE concerned in which the JE is required to certify the amount paid to the labourers as wages in his presence and that the JE certifies that all those persons had actually worked under the MRs. The fourth certificate / Table speaks about the balance payment which could not be disbursed.
Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 27 of 49 2816.3. Though in all the 9 MRs in question, the first certificate is filled up and signed by the Executive Engineer and the Accountant, as to the sanction of amount, but out of the 9 MRs, in 5 MRs no. 534 (Ex. P-4); MR no. 593 (Ex. P-3); MR no. 722 (Ex. P-29); MR no. 723 (Ex. P-2) and; MR no. 729 (Ex. P-28), the certificate no. 2 to 4 are not only blank but they have also not been signed by anyone much less by A1 and A2.
16.4. Remaining four out of Nine MRs, i.e. the MR no. 464 (Ex.P-14); MR no.
466 (Ex.P-16); MR no. 467 (Ex.P-17) and; MR no. 469 (Ex.P-1), the certificate no. 3 on the last page of each of those four MRs bear signature of the person certifying that a sum as mentioned in the said certificate has been disbursed in the presence of that person and also that the person signing it certifies that all the labourers named in the MRs actually worked for MCD and they have been paid wages in the presence of the certifier and that payment has been made to only those persons who were entitled for it. 16.5. Though the very content of this certificate reveals that it is to be signed by the Junior Engineer, but in the evidence of none of the prosecution witnesses it has come out as to who signed this certificate no. 3 on these four MR. Those signatures were not got identified from any witness as belonging to A1.
16.6. Though in exercise of powers under Sec. 73 of Evidence Act this Court can always compare disputed signatures from admitted signatures on judicial record. And the admitted signature of A1 on the charge as well as his signatures on his statement U/s 313 Cr.P.C., when compared with the signature on certificate no. 3 on the four MRs reveal similarity that these signatures are same, but it is observed by Apex Court that Courts should be slow and hesitant to base their findings solely on comparison made by it under that provision.
16.7. In Garre Mallikharjuna Rao v. Nalabothu Punniah, (2013) 4 SCC 546, it is held as follows:
"14. In Ajay Kumar Parmar v. State of Rajasthan [(2012) 12 SCC 406 : (2013) Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 28 of 49 29 2 SCC (Civ) 405 : AIR 2013 SC 633] while dealing with the provisions of Section 73 of the Evidence Act, 1872, this Court observed that courts should be slow to base their findings solely on comparison made by it. The Court further held:
(SCC pp. 417-18, para 28) "28. The opinion of a handwriting expert is fallible/liable to error like that of any other witness, and yet, it cannot be brushed aside as useless. There is no legal bar to prevent the court from comparing signatures or handwriting, by using its own eyes to compare the disputed writing with the admitted writing and then from applying its own observation to prove the said handwritings to be the same or different, as the case may be, but in doing so, the court cannot itself become an expert in this regard and must refrain from playing the role of an expert, for the simple reason that the opinion of the court may also not be conclusive. Therefore, when the court takes such a task upon itself, and findings are recorded solely on the basis of comparison of signatures or handwritings, the court must keep in mind the risk involved, as the opinion formed by the court may not be conclusive and is susceptible to error, especially when the exercise is conducted by one, not conversant with the subject. The court, therefore, as a matter of prudence and caution should hesitate or be slow to base its findings solely upon the comparison made by it. However, where there is an opinion whether of an expert, or of any witness, the court may then apply its own observation by comparing the signatures, or handwritings for providing a decisive weight or influence to its decision."
16.8. In the present case, the disputed signatures are like initials and not complete signatures, therefore it would be unsafe for this court to hold conclusively that they were appended by A1 only, and no one else.
