Delhi District Court
Central Bureau Of vs . 1. Suresh Chand Sharma on 20 December, 2012
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IN THE COURT OF SPECIAL JUDGE (PC ACT) 01, CBI,
SAKET COURTS, NEW DELHI
Presiding Officer : Dinesh Kumar Sharma, Special Judge (PC Act)
CC No.31/11
Unique Case ID No. 02401R0584792006
Central Bureau of Vs. 1. Suresh Chand Sharma
Investigation S/o Late Sh. Ganga Ram Sharma
R/o B39, Delhi Citizen Society,
Sector - 13, Rohini, Delhi - 85.
2. Nihal Chand
S/o Late Sh. Ram Chand
R/o H.No. 41, Pocket - 2,
Sector - 11, Dwarka, Delhi - 45.
3. Ramesh Chand Bansal
S/o Late Sh. Mool Chand
R/o D7/G1, East Jyoti Nagar
Loni Road, Delhi - 93.
4. Mahavir Singh
S/o Sh. Ram Diya
R/o 118, Sector - 15, Sonipat
Haryana.
CBI Vs. SC Sharma & Anr. CC No.31/11
CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 1 of 10
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CC No.32/11
Unique Case ID No. 02401R0582172006
Central Bureau of Vs. 1. Suresh Chand Sharma
Investigation S/o Late Sh. Ganga Ram Sharma
R/o B39, Delhi Citizen Society,
Sector - 13, Rohini, Delhi - 85.
2. Nihal Chand
S/o Late Sh. Ram Chand
R/o H.No. 41, Pocket - 2,
Sector - 11, Dwarka, Delhi - 45.
3. Ramesh Chand Bansal
S/o Late Sh. Mool Chand
R/o D7/G1, East Jyoti Nagar
Loni Road, Delhi - 93.
4. Pradeep Maan
S/o Sh. Satya Pal Singh
R/o B39, Pushpanjali Enclave
Delhi - 34.
RC No. : DAI2003A0051
u/Ss : u/S.13(2) r/w S.13(1)(d) PC Act, 1988 r/w S.120B ; and
u/Ss.420/467/468 & 471 and S.13(2) r/w S.13(1)(d) of PC
Act, 1988 r/w S.120B IPC ; and
u/S.120B r/w S.420/467/468 & 471 IPC & S.13(2) r/w
S.13(1)(d) of PC Act, 1988.
CBI Vs. SC Sharma & Anr. CC No.31/11
CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 2 of 10
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Judgment announced on 19.12.2012
Date of order on sentence : 20.12.2012
ORDER ON SENTENCE
Present : Sh. D.K. Singh, Ld. PP for CBI
Convicts A1 SC Sharma, A2 Nihal Chand, A3 RC Bansal and
A6 Pradeep Mann and Mahavir Singh present in person.
Sh. Roopansh Purohit, Ld. Counsel for all the convicts.
Heard on the point of sentence.
1.0 Convicts have been convicted for the offence u/S.13(2) r/w S.
13(1)(d) PC Act, 1988 r/w S.120B ; and u/Ss.420/467/468 & 471 and S.13(2)
r/w S.13(1)(d) of PC Act, 1988 r/w S.120B IPC ; and u/S.120B r/w S.
420/467/468 & 471 IPC & S.13(2) r/w S.13(1)(d) of PC Act, 1988..
2.0 Sh. D.K. Singh, Ld. PP for CBI has submitted that sentencing is
the domain of the Court and the CBI would submit that maximum
punishment may be awarded to the accused persons.
2.1 On the other hand, Sh. Roopansh Purohit, Ld. Counsel for all
the convicts has submitted that convicts have suffered a great hardship. They
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CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 3 of 10
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had executed or got executed hundred's of work and in none other case, any
lacuna or shortcomings has been found. Sh. Roopansh Purohit, Ld. Counsel
submitted that convicts SC Sharma and Nihal Chand have already retired.
They are more than 70 years of age. Similarly, convict RC Bansal is around
59 years of age and convict Anil Kumar is 42 years of age and is in midst of
discharging his responsibilities. In respect of convict Gulshan Kumar, Ld.
Counsel submits that he has recently lost his father and is the sole person to
look after his widow mother. Ld. Counsel submits that financial condition of
Gulshan Kumar is also very bad and he is in miserable condition. In respect
of convict Mahavir Singh and Pradeep Mann also, Ld. Counsel submits that
they have also suffered huge monetary loss and mental trauma during the
trial. Ld. Counsel has prayed for a lenient view.
3.0 I have considered the submissions of both the sides and perused
the record carefully.
4.0 The accused public servants in the present case were bestowed
with the duty of use of public exchequer. The accused persons were supposed
to act as a trustee in a fair and reasonable manner. Every holder of a public
office by virtue of such public servant acts on behalf of the State, is
ultimately accountable to the people in whom the sovereignty rests. The
power vested with the public servants are meant to be exercised for public
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good and promoting the public interest. Thus, in a way every holder of a
public office is a trustee and such duty is to be exercised in larger public and
social interest, strictly adhering to the statutory provisions and fact situation
of a case. Hon'ble Supreme Court in NOIDA Entrepreneurs Association
v. NOIDA, (2011) 6 SCC 508, inter alia held that Public authorities cannot
play fast and loose with the powers vested in them. It was further inter alia
held that a decision taken in an arbitrary manner contradicts the principle of
legitimate expectation. An authority is under a legal obligation to exercise
the power reasonably and in good faith to effectuate the purpose for which
power stood conferred.
In the present case, the public servants in conspiracy with
private contractors did not discharge their duties in larger public and social
interest. The greed in them over took their duties towards the office. The
State makes large provision of budget for spending on the public utility
services for the common benefit of the citizens of this country. Misuse of
such funds ultimately effects the common man of this country. In the facts
and circumstances of the case, the accused persons are sentenced as follows:
CC 31/11
Convict SC Sharma
u/S 120B IPC: Rigorous Imprisonment for 02 years and fine of
Rs.10,000/ in default SI for 06 months.
CBI Vs. SC Sharma & Anr. CC No.31/11
CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 5 of 10
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u/S 420 IPC: Rigorous Imprisonment for 02 years and fine of
Rs. 10,000/ in default SI for 06 months.
u/S 468 IPC: Rigorous Imprisonment for 02 years and fine of
Rs. 10,000/ in default SI for 06 months.
u/S 471 IPC: Rigorous Imprisonment for 02 years and fine of
Rs. 10,000/ in default SI for 06 months.
u/S 13(1)(d) r/w : Rigorous Imprisonment for 03 years and fine of
13(2) PC Act Rs.20,000/ in default SI for 06 months.
Convict Nihal Chand
u/S 120B IPC: Rigorous Imprisonment for 02 years and fine of
Rs.10,000/ in default SI for 06 months.
u/S 420 IPC: Rigorous Imprisonment for 02 years and fine of
Rs. 10,000/ in default SI for 06 months.
u/S 468 IPC: Rigorous Imprisonment for 02 years and fine of
Rs. 10,000/ in default SI for 06 months.
u/S 471 IPC: Rigorous Imprisonment for 02 years and fine of
Rs. 10,000/ in default SI for 06 months.
u/S 13(1)(d) r/w : Rigorous Imprisonment for 03 years and fine of
13(2) PC Act Rs.20,000/ in default SI for 06 months.
Convict RC Bansal
u/S 120B IPC: Rigorous Imprisonment for 02 years and fine of
CBI Vs. SC Sharma & Anr. CC No.31/11
CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 6 of 10
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Rs.10,000/ in default SI for 06 months.
u/S 420 IPC: Rigorous Imprisonment for 02 years and fine of
Rs. 10,000/ in default SI for 06 months.
u/S 468 IPC: Rigorous Imprisonment for 02 years and fine of
Rs. 10,000/ in default SI for 06 months.
u/S 471 IPC: Rigorous Imprisonment for 02 years and fine of
Rs. 10,000/ in default SI for 06 months.
u/S 13(1)(d) r/w : Rigorous Imprisonment for 03 years and fine of
13(2) PC Act Rs.20,000/ in default SI for 06 months.
Convict Mahavir Singh
u/S 120B IPC: Rigorous Imprisonment for 02 years and fine of
Rs.20,000/ in default SI for 06 months.
u/S 420 IPC: Rigorous Imprisonment for 02 years and fine of
Rs. 20,000/ in default SI for 06 months.
u/S 468 IPC: Rigorous Imprisonment for 02 years and fine of
Rs. 20,000/ in default SI for 06 months.
u/S 471 IPC: Rigorous Imprisonment for 02 years and fine of
Rs. 20,000/ in default SI for 06 months.
CC 32/11
Convict SC Sharma
u/S 120B IPC: Rigorous Imprisonment for 02 years and fine of
Rs.10,000/ in default SI for 06 months.
CBI Vs. SC Sharma & Anr. CC No.31/11
CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 7 of 10
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u/S 420 IPC: Rigorous Imprisonment for 02 years and fine of
Rs. 10,000/ in default SI for 06 months.
u/S 468 IPC: Rigorous Imprisonment for 02 years and fine of
Rs. 10,000/ in default SI for 06 months.
u/S 471 IPC: Rigorous Imprisonment for 02 years and fine of
Rs. 10,000/ in default SI for 06 months.
u/S 13(1)(d) r/w : Rigorous Imprisonment for 03 years and fine of
13(2) PC Act Rs.20,000/ in default SI for 06 months.
