Delhi District Court
For Reference - Devender Pal Singh vs . State Of Nct Of Delhi, on 17 March, 2012
IN THE COURT OF SHRI SANJEEV JAIN: SPECIAL JUDGE (PC ACT), CBI2
NEW DELHI DISTRICT, PATIALA HOUSE COURT, NEW DELHI
CC No. 32/2010
RC No.5A/2010/CBI/ACB/NDMA Branch/New Delhi
U/s 120B r/w Sec. 420, 468, 471 IPC & Sec. 13(2) r/w Sec. 13(1)(d) of Prevention
of Corruption Act, 1988
Central Bureau of Investigation
Versus
1. Jagdish Prasad Mahamna
S/o Shri Buddan Ram
R/o F1670, Netaji Nagar, New Delhi
Permanent Address:
Village Bagrain, Distrit Bharatpur, Rajasthan
Office Address:
the then Head Clerk Posted in the office of
Chief Engineer, CPWD, NDZIII, Sewa
Bhawan, R.K. Puram, New Delhi, presently
promoted as Office Superintendent, CPWD,
BSCLI, BSF CampusN, Jaiselmer
(Rajasthan)
2. Jag Mohan Swarup
S/o Late Shri Tej Ram Goswami
R/o A83/3, DDA Flats, Saket, New Delhi17
Office Address:
the then Superintending Engineer, posted in
CPWD, NDZIII, Sewa Bhawan, R.K. Puram,
New Delhi
RC No.5A/2010/CBI/ACB/NDMA Branch/New Delhi 1
Date of FIR : 08.01.2010
Date of filing of Chargesheet : 20.10.2010
Arguments heard on : 17.02.2012
Date of Judgment : 17.03.2012
Appearance:
For prosecution : Shri A.K. Gaba, Sr. PP and Ms. Geeta Singh, PP
For accused : Shri Mukesh Yadav, Adv. for accused Jagdish Prasad
Mahamna
Shri Yogesh Kumar, Adv. for accused Jag Mohan Swarup
J U D G M E N T
1 The brief facts of the prosecution case are that a regular case was registered on the basis of source information in CBI, ACB, New Delhi on 08.01.2010 against accused Jagdish Prasad Mahamna (A1), Head Clerk posted in the office of Chief Engineer, NDZIII, CPWD, R.K. Puram, New Delhi and other unknown officials of CPWD for cheating Government of India to the tune of Rs. 42,000/ by using forged cash bills of different firms in connection with departmental examinations conducted by CPWD in the year 2007. 1.1 As per chargesheet, A2 Jag Mohan Swarup, the then SE (P&A), posted in the office of Chief Engineer, NDZIII, CPWD, R.K. Puram, New Delhi was appointed OfficerIncharge of the departmental examinations which were to be conducted in May and November 2007. A2 Jag Mohan Swarup vide letter dated RC No.5A/2010/CBI/ACB/NDMA Branch/New Delhi 2 11.04.2007 authorized A1 Jagdish Prasad Mahamna to collect Rs.30,000/ cash as advance towards the expenditure of departmental examination May 2007 and the cash was collected by A1 Jagdish Prasad Mahamna as advance on 16.04.2007 from the cashier, CPWD, New Delhi. Again vide letter dated 30.04.2007 A1 Jagdish Prasad Mahamna was authorised by A2 Jag Mohan Swarup to draw Rs.30,000/ as advance for departmental examination to be held in May 2007 which was received by him from the cashier on 08.05.2007. For conducting departmental examination, three halls of DGCA, R.K. Puram, New Delhi were taken.
1.2 As per chargesheet, after departmental examination conducted in May 2007, A2 Jag Mohan Swarup vide letter dated 22.08.2007 submitted details of expenditure to the tune of Rs.59,740/ said to have been incurred towards the departmental examination 2007 and balance of Rs.260/ cash adjustment of advance drawn by him. A2 Jag Mohan Swarup forwarded cash memo no.608 of M/s. Rajdhani Office Services for Rs.29,805/ for purchase of stationery items with a request to make the payment of the said firms.
1.3 As per prosecution case, A1 Jagdish Prasad Mahamna submitted 7 vouchers for a total amount of Rs.59,740/ bearing his signatures as "paid by him"
which was duly verified and countersigned by A2 Jag Mohan Swarup. The brief details of the 7 bills are as follows: RC No.5A/2010/CBI/ACB/NDMA Branch/New Delhi 3
(a) Receipt of Network Infotech, Kingsway Camp, Delhi dated 31.05.07 for Rs.
14,000/ made to one Shri Dharmender Kumar on account of desk top printing and data entry work.
(b) Cash memo dated 10.05.07 of Neha Spare Parts for Rs.2800/ for purchase of two boxes of tube lights.
(c) Cash memo dated 10.05.07 of Sher Singh, Key & Lock shop for Rs.450/ towards lock repair.
(d) Cash memo dated 18.05.07 of Madan Tent & Light House for Rs.13,000/ for hiring chairs.
(e) Cash memo dated 17.05.07 of Destination G5, Mefcons Plaza for Rs. 13,800/ for purchase of stationery items.
