Delhi District Court
(C.B.I. vs . Radhey Shyam & Ors.) on 29 May, 2014
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.)
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Dated : 29 May 2014.
: IN THE COURT OF:
: SH.KANWAL JEET ARORA :
SPECIAL JUDGE, CBI (P.C.ACT), DWARKA COURTS,
NEW DELHI.
In the matter of :
CBI vs. RADHEY SHYAM & ORS.
CC NO.: 09 / 11.
Case No.: R.CSI 9 2001 E0003 / PS
Branch / RC 3 (E) / 2001 / SIU
IX dated 02.03.2001.
U/s : 120 B r/w section 467, 471
420 IPC and Section 13 (2) read
with Section 13(1) (d) & 15 of
Prevention of Corruption Act,1988
In the matter of:
CENTRAL BUREAU OF
INVESTIGATIONS (C.B.I)
... [Through Sh.Harish Kumar Gupta,
Ld.SPecial Public Prosecutor]
v e r s u s
(i) RADHEY SHYAM,
S/o.: Sh.Sita Ram,
R/o.: 17/93, Than Singh Nagar,
Gali No.5, New Rohtak Road, N.Delhi.
... [Through Sh.P.K.Dubey, Advocate]
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(ii) RAJESH SHARMA,
S/o.: Sh.Dauli Ram Sharma,
R/o.: B2, MCD Flats,
Swami Nagar, New Delhi.
... [Through Sh.N.K.Sharma, Advocate]
(iii) OM PRAKASH TOMAR,
S/o.: Sh.Har Swarup,
R/o.: IPocket, 82A,
Dilshad Garden, Delhi.
[Proceedings qua him postponed
vide orders dated 25.04.2014]
... [Through Sh.Dharmendar Rana, Advocate]
(iv) RAMA SHANKAR BHARTI,
S/o.: Sh.Roshan Lal,
R/o.: D47/1, Gali No.5,
New Govind Pura, Delhi.
... [Through Sh.Dharmish Thanai, Advocate]
(v) MANOJ KUMAR,
S/o.: Sh.Than Singh,
R/o.: VPO Razapur,
Distt.Ghaziabad, UP.
... [Through Sh.Dharmish Thanai, Advocate]
(vi) JITENDER PAL SINGH,
S/o.: Sh.M.P.Singh,
R/o.: C153, Nirman Vihar, Delhi.
... [Through Sh.N.K.Sharma, Advocate]
(vii) BALJEET SINGH,
S/o.: Sh.Bodal Ram,
R/o.:B190, Sector26, Noida.
... [Through Sh.Dharmish Thanai, Advocate]
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(C.B.I. Vs. Radhey Shyam & Ors.)
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(viii) CHATTAR SINGH MANGLA,
S/o.: Sh.Johri Lal,
R/o.: 157, Mohalla Shekh Pura,
Palwal, Haryana.
... [Through Sh.Dharmish Thanai, Advocate]
(ix) OM PRAKASH SAROHA,
S/o.: Sh.Ratan Singh,
R/o.: MU35, Pitam Pura, Delhi.
... [Through Sh.S.P.Aggarwal, Advocate]
(x) GURCHARAN SINGH,
S/o.: Sh.Babu Ram,
R/o.: 645/1, Nai Basti,
Village Devli, New Delhi.
... [Through Sh.S.P.Aggarwal, Advocate]
(xi) MUNISH GULIANI,
S/o.: Sh.B.D.Guliani,
R/o.: NH5/128, Railway Road,
Faridabad, Haryana.
... [Through Sh.O.P.Saxena & Sh.Y.P.Sirohi,Adv.]
........ (ACCUSED PERSONS.)
Date of Institution : 24.12.2002.
Date on which the case was : 29.09.2011.
received on transfer in this court
Date of reserving judgement : 05.05.2014.
Date of pronouncement : 29.05.2014.
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Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.)
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Dated : 29 May 2014.
: J U D G E M E N T :
1. The precursor of the present case is a written
complaint dated 07.10.1999 of Sh.S.K.Jain, Additional Deputy
Commissioner (Engineering), MCD. On the basis of this
complaint, a preliminary enquiry bearing number
PE1(E)/2000/EOW.I/DLI was registered with SIU/IX, Branch
of CBI on 09.11.1999. After conclusion of the preliminary
enquiry, FIR bearing Number RCSI 9 /2001/E0003 dated
02.03.2001 was registered and investigated.
2. On conclusion of the investigations, CBI had
filed the present charge sheet against accused Radhey Shyam,
Proprietor of M/s Radhey Shyam and Company, on the
allegations that he had entered into a criminal conspiracy with
Munish Guliani, Transporter, Rajesh Sharma - Executive
Engineer, Om Prakash Tomar, Rama Shankar Bharti -
Assistant Engineers, Manoj Kumar, Jitender Pal Singh, Baljeet
Singh, Chattar Singh Mangla - Junior Engineers, Om Prakash
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Saroha - Accountant, Gurcharan Singh - Accounts Clerk, all
officers and officials respectively of DivisionIV, MCD, the
object of which was to cheat MCD by getting the payment
released against the work orders awarded by MCD to this firm,
on the basis of forged and fake invoices by using them as
genuine and valuable securities, knowing or having reasons to
believe them to be forged ones. It is alleged that the public
servants criminally misconducted themselves and as
members of the conspiracy, had facilitated accused Radhey
Shyam to submit false and bogus invoices thereby claiming
procurement of bitumen from approved oil refineries for
execution of the work order nos. EEIV/SZ/TC/9899/316,
EEIV/SZ/TC/9899/317 and EEIV/SZ/TC/9899/320, thereby
inducing MCD to release payment of Rs.8,03,097/ to the
contractor and thus causing pecuniary advantage to him and
corresponding wrongful loss to MCD. It is alleged that public
servants attempted to obtain pecuniary advantage to their co
accused Radhey Shyam a sum of Rs.1,55,323/ against work
order no. EEIV/SZ/TC/9899/170, by getting it released on
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Dated : 29 May 2014.
the basis of forged and fake invoices, but the same could not be
released.
3. Before proceeding further to delve upon the
matter, it is pertinent to have facts interse as emanating from
the charge sheet, which led to registration of FIR and filing of
the charge sheet by CBI in court for trial of the accused
persons. The same are as under:
FACTUAL MATRIX:
4. It is alleged that during the year 199899, the
work of dense carpeting of roads with respect to improvement
and strengthening of roads in Arjun Ngar, Safdarjung Enclave,
Green Park Extension and Sarvodaya Enclave were awarded
by MCD to M/s Radhey Shyam, a Proprietorship firm of
accused Radhey Shyam as per following work orders:
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S.No. Name of Work Work Order No. Contractual
Amount.
1. Improvement and EEIV/ SZ/ TC/ 9899/316/ Rs.2,53,783/
strengthening of road in 13/11/98
Arjun Nagar, C13, South
Zone, New Delhi.
2. Improvement and EEIV/ SZ/ TC/ 9899/317/ Rs.2,43,575/
strengthening of road in 13/11/98
B4/118 to B4/127,
Safdarjung Enclave, New
Delhi.
3. Improvement and EEIV/ SZ/ TC/ 9899/320/ Rs.2,41,108/
strengthening of road in 13/11/98
Green Park Extension from
M1 to M15, South Zone,
New Delhi.
4. R/R/Cut made by MTNL for EEIV/ SZ/ TC/ 9899/170/ Rs.1,45,756/
pillar no.HK376, CBlock, 16/09/98
Sarvodaya Enclave, C11,
South Zone, New Delhi.
5. It is alleged that after award of the work
orders, an agreement was entered into between MCD and M/s
Radhey Shyam and Company through accused Radhey Shyam,
whereby Radhey Shyam agreed to carry out the said works in
accordance with MCD specifications and Notice Inviting Tender
as well as Work Order Conditions. It is alleged that as per
these conditions, the contractor was required to procure fresh
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supply of bulk bitumen from Indian Oil Corporation Limited
and was required to furnish original receipts, as a proof for
purchase of bitumen. It has further been alleged that the
contractor as per office order no. CEIII/41/PA/87/225 dated
09.06.1987, Notice Inviting Tenders, Work Order Conditions
and Agreement was required to carry on the work of dense
carpeting of roads and was further required to submit following
documents for claiming payments:
i. Cash receipts indicating the name of work for
which bitumen is being purchased.
ii. Invoices for delivery showing the quantity actually
delivered.
iii.Gate pass of refinery.
iv.Receipts of terminal tax at Haryana, Delhi Border.
6. It is alleged that accused Radhey Shyam, being
Proprietor of M/s Radhey Shyam and Company, had entered
into criminal conspiracy with Munish Guliani, Transporter, the
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Dated : 29 May 2014.
officials of MCD, Delhi namely Rajesh Sharma - Executive
Engineer, Om Prakash Tomar, Rama Shankar Bharti -
Assistant Engineers, Manoj Kumar, Jitender Pal Singh, Baljeet
Singh, Chattar Singh Mangla - Junior Engineers, Om Prakash
Saroha - Accountant, Gurcharan Singh - Accounts Clerk, all
officers and officials respectively of DivisionIV, MCD, during
the year 1998 - 99, the object of which was to cheat MCD, by
submitting bogus / fake invoices purportedly issued by Indian
Oil Corporation Limited Mathura, thereby claiming to have
procured bitumen to complete the work assigned to M/s Radhey
Shyam, vide above mentioned work orders and to induce MCD
to get the payment released to the extent of Rs.8,03,097/ and
to cause wrongful loss to it. Besides that the public servants in
furtherance of the conspiracy with accused Radhey Shyam by
criminally misconducting themselves had attempted to
obtain further pecuniary advantage in his favour to the extent
of Rs.1,55,323/ with respect to work order bearing no.
EEIV/SZ/TC/9899/170 by accepting forged and bogus invoices.
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7. It is alleged that Hot Mix Plant of the
Contractor was situated in Village Pali, Faridabad. It is
alleged that Manoj Kumar (for Work Order nos.
EEIV/SZ/TC/9899/316, EEIV/SZ/TC/9899/317 and
EEIV/SZ/TC/9899/320) and J.P.Singh (for Work Order no.
EEIV/SZ/TC/9899/170), Junior Engineers were posted at plant
of the Contractor for ensuring procurement of fresh bitumen by
the contractor from approved oil agencies, and for receiving
documents like cash receipts, invoices, gate passes and
terminal tax receipts, as per Notice Inviting Tender Conditions
and also for preparation of "hot mix", test of different material,
dispatch of Hot Mix and also for maintaining proper records. It
is alleged that Manoj Kumar, Jitender Pal Singh, Baljeet
Singh, Chattar Singh Mangla being Junior Engineers had
accepted following seven invoices in the four work orders
purportedly issued in favor of M/s Radhey Shyam by IOCL,
Mathura.
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Work Order No.: EEIV/SZ/TC/9899/316 dated 13.11.1998 ;
Sl.No. Printing No. Invoice No. Date of Invoice
1. 0073114 029129 13.11.1998
Work Order No.: EEIV/SZ/TC/9899/317 dated 13.11.1998 ;
1. 0072337 028352 05.11.1998
Work Order No.: EEIV/SZ/TC/9899/320 dated 13.11.1998 ;
1. 0072864 028873 10.11.1998
2. 0073043 029058 12.11.1998
3. 0072858 028867 10.11.1998
Work Order No.: EEIV/SZ/TC/9899/170 dated 16.09.1998 ;
Sl.No. Printing No. Invoice No. Date of Invoice
1. 1966431 023657 14.09.1998
2. 1966422 023648 14.09.1998
8. It is alleged that during investigations, it was
revealed that all these invoices submitted by accused Radhey
Shyam to MCD were forged and were not issued by Indian Oil
Corporation, Mathura.
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9. It is alleged that during investigations, it was
revealed that against the serial number of these invoices,
actual invoices were issued by Indian Oil Corporation Limited,
to some other agencies and in a particular financial year the
serial number of invoices never used to repeated.
10. It is alleged that all the Junior Engineers
deliberately accepted the bogus invoices in conspiracy with
each other as well as the contractor and facilitated accused
Radhey Shyam to obtain payment of Rs. 8,03,097/ from
DivisionIV, MCD and attempted to have further payment of
Rs.1,55,323/ released in favour of Radhey Shyam.
11. It is alleged that for release of bitumen from
Indian Oil Corporation, recommendatory letter from Executive
Engineer to IOC is required. It is alleged that in the present
case, no such letter was issued by Executive Engineer and
being part of the conspiracy, Executive Engineer deliberately
overlooked these violations. It is alleged that the vehicles,
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registration numbers of which were mentioned in the invoices,
submitted by accused Radhey Shyam with MCD, were not used
for transportation of bitumen from Indian Oil Corporation
Limited Mathura to Hot Mix Plant at Faridabad. It has
further been alleged that contractor was under an obligation to
fulfill other conditions of NIT and was required to submit gate
pass, terminal tax receipts and cash receipts and these
conditions were not adhered to in the present case. It is alleged
that accused Manoj Kumar, Jitender Pal Singh, Baljeet Singh
and Chattar Singh Mangla had prepared Bitumen Issue
Register from the details mentioned in the invoices which were
found to be forged and these entries were signed by them,
contractor as well as other coaccused Om Prakash Tomar,
Rama Shankar Bharti, Assistant Engineers and Rajesh
Sharma, Executive Engineer. It is alleged that these forged
invoices were signed by Manoj Kumar, Jitender Pal Singh,
Baljeet Singh, Chattar Singh Mangla, all Junior Engineers, as
well as by Om Prakash Tomar, Rama Shankar Bharti,
Assistant Engineers, which were used by Contractor to obtain
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payments. It is alleged that accused Manoj Kumar, Baljeet
Singh, J.P.Singh and C.S.Mangla being JEs, had made entries
in the Measurement Books which was counter signed by
accused R.S.Bharti & O.P.Tohmar, authenticating the receipt
of bitumen on the basis of bogus invoices being part of the
larger conspiracy. It is alleged that the malafide intentions of
the contractor were there, from the beginning, of not
complying with the conditions of NIT for which he colluded
with coaccused persons, who facilitated him in getting his
payment released, bills of which were forwarded by accused
O.P.Tomar, Assistant Engineer to accused Gurcharan Singh,
the then Accounts Clerk and processed by O.P.Saroha,
Accountant, overlooking the nonfulfillment of NIT Conditions
and on the basis of bogus invoices, knowing the same to be
forged ones.
12. It is alleged that accused Radhey Shyam
claimed payment for the work orders through bills amounting
to Rs.9,58,420/ which were certified by accused O.P.Tohmar
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and R.S.Bharti Assistant Engineers, accused Gurcharan Singh,
Accounts Clerk and O.P.Saroha, Accountant processed the said
bill, forwarded the same for payment, which were passed by co
accused Rajesh Sharma, Executive Engineer. Out of the total
claimed amount, sum of Rs.8,03,097/ with respect to work
order nos. 316, 317 & 320 was released by MCD to the
contractor whereas a sum of Rs.1,55,323/ with respect to work
order no. 170 could not be released.
13. It is alleged that all the accused persons in
order to achieve the object of conspiracy, had performed their
respective roles and the public servants misconducted
themselves, so as to cause pecuniary advantage to accused
Radhey Shyam as payment of Rs.8,03,097/ was released to his
firm. It is alleged that on conclusion of investigations, the
report was submitted to the competent authority for necessary
sanction for prosecution against the public servants, which was
granted.
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Dated : 29 May 2014.
14. It is alleged that all the accused persons have
committed offences punishable under section 120 B read
with sections 420, 467 read with 471 IPC and 13 (2) read
with 13 (1) (d) and Section 15 of Prevention of
Corruption Act and also the substantive offences.
15. Whereafter, the present charge sheet was filed
in court against all the accused persons for proceeding against
them, as per law.
COGNIZANCE OF OFFENCE :
16. Pursuant to filing of charge sheet and after
perusal of the same in the light of supporting documents,
Ld.Predecessor of this court took cognizance of offence and
accused persons were accordingly summoned.
17. In compliance with the provisions of Section
207 Cr.P.C, the accused persons were supplied with the copies
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of charge sheet and documents relied upon by the prosecution.
CHARGE:
18. Ld.Predecessor of this Court after hearing
Ld.Defence Counsels for all the accused persons passed orders
on the point of charge on 11.09.2006 forming an opinion that
prima facie case for offences punishable under section 120 B
IPC read with section 420, 471 read with 467 IPC and
section 13 (2) read with section 13(1) (d) and section 15
of Prevention of Corruption Act have been culled out
against all the accused persons. As per said order Ld.
Predecessor of this Court had further opined that prima facie
case for substantive charges for offences u/s 420, 471 read
with 467 IPC against accused no. 1 Radhey Shyam &
accused no. 11 Munish Guliani and for substantive charge
for offence under section 13(2) r/w section 13(1)(d) of
Prevention of Corruption Act, is made out against accused no.
2, 3, 5, 7, 9 & 10, the public servants, and for substantive
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charge for offence under section 15 r/w section 13(2) of
Prevention of Corruption Act, 1988 is also made out against
accused no. 2, 4, 6, 8, 9 & 10, the public servants, on the basis
of material on record.
19. Vide orders dated 19.09.2006, requisite charge
for offence under section 120B IPC r/w section 420, 471 read
with 467 IPC and section 13(2) read with section 13 (1) (d)
and Section 15 of Prevention of Corruption Act, 1988 against
all the accused persons was framed.
20. Separate charge for substantive offence under
section 420, 471 read with 467 IPC was framed against
accused no.1 Radhey Shyam and accused no. 11 Munish
Guliani.
21. Separate charge for substantive offence u/s
13(2) r/w section 13(1) (d) of P.C.Act was framed against
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accused no. 2, 3, 5, 7, 9 & 10, the public servants.
22. Separate charge for substantive offence under
section 15 read with section 13(2) of P.C.Act was framed
against accused no. 2, 4, 6, 8, 9 & 10, the public servants.
23. The charges so framed against all the accused
persons were read over to them, to which they pleaded not
guilty and all of them claimed trial.
PROCEEDINGS STAYED / POSTPONED QUA ACCUSED O.P.TOMAR:
24. During the pendency of proceedings, on behalf
of accused no. 3 O.P.Tomar, an application was moved under
section 329/330 Cr.PC for stay of proceedings qua him, on
the ground that he is mentally incapable of understanding
the nature of proceedings against him. On said application and
after having him medically examined, from the Medical Board
I found him to be suffering from
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"PARKISONISM" (Progressive Supra Nuclear Palsy)
which is a progressive disease, which has made him incapable
of comprehending the nature of proceedings against him. Vide
order dated 25.04.2014, the present proceedings qua accused
O.P.Tomar were postponed, with the observation that the same
shall be revived as and when the mental faculties and mental
conditions of accused O.P.Tomar improves, so as to make him
capable of understanding the proceedings against him.
25. In view thereof, I hereby proceed further to
dispose off the present case qua the other accused
persons.
PROSECUTION EVIDENCE:
26. Prosecution was called upon to substantiate its
case by examining the witnesses, listed in the list of witnesses,
filed along with the charge sheet. Availing the given
opportunities, CBI had examined 49 witnesses.
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27. The witnesses so examined by the prosecution
to substantiate its case can be broadly categorized in Eight
Categories:
28. First Category is of material witnesses which
consists of the witnesses from Municipal Corporation of Delhi
(MCD) who have deposed about the complaint, the procedure
with respect to Notice Inviting Tender, Work Order conditions,
Agreement, submission of invoices by the contractor,
preparation of the documents i.e. MB Book & other relevant
documents pertaining to execution of work by the concerned
engineers of MCD. The witnesses of this category had deposed
regarding identification of signatures of the accused persons on
the records prepared by them during execution of these work
orders, having worked with them. The witnesses of this
category had further deposed about submission of these records
to the investigating officer during the course of investigations.
This category comprises of :
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(i) PW14 Sh. S.K.Jain, Asstt. Commissioner, MCD, the
complainant ;
(ii) PW12 Sh. Deepak Mukhopadhya, Engineer in Chief, MCD;
(iii) PW13 Sh. Hari Dev Sheekri, Chief Engineer, MCD ;
(iv) PW4 Sh. Dev Raj Arora, Head Clerk, MCD ;
(v) PW5 Sh. K.K. Kalia, LDC (Tender Clerk), MCD ;
(vi) PW28 Sh. Anil Kumar, LDC, MCD ;
(vii) PW33 Sh. R.S.Bisht, Accountant, MCD ;
(viii) PW34 Sh. S.P.Bhardwaj, Assistant Manager, MCD ;
(ix) PW36 Sh. Suresh Chand, Executive Engineer, MCD ;
(x) PW39 Sh. Maneesh Rastogi, Executive Engineer, MCD ;
(xi) PW40 Sh. Jitender Dawar, Record Keeper (UDC), MCD ;
(xii) PW41 Sh. A.K.Mittal, Executive Engineer, MCD ;
(xiii) PW44 Sh. Kuldeep Sharma, LDC, MCD ;
29. Second Category consists of witnesses
examined by the prosecution with respect to the officers of
Indian Oil Corporation Limited (IOCL). This category
comprises of:
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(i) PW2 Sh. Nitin Bhatnagar, S & D Division, IOCL,
Mathura;
(ii) PW3 Sh. Kali Prasad, Manager, IOCL, Mathura ;
(iii) PW6 Sh. Sameer Garg, Manager (Finance), IOCL,
Mathura ;
(iv) PW7 Sh. Deepak Sikri, Accounts Officer, IOCL ;
(v) PW8 Smt. Chandrakanta Monga, Dy. Manager (Finance),
IOCL ;
(vi) PW9 Sh. M.S.Rawat, IOCL ;
(vii) PW10 Sh. Ashish Bhatnagar, S & D Division, IOCL,
Mathura ;
(viii) PW15 Sh. Khyali Singh Chaudhary, Manager
(Engineering), S & D Division, IOCL, Mathura ;
(ix) PW18 Sh. C.S.Jaitley, Assistant Manager (Finance),
IOCL, Mathura ;
(x) PW19 Smt. S.C.Banerjee, Sr. Consumer Manager,
Marketing Division, IOCL ;
(xi) PW21 Sh. M.C.Asija, Manager, CIP, IOCL ;
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30. The witnesses of this category deposed about
the procedure by which bitumen used to be supplied by IOCL
and the procedure regarding issuance of invoices. These
witnesses further deposed after going through the invoices in
question ie. Ex. PW2/D to Ex. PW2/J, that they are forged
ones and were never issued by S & D Division of IOCL.