Convict Nihal Chand
u/S 120B IPC: Rigorous Imprisonment for 02 years and fine of
Rs.10,000/ in default SI for 06 months.
u/S 420 IPC: Rigorous Imprisonment for 02 years and fine of
Rs. 10,000/ in default SI for 06 months.
u/S 468 IPC: Rigorous Imprisonment for 02 years and fine of
Rs. 10,000/ in default SI for 06 months.
u/S 471 IPC: Rigorous Imprisonment for 02 years and fine of
Rs. 10,000/ in default SI for 06 months.
u/S 13(1)(d) r/w : Rigorous Imprisonment for 03 years and fine of
13(2) PC Act Rs.20,000/ in default SI for 06 months.
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CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 8 of 10
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Convict RC Bansal
u/S 120B IPC: Rigorous Imprisonment for 02 years and fine of
Rs.10,000/ in default SI for 06 months.
u/S 420 IPC: Rigorous Imprisonment for 02 years and fine of
Rs. 10,000/ in default SI for 06 months.
u/S 468 IPC: Rigorous Imprisonment for 02 years and fine of
Rs. 10,000/ in default SI for 06 months.
u/S 471 IPC: Rigorous Imprisonment for 02 years and fine of
Rs. 10,000/ in default SI for 06 months.
u/S 13(1)(d) r/w : Rigorous Imprisonment for 03 years and fine of
13(2) PC Act Rs.20,000/ in default SI for 06 months.
Convict Pradeep Mann
u/S 120B IPC: Rigorous Imprisonment for 02 years and fine of
Rs.20,000/ in default SI for 06 months.
u/S 420 IPC: Rigorous Imprisonment for 02 years and fine of
Rs. 20,000/ in default SI for 06 months.
u/S 468 IPC: Rigorous Imprisonment for 02 years and fine of
Rs. 20,000/ in default SI for 06 months.
u/S 471 IPC: Rigorous Imprisonment for 02 years and fine of
Rs. 20,000/ in default SI for 06 months.
CBI Vs. SC Sharma & Anr. CC No.31/11
CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 9 of 10
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All the sentences shall run concurrently. It be specifically
noted that sentence in CC No. 30/11, 31/11 and 32/11 be run
concurrently. Benefit of Sec. 428 Cr.PC, if any, be given to the convicts.
Copy of the judgment alongwith order on sentence be given to
the the convicts free of cost.
5.0 File be consigned to Record Room.
Announced in the open court (Dinesh Kumar Sharma)
today on 20.12.2012 Spl. Judge(PC Act) CBI: N. Delhi
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IN THE COURT OF SPECIAL JUDGE (PC ACT) 01, CBI,
SAKET COURTS, NEW DELHI
Presiding Officer : Dinesh Kumar Sharma, Special Judge (PC Act)
CC No.31/11
Unique Case ID No. 02401R0584792006
Central Bureau of Vs. 1. Suresh Chand Sharma
Investigation S/o Late Sh. Ganga Ram Sharma
R/o B39, Delhi Citizen Society,
Sector - 13, Rohini, Delhi - 85.
2. Nihal Chand
S/o Late Sh. Ram Chand
R/o H.No. 41, Pocket - 2,
Sector - 11, Dwarka, Delhi - 45.
3. Ramesh Chand Bansal
S/o Late Sh. Mool Chand
R/o D7/G1, East Jyoti Nagar
Loni Road, Delhi - 93.
4. Hari Shankar Sharma
S/o Late Sh. Jwala Prasad Sharma
R/o 3074, Ram Dwara Building Chowk
Charkhe Walan, Delhi - 6.
5. Anil Kumar
S/o Sh. Ram Gopal
CBI Vs. SC Sharma & Anr. CC No.31/11
CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 11 of 10
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R/o A2/178, Sector - 8, Rohini,
Delhi - 85.
6. Mahavir Singh
S/o Sh. Ram Diya
R/o 118, Sector - 15, Sonipat
Haryana.
CC No.32/11
Unique Case ID No. 02401R0582172006
Central Bureau of Vs. 1. Suresh Chand Sharma
Investigation S/o Late Sh. Ganga Ram Sharma
R/o B39, Delhi Citizen Society,
Sector - 13, Rohini, Delhi - 85.
2. Nihal Chand
S/o Late Sh. Ram Chand
R/o H.No. 41, Pocket - 2,
Sector - 11, Dwarka, Delhi - 45.
3. Ramesh Chand Bansal
S/o Late Sh. Mool Chand
R/o D7/G1, East Jyoti Nagar
Loni Road, Delhi - 93.
4. Hari Shankar Sharma
S/o Late Sh. Jwala Prasad Sharma
R/o 3074, Ram Dwara Building Chowk
Charkhe Walan, Delhi - 6.
CBI Vs. SC Sharma & Anr. CC No.31/11
CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 12 of 10
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5. Anil Kumar
S/o Sh. Ram Gopal
R/o A2/178, Sector - 8, Rohini,
Delhi - 85.
6. Pradeep Maan
S/o Sh. Satya Pal Singh
R/o B39, Pushpanjali Enclave
Delhi - 34.
RC No. : DAI2003A0051
u/Ss : u/S.13(2) r/w S.13(1)(d) PC Act, 1988 r/w S.120B ; and
u/Ss.420/467/468 & 471 and S.13(2) r/w S.13(1)(d) of PC
Act, 1988 r/w S.120B IPC ; and
u/S.120B r/w S.420/467/468 & 471 IPC & S.13(2) r/w
S.13(1)(d) of PC Act, 1988
Date of Committal : 30.06.2006
Received by transfer on : 05.10.2011
Arguments Concluded on : 11.12.2012
Date of Decision : 19.12.2012
Appearances:
Sh. DK Singh, Ld. PP for CBI.
Sh. Rupansh Purohit, Ld. Counsel for accused persons.
JUDGMENT
1.0 On 23/9/03 on the basis of an information RC No. 51(A)/03 was CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 13 of 10 14 lodged u/Ss.120B, 420, 467, 468, 471 IPC and u/S.13(2) r/w S.13(1)(d) of PC Act, 1988, primarily on the allegations that during the period January 2003 onwards some officials of the MTNL Civil Wing, Rohini and Idgah Division entered into criminal conspiracy with some private contractors and made bogus payments for the works which were not actually executed. The allegations centered around construction of boundary wall on a plot of land meant for Telephone exchange building, Mangolpuri. CBI had an information that the suspects flouted the rules and in conspiracy with each other sanctioned the bills and made the payments to the contractors, even though no work had been executed. CBI also had an information regarding bungling in the work order for the whitewash and repair of RLU building, Lothian Road, Kashmiri Gate.
1.1 Pursuant to the registration of FIR, the detailed investigation was conducted. The investigation revealed that MTNL adopts CPWD manual in respect of civil works and the CPWD Codes are also equally applicable. 1.2 MTNL was initially allotted a plot of 4000sqm and lateron additional 104.70sqm land was also allotted and therefore, MTNL had a total piece of land measuring 4104.70 sqm allotted by DDA for construction of telephone exchange. The possession of this land was given to MTNL on CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 14 of 10 15 10/5/01. At the time of the possession, the land was surrounded with 2ft high masonary wall with missing chain link fencing. In order to save the land from trespassers, a proposal was mooted for the construction of compound wall, pursuant to which an estimate of Rs. 16,52,700/ for construction of compound wall supported on RCC Column and beams with provision of 10ft high compound wall plus 2ft high grill was prepared. Besides this, steel gate of 7.2m wide was also required to be made. After having the estimate being duly signed by the competent authority, the then SE Sh. Harbhajan Singh called the tender twice but on both times the tenders were rejected on the ground of high rates.
1.3 While the matter rested thus, allegedly the then XEN Sh. SC Sharma (A1) in violation of the rules, dishonestly split up the total work of construction of boundary wall for the Mangolpuri Telephone Exchange into following five parts:
A) Earth Filling Work;
B) Brick Work;
C) RCC Work;
D) Iron Grill (I) ; and
E) Iron Grill (II)
CBI Vs. SC Sharma & Anr. CC No.31/11
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1.4 The splitting up was done by A1 SC Sharma without any
justification and without prior permission of CGM, MTNL. Allegedly, XEN had done the splitting up of the work in order to bring the same within his financial powers.
1.5 The investigation revealed that accused persons in conspiracy with each other violated the CPWD Manual regarding calling of tenders and made the payment without any work having been executed or incomplete / insufficient work being executed. The subject matter of RC No. 51(A)/03 are the above said five works, the bills of which have been sanctioned by Sh. SC Sharma, XEN or Sh. Nihal Chand, the then XEN. Since all the 05 bills are part of the same chain of action, this Court has conducted the trial of both the cases together and also propose to dispose off the same by a common judgment.