(f) Voucher dated 16.04.07 of Jagdish Prasad Mahamna for purchase of postage stamp of Rs.5000/.
(g) Voucher for payment of Rs.10,690/ made to 15 officials for examination duty by Jagdish Prasad Mahamna.
1.4 As per prosecution case, the payment of cash memo no.608 of Rajdhani Office Services was made by cheque for an amount of Rs.29,805/. Again a similar notification was issued for conducting departmental examination in November 2007 and the responsibility of conducting the examination was given to the accused persons. As per the request of A2 Jag Mohan Swarup, additional fund of Rs.80,000/ was allotted by the Finance Department vide letter dated 16.11.2007. As authorized by A2 Jag Mohan Swarup, A1 Jagdish Prasad RC No.5A/2010/CBI/ACB/NDMA Branch/New Delhi 4 Mahamna took the advance of Rs.30,000/ + 30,000/ from the cashier. After completion of examination conducted in November 2007, A2 Jag Mohan Swarup submitted 5 bills amounting to Rs.59,946/ towards the expenditure incurred in the departmental examinations and deposited cash balance of Rs.54/ and the bills/vouchers were submitted by A1 Jagdish Prasad Mahamna as "paid by me"
and were duly verified and countersigned by A2 Jag Mohan Swarup. Following five vouchers were submitted:
(a) Voucher for payment of Rs.11,630/ made to 18 officials for examination duty by J.P. Mahamna.
(b) Cash memo dated 21.11.07 of M/s. Stationery Point for Rs.9,840/ for purchase of stationery items.
(c) Cash memo dated 20.11.07 of M/s. Stationery Point for Rs.19,476/ for purchase of stationery items.
(d) Receipt dated 03.12.07 of M/s. Network Infotech for Rs.1400/ made to one Shri Dharmender Kumar for desk top printing and data entry work.
(e) Voucher submitted by J.P. Mahamna towards the purchase of postage stamps for Rs.5000/.
1.5 As per prosecution case, neither any written approval was taken by A1 Jagdish Prasad Mahamna regarding purchase of stationery items and other articles from the open market nor any quotation from different vendors regarding RC No.5A/2010/CBI/ACB/NDMA Branch/New Delhi 5 comparison of rates was called before purchasing the items. A1 Jagdish Prasad Mahamna did not maintain any stock register regarding the stock of stationery items, tube lights etc. which had been allegedly purchased for the departmental examination. No record was found available in the office of CE/NDZIII showing consumption/balance of articles and other articles purchased by A1 Jagdish Prasad Mahamna for the said examinations. A2 Jag Mohan Swarup had countersigned the vouchers/cash memos put up before him by A1 Jagdish Prasad Mahamna.
1.6 As per prosecution case, Shri Vijay Kumar Bansal, Proprietor of M/s. Neha Spare Parts denied the purchase of two boxes of tube lights for Rs.2800/ from his shop and stated that cash memo in question does not bear his handwriting or signature or the signature of his employees. Similarly, Shri Sandeep Madan Proprietor of M/s. Madan Tent & Light House also denied his handwriting and signatures on the receipt purportedly issued regarding hiring of 250 fancy chairs during May 2007 from his tent house. He also denied receipt of payment of Rs. 13000/ from A1 Jagdish Prasad Mahamna. Shri Ravinder Sayal, Proprietor of M/s. Stationary Point denied the purchase of stationery items by A1 Jagdish Prasad Mahamna vide cash memo no.291 & 296 and denied receipt of payment of Rs.9540/ and Rs.19476/ against the said receipts respectively. He denied his signatures on the cash memo and the supply of stationery items. Shri Bal Kishan, father of Shri Dharmender Kumar (Proprietor of M/s. Network Infotech) also RC No.5A/2010/CBI/ACB/NDMA Branch/New Delhi 6 stated that two vouchers for Rs.14,000/ does not bear the signature of his son Dharmender Kumar.
1.7 As per prosecution case, A1 Jagdish Prasad Mahamna and A2 Jag Mohan Swarup in pursuance to criminal conspiracy cheated CPWD to the tune of Rs.73,116/ by submitting fake bills/vouchers in connection with the departmental examination held in May and November 2007.
2 Sanction for prosecution was granted by the competent authority against accused Jagdish Prasad Mahamna. No sanction was required against accused Jag Mohan Swarup as he had already superannuated from the services. 3 After investigation, chargesheet was filed before the court. Cognizance was taken. Copies were supplied to the accused persons as required u/s 207 Cr.P.C. Arguments were heard. Charge was framed against both the accused on 28.05.2011 for the offence u/s 120 B r/w section 420, 468, 471 of Indian Penal Code and section 13(2) r/w sec. 13(1) (d) of Prevention of Corruption Act, 1988 as well as substantive charge against both the accused u/s 420 and 471 IPC and sec. 13(2) r/w section 13(1) (d) of Prevention of Corruption Act, 1988. Both the accused pleaded not guilty and claimed trial.