16.9. Though PW17 Bharat Bhushan Behel deposed to the effect that A1 & A2 were present at the time of disbursal of wages in presence of Vigilance Team and that both the accused had identified and verified the identity of labourer, but, initially, the witness claimed that no payment was disbursed to the labourers under his supervision. Thereafter he was cross examined by the Prosecution after declaring him hostile, in which the witness admitted that a Vigilance Team was constituted for disbursement of wages under the 38 Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 29 of 49 30 MRs in question. He admitted that Rs. 2,57,923/- were disbursed as wages in presence of Vigilance Team and the remaining amount of Rs. 8,46,639/- was deposited back in MCD treasury. During cross examination by the accused, the witness admitted that as per Ex.DW1/D1, it is not mentioned that this witness was to be present at the time of disbursement of wages to the labourers. This communication of MCD is dated 14.01.2003 qua deputing three persons namely Ashok Kumar, Naresh Kumar and Surender Singh for disbursement of wages. PW17 also stated that he can neither admit nor deny that no wages in the present case were disbursed in his presence. The witness even claimed ignorance as to compliance to Circular dated 25.09.2002 at the time of disbursement of wages. None of the three deputed persons, namely, Ashok Kumar, Naresh Kumar and Surender Singh have been examined in this case as to presence of A1 at the time of disbursal. 16.10. Similarly, though in the evidence of PW18 Hawa Singh, it is deposed that payment was disbursed to the labourers on the identification and verification of A1 Trilok Chand Meena who was JE and, that the JE concerned was responsible for identifying the labour named in the MR at the time of payment, but the witness also admitted that at the time of payment, he was not present at the spot and he had no personal knowledge as to what procedure was adopted at the time of disbursement of wages. The witness also admitted that at the time of payment of wages, the Id proof of those labourers was obtained and no wages were disbursed to the labourer who did not carry Id proof. When this witness was not even present at the time of payment, he cannot be believed as to presence of A1. Not even one Id proof of those labourers which were obtained at the time of payment is proved to confirm presence of A1. The witness even claimed that he had obtained signatures of A1 on a register in token of handing over cash to him towards wages and claimed that the said register was not seized by the investigating officer. Even that Register is not proved. 16.11. PW19 Roop Lal also admitted that during investigation he could not seize Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 30 of 49 31 any record to indicate that JE had identified the labours at the time of disbursement of wages, claiming that he did seek that information from EE and vigilance department, but it was not provided.
16.12. If one looks at internal pages of MRs in question, in the last few columns against the entries of labourers engaged, the rate/ per day wages payable to the labour; thereafter the total amount payable to that labour, after multiplying the number of days the labourer worked with per day labour, is required to be mentioned. The subsequent column requires the date of payment to the labour to be mentioned. The next column requires it to be mentioned as to how much amount was paid and the last column requires that the receiver of amount signs/appends his thumb impression therein. In none of the MRs proved in this case the date of payment is mentioned against any entry. Only the number of days a person worked, his daily wages due and payment made are mentioned.
16.13. Thus, prosecution has not convincingly proved the fact as to on which dates the payments as to the questioned and disputed entries were made. Whether they were made prior to the constitution of the vigilance team or after it, is nowhere attempted to be proved. Prosecution has not convincingly proved that at the time of alleged disbursal of amount to the labourers, either of the accused was physically present. Thus, neither the accused is proved to have signed any of the proforma certificates/tables on the last page of the MRs, nor there is any statement of any labourer who actually received the wages to the effect that present accused was present at the time of releasing payments to the labourers and, it is not proved that any of the questioned signatures / thumb impressions of the labourers on the MR were forged by the present accused.
16.14. When it is not even the case of prosecution that the accused was present at that time, the prosecution cannot claim that the accused forged those signatures of labourers or those forgeries were done in his presence or he had knowledge about any such forgery.
Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 31 of 49 3216.15. The prosecution failed to prove that those entries or any of them are in the handwriting of A1 or A2 and any of those entries bear forged signatures under the hand of either accused. The investigating agency chose to not collect specimen signatures / handwritings or admitted handwriting / signatures of either of the accused. No witness has deposed that any of those entries are in the hand writing of either of the accused. The prosecution did not examine any of the labourer who actually worked and actually received payment to prove the fact as to whether either of the two accused personally prepared those entries or forged the signatures in question. 16.16. Thus, even though the prosecution proved that the disputed signatures of the so-called labourers as named in Table A & C were forged, as the persons named in Table A specifically deposed to that affect, and Five out of nine persons named in Table C were non-existent, but the prosecution failed to prove that those signatures were appended by either of the two accused. For convicting a person U/s 468 of IPC, it is necessary to prove that the said person committed the forgery. Reliance in this regard can be placed upon the case of Sheila Sebestian Vs. R. Jawaharaj (2018) 7 SCC 581. 16.17. Thus, neither A1, nor A2 can be held guilty U/s 468 of IPC for forging those signatures.