(I) Brick Work and Finishing Work:
The tenders for brick work and finishing work were invited on 2/5/02 for estimated cost of Rs. 1,99,792/. M/s Pee Aar Builders and M/s Satya Constructions took part in the tender process and on the basis of lowest rate, the tender was awarded to M/s Pee Aar Builders by Sh. SC Sharma, XEN on 29/5/02. Sh. HS Sharma, AO (Cash) (A4) gave the financial CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 16 of 10 17 concurrence on 31/5/02 and finally work was awarded to Sh. Mahavir Singh proprietor M/s Pee Aar Builders on 24/6/02 vide agreement No. 34/EE/CM/N/MTNL/0203. Sh. Prem Singh Mural (PW25) prepared the bill Ex.PW6/B for Rs. 5,67,553/ on the basis of MB No. 241 (pages 64 to 69) as per which the work started on 4/7/02 and was completed on 22/7/02. The bill was allegedly signed by JE Anil Kumar (A5), AE RC Bansal (A3) and passed by A1 SC Sharma and payment of Rs. 5,01,644/ against aforesaid bill after deduction of tax etc was ordered by AO Cash HS Sharma (A4). During the course of investigation, MB No. 241 was not made available . The deviation statement was prepared by JE Anil Kumar (A5) and were duly signed by AE RC Bansal (A3) and XEN SC Sharma (A1).
(II) Iron Grill on Compound Wall of TE Building Mangolpuri:
This work was awarded to M/s Pee Aar Builders vide agreement No. 93/EE(CM)/N/MTNL/0203 by Sh. Nihal Chand, XEN (A2). Sh. Prem Singh Mural (PW25) prepared the bill Ex.PW4/A for Rs. 2,94,164/ on the basis of MB No. 1534 (page 38 to 41) as per which the work started on 23/2/02 and was completed on 15/3/03. The bill Ex.PW4/A was signed by AE RC Bansal (A3) and was duly signed by A2 Nihal Chand. A4 HS Sharma ordered for payment of Rs. 2,58,364/ to the contractor after deduction of tax etc. A4 Sh. HS Sharma AO (Cash) passed the bill for payment despite the CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 17 of 10 18 fact that the copy of financial concurrence was not attached with the bill.
During the investigation it was found that the iron grills were not at all installed and the same is evident from the videography conducted in the presence of MTNL officials and accused officials. Accused Pradeep Maan and A5 JE Anil Kumar took the plea that the work of providing iron grill to be carried out at TE Building, Mangolpuri was actually carried out at CSD Store, Rohini. However, investigation revealed that grill at back side of boundary wall , Sector 5, Rohini was carried out vide a different agreement No. 22/AE/CC/MTNL/0203 for which the first and final bill Ex.PW17/G as per MB No. 248 (page 69 to 72) was passed for Rs. 77,490/. The bill Ex.PW17/G revealed that the work in this regard commenced on 3/8/02 and was completed on 7/8/02. Similarly, a separate bill regarding repair to boundary wall and finishing of iron grill at back side of CSD Store, Sector 5, Rhoni Ex.PW13/A was passed for Rs. 2,50,457/. The bill Ex.PW13/A was prepared on the basis of MB No. 269 (page 89 to 93) regarding which the work commenced on 7/2/03 and it was completed on 14/2/03. It is pertinent to mention here that both of these bills i.e., Ex.PW13/A and Ex.PW17/G relating to CSD Store, Sector 5, Rohini were passed by XEN Nihal Chand and XEN SC Sharma, respectively. The investigation also revealed that quantity of the work mentioned in the bills of both the work i.e. brick work and finishing work has either not been carried out or the work which was CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 18 of 10 19 carried out was far below the quantity as mentioned in the bill.
(III) Iron Grill on Boundary Wall:
A bill Ex.PW6/C on the basis of MB No. 311 (page 84 to 88) for placing of grill on boundary wall was prepared for the sum of Rs. 3,00,271/.
As per bill Ex.PW6/C, the work was commenced on 23/3/03 and was completed on 7/4/03. The work has been shown to have been carried out vide agreement No. 103/EE(CM)/N/MTNL/0103 by M/s Satya Constructions.
The bill Ex.PW6/C was duly passed by Sh. Nihal Chand XEN and passed for payment by Sh. HS Sharma for Rs. 2,57,889/ after deduction of tax etc. CBI could not find the agreement in question, tender register, NIT register and other related tender documents inspite of the searches conducted at the office of MTNL and the residential premises of the official concerned. The bill Ex.PW6/C was also not accompanied with the financial concurrence and the deviation statement.
(IV) Earth Filling:
The tender for this work was issued on 1/2/02 for an estimated cost of Rs. 1,94,348/ and the same was opened on 12/2/02. As per available record, the tender was awarded to M/s Satya Constructions and therefore, the work was awarded to Sh. Pradeep Maan, proprietor M/s Satya Constructions CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 19 of 10 20 by Sh. SC Sharma vide agreement No. 09/MR/CM/N/MTNL/0203. Sh.
Prem Singh Mural prepared the bill Ex.PW2/A on the basis of MB No. 1550 (page 85 to 92) as per which the work commenced on 21/4/02 and completed on 1/5/02. The bill was duly signed by AE RC Bansal and XEN SC Sharma and the same was passed for payment by A4 HS Sharma for Rs. 2,80,798/ after deduction of income tax. The deviation statement alongwith the bill was duly signed by A5 Anil Kumar, A3 RC Bansal and A1 SC Sharma.
During the course of investigation, MB No. 1550 was not found. Allegedly, A4 HS Sharma illegally accorded the financial concurrence since in the sanction of estimates there was no mention of work of earth filling.
The investigation revealed that Sh. HK Bansal PW15 carried out the inspection on 4/5/02 and as per inspection note Ex.PW15/B no work of earth filling was found to have been carried out, nor any entries were found in the measurement book. Pursuant to the direction of PW15 Sh. HK Bansal, the malba lying at the site of staff quarter under construction at Sec. 3, Rohini was transported and dumped in the plot in question for which transportation charge of Rs. 43,331/ was charged in MB book No. 178 vide agreement No. 1/EE(CIII)/MTNL/0001 payment for which was made on 22/4/03. The physical inspection and the videography also revealed that work of earth filling was not carried out at all on the aforesaid plot.
CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 20 of 10 21 (V) RCC Work:
The tender for this work was invited on 2/5/02 for an estimated cost of Rs. 1,99,792/ by Sh. SC Sharma, XEN. The work was awarded to M/s Satya Constructions and after A4 Sh. HS Sharma gave the financial concurrence, Sh. SC Sharma XEN, awarded the work on 1/7/02 to M/s Satya Constructions vide agreement No. 40/EE(CM)/N/MTNL/0203. Sh. Prem Singh Mural PW25 prepared the bill Ex.PW6/A on the basis of MB No. 265 (page 72 to 77) against the work commenced on 11/7/02 and completed on 31/7/02 for Rs. 5,00,867/. The bill was duly signed by AE RC Bansal (A3) and sanctioned by XEN SC Sharma (A1). The deviation statement was duly prepared and signed by JE Anil Kumar (A5), AE RC Bansal (A3) and XEN SC Sharma (A1). A4 HS Sharma ordered for payment of Rs. 4,47,646/ after deduction of tax etc. The videography cum inspection carried out on 11/9/05 revealed that the quantity of work mentioned in the bill, as compared with the work actually carried out by way of physical inspection was far below the quantity.
1.6 CBI filed the chargesheet on the basis that the estimate of Rs. 16,52,700/ was sanctioned by CGM relating to construction of compound wall in TE Building, Mangolpuri for which the work relating to calling of tender and award of work should have been done by SE. However, CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 21 of 10 22 Sh. SC Sharma and Sh. Nihal Chand called the tenders and awarded the work to private contractors by splitting up the work without any permission of the competent authority. Sh. HS Sharma also accorded the financial concurrence illegally in violation of the rules. The sanction for prosecution in respect of public servants were accorded by the competent authority and after investigation, the chargesheet u/Ss.120B r/w 420, 467, 468, 471 IPC and S.13(2) r/w S.13(1)(d) of PC Act, 1988 was filed.
CHARGE 2.0 Being a prima facie case, charge u/S.13(2) r/w S.13(1)(d) PC Act, 1988 r/w S.120B ; u/Ss.420/467/468 & 471 and S.13(2) r/w S.13(1)(d) of PC Act, 1988 r/w S.120B IPC ; and u/S.120B r/w S.420/467/468 & 471 IPC & S.13(2) r/w S.13(1)(d) of PC Act, 1988 was framed against all the accused persons. Since cases bearing CC No.31/11 and 32/11 have arisen out from common RC No.51(A)/03, both the cases were clubbed vide order dtd. 03.09.2012 and the evidence was recorded in CC No.31/11. EVIDENCE 3.0 Prosecution examined 32 witnesses in support of its case. 3.1 PW1 Niranjan Singh accorded the sanction for prosecution against accused Nihal Chand and proved the same as Ex.PW1/A. In the CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 22 of 10 23 cross examination, PW1 Niranjan Singh the then Director, HRD, BSNL stated that XEN cannot call the tender in anticipation of sanction without approval from the competent authority.
3.2 PW2 Abbal Singh proved to have check the bill, Ex.PW2/A relating to earth filing. In the cross examination PW2 stated that after the execution of the work, the bill is sent along with measurement book and other relevant documents to the division office and the same is prechecked at Building Section of Accounts Department. The witness stated that it is not their official duty to ascertain whether actually work has been carried out or not regarding which the bills have been raised. PW2 also stated that after the bills are prechecked and did not have any lacunae, there is no option but to pass the bill for payment.