Further, they deposed regarding the genuine invoices issued by
IOCL Ex. PW2/A to Ex. PW2/C and Ex. PW3/A to Ex. PW3/C
and Ex. PW18/A against those serial numbers. These
witnesses further deposed that signatures on the forged
invoices are not their's. The witnesses of this category further
deposed regarding issuance of the delivery order on the basis of
which bitumen is released to the contractor or his
representative by the terminal against invoices. Further, the
witnesses of this category deposed regarding submission of
records to CBI during investigations.
31. Third Category consists of witnesses
examined by the prosecution from Transport Authority as well
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as the Transporters who were associated with transporting
bitumen from oil refineries. They are as follows :
(i) PW11 Sh. P.S.Chauhan, Head Clerk, Transport Authority,
Rajpura Road ;
(ii) PW20 Sh. Dharam Pal, Clerk, District Transport Office,
Faridabad, Haryana ;
(iii) PW22 Sh. Ved Prakash, Truck Driver ;
(iv) PW23 Sh. Rama Kant Rai, Transporter / Proprietor of M/s
Vishwakarma Engineering Job Works ;
(v) PW31 Sh. Om Prakash Sethi, Transporter / Partner of M/s
Sethi Brothers ;
32. These witnesses deposed that the vehicles
registration numbers of which are mentioned on the forged
invoices are either not capable of transportation of bitumen or
were never engaged by the contractor for transporting bitumen
from IOCL to the hot mix plant of contractor.
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33. Fourth Category consists of miscellaneous
witness who joined investigations at the request of the
Investigating Officer. This category includes :
(i) PW37 Sh. Gyanesh Jain, Punjab National Bank ;
(ii) PW38 Sh. H.G.Kunder, Officer, Canara Bank ;
(iii) PW47 Sh. Suraj Bhan ;
(iv) PW49 Sh. Kundan Vardhan
34. Fifth Category consists of witnesses
examined by the prosecution with respect to the officers from
the banks which had account of MCD and the account of the
contractor with them in operation. This category includes :
(i) PW1 Sh. M.K.Narula, Dy. Manager, Overseas Branch,
State Bank of India ;
(ii) PW17 Sh. Om Prakash, Officer, Punjab & Sind Bank ;
(iii)PW35 Sh. K.L.Khurana, Chief Manager, State Bank of
India ;
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35. The witnesses to this category have deposed
regarding the statement of account of MCD, debit of the
amount from the bank account of MCD by virtue of cheques Ex.
PW17/B & Ex. PW17/C as shown in the statement of account
of MCD, which included the amount paid to the contractor
with respect to these work orders. The witness from the bank
of accused appeared and deposed regarding the statement of
account and the relevant credit entry in the account of the
contractor by virtue of these two cheques Ex. PW17/B & Ex.
PW17/C issued by MCD in favour of M/s Radhey Shyam which
were deposited by the contractor in his bank account.
36. Sixth Category of the witnesses are from
those companies / organizations who actually got bitumen from
IOCL against the genuine invoices. This category includes :
(i) PW24 Sh. R.S.Shekhawat, Manager (Accounts), M/s SPL
Industries Ltd. ;
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(ii) PW25 Sh. H.R.Yadav, Sr. Manager (Commercial), M/s
Modi Alkalies & Chemicals Ltd. ;
(iii)PW26 Sh. N.K.Jain, Sr. Manager (Stores), M/s VAM
Organic Chemicals Ltd. ;
(iv) PW27 Sh. Mahender Singh, Executive Engineer, PWD ;
(v) PW29 Sh. Chaitanya Kumar Garg, Accountant, M/s
Mahesh Glass Works ;
(vi) PW30 Sh. M.K.Singh, Executive Engineer, PWD ;
(vii) PW32 Sh. L.R.Moorthy, Sr. Manager (Stores), M/s India
Glyco Ltd. ;
37. Seventh Category of the witnesses examined
by the prosecution were those who had given Sanction for
prosecution of the accused public servants. This category
includes :
(i) PW16 Sh. Rakesh Mehta, State Election Commissioner,
Delhi, who had given sanction for prosecution with respect
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to accused Rajesh Sharma, O.P.Tomar, R.S.Bharti,
J.P.Singh, C.S.Mangla, Manoj Kumar, Baljeet Singh,
O.P.Saroha and Gurcharan Singh i.e. Ex. PW16/A.
38. Eighth Category of witnesses includes those
who remained associated with the investigations of the
present case in one form or the other, including the scientific
expert and the Investigating officers. This category consists
of :
(i) PW42 Sh. S.K.Kashyap, Dy. S.P., CBI, conducted
Preliminary Inquiry ;
(ii) PW45 Sh. Rajesh Chahal, Inspector, CBI, the
Investigating Officer ;
(iii) PW46 Sh. R.L.Yadav, Inspector, CBI, Part Investigating
Officer.
(iv) PW48 Sh. Gurmeet Singh, Inspector, CBI, the
Investigating Officer.
(v) PW43 Sh.T.Joshi, Assistant GEQD, CFSL,Chandigarh;
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39. The detail deposition of the witnesses is not
being adverted to, as the same shall be referred hereinafter
while dealing with the necessary ingredients of the offence,
with which accused have been charged, visavis the rival
contentions advanced by Ld.Special PP for CBI, as well as by
Ld.Defence Counsels for the accused persons.
40. All the prosecution witnesses were cross
examined in detail by Sh.N.K.Sharma, Sh.S.P.Aggarwal,
Sh.P.K.Dubey, Sh.Dharmish Thanai and Sh.Y.P.Sirohi
Advocates, Ld.Defence Counsels for the accused persons. The
cross examination of the witnesses is not being mentioned for
the sake of brevity, but the same and material portion thereof,
more particularly, the one referred to during the course of
arguments, shall be adverted to hereinafter, while appreciating
the legal and factual issues raised on behalf of the accused,
alongside appreciation of evidence in entirety.
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STATEMENT OF ACCUSED:
41. Separate statements of all the accused persons
were thereafter recorded under section 313 Cr.P.C., wherein
the prosecution evidence against them was put, which they
denied.
42. On being asked, accused no.2 Rajesh Sharma,
Accused no.6 J.P.Singh and Accused no.11 Munish Guliani
wished to examine witnesses in their defence. They were
permitted to do so.
DEFENCE EVIDENCE:
43. Availing the given opportunities, accused no.2
Rajesh Sharma and accused no. 6 Jitender Pal Singh, had
examined one Sh.Ravinder Kumar, UDC, EEM(I), MCD
South Zone, who appeared in the witness box as DW1. This
witness deposed that the office orders which he was called upon
to produce are not traceable in the records. He however,
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proved the dispatch entry Ex. DW1/A with respect to office
order bearing no. D/1166/EEIV/SZ/99 dated 30.03.1999.
44. On being armed with permission under section
315 Cr.P.C, accused no.2 Rajesh Sharma, appeared in the
witness box and examined himself as DW2. He proved the
office order Ex. DW5/DX, Ex. DW2/A and Ex. PW5/DX1 to be
the ones which were issued by him bearing his signatures. He
also produced on record certified copy of Gazette notification
dated 23.12.1976 and 30.04.1992 as Ex. DW2/B & Ex.
DW2/B1 which he had obtained vide receipt Ex. DW2/C. On
being cross examined by Ld. P.P. for CBI he admitted that in
cases of emergency, if any engineer working in a particular
ward happens to be on leave, then his work can be assigned to
other engineer working under the different ward in same
Division.
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45. Accused no. 11 Munish Guliani had also
sought permission to examine himself under section 315
Cr.P.C. After the requisite permission he was examined as
DW3. He deposed that Ex. PW47/DX was the CForm issued
by Sales Tax Department to the Firm of accused Radhey
Shyam on 15.02.1999. He deposed that on the back side of this
document there are his signatures at point A but the date
above these signatures was not mentioned by him. He deposed
that he did not have any dealings with this company in the
year 1998. On being cross examined by Ld.Counsel for accused
no. 1, this witness deposed that he had handed over the details
of payment received by him from Radhey Shyam, to CBI. He
deposed that he had not supplied any bitumen to Radhey
Shyam in the year 1998. He further stated during his cross
examination that while supplying bitumen to M/s Radhey
Shyam and Company, he use to hand over the copies of invoices
issued in favour of M/s Super Bulk Carriers, which is his firm,
to Radhey Shyam.
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46. Other accused persons ie. Radhey Shyam, the
contractor and public servants, despite grant of
opportunity, did not wish to examine any witness in their
defence. Thus, defence evidence qua them was closed.
ARGUMENTS ON BEHALF OF CBI:
47. It is contended by Ld.Special PP for CBI
relying upon the deposition of the witnesses examined by them
during the course of trial, that prosecution has been able to
establish its case against the accused persons.
48. It is submitted by Ld. Public Prosecutor that
accused public servants had abused their official position and
thus criminally misconducted themselves, so as to cause
pecuniary advantage to the contractor and corresponding
wrongful loss to MCD. He further contended that the accused
public servants by abusing their official position had entered
into a criminal conspiracy with the contractor and facilitated
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him to submit forged invoices as genuine ones, knowing or
having reasons to believe the same to be forged ones. He
contended that all the accused persons be accordingly convicted
under relevant provisions of law.
DEFENCE ARGUMENTS :
49. To defend the accused persons,
Sh.N.K.Sharma, Sh.P.K.Dubey, Sh.Dharmish Thanai,
Sh.S.P.Aggarwal, Sh.O.P.Saxena, Advocates, Ld.Defence
Counsels had led three dimensional attack to the
prosecution case.
50. Ld.Defence Counsels opened their arguments
raising certain legal contentions in an attempt to demolish
the prosecution case. Second dimensional attack was based on
mixed questions of law and facts. Whereas, the third
dimension of their arguments, revolved around the factual
aspects as has come up on record, on the basis of oral and
documentary evidence, during the course of trial.
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51. Ld.Defence Counsels had raised following
contentions on LEGAL ISSUES :
(i) Wrong invocation of Section 13(1) (d) of P.C.Act : As
there are no allegations of payment of any illegal gratification
by the contractor to public servants, therefore, the provisions
of Section 13(1) (d) of Prevention of Corruption Act, cannot be
invoked.
(ii) Lack of Jurisdiction of CBI : As Delhi Municipal
Corporation Act 1957 is a complete Code in itself, therefore,
CBI did not have any jurisdiction to investigate the present
case, therefore, the proceedings should be stopped at this stage
itself, and the evidence on record be discarded.
(iii) Wrong registration of preliminary inquiry : On the
basis of the Initial Complaint of Sh.S.K.Jain, Preliminary
Inquiry could not have been registered by CBI. Registration of
preliminary inquiry, vitiates the whole proceedings.
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(iv) Noncompliance of Section 157 Cr.P.C : Provisions of
Section 157 Cr.P.C were not complied with by the investigating
agency, therefore, all the accused persons should be
exonerated.
52. Second dimensional attack of Ld.Defence
Counsels was on mixed questions of "Law and Facts". The
same was with respect to the sanction for prosecution granted
against the public servants. The arguments advanced on this
aspect were twofold ie. :
(i) Incompetence of Sanctioning Authority: The authority
which had passed the sanction orders qua the public servants
was not competent to pass the same, therefore, the sanction
orders are bad in law.
(ii) Nonapplication of mind : Even if it is assumed that the
sanctioning authority was competent to pass the sanction
orders, the same were passed in a mechanical manner and
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without application of mind as it depicts factually incorrect
statements.
53. It is contended that as the sanction orders
were bad in law, therefore, the whole proceedings have become
nonest.
54. Third dimensional attack on the prosecution
case raised by Ld.Defence Counsels was on factual aspects, vis
avis the necessary ingredients of the offences with which
accused persons were charged.
55. These contentions raised by Ld.Defence
Counsels are divided in 2 categories. The first one being on
behalf of the accused PUBLIC SERVANTS, which are as
under :
(i) No meeting of minds : That, there is no evidence brought
on record by the prosecution depicting any meeting of mind,
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amongst the accused public servant on one hand and the
contractor on the other hand, therefore, there is no question of
any conspiracy whatsoever between these two set of accused.
(ii) No overt act on the part of public servants : That, the
accused public servants had not done anything, in order to
achieve the socalled object of conspiracy as they were not party
to any such conspiracy / offence.
(iii) Official discharge of duties: That, the accused public
servants did, what was their official duty and had prepared the
documents which were required as per CPWD Manual.
(iv) No knowledge about forgery: That, the accused public
servants did not have any knowledge that the invoices so
tendered with them, by the contractor were forged ones. It is
submitted that it was duty of the contractor to submit genuine
invoices.
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(v) No mechanism to check the genuineness of invoice:
That, there was no mechanism with the accused public
servants to compare the invoices so submitted by the contractor
with the specimen format, so as to verify about their
genuineness.
(vi) No duty of the public servants for verification of
invoices: That, even otherwise, it was not the duty of accused
public servants to verify the genuineness of the invoice.
Further, they had no reason to doubt the genuineness of invoice
as the work was being executed by the contractor.
56. Second category of the contentions advanced
by Sh.P.K.Dubey, Advocate, Ld.Defence Counsel on factual
aspects, were with respect to the contractor visavis the
necessary ingredients of the offences, with which ACCUSED
NO.1 was charged. The same are as under:
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(i) Nonavailability of mechanism : That, as contractor had
no mechanism to check that he is or is not being given genuine
invoices by IOCL, therefore, he cannot be made liable for
submitting them with MCD by imputing that he submitted
them, knowing the same to be forged ones.
(ii) No wrongful loss caused to MCD: That, as the payment
was to be made to the contractor for the work which was
properly conducted by him as per the specifications, therefore
no wrongful loss was caused to the MCD.
(iii) Filing of invoice was ritual : That, as the payment was
to be made to the contractor for work in any case, and filing of
invoices by him with MCD would not have made any difference
as it was a mere ritual, therefore it cannot be said that
contractor had induced MCD to act to its detriment, so as to
cause any pecuniary advantage to him.
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(iv) Unfair Investigations : That, the investigations have not
been conducted by the investigating agency in a fair manner
as neither any expert opinion nor any agency for the stationary
used for the so called forged invoices was obtained. It is
further contended that even the specimen signatures of
authorized signatories of IOCL were not taken by the IO to
have the same compared with the signatures on the invoices in
question and the accused has been wrongly and falsely
implicated, therefore he be acquitted of the charge.
(v) No ground with contractor to forge the invoices : It is
contended by Ld. Defence Counsel that as the contractor has
made payment for the bitumen supplied to him by Munish
Guliani, therefore, there is no reason with the contractor to
forge the invoices. It is contended that the contractor had
submitted the invoices handed over to him by Munish Guliani
to MCD under the bonafide belief that the same are genuine
issued by IOCL.
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57. On behalf of Accused Munish Guliani, Sh.
O.P.Saxena, Advocate, had advanced arguments. Ld. Defence
Counsel contended that prosecution has failed to prove any of
the necessary ingredients of the offence with which his client
has been charged. He contended that there is no evidence on
record to show that the invoices in question were either forged
or were handed over by Munish Guliani to Radhey Shyam. He
contended that Munish Guliani never supplied any bitumen to
Radhey Shyam in the year 1998. He contended that as there is
no evidence on record against Munish Guliani, therefore, he be
acquitted.
APPRECIATION OF EVIDENCE & RIVAL CONTENTIONS:
58. Before adverting to appreciate the prosecution
as well as defence evidence which has come up on record visa
vis the charges against the accused persons, as well as the
arguments advanced on the mixed questions of facts and law, I
deem it appropriate to deal with those contentions first which
have been raised by Ld.Defence Counsels, on purely legal
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aspects, in their quest to demolish the prosecution case at the
threshold.
59. The opening contention of Ld.Defence Counsels
was that, there is no averment or allegation in the entire
charge sheet of extension of any illegal gratification on the
part of contractor to the accused public servants, therefore by
no stretch of imagination, the provisions of Section 13(1) (d) of
Prevention of Corruption Act, could have been invoked. It is
contended that on this ground itself, the case cannot proceed
and accused persons should be acquitted.
60. In order to deal with this contention of
Ld.Defence Counsels, it is pertinent to make a mention of the
relevant provisions of Section 13 (1) (d) of Prevention of
Corruption Act. The same is as follows :
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Section 13: Criminal misconduct by a public servant :
(1) A public servant is said to commit the offence of
criminal misconduct,
(a) . . .
(b) . . .
(c) . . .
(d) if he,
(i) by corrupt or illegal means, obtains for
himself or for any other person any
valuable thing or pecuniary advantage ; or
(ii)by abusing his positioning as a public
servant, obtains for himself or for any
other person any valuable thing or
pecuniary advantage ; or
(iii)while holding office as a public
servant, obtains for any person any
valuable thing or pecuniary advantage
without any public interest ; or
(e) . . .
61. The phrases namely "corrupt , illegal means"
and "by abusing his position as public servants" are different
categories of corrupt practices, which are conjuncted by the
words "or" and not by the conjunction "and". This in itself
indicates that these three different categories are alternate
misconduct on the part of public servant and either of these three
practices, if done by public servant then the same can constitute
an offence under this Section.
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62. The phraseology "By abusing his official
position as Public Servant" covers the acts done by the public
servant otherwise than by corrupt or illegal means. The gist of
the offence under this clause is, that a public officer abusing
his position as "public servant" obtains for himself or for
other person, any valuable thing. The word "abuse" used by
the Legislature means "misuse", ie. using his position for
something which is not intended. That abuse of the position
may be by corrupt or illegal means or otherwise than those
means". In view thereof, the Legislature never intended that
there has to be an express evidence of illegal gratification
before invocation of this section. In case, there are instances
and allegations that a person has abused his position as a
public servant, in order to cause advantage to anyone, that in
itself is sufficient for invocation of this Section.
63. Meaning thereby that in absence of any
allegations by the prosecution on the part of public servant of
demand and acceptance of illegal gratification for showing any
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favor to a private individual, the provisions of Prevention of
Corruption Act cannot be invoked, as urged by Ld.Defence
Counsels, to my mind is farfetched and devoid of merits. As
there are allegation of abuse of official position by the public
servants in order to cause pecuniary advantage to their co
accused, this clause of P.C.Act very much comes into play.
64. In view thereof, the contention advanced by
Ld.Defence Counsels that in the present case there are no
allegations on record that any of the public servants, who are
accused herein had adopted any corrupt or illegal means or
have obtained any pecuniary advantage for themselves, thus
section 13(1) (d) of P.C.Act cannot be invoked, is rejected.
However, the prosecution has to establish the necessary
ingredients of the offences, with which the accused persons
have been charged, on the basis of the evidence which has come
up on record, with which I shall be dealing hereinafter.
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65. This has brought me down to the next legal
contention urged by Sh.S.P.Aggarwal, Advocate, on behalf of
accused O.P.Saroha and Gurcharan Singh, that the present
case cannot proceed further, as CBI did not have the
jurisdiction to register the present FIR and to investigate the
same, in view of the fact that it lacks the jurisdiction to try the
cases involving violation of the provisions of Delhi Municipal
Corporation Act, 1957.
66. To substantiate his contention, Ld.Defence
Counsel have relied upon the law laid down by Hon'ble Apex
Court in case titled "CBI vs. State of Rajasthan" reported as
(1996) 9 SCC 735 and in another case titled "R.S.Gahlot vs.
CBI" bearing Crl.M.C.No.3800/11 decided by Hon'ble High
Court of Delhi on 22.11.2013.
67. It is alleged by Ld.Defence Counsel that as per
the allegations levelled against the contractor and the
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Engineers and Account Officials of MCD, there have been
violations of the provisions of Delhi Municipal Corporation Act.
It is submitted that Delhi Municipal Corporation is a complete
Code in itself and the Act bars any other agency or Court, from
taking cognizance of violation of its provisions. It is submitted
that CBI can exercise jurisdiction with respect to the offences
notified by Central Government in the official gazette, as per
Section 3 of Delhi Special Police Establishment Act. It is
submitted that the provisions of Delhi Municipal Corporation
Act, have not been notified by Central Government under
Section 3 of Delhi Special Police Establishment Act, therefore
CBI lacks jurisdiction to investigate the same.
68. I have considered the submissions advanced
and have perused the allegations on the basis of which the
present case was registered, investigated and filed. I have also
gone through the relevant provisions of Law and the precedents
relied upon by Ld.Defence Counsel, in support of their
contentions.