17. Obviously, the disputed signatures forged by someone, must have been forged at the time when wages were disbursed in the name of those witnesses to somebody, or after it. There is no evidence that at that time the Registers were in possession of either of the accused. Rather evidence indicates that those payments were made in the presence of vigilance inspectors, as claimed by PW-17 & 18. However, neither the residence proof of those persons who received payment containing certificate allegedly issued by A1, nor the Register prepared by PW-18 is proved. Rather they are concealed and an adverse inference needs to be drawn against the prosecution. Once it is established that the forged signatures were forged either at the time receiving of payment or after it, prosecution cannot even claim that either of Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 32 of 49 33 the two accused knew about forgery and then used those forged entries in the MRs, knowing or having reasons to believe the same to be forged. 17.1. Admittedly, when these Muster rolls were submitted by A1 through A2 before release of payments, these so called forged signatures did not exist in the muster rolls as they were appended at the time of release of payments or after it. After release of payments the muster rolls were not submitted to the MCD by either of the accused. There is no such evidence on record. Therefore, even Section 471 of IPC does not get attracted against either of the accused.
17.2. There is no evidence with the prosecution to even claim that either of the accused used the forged documents either knowing or having reasons to believe the same to be forged. It is so because it is not even proved as to after making payments who resubmitted the MRs containing forged signatures, after the alleged signatures were forged by someone, to the MCD. In absence of any evidence, that either of the accused knew or had reasons to believe the signatures to be forged, neither of them can be held guilty U/s 471 of IPC for using a forged document fraudulently or dishonestly as genuine, knowing or having reasons to believe it to be forged. Thus, ingredients of Sec. 471 of IPC are also not fulfilled in this case.
18. Section 409 IPC pertains to criminal breach of trust by a public servant or a banker, in respect of the property entrusted to him. The entrustment of public property and dishonest misappropriation or use thereof in the manner illustrated under Section 405 are a sine qua non for making an offence punishable under Section 409 IPC. Unless it is proved that the accused, a public servant or a banker etc. was 'entrusted' with the property which he is duty bound to account for and that such a person has committed criminal breach of trust, Section 409 IPC may not be attracted. The onus is on the prosecution to prove that the accused, a public servant or a banker was entrusted with the property which he is duly bound to account for and that he has committed criminal breach of trust. (Sadupati Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 33 of 49 34 Nageswara Rao v. State of Andhra Pradesh 9 (20210 8 SCC 547). 18.1. Sec. 13(1)(c) of POC Act, 1988, as was inforce at the time of offence of this case specifically provided that a public servant is said to commit the offence of 'criminal misconduct' if the public servant dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant. It also provides that even if such a public servant allows any other person to so misappropriate or convert for his own use any such property, still the public servant would be guilty of criminal misconduct. Sec. 13(2) of the POC Act, 1988, provides punishment for the offence of criminal misconduct. It is not in dispute that A1 was a public servant at the relevant time.
18.2. Even under section 13(1)(c) of The POC Act, the onus is on the prosecution to prove that the accused, a public servant was entrusted with the property which he is duly bound to account for and that he dishonestly or fraudulently misappropriates or otherwise converts for his own use the property entrusted to him or under his control as a public servant or allows any other person to so misappropriate or convert for his own use any such property. 18.3. None of the MRs bear any endorsement as to on which date and what amount, if at all, were entrusted to or obtained by either of the accused. The last page the MRs also contains certificate / Table no.2 which required that the amount received, the amount paid and, the balance amount ought to have been entered in this certificate and the person paying the amount to the labourers should have signed this certificate. In these certificates, there is no mention as to who received the amount for disbursal and how much amount was received.
18.4. PW 18 Hawa Singh claimed that he had obtained signatures of A1 on a Register in token of receiving wages, but that Register was not seized by the investigating agency and that Register has not been proved. It is in fact concealed despite being a crucial piece of evidence. Adverse inference must be drawn against the prosecution for concealing material piece of evidence.
Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 34 of 49 35Therefore, except oral evidence of PW-18, there is no evidence with the prosecution that the amount qua these MRs were also entrusted to either of the accused by PW-18. Therefore, this amount cannot be claimed to have been entrusted to either of the accused. When the prosecution fails to prove as to whether any amount and if so, how much amount was paid to either of the accused, there is no entrustment proved by the prosecution.
18.5. In absence of proof of any entrustment, there cannot be any criminal breach of trust, punishable either U/s 409 of IPC or any criminal misconduct punishable U/s 13(1)(c) of POC Act, 1988, against either of the accused.
19. The question however is that once it is proved that the 25 entries proved by the prosecution witnesses were dishonestly and fraudulently made in the above mentioned MRs, can A1 claim that he is completely innocent. The answer to the said question has to be in the negative for the following reasons.