PW3 Saharum Mia chose not to support the prosecution and stated that he had joined CSD Store, MTNL on 01.04.2003 and the work of boundary wall and grill work had been done before his date of joining and therefore, he does not know anything about it.
PW4 Narender Kumar proved to have written the figure of Rs.2,58,364/ on bill Ex.PW4/A (placing of iron grill). The witness stated that he had made this entry at the instructions of A4 HS Sharma after checking the deductions as already passed by the concerned division.
CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 23 of 10 24 PW5 Manohar Lal Mehra was AE (Civil), MTNL office, Shakti Nagar from July 1999 till February 2000. Sh. Manohar Lal stated that during his tenure Sh. Baljeet Singh (PW24) received 50 MBs No.1510 to 1559 from Eastern Court in his name. He further stated that on his transfer, he handed over the MBs to PW25 Prem Singh Mural.
PW6 Dheeraj Singh Negi was posted in Accounts Office Building Ducting VII Branch at the relevant time. His duty was primarily to check the bills received from the division on the basis of measurements recorded in the measurement books. The witness stated that the rates were used to be verified from the original agreement. Sh. Dheeraj Singh stated that the bills were used to be sanctioned by the XEN and Accounts Officer (Cash) and Sh. HS Sharma was only authorized to make the payment. The witness proved bill Ex.PW6/A relating to compound wall (RCC work) agreement No.40/EE(CM)N/MTNL/0203 prepared on the basis of MB No. 265 page no.72 to 77 the work was awarded to M/s. Satya Constructions and as per bill the work was commenced on 11.07.2002 and completed on 31.07.2002. He also proved bill Ex.PW6/B relating to compound wall (Brick & finishing work) agreement No.34/EE(CM)N/MTNL/0203 prepared on the basis of MB No.241 page no.64 to 69, the work was awarded to M/s. Pee Aar Builder and as per bill the work was commenced on 04.07.2002 and completed on 22.07.2002. He also proved Ex.PW6/C relating to the work of CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 24 of 10 25 iron grill on boundary wall agreement No.103/EE(CM)/N/MTNL/0203 prepared on the basis of MB No.311 page no.84 to 88. the work was awarded to M/s. Satya Constructions and as per bill the work was commenced on 23.02.2003 and completed on 07.04.2003. He further proved the MB register of Kidwai Bhawan as Ex.PW6/D and peon book of AO cash as Ex.PW6/E. The statement u/S.164 Cr.P.C. of this witness was recorded during the course of investigation and the same was proved as Ex.PW6/F. The witness also identified the signatures of AE RC Bansal and AO HS Sharma and XEN Nihal Chand. In the cross examination, the witness stated that alongwith the bills a copy of the original documents, measurement books, agreement, bills scrutiny proforma, test check statement, deviation, bill performance and extra item used to be presented.
PW7 Sh. Sandeep Yadav, the then Ld. MM proved the statement of Sh. Prem Singh Mural u/S.164 Cr.P.C.
PW8 Sh. Prem Kumar Bhalla the then AE, MTNL, Rohini proved the transmission of MB No.236 from May 2002 till 2005 from him to Charan Singh, Chief Clerk of Accounts Branch. Sh. Prem Kumar Bhalla was also a witness to the identification cum photography proceedings held on 24.09.2003 and proved the identification cum seizure memo as Ex.PW8/B. The witness stated that at the time of inspection the wall was about 5 - 6ft. And the level of the plot was on a higher side than the adjacent ground level, CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 25 of 10 26 which indicated that there must have been earth filling in this plot.
PW9 Sh. Mohar Singh Meena, JE (Civil) in Rohini Division, MTNL at the relevant time, deposed on oath that he was involved in the construction of Type III, Staff Quarters and Transit Quarter in Sector III, Rohini along with Sh. VP Gupta. He stated that the earth taken out during the construction from the foundation of the said quarters was dumped in the vacant plot at Mangolpuri, TE Building as reflected in the MB No. 178 (D39) at page 3940 which are Ex.PW9/A1 and A2. The witness also proved that the 721.59 cu.mtr of earth was put in the said plot at Mangolpuri by contractor Sh. Devender Dahiya against which a payment was made in the sum of Rs.36,353.70 as reflected in MB No.195 i.e. Ex.PW9/B. PW10 Sh. Harish Chandra Sharma the then SubDivisional Engineer CSD Store, Rohini, MTNL stated that at the relevant time the boundary wall of the store was complete. However, the grills were not installed on one side of the boundary wall. PW10 proved the file relating to the work by which the GM sanctioned Rs.3,37,400/ on 25/8/2001 and the entry in this regard as Ex.PW10/A. He also proved agreement No. 22 (D14) and the work relating to this agreement as Ex.PW10/B. PW10 specifically stated that no grill from Mangolpuri was put in the work over CSD Store.
PW11 Ramroop Meena was posted at TE Building, Idgah, MTNL at the relevant time. PW11 had prepared the estimate of the work CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 26 of 10 27 relating to the boundary wall of the Telephone Exchange, Mangolpuri on the directions of PW15 HK Bansal and accused SC Sharma. PW11 stated that subsequently on the directions of accused SC Sharma and AE NS Dabbas (since died), he prepared a separate assessment by splitting the work relating to boundary wall. The witness proved the estimate prepared by him as Ex.PW11/A and Ex.PW11/B. PW12 Sh. Shiv Kumar was a formal witness who had handed over the admitted handwriting of accuses SC Sharma, Ex.PW12/B1 to B61 which was seized vide seizure memo Ex.PW12/A. This witness has also handed over the admitted handwriting of accused SC Sharma Ex.PW12/C1 to C3 which was also seized vide memo Ex.PW12/D. PW13 Sh. Kulbhushan was posted in the accounts section from 2003 till August 2004 and was assigned the duty to make salary disbursement and other cash disbursements and making cheques for contractors. The witness identified the handwriting of A4 HS Sharma on the bills Ex.PW2/A, Ex.PW6/A, Ex.PW6/B, Ex.PW6/C, Ex.PW4/A and Ex.PW13/A. PW14 Shiv Prakash Sharma was dealing with the acquisition and procurement of land by MTNL at the relevant time. The witness proved the file relating to acquisition of Mangolpuri, TE Building as Ex.PW14/A. He stated that at the request of DGM, MTNL DDA offered a plot measuring CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 27 of 10 28 0.40 hectares at Mangolpuri Industrial Area and after following the procedure initially a 0.40 hectares of the land was allotted to MTNL @ Rs. 29,271/ per sq. mtr alongwith ground rent @ 2.5% of the land cost per annum. The payment was made after due sanction. The witness stated that the at the time of handing over the plot of land, it was surrounded by a 2ft masonary wall and there was no chain link fencing. PW11 also stated that pursuant to a communication of Sh. ML Mahajan the then AGM (Land) a sanction of Rs.16,52,700/ was conveyed by AGM for construction of boundary wall around the said plot of land with a view to avoid encroachment after the possession was given to MTNL.
PW15 Sh. HK Bansal proved the file relating to the construction of compound wall as Ex.PW15/A. PW15 also inspected the site on 04.05.2002 and proved the inspection report as Ex.PW15/B. Sh. HK Bansal stated that in the inspection report he has mentioned that the debris collected at the site of construction of staff quarters at Sec.3 Rohini may be utilized at the Telephone Exchange, Mangolpuri site, so that the public exchequer is saved. He also stated that the plot meant for TE Mangolpuri was lower than ground level. Sh. HK Bansal stated that the total technical sanction regarding the construction of boundary wall was around Rs. 16,52,000/ this was split up by the XEN. The splitting is allowed in the rules for the purpose of execution with the permission of the competent authority CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 28 of 10 29 who is competent to accept the tender as a whole. He stated that the splitting was permissible only after taking approval from the SE.
PW16 Sh. Mohinder Singh the then Sr. Assistant, Khangra Cooperative Bank Ltd. had produced the account opening card of Pee Aar Builders Ex.PW16/B, account statement of Pee Aar Builders for the period 1/8/02 to 31/12/02 Ex.PW16/C and account statement of Satya Constructions Ex.PW16/D for the period 1/5/02 to 5/9/05 and these documents were seized vide seizure memo Ex.PW16/A. PW16 also produced the cheques issued to the private contractors Ex.PW16/F1 to F8 which were issued vide memo Ex.PW16/E. PW17 Ashok Kumar Chandok in the capacity of Accounts officer (Cash), MTNL, New Delhi, in September 2005, produced bank books of MTNL D68 to D72 and proved their seizure memo as Ex.PW17/A. Sh. Ashok Kumar proved the payment of bill as follows :
Exhibits Amount Payment made to Cheque No. and date Entry at page No. Ex.PW2/A Rs.28,80,798 M/s. Satya Constructions 380405 dated 81 of bank book, 08.05.2002 Ex.PW17/E and Ex.PW17/E1 Ex.PW6/A Rs.4,47,646 M/s. Satya Constructions 502576 dated 27/8/02 125 of bank book, Ex.PW17/D and Ex.PW17/D1 Ex.PW6/B Rs.5,01,644 M/s. Pee Aar Builders 502577 dated 27/8/02 125 of bank book, Ex.PW17/D and Ex.PW17/D1 Ex.PW6/C Rs.2,57,889 M/s. Satya Constructions 663163 dated 08/05/03 190 of bank book, Ex.PW17/D and CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 29 of 10 30 Ex.PW17/D2 Ex.PW4/A Rs.2,58,364/ M/s Satya Constructions 633531 dtd. 8/4/03 57 of bank book Ex.PW17/B and Ex.PW17/B2.