4 In order to prove its case, prosecution has examined as many as 12 RC No.5A/2010/CBI/ACB/NDMA Branch/New Delhi 7 witnesses. 4.1 PW1 Shri Bal Kishan was the father of Shri Dharmender. He stated that
his son Dharmender is residing in Canada since 200506 and in the year 2007 he was not in India. He stated that receipts Ex.PW1/A and Ex.PW1/B (D4 & D17) does not bear the signatures of his son Dharmender or any of his employees. He also stated that he made a statement u/s 164 Cr.P.C. before the Ld. Magistrate which was correctly recorded. During crossexamination, he stated that his son was using proper bill books and not the loose typed sheets. He stated that his son had not collected much tools or articles for his work and he used to keep only a bag for necessary tools or small parts.
4.2 PW2 Shri Ravinder Sayal, Proprietor of M/s. Stationery Point stated that cash memo Ex.PW2/A and Ex.PW2/B had neither been issued by him nor bear his signatures. He also denied the supply of stationery items to the accused persons or receipt of payment against the said bills. He stated that bills no.291 and 296 were probably stolen from the bill book by someone and his signatures have been forged. He also stated that his statement u/s 164 Cr.P.C. was recorded by Shri Devender Jangala, Ld. MM, New Delhi. During crossexamination, PW2 stated that he did not notice original bill no.291 and 296 were missing from the bill book and therefore, he neither cancelled the bills nor lodged any complaint with the police.
RC No.5A/2010/CBI/ACB/NDMA Branch/New Delhi 8 4.3 PW3 Shri Sandeep Madan, Proprietor of M/s. Madan Tent House also
denied the supply of chairs for the departmental examinations of CPWD or any receipt of payment. He stated that Ex.PW3/A (D6) is a rough estimate of Rs. 13,000/ which does not bear either his signature or the signature of his father or the employee. He stated that he does not know how the rough estimate has been manipulated on their bill. PW3 deposed that they record the entry of bookings in a daily booking register and the daily booking register Ex.PW3/C does not bear any booking or supply to the department of CPWD in the month of May 2007. This witness also stated that his statement was also recorded by Ld. MM u/s 164 Cr.P.C. and he disclosed the true facts.
4.4 PW4 Shri Bhupender Singh submitted that as per the instructions of Mrs. Asha Khilnainey, Pay & Accounts Officer, he handed over the original documents to CBI vide letter dated 09.03.2010. He identified the signatures of Mrs. Asha Khilnainey on the letter Ex.PW4/A. 4.5 PW5 Shri Sanjeev Kumar was the UDC from CPWD. He proved letter dated 18.02.2010 written by Shri Ram Kirpal, Executive Engineer, CPWD to the Investigating Officer as Ex.PW5/A and stated that by this letter, second copy of vouchers no.128, 50, 51, 171 and 102 were sent to CBI. He proved two letters pertaining to the sanction of budget for the departmental examinations as RC No.5A/2010/CBI/ACB/NDMA Branch/New Delhi 9 Ex.PW5/C and Ex.PW5/D. He also stated about the letter dated 11.04.07 authorizing A1 Jagdish Prasad Mahamna to draw Rs.30,000/ as advance towards the expenses of departmental examination and proved the said letter as Ex.PW5/E. He also proved authorization of A1 Jagdish Prasad Mahamna to take an advance of Rs.30,000/ in May 2007 vide letter dated 30.04.07 and the letter was proved as Ex.PW5/F. He also deposed about the letter dated 22.08.07 for adjustment of voucher of Rs.59,740/ and refund of Rs.260/, hand receipt dated 18.09.07 of Rs.59,740/ in favour of A1 Jagdish Prasad Mahamna. He stated about the payment of Rs.29,905/ to M/s. Rajdhani Office Services by way of cheque and deposed about the letter dated 30.01.08 written by accused Jag Mohan Swarup by which five bills were forwarded towards the departmental examination in November 2007. He further proved receipt Ex.PW5/K for receipt of payment of Rs.59,946/ in favour of A1 Jagdish Prasad Mahamna. 4.6 PW6 Shri Vijay Kumar Bansal, Proprietor of M/s. Neha Electricals and Spare Parts also stated that cash memo Ex.PW6/A has not been issued from his shop and does not bear his signatures or the signatures of his family members or the servants. He deposed that cash memo Ex.PW6/A has been forged by someone and it does not bear the seal of his shop. He denied the sale of two boxes of tube lights as mentioned in cash memo Ex.PW6/A or the receipt of any payment towards the said cash memo. He also stated that he made statement u/s 164 Cr.P.C. before the Ld. MM, New Delhi.