19.1. A holistic view of the testimonies of all the prosecution witnesses, coupled with the answers given by the accused in his statement leaves no manner of doubt that all the 38 MR were issued to A-1 and it was he who was responsible to correctly and diligently prepare and maintain the MR. He being JE was solely responsible for true and accurate preparation, maintenance and custody of those MRs. Even if it is not proved by the prosecution that he himself forged those disputed entries / signatures / thumb impressions, it can be safely inferred that A1 at least had reasons to believe that the 20 disputed entries in Table B (10 each for the 2 MRs) as well as the 5 entries as to Table C, to be falsely made. It is not a solitary instance out of 662 labourers in 38 MRs about false entry, but as many as 25 such entries, are proved to be falsely made. A1 cannot claim ignorance and cannot take shelter under the plea that he delegated the work to his sub-ordinates or his Mates / contractors for engaging those labourers. Even if he relied upon Mates and Contractors in engaging the casual labourers, he was duty bound Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 35 of 49 36 to have correctly recorded the Mustor Rolls; he was duty bound to have ensured that payments were made to only those persons who had actually worked for desilting.
19.2. It cannot be sheer coincidence that as many as ten persons were claimed to have worked and were so named to have worked under two MRs at two different locations on the same dates and time. It also cannot be sheer coincidence that as many as 5 persons revealed the addresses which matched with the addresses of the 5 witnesses named above. Law of probability completely rules out that possibility. Even if a person willing to work as a labourer for some reason wanted to conceal his own actual identity, how probable is it that it would match with the addresses of 5 PWs? Rather it indicates that it was only and only because of deliberate false entries made in the MRs either by A1 or at his behest.
19.3. Though, it was vehemently argued on behalf of both the accused that at the time when the desilting of the present case was got done, there was no requirement of verifying or establishing identity of the labourers, but that argument does not help the accused. Even if it is assumed for the sake of arguments that A1 was not required to cross check and verify the name and addresses of the labourers from the Id proof or that the casual labourers would not have carried such Id proofs, yet A1 being a government servant ought to have satisfied himself that he was recording or getting recorded the correct name, parentage and address of the labourers. Even if he was not to collect their Id proofs, he was duty bound and ought to have exercised due diligence in recording correct name and addresses.
19.4. The argument of A1 that whatever names the labourers disclosed were accepted on the face value and were noted in the MRs, is not acceptable. After all, if a labourer actually worked, why would that labour give name, parentage and address of someone else. It cannot be sheer co-incidence that the ten persons worked manually at two different locations on the same date and time. Rather this fact establishes that indeed some names in the MRs Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 36 of 49 37 were deliberately falsely entered and it seems that qua some of the entries in the MRs without actually engaging labourers, false entries were made and thereby ghost labourers were shown to have been engaged. 19.5. The argument of A1 that because as many as 662 labourers were engaged for different desilting sites and because of the sheer number of labourers working at different locations it was not possible to verify the identity of every labourer by A1, cannot be a ground in favour of A1. Being a public servant, A1 was duty bound and responsible to prepare the MR truly and to maintain them properly. He cannot claim that he relied upon someone else to do that job. Even if there was no requirement of verifying identity of person engaged as labourer at the time of engagement, since public work and money were involved, A1 was duty bound to have been diligent in engaging labourers. After all the MRs, on the last page do contain a proforma certificate under which the JE was required to certify that the person being paid wages had actually worked at the site and was entitled to the payment. The said requirement itself makes it clear that diligence from A1 was not only expected, but was a must.
19.6. Merely because vide a subsequent circular dated 16.03.2004 Ex.DW1/E1 i.e. almost after two years of the incident in question in this case, MCD chose to issue a circular allowing engagement of labourers even from outside Delhi or belonging to outside Delhi without insisting upon the condition of ration card and payment of wages to them in cash, it cannot be construed as meaning that even in 2002 A1 could have named fictitious persons in the MRs or could have allowed false entries therein.
19.7. Even if it is to be assumed that A1 did not personally make those entries in the Mustor Rolls, yet A1 was under obligation of exercising due care and diligence being a public servant, that whoever under him made those entries, makes them correctly. Not only false names were entered, but also payments were claimed to have been made to those ghost labourers, i.e. the 5 persons named in Table C. Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 37 of 49 38 19.8. The argument of the accused persons that the work of desilting was completed and the investigating agency did not even attempt to collect any evidence that the work was not done or was partly done or was done unsatisfactorily, is without force. Indeed, investigating agency did not collect any evidence and did not prove that the desilting work was not done or was done unsatisfactorily or was incompletely done, but then the said fact alone cannot go in favour of the accused for the reason that it might well be a case where the same amount of work was got done by A1 from lesser number of labourers of which Sanction was obtained.