Ex.PW17/G Rs. 69,500/ M/s Satya Constructions 521369 dtd. 25/9/02. 228 of bank book Ex.PW17/D and Ex.PW17/D3 Ex.PW13/A Rs. 2,50, 457/ M/s Satya Constructions 601462 dtd. 26/2/03 PW18 Ashok Kumar Dhawan the then Asst. Engineer, MTNL, Rohini handed over one agreement No. 22/AE(C)/MTNL/0203, Ex.PW10/B for placing of iron grill which was seized vide production cum seizure memo and proved the same as Ex.PW18/A. PW18 also participated in a videography cum inspection proceedings conducted on 11.09.05 and proved the videography cum inspection memo as Ex.PW18/B. The witness stated after going through the records that there was no grill and there was also no plaster on the wall.
PW19 Sh. S.K. Kharoo the then DE (AT & Inspection) proved the file bearing No. SDE(PC12)/PE7272/200001 as Ex.PW19/A relating to the sanction for the purchase of land and construction of boundary wall. He also proved the file Ex.PW19/B relating to the estimate for construction of the boundary wall. This sanction being duplicate was canceled subsequently vide note dated 04.07.2001, Ex.PW19/E. PW20 Sh. Narendra Mohan Dwivedi Sr. Asst. (Commercial), CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 30 of 10 31 State Bank of India handed over the cheques Ex.PW16/F1 to F8 and Ex.PW20/C1 to C3 along with letter dtd. 21/9/05, Ex.PW20/B and the same were seized vide production cum seizure memo and proved the same as Ex.PW20/A. The above said cheques pertain to M/s Satya Constructions were issued by MTNL, New Delhi.
PW21 Vinod Kumar Sawhney an official of State Bank of Patiala handed over the account opening form of A/c No. 01050060186 (new No. 55014351120) in the name of M/s Satya Constructions and proved the same as Ex.PW21/B. He also handed over the account opening form of A/c No. 01190014265 in the name of Pradeep Maan & Sons HUF alongwith the statement of account and proved the same as Ex.PW21/C. He also proved the account opening form of A/c No. 14266 in the name of Pradeep Maan as Ex.PW21/D. PW21 proved the production cum seizure memo of above said account opening forms as Ex.PW21/A. PW22 Rakesh Dutt is a star witness of CBI. He was associated with the CBI during the inspection on 11.09.2005 along with other CBI officials and MTNL staff. Sh. Rakesh Dutt stated that on the spot Insp. Prem Nath (PW26) did the videography and he himself alongwith JE Anil Kumar took the measurement of the boundary wall. Witness stated that there was masonary wall of around 2ft on which there was around 5 ½ ft brick wall. In between the wall, there were RCC columns and there was plinth beam on the CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 31 of 10 32 masonary wall. Witness further stated that the boundary wall was not complete and it was also not plastered and the RCC columns were also incomplete. Rakset Dutt stated that on the basis of the measurement, he did the calculation and made the assessment regarding the expenditure on the construction existing on the site and compared with the payment made to the contractor. PW22 stated that there was difference of around 13.25 lakhs, in the expenditure made on the existing construction and the payment made to the contractor and the comparison was made on the basis of rates / items mentioned in the paid voucher. PW22 proved the videography cum inspection memo as Ex.PW18/B. PW22 further stated that the measurements of the boundary wall, siteplan and calculation of difference as per physical verification were prepared by him in his own handwriting and he proved the calculation noted by his as Ex.PW22/A. The abstract of this calculation was proved as Ex.PW22/B and the siteplan prepared by him was proved as Ex.PW22/C and the calculation sheet of the difference as per physical verification of work and detailed scrutiny of available documents running into 03 pages was proved as Ex.PW22/D. Sh. Rakesh Dutt also conducted further inspection on 20/9/05 of CSD Store, Sector 5, Rohini and proved the inspection memo as Ex.PW22/E. Witness stated that during inspection, they were shown an estimate and sanction order for the construction of boundary wall and grill, which indicated that iron grill meant for TE Building, CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 32 of 10 33 Mangolpuri was not used at this place. In reply to the court question witness stated that as per inspection, the quantity actually used in the construction of TE Building Boundary wall, Mangolpuri was less than as shown in the paid vouchers. However, the iron grills were not at all installed whereas the payments were made. In respect of the condition of earth filling, witness answered to the court question that the level of the plot was similar to the adjacent plots and it seemed that there was no earth filling. In the cross examination, witness submitted that his duty was to assist the IO in technical matters and he was joined in the investigation for the first time on 11/9/05. Witness admitted that he conducted inspection of the site in RC No. 63(A)/05 alongwith the IO and also proved the photocopy of inspection memo in RC No. 63(A)/05 dtd. 19/12/06 as Ex.PW22/DA. Witness admitted that he knew Insp. CK Sharma since the year 2002 and had enjoyed good relations with him. Witness stated that on the date of inspection, he was carrying instruments like measuring tape, verneer caliperse. He stated that the paid vouchers were shown to him by the IO prior to the inspection. During cross examination, witness admitted that generally, the earth filling work is checked by going through the Level Book which contains the initial level and the final level. However, in this case, the initial level of the site in question was not checked. Witness stated that he asked for the Level Book and MB Book from the IO but the same were not made available to hi.
CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 33 of 10 34 Witness admitted that without going through the Level Book, he cannot tell that how much earth has been filled in the particular plot. It also came in the cross examination of the witness that as per engineering standards relating to the construction of walls, there are certain components which are verifiable after execution of work and there are certain components which are non verifiable after the execution. Witness voluntarily stated that the unverifiable components can be verified if the work has not been completed. Witness was confronted with the "Nabhi's Compilations of CPWD Manual Volume II" the photocopy of page No.1.248 and 1.249 were shown to the witness. Sh. Rakesh Dutt admitted that in completed work, "reinforcement" (steel used in the RCC Column) cannot be measured. However, witness stated that in incomplete work, it can be measured. Sh. Rakesh Dutt admitted that he did not not include boulder wall / masonary wall in his calculation sheet Ex.PW22/B. In respect to the inspection conducted at CSD Store, Sector 5, Rohini on 20.09.05, witness admitted that he did not take any measurement during the inspection as on that day, he went to verify the claim of the accused persons that the grill meant for TE Building Mangolpuri has been installed at CSD Store, Sector 5, Rohini.
PW23 Sh. Jayant Kashmiri was part of search proceedings conducted on 24.09.2003 at the residence of Sh. Anil Kumar, JE, MTNL along with other CBI officials. Witness proved the search cum seizure CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 34 of 10 35 memo as Ex. PW23/A. PW24 Sh. Baljeet Singh was posted as peon in the office of Sh. VK Sharma, AE (Civil). He had received 50 MBs on 13.10.1999 as per endorsement, Ex. PW24/A. Sh. Baljeet Singh handed over the MBs including MB No.1534 and 1550 to AE Sh. ML Mehra.
PW25 Sh. Prem Singh Mural the then Section Supervisor in the office of EE (Electrical), MTNL, Rohini had prepared the proforma bill, Ex.PW6/C and Ex.PW4/A. Sh. Prem Singh Mural identified the signatures of AE RC Bansal and XEN Nihal Chand and XEN SC Sharma. Sh. Mural was posted at Shakti Nagar Sub Division MTNL during the period 20002003 as Section Supervisor. It is pertinent to mention here that Sh. Prem Singh Mural is also a witness in RC No. 63 and 64.
PW26 Insp. Prem Nath had joined the investigation of this case on 11.09.2005 during the videography of the plot in question. PW26 Insp. Prem Nath proved the videography cum inspection memo as Ex.PW18/B. In the CD which was played in the court, it was observed that boundary wall of almost the complete height on the missionary wall is appearing around the plot. However, the boundary wall is not plastered and the RCC coloumns are also visibly looking unfilled. The grill has also been seen only on one side adjacent to some pink building.
PW27 Sh. R.S. Bedi was the member of identification cum CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 35 of 10 36 photography proceedings dated 24.09.2003 of the spot in question and identified his signatures on identification cum photography memo as Ex.PW8/B. PW28 Insp. AK Pandey proved the production cum seizure memo Ex.PW28/A vide which the 32 agreements pertaining to M/s. Satya Constructions and 26 agreements pertaining to M/s. Pee Aar Builders were seized.
PW29 Sh. Ram Sarup was posted at the relevant time in the office of AO (Cash), MTNL, New Delhi and was discharging the duty to check contractors' bill and making entry in the CP register. PW29 had pre checked the bill Ex.PW2/A along with PW2 Sh. Abbal Singh relating to the earth filling work at Mangolpuri. PW29 stated that at the time of pre checking of bill all the requisite documents were available with him. Witness stated that it was not his duty to conduct the physical verification of the work subject matter of the case.