RC No.5A/2010/CBI/ACB/NDMA Branch/New Delhi 10 4.7 PW7 Shri Pradeep Gaur, Sr. Accountant from Pay & Accounts Office,
CPWD, IP Bhawan proved productioncumseizure memo Ex.PW7/A by which documents were handed over to IO and letter Ex.PW7/B written by Mrs. Asha Khilnainey in respect of handing over the original documents. 4.8 PW8 Shri Bala Dutt Dhaulakhandi who was working as cashiercumUDC in CPWD proved letter Ex.PW5/A by identifying the signature of Shri Ram Kirpal, Executive Engineer, signatures and endorsements of accused Jagdish Prasad Mahamna on letter Ex.PW5/E and his own signature by which Rs.30,000/ was received as advance by accused Jagdish Prasad Mahamna. He also proved his signature on letter Ex.PW5/F as well as signature of accused Jagdish Prasad Mahamna by which another advance of Rs.60,000/ in cash was received by accused. PW8 further proved hand receipt Ex.PW5/H (D11) bearing his signature and hand writing by which expenses of Rs.59,740/ towards departmental examinations were adjusted. PW8 also proved letter Ex.PW5/G by which balance amount of Rs.260/ was deposited by accused Jagdish Prasad Mahamna. He further proved hand receipt Ex.PW5/H prepared by him bearing signature of accused Jagdish Prasad Mahamna by which details of another expenses of Rs.59,946/ were given on the basis of vouchers/bills submitted by accused Jagdish Prasad Mahamna. He submitted that by letter Ex.PW5/K written by J.M.Swarup, balance amount of Rs.54/ was deposited and he identified the RC No.5A/2010/CBI/ACB/NDMA Branch/New Delhi 11 signature of accused Jag Mohan Swarup on Ex.PW5/K. 4.9 PW9 Shri Tilak Raj Sharma, Executive Engineer (Vig.), CPWD submitted that letter Ex.PW9/A was received from Shri Anupam Mathur, Inspector from CBI and in response to the letter he forwarded attested copy of ChapterVII of CPWD Manual Vol. 1 as desired by IO. He proved the attested copy of the manual as Ex.PW9/A. 4.10 PW10 Shri Birendra Prasad Bhatt proved productioncumseizure memo Ex.PW10/A by which documents were produced and seized by IO. He further stated that as per the report of the files Ex.PW10/A, accused Jag Mohan Swarup was authorized to conduct the departmental examination in May and November 2007. He also stated that as per files D20 to D24 (Ex.PW10/A) there is no documents showing requisition/report from either accused for taking prior sanction for purchase of any article/material for departmental examinations. PW10 further stated that he worked with Jag Mohan Swarup and he is acquainted with his signature and handwriting. He identified the signature of Jag Mohan Swarup on Ex.PW5/A, bill Ex.PW2/A, endorsement under the signature of accused Jag Mohan Swarup in the said bills and the signature and handwriting of both the accused on Ex.PW1/A, Ex.PW1/B, Ex.PW2/B, Ex.PW3/A, Ex.PW6/A. He also identified the signatures of accused Jagdish Prasad Mahamna on letter Ex.PW5/F. PW10 further deposed that in respect of articles purchased for RC No.5A/2010/CBI/ACB/NDMA Branch/New Delhi 12 departmental examination, no stock or other record was being maintained to show how much material was purchased and issued/consumed. He also stated that as per report, no quotations are available on file in respect of articles purchased by accused persons for the departmental examinations. 4.11 PW11 B.K. Chugh, Director General, CPWD stated that he was competent to grant sanction for prosecution against accused Jagdish Prasad Mahamna. He deposed that after going through the entire material sent by CBI and applying his independent mind, he was convinced about the existence of a prima facie case against accused Jagdish Prasad Mahamna. Therefore, he granted sanction for prosecution vide sanction Ex.PW11/A. No material question was asked during the crossexamination of PW11 by ld. defence counsels.
4.12 PW12 Inspector Anupam Mathur was posted in CBI who was Investigating Officer of the case. He deposed about the lodging of FIR and proved the same as Ex.PW12/A (D1). He stated that seizure memos Ex.PW2/D, PW4/B, PW7/A, PW10/A, PW3/A bear his signatures. He also stated that he filed an application u/s 164 Cr.P.C. for recording the statement of four witnesses namely Shri Vijay Kumar Bansal, Shri Sandeep Madan, Shri Ravinder Sayal and Shri Bal Kishan and the statement of these witnesses were recorded by Ld. MM Shri D.K. Jangala. He stated that he recorded the statement of witnesses and completed other formalities.