19.9. The investigating agency did not seize the Measurement Books (MB) and those Measurement Books were not proved in the trial of the case. But it does not help either of the accused. Undoubtedly, the MB were not seized and were not proved, but then even without those registers the case of the prosecution as to indicating ghost labourers in the MR gets proved. If the accused persons were so confident that the MB would have thrown any light in their favour, they could have proved the same by summoning them U/s 91 Cr.P.C.. But it was not done. Similarly, the argument that none of the senior officers of MCD, while processing the MR for payment, raised any objection as to the work done inadequately or incompletely, does not help the case of accused in any manner.
19.10. The argument of A1 that out of the public witnesses examined in the matter few admitted that they had not seen the Mustor Rolls during investigation, cannot go in favour of the accused for the reason that these witnesses were examined in this matter more than a decade after the alleged work was carried out and investigation was undertaken. They may or may not have correctly remembered whether they saw the Mustor Rolls during investigation or not. Once witnesses are examined after a long gap, these small omissions are bound to occur and cannot be given any undue weightage. Once they deposed in the Court, after seeing the disputed entries in the Mustor Rolls, that the disputed entries in the Mustor Rolls were Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 38 of 49 39 bearing forged signatures, it is their testimonies in the Court which matters.
19.11. Merely because Smt. Shimla Beniwal, on whose complaint vigilance inquiry was conducted by MCD was not a Councilor; she was not concerned with the zone; she has not been examined in the present trial; she was not examined by the IO, therefore the inquiry; the inquiry report; the complaint by vigilance branch; the lodging of FIR No. 42/02; or registration of the subsequent present FIR cannot be called as illegal. In a commission of cognizable offence, even if a complaint is lodged by a person unconnected with the offence, law permits registration of FIR and consequent investigation. In a cognizable offence, even a police official could have registered the FIR on his own knowledge and could have undertaken investigation. When the investigating agency, during investigation of FIR No. 42/02 found that in different zones of MCD various such Mustor Rolls were incorrectly prepared, forgery was committed and, money was misappropriated, the investigating agency was within its right to have separately registered FIR for every such separate offence. The case of investigating agency is that the commission of offence under the present FIR and the conspiracy is different from commission of similar offences qua other Mustor Rolls prepared by other JEs, which are subject matters of other FIRs.
19.12. It is clearly mentioned in Rule 9.8 of the CPWD Manual, that at the close of the MRs it was the Junior Engineer who was supposed to give certificate under his dated signatures on the MRs as well as the Daily Labour Reports in the following words "Certified that the workers mentioned in the Mustor Rolls were actually employed by me on government work". As per Rule 9.9, after closing of the MR the JE In-charge of the work was supposed to complete all formalities regarding making entries in the measurement book, work out cost of the work etc. and it was then the MR was to be submitted to the Assistant Engineer concerned within two days. As per Rule 9.5 to 9.7 Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 39 of 49 40 preparation of MRs and checking presence / attendance / details of the labourers was responsibility of JE only.
19.13. Once it is proved that A1 was primarily responsible to correctly and honestly prepare as well as maintain the MRs in question and there is no dispute to the fact that the MRs in question were issued to A1; were prepared by A1 or under his directions and; it was he who was responsible to maintain those MRs, which obviously he was obliged and duty bound to prepare and maintain diligently and he failed to do it and instead either himself made those false entries or allowed someone to make those false entries, is sufficient to hold that at least A1 prepared incorrect records without actually engaging the labourers qua those 25 entries and then he submitted those MRs to the MCD for release of payment as wages to the persons named in the MRs. That would attract offence of attempt to cheat under section 420 read with section 511 of IPC against A1.
19.14. Section 420 IPC, provides that whoever cheats and thereby dishonestly induces a person deceived to deliver any property to any person, or to make, alter or destroy, the whole or any part of valuable security, or anything, which is signed or sealed, and which is capable of being converted into a valuable security, shall be liable to be punished. There are, three components of this offence, i.e., (i) deception of any person, (ii) fraudulently or dishonestly inducing that person to deliver any property to any person, and (iii) mens rea of the accused at the time of making the inducement. For the offence of cheating, fraudulent and dishonest intention must exist from the inception when the promise or representation was made. The word 'dishonestly' emphasizes a deliberate intention to cause wrongful gain or wrongful loss, and when this is coupled with cheating and delivery of property, the offence becomes punishable under Section 420 IPC.
19.15. When A1 made those false entries as to engagement of labourers who were actually not engaged or at least allowed someone else to make those entries Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 40 of 49 41 and then he submitted the muster rolls to MCD to claim payment, he completed the act i.e. to dishonestly and fraudulently induce the MCD official to release payments against the persons named in the MRs. It is not proved in this case that money was handed over to A1 pursuant to his inducement. But attempt to cheat is complete.