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69. It is apparent on perusal of Section 2 of Delhi
Special Police Establishment Act, that it empowers the Central
Government for constitution of Special Police Establishment. It
reads as under:
SECTION 2 : CONSTITUTION AND POWERS OF SPECIAL
POLICE ESTABLISHMENT -
(1) Notwithstanding anything in the Police Act,
1861 (5 of 1861), the Central Government may
constitute a special police force to be called the
Delhi Special Police Establishment for the
investigation [in any (Union Territory)] of
offences notified under section 3.
(2) Subject to any orders which the Central
Government may make in this behalf,members of
the said police establishment shall have
throughout [Union Territory]] in relation to the
investigation of such offences and arrest of
persons concerned in such offences, all the
powers, duties, privileges and liabilities which
police officers of [that Union territory] have in
connection with the investigation of offences
committed therein.
(3) Any member of the said police establishment
of or above the rank of SubInspector may,
subject to any orders which the Central
Government may make in this behalf, exercise in
[any [Union Territory]] any of the powers of the
officer in charge of a police station in the area in
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which he is for the time being and when so
exercising such powers shall, subject to any such
orders as aforesaid, be deemed to be an officer in
charge of a police station discharging the
functions of such an officer within the limits of
his station.
70. Central Bureau of Investigations (CBI) being
one such establishment which has been constituted in terms of
Section 2 of Delhi Special Police Establishment Act.
71. Further, Section 3 of the Act prescribes the
category of offences, which the Special Police so established,
under section 2 can investigate. The same reads as under:
SECTION 3 : OFFENCES TO BE INVESTIGATED
BY SPECIAL POLICE ESTABLISHMENT
The Central Government may, by
notification in the Official Gazette,
specify the offences or classes of offences
which are to be investigated by the Delhi
Special Police Establishment.
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72. In view of the joint reading of both these
sections, it is absolutely clear that CBI which is a creation of
Central Government under this special Statute, can only
investigate the offences, which has been notified by Central
Government by virtue of the powers granted to it by
Legislature, in terms of Section 3 of the Act. Consequently,
CBI cannot travel beyond that or assume jurisdiction over the
offences, which have not been so notified by Central
Government.
73. I am fortified to arrive at this proposition of
law taking support from the law laid down by Hon'ble Apex
Court in CBI vs. State of Rajasthan's Case (supra), relied
upon by Ld.Defence Counsel.
74. Admittedly, for the offences under Municipal
Corporation of Delhi Act, no notification has been issued by
Central Government under section 3 of Delhi Special Police
Establishment Act, authorizing CBI to investigate any violation
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thereof, which discloses violations of Delhi Municipal
Corporation Act.
75. However to consider the contentions of
Ld.Defence Counsel, it is to be seen as to whether the offences
alleged to have been committed by the accused persons, falls in
the contours of Delhi Municipal Corporation Act. The answer
to my mind is "NO".
76. Perusal of the present complaint makes it clear
that the allegations against the accused persons are for
commission of offences of entering into criminal conspiracy
with each other for the purposes of cheating and forgery, as
well as using forged documents as genuine, besides the offences
under section 13(1) (d) of Prevention of Corruption Act of
"Criminal Misconduct" by the Public Servants (subject offcourse
of proving the same against the accused persons by the prosecution,
which I shall advertto hereinafter). These offences which are
alleged to have been committed by the accused persons does not
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fall in the purview and domain of Delhi Municipal Corporation
Act,1957.
77. The offences under Indian Penal Code as well
as Prevention of Corruption Act, have been duly notified by
Central Government under section 3 of Delhi Special Police
Establishment Act Act, wherein CBI did have the jurisdiction
to investigate.
78. In view thereof, I do not find any merits in
these contentions of Ld.Defence Counsel that the present case
should be rejected at the threshold itself, on the grounds that
CBI lacks jurisdiction to register and investigate the same.
79. The precedent of R.S.Gahlot Vs. CBI (supra)
relied upon by Ld.Defence Counsel in support of his contention,
does not come to the rescue of the accused persons, as facts of
said case differs from the facts of the present case. Hon'ble
High Court of Delhi, in said case had observed on the basis of
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its peculiar facts that the same pertains to raising of
unauthorized construction and thus fall within the ambit of
Delhi Municipal Corporation Act, whereas the facts of the
present case differs as stated by me hereinabove.
80. In view thereof, this contention of Ld.Defence
Counsel that this case should be rejected at the threshold itself
for lack of jurisdiction on the part of CBI, stands rejected.
81. Another attempt to blow the case of
prosecution at the initial stage itself was made by
Sh.N.K.Sharma, Advocate, Ld.Defence Counsel. He contended
relying upon the cross examination conducted by him of PW42
S.K.Kashyap, who conducted the preliminary enquiry as well
as of PW48 Gurmeet Singh the investigating officer, that there
was no occasion with CBI to register preliminary enquiry in
this case. His contentions were that on the complaint of
Sh.S.K.Jain, there was no occasion with CBI to register
preliminary enquiry before the registration of FIR. He placed
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reliance on the precedent / law laid down by Hon'ble Apex
Court in case titled "Lalita Kumari vs. Govt. of UP & Ors."
reported as 2014 (1) JCC 1.
82. I have considered the submissions advanced by
Ld.Defence Counsel and have also gone through the precedent
relied upon by him in support of his contention. I have also
gone through the cross examination of PW42 Sh.S.K.Kashyap
as well as that PW48 Gurmeet Singh. No doubt, both these
witnesses during the course of their cross examination have not
given any specific grounds or illustrations, wherein a
preliminary enquiry can be registered before registration of
FIR, but that ipsofacto is no ground for throwing overboard,
the material which has come up on record during the course of
trial, in the form of documentary and oral evidence through the
deposition of prosecution witnesses. Based on these
substantive pieces of evidence, it is to be seen, as to whether
the charges for which the accused persons have been facing
trial, stands proved or not. The substantial evidence cannot be
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discarded or brushed aside merely because PW42 and PW48
could not give any specific grounds enabling CBI to register a
preliminary inquiry first, before registration of FIR. Even the
precedent relied upon by Ld.Defence Counsel does not support
their case and contention. Hon'ble Apex Court while laying
stress on the investigating agency regarding mandate of
legislature to register FIR as per Section 154 Cr.P.C has given
leeway to CBI to register a preliminary enquiry in certain
cases.
83. It is pertinent to make mention of the
operative part of the precedent relied upon by Ld.Defence
Counsel in Lalita Kumari's Case (Supra), which reads as
under :
(i) Registration of FIR is mandatory under section 154 of
the Code, if the information discloses commission of a
cognizable offence and no preliminary inquiry is
permissible in such a situation.
(ii) If the information received does not disclose a
cognizable offence but indicates the necessity for an
inquiry, a preliminary inquiry may be conducted only to
ascertain whether cognizable offence is disclosed or not.
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(iii) . . .
(iv) . . .
(v) . . .
(vi) As to what type and in which cases preliminary
inquiry is to be conducted will depend on the facts and
circumstances of each case. The category of cases in which
preliminary inquiry may be made are as under :
(a) Matrimonial disputes / family disputes.
(b) Commercial offences.
(c) Medical negligence cases.
(d) Corruption Cases.
(e) Cases where there is abnormal delay /
laches in initiating criminal prosecution, for
example over 3 months delay in reporting the
matter without satisfactorily explaining the
reasons for delay.
...(emphasis supplied)
(vii) . . .
(viii) . . .
84. In Lalita Kumari's Case (supra), Hon'ble
Apex Court while referring to Sections 4(2) and 5 of Code of
Criminal Procedure, visavis powers of CBI, has held that :
"These special provisions contained in the Delhi
Special Police Establishment Act relating to the
powers of CBI, are protected also by Section 5 of
the Code".
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"In view of above specific provisions in the Code,
the powers of CBI under the Delhi Special Police
Establishment Act cannot be equated with the
regular police under the Code."
85. It is further pertinent to make mention that
subject of preliminary enquiry is contained in Chapter 9 of
Crime Manual of CBI. The factum regarding adherence to the
CBI Manual and its basis, was considered by Hon'ble Apex
Court in case titled "Vineet Narayan and Ors. vs. Union of
India & Anr." reported as AIR 1998 SC 889 ; wherein
Hon'ble Apex Court to prevent the erosion of Rule of Law,
issued number of directions to various authorities. The
relevant part of the directions issued to CBI is as under :
"59(12). The CBI Manual based on statutory
provisions of the CrPC provides essential
guidelines for the CBI's functioning. It is
imperative that the CBI adheres scrupulously to
the provisions in the Manual in relation to its
investigative functions, like raids, seizure and
arrests. Any deviation from the established
procedure should be viewed seriously and severe
disciplinary action taken against the officials
concerned."
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"...Thus from the above, it is evident that the CBI
manual, being based on statutory provisions of the
Cr.P.C., provides for guidelines which require
strict compliance".
86. In view of the law laid down by Hon'ble
Supreme Court and considering that CBI is constituted under
the specific provisions of Delhi Special Police Establishment
Act, I am of the opinion that its powers cannot be equated with
the regular State Police acting and working as per Code of
Criminal Procedure. Thus CBI can register a preliminary
enquiry before registration of FIR, more particularly while
dealing with Corruption Cases, as has been held by Hon'ble
Apex Court in above mentioned cases.
87. In view thereof, I do not find merits in this
contention of Ld.Defence Counsel. The same stands rejected.
88. The next legal contention urged on behalf of
the accused persons by Sh. S.P.Aggarwal, Advocate, is that the
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names of accused O.P.Saroha and Gurcharan Singh, does not
appear in the "First Information Report". He contended
that the accused persons have been wrongly and falsely
implicated by CBI. It is submitted that as the accused persons
were not named in FIR, therefore the proceedings qua them
should be dropped, at this stage itself.
89. I do not find any merits in this arguments
advanced by Ld.Defence Counsel in view of the fact that FIR by
its name suggests that it is the "First Information Report"
received by the investigating agency, who is then called upon to
investigate the allegations levelled therein, so as to unearth the
wrong, if any, falling within the definition of the term "offence"
and if so, to find out as to who has committed the same.
90. Hon'ble Apex Court in case titled "Kirender
Sarkar and Ors. vs. State of Assam", reported as 2009,
Crl.L.J.3727, has held that :
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"6. The law is fairly well settled that FIR is not
supposed to be an encyclopedia of the entire events and
cannot contain the minute details of the events. When
essentially, material facts are disclosed in the FIR, that
is sufficient. FIR is not substantive evidence and
cannot be used for contradicting testimony of the eye
witnesses except that may be used for the purpose of
contradicting maker of the report. Though the
importance of naming the accused persons in the FIR
cannot be ignored, but names of the accused persons
have to be named at the earliest possible opportunity.
The question is whether a person was impleaded by
way of afterthought or not, must be judged having
regard to the entire factual scenario in each case.
Therefore, non naming of one or few of the
accused persons in the FIR is no reason to
disbelieve the testimony of crucial witnesses ".
(emphasis supplied)
91. In view of the law laid down by Hon'ble Apex
Court, this contention of Ld.Defence Counsel stands rejected.
92. Extending the above mentioned contention of
Sh.S.P.Aggarwal, Advocate, Sh.N.K.Sharma, Advocate,
contended that provisions of Section 157 Cr.P.C which are of
mandatory nature were not complied with by the
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investigating agency, therefore, the proceedings against the
accused persons should be dropped.
93. In support of his contentions, he brought my
attention to the cross examination conducted by him of the
investigating officer ie. PW48 Gurmeet Singh. It is submitted
by Ld.Defence Counsel that during the cross examination, the
investigating officer on being asked, as to when the copy of FIR
was delivered to the then Ld.Special Judge, could not give any
satisfactory reply. Ld.Defence Counsel relying upon the
precedents on this aspect of Hon'ble High Court titled
"Devender @ Kalu vs. State" reported as 2011 (2) JCC 1453
DB (DLI) ; and case titled "Rajesh Kumar vs. State"
reported as 2011 (4) JCC 2522 (DB) DLI ; and that of Hon'ble
Apex Court in case titled "Ratti Ram & Ors. vs. State of
M.P.Tr. Inspector of Police" reported as 2013 [3] JCC 1572 ;
had contended that the proceedings against the accused
persons should be dropped, on this count itself.
C.C.No: 09 / 2011 Page No.63 of 211
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94. I have considered the submissions advanced
by Ld.Defence Counsels. I have also perused the relevant cross
examination of the investigating officer PW48 on this aspect
and have perused the precedents relied upon.
95. Code of Criminal Procedure lays down the
procedure which is required to be adopted by the Courts in its
pursuit of "Administration of Criminal Justice System".
It has been held in a catena of judgements by Hon'ble Apex
Court that procedure has to be interpreted in such a manner so
as to augment the substantive justice and not to thwart the
same. Consequently, the procedural lapses, if any on the
part of prosecution should not be made as 'impediments' in
the process of unearthing the truth. The sole question which is
required to be answered is as to whether such procedural lapse
can be a ground to throw overboard the substantive pieces of
evidence, which has come up on record.
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96. The answer to this question lies in the
observation made by Hon'ble Apex Court in Ratti Ram & Ors.
Case (supra), relied upon by Ld.Defence Counsel, the relevant
portion of which is reproduced as under:
We may hasten to add that when there is
delayed despatch of the FIR, it is necessary on
the part of the prosecution to give an
explanation for the delay. We may further
state that the purpose behind sending a copy
of the FIR to the concerned magistrate is to
avoid any kind of suspicion being attached to
the FIR. Such a suspicion may compel the
court to record a finding that there was
possibility of the FIR being antetimed or
antedated. The court may draw adverse
inferences against the prosecution. However,
if the court is convinced as regards to the
truthfulness of the prosecution version and
trustworthiness of the witnesses, the same
may not be regarded as detrimental to the
prosecution case. It would depend on the
facts and circumstances of the case. In the
case at hand, on a detailed scrutiny of the
evidence upon bestowing our anxious
consideration, we find that the evidence
cannot be thrown overboard as the version of
the witnesses deserves credence as analysed
before. Thus, this colossal complaint made by
Mr. Khan pales into insignificance and the
submission is repelled.
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97. In view of this observation of Hon'ble Apex
Court as well as on perusal of the other two judgements of
Hon'ble High Court, it is clear that merely on this ground, the
evidence which has come up on record during the entire trial,
cannot be thrown overboard. Facts of each case has to be
looked into, so as to see whether any miscarriage of justice, has
resulted due to this lapse.
98. Perusal of the cross examination of PW48
makes it evident that he pleaded his ignorance about the time
when FIR was delivered to Ld.Special Judge. Records of this
case, however, reveals that a copy of FIR registered in this
case, was sent for the then Ld.Special Judge as a copy thereof
is marked for Ld. Special Judge, CBI.
99. Admittedly, there is no endorsement of the
date on which Ld.Special Judge has received the same.
However, that too in my mind, cannot be a ground to throttle
the entire prosecution case and to throw overboard the
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substantive evidence, which has come up on record.
100. Though I do agree with Ld.Defence Counsel
that this is an important provision of Law, which the
investigating agency is supposed to religiously follow, but
considering the present facts and circumstances, much
material bearing cannot be attached to the same, so as to
make it detrimental to the prosecution case. In view thereof,
this contention of Ld.Defence Counsel is turned down.
101. Having dealt with the contentions urged by
Ld.Defence Counsels on behalf of the accused persons on purely
legal grounds, I shall now delve upon to consider the
arguments raised involving mixed question of "Law and
Facts".
102. Leading a twopronged attack on the prosecution case, Sh.N.K.Sharma, Sh.Dharmish Thanai, C.C.No: 09 / 2011 Page No.67 of 211 Judgement in the matter of:-
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Sh.S.P.Aggarwal, Advocates, Ld.Defence Counsels appearing on behalf of the public servants, contended that the provisions of Section 19 of Prevention of Corruption Act is a mandatory provision and the Court does not have the jurisdiction to take cognizance when the "sanction" under this provision is granted in mechanical manner and without application of mind and that too, by an authority which was not competent to grant the same.
103. Justifying the attack on sanction at the fag end of the trial, Ld.Defence Counsels relying upon the law laid down by Hon'ble Apex Court in case titled "Prakash Singh Badal & Anr. vs. State of Punjab" reported as (2007) 1 SCC Page 1 ; contended that the question of absence of sanction can be raised at the inception or threshold, whereas in cases, where sanction order exists but its legality and validity is put in question, then such issue can be raised in the course of trial. It is submitted that as the validity of sanction order is assailed on diverse grounds, like incompetence of the C.C.No: 09 / 2011 Page No.68 of 211 Judgement in the matter of:-
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sanctioning authority to grant sanction and non application of mind, therefore the same is being raised at this stage.
104. Ld.Defence Counsels contended that the sanction order passed by PW16 Rakesh Mehta against accused Rajesh Sharma, O.P.Tomar, R.S.Bharti, J.P.Singh, C.S.Mangla, Manoj Kumar, Baljeet Singh, O.P.Saroha and Gurcharan Singh Ex.PW.16/A; is bad in law on two grounds. Firstly, on the ground that PW16 Rakesh Mehta, was not the competent authority to pass the sanction order qua accused Rajesh Sharma, therefore on that count itself, the matter should not proceed further against the accused public servants.
105. Second contention raised by Ld.Defence Counsels assailing the sanction order passed by the sanctioning authority, is that the same is invalid and bad in law as the same have been passed in a mechanical manner and without application of mind. It is contended that the sanction order on the face of it, reveals factually incorrect statement which leads C.C.No: 09 / 2011 Page No.69 of 211 Judgement in the matter of:-
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to the inference of nonapplication of mind, on the part of the sanctioning authority.
106. I have considered the submissions advanced on this aspect and have considered the relevant provisions of law in the light of the precedents relied upon by Ld.Defence Counsels to substantiate their contentions..
107. For administration of Criminal Justice System, an onerous duty is cast on the Courts, to effectively tackle and control the endemic of offences, so as to prevent the society from drifting towards savage society. A balanced approach is required to be adopted by the courts giving strict interpretation to the Clauses of the Penal Provisions and simultaneously being mindful of the inviolable Constitutional Rights granted to the accused, so as to ensure fair trial.
108. Subjecting any individual to undergo "criminal trial" is an encroachment / restriction on his fundamental right C.C.No: 09 / 2011 Page No.70 of 211 Judgement in the matter of:-
CC No. 09 / 11.
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to "life and liberty". As per the constitutional mandate enshrined in Article 21 of Constitution of India, granted to each and every citizen of the country, no one can be deprived of his right to life and liberty, except by the due "process of law". Thus, if anyone accused of any offence, is to be subjected to criminal trial, then the same has to be in conformity to the procedures established by law. As whenever a particular procedure is prescribed by law, then all other procedures to do the same are proscribed.
109. Public servants in whatever capacities they are holding their offices, are supposed to give effect to the objects for which their organization is functioning, so that the benefits arising out of their actions, should benefit their country in general and their organization in particular. To achieve the object, for which the policies and plans of the organization are put in place, all the public servants are expected to discharge their functions with utmost propriety and all fairness. Experience however has revealed that many public C.C.No: 09 / 2011 Page No.71 of 211 Judgement in the matter of:-
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servants, instead of using their good offices for the public good, misuse the same for their personal benefits by indulging into corrupt and improper practices.
110. Legislature in its wisdom in order to curb such corrupt and improper practices had brought "Prevention of Corruption Act, 1988" on the Statute Book for not only, punishing those who had violated the very oath of honesty and sincerity with which they had assumed their office and indulged in 'corrupt practices', but also to deter the others from treading the path of dishonesty.
111. Being aware of the fact that some of the honest public servants may be dragged into vexatious and uncalled for prosecution, the Legislature had in Section19 of Prevention of Corruption Act, incorporated a "saviour clause" so as to protect them and to encourage them to continue with the good work. But for this clause, the government process would become 'static' as public servants would hesitate to take even C.C.No: 09 / 2011 Page No.72 of 211 Judgement in the matter of:-
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the most honest, bonafide and genuine decisions fearing harassment from frivolous and uncalled for allegations.
112. To balance these two conflicting interests, one of which is to give effect to the very object for which Prevention of Corruption Act was brought on the Statute Book to deal with the guilty sternly and on the other hand, to give effect to the shield provided by the Legislature to protect honest and diligent public servants from vexatious and uncalled for prosecution, the onerous duty has been placed on the Courts, which are an important cog in the wheels of Administration of Justice. The courts are obligated to strike balance between these two conflicting interests in such a manner, so that majesty of "Rule of Law" is neither undermined nor defeated.
113. Before proceeding to advert upon the submissions advanced, it is pertinent to make mention of Section 19 of Prevention of Corruption Act, which is reproduced as under: C.C.No: 09 / 2011 Page No.73 of 211 Judgement in the matter of:-
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(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
SECTION 19 : PREVIOUS SANCTION NECESSARY FOR PROSECUTION :
(1) No Court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government ;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government ;
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under subsection (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.C.C.No: 09 / 2011 Page No.74 of 211
Judgement in the matter of:-
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(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) :
(a) No finding, sentence or order passed by a Special judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under subsection (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby ;
(b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in failure of justice;
(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under subsection (3) whether the absence thereof, or any error, omission or irregularity in, such sanction has occasioned or resulted in failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.C.C.No: 09 / 2011 Page No.75 of 211
Judgement in the matter of:-
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(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
Explanation - For the purposes of this Section,
(a) error includes competency of the authority to grant sanction ;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.
114. The object and character of this provision is evidently emanating from the words used in the Section by the Legislature : "No Court shall take cognizance of such offence, except with the previous sanction". Use of words "No" and "shall" makes it abundantly clear that the bar on the exercise of power of the Court to take cognizance of an offence is absolute and complete. As per Black's Law Dictionary, the word "cognizance" means jurisdiction or the exercise of jurisdiction. In common parlance, it means "taking notice of". In view thereof, in absence of the sanction, the court is precluded from even taking notice of the offence or exercising C.C.No: 09 / 2011 Page No.76 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
its jurisdiction, in respect of a public servant.