RC No.5A/2010/CBI/ACB/NDMA Branch/New Delhi 13 5 In his statement u/s 313 Cr.P.C. accused Jagdish Prasad Mahamna
admitted that he was working as Head Clerk and was posted in the office of Chief Engineer, NDZIII, Sewa Bhawan, R.K. Puram, New Delhi and accused Jag Mohan Swarup was working as Superintending Engineer, vide letter dated 11.04.07 and 30.04.07 he was authorized to draw the advance of Rs.30,000/ and Rs.30,000/ respectively to conduct the departmental examinations, vouchers of Rs.59,740/ were forwarded for adjustment and refund of Rs.260/ was directed vide receipt dated 18.09.0, bills of Rs.59,740/ were passed for payments by Executive Engineer Shri Ram Kripal, payment of Rs.29,805/ was made by cheque to M/s. Rajdhani Office Services on the basis of invoice Ex.PW5/A, five bills for a total amount of Rs.59,946/ towards the expenses of departmental examination were forwarded alongwith balance amount of Rs.54/ for adjustment by accused Jag Mohan Swarup vide letter Ex.PW5/A and he received total advance of Rs.60,000/ from PW8 for two departmental examinations. He admitted Ex.PW5/L (D12) containing details of expenses of Rs.59,946/ bearing his signatures, letter Ex.PW5/K (D13) written by accused Jag Mohan Swarup to Executive Engineer for adjustment of payment of Rs.59,946/ and adjustment of Rs.54/, his signature as well as signature of coaccused Jag Mohan Swarup on Ex.PW1/A, Ex.PW1/B, Ex.PW2/B, Ex.PW3/A, Ex.PW6/A. He submitted that sanction for prosecution is not in accordance with law. He denied all other incriminating evidence and submitted that the departmental examinations were RC No.5A/2010/CBI/ACB/NDMA Branch/New Delhi 14 conducted in accordance with the directions of superior officers. The required articles were purchased for examinations genuinely in accordance with the rules against the bills. Neither any bill was forged nor any payment was taken from the department on the basis of forged bills. Shop keepers/prosecution witnesses denied the issuance of bills, receipts of payments and providing of service falsely to save their own skin because they had not properly maintained their bill books and accounts and had not kept the accounts genuinely in ordinary course of business either in order to save the taxes or otherwise. 6 In his statement u/s 313 Cr.P.C., accused Jag Mohan Swarup admitted that he was working as Superintending Engineer in the capacity of public servant, he was authorized to conduct the departmental examinations in May and November 2007, he authorized J.P. Mahamna to take total advance of Rs. 30,000/ + Rs.30,000/ for departmental examination in May and November 2007 respectively and forwarded voucher of Rs.59,740/ and for refund of Rs.260/ vide letter Ex.PW5/J, passing of bill of Rs.59,740/ in favour of Jagdish Prasad Mahamna vide receipt dated 18.09.07, payment of Rs.29,805/ by cheque to M/s. Rajdhani Office Services, letter Ex.PW5/K dated 30.01.08 by which five bills were forwarded towards the expenses of Rs.59,946/ and the balance amount of Rs. 54/ was sent for adjustment, receipt of advance payment of Rs.60,000/ by Jagdish Prasad Mahamna and that he forwarded the different vouchers alongwith bills for payment as submitted by Jagdish Prasad Mahamna. He RC No.5A/2010/CBI/ACB/NDMA Branch/New Delhi 15 denied all other incriminating evidence and submitted that he was working as a Superintending Engineer. Departmental examinations were conducted in accordance with the directions of the superior officers. The responsibilities for necessary arrangements/purchase of various articles required for departmental examinations was given to coaccused Jagdish Prasad Mahamna by him because he had the experience of organizing departmental examinations on previous occasions and was only head clerk available at that time in the zone. He bonafidely believed accused Jagdish Prasad Mahamna and forwarded the bills submitted by him after physically verifying the actual purchase and receipt of various articles during the conduct of examinations. The departmental examinations were personally supervised by him and that he has been falsely implicated in the case without any basis.
7 DW1 Suresh Kumar Sinha was examined on behalf of both the accused. He deposed that departmental examinations were conducted in the hall of DGCA and for the said purpose chairs, tube lights and stationery items were arranged by examination controller. He stated that he was on duty as invigilator in departmental examination conducted in May and November 2007 and remuneration was paid to him for four days. In crossexamination, DW1 stated that he does not know about the details of shops, quality of articles and the price paid in respect of articles arranged by the examination controller. He admitted that when electrical items like tube lights are purchased, these items are RC No.5A/2010/CBI/ACB/NDMA Branch/New Delhi 16 accounted for by making entries in stock register. He was not aware, whether any such entry was made in the register/record of CPWD in respect of the tube lights, stationery items and other articles. He could not tell the quality of stationery items and the details of the bills.
7.1 DW2 Shri Sunil Kumar was examined on behalf of A1 Jagdish Prasad Mahamna. He stated that he was also on duty as invigilator in the examinations conducted in May and November 2007. 250300 candidates appeared in the departmental examination which was conducted in the building of DGCA, R.K. Puram, New Delhi. Stationery items including answer sheets, pen and pencils for invigilator, tags and other such items like cloth for the packing material etc. were arranged by the department. He also deposed that chairs were arranged for the above mentioned examinations from a tent house and tube lights were purchased by CPWD. DW2 also stated that to his knowledge no inventory was being maintained by CPWD. Unused material was used to be kept in an almirah and was being used in the next departmental examinations. He also stated that inventory or the register for the articles purchased for the departmental examinations were never maintained for any other examination. 8 I have heard the Ld. Sr. PP for CBI and Ld. defence counsels for both the accused. I have gone through the testimony of witnesses, documents proved on record alongwith material placed before me. I have considered the written RC No.5A/2010/CBI/ACB/NDMA Branch/New Delhi 17 submissions filed on behalf of accused persons as well as arguments advanced at bar by the ld. prosecutor and ld. defence counsels.
9 Both the accused are facing chargesheet u/s 120 B r/w section 420, 468 and 471 of IPC and u/s 13 (2) r/w section 13(1) (d) of Prevention of Corruption Act, 1988 as well as substantive charge for the offence u/s 420 and 471 of IPC and u/s 13(1) (d) r/w section 13(2) of Prevention of Corruption Act, 1988. 10 In order to prove charge u/s 120 B of IPC, prosecution is required to prove:
(a) That both the accused agreed to it, or caused to be done an illegal act or an act which is not illegal by illegal means.