PW30 Sh. Rajneesh Mohindra produced the official record relating to the sanction orders passed by Sh. Shiv Kumar pertaining to RC Bansal, Anil Kumar and HS Sharma. Sh. Rajnees Mohindra identified the signatures of Sh. Shiv Kumar, the then Director, HR, Corporate Office, MTNL and stated that Sh. Shiv Kumar was the competent authority to grant the sanction and to remove the above said persons. He also proved the CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 36 of 10 37 sanction orders as Ex.PW30/A, Ex.PW30/B and Ex.PW30/C. PW31 Sh. RS Rana, GEQD proved his report as Ex.PW31/A and Ex.PW31/B. He also proved the detailed reasons, Ex.PW31/C and Ex.PW31/D. The specimen signatures of Sh. Pradeep Mann, Proprietor of Satya Constructions (S1 to S13) were proved as Ex. PW31/E. The specimen signatures of Sh. RC Bansal, AE, MTNL, Rohini (S14 to S20) were proved as Ex. PW31/F. The specimen signatures of Sh. SC Sharma, Executive Engineer (S21 to S32) were proved as Ex. PW31/G. The specimen signatures of Sh. HS Sharma, Senior AO (S33 to S42) were proved as Ex. PW31/H. The specimen signatures of Sh. Mahavir Singh, Proprietor of M/s. Pee Aar Builders (S43 to S52) were proved as Ex. PW31/J. The specimen signatures of Sh. Nihal Chand, EE, MTNL (S52 to S64) were proved as Ex. PW31/K. The specimen signatures of Sh. Anil Kumar JE )S65 to S80) were proved as Ex. PW31/L. PW32 Insp. CK Sharma was entrusted the investigation of this case after the transfer of Insp. RK Rishi. PW32 proved the FIR, Ex.PW32/A. IO stated that in FIR there were two allegations relating to construction of boundary wall on the plot meant for TE building, Mangol Puri and white wash of RLU Building, Lothian. However, during investigation, the allegations regarding white wash of RLU Building, Lothian could not be substantiated.
CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 37 of 10 38 IO summed up the case stating that the investigation revealed that MTNL had acquired a plot of 4104.70 sq. mtr. Plot from DDA for construction of Telephone Exchange Building. On this plot, there was already stone masonry boundary wall of around 2 ft. For the construction of boundary wall, the estimate was processed and CGM MTNL sanctioned a sum of Rs. 16,52,700/ for construction of boundary wall. As per CPWD Manual, the power of calling and accepting the tender rested with SE . For splitting of the work also, the written permission of the competent authority/ sanctioning authority i.e. CGM MTNL was required. The then SE Harbhajan Singh in anticipation of the sanction, floated the tender twice, however on both the occasions, the tenders were rejected on the ground of high rates. Accused SC Sharma, the then X'en, without any permission splitted up this work in 5 parts, which included earth filling, RCC work, brick work and remaining two parts were of iron and grill work. No written permission of any authority was taken by X'en SC Sharma. In the sanction order, there was no mention of work relating to earth filling, despite that, tenders for earth filling were invited. IO further stated that for the brick work, two tenders from the firms namely Satya Constructions and Pee Aar Builders were received. IO stated that the work relating to brick work was given to Pee Aar Builders and work related to RCC work and earth filling were awarded in favour of Satya Constructions. These three works were CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 38 of 10 39 awarded by Sh. SC Sharma and thereafter, Sh. Nihal Chand took over as X'en after Sh. SC Sharma and floated two tenders for iron and grill work. One work was assigned to Satya Constructions and another work was assigned to Pee Aar Builders. IO further stated that in order to ascertain whether actually work has been carried out or not, a site inspection was conducted on 11.09.2005 and videography was also done in the presence of the independent witnesses namely AK Dhawan and VP Gupta. IO stated that accused persons Pradeep Mann, Anil Kumar and RC Bansal were also present at that time. IO further stated that Inspr. Prem Nath did the videography and RK Dutt did the measurement of the entire place with the help of JE Anil Kumar and no grill work was found to have been executed on the spot, nor was there any earth filling work. IO stated that the brick work and RCC work had been found to have been executed but the same was of a lesser quantity as compared to have been shown in the bills. IO further stated that during investigation accused persons told that grill work had been done at the CSD Store Building, Rohini. However, during inspection of CSD Store Building, Rohini, on 20.09.2005, SDE Harish Chand Sharma and AE AK Dhawan told that iron grill were fixed at CSD Store Building, Rohini, out of a different sanction for this particular purpose. IO further stated that the then SE HC Bansal had inspected the plot meant for TE Building, Mangol Puri and directed that earth may be put in the plot from adjoining site, where CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 39 of 10 40 the work relating to construction of staff quarters was being done and separately a sum of Rs.43,000/ was charged for transportation of earth from construction site to the plot. There was no earth filling work done at the plot. IO further stated that investigation revealed that AO (cash) had illegally accorded the financial concurrence knowing fully well that work has been split without any permission of the competent authority and had also passed two bills relating to iron and grill work, despite being the fact that copy of financial concurrence was not attached with it. Similarly, A2 RC Bansal and A5 JE Anil Kumar signed the deviation statements and other documents knowing fully well that no such work had been executed. IO also proved the various production cum seizure memo vide which the documents were seized. IO proved that MB No.178 and 195 were seized vide seizure memo Ex.PW32/C. IO Insp. CK Sharma proved the search cum seizure proceedings of A2 AE RC Bansal's office on 24.09.2003 as Ex.PW32/H. IO stated that on the same date, a raid was conducted at the office of A5 JE Anil Kumar. However, his office was found locked. Since JE Anil Kumar was not traceable, his office room was seized vide sealing memo Ex.PW32/J and simultaneously an information, Ex.PW32/K was sent to SHO PS Model Town to depute a constable in the office of JE Anil Kumar to avoid any tampering with the record.
In the cross examination, PW32 admitted that the sanction for CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 40 of 10 41 the purchase of plot and construction of boundary wall was accorded by a common document and the copy of the same has been proved as Ex. PW32/DB. In the cross examination, Insp. CK Sharma admitted that he went to Mangol Puri site for the time on 11.09.2005. In a specific question, IO replied that the the execution of any work is recorded in the MB and after the payment of bill, the MBs are kept in the custody of JE. However, he do not remember that who was the concerned JE of Mangol Puri site on 11.09.2005. He stated that the inspection was conducted after a delay of 2 years, as initially the investigation was with other IO and after it was entrusted to him, he was busy in some other cases. Insp. CK Sharma clarified that earlier also an inspection was conducted on 24.09.2003 as per memo Ex.PW8/B but he choose to conduct independent inspection. IO stated that he did not ask for technical inspection of earth filling work as apparently no such work had been done and he reached to the conclusion that no earth filling work has been done on the basis that the level of this plot was equivalent to the level of adjoining plots and no fresh earth was seen there. IO further stated that he do not remember the date of bill relating to earth filling job nor did he collect any information from the DDA regarding the initial ground level of this plot. IO stated that the financial concurrence in this case as appearing at portion Ex. PW32/DE, PW32/DF and PW32/DG should not have been granted as splitting up of the work was done in violation of the rules. However, IO CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 41 of 10 42 admitted that the note on which the financial concurrence was granted, there is no mention of the splitting up of the work.
STATEMENT OF ACCUSED 4.0 In his statement u/S.313 Cr.P.C. XEN SC Sharma stated that the masonary boundary wall was not a complete boundary wall and the same was broken on the back side. In respect of the sanction for the construction of boundary wall, XEN SC Sharma stated that the process for entire sanction was dealt with by the separate circle and he has no concern with the same at the relevant time. In respect of the splitting up of the work SC Sharma stated the power of splitting had been delegated by the CGM MTNL to the Civil Wing Officers and therefore, splitting of the work was permissible even without written permission of the competent authority.
In respect of earth filling SC Sharma stated that in the initial assessment there was no provision for earth filling. However, Sh. HK Bansal, the then SE after inspection of the site ordered for earth filling and pursuant to his directions, Ramroop Meena was asked to prepare separate assessment including earth filling. Accused stated that as per CPWD Manual XEN himself can issue the technical sanction of a work of upto Rs 6 lakhs and therefore, in respect of the earth filling work, he had issued the technical sanction in accordance with the rules. Accused SC Sharma stated that he had CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 42 of 10 43 awarded the work of earth filling as per CPWD Manual and while the work regarding earth filling was in progress, certain quantity of earth was dumped in the plot from the construction site of Sector III Rohini. However, accused was not able to tell about the quantity of such earth dumped in the plot at Mangolpuri. In respect of the bill, Ex.PW2/A relating to earth filling work, accused stated that it was not final bill and it was only a running bill and therefore, there can be a difference in the measurements at the time of preparation of final bill.