115. Thus, the provision has been imparted a mandatory character and has been held so by various authoritative pronouncements by Hon'ble Apex Court. While holding grant of sanction to be a prerequisite or sinequanon for taking cognizance, regard is to be had to the fact that it can be a shield to discourage vexatious prosecution of innocent public servant, but it should not be permitted to be used as a weapon against the prosecution by the guilty.
116. The protection given by the Legislature is to be extended to the extent provided therein and it cannot and should not be stretched elastically to cover those, who are not intended by the Legislature to be under the protective umbrella. As to my mind the Legislature by enacting any provision in the Act, which prohibits the taking of cognizance of offence by a Court, unless certain conditions are complied with, did not purport to condone the offence. Thus, such provision is C.C.No: 09 / 2011 Page No.77 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
to be construed on the basis of words used therein, without importing the words, which are not there.
117. In the backdrop of above, I shall consider the arguments advanced by Ld.Defence Counsels raised by them to challenge the authenticity of the sanction order Ex.PW.16/A passed by Sh.Rakesh Mehta, the then Commissioner MCD with respect to accused Rajesh Sharma, O.P.Tomar, R.S.Bharti, J.P.Singh, C.S.Mangla, Manoj Kumar, Baljeet Singh, O.P.Saroha and Gurcharan Singh, the public servants.
118. Firstly, I shall consider the arguments advanced on the aspect of "competence of the sanctioning authority" to pass the sanction order.
119. The first contention urged by Ld.Defence Counsels was that the post of "Executive Engineer" ie. of accused Rajesh Sharma is "Category A" Post, whereas post of C.C.No: 09 / 2011 Page No.78 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
other public servants falls under "Category B" and "Category C" posts, wherein the competent authority to grant sanction is the Corporation and Commissioner respectively, therefore the sanction qua accused Rajesh Sharma could have been granted by the Corporation only, but in the present case it has been granted by Commissioner, who was not competent to pass the sanction order, therefore the sanction order itself being invalid, would make the proceeding nonest, as no cognizance could have been taken at the first place against the accused persons.
120. The question of competence of the "appointing / sanctioning authority" came up for consideration before Hon'ble Supreme Court in case titled "Mohd.Iqbal Ahmed Vs. State of Andhra Pradesh", reported as AIR 1979 SC 677, wherein it was held that :
"... The Legislature advisedly conferred power on the Authorities competent to remove the public servant from office to grant sanction for the obvious reason that the said Authority alone would be competent C.C.No: 09 / 2011 Page No.79 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
when facts and evidence are placed before him to judge whether a serious offence is committed or the prosecution is either frivolous or speculative. That Authority alone would be competent to judge whether on the facts alleged, there has been abuse or misuse of office held by the public servant. That authority would be in a position to know what are the powers conferred on the office which the public servant holds, how that power could be abused for corrupt motives or whether prima facie it has been so done. That Competent Authority alone would know the nature and functions discharged by the public servant holding the office and whether the same has been abused or misused. It is the vertical hierarchy between the Authority competent to remove the public servant from that office and nature of the office held by the public servant against whom sanction is sought, which would indicate a hierarchy and which would, therefore, permit inference of knowledge about the functions and duties of office and its misuse or abuse by the public servant. That is why the Legislature clearly provided that the authority which would be competent to grant sanction is the authority which is entitled to remove from service the public servant against whom sanction is sought".
121. It is admitted position on record that the Post of Executive Engineer ie. of accused no.2 Rajesh Sharma, is a Category A Post, whereas the post of Assistant Engineer, C.C.No: 09 / 2011 Page No.80 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
Junior Engineer and the Officers from the Accounts Department ie. the remaining accused public servants, are Category B and Category C Posts.
122. Ld.Defence Counsels relying upon Regulation 7 of Delhi Municipal Corporation Service (Control and Appeal) Regulations, 1959 and the Schedule thereunder, which was notified had contended that for Category A Post, the competent authority to remove him from services is the Corporation whereas, for Category B & C posts, it is the Commissioner. It is the argument of Ld.Defence Counsels that with respect to Category A Post, instead of Corporation, the sanction order Ex.PW.16/A was wrongly passed by the Commissioner.
123. I have perused the relevant Regulation 7 along with the Schedule thereunder, relied upon by Ld.Defence Counsels. It is apparent on perusal of the same that the same was passed, promulgated and notified under the C.C.No: 09 / 2011 Page No.81 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
relevant provisions of DMC Act 1957, prior to the year 1993.
With effect from 01.10.1993, DMC Act was amended with respect to the powers of appointment of different officers as well as with respect to the disciplinary authority. In view thereof, the changes / amendments made in the Statute by Legislature are required to be considered for the purposes of appreciating the arguments advanced by Ld.Defence Counsels in this regard.
124. In terms of Section 19(1) (c) of the Act, the sanction for prosecution has to be granted by an authority competent to remove the person from his office. Article 311(1) of Constitution of India, in no uncertain terms prescribes that the authority competent to remove a person from his office cannot be subordinate in rank, to the appointing authority.
C.C.No: 09 / 2011 Page No.82 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
125. In order to find out the appointing authority of the accused public servants, it is pertinent to refer to Rule 2 of CCS CCA Rules, which is reproduced as under : RULE 2 OF CCS CCA RULES : "Appointing authority", in relation to a Government Servant, means
(i) . . .
(ii) the authority empowered to make appointments to the post which the Government servant for the time being holds ;
(iii) . . .
(iv) . . .
126. In terms of these Rules and to ascertain the appointing authority with respect to the accused public servants, more particularly with respect to the Post of Executive Engineer, a "Category A" Post, I have perused the relevant provisions of Delhi Municipal Corporation Act 1957 as amended in 1993.
C.C.No: 09 / 2011 Page No.83 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
127. By virtue of Section 89 of DMC Act 1957 as amended in 1993, the Corporation was made "appointing authority" of certain officers mentioned therein, which is reproduced as under : SECTION 89 : APPOINTMENT OF CERTAIN OFFICERS : (1) A Corporation shall appoint suitable persons to be respectively the Municipal Engineer, the Municipal Health Officer, the Education Officer, the Municipal Chief Accountant, the Municipal Secretary and the Municipal Chief Auditor and may appoint one or more Deputy Commissioners and such other officer or officers of a status equivalent to or higher than the status of any of the officers specified earlier in this subsection as Corporation may deem fit on such monthly salaries and such allowances, if any, as may be fixed by a Corporation.
(2) . . .
128. Further, the Commissioner was empowered to make appointment with respect to Municipal Officers by virtue C.C.No: 09 / 2011 Page No.84 of 211 Judgement in the matter of:-
CC No. 09 / 11.
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of Section 92 of DMC Act, 1957 with effect from 01.10.1993.
The same reads as under : SECTION 92 : POWER TO MAKE APPOINTMENTS :
(1) Subject to the provisions of section 89, the power of the appointing municipal officers and other municipal employees whether temporary or permanent shall vest in the Commissioner :
(2) . . .
129. Bare perusal of Section 92 makes it apparent that the same is subject to the provision of Section 89 of the Act. Section 89 empowers the Corporation to appoint Municipal Engineer and other officers and also, Deputy Commissioner and also such other officers of a status equivalent to, or higher than that status. Whereas, as per the Section 92, a Commissioner is empowered to appoint Municipal Officers and other municipal employees. Both Municipal Engineer, Deputy Commissioner and other officers equivalent to the rank of Deputy Commissioner, whose C.C.No: 09 / 2011 Page No.85 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
appointing authority is the Corporation by virtue of Section 89 of the Act, and Municipal Officer whose appointing authority as per section 92, is the Commissioner are "Category A" post as per the Schedule of Establishment of the Corporation.
Meaning thereby that after the amendment of 1993, the appointing authority with respect to different posts in Category A, were different ie. for Deputy Commissioner and Municipal Engineer which as per the Schedule of Establishment is EngineerinChief, was the Corporation and for Municipal Officers which includes the post of Executive Engineer, the appointing authority, is the Commissioner.
130. Further, Section 59 of DMC Act 1957, more particularly subclause (d) thereof, which has been inserted by way of the amendment act w.e.f 01.10.1993, makes the Commissioner disciplinary authority in relation to the municipal officers. The same reads as under : C.C.No: 09 / 2011 Page No.86 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
SECTION 59 :
FUNCTIONS OF THE COMMISSIONER Save as otherwise provided in this Act, entire executive power for the purpose of carrying out the provisions of this Act and of any other Act for the time being in force which confers, any power or imposes any duty on a Corporation shall vest in the Commissioner who shall also
(a) exercise all the powers and perform all the duties specifically conferred or imposed upon him by this Act or by any other law for the time being in force;
(b) . . .
(c) . . .
(d) Subject to any regulation that may be made in this behalf, be the disciplinary authority in relation to all municipal officers and other municipal employees.
(emphasis supplied)
131. It is apparent on bare perusal of Section 59 (d) that Commissioner has been made disciplinary authority, with respect to all Municipal Officers. This section when is read along with Section 92, makes it apparent that Legislature has made the Commissioner disciplinary authority with respect to the Municipal Officers, of which he has been made the appointing authority.
C.C.No: 09 / 2011 Page No.87 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
132. It is clear on joint reading of the provisions of Section 89, Section 92 and Section 59(d), that after the amendment in the Act w.e.f 01.10.1993, the appointing authority with respect to the officers of the rank of Deputy Commissioner and above, as well as Municipal Engineer which is Chief Engineer, is the Corporation, whereas appointing authority with respect to Municipal Officers which includes Executive Engineer is the Commissioner. That being the situation, Legislature has made Commissioner disciplinary authority with respect to Municipal Officers by virtue of Section 59 (d) inserted in the Act with effect from 01.10.1993. Legislature has deliberately used the words "Municipal Officers" in section 59 (d) and not "Municipal Engineers" in view of the fact that for Municipal Engineer, Corporation was made the appointing authority by virtue of Section 89 of the Delhi Municipal Corporation Act. C.C.No: 09 / 2011 Page No.88 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
133. It is contended by Ld.Defence Counsels that Section 59 (d) is subject to Regulation 7 of Delhi Municipal Corporation Service (Control and Appeal) Regulations, 1959. I do not find any merits in this contention of Ld.Defence Counsels, in view of the clear wordings of Section 59 (d). The same states "subject to any regulation that may be made in this behalf" (emphasis supplied). The words used ie. "may be made" makes it explicit that the Legislature intends to give it a prospective effect. By no stretch of imagination, these words can be interpreted to make this power given to the Commissioner , subject to any previous regulation.
134. Having regards to these facts and circumstances and considering the fact that no regulation in this regard has been made after 01.10.1993 ; I am of the considered opinion that the Commissioner being the "appointing authority" with respect to the Executive Engineer, is also the disciplinary authority and thus, was competent to C.C.No: 09 / 2011 Page No.89 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
grant sanction.
135. Consequently, the argument advanced by Ld.Defence Counsel that PW16 Rakesh Mehta was not empowered to grant the sanction order qua Rajesh Sharma, stands rejected.
136. Having turned down the first contentions of Ld.Defence Counsels regarding noncompetence of the Sanctioning Authority as claimed by them, I shall now advert to decide the second facet of their contention,challenging the sanction order, which as per them was passed without application of mind.
137. It is contended by Ld.Defence Counsels appearing on behalf of the public servants that the sanctioning authority i.e. PW16 Rakesh Mehta, had got the draft sanction order typed and signed the same which in itself shows non C.C.No: 09 / 2011 Page No.90 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
application of mind. It is contended by Sh.Dharmesh Thanai and Sh.N.K.Sharma, Ld.Advocates that the orders passed by the sanctioning authority, as well as the draft sanction order is, verbetim word by word. It is contended by Ld.Defence Counsels that there was no material available with the sanctioning authority, to state the facts which have been stated in the sanction order as during the course of his cross examination on being asked about the documents submitted to him and referred by him PW16, have given evasive replies.
138. It is submitted by Ld.Defence Counsels that, had the sanctioning authority perused and considered the statements of PW12 Deepak Mukhopadhyay and PW13 H.D.Seekri, recorded by IO under section 161 Cr.P.C, then they would not have passed the sanction order. It is contended that despite this, the sanction orders were passed which in itself reveals nonapplication of mind. It is contended that the sanction order be held as "bad in law" and the proceedings be dropped. To substantiate their contentions, Ld.Defence C.C.No: 09 / 2011 Page No.91 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
Counsels had relied upon the judgement of Hon'ble Apex Court in Ashok Kumar Aggarwal's Case (supra).
139. I have given my thoughtful consideration to the rival contentions advanced and have perused the relevant provisions of law, in the light of the interpretations given to it by Hon'ble Superior Courts.
140. There is no doubt that this provision has been brought on the Statute Book, by the legislature to protect the honest public servants from any vexatious prosecution.
However, this protection by no stretch of imagination can be regarded as a shield for those who indulge in illegal activities.
141. It has been held by Hon'ble Apex Court time and again that the Court where the question of validity of sanction is raised, has to see as to whether the sanctioning authority did consider all the evidence collected by the investigating agency ie. oral as well as documentary. C.C.No: 09 / 2011 Page No.92 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
142. Hon'ble Apex Court in a recent case titled "State of Maharashtra Vs. Mahesh G.Jain" reported as Criminal Appeal no.2345 of 2009 decided on 28.05.2013 had aptly summed up the principles and guidelines which are required to be followed to decide the question which inundates the Trial Court, challenging the sanction order.
143. Hon'ble Apex Court in this judgement had considered all the previous laws laid down by it, including the cases referred to and relied upon by Ld.Defence Counsel mentioned hereinabove.
144. Hon'ble Apex Court after appreciating the earlier precedents on the subject, had culled out the guiding principles in Para 13 of its Judgement, which are reproduced as under :
(a) It is incumbent on the prosecution to prove that valid sanction has been granted by Sanctioning Authority after being satisfied that a C.C.No: 09 / 2011 Page No.93 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
case for sanction has been made out.
(b) The Sanction Order may expressly show that the sanctioning authority has perused the material placed before him and after consideration of the circumstances, has granted sanction for prosecution.
(c) The prosecution may prove by adducing the evidence that the material was placed before the Sanctioning Authority and his satisfaction was arrived at, upon perusal of the material placed before him.
(d) Grant of Sanction is only an
administrative function and the
sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
(e) The adequacy of material placed before the Sanctioning Authority cannot be gone into, by the Court, as it does not sit in Appeal over the Sanction order.
(f) If the sanctioning authority has perused all the material placed before him and some of them have not been proved, that would not vitiate the order of sanction.C.C.No: 09 / 2011 Page No.94 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
(g) The order of sanction is a pre requisite, as it is intended to provide a safeguard to the 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.
..... (emphasis supplied).
145. In view of these guiding principles, more particularly the principle mentioned at Point (d) (e) (f) and
(g) above, the adequacy of the material placed before the Sanctioning authority is not required to be gone into, as this Court is not sitting in appeal over the sanction order.
146. The discretion whether to grant or not to grant the sanction order lies with the sanctioning authority and it is the subjective opinion of the said administrative authority, which it has to arrive, on the basis of material placed before it. C.C.No: 09 / 2011 Page No.95 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
147. The sanctioning authority was under an obligation to see the material placed before it by CBI, collected during the course of investigations and to arrive at a conclusion as to whether the same is sufficient and requires grant of sanction for prosecution of accused persons or not.
148. In view thereof, it is to be seen as to whether the complete record of the investigations, including oral and documentary evidence collected was or was not placed before the sanctioning authority.
149. It is apparent on bare perusal of the examination in chief of PW16 that the complete record was placed before him which included the oral and documentary evidence collected during the course of investigations. Merely, because this witness during the course of his cross examination had stated that he does not remember to have seen and perused the documents, including the statement of witnesses or had called for the records from MCD (Vigilance Branch) C.C.No: 09 / 2011 Page No.96 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
regarding accused persons before passing the sanction order, cannot lead to any such inference that these documents were never produced before him or were not seen by him. Noone is expected to remember all the documents gone through by him after lapse of a decade's time.
150. The precedent relied upon by Ld.Defence Counsel in Ashok Kumar Aggarwal's Case (supra), does not come to their rescue, as in said case, the sanctioning authority by way of an affidavit, had stated that only the SP's Report along with list of documents and list of witnesses was submitted before it. That is not the situation in the case in hand, where the sanctioning authorities in their deposition have categorically stated to have perused all the material collected by the investigating agency which was put up before them.
151. So far as wording of sanction order is concerned, as per the settled propositions of law, laid down by C.C.No: 09 / 2011 Page No.97 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
Hon'ble Apex Court in a catena of decisions and reiterated in above referred decision of Mahesh G.Jain (supra), that there is no prescribed format or language for the sanctioning authority to pass the sanction order. It solely is the discretion of the sanctioning authority how to word the sanction order.
Submission of draft sanction order by the investigating agency with the competent authority was never held as "improper". It is only for the sanctioning authority first to apply its mind and if satisfied for granting the sanction, it can take help and assistance from the draft sanction order.
152. Even otherwise, it has been held by Hon'ble High Court of Bombay in case titled "Bhagwan Jathya Bhoir Vs. State of Maharashtra" reported as 1992 Cr.L.J. 1144(Bombay), that the procedure adopted by the investigating agency in forwarding a draft sanction order to the sanctioning authority after summarising all evidence and requesting him to examine the record and to accord sanction if satisfied, is not improper.
C.C.No: 09 / 2011 Page No.98 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
153. Further, in another case titled "K.Nachimuthu Vs. State" reported as 1994 Cr.L.J 2760, Hon'ble High Court of Madras had held that a sanction order cannot be assailed for nonapplication of mind when the sanctioning authority had adopted the draft sent to them by the investigating agency, only after through scrutiny of the facts constituting the offence and then signing it.
154. The other contention of Ld.Defence Counsels that had the sanctioning authority considered statements of PW12 and PW13 recorded by the investigating agency under section 161 Cr.P.C, then it would not have granted the sanction, to my mind is also devoid of any merits. As the sanctioning authority is not supposed to judge and adjudicate the entire evidence on the touchstone of its evidentiary values and other aspects of law. The sanctioning authority on the basis of available material before it, is required to satisfy itself for grant or refusal of sanction for prosecution, which in this case the sanctioning authority did, exercise and after satisfying C.C.No: 09 / 2011 Page No.99 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
itself opined that material is sufficient for grant of sanction for prosecution. Hence the sanction orders.
155. Even otherwise, the Legislature in order to stop unjustified claims raised on behalf of public servants to derive undue advantage of requirement of sanction have incorporated Section 19(3) of Prevention of Corruption Act which if read with section 465 of Cr.P.C, makes it clear that any error, omission or irregularity in the grant of sanction will not affect any finding, sentence or order passed by a competent Court, unless in the opinion of the Court, a failure of justice has been occasioned.
156. Hon'ble Apex Court in a recent case titled "State of Bihar & Ors. vs. Rajmangal Ram" in Criminal Appeal No.708 of 2014, arising out of SLP (Crl.) No.8013 of 2012, decided on 31.03.2014 ; has held that the Sanction Order cannot be held to be invalid and proceedings cannot be C.C.No: 09 / 2011 Page No.100 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
interdicted without giving any finding to the effect that a failure of justice as a result thereof, has occasioned.
157. Merely because any error or irregularity has occurred in the sanction order, the same is not to be considered fatal, unless it results in failure of justice.
158. In the present case, as we are at the fagend of the trial and accused public servants have already undergone the trial, further I have not found any error or omission in the sanction orders passed qua them by the sanctioning authorities resulting in any failure of justice.
159. Thus, I do not find any merits in the contentions advanced by Ld.Defence Counsels to challenge the authenticity of the sanction order Ex.PW.16/A, which to my mind has been passed by the sanctioning authority with due & proper application of mind.
C.C.No: 09 / 2011 Page No.101 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
160. Having held that the sanction for prosecution granted against the public servants was valid, I shall now delve upon the contentions of Ld.Defence Counsels on factual aspects, visavis the necessary ingredients of the offences, with which the accused persons were charged.
161. This has brought me to the most pivotal part of the prosecution case ie. Conspiracy, which is the primary charge against the accused persons, being axis around which revolves the other charges. As per the case of prosecution, the officers of MCD being public servants, had entered into a criminal conspiracy with the Contractor, object of which was to cheat MCD. It is contended by Ld.Prosecutor that the public servants knowing or having reasons to believe the invoices to be forged ones, have facilitated the submission of same by the contractor to them, on the basis of which they made relevant entries in their records, which ultimately led to release of payment by MCD to the contractor and thus they have caused pecuniary advantage to him and corresponding wrongful loss to C.C.No: 09 / 2011 Page No.102 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
MCD.
162. Ld.Special Public Prosecutor made an endeavour to invoke Section 10 of Indian Evidence Act. He, in order to buttress his arguments that all the conspirators are to be made constructively liable for the substantive offences committed, pursuant to the conspiracy on the basis of the "Principle of Agency". He contended that all the public servants had entered into a conspiracy with the contractor, therefore the acts done by the contractor, pursuant to the agreement is in contemplation of law, committed by each one of them, therefore all of them should be held responsible and liable for the same.