11 The elements of criminal conspiracy may be stated as: An object to be accomplished;
(a) A plan or scheme embodied means to accomplish that object;
(b) An agreement or understanding between two or more of the accused persons whereby they become definitely committed to cooperate for the accomplishment of the object by the means embodied in agreement, or by any illegal means;
(c) The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. From this, it is necessarily following that unless the statute RC No.5A/2010/CBI/ACB/NDMA Branch/New Delhi 18 so requires, no overt act need to be done in furtherance of the conspiracy, and that the object of the combination need not to be accomplished, in order to constitute an indictable offence. For reference - Devender Pal Singh Vs. State of NCT of Delhi, 2002 SCC (Cri) 978; Noor Mohammed Yusuf Momin Vs. State of Maharashtra, AIR 1971 SC 885; State Vs. Nalini, AIR 1999 SC 2640 may be referred.
12 In the case of Hira Lal Hari Lal Bhagwati Vs. CBI, 2003 SCC (Cri) 1121 it was held that...
"To bring home the charge of conspiracy within the ambit of Section 120B, it is necessary to establish that there was an agreement between the parties for doing unlawful act. It is difficult to establish conspiracy by direct evidence"
13 In order to prove offence u/s 420 IPC, prosecution is required to establish:
(a) That there was fraudulent or dishonest inducement by accused person;
(b) That such inducement was to deceit someone/person;
(c) The person so deceived was induced to deliver any property to person, or to consent that any person shall retain any property; or
(d) the person so deceived was intentionally induced to do or omit to do anything.
14 For the charge u/s 468 IPC, prosecution is required to establish that some RC No.5A/2010/CBI/ACB/NDMA Branch/New Delhi 19
forgery was committed with the intention that forged documents shall be used for the purpose of cheating.
15 For section 471 IPC, it is required to prove that:
(a) the forged document was used as genuine.
(b) the same was used with fraudulent or dishonest intention; or
(c) the documents so used knowingly or having reason to believe that same are forged documents.
16 To prove the offence of criminal misconduct punishable u/s 13(2) as defined u/s 13(1)(d) of Prevention of Corruption Act, 1988, prosecution is required to prove the following ingredients:
(i) The accused was a public servant or expected to be a public servant at the time when the offence was committed.
(ii) The accused accepted or obtained or agreed to accept or attempted to obtain illegal gratification from some person.
(iii) Gratification for himself or for any other person.
(iv) Such gratification was not a remuneration to which the accused was legally entitled.
(v) The accused accepted such gratification as a motive or reward for:
(a) doing or forbearing to do an official act, or RC No.5A/2010/CBI/ACB/NDMA Branch/New Delhi 20
(b) doing or forbearing to show favour or disfavour to someone in the exercise of his official function, or
(c) rendering or attempting to render any service or disservice to some one with the Central or any State Government or Parliament or the Legislature of any State, of with any local authority, Corporation or Government company referred to in Sec. 2 clause (c) or with any public servant, whether named or otherwise.
17 In the case of B. Parameshwaran Vs. State of A.P., 1999 Cr.LJ 2059 (AP) it was held that...
"A reading of this provision would make it clear that all the three wings of clause (d) of Sec. 13(1) are independent and alternative and disjunctive for constituting the ingredients of the offence under Sec. 13(1) (d) as is clear from the use of word or (at the end of each sub clause). Thus under Sec. 13(1) (d) (i) obtaining any valuable thing or pecuniary advantage by corrupt or illegal means by a public servant in itself would satisfy the requirement of criminal misconduct under Sec. 13 (1) (d) of the Prevention of Corruption Act, 1988. on the same reasoning "obtaining a valuable thing or pecuniary advantage merely by abusing official position "as contemplated under Se. 13 (1)
(d) (ii) in itself would satisfy the ingredients of criminal misconduct under Sec. 13(1) (d) (i) of the Act, 1988. Thus, it would appear that there is definite change as to the ingredients of offence of RC No.5A/2010/CBI/ACB/NDMA Branch/New Delhi 21 criminal misconduct under Sec. 13(1) (d) of Act, 1988 as distinct from Sec. 5(1) (d) of the Prevention of Corruption Act, 1947."
18 From the testimony of prosecution witnesses, following facts have been duly proved by the prosecution :
(a) That accused Jag Mohan Swarup was working as Superintending Engineer and accused Jagdish Prasad Mahamna as Head Clerk in the office of CPWD and they both comes within the definition of "Public Servant".
(b) Accused Jag Mohan Swarup was given the responsibility to conduct departmental examinations of CPWD in May and November 2007.
(c) Departmental examinations were conducted in the hall of DGCA, R.K. Puram, New Delhi.
(d) Accused Jagdish Prasad Mahamna was authorized by Jag Mohan Swarup to draw an advance of Rs.30,000/ and Rs.30,000/ for departmental examinations which he received from the office of CPWD.