19.16. Since A1 was charged for substantive offence of 420 IPC he can be safely convicted for an attempt to commit that offence, even in absence of any specific charge of attempt to cheat, as attempt to commit an offence is of a lesser degree than the main offence. Under Sub Sec (3) of Section 222 of Cr. P. C., when a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.
19.17. A1 is thus guilty for offence of attempt to cheat under section 420 read with section 511 of IPC.
20. Once it is proved that A1 either himself or through someone else allowed making false entries in the above mentioned MRs, i.e. the 20 common entries in MR 722 Ex.P-29 and MR no. 729 Ex.P-28 by naming ten persons in both the MR to have worked on the same dates and time at two different locations and, the 5 disputed entries in MR No.464 Ex.P-14; MR No.466 Ex. P-16; MR No.467 Ex.P-17 and MR No.469 Ex. P-1, proved by PW5, 6, 8, 9 & 16 qua Table C, the preparation of those 25 false entries in the MRs in question would cover the case of A1 U/s 477A of IPC also.
20.1. Sec. 477A of IPC provides that where a person being a clerk, officer or employed or acting in that capacity, willfully, and with intent to defraud, either destroys or alters or mutilates or falsifies any book, electronic record, paper, writing or any valuable security or account which belongs to or is in possession of his employer or which has been received by him for and on behalf of his employer, the said person shall be guilty of falsification of accounts. The said section also covers a case even where any such book or Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 41 of 49 42 record is received by a clerk or officer for and on behalf of his employer and still that person willfully, and with intent to defraud makes or abets the making of any false entry in any such book record etc. 20.2. For Section 477A IPC, the prosecution must prove; that the accused destroyed, altered, mutilated or falsified the books, electronic records, papers, writing, valuable security or account in question; the accused did so in his capacity as a clerk, officer or servant of the employer; the books, papers, etc. belong to or are in possession of his employer or had been received by him for or on behalf of his employer and; that the accused did it willfully and with intent to defraud. All these ingredients are indeed fulfilled in this case as the A1 falsified the Mustor Rolls belonging to MCD, in his capacity as an officer of MCD, for obvious reason to defraud by obtaining the amount against the wages of false entries and fictitious Labours.
20.3. Though, no separate charge for Sec. 477A of IPC was framed against A1 but he was charged for the offence of forgery punishable under section 468 of IPC. And section 477A IPC being an offence of the same category of forgery, with the aid of section 222 of Cr. P. C., there is no legal hurdle in holding A1 guilty U/s 477A of IPC also. Both those offences are offences of similar nature. Punishment for section 477A IPC is imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Whereas punishment for section 468 IPC is imprisonment of either description for a term which may extend to seven years, and shall also be liable for fine. Thus, though both the provisions provide equal term of imprisonment, but the imposition of fine is must U/s 468 IPC, whereas in Section 477A IPC there is discretion to either inflict imprisonment or fine or both. It makes the offence of 477A IPC a lesser offence of the same kind. Therefore, with the aid of section 222 of Cr. P. C A1 can be safely convicted. (Reliance; Rafiq Ahmad v. State of U.P., (2011) 8 SCC 300 and; Shyam Behari v. State of U.P. AIR 1957 SC 320) Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 42 of 49 43 20.4. In the present case, A1 being entrusted with the MRs to honestly and diligently maintain those MRs based on true and actual employment of labourers, made false entries by including the name of 25 persons claiming them to have worked. The obvious object was to draw money as wages against those entries and then to misappropriate the same as out of 25 persons, five were not existing and the remaining 20 entries pertained to duplicate entries in the two MRs meaning thereby that even those ten persons did not work at the two sites. Thus, the intention of A1 at the time of preparation of those false entries was to defraud MCD. Accordingly, all the ingredients of Sec. 477A of IPC are fulfilled and A1 is found guilty for that offence also.
21. Turning to the charge of Criminal Conspiracy, in the entire evidence led by the prosecution there is no evidence pointing to conspiracy between A2 and A1. There is no evidence that A1 entered into criminal conspiracy with A2 or anyone else. This Court is conscious of the fact that for an offence of conspiracy, there cannot be any direct proof and in most of the cases conspiracy will have to be gathered from the attending circumstances of an offence. The only circumstance claimed against the AE, in order to claim conspiracy, is that he was duty bound to conduct surprise checks at the site, which either he did not or he did but ignored the fact of ghost labours named in the MRs.