163. I have considered the submissions advanced by Ld.Public Prosecutor. In order to appreciate the same, it is pertinent to make mention of Section 10 of Indian Evidence Act, which reads as under : C.C.No: 09 / 2011 Page No.103 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
SECTION 10 THINGS SAID OR DONE BY CONSPIRATOR IN REFERENCE TO COMMON DESIGN - Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.
164. Bare perusal of this Section makes it evident that there is no such deeming provision in it, as has been contended by Ld.Prosecutor. No doubt, Section 10 rests on the 'Principle of Agency', but it lays down only a rule of relevancy. As per the provisions of this Section, anything done or said by one of the conspirators in reference to the common intention becomes "relevant fact" as against each of the conspirators, to prove two things :
(i) Existence of the conspiracy ; and
(ii) That, they were party to this conspiracy. C.C.No: 09 / 2011 Page No.104 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
165. This has been held so by Privy Counsel in case titled "Mirza Akbar vs. King Emperor" reported as AIR 1940 PC 176. This interpretation has been followed by Hon'ble Apex Court in catena of decisions.
166. Hon'ble Mr.Justice Jagannath Shetty had analyzed this Section in case titled "Kehar Singh & Ors. v/s State (Delhi Administration)" reported as 1988 (3) SCC 609, as under : "From an analysis of the section, it will be seen that Section 10 will come into play only when the court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence. There should be, in other words, a prima facie evidence that the person was a party to the conspiracy before his acts can be used against his coconspirator. One such prima facie evidence exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was first entertained, is relevant against the others. It is relevant not only for the purpose of C.C.No: 09 / 2011 Page No.105 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
proving the existence of conspiracy, but also for proving that the other person was a party to it."
167. In view thereof, distinction was made between the conspiracy and offence committed, pursuant to the conspiracy. It is only in order to prove the existence of conspiracy and parties to the conspiracy that this rule of evidence, can be put in service.
"Conspiracy to commit a crime itself is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence to which individual offenders are liable to punishment, independent of the conspiracy."
168. In view thereof, I do not find any merits in the contentions advanced by Ld.Public Prosecutor as the "Theory of Agency" cannot be extended thus far, that is to say, to hold all the conspirators guilty of actual offences committed in execution of common design, if such offences were committed by one of them, without participation of others. C.C.No: 09 / 2011 Page No.106 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
169. Whether or not, conspirators will be liable for substantive offence other than the conspiracy and if so to what extent, has to be proved on record by the prosecution on the basis of evidence which, I shall be adverting to hereinafter.
170. However, before going that far, I would hasten to add that prosecution has first to establish that all the accused persons facing trial, were in fact party to the alleged conspiracy with which they have been charged.
171. In an attempt to demolish the prosecution case, Sh.N.K.Sharma, Sh.Dharmish Thanai, Sh.S.P.Aggarwal, Advocates, Ld.Defence Counsels vociferously contended during the course of arguments, that there is nothing on record brought by the prosecution during the course of evidence, from which it can be inferred that there was any meeting of mind between the public servants and the contractor. It is further submitted by Ld.Defence Counsels of all the accused persons that as the conspiracy can only be established on the basis of C.C.No: 09 / 2011 Page No.107 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
circumstantial evidence. However, the circumstances proved should be such that they must form a chain of events, leading to a irrepressible conclusion about guilt of the accused.
172. In support of their contentions, Ld.Defence Counsels had relied upon the law laid down in cases titled as under : (i )"Kehar Singh & Ors. vs. State" (supra) ;
(ii) "K.R.Purushotnaman vs. State of Kerala"
reported as 2005 (3) JCC (SC) 1847 ;
(iii) "Baldev Singh vs. State of Punjab";
reported as 2009 (3) SCC (CRI.) 66.
173. I have considered the submissions advanced and have perused the law laid down by Hon'ble Apex Court in the precedents relied upon by Ld.Defence Counsels. There is no denying the fact that Hon'ble Apex Court while holding that the offence of conspiracy is committed in secrecy and can be proved only by circumstantial evidence has held that these C.C.No: 09 / 2011 Page No.108 of 211 Judgement in the matter of:-
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circumstances should be proved, beyond reasonable doubt, leading to the guilt of the accused.
174. Section 120A IPC defines "criminal conspiracy". Accordingly 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 as "criminal conspiracy".
175. In view of this definition, the gist of the offence is "an agreement to break the law". Parties to such an agreement are guilty of criminal conspiracy, though the illegal act agreed upon by them to be done, has not or could not be done. It is not necessary that all the parties to such an agreement should agree to do a single illegal act. It may comprise of commission of a number of acts. It is not necessary that all the conspirators must know each and every detail of the conspiracy.
C.C.No: 09 / 2011 Page No.109 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
176. Conspiracy is seldom an open affair. Its existence and objects can only be deduced from circumstances of the case and conduct of the accused, who are party to such conspiracy.
177. As Conspiracy has to be and can only be inferred from the physical manifestation of conduct of the conspirators / accused. Thus, to deduce actual meeting of minds amongst the accused person to find out transmission of thoughts, the actual words used by them during communication, are to be considered.
178. The conduct of the conspirators / accused are to be deciphered not only from the actual words spoken by them but also from their body language, mannerism and behaviour by which they intervene in the conversation taking place between the complainant and coaccused, as their state of mind has to be inferred on the basis of their conduct. C.C.No: 09 / 2011 Page No.110 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
179. Hon'ble Apex Court in case titled "V.C.Shukla vs. State" reported as 1980 (2) SCC ; had held that in most cases it will be difficult to get direct evidence of the crime, but conspiracy can be inferred even from circumstances giving rise to a conclusive or irrepressible inference of an agreement between two or more persons, committing an offence.
180. Hon'ble Apex Court in case titled "Noor Mohd. Yusuf Momin vs. State of Maharashtra" reported as AIR 1971 SC 885, has held : "...in 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."
181. For the purposes of considering the conduct of the accused persons so as to deduce about his complicity with the conspiracy, a "rule of caution" has been laid down by Privy Counsel in case reported as AIR 1954 PC 140 that : C.C.No: 09 / 2011 Page No.111 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
"In a joint trial care must be taken to separate the admissible evidence against each accused and the judicial mind should not be allowed to be influenced by evidence admissible only against others".
182. In case titled "Alvin Krumlewitch v. United States of America" reported as (93 L.Ed. 790) ; it has been held by Justice Jackson that : "codefendant in a conspiracy trial occupies an uneasy seat" and "it is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together."
183. These words of caution were reiterated by Hon'ble Apex Court speaking through Hon'ble Mr.Justice D.P.Wadhwa in case titled "State vs. Nalini" reported as 1999 (5) SCC 253 ; that : C.C.No: 09 / 2011 Page No.112 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
"There is a need to guard against prejudice being caused to the accused on account of the joint trial with other conspirators. The learned Judge observed that "there is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy".
"It has been further held that criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy".
184. Hon'ble Apex Court in case titled "Esher Singh Vs. State of A.P." reported as 2004 (11) SCC 585 has held as under;
"A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy. The circumstances before, during and after the occurrence can be proved to decide about the complicity of the accused".C.C.No: 09 / 2011 Page No.113 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
185. Being aware of the fact that for the purposes of appreciating the evidence on record with respect to the allegations of conspiracy, the circumstances in which the accused acted, their actions and mannerism are required to be considered, which I shall look into, mindful of the words of caution laid down by Hon'ble Apex Court in above referred precedents.
186. Before adverting to the evidence on record and considering that the accused public servants are also charged with "criminal misconduct" under section 13(1) (d) of Prevention of Corruption Act, I am of the opinion that the evidence cannot be appreciated in isolation qua the charge of conspiracy. As the alleged allegations of "criminal misconduct"
are also flowing out of inextricably woven facts leading to the allegations of conspiracy, I deem it appropriate to consider this contention raised on behalf of prosecution and defence, alongside the arguments with respect to conspiracy.C.C.No: 09 / 2011 Page No.114 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
187. It is contended by Ld.Public Prosecutor that the actions and inactions on the part of public servants in accepting the invoices from the contractor, knowing the same to be forged one and making their records, pursuant to those invoices goes on to establish that the same amounts to "criminal misconduct". This contention of Ld.Public Prosecutor was sought to be countered by Ld.Defence Counsels stating that public servants acted in discharge of their official duties as they were supposed to receive the invoice only for the purposes of checking the quality and quantity of bitumen brought by the contractor at the plant and it was neither their duty to verify the genuineness of the invoice nor they had any means to verify the same, therefore by no stretch of imagination their conduct can be termed as "criminal misconduct".
188. I have considered the submissions advanced on this aspect of Ld.Public Prosecutor as well as Ld.Defence Counsels.
C.C.No: 09 / 2011 Page No.115 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
189. The word "misconduct" has been defined in Black's Law Dictionary, which reads as under: "The transgression of some established rule of action, dereliction from duty, unlawful behaviour, improper or wrong behaviour".
190. The term "misconduct" implies wrong intention and not a mere error of judgement. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or Statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action.
191. Section 13(1) (d) of the Prevention of Corruption Act, does not make any negligence or a plain and simple misconduct on the part of any public servant, a punishable offence. Hon'ble Apex Court in a catena of C.C.No: 09 / 2011 Page No.116 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
judgement while interpreting the provisions of this Act has laid down that a blatant carelessness or gross negligence on the part of any public servant, does not ipsofacto, comes within the domain of this Section. The alleged misconduct on the part of public servant has to be actuated with criminal intent.
The abuse of his position as a public servant in order to come within the mischief of the section must necessarily be dishonest intention on the part of said officer qua the alleged act.
192. The burden to prove affirmatively that accused by abusing his official position had obtained any pecuniary advantage either for himself or for any other person, lies on the prosecution. The prosecution on the basis of evidence led by it on record, has to satisfy the principal that all inculpatory facts, established on record must be inconsistent with the innocence of the accused and incapable of explanation of any other hypothesis than that of his guilt.
C.C.No: 09 / 2011 Page No.117 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
193. In the backdrop of above, the evidence led on record by the prosecution during the course of trial is required to be analyzed, so as to find out as to whether the officers of MCD, the public servants, had conspired or entered into any agreement with the private person ie. accused no.1 Radhey Shyam, for doing an illegal act or doing an act which though is legal by illegal means and if so, whether this act, conduct, action or inaction on the part of public servants was such, which can be termed as "misconduct" and whether the same traverse in the contours of "criminal misconduct" as defined in the Prevention of Corruption Act.
194. In order to ascertain the same, it is pertinent to have a grasp on the duties, which these public servants, being Junior Engineers (Plant) and Junior Engineers (Site), Assistant Engineers, Executive Engineers, Accounts Clerk and Accountant, were required to fulfil and whether they had performed their duties, as was expected from them or whether the actions and omissions of theirs were laden with any C.C.No: 09 / 2011 Page No.118 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
dishonest intention, in order to cause any pecuniary advantage to their coaccused.
195. PW12 Sh.Deepak Mukhopadhyay, Retired as Engineer in Chief from Municipal Corporation of Delhi (MCD), and thus a responsible officer, during the course of his deposition had deposed that the Engineers on the basis of invoices submitted with them by the contractor, were supposed to make entry with respect to the quantum of bitumen brought. He deposed that as bitumen used to arrive at odd hours, therefore it was not the duty of any Municipal Staff to receive bitumen at Plant. During the course of his cross examination, this witness went on to state that Engineers of MCD had no role in obtaining bitumen against the invoice. He further deposed that bitumen used to be brought on plant during night hours, therefore it is not possible for the JEs, or any other engineer to remain present at the plant at that time and it can be off loaded even in absence of JE. He further deposed that on the basis of the invoices delivered to engineers on the following C.C.No: 09 / 2011 Page No.119 of 211 Judgement in the matter of:-
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(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
day, JE (Plant) used to make entries with respect to quantum of bitumen brought.
196. This witness went on to depose that contractor or his representative at the time of offloading the bitumen during night hours, used to hand over the invoice to whosoever is present at the plant and JE (Plant) on the following morning was supposed to check the material. He went on to state that it is the duty of the contractor to procure genuine product against the genuine invoice. He stated that the engineer at site is not required to verify the genuineness of the invoice and is required to make entries with respect to the quantum of bitumen brought at the plant.
197. PW13 Sh.Hari Dev Sikri also deposed that JE (Plant) with respect to dense carpeting, is responsible for quality of material and mix produced at plant. He deposed that he maintains the records pertaining to materials received at the plant during the production of mix. He also deposed that C.C.No: 09 / 2011 Page No.120 of 211 Judgement in the matter of:-
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bitumen tankers generally arrive during the night hours and JE (Plant) on his visit to the plant on the following day, was required to check the quantity and make entries of the quantities received. He deposed that JE (Site) was responsible to lay the mix received by him from the plant. PW13 further deposed that the Engineers of MCD were required to conduct Tests Checks and were also required to maintain bitumen register, Lab Test Register and Tonnage Register etc.
198. This deposition of prosecution witnesses regarding the duties of public servants ie. the officers of MCD involved with dense carpeting of roads is not challenged or disputed on behalf of the accused persons as nothing material was asked from these witnesses regarding duties of the accused public servants. It is pertinent to mention here that this deposition of prosecution witnesses, is also in consonance to the duties of the Engineering Staff mentioned in CPWD Manual, more particularly, under the head Execution of Works in C.C.No: 09 / 2011 Page No.121 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
Clause 5.11.1 of CPWD Manual which reads as under : CLAUSE 5.11.1 It is incumbent upon various officers concerned with the work, i.e., Senior Architect / Architect, Ses/EEs (Civil and Elec.), AE and JE to inspect the works frequently to ensure that the works are being executed in general according to design and specifications laid down for the purpose. Primarily an Officer who records / testchecks the measurements for an item of work will be responsible for the quality, quantity and dimensional accuracy of the work he has measured / test - checked.
199. Further under clause 7.33.2 of CPWD Manual, the duties and responsibilities of the Engineering Staff is laid as under : CLAUSE 7.33.2 Test-check of the Executive Engineers shall also include atleast 10% test - check of the measurements of RCC items so as to ensure structural safety of building.
RESPONSIBILITY OF OFFICERS RECORDING / TEST - CHECKING MEASUREMENTS The officer who records / test - checks the measurements for an item of work will be responsible for the Quality, Quantity and Dimensional accuracy of the work he has measured / testchecked.
C.C.No: 09 / 2011 Page No.122 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
200. In the light of prosecution evidence on record in the form of deposition of PW12 Deepak Mukhopadhyay and PW13 H.D.Sikri coupled with the statement of Investigating Officer PW48 and CPWD Manual, it is established that :
(a) Contractor is required to execute the work as per NIT Conditions and Work Order specifications ;
(b) Contractor is required to procure bitumen from approved oil companies and to produce the invoices as a proof thereof.
(c) JEs (Plant) on the basis of invoices so delivered by the contractor are supposed to make relevant entries in their records, measurement books etc.
(d) JEs (Plant) are required to conduct the test checks with respect to the mix prepared at the plant by contractor and only after finding it to be as per specifications, to let it go to the site.
(e) JEs (Site) are responsible for the quality, quantity and dimensional accuracy of the work to be executed at site by the contractor and to make necessary test checks and record C.C.No: 09 / 2011 Page No.123 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
entries in their registers.
(f) JE(s) then on the basis of recorded entries prepare the bills alongwith the supporting documents.
(g) Assistant Engineers make the overall supervision of work and the entries so recorded by the Junior Engineers.
(h) Bill is then sent to the Accounts Branch for processing along with the invoices and supporting documents.
(i) It is prepared and processed in the Accounts Branch whereafter it is put up before Executive Engineer, who passes the same.
(j) Only thereafter, the payment is released to the contractor.
201. On the basis of deposition of PW4 Dev Raj Arora, PW5 K.K.Kalia, PW39 Manish Rastogi, PW40 Jitender Dawar and PW41 A.K.Mittal, it has come up on record that in the four work orders awarded by MCD to contractor Radhey Shyam, he had submitted 7 invoices ie. C.C.No: 09 / 2011 Page No.124 of 211
Judgement in the matter of:-
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Ex.PW.2/D to Ex.PW.2/I which were forged ones (as held by me hereinafter in para 302 (infra).
202. Prosecution through the deposition of PW4 Dev Raj Arora, PW39 Manish Rastogi, PW40 Jitender Dawar and PW41 A.K.Mittal proved on record that all the documents / files pertaining to work order nos. 316, 317, 320 and 170 Ex.PW.5/G4, Ex.PW.5/A1, Ex.PW.5/E1 and Ex.PW. 5/C1 respectively, were handed over to the investigating agency ie. to PW42 S.K.Kashyap, who conducted preliminary inquiry. PW42 thereafter handed over these documents to the initial IO PW45 Rajesh Chahal vide memo Ex.PW.42/A and the same were considered by PW48 IO Gurmeet Singh.
203. Prosecution through deposition of PW5 Sh.K.K.Kalia and PW44 Sh.Kuldeep Sharma has been able to establish on record that pursuant to receipt of invoices, accused public servants namely Manoj Kumar, Baljeet Singh, C.S.Mangla and J.P.Singh, Junior Engineers, O.P.Tomar and C.C.No: 09 / 2011 Page No.125 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
R.S.Bharti Assistant Engineers and Rajesh Sharma Executive Engineer, Gurucharan Singh Accounts Clerk and O.P.Saroha Accountant; had made relevant entries in the Measurement Book and other registers namely Tonnage Registers, Tack Coat Register, Bitumen Register etc., by identifying their signatures having worked with them.
204. That, thereafter the first running bill with respect to these work order nos.316, 317, 320 and 170 Ex.PW. 5/G4, Ex.PW.5/A1, Ex.PW.5/E1 and Ex.PW.5/C1 respectively, were prepared and processed by these engineers, and were signed by accused O.P.Saroha and Gurcharan Singh, Accountant and Accounts Clerk respectively and were passed by Rajesh Sharma, Executive Engineer.
205. The sole question which requires consideration is, as to whether the public servants had accepted these invoices with the knowledge, that the same are forged ones or they did accept the same unaware of its genuineness. And C.C.No: 09 / 2011 Page No.126 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
whether they made their records influenced by any motive or they did it in plain and simple discharge of their duties.
206. Before proceeding further, to find out answer to this question, it is pertinent to mention here that although during the course of evidence and cross examination of prosecution witnesses, the signatures of these accused persons were not disputed by Ld.Defence Counsels except for and on behalf of accused J.P.Singh, by Sh.N.K.Sharma, Advocate. However, prosecution to discharge its onus had examined witnesses to prove signatures of accused persons on the documents, ie. invoices so received, M.B.Book, Bills etc.
207. From the deposition of the investigating officer coupled with the statement of independent witnesses namely PW37 Gyanesh Jain and PW38 H.G.Kunder ; it is apparent that during the course of investigations, the specimen signatures of the accused persons taken by the Investigating Officer, were sent for comparison to CFSL with the questioned C.C.No: 09 / 2011 Page No.127 of 211 Judgement in the matter of:-
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documents.
208. Prosecution through the deposition of PW43 Sh.T.Joshi and his report Ex.PW.43/H and Ex.PW.43/I, has also proved on record that the questioned documents ie. Measurement Book, the registers as well as the running bills were signed by the accused public persons.
209. Sh.N.K.Sharma, Advocate, during the course of arguments had raised objection that the specimen signatures of these accused persons could not have been taken as per Law and the prescribed procedure, as no permission from the Court was taken by the IO, therefore, the report received from CFSL should not be relied upon. Ld.Defence Counsel in support of his contention has relied upon the law laid down in case titled "Sapan Haldar & Ors. Vs. State", decided by Hon'ble High Court of Delhi bearing Criminal Appeal no. 804/01 on 25.05.2012.
C.C.No: 09 / 2011 Page No.128 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
210. I have considered the the arguments advanced on behalf of the accused public servants and have perused the precedent relied upon by Ld.Defence Counsel. In my considered opinion, the same does not apply to the facts of the present case in view of the judgement of Hon'ble Apex Court in case titled "Rabindra Kumar Pal @ Dara Singh Vs. Republic of India" , reported as 2011 (2) SCC 490.
211. Further, the signatures as well as the entries in these registers were not disputed during the course of cross examination of prosecution witnesses by accused public servants except accused J.P.Singh. So far as other accused public servants are concerned, rather the stand taken by them in their defence, was that all these entries were made by them in discharge of their official duties, under the bonafide belief that the invoices submitted by the contractor are, genuine invoices.C.C.No: 09 / 2011 Page No.129 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
212. Sh.N.K.Sharma, Advocate, had contended that accused J.P.Singh was not posted in the concerned ward at the relevant point of time and thus, he never had any occasion to deal with any of the work orders awarded to accused no.1, more particularly, Work Order No.170 Ex.PW.5/C1.
213. Ld.Defence Counsel relying upon the defence evidence ie. DW1 and DW2 stated that as per the office orders Ex.DW.2/A, Ex.PW.5/DX1 and the relevant dispatch entry with respect to the same Ex.DW.1/A, accused J.P.Singh was not posted in Ward No.11 of Division IV, South Zone, MCD.
214. I have considered the submissions advanced by Ld.Defence Counsel and have also perused the deposition of DW1, DW2 as well as cross examination of PW5 and PW44, conducted by Sh.N.K.Sharma, Ld.Defence Counsel. It is apparent on perusal of cross examination of prosecution witnesses regarding identification of signatures of J.P.Singh on the documents pertaining to the present 4 work orders that no C.C.No: 09 / 2011 Page No.130 of 211 Judgement in the matter of:-
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(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
specific and cogent reply was forthcoming. Further, even the Expert Witness examined by the prosecution ie. PW43 Sh.T.Joshi, during the course of his deposition in Court had stated that specimen signatures of J.P.Singh were also forwarded to him along with questioned documents, but no definite opinion could be given with respect to the same.