(e) After departmental examinations, bills/vouchers were submitted by accused Jagdish Prasad Mahamna which were duly verified and forwarded for payment by accused Jag Mohan Swarup and the bills so submitted were passed by the competent authority of the department on the basis of bills/vouchers submitted by accused Jagdish Prasad Mahamna and forwarded by accused Jag Mohan Swarup.
RC No.5A/2010/CBI/ACB/NDMA Branch/New Delhi 22 19 Sanction for prosecution was granted by PW11 Shri B.K. Chugh who was
working as Director General in CPWD. He proved sanction Ex.PW11/A and stated that he was competent to grant sanction for prosecution against Jagdish Prasad Mahamna. He granted sanction after going through the entire material, applying his independent mind and after convincing himself about the existence of a prima facie case. On behalf of Jagdish Prasad Mahamna, no question was asked to PW11. Therefore, his testimony remained unchallenged. Only one question was asked on behalf of accused Jag Mohan Swarup whether PW11 has gone through the office record pertaining to the accused. Practically, there is no crossexamination of PW11 and his testimony remains unchallenged. After going through the statement of PW11 and sanction Ex.PW11/A, in my opinion, sanction for prosecution was granted against Jagdish Prasad Mahamna by competent authority after going through the material on record and applying his independent mind. In my opinion, sanction for prosecution has been validly granted and proved on record.
20 It was submitted by ld. defence counsels that there is ample evidence on record that departmental examinations were conducted in May and November 2007. Departmental examinations could not be conducted without arranging the stationery items, tube lights, chairs etc. It was also submitted that there is evidence on record that data entry was carried out. It was argued that neither RC No.5A/2010/CBI/ACB/NDMA Branch/New Delhi 23 there is any evidence to show meeting of mind between two accused persons to commit any offence or to involve in any illegal act nor any overt act has been shown on behalf of accused persons. Ld. counsel for Jag Mohan Swarup submitted that he was working as Superintending Engineer. The articles were purchased/arranged by accused Jagdish Prasad Mahamna who took the bills and submitted the same. Accused Jag Mohan Swarup bonafidely believed Jagdish Prasad Mahamna and only forwarded the same which does not show his involvement in criminal conspiracy.
21 PW1 Shri Bal Kishan, PW2 Shri Ravinder Sayal, PW3 Shri Sandeep Madan and PW6 Vijay Kumar Bansal deposed in clear terms that neither the bills purportedly issued from their shops/firms have been issued by them nor the same bears their signatures nor bears the signatures of their employees/family members. These four witnesses clearly deposed that neither any articles were purchased/arranged from their shops/firms nor any payment was received by them. PW1, PW2, PW3 and PW6 also stated that bills shown to them have been forged. These four witnesses were crossexamined in detail but nothing material could be achieved from their crossexamination. There is no reason to disbelieve the testimony of these four witnesses. After all, why these witnesses would deny their bills to falsely implicate the accused persons particularly, when there is nothing on record to presume that they have any motive to falsely implicate the accused persons. I do not find any substance in the submissions of ld. defence RC No.5A/2010/CBI/ACB/NDMA Branch/New Delhi 24 counsels that PW1, PW2, PW3 and PW6 had denied the genuine bills because bill records were not properly maintained by them to save tax liability. The sales tax or the vat is paid by the customer and not by the seller. Therefore, PW1, PW2, PW3 and PW6 would have no difficulty to issue genuine bills by adding the applicable taxes. In ordinary course, accused persons would have no interest in saving the sales tax or the vat. In my opinion, in ordinary course of events, if their would have been no dishonest intention, accused would have purchased the goods from the reputed, recognized and authorized shops/dealers and would have insisted for proper and genuine bills. I do not find any reason to disbelieve the testimony of PW1, PW2, PW3 and PW6 or any plausible reason to accept the contentions of ld. defence counsels. In my view, the bills in respect of data entry, stationery, chairs, two boxes tube lights are not the genuine bills issued by the respective shops. This finding left with no other option but to accept an inference that the above mentioned bills purportedly issued by the shops/firms of PW1, PW2, PW3 and PW6 had been forged. The goods were purportedly purchased by Jagdish Prasad Mahamna who submitted the bills for payment and the same were forwarded after verification by accused Jag Mohan Swarup. The bills remained between the two accused which proves the only conclusion that either bills has been forged by them or at their instance.