In respect of two other works also i.e. RCC work and brick work, accused SC Sharma stated that he had not received any sanction from the higher authorities and therefore, he initiated the tender process in anticipation of the sanction from the competent authority. As per notesheet, Ex.PW32/DE, Ex.PW32/DF and Ex.PW32/DG, the tenders for the above said three works were issued in anticipation of the sanction with the knowledge, permission and consultation of SE Mr. HK Bansal as well as, as per CPWD Manual and Financial Handbook. In respect of work relating to brick work and finishing work awarded to Pee Aar Builders, XEN SC Sharma sated that as per CPWD Manual initially 100% measurements are recorded by JE, thereafter, 50% of this is checked by AE and XEN is supposed to check 10% of the work done and thereafter, the bill is prepared and signed by the AE and submitted to the office of XEN (Divisional Office) CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 43 of 10 44 and the XEN after getting the bill prechecked and the calculation checked by Accounts Officer, would order for release of payment. Accused SC Sharma also clarified that in MTNL there is only one centralized accounts office and bill of all the divisions are sent to this Account Office.
In further question regarding splitting up accused stated that he had not split the work relating to construction of boundary wall and he had only floated the tender for earth filling, brick work and finishing and RCC work, in anticipation of the sanction.
In respect to the inspection conducted by PW15 Sh. HK Bansal on 04.05.2002, accused SC Sharma stated that this inspection was conducted in his absence.
Accused also admitted to have awarded the work relating to RCC of compound wall to M/s. Satya Constructions and payment made against the same. In respect of the two work related to iron grill awarded by accused Nihal Chand, accused SC Sharma stated that he had no knowledge. Accused SC Sharma admitted that a separate sanction of Rs.3,37,400/ for the work relating to placing of grill on back wall of CSD Store, Sector 5, Rohini. He also admitted that in this regard, two bills, Ex.PW13/A and Ex.PW17/G were raised and payment of Rs.2,50,457/ and Rs. 69,500/, respectively, were made to M/s Satya Constructions.
In reply to the measurement done by PW22, accused stated that CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 44 of 10 45 PW22 had not done measurement correctly as per CPWD Manual. The inspection report was apparently false and prepared at the instance of CBI. In reply to the inspection dated 11.09.2005 and 20.09.2005 accused SC Sharma expressed his ignorance. In respect of the non completion of the work accused SC Sharma stated that he was not aware of the iron grill. However, in reply to the other work, accused SC Sharma stated that he was not aware of the iron grills. However, in respect of the quantity, he has checked 10% of the quantity, as per CPWD Manual. Accused stated that IO was predetermined to implicate him falsely whereas the entire work in the payment of work made to the contractor except plaster work of TE Building Mangol Puri. He stated that the plaster work was done at CSD store, Sector 5, Rohini under the directions of PW15 HK Bansal.
4.1 Accused RC Bansal, AE in his statement u/S.313 Cr.P.C. stated that XEN has power of splitting up of work upto Rs.6 Lakhs. Accused RC Bansal stated that he had no concern with the tender process and as well his role started after the receipt of work order from the office of XEN. He stated that the work order used to be handed over to the JE and thereafter, meeting is held with the contractor for the execution of the work. Being an AE, he also used to inspect the work and after the work is completed, JE used to do the measurement and record the same in the measurement book.
CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 45 of 10 46 The work was used to be inspected as per the measurement book and thereafter, the bills used to be prepared by the sub divisional clerk and only thereafter, it used to be placed before him i.e. AE RC Bansal for signature. AE RC Bansal admitted his signatures on bill Ex.PW6/B, Ex.PW6/B (brick work and finishing work awarded by Sh. SC Sharma to M/s. Pee Aar Builders), Ex.PW4/A (providing iron grill on compound wall awarded by Sh. Nihal Chand to M/s. Pee Aar Builders), Ex.PW2/A (regarding earth filling work awarded by Sh. SC Sharma to M/s. Satya Constructions), Ex.PW6/A (regarding RCC work awarded by Sh. SC Sharma to M/s. Satya Constructions) and Ex.PW6/C (regarding grill and boundary wall awarded by Nihal Chand to M/s. Satya Constructions).
In reply to the inspection conducted by PW15 Sh. HK Bansal on 04.05.2002, AE RC Bansal stated that infact, Mr. HK Bansal was not satisfied regarding the earth filling work in a way that he wanted that earth filling work should have been started from the back side outside the boundary wall at a stretch between the boundary wall and the railway line where there used to be heavy water logging. In a question regarding sanction of Rs.3,37,400/ for the work relating to placing of grill on back wall of CSD Store vide accused stated that this approval was regarding placing of grill on the back side of the wall and he also admitted raising of bill, Ex.PW13/A and Ex.PW17/G regarding repair of boundary wall and placing of iron grill.
CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 46 of 10 47 AE RC Bansal admitted the videography proceedings of plot in question conducted on 11.09.2005. However, he stated that measurement was not done correctly and PW22 had filed a false and frivolous complaint. AE further stated that it was decided that on the boundary wall grid plaster should be done whereas in the work order, there was provision for simple plaster. Therefore, it was decided that plaster meant for this plot be done at CSD Store, Sec. V Rohini. Similarly, in respect of the iron grill, it was decided that for safety purpose the same may be installed at front wall of the CSD Store. In respect to Ex.PW30/A, AE RC Bansal stated that Sh. Shiv Kumar was not competent to grant the sanction. Director HR was not the appointing authority. The appointing authority was Principal Chief Engineer. He further stated that even otherwise, the sanctioning authority did not come in the witness box. AE RC Bansal stated that a false case was registered against him on the premises that he was the sanctioning authority whereas as per CPWD Manual, the sanctioning authority was XEN.
4.2 Accused HS Sharma in his statement u/S.313 Cr.P.C. stated that in respect of the bill Ex.PW6/B he had only released the payments after the bill was duly passed by the appropriate authorities and he was not a passing authority. Similarly, in respect of the bill Ex.PW6/A and Ex.PW6/C, accused HS Sharma stated that he had only released the payment after the CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 47 of 10 48 bills passed by appropriate authorities. In respect of the sanction, accused HS Sharma stated that his appointing authority was Member (Finance) Telecom Commission and therefore, sanction granted in the present case by Sh. Shiv Kumar, Director, HR is illegal and invalid. He further stated that the sanction has not been proved in accordance with law as the sanctioning authority did not appear. In respect of the splitting up of work, accused HS Sharma stated that he was not knowing about the splitting of the work and as per the documents Ex.PW32/DE to DG, XEN SC Sharma had initiated the process for tender in anticipation of the sanction. In the note put up before him there was no indication that work has been splitted up. Accused HS Sharma stated that he has been implicated falsely as IO has not conducted fair investigation. Accused stated that his role was similar in RC No.69/03 where IO rightly cited his as a witness and not an accused. Inspt. CK Sharma had malafidely involved him. Accused also stated that in RC 63 & RC 64 also though his role was similar but IO concluded that his role was only confined to release of payment. As AO (Cash), he had no interaction with field units of civil division i.e., the Engineers and the contractors and he was working under the control of CAO and DGM (Finance).
4.3 Accused JE Anil Kumar in his statement u/S.313 Cr.P.C. stated that at the relevant time, he was posted as JE (Civil), Shakti Nagar and CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 48 of 10 49 has no knowledge about the facts of this case. However, the accused was aware about the bills Ex.PW11/A and Ex.PW11/B relating to the boundary wall of the Telephone Exchange, Mangolpuri and splitting the work relating to boundary wall, respectively by PW11 Ramroop Meena. Accused denied to have signed the bill Ex.PW6/B and Ex.PW2/A. Accused also denied to have prepare the deviation statement filed along with bill Ex.PW6/A. JE Anil Kumar stated that he had no concern with any of these work as he was posted as JE Civil, Shakti Nagar and all these work pertains to Mangol Puri Sub Division in the Rohini Division. He further stated that PW11 Ramroop Meena was the concerned JE Civil at Mangol Puri Division. JE Anil Kumar further stated that the case of the prosecution is that though he was posted as JE in Shakti Nagar Sub Division but he prepared the MB in this case pertaining to Mangol Puri Division. However, IO did not place on record these MBs though the same was available with him, only for the reason that if the same are perused by the Court it would be clear that he had not prepared those MBs. Anil Kumar stated that no inspection could have been conducted without MBs and all the estimates in this case were prepared by RR Meena and IO had intentionally let off RR Meena and falsely implicated him. Accused further stated that PW22 JE Rakesh Dutt had the relevant MBs with him at the time of inspection on 11/9/05. However, he intentionally did not place the same on record. Accused also stated that In MTNL there is a CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 49 of 10 50 foolproof system regarding monitoring of all financial transactions. The department did not find any lacuna in the tender process or work awarded. The department also did not initiate any action against any of the accused persons. He further stated that in MTNL the audits are being done at the regular intervals. Even an audit is done on monthly basis. However, in none of the audits it was pointed out that there was any fraud or forgery. 4.4 Accused Pradeep Mann in his statement u/S.313 Cr.P.C. stated that the work was awarded on the basis of tenders. He stated that there is no discretion of XEN in awarding the work. The work is awarded to the contractor, who quotes the lowest rate and this work was also awarded to him as he had cited the lowest rates. In respect to the earth filling work and transportation of malba, accused stated that the malba from the construction site was put at the plot in addition to the earth filling done by him. The malba was brought from the construction site as the people had to move in the flats and therefore, the malba was shifted from that site to that plot in order to save the government exchequer. Accused stated that it was a huge plot and there could not have been complete earth filling in the work awarded to him. Accused stated that he cannot tell the measurement but he must have put around 200 trucks at the plot. Accused admitted that work related to RCC work, compound wall, grill work pertaining to boundary wall CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 50 of 10 51 was awarded to him. He stated that the same was awarded on the basis of lowest rate and as per procedure. Accused also stated that there is always a condition that work is to be carried out as per the instruction of Engineer Incharge. In the present case, the then JE Ramroop Meena directed him to place the grill at the front wall of the CSD Store, Sector V Rohini. In the same complex, he had placed grills on the back wall in pursuant to a different work order and different sanction.