215. No doubt, Ld.Public Prosecutor had cross examined DW2 on the aspect of "posting of accused J.P.Singh"
but nothing material emanated out of same so as to infer that he at the relevant point of time was posted in Ward No.11 of Division IV, South Zone, MCD.
216. Having regards to the cumulative effect of the prosecution and defence evidence on record, coupled with the office orders passed by DW2 regarding posting of accused J.P.Singh and also the version of IO in this regard, I am of the considered opinion that prosecution could not bring on record any cogent evidence, to show that accused J.P.Singh, was C.C.No: 09 / 2011 Page No.131 of 211 Judgement in the matter of:-
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(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
having any domain over the Work Order No.170 Ex.PW.5/C1.
Further, prosecution could not prove on record by any reliable witness, the signatures of accused J.P.Singh on the documents executed pertaining to the 4 Work Orders which are the bone of contention of the present case.
217. Besides accused J.P.Singh, prosecution through deposition of PW5, PW44 and the report of expert Ex.PW.43/A has been able to establish that the other accused public servants did make the entries in their registers, M.B.Books and other records pertaining to these four work orders files of which are Ex.PW.5/A to Ex.PW.5/H.
218. In view of above, it is apparent that the entries in the relevant documents and registers, as well as bills were made by the other accused public servants, on the basis of the invoices submitted by the contractor with them purportedly issued from the oil companies which were forged ones. It is required to be seen as to whether the public servants had C.C.No: 09 / 2011 Page No.132 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
received these invoices in furtherance of any conspiracy, knowing or having reasons to believe the same to be forged ones or they had accepted the same as part of their duties with no reasons to doubt about the genuineness of the same. As it has been held by Hon'ble Apex Court in AIR 96 SC 1744, that to establish the charge of conspiracy, "knowledge" about indulgence in either an illegal act or legal act by illegal means is necessary.
219. In view of above, everything has boiled down to the knowledge on the part of public servants regarding the invoice in question. It is to be seen as to whether prosecution on the basis of evidence adduced during the course of trial, has been able to establish that the public servants did have the requisite knowledge that the invoices in question were forged ones and despite having this knowledge, they went on to make requisite entries in their records, so as to ultimately facilitate the release of payment to their coaccused Radhey Shyam, with respect to work order numbers 316, 317 and 320 C.C.No: 09 / 2011 Page No.133 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
amounting to Rs.8,03,097/ and attempted to have a further amount of Rs.1,55,323/ released to him against work order number 170.
220. To bring home the aspect of knowledge on the part of public servants, it has been contended by Ld.PP that JE (Plant) who is supposed to remain present at the plant of contractor, could have very well ascertained about these forged invoices, as the registration number of the vehicle ie. tanker mentioned on these forged invoices were of such vehicles which were incapable of transportation of the bitumen or were never engaged for transportation of the bitumen.
221. Second contention urged by Ld.Public Prosecutor was that as per the NIT conditions and work order conditions, contractor was supposed to submit cash receipts, terminal tax receipts, gate passes and invoices with MCD. However the public servants for reasons best known to them, did not press for submission of cash receipts, gate passes and C.C.No: 09 / 2011 Page No.134 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
terminal tax receipts and only on the basis of the invoices which were forged ones, had made the relevant entries and facilitated the contractor to have his payment released, thereby causing wrongful loss to MCD.
222. Third contention raised by Ld.Public Prosecutor was that no work was executed at the site, but public servants in furtherance of the conspiracy had made the entries in their documents, which facilitated the release of payment.
223. Last contention urged by Ld.Public Prosecutor regarding knowledge of the public servants was that the invoices, so submitted with them by the contractor were forged ones and that the public servants on the basis of their experience with the department could have very well distinguished between a genuine invoice and the forged ones, but they failed to do so, for obvious reasons. C.C.No: 09 / 2011 Page No.135 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
224. All these contentions of Ld.Public Prosecutor were countered by Ld.Defence Counsels Sh.N.K.Sharma, Sh.Dharmish Thanai and Sh.S.P.Aggarwal, Advocates.
225. I will deal with these contentions on the basis of evidence which has come up on record. The first contention of Ld.PP to impute the knowledge on the part of public servants regarding the invoices that the same were forged ones, was that JE (Plant) at the time of arrival of bitumen, could have very well checked from the registration number of the tankers of bitumen, if any, brought by the contractor at plant and comparing it with the registration number mentioned on the invoices, in question.
226. Prosecution in order to prove that the vehicles, registration number of which were mentioned on these forged invoices were never engaged in transportation of bitumen from Mathura to the plant of the contractor, had examined PW11 P.S.Chauhan ; PW22 Ved Prakash ; PW31 Om Prakash Sethi C.C.No: 09 / 2011 Page No.136 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
and PW46 R.L.Yadav.
227. I have perused the deposition of all these witnesses and also the cross examination of these witnesses conducted by Ld.Defence Counsels, more particularly the one conducted by Sh.P.K.Dubey, Advocate for the contractor.
228. On perusal of deposition of these witnesses, it is apparent that IO R.L.Yadav PW46 vide his letter Ex.PW. 46/A had sought record with respect to vehicles bearing registration numbers DL1G3948 ; DL1G3947 ; DL1G0947 ; DL1G4178 and DL1G2018 which were mentioned on the forged invoices Ex.PW.2/D to Ex.PW.2/J, from transport authority. PW11 P.S.Chauhan from transport authority gave report Ex.PW.11/A as per which these vehicles being half body trucks were not capable of transporting bitumen. One of the owners of one of these vehicles ie. DL1G2018 Ved Prakash appeared in the witness box as PW22 and he too deposed that he never supplied any bitumen C.C.No: 09 / 2011 Page No.137 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
on his vehicle which is a half body truck.
229. Although, Ld.Defence Counsel relying on the testimony of investigating officer, stated that he himself had neither seen these vehicles not taken these vehicles in possession to be produced in court so as to ascertain, whether the same were capable of transporting bitumen or not. However, I do not find any substance in this contention of Ld.Defence Counsel, in view of the fact that PW11, PW22 and PW31, being either the registered owners of these vehicles at the relevant point of time or having domain on the documents pertaining to these vehicles, have categorically deposed that these vehicles are either not capable of transporting bitumen being open body truck and that these vehicles were not engaged for transporting bitumen from IOCL Mathura to the plant of accused no.1.
230. Though Sh.P.K.Dubey, Ld.Advocate cross examined PW11 P.S.Chauhan and PW46 R.L.Yadav thereby C.C.No: 09 / 2011 Page No.138 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
suggesting that report Ex.PW.11/A was manipulated by IO, which they denied. I do not see any reason with the investigating officer to manipulate or forge the report Ex.PW.
11/A with respect to type of the vehicle and ownership thereof.
More particularly when PW11 P.S.Chauhan, MLO of the transport authority endorsed his report during his testimony and owners of one of the vehicles viz. Ved Prakash also testified in court as PW22. Thus, I have no reason to doubt the same.
231. Further PW31 Om Prakash Sethi also deposed that though in the forged invoices, name of transporter is mentioned as "Sethi Transport", but they never transported bitumen against these invoices.
232. The evidence on record goes on to establish that the vehicle numbers which were mentioned on these invoices could not have transported the bitumen. C.C.No: 09 / 2011 Page No.139 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
233. From the deposition of PW11 ; PW22; PW31 and PW46, prosecution has been able to establish that the vehicles DL1G3948 ; DL1G3947 ; DL1G0947 ; DL1G4178 and DL1G2018 ; registration numbers of which were mentioned on the invoice in question, were not used for carrying bitumen at the plant of the contractor.
234. Meaning thereby that anyone who has received the bitumen at the plant along with the invoices, barely on checking the registration number of the vehicle mentioned in the invoices and comparing it with the vehicle, can ascertain regarding the genuineness of the invoice.
235. It is submitted by Ld.Public Prosecutor that JE (Plant) is supposed to remain present at plant of contractor to receive bitumen and he on bare comparison of the registration number of vehicles mentioned on the invoices with the ones by which bitumen if any brought by the contractor would have known that invoices are not genuine. But he failed to do so. C.C.No: 09 / 2011 Page No.140 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
236. To appreciate this contention of Ld.Public Prosecutor, it is required to be seen from the material on record, as to whether the bitumen was or was not received at the plant, in presence of JE (Plant).
237. To ascertain the same, it is required to peruse the deposition of prosecution witnesses. It is apparent from the deposition of PW13 H.D.Sikri and PW12 Deepak Mukhopadhyay ; both of whom were the prominent witnesses of MCD, that they have categorically deposed during the course of their examination in chief as well as cross examination that bitumen used to arrive at the plant of the contractor during "night hours" and JE (Plant) is not supposed to remain present at the plant during odd hours. All these witnesses have categorically deposed that JE (Plant) on receipt of invoice, which used to be handed over to him on the following morning by representative of the contractor at the plant, used to check the quantity of the bitumen brought.
C.C.No: 09 / 2011 Page No.141 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
238. These prosecution witnesses on the aspect of this deposition of theirs that JE (Plant) is not supposed to be present at plant in night hours and bitumen generally arrives at the plant during odd hours, were not cross examined by Ld.Public Prosecutor. Further, IO PW48 Gurmeet Singh also endorsed this fact that bitumen used to arrive at the plant in night hours and JE (Plant) is not supposed to be present there during night hours.
239. None of these witnesses have stated that the vehicle cannot be off loaded at the plant till arrival of JE (Plant). Further, the investigating officer PW48 Gurmeet Singh. during the course of his cross examination conducted by Sh.N.K.Sharma, Advocate, have deposed that he cannot recollect having come across any circular, rule, notification or office order during the year 199798, vide which it was mandatory that bitumen brought to the mixing plant of the contractor, was to be offloaded only in presence of JE (Plant). C.C.No: 09 / 2011 Page No.142 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
240. Relying on the deposition of PW49 Kundan Wardhan, another limb of arguments raised by Ld.Public Prosecutor to impute "factum of knowledge" on the part of JE (Plant) regarding forged invoices, is that he could have known the same after having compared the registration number of the vehicle mentioned on the forged invoices Ex.PW.2/D to Ex.PW. 2/I with that the registration number of the tankers by which bitumen was brought at the plant of the contractor.
241. Ld.Public Prosecutor has relied upon the deposition of PW49 Kundan Vardhan, employee of accused no. 1, the contractor and contended that this witness had deposed that, whenever any tanker used to reach at the hot mix plant, he used to inform contractor Radhey Shyam, who then used to call JE (Plant). Ld.Public Prosecutor contended that PW49 deposed that JE (Plant) thereafter used to come at the plant and used to get the tanker unloaded in his presence. It is submitted that in view of deposition of PW49, JE (Plant) did have the knowledge that the invoices in question were forged C.C.No: 09 / 2011 Page No.143 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
ones.
242. I have considered this contention of Ld.Public Prosecutor and have also perused the deposition of PW49 on this aspect. No doubt, in his examination in chief, he did state this fact that bitumen used to be unloaded in presence of JE. However, perusal of his cross examination makes it evident that he could not give the specific period of his employment with the contractor, nor could placed on record any documentary evidence to support this contention.
243. Further, he on being specifically asked by Sh.N.K.Sharma, Ld.Advocate had deposed that he does not remember, as to when bitumen for execution of work orders bearing number 316, 317, 320 & 170 was received at Hot Mix Plant, nor he remembered the time of arrival of vehicles. PW49 further deposed that he had not made any entry in register or paper regarding arrival of bitumen for these work orders. He further stated that he had not recorded any such C.C.No: 09 / 2011 Page No.144 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
entry of intimation given by Radhey Shyam to JE. He further stated that he does not know the names of JEs, who were informed by contractor Radhey Shyam.
244. In view of this deposition of PW49, I am of the considered opinion that the same by no stretch of imagination can be termed as cogent, consistent or trustworthy. This witness has failed to give any specific date or time of arrival of bitumen at the plant with respect to the work orders in question. He failed to give the timing of his giving information to contractor and in turn of intimation given by contractor to JE. His deposition is not reliable as he neither produced any record of his making any such entry anywhere. He had also failed to place on record any evidence of his being in employment with the contractor.
245. His deposition even otherwise, is contrary to the deposition of other prosecution witnesses who appeared from MCD. More particularly, to the deposition of PW12 C.C.No: 09 / 2011 Page No.145 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
Deepak Mukhopadhyay, PW13 H.D.Sikri and even the investigating officer, who had deposed that bitumen generally used to arrive at the plant in the night hours. They further deposed that it is not the duty of the JE (Plant) to remain present at the plant of contractor during night hours.
246. In view thereof, this contention of Ld.Public Prosecutor is turned down.
247. In view of this prosecution evidence on record, it is apparent that it was not the duty of JE (Plant) to remain present during night hours when bitumen used to arrive. Therefore this contention of Ld.PP that on bare comparison of the vehicle which has brought the bitumen at the plant and the number of vehicle mentioned on the invoice, it could have been ascertained by JE (Plant) that the invoices are forged ones, does not hold any merits.
C.C.No: 09 / 2011 Page No.146 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
248. Prosecution evidence falls short of proving the fact that bitumen against the invoices Ex.PW.2/D to Ex.PW.2/I arrived at the plant, in presence of any of the accused persons. Therefore, no knowledge of these invoices being forged ones, can be imputed on the public servants on this count.
249. This has led me to the second argument advanced by Ld.Public Prosecutor, for inferring the "knowledge" on the part of public servants that the invoices were forged ones. This contention being that as per the work order and NIT Conditions, the accused public servants failed to insist the contractor to file cash receipts, gate passes and terminal tax receipts and went on to make entries in their records to facilitate the release of payment.
250. In the present case, prosecution through the deposition of its witnesses, PW5 K.K.Kalia, PW39 Maneesh Rastogi and PW41 A.K.Mittal, has been able to establish that pursuant to NIT, 4 work orders ie. Work Order No.316, 317, C.C.No: 09 / 2011 Page No.147 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
320 and 170 Ex.PW.5/G4 ; Ex.PW.5/A1 ; Ex.PW.5/E1 and Ex.PW.5/C1 respectively were issued in favor of M/s Radhey Shyam, of which accused no.1 is the Proprietor.
251. On bare perusal of these NIT Conditions and Work Orders itself, it is apparent that the same prescribes that a contractor is required to file Cash Receipts, Terminal Tax Receipts,Gate Passes and Invoices.
252. However, PW13 H.D.Sikri and PW12 Deepak Mukhopadhyay, during the course of their examination in chief itself, categorically deposed that the cash receipts gate passes and terminal tax receipts were not being filed by the Contractors with MCD. It has been deposed by these witnesses about the reasons of not filing of these documents. They went on to depose that cash receipts were not being issued by the Oil Companies as a consolidated payment used to be deposited with the oil companies, against which they used to release the bitumen and for every release, neither the separate payment C.C.No: 09 / 2011 Page No.148 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
used to be made nor any receipts used to be issued, therefore the same was not being filed by the contractor. These witnesses further stated that Gate Passes were not being handed over by the oil companies to the Contractor or his representative as they used to take back the same, at their gate itself. Further, the contractor was not submitting gate passes with MCD. So far as terminal tax receipts are concerned, all these witnesses stated during the course of their deposition that Terminal Tax was abolished, therefore there was no reason or occasion with the contractor to file terminal tax receipts.
253. This deposition of both these witnesses, was also endorsed by the Investigating Officer during the course of his deposition. Therefore, no evidence whatsoever has been brought on record by the prosecution, through deposition of any witness or by producing the record of any other work order to prove that all these four conditions or anyone apart from submission of invoices, was being fulfilled. C.C.No: 09 / 2011 Page No.149 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
254. In absence of any such evidence on record, I do not find any merits in the contentions urged by Ld.Public Prosecutor that public servants had failed to ask the contractor for filing of cash receipts, gate passes and terminal tax receipts ; for the purposes of inferring that they were party to the conspiracy with the contractor.
255. Their having not insisted the contractor to file cash receipt, gate passes and terminal tax receipts, is and cannot be inferred as a deviation from normal / established practice with MCD. Rather, noninsistence of theirs to have these documents being filed by the contractor is in consonance to the regular practice prevalent with MCD as has been deposed by the witnesses of the prosecution themselves.
256. Thus, on this aspect as well, neither any knowledge that the invoices submitted to them by contractor were fake can be imputed on public servants, nor from their C.C.No: 09 / 2011 Page No.150 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
conduct any criminality or dishonest intention can be inferred.
257. This has brought me to the next contention urged by Ld.Public Prosecutor. It is contended that no work was executed by the contractor but the public servants made false entries in the Measurement Books, Test Checks Registers as well as in the Running Bills, for facilitating the release of payment in favor of the contractor.
258. This contention of Ld.Public Prosecutor to my mind, does not find support from the prosecution evidence which has come up on record. It has been deposed by the prosecution witnesses namely PW13 H.D.Sikri ; PW12 Deepak Mukhopadhyay ; PW14 S.K.Jain ; PW16 Rakesh Mehta ; PW42 S.K.Kashyap and PW48 IO Gurmeet Singh; that no complaint regarding execution of work was received from any quarter. Further from the cross examination of these witnesses, who deposed about the preparation of job mix and C.C.No: 09 / 2011 Page No.151 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
ready mix, it is apparent that the work was done.
259. In view of this deposition on record and also considering the fact that no where in the charge sheet, prosecution has raised this fact that work was never executed, I do not find any merits in this contention of Ld.Prosecutor, which to my mind has been raised just as an afterthought. Further, it is apparent from the record that there is no evidence to the effect that this work was either retendered by MCD or any action was taken against the contractor. Secondly, this contention of Ld.PP is not supported by any cogent & convincing evidence, for me to infer any knowledge on the part of public servants about their complicity with the contractor.
260. Ld.Public Prosecutor in order to impute complicity on the part of the public servants with the contractor had contended that for getting delivery of bitumen from approved oil agencies, the contractor requires a C.C.No: 09 / 2011 Page No.152 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
recommendatory letter from Executive Engineer. He contended that it is on the basis of this letter that a delivery order is issued by the Divisional Office of IOCL. He submitted that as no such recommendatory letter was issued in this case, which fact was in the knowledge of public servants, therefore, arrival of bitumen at the plant would have the effect of ringing bells on public servants and they should have checked the genuineness of invoices which they failed to do.
261. This contention of Ld.Public Prosecutor is countered by Ld.Defence Counsels in view of the cross examination of PW19 Ms.S.C.Banerjee. It is urged by them that in view of her deposition, recommendatory letter is not a prerequisite for getting the bitumen from IOCL, as the same can be released on the basis of work order itself.
262. I have considered the rival contentions in the light of deposition of PW19 Ms.S.C.Banerjee. This witness was examined by the prosecution to prove on record the C.C.No: 09 / 2011 Page No.153 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
procedure by which Divisional Office of IOCL issues a delivery order, pursuant to which the bitumen is released from the terminals ie. Mathura or Panipat. Perusal of cross examination of this witness makes it evidently clear that a recommendatory letter, from Executive Engineer though is required for issuance of delivery order, but the same is not sine quanon as the delivery order can be issued on the basis of work order, in favor of the person who approaches the Divisional Office of IOCL for getting the delivery order for supply of bitumen.
263. Having regards to this deposition of the witness of the prosecution, against which no other evidence either in oral or documentary form has been produced on record by the prosecution, to establish that without recommendatory letter, bitumen could not be released by approved oil agencies. Consequently, the argument advanced by Ld.Public Prosecutor to impute knowledge on the public servants that the invoices being submitted with them by the contractor were not genuine, C.C.No: 09 / 2011 Page No.154 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
does not hold ground.
264. This has brought me down to the last contention urged by Ld.Public Prosecutor to bring home the "factum of knowledge" on the part of public servants regarding their being coconspirators and having the knowledge that the invoices submitted by the contractor were forged ones. It is contended that the public servants on the basis of their experience with the department could have distinguished between the genuine invoice and the forged ones.
265. This contention of Ld.PP has been vociferously countered by Ld.Defence Counsels who submitted that the public servants neither had any experience, nor any mechanism to distinguish between the forged invoices and the genuine ones. It is further contended that apart from that, it was not the duty of the public servants to verify regarding genuineness of the invoice and it is contended that it was for the contractor to procure genuine bitumen, against genuine C.C.No: 09 / 2011 Page No.155 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
invoice from the approved oil companies.
266. I have considered the submissions advanced in the light of evidence which has come up on record. It is apparent on perusal of deposition of the witnesses from Indian Oil Corporation Limited (IOCL), Mathura ie. PW2 Nitin Bhatnagar ; PW3 Kali Prasad ; PW6 Sameer Garg; PW9 M.S.Rawat ; PW10 Ashish Bhatnagar ; and PW15 Khyali Singh ; that they were the ones, who were actually dealing with the invoices and issuance thereof being posted with S&D Division of IOCL Mathura. Even these witnesses during the course of their deposition had stated that it is difficult for any layman to distinguish between the forged invoice and the genuine invoice. It is deposed by them that they can distinguish between the forged invoices Ex.PW.2/D to Ex.PW.2/J only after comparing them with the original invoices Ex.PW.2/A to Ex.PW.2/C ; Ex.PW.3/A to Ex.PW.3/C and the statement Ex.PW.18/A pertaining to invoice bearing serial number 28873.