22 The next question is, whether both the accused were in "criminal conspiracy" in forging the bills and using the same for the payment? There is RC No.5A/2010/CBI/ACB/NDMA Branch/New Delhi 25 ample evidence on record to prove that bills were submitted by accused Jagdish Prasad Mahamna and the same were submitted and forwarded by accused Jag Mohan Swarup. Accused Jag Mohan Swarup was overall Incharge of the examinations. On his authorization, advances were taken by accused Jagdish Prasad Mahamna. Accused Jag Mohan Swarup forwarded the bills after verification. Being a senior officer (public servant) at the rank of Superintending Engineer, he was responsible to ensure the genuine purchases at the lowest available prices from the authorized/reputed shops/dealers. He was responsible to avoid any manipulation in the purchases in respect of the quality, quantity or the prices. In the circumstances of the case, accused Jag Mohan Swarup was not supposed to blindly believe coaccused Jagdish Prasad Mahamna and to put his signatures on the bills without verifying the actual purchase of the articles and the genuineness of the bills. The fact that accused Jag Mohan Swarup forwarded the bill with endorsement of his verification clearly establish the "meeting of mind"
between both the accused to commit the offence by using the forged bills. The criminal conspiracy between two accused is further established because the stationery articles or two boxes of tube lights etc. were neither deposited anywhere in the stock nor any entry was made in stock register or in any other record nor unused articles were deposited in the stock of CPWD nor the used or unused articles were accounted for. Accused Jag Mohan Swarup being the senior public servant was under responsibility for the receipt, proper use and accounting of used or unused articles. As per the testimony of PWs as well as RC No.5A/2010/CBI/ACB/NDMA Branch/New Delhi 26 DW1 and DW2, no record was found in respect of the receipt/entry of stationery items or the tube lights etc. These circumstances proves that there was a "meeting of mind" between both the accused. Otherwise, it could not have been possible to forge the bills and to use the same for payment without any entry or record pertaining to the receipt/purchase of the articles.
The observations in the case of State of Kerala Vs. Sebastian Jacob, 1991 Crl. J.L. 2636 is relevant here wherein it was held that...
"When entrustment is proved and failure to account is established, the rest is only a matter that follows by way of inference. The very fact that rice was purchased in the name of the store and not accounted indicates corrupt or illegal means or otherwise abusing official position for obtaining valuable thing or pecuniary advantage. Further proof is not required."
23 The dishonest and fraudulent intentions of the accused persons can be inferred and established from the circumstances of the case as there may be hardly any direct evidence to prove these ingredients of the offence. Why a public servant working bonafidely will submit the forged bills and will not insist for proper entry in stock register etc.? The only inference is that he has the fraudulent or dishonest intention to gain something or to conceal something. In the circumstances of the case, no other conclusion is possible that both the accused used the forged bills with dishonest or fraudulent intention for the purpose of RC No.5A/2010/CBI/ACB/NDMA Branch/New Delhi 27 wrongful gain for themselves and wrongful loss to the department. There is sufficient evidence on record to establish that forged bills were used by both the accused persons in pursuance to criminal conspiracy. The circumstance of the case establish beyond any doubt that both the accused were aware that bills in question used by them were not genuine and were forged bills but still they used the same as genuine while submitting for payment with dishonest and fraudulent intentions.
24 The testimony of witnesses proves that forged bills were submitted by both the accused persons in conspiracy with each other and the concerned officials of CPWD were deceived to accept the bills for the payment. If the officials of CPWD would have come to know about the existence of forged bills, they would not have passed the same. The forged bills were submitted by accused persons to deceive the officials of CPWD with dishonest and fraudulent intention to make payments against the bills to make wrongful gain for themselves and for wrongful loss to CPWD.
25 As discussed above, the forged documents were between the accused persons and same could have been forged either by them or at their instance only and the same were used for clearance of bill and taking payment from CPWD. It is clearly established that both the accused forged the bills in pursuance to criminal conspiracy for the purpose of cheating.
RC No.5A/2010/CBI/ACB/NDMA Branch/New Delhi 28 26 It is clearly established on record that both the accused were working in
the capacity of public servant. Their duty was to protect the interest of the Government by making genuine purchases against the genuine bills at the lowest available prices but they not only entered into the "criminal conspiracy" but also forged the bills either by themselves or through someone. They used the forged bills as genuine knowingly or having reason to believe that same is forged documents for the purpose of cheating for wrongful gain for themselves and wrongful loss to CPWD which clearly established that they abused their official position as such "Public Servant".
27 In view of the above discussion, the testimony of DW1 and DW2 does not create any defence for the accused. The defence taken by the A1 Jagdish Prasad Mahamna and A2 Jag Mohan Swarup is neither established in preponderance of probabilities nor acceptable in view of the testimony of witnesses and circumstances of the case. In my opinion, prosecution has successfully proved, beyond the shadow of reasonable doubt, the essential ingredients of the charges against both the accused. Therefore, both the accused are convicted for the following offences:
(a) Accused Jagdish Prasad Mahamna for the offence u/s 120B read with section 420, 468 and 471 of IPC and read with section 13(1) (d) read with RC No.5A/2010/CBI/ACB/NDMA Branch/New Delhi 29 section 13(2) of Prevention of Corruption Act, 1988 and u/s 420 and 471 of IPC and u/s 13(1) (d) read with section 13 (2) of Prevention of Corruption Act, 1988
(b) Accused Jag Mohan Swarup for the offence u/s 120B read with section 420, 468 and 471 of IPC and read with section 13(1) (d) read with section 13(2) of Prevention of Corruption Act, 1988 and u/s 420 and 471 of IPC and u/s 13(1) (d) read with section 13 (2) of Prevention of Corruption Act, 1988 Let both the accused be heard on the point of sentence separately.
Announced in the open court SANJEEV JAIN
th
on this 17 day of March, 2012 Spl. Judge(PC Act), CBI02
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