21.1. It would be apt to note few important observations of Apex Court in the case of K.R. Purushothaman v. State of Kerala, (2005) 12 SCC 631, wherein it is held as follows;
"11. Section 120-A IPC defines "criminal conspiracy". According to this section when two or more persons agree to do, or cause to be done (i) an illegal act, or (ii) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. In Major E.G. Barsay v. State of Bombay [(1962) 2 SCR 195: AIR 1961 SC 1762: (1961) 2 Cri LJ 828] Subba Rao, J., speaking for the Court has said: (SCR p. 228) "The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 43 of 49 44 agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts."
12. In State v. Nalini [(1999) 5 SCC 253: 1999 SCC (Cri) 691: JT (1999) 4 SC 106] it was observed by S.S.M. Quadri, J. at JT para 677: (SCC pp. 568-69, para 662) "In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus with the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences."
13. To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither is it necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implication. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the court to keep in mind the well-known rule governing circumstantial evidence viz. each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. Criminal conspiracy is an Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 44 of 49 45 independent offence in the Penal Code. The unlawful agreement is sine qua non for constituting offence under the Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement.
14. Suspicion cannot take the place of legal proof and prosecution would be required to prove each and every circumstance in the chain of circumstances so as to complete the chain. It is true that in most of the cases, it is not possible to prove the agreement between the conspirators by direct evidence but the same can be inferred from the circumstances giving rise to conclusive or irresistible inference of an agreement between two or more persons to commit an offence. It is held in Noor Mohd. Mohd. Yusuf Momin v. State of Maharashtra [(1970) 1 SCC 696: 1970 SCC (Cri) 274: AIR 1971 SC 885], that:
(SCC pp. 699-700, para 7) "[I]n most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material."
15. It is cumulative effect of the proved circumstances which should be taken into account in determining the guilt of the accused. Of course, each one of the circumstances should be proved beyond reasonable doubt. The acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. While speaking for the Bench it is held by P. Venkatarama Reddi, J. in State (NCT of Delhi) v. Navjot Sandhu [(2005) 11 SCC 600: 2005 SCC (Cri) 1715: JT (2005) 7 SC 1] (p. 63) as follows: (SCC pp. 691-92, para 103) "103. We do not think that the theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design even if such offences were ultimately committed by some of them, without the participation of others. We are of the view that those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy; but, the non-participant conspirators cannot be found guilty of the offence or offences committed by the other conspirators. There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 45 of 49 46 committed by them. Criminal offences and punishments therefor are governed by the statute. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy or by extension of a common law principle."
21.2. A perusal of the relevant rules of the CPWD Manual, which is applicable to MCD, in preparation of Mustor Rolls / Daily Labour Reports (DLR), would reveal that as per Rule 9.5, it was the responsibility of JE In-charge of the work to mark attendance of casual labourers in the MR daily at the time of roll call and to check once during the day. The responsibility of AE / Additional EE / EE was to conduct surprise checks frequently to ensure that the workers as indicated in the DLR and MR were actually employed and that their output was commensurate to the expenditure incurred. As per Rule 9.5 to 9.7, the preparation of MRs and checking presence / attendance / details of the labourers was the responsibility of JE only. 21.3. It is clearly mentioned in Rule 9.8 that at the close of the MR it was the JE who was supposed to give certificate under his dated signatures on the MRs as well as the DLR in the following words; "Certified that the workers mentioned in the Mustor Rolls were actually employed by me on government work". As per Rule 9.9, after closing of the MR the JE In-charge of the work was supposed to complete all the formalities regarding making entries in the measurement book, work out cost of the work etc. and it was then the MR was to be submitted to the AE concerned within two days.
21.4. Thereafter, Rule 9.10 onwards deals with procedure of making payment against MRs. Under Rule 9.11, after the MR was closed by the JE it was required to be sent to Sub-Divisional Clerk who was supposed to check the MR arithmetically and the AE was to conduct test check within a day and then the MR was to go to Divisional Office. The Divisional Officer was then to scrutinise the MR under Rule 9.12 and then forward it to EE and the EE was to pass the MR and hand over the amount as temporary advance to the AE for disbursal of wages. Rule 9.13 makes it clear that it was the Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 46 of 49 47 responsibility of JE in charge to make payment and to certify on the MR that the payment has been made in his presence and on his identification. 21.5. It is claimed by the Prosecution that according to the Rule 9.5, since it was the responsibility of AE to conduct frequent checks, which the AE did not do, therefore, AE was in conspiracy with JE.