C.C.No: 09 / 2011 Page No.156 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
267. These witnesses during the course of their deposition had stated that Indian Oil Corporation Limited (IOCL) had never sent any specimen format of the invoices or the specimen signatures of the authorized signatories to Municipal Corporation of Delhi nor these specimen were published anywhere. Even the prosecution witnesses produced from MCD ie PW12 ; PW13 and PW14 have deposed that there was no mechanism for the accused public servants to compare the invoices so submitted with them by the Contractor with the original ones or with the specimen formats to find out and verify its genuineness. The prosecution witnesses from MCD during the course of their deposition had also deposed that no training of any sort was imparted to the public servants ie. the Engineering Staff or the Accounts people for enabling them to verify regarding genuineness of the invoice.
268. The investigating officer ie PW48 Gurmeet Singh during the course of his cross examination had stated that he had not investigated regarding the experience of the C.C.No: 09 / 2011 Page No.157 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
accused persons in their having dealt with such sort of invoices, prior to the present case.
269. Having regards to this evidence on record on the part of prosecution, I am of the considered opinion that the accused public servants did not have the requisite or any expertise or mechanism available with them, to verify about the genuineness of the invoices. Further, prosecution has failed to bring on record any evidence regarding the experience of the accused public servants in dealing with such sorts of invoices which would have enabled them to distinguish between the genuine and forged invoices. More particularly, in view of the deposition of prosecution witnesses from IOCL that at first glance it is not possible to know about the genuineness of invoices and for a layman it is difficult to ascertain without comparing it with the original or specimen format.
C.C.No: 09 / 2011 Page No.158 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
270. Apart from above, to my mind submission of the invoices by the contractor to the public servants, coupled with the fact that the work was performed, did not give rise any reason, for these public servants to doubt regarding genuineness of the invoice.
271. Further, to my mind, prosecution has failed to bring on record through any documentary or oral evidence that it was part of the duty of these public servants which have been arrayed as accused persons, to verify regarding genuineness of invoice. In absence of such an evidence regarding duty and responsibility of the public servants, to ascertain genuineness of invoices, to my mind imposition of any criminal liability on them for their having failed to do something which they were not obliged in discharge of their duties, would be asking for too much from them.
272. Thus, as per the evidence which has come up on record, the accused public servants had collected the C.C.No: 09 / 2011 Page No.159 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
invoices so submitted by the contractor without having any reasons to doubt about its genuineness and without knowing the same to be forged ones, they went ahead to perform their part of official obligations and did the prescribed test check and made entries in their records.
273. There is no evidence on record to show that these public servants have committed any forgery of the documents or the record which could have been used as a valuable security. No evidence has been brought on record to show that accused public servants had the knowledge that the invoice so submitted with them by the contractor were forged ones, therefore to my mind, no dishonest or criminal intent in accepting the same can be imputed on these public servants.
274. To arrive at this conclusion, I am fortified by the observations made by Hon'ble Apex Court in the case titled "L.Chandriah vs. State of A.P." reported as (2003) 42 SCC 670 , relevant portion of which is reproduced as under : C.C.No: 09 / 2011 Page No.160 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
So far as the evidence relating to the offence under Section 467 IPC is concerned, there is no evidence to show that the appellants before us forged the documents which purported to be a valuable security. The evidence is only to the effect that they had negligently put their signatures on those vouchers while passing the vouchers for payment. There is no evidence to show that the appellants had knowledge of the fact that the vouchers were forged vouchers. The trial court has found in clear terms that A1, A2 and A3 were not acting pursuant to a conspiracy and,therefore, acquitted them of that charge. Such being the position, before recording a conviction, the court should have insisted on evidence which would have proved that A1 to A3 passed the vouchers with the knowledge that the vouchers were forged and fabricated. It appears that no such evidence is available on record. So far as the offence under Section 409 IPC is concerned, it must be proved that a person entrusted with property or with any dominion over property in his capacity as public servant commits criminal breach of trust in respect of such property, as defined in Section 405 IPC, meaning thereby that he dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do. The crucial word used in Section 405 IPC is "dishonestly"C.C.No: 09 / 2011 Page No.161 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
and, therefore, it implies the existence of mens rea, that is to say, a guilty mind. If there is no evidence to show that the appellants had knowledge that the vouchers were fabricated by A3, it cannot be said that they acted with a criminal intent.
275. Apart from that, Hon'ble High Court of Delhi was seized off a similar situation, in case titled "Rita Handa v/s CBI" reported as 2008 (105) DRI 331, the relevant portion of which is reproduced as under : The petitioner is being put in the dock on the ground that the impossibly of delivery to far off places in Tamil Nadu within a span of two days should have raised her suspicion. In my considered view, this is stretching the duty of care on the part of the petitioner too far. If the converse was to be taken as true, even then the statement of PW 70 clarifies that coordination with the consignees did not mean independent verification of receipt of materials by them against the supply contracts for the reason that there were about 500 consignees in this case. Individual verification therefore would have been substantial work. If this was to be intended, it would have been included in the items under logistic support of JPO (Joint procedure Order). The JPO did not lay down independent verification of receipts by the consignees as one of the items. Be that as it may the same by no stretch of imagination can C.C.No: 09 / 2011 Page No.162 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
be equated with the petitioner having a dishonest intention / mens rea. The prosecution has failed to bring on record any evidence so as to prove the same as also that the petitioner in abuse of her official capacity as a public servant got any pecuniary advantage for herself or the supplier. I find myself in full agreement with the view taken in Anil Bose's case (Supra) wherein it can be said that there has been an administrative lapse (if at all) on the part of the petitioner in performance of her duty. The worst that can be imputed to the petitioner is an error of judgment and that cannot give rise to a criminal liability. Thus even after painting the worst scenario as set up by the respondent for the petitioner, there is no criminal culpability made out.
276. In the backdrop of the observations of Hon'ble Apex Court in L.Chandriah's Case (supra) and of Hon'ble High Court in Rita Handa's Case (supra), coupled with the prosecution and defence evidence which has come up on record, I am of the considered opinion that prosecution has failed to bring on record any evidence to prove that it was either the duty of the accused public servants to verify the invoices or they had the requisite mechanism or expertise to distinguish between genuine and forged invoices.C.C.No: 09 / 2011 Page No.163 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
277. The evidence on record falls short of proving or even inferring any knowledge on the part of public servants that the invoices in question were forged ones. Neither from the acts, actions or conduct of the public servants nor from any physical manifestations, it can be inferred that their was any meeting of minds between them on one hand and contractor on the other. Prosecution has failed to establish that the public servants accepted the invoices, pursuant to any nexus between them and the contractor so as to bind them under any conspiracy.
278. As per the evidence which has come up on record, the accused public servants had accepted the invoices, so submitted with them by the contractor, believing the same to be genuine ones and they proceeded on this assumption and carried on the rest of their duties which they were supposed to perform as per CPWD Manual.C.C.No: 09 / 2011 Page No.164 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
279. In view thereof, no conduct on the part of public servants was such, as per evidence on record which can bind them with nexus of any sort with contractor so as to fall within the four corners of the definition of "criminal misconduct" under section 13(1) (d) of Prevention of Corruption Act 1988, with which they were charged.
280. Having held so, that there was no meeting of minds between the contractor and the public servants as well as, that the public servants have not abused their official position, so as to cause any pecuniary advantage to any one, has brought me down to deal with the case of prosecution qua accused no.1 Radhey Shyam.
281. Before proceeding further, it is pertinent to mention that accused Radhey Shyam was also charged along with coaccused persons for offence under section 120 B IPC, ie.
conspiracy. However having held by me, hereinabove that, as prosecution has failed to bring home any evidence of meeting of C.C.No: 09 / 2011 Page No.165 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
minds between accused no.1 on one hand and public servants on the other, so as to establish on record the offence of criminal conspiracy with which all accused were charged, I would straightaway delve upon the substantive charges qua accused no.1 Radhey Shyam & accused no.11 Munish Guliani.
282. Opening his line of defence, it is submitted by Sh.P.K.Dubey, Advocate, Ld.Defence Counsel, that the bitumen can be brought from IOCL Mathura either by contractor himself or through his representative. He contended that contractor is not required to go there personally.
283. I do find merits in this contention of Ld.Defence Counsel, in view of evidence which has come up on record. The witnesses from IOCL ie. PW2, PW3, PW6, PW9 and PW10 had deposed that for delivery of bitumen, personal presence of contractor is not required. This fact is also endorsed by IO PW48 Gurmeet Singh, during his deposition.C.C.No: 09 / 2011 Page No.166 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
284. However, this ipsofacto does not absolve the contractor of his obligation to procure genuine bitumen against genuine invoices and to submit the same with MCD, as is required, being one of the essential conditions of the work orders.
285. Defending the contractor Radhey Shyam, it is submitted by Sh.P.K.Dubey, Advocate Ld. Defence Counsel, that although the invoices Ex. PW2/D to Ex. PW2/J were submitted with MCD by accused Radhey Shyam, but he had no reasons to believe the same to be forged ones. It is submitted by Ld. Defence Counsel that accused had procured the bitumen as was required as per the NIT conditions from approved oil agencies and these invoices were given to him by IOCL itself at the time of delivery of bitumen, therefore, he had no reason to doubt about the genuineness of the same. He further submitted that there was no mechanism with the contractor to check the genuineness of the invoice.C.C.No: 09 / 2011 Page No.167 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
286. He relying upon the deposition of PW2, PW3 PW6, PW9 and PW10 contended that these witnesses, who were posted with S & D Division of Indian Oil Corporation, were the ones, who day in and day out were dealing with the issuance of the invoices and even they did state during the course of their deposition, that a lay man cannot distinguish between the forged and genuine invoices. He further contended that these witnesses also could decipher between the forged and genuine invoices only after having the forged ones compared with the genuine ones. He contended that as no specimen format was publicized or put up on the notice board of IOCL, therefore, contractor or his representative have no mechanism to check that the invoice so given to them against the supply of bitumen were not genuine.
287. I have perused the evidence which has come up on record. Admittedly PW2, PW3 PW6, PW9 and PW10 were the authorized persons from the organization of IOCL, who appeared in the witness box. All these witnesses during C.C.No: 09 / 2011 Page No.168 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
the course of their cross examination had admitted that it is difficult for a lay man to distinguish between the forged invoice and genuine invoice. PW3 during the course of his cross examination admitted the similarity of the colour combination in the two invoices. It has further been stated by PW2, PW3 PW9 and PW6 ; that no specimen format of the invoice or the specimen signatures of the authorized signatories used to be publicized or used to be put up on the notice board. However, on the basis of this deposition of these prosecution witnesses, which has come up on record, by no stretch of imagination, it can be inferred that these invoices which have been found to be forged ones, were given by IOCL either to accused or to his representative against the genuine supply of bitumen.
288. The witnesses from IOCL during the course of their deposition have categorically deposed that the invoices Ex.PW.2/D to Ex.PW.2/J were never issued in favor of M/s Radhey Shyam from S&D Division of IOCL. These witnesses further deposed that against these very serial numbers, C.C.No: 09 / 2011 Page No.169 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
genuine invoices Ex.PW.2/A to Ex.PW.2/C, Ex.PW.3/A to Ex.PW.3/C ; were issued by IOCL to other organizations. They further deposed that no bitumen was supplied by IOCL to anyone against these invoices which are forged ones. It further emanated from their deposition that on the genuine invoices the words "Indian Oil Corporation Limited" used to printed whereas, on these invoices it is computer typed. Further, logo of oil company is not there which used to be preprinted on the genuine invoices.
289. There is no reason with me to doubt this deposition of PW2, PW3 PW6, PW9 and PW10 as they were the ones who being posted with IOCL at relevant point of time were issuing the invoices and thus, were the material witnesses. In view of their deposition coupled with my observation made while dealing with deposition of the witnesses from transport department and transporter PW11 ;
PW22 and PW31, that the bitumen against these invoices was not transported through the vehicle mentioned therein, I C.C.No: 09 / 2011 Page No.170 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
am of the considered opinion that these invoices are forged ones, being not issued from IOCL.
290. Further, as per the deposition of PW19 Smt. S.C.Banerjee, who had deposed about the procedure of supply of bitumen, it is evident that an advance amount in the form of Demand Draft or Pay Order is required to be submitted by a person desirous of purchasing bitumen from IOCL, on the basis of work orders issued in his favour by MCD, therefore, by no stretch of imagination, it can be inferred that bitumen used to be supplied by IOCL against cash payment to anyone. Had that been the situation, then cash receipt should have been issued by IOCL. But that was not to be. As there is no evidence on record to that effect. That being the situation there was no occasion with any of the official of IOCL to have supplied bitumen either to accused Radhey Shyam or to any of his representative against the forged invoices as claimed by him.C.C.No: 09 / 2011 Page No.171 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
291. If a person is purchasing bitumen from the authorized sources i.e. Oil companies, then he is not required to be aware of the specimen format, being used by IOCL for issuance of invoice. If one has purchased bitumen from authorized source, he is supposed to get genuine invoice against the same, more particularly when there is no evidence to this effect that bitumen could have been supplied by way of pilferage by the officials of IOCL, against cash payment.
292. Sh.P.K.Dubey, Ld. Defence Counsel to put across the aspect of innocence of accused Radhey Shyam, has raised a frail argument in a vociferous manner and stated that accused made payment to IOCL through demand drafts, which he had deposited with it.
293. I do not find any substance in this contention of Ld. Defence Counsel, in absence of any cogent documentary evidence in support thereof.C.C.No: 09 / 2011 Page No.172 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
294. Even if, it is assumed that these demand drafts were made in favour of IOCL and also deposited with them on behalf of this firm, then in that situation by no stretch of imagination, it can be inferred that the invoice in question as claimed by the accused, which have been found to be forged ones would have been issued by IOCL against genuine supply of bitumen. As in that eventuality, there would have been no reason for officials of IOCL to give forged invoices, there being no person gain of theirs. In view thereof, I do not find any merits in this contention of Ld. Defence Counsel. The same stands rejected.
295. Further as has been observed by me here in above that the vehicle numbers which were mentioned on this forged invoice submitted by accused Radhey Shyam with MCD, were never engaged for transportation of bitumen from Mathura to his plant, that goes on to establish on record that accused who had submitted these invoices with MCD, knew that the same are forged ones.C.C.No: 09 / 2011 Page No.173 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
296. Ld. Defence Counsel in his attempt to have accused exonerated, has tried to dent the prosecution case contending that no qualitative investigations were carried out by the investigating agency as the stationary of the genuine and forged invoices were not got compared from any scientific expert. He contended that even the complaint of Sh.S.K.Jain states that the stationary used for the forged invoices, was genuine.
297. To my mind, the same was not required, as through the deposition of PW2, PW3 PW6, PW9 and PW10, who were the concerned persons at the relevant point of time posted with IOCL for issuance of invoice, have categorically deposed that the signatures on these invoices are not their's and against the serial numbers of these forged invoices, genuine invoices Ex. PW2/A to Ex. PW2/C, Ex.PW.3/A to Ex.PW.3/C and Ex.PW.18/A were issued by IOCL in favour of other organizations.C.C.No: 09 / 2011 Page No.174 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
298. Prosecution through deposition of PW48 IO Gurmeet Singh and witnesses from IOCL ie. PW2 Nitin Bhatnagar ; PW3 Kali Prasad and PW18 C.S.Jaitely, has established on record that with respect to serial number of the invoices Ex.PW.2/D to Ex.PW.2/J, genuine invoices Ex.PW.2/A to Ex.PW.2/C, Ex.PW.3/A to Ex.PW.3/C and Ex.PW.18/A were issued to different organizations and bitumen was also sent.
299. To substantiate this deposition of PW2 ; PW3;
and PW18, prosecution had examined witnesses from different government and nongovernment organizations who had received bitumen against the genuine invoices. I have considered deposition of PW24 R.S.Shekhawat ; PW25 H.R.Yadav ; PW26 N.K.Jain ; PW27 Mahender Singh ; PW29 C.K.Garg ; PW30 M.K.Singh and PW32 L.R.Moorthy and also the replies submitted by them to IO during investigations. All these witnesses have categorically deposed that they had received bitumen in their respective organizations against the genuine invoices having those serial C.C.No: 09 / 2011 Page No.175 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
number, which are depicted on the ones submitted by accused Radhey Shyam with MCD.
300. It has come up on record through deposition of PW2 ; PW3 ; PW6 ; PW9 and PW10 that no bitumen was supplied by IOCL against invoices Ex.PW.2/D to Ex.PW.2/J ' as these were not genuine.
301. No doubt, PW24 ; PW25 ; PW26 ; PW27 ;
PW29 ; PW30 and PW32 were cross examined by Ld.Defence Counsels, but nothing material came out of same to disbelieve them. As these witnesses apparently have no reason to depose falsely. Even otherwise their deposition corroborates the oral and documentary evidence of witnesses from IOCL.
302. Having regards to these facts and circumstances, it has been established on record that the invoices Ex. PW2/D to Ex.PW.2/J were forged invoices as the same were never issued by IOCL in favour of M/s Radhey Shyam.
C.C.No: 09 / 2011 Page No.176 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
303. Admittedly, these invoices were used and submitted by accused Radhey Shyam with MCD, as the same bears his signatures and he had submitted the same claiming them to be genuine, knowing or having reasons to believe the same to be forged ones.
304. This has brought me down to the next contention raised by Ld. Defence Counsel, who stated that as the work was properly executed by the contractor and the payment was to be made to the contractor for the work done and not for bitumen, therefore, no wrongful loss was caused to MCD.
305. It is contended by Ld.Defence Counsel relying upon the deposition of the prosecution witnesses, that it is not the case of the prosecution that work for which work orders were awarded to the contractor, was not executed. He contended that the prosecution witnesses during the course of their deposition, had categorically stated that the payment C.C.No: 09 / 2011 Page No.177 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
was to be made by MCD to the contractor for the work and not for the raw material required for execution of work. He contended that as the work was duly executed and it was on the basis of work that bills were prepared and processed by the concerned Engineers as well as by the Accounts Department and was ultimately passed by the Executive Engineer on the basis of which the amount was released in favor of M/s Radhey Shyam, therefore by no stretch of imagination, it can be stated that "wrongful loss" was caused to MCD. He contended that for release of payment, filing of invoice by the contractor was not necessary and that was a mere ritual. He in support of his contention had relied upon the law laid down by Hon'ble Supreme Court in case titled "Dr.Vimla vs. Delhi Administration" reported as AIR 1963 SC 1572.
306. I have considered the submissions advanced on this aspect and have also gone through the precedent relied upon by Ld.Defence Counsel.
C.C.No: 09 / 2011 Page No.178 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
307. No doubt, the prosecution witnesses ie. PW12, PW13, PW14, the complainant as well as IO deposed that payment was to be made to the contractor for the work done. But that deposition of prosecution witnesses is not to be considered in isolation. These witnesses went on to depose that contractor was supposed to execute the work as per specifications and if not executed, then wrongful loss has resulted to MCD.
308. As per the evidence on record and as per NIT Conditions and agreement, it was duty of contractor to procure fresh bitumen from approved oil agencies and to file invoices as proof of the same.
309. Meaning thereby that after executing the work, for getting the payment released, invoices of purchase of bitumen were necessary documents.
C.C.No: 09 / 2011 Page No.179 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
310. Had it been the work only which would have made the contractor entitle for release of payment, then he would not have been under any obligation to submit the invoices, which he did.
311. It is thus required to be looked into as to what forced the contractor to submit the invoices, if only "execution of work" was the criterion for release of the payment. Further, as to whether the invoices which were found to be forged ones, were fraudulently submitted by the contractor with dishonest intention so as to induce the officers of MCD, to act thereon for releasing the payment.
312. The word "Dishonestly" has been defined by Section 4 of the Penal Code as under: "Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to other person, is said to do that thing dishonestly"
C.C.No: 09 / 2011 Page No.180 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
313. The word "Fraudulently" is defined in Section 25 of the Penal Code as under: "A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise".
314. Hon'ble Apex Court in the said judgment of Dr.Vimla's Case (supra) had aptly summarized the expression "defraud" as well as the "intent to defraud" in following words: To summarize : the expression "defraud"
involves two elements, namely deceit and injury to the person deceived. Injury is something other than economic loss that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, m ind, reputation or such others. In short, it is a noneconomic or nonpecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases, where there is a benefit or advantage to the deceiver, but no corresponding loss to the C.C.No: 09 / 2011 Page No.181 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
deceived, the second condition is satisfied.
"The expression, "intent to defraud" implies conduct coupled with intention to deceive and thereby to injure ; in other words, "defraud" involves two conceptions, namely deceit and injury to the person deceived, that is, infringement of some legal right possessed by him, but not necessarily deprivation of property".
315. However, the observations made by Hon'ble Supreme Court and the ratio of said case does not support the case of accused Radhey Shyam, as the facts of the said case were distinctly different to the facts of the case in hand as it has been observed in the case of Dr.Vimla (supra) by Hon'ble Apex Court that in the said case, the entire transaction was made by Dr.Vimla herself but in the name of her minor daughter, which in the ultimate eventuality would not have made any difference to the Insurance Company, as Insurance Company has not incurred loss in any sense of the term. However, in the present case, it is to be seen as to whether without filing of the invoice, which as per evidence on record C.C.No: 09 / 2011 Page No.182 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
were forged ones, was MCD under any contractual obligation to release the payment in favor of the contractor or whether contractor had induced the Corporation to release the payment.
316. As per the evidence on record, it was one of the terms of NIT as well as the agreement entered into between MCD and the Contractor that for execution of work, fresh bitumen was required to be purchased from the approved oil refineries and contractor was required to submit invoice as a proof thereof, with the MCD.