21.6. There is no evidence available with the prosecution to indicate that there was any such conspiracy between the JE concerned with the AE or the EE. The prosecution assumes that the AE did not conduct surprise checks and therefore he should be held guilty. In the considered opinion of this Court, there cannot be any such assumption or presumption against AE, legally. Either he did not conduct physical checks as was required or he did it. In either of the eventualities, there would be no criminal liability against him. If the AE did not conduct physical checks but merely countersigned the MRs and thereafter those MRs were processed for payments to the labourers and so that JE can make payments to the casual labourers, it would at the most be dereliction of duty, and merely on that basis neither can conspiracy be presumed, nor any other offence. In any case, it is merely a presumption of the prosecution that A2 did not conduct physical checks. What if he indeed conducted physical checks. Was it his responsibility to also verify the identity of each and every casual labour employed by the JE? Even as per the admitted case of prosecution i.e., their reliance on Rule 9.5 of CPWD manual, there was no such responsibility or duty of AE or EE or AEE. 21.7. Though in the Rule 9.12 of CPWD Manual, it is mentioned that the Divisional Office should not take more than two days for scrutiny of the MR and similarly the EE should not take one day to pass the MR and then handing over the amount of the passed MR through temporary advance to the AE for disbursing wages to the persons engaged on MR, but in the facts of the present case no evidence has been led by the prosecution that the amount was handed over to AE. In absence of any evidence that any amount was handed over to AE or that he was physically present at the time of Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 47 of 49 48 disbursal of payments, nothing can be read in Rule 9.12 against AE in the present case.
21.8. It is nobody's case that the desilting works in question were not carried out.
In the light of this circumstance, coupled with the fact that nowhere was it the responsibility of AE or EE to conduct actual identity check of each and every casual labour, entitles A2 to be given benefit of doubt. When it was not the duty of the A2 to find out the actual identity of the casual labourers engaged by the JE and his responsibility was merely checking head count and work commensurate to the payment, it cannot be presumed that A2 was in any manner in conspiracy with the JE. Thus, assuming that AE did not conduct the surprise checks or did conduct them but failed to notice or ignored the number of labourers working at the site, it can at the most point to dereliction of duty and nothing more.
21.9. No witness has been examined by the prosecution from amongst the actual labourers who had worked at the site to prove whether the AE and EE conducted the surprise checks or not. In such circumstances, AE cannot be roped in for conspiracy with the JE just like the EE could not have been roped in.
21.10. In the case of C. Chenga Reddy & Ors. Vs. State of A. P., AIR 1996 Supreme Court 3390, it was observed by the Hon'ble Supreme Court that the entire case hinged on circumstantial evidence and there was no direct evidence available on record connecting the public servants with the commission of crime viz., payment made for various amount without the execution of work etc. It was held that at best the evidence of that case established violation of Codal provisions and ignorance of departmental instructions and circulars regarding nomination of contractors and allotment of work and those lapses at best made those public officers liable for departmental action but not for criminal offence. It was held that the circumstances proved in that case were not such which can be said to be compatible only with their guilt or incompatible with their innocence. In Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 48 of 49 49 this regard, reliance may also be placed upon the cases of Abdulla Mohd. Pagarkar v. State, (1980) 3 SCC 110; Union of India & Anr. Vs. Major J. S. Khanna & Anr. (1972) 3 SCC 873 and; J. Siri. Ram Surya Prakash Sharma Vs. State of A. P. 2011 Crl. Law Journal 2027.
22. The sum & substance of the above discussion is, that the prosecution fails to establish conspiracy between A1 & A2 or anybody else. And as discussed above, there is no evidence qua A2 for any other offence.
23. Accordingly, A2 M. K. Gupta is acquitted of all the charges framed against him.
24. A1 Trilok Chand Meena is also acquitted for offence of criminal conspiracy punishable U/s 120B of IPC as well as for the offences U/s 13(1)(c) of The POC Act 1988 and sections 409/468/471 IPC.
25. However, A1 Trilok Chand Meena is found guilty and convicted for the offences U/s 477A of IPC and also U/s 420 r/w Section 511 of IPC.
Announced in the Open Court on 24-05-2022.
DIG Digitally signed
by DIG VINAY
SINGH
VINAY Date:
2022.05.24
SINGH 10:20:42 +0530
(DIG VINAY SINGH)
Special Judge (PC ACT) (ACB)-02
Rouse Avenue Courts
New Delhi / 24-05-2022 (r)
Judgment in CNR No. DLCT110005842019 CC No. 131/19 State Vs. Trilok Chand Meena &Anr. FIR No. 38/2004 Dated 24.05.2022 Page 49 of 49