317. Merely because of the test checks which were done at plant level as well as at the site by the concerned engineers and no complaint against the quality and quantity of the bitumen used for preparation of mix and laying of road was required either from the lab tests or from any other quarter, does not, to my mind absolves the contractor of his duties to fulfill his obligations. As per the NIT conditions and the agreement entered into by contractor with MCD, he was under C.C.No: 09 / 2011 Page No.183 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
a contractual obligation to procure fresh bitumen from approved oil agencies. He was further required to submit invoices as proof thereof. Meaning thereby that filing of invoices was mandatory on the part of contractor as he has come up through deposition of prosecution witnesses.
318. Had that been a mere ritual, as has been contended by Ld.Defence Counsel, then the said ritual also to my mind should have been performed by the contractor, in a sacrosanct and sacred manner. But that was not to be. By no stretch of imagination, it can be said that contractor can be permitted to furnish on record forged and fabricated invoices in the name of ritual. As per the evidence on record, the bills of the contractor were processed only when the other documentary evidence regarding execution of work was duly supported with the invoices. Meaning thereby that for preparation of these bills and its processing, the invoices were an essential and integral part of the documents, which the contractor was required to place on record to get his payment C.C.No: 09 / 2011 Page No.184 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
released. Consequently, by placing on record these forged invoices, contractor had induced the Engineers as well as the officials working in the Accounts Department and also the Executive Engineer to prepare, process and pass the bills on the basis of which the amount was released to him.
319. The factum of release of payment pursuant to the work order number 316; 317; and 320 amounting to Rs. 8,03,097/ was proved on record by prosecution through deposition of PW5 K.K.Kalia, coupled with the deposition of PW1 and PW35, witnesses from the bank with which accused Radhey Shyam has his bank account. It has been established that payment was released from MCD to accused contractor through cheques Ex.PW.17/B and Ex.PW.17/C, which was credited in his account. Corresponding debit entry with respect to these two cheque amounts which included the amount against these three work orders is proved by PW17 in the statement of account of account of MCD Ex.PW.17/D. C.C.No: 09 / 2011 Page No.185 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
320. Had he not placed on record these invoices, then the officials of MCD would not have prepared, processed and passed the bill. Thus, it is apparent from the material on record that these invoices were submitted by the contractor with an intent to defraud and induce the officials of MCD to release payments in his favor, which was ultimately released on such misrepresentation and inducement and that has resulted in causing a wrongful loss to MCD and corresponding wrongful advantage / gain to the contractor.
321. Next contention urged by Sh.P.K.Dubey, Advocate on behalf of accused Radhey Shyam, was that bitumen as per deposition of the prosecution witnesses was only one of the ingredients for the work of dense carpeting of road. Ld.Defence Counsel contended that the investigating and prosecuting agency have failed to take this aspect into account and prosecuted the accused for causing wrongful loss to MCD to the extent of whole of the contractual amount for which work was awarded. He contended that on this count itself, accused C.C.No: 09 / 2011 Page No.186 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
should be acquitted, as wrongful loss to that extent was not caused to MCD.
322. I do find some force, in this contention of Ld.Defence Counsel that bitumen was not the only but one of the ingredients of the mix. Admittedly, in the light of evidence which has come up on record through deposition of prosecution witnesses, bitumen was one of the ingredients of the "mix", required for dense carpeting of road. Further, considering the fact that contractor has procured other raw material and also got the work executed, thereby incurring expense thereon. Meaning thereby, he by no stretch of imagination could have caused wrongful loss to MCD for the whole contractual value of the work orders.
323. No doubt, the investigating officer did not investigate to verify and calculate the exact amount for which wrongful loss was caused to MCD by the contractor by not procuring bitumen from approved oil companies against C.C.No: 09 / 2011 Page No.187 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
genuine invoices. But that in itself is no ground to exonerate accused Radhey Shyam of his criminal liability, of having filed forged invoices with intent to cheat MCD knowing them to be forged ones.
324. Section 420 of IPC makes cheating as defined in Section 415 IPC as punishable offence.
325. Section 415 IPC reads as under : SECTION 415 CHEATING - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Explanation - A dishonest concealment of facts is a deception within the meaning of this section.
C.C.No: 09 / 2011 Page No.188 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
326. Bare perusal of the definition of cheating reveals that offence stands established even when the person so deceived, suffers any damage or harm in body, mind, reputation or property. Meaning thereby that even if the person so deceived suffers any intangible loss or the loss which cannot be quantified in terms of money, due to any inducement on the part of offender, the offence stands established.
327. In view thereof, it was not necessary for the investigating agency to have the exact amount of bitumen separated from the total contractual value of the work orders before filing of the charge sheet, or by the prosecuting agency during trial.
328. Consequently, this contention of Ld.Defence Counsel is also turned down being devoid of merits.
329. This has left me with the last contention urged on behalf of accused contractor by Sh.P.K.Dubey, Advocate, C.C.No: 09 / 2011 Page No.189 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
Ld.Defence Counsel contended that as the payment was made by the contractor to accused Munish Guliani for the bitumen purchased through him for execution of the work order, then why the contractor would forge the invoices as alleged by the prosecution. It is contended that the contractor had simplicitor forwarded the invoices handed over to him or his representative by accused Munish Guliani on the bonafide belief that the same are genuine. It is contended that in view thereof, the contractor cannot be made liable for commission of offence, which if any, was committed by coaccused Munish Guliani.
330. I would deal with this contention raised by Ld.Defence Counsel for the contractor after considering the case of prosecution qua accused Munish Guliani. Prosecution Case qua accused Munish Guliani:
331. It is the case of the prosecution as alleged in the charge sheet on the basis of which charges were framed C.C.No: 09 / 2011 Page No.190 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
against accused Munish Guliani that he, in furtherance of the conspiracy which he had with the contractor, had procured bitumen from unauthorized sources and supplied the same to the contractor against the invoices Ex.PW.2/D to Ex.PW.2/I ;
which in turn were handed over by the contractor to the officers of MCD. It is the case of the prosecution that these invoices which were purportedly issued from IOCL in favor of M/s Radhey Shyam & Co. ; were found to be forged ones.
332. Sh.O.P.Saxena, Advocate appearing on behalf of accused Munish Guliani had contended that there is absolutely no evidence brought on record during the course of entire trial, either in oral or documentary form, so as to connect accused Munish Guliani either with the bitumen alleged to have been supplied at the plant of the contractor or with the invoices in question.
333. In order to appreciate this contention of Ld.Defence Counsel, it is pertinent to peruse the prosecution C.C.No: 09 / 2011 Page No.191 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
evidence on record. It is settled proposition of law that prosecution is required to establish its case against the accused for which he has been charged on the basis if substantial evidence and not on the basis of any assumptions or presumptions and this onus is required to be discharged by the prosecution to bring home the charge beyond reasonable doubt.
334. Prosecution in order to connect accused Munish Guliani with the forged invoices Ex.PW.2/D to Ex.PW. 2/J, had examined one Sh.Suraj Bhan, brother of accused Radhey Shyam, as their witness. This witness appeared in the witness box as PW47. He during the course of his deposition had stated that Munish Guliani who used to transport bitumen for his brother Radhey Shyam, had visited their house on 2 - 3 occasions and in his presence, his brother had made some payment to him. He further deposed that Munish Guliani along with bitumen used to hand over some documents, but he is not aware as to whether what sort of documents, he used to hand over.
C.C.No: 09 / 2011 Page No.192 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
335. This witness on being cross examined by Sh.N.K.Sharma, Advocate had contended that he does not remember the exact date when Munish Guliani, had brought the bitumen at the hot mix plant of his brother and against which work order the same was brought. He further stated that he was not shown any invoice during his examination in chief.
336. On being cross examined on behalf of accused Munish Guliani, this witness denied the suggestion that he had first met with accused Munish Guliani in the year 1999, and Munish Guliani had supplied bitumen to his brother only in the year 1999. PW47 deposed that Munish Guliani had supplied bitumen in the year 1998 as well and in support of this contention, this witness stated that Munish Guliani had given original form ie. "Form C" Ex.PW.47/DX, to him after signing the same on its back at "Point A" in the year 1998 itself. PW47 stated that he does not know as to whether the payment C.C.No: 09 / 2011 Page No.193 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
made to accused Munish Guliani by his brother Radhey Shyam was for the bitumen supplied in the year 1999.
337. Apart from this witness, no other witness was examined by the prosecution to connect accused Munish Guliani either with the supply of bitumen or with respect to furnishing of forged invoices Ex.PW.2/D to Ex.PW.2/J to accused Radhey Shyam.
338. It is apparent on perusal of these forged invoices that the same are of the duration from 14.09.1998 till 13.11.1998. To substantiate his statement that Munish Guliani had supplied bitumen at the hot mix plant of his brother. PW47 deposed that accused Munish Guliani had handed over "Form C" Ex.PW.47/DX, to him after signing the same which bears the date 10.10.1998.
339. Accused Munish Guliani examined himself in his defence after getting permission from the court under C.C.No: 09 / 2011 Page No.194 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
section 315 Cr.P.C wherein he admitted his signatures at Point A on Ex.PW.47/DX, but stated that the date mentioned on the documents 10.10.1998 was not put by him as he never supplied bitumen to Radhey Shyam in the year 1998.
340. I do find merits in the deposition made by accused Munish Guliani in his defence as DW3 under section 315 Cr.P.C. Bare perusal of the document Ex.PW.47/DX which has been submitted by PW47, during the course of trial, it is evident that the same is a document issued under Rule 12(1) of Central Sales Tax Rules on 15.02.1999. Considering the fact that this document on which PW47 has claimed Munish Guliani to have signed on 10.10.1998 was not in existence on said date.
341. In view thereof, deposition of PW47 became untrustworthy and not reliable, as this document came into existence only on 15.02.1999 ie. the date of its issuance. This in itself shows that the date mentioned on this document ie. C.C.No: 09 / 2011 Page No.195 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
10.10.1998 was inserted subsequently, over signatures of Munish Guliani at Point A. As this document by no stretch of imagination could have been signed by Munish Guliani on 10.10.1998 as claimed by PW47, as on said date it was not in existence. Apart from this document, no other record has been produced by the prosecution during the course of trial to connect accused Munish Guliani with either supply of bitumen or furnishing the invoice Ex.PW.2/D to Ex.PW.2/J to the contractor Radhey Shyam.
342. So far as deposition of PW47 regarding making of payment to Munish Guliani is concerned, the same to my mind is too vague to connect this payment, to be the payment against the invoice Ex.PW.2/D to Ex.PW.2/I. As PW47 has neither given any exact date of making payment by accused Radhey Shyam to accused Munish Guliani nor the exact amount paid is mentioned by PW47 in his deposition. Further during his cross examination conducted on behalf of accused Munish Guliani, this witness states his ignorance to C.C.No: 09 / 2011 Page No.196 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
the fact as to whether the payment made to Munish Guliani was for the bitumen supplied by him to Radhey Shyam in the year 1999. In view of this deposition, by any inference this payment to Munish Guliani cannot be connected with the bitumen or with the invoices in question. Even otherwise, PW47 being brother of accused contractor seems to be an interested witness. His deposition does not inspire confidence to be relied upon.
343. Further, this witness was not confronted with the invoice Ex.PW.2/D to Ex.PW.2/I by Ld.Public Prosecutor during his examination in chief, and he had not stated these invoices to be the ones, handed over by accused Munish Guliani to contractor Radhey Shyam.
344. Apart from that, prosecution had examined PW20 Dharam Pal, a witness from District Transport Office, Faridabad, who proved ownership of Munish Guliani with respect to vehicles bearing registration numbers HR38 C.C.No: 09 / 2011 Page No.197 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
BG4625 ; HR38BG4675 ; and HR38F4315. However, on perusal of the forged invoices Ex.PW.2/D to Ex.PW.2/J ; it is evident that none of these vehicles owned by Munish Guliani were used therein to connect him with the same. Whereas, in view of the deposition of PW11 P.S.Chauhan, the vehicles mentioned in the forged invoices did not belong to accused Munish Guliani.
345. Having regards to these facts and circumstances, I do find substance in the contentions raised on behalf of accused Munish Guliani by Sh.O.P.Saxena, Advocate that prosecution has failed to bring forth any plausible, cogent and trustworthy evidence on record to connect him with the offence with which he has been charged.
346. Having dealt with case qua accused Munish Guliani, I will revert back to the last contention raised on behalf of the contractor by Sh.P.K.Dubey, Advocate which I had left open.
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Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
347. It was contended by Ld.Defence Counsel that as the contractor had made payment for the bitumen used by him for execution of the work order to Munish Guliani, then there was no reason with him to have forged the invoices and he had simplicitor forwarded the invoices Ex.PW.2/D to Ex.PW.2/J handed over to him by Munish Guliani to MCD, thinking and believing the same to be genuine ones.
348. In view of my observations made hereinabove on the basis of prosecution evidence on record that there is neither any oral nor documentary evidence which is clear, cogent and trustworthy to prove that it was Munish Guliani who had handed over the invoices Ex.PW.2/D to Ex.PW.2/I to the contractor or the payment was made by the contractor against this bitumen qua the invoices in question, therefore, I do not find any merits in the arguments advanced by Ld.Defence Counsel for contractor Radhey Shyam. The same is turned down accordingly.
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Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
349. This has brought me to the last limb of the arguments advanced by Ld.Public Prosecutor and by Ld.Defence Counsel appearing on behalf of contractor. Sh.P.K.Dubey, Advocate, contended that although his client was also charged with the offence under section 467 IPC, however, nothing has been brought on record by the prosecution either by oral or documentary evidence to show that it was his client, who had forged the invoices.
350. Countering these contentions, it is submitted by Ld.Public Prosecutor that as it was accused Radhey Shyam who had submitted these forged invoices with MCD, so as to induce it for having his payment released, thus, he being the beneficiary must have forged the same himself, therefore he be convicted on this count as well.
351. I do not find any merits in the contentions of Ld.Public Prosecutor. The onus to prove the necessary C.C.No: 09 / 2011 Page No.200 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
ingredients of the offence with which accused is charged, always rests on the prosecution. This onus has to be discharged on the basis of substantial evidence and not on the basis of any assumptions or presumptions.
352. It is evident on perusal of cross examination of PW48 Gurmeet Singh that no investigations were conducted on the aspect of the forgery so as to find out who had forged these 7 invoices Ex.PW.2/D to Ex.PW.2/J. As nothing was collected on this aspect by IO during the course of investigations, therefore nothing propped up to propel the contentions of Ld.Public Prosecutor during the course of prosecution evidence, to prove the charge under section 467 IPC against accused no.1.
353. Summary culled out from the evidence adduced on record, had deduced following propositions which stands proved: C.C.No: 09 / 2011 Page No.201 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
i. That, Work orders Ex.PW.5/G4 ; Ex.PW.
5/A13 ; Ex.PW.5/E1 and Ex.PW.5/C1, were awarded by MCD in favor of M/s Radhey Shyam, for which agreements Ex.PW.5/H1 ;
Ex.PW.5/B1 ; Ex.PW.5/F1; Ex.PW.5/C2 ; were executed and signed by accused no.1 Radhey Shyam.
ii. That, as per these agreements, contractor Radhey Shyam was required to procure fresh bitumen from approved oil agencies and was required to submit invoices as a proof thereof.
iii. That, accused Radhey Shyam had submitted invoices Ex.PW.2/D to Ex.PW.2/J with MCD, thereby claiming to have purchased bitumen from IOCL against these invoices.C.C.No: 09 / 2011 Page No.202 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
iv. That, the invoices so submitted by contractor ie. accused no.1 Radhey Shyam with MCD were found to be forged ones, as genuine invoices against those very serial numbers were issued by IOCL in favor of other organizations.
v. That, the vehicles, registration number of which were mentioned on the forged invoices, were either not capable of transportation of bitumen or were never engaged for transportation of the same from IOCL to the plant of the contractor.
vi. That, the accused "Public Servants" in discharge of their official duties had accepted the invoices so submitted with them without any reason to doubt the genuineness of the same.C.C.No: 09 / 2011 Page No.203 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
vii. That, even otherwise the accused "public servants" who came across these invoices did not have any mechanism to check the authenticity and genuineness of the invoices in question, which even otherwise, they were not duty bound.
viii. That, the accused "Public Servants" did not have any meeting of mind or any agreement of any sort, with accused no.1 Radhey Shyam to do any illegal act or a legal act by illegal means.
ix. That, the accused "Public Servants" prepared their records on the basis of invoices in question, submitted by accused no.1, believing the same to be genuine and also on the basis of other works conducted at plant and site, in execution of the work orders and in preparation, processing & passing of the bills, C.C.No: 09 / 2011 Page No.204 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
as was required from them in discharge of their official functions.
x. That, the conduct of the accused "Public Servants" as per evidence on record, did not fall in the contours of "criminal misconduct" as per Section 13(1) (d) of Prevention of Corruption Act,1988.
xi. That, prosecution has failed to established that it was accused Munish Guliani who had either supplied the bitumen required for execution of work order nos. 316, 317, 320 and 170 or it was he, who had supplied the forged invoices Ex.PW.2/D to Ex.PW.2/J to accused Radhey Shyam.
xii. That, accused no.1 Radhey Shyam had submitted these forged invoices, as genuine C.C.No: 09 / 2011 Page No.205 of 211 Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
with MCD, knowing or having reasons to believe the same to be forged ones.
xiii. That, accused no.1 Radhey Shyam had thus induced MCD through the accused "Public Servants" to act on these forged invoices and cheated MCD.
xiv. That, MCD through the the accused "Public Servants" on misrepresentation and inducement of accused no.1 Radhey Shyam and believing the invoices in question to be genuine ones, prepared, processed & passed the bills against the work orders, which resulted in release of payment in favor of the contractor, to the extent of Rs.8,03,097/.C.C.No: 09 / 2011 Page No.206 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
xv. That, the same resulted in causing wrongful loss to MCD and corresponding wrongful gain to the contractor.
354. The cumulative effect of these facts established on record by the prosecution, are inconsistent with the innocence of accused Radhey Shyam and are incapable of any explanation on any hypothesis other than the guilt of accused no.1 Radhey Shyam, so far as offences of cheating and submission of forged invoices as genuine knowing or having reasons to believe the same to be forged ones, with MCD are concerned. The defence witnesses examined in this case also failed to put forth any explanation to contradict the inevitable conclusion where prosecution evidence on record, has led me to, with respect to offences under section 420 and 471 IPC qua this accused.
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Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
355. Prosecution however has failed to establish on record the necessary ingredients of offences under section 120B IPC r/w section 420, 471 read with section 467 IPC and section 13(2) read with section 13 (1) (d) & section 15 of Prevention of Corruption Act, 1988 ; against all the accused persons including accused no.1 Radhey Shyam.
356. Prosecution has further failed to establish on record the necessary ingredients of substantive offence under section 467 IPC against accused no.1 Radhey Shyam.
357. Prosecution has further failed to establish on record the necessary ingredients of substantive offence under section 420, 471 r/w section 467 IPC against accused Munish Guliani.
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Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
358. Prosecution has also failed to establish on record the necessary ingredients of substantive offences under section 13 (1) (d) read with 13 (2) of Prevention of Corruption Act, against no.2 Rajesh Sharma, accused no.5 Manoj Kumar, Accused no.7 Baljeet Singh, Accused no.9 O.P.Saroha and accused no.10 Gurcharan Singh.
359. Prosecution has also failed to establish on record the necessary ingredients of substantive offences under section 15 read with 13 (2) of Prevention of Corruption Act, against no.2 Rajesh Sharma, accused no.4 Rama Shankar Bharti, accused no.6 Jitender Pal Singh accused no.8 C.S.Mangla, Accused no.9 O.P.Saroha and accused no.10 Gurcharan Singh.
FINAL VERDICT:
360. Having regards to the facts and circumstances and the discussions as delineated hereinabove : C.C.No: 09 / 2011 Page No.209 of 211
Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
(a) All the accused persons are acquitted of the charge under section 120B IPC read with section 420, 471 read with section 467 IPC and section 13(2) read with section 13 (1) (d) & section 15 of Prevention of Corruption Act, 1988
(b) Accused no.1 Radhey Shyam is acquitted of the charge under section 467 IPC.
(c) Accused no.2 Rajesh Sharma ; Accused no.5 Manoj Kumar, Accused no.7 Baljeet Singh ; Accused no.9 O.P.Saroha and Accused no.10 Gurcharan Singh ; are acquitted of the charge for substantive offences under section 13(1) (d) read with section 13(2) of Prevention of Corruption Act, 1988.
(d) Accused no.2 Rajesh Sharma ; Accused no.4 Rama Shankar Bharti, Accused no.6 Jitender Pal Singh ; Accused no.8 Chattar Singh Mangla ; Accused no.9 O.P.Saroha and Accused no.10 Gurcharan Singh ; are acquitted of the charge for substantive offences under section 15 read with section 13(2) of Prevention of Corruption Act, 1988.
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Judgement in the matter of:-
CC No. 09 / 11.
(C.B.I. Vs. Radhey Shyam & Ors.) th Dated : 29 May 2014.
(e) Accused no.11 Munish Guliani is acquitted of the charge for substantive offences under section 420 471 read with 467 IPC.
(f) Accused no.1 Radhey Shyam is convicted for the substantive offences under section 420 and 471 IPC.
361. Let convict Radhey Shyam be heard on point of sentence.
Announced in the Open Court th On the 29 Day of May, 2014.
(KANWALJEET ARORA) SPECIAL JUDGE : C.B.I. (P.C.ACT) DWARKA COURTS, NEW DELHI.
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