Accused Pradeep Mann also admitted that work related to repair of boundary wall and finishing of iron grill at back side and installation of grill at back side of boundary wall of CSD Store, Sector 5, Rohini were also awarded to him for which bills Ex.PW13/A and Ex.PW17/G were raised. Accused also admitted to have receive the payment against the work awarded to him. Accused Pradeep Mann stated that he had completed the work awarded to him in the year 200203. Accused further stated that during the course of investigation, CBI officer used to call him at their office and he was used to be asked to put signature on certain papers, and this was the reason that he had put the date below his signatures, which shows that his signatures were taken on a day other than the day on which other persons had signed and he was never called at the time of inspection. Accused stated that he had completed the RCC work as per the work order and had put the same quantity of RCC as mentioned in the RCC work. Accused stated that in such CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 51 of 10 52 like cases, the work is awarded and in the work order specific quantity is mentioned. The contractor would stop the work after the utilization of said quantity and thereafter, if it remains incomplete, the department would come out with a subsequent tender and initiate the process for completion of the work. In respect of the height of the wall, accused stated that the work was as per the work order. Accused stated that infact, there were many jhuggies near the plot for TE Building Mangolpuri and there used to be huge theft of the building material during the construction of boundary wall and therefore, it was thought that if the grills are placed here, the miscreants may even steal the iron grills. In the CSD Store, there used to be very expensive raw material lying in the open and there were no grills, therefore, it was decided that grills meant for Mangolpuri be placed at CSD Store, Sector V, Rohini. In respect of the inspection conducted by PW22, accused stated that inspection was not conducted correctly. JE Rakesh Dutt conducted the inspection after more than 03 years and reached to the wrong conclusion that there was no earth filling without any basis. In respect of the earth filling, accused stated that the level of the TE Building plot Mangolpuri was much lower than the adjacent plot and therefore, earth filling work was done but still there was scope for more earth filling in the plot. Accused stated that he has been falsely implicated. IO treated him badly and arrested him without any reasons.
CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 52 of 10 53 4.5 Accused Nihal Chand in his statement u/S.313 Cr.P.C.
admitted that at the time of handing over of land, it was surrounded by a 2ft masonary wall and there was no chain link fencing. In regard to the splitting up of work, XEN Nihal Chand stated that even an XEN can take decision regarding splitting of work of upto Rs. 6 lakhs. Accused Nihal Chand admitted that he had awarded the work for providing iron grill on compound wall at TE Building Mangolpuri to Pee Aar Builders and the bill in this regard Ex.PW4/A (MB No. 1534) was raised and payment was made accordingly. Accused Nihal Chand stated that he had joined this office in January 2003 and therefore, has no knowledge about anything prior to this. Accused also admitted to have awarded work pertaining to grill on boundary wall/ compound wall of TE Building Mangolpuri to M/s Satya Constructions for which a bill Ex.PW6/C was raised and payment was made. Accused also admitted to have sanctioned Rs.3,37,400/ for the work relating to placing of grill on back wall of CSD Store to M/s. Satya Constructions for which bill Ex.PW13/A was raised and payment was duly made. Similarly, bill Ex.PW17/G regarding installation of grill at back side of boundary wall of CSD Store, Sector 5, Rohini was not disputed. Accused admitted an identification cum photography memo Ex.PW8/B relating to TE Building, Mangolpuri on 24.09.2003. Accused stated that he is innocent and has been CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 53 of 10 54 implicated falsely. He further stated that at CSD Store Rohini, all the works were carried out.
4.6 Accused Mahavir Singh, Proprietor M/s. Pee Aar Builders in his statement u/S.313 Cr.P.C. admitted to have been awarded the work relating to brick work and finishing work, work for providing iron grill on compound wall at TE Building Mangolpuri. Accused also admitted to have received the payment from MTNL. Accused stated that he is innocent and has been implicated falsely. Accused stated that he is a respectable person having remained Sarpanch for around 10 years and was also elected unopposed Chairman Block Samiti, Sonipat and Member Zila Parishad. Accused further stated that he has been doing the projects for government agencies since long and he is well acquainted with the Mangolpuri area. It was full of jhuggi clusters and lot of thefts used to take place there. Accused stated that as per Delhi Schedule of Rates (CPWD Manual), the contractor is bound to carry out the work as per the directions of Engineer Incharge. If in a work order, a direction has been given to carry out a work but the Engineer Incharge may direct the contractor to carry out that work at a different location in his division. Accused stated that he has done the complete work as per the work order as per the directions of Engineer Incharge and there was no fault on his part.
CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 54 of 10 55 5.0 ARGUMENTS Defence 5.1 Sh. Rupansh Purohit, Ld. Counsel for accused persons
argued that sanction was not proved in accordance with the law. Ld. Counsel stated that sanction of accused Anil Kumar, HS Sharma and RC Bansal was accorded by Sh. Shiv Kumar, however, he was not examined. In order to prove the sanction order, prosecution examined PW30 Sh. Rajneesh Mohindra and even PW30 in his cross examination admitted that he never worked under Sh. Shiv Kumar. In support of his contention, Ld. Counsel cited Jagannath Maruti Tekade Vs. State of Maharashtra, (1992) 1 BomCr. 255. Sh. Rupansh Purohit, Ld. Counsel also submitted that even otherwise, Sh. Shiv Kumar was not competent to accord the sanction. Ld. Counsel has submitted that since prosecution has failed to prove the sanction order in accordance with law, there has been serious miscarriage of justice.
Sh. Rupansh Purohit, Ld. Counsel further submitted that CBI case against accused Anil Kumar is that he prepared the estimate whereas PW11 RR Meena stated that estimates were prepared by him. In respect of accused HS Sharma, Ld. Counsel stated that CBI has dealt accused HS Sharma in a different manner. Similarly placed accused persons were made prosecution witnesses. However, accused HS Sharma has been arrayed as CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 55 of 10 56 accused. Taking his arguments further, Sh. Rupansh Purohit, Ld. Counsel submitted that as far as brick work is concerned, as per the documents of prosecution itself, brick work was duly executed. Ld. Counsel submitted that as far as plaster is concerned, the prosecution document Ex.PW22/C itself indicates that the plaster work was done at CSD store, Sector 5, Rohini. Ld. Counsel submitted that prosecution has malafidely withheld the measurement books (MBs) and this fact is proved by bare perusal of Ex.PW22/B which indicates that MBs were available on that day. Ld. Counsel submitted that there was huge delay in carrying out the inspection as the work was carried out in 200203 and RC No.51(A)/03 was registered on 23.09.2003, whereas, the inspection was conducted on 11.09.2005 and 20.09.2005. Ld. Counsel further submitted that if we take into account the testimony of PW15, PW17, PW22 and PW32, the case of the prosecution is demolished and these witnesses themselves have created doubt in the story of prosecution. Particularly, in respect of PW22, Ld. Counsel submitted that this witness is not reliable and in the cross examination, the defence has shattered the same. Ld. Counsel pointed out that in the inspection report, nowhere it is mentioned that MBs were not available. Had the MBs were not available, IO must have mentioned it in his report. The plea of the defence was that MBs were duly available with the IO and IO intentionally withheld the same. Had the MBs were produced, it could be proved that work was CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 56 of 10 57 duly executed as per work order. Ld. Counsel submitted that verification procedure was not conducted as per CPWD manual and IO withheld the audit reports. It has also been pointed out that MTNL has not taken any action. It has further been pointed out that as per CPWD manual, para 7.25, JE concerned has to record the measurement. In the present case, the concerned JE was PW11 RR Meena. Ld. Counsel submitted that there was no reason to absolve RR Meena. Ld. Counsel would argue that all the accused persons are entitled to be acquitted.
Prosecution 5.2 Sh. D.K. Singh, Ld. PP for CBI has submitted that prosecution has successfully proved its case beyond reasonable doubt on the basis of cogent and creditworthy material on record. The inspection report dated 24.9.2003, 11.09.2005 and 20.09.2005 have duly been proved. Ld. PP submitted that confusion tried to be created by Ld. Defence counsel regarding the inspection dated 24.09.2003 and 25.09.2003 particularly in reference to the observation made by the court it its order dated 11.04.2007 is misplaced. Ld. Counsel submitted that in fact, the inspection was conducted at late night and after 12 (midnight), since the date changed, there was some confusion regarding the date. It would not effect otherwise credible case of the prosecution. Ld. PP submitted that in the present case, leaving aside the CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 57 of 10 58 technical aspect, two things are very clear that plaster on the wall was not executed, whereas the payment of the same was made and secondly, the work related to iron grill was not executed and the payments were made against the same. Ld. PP submitted that prosecution has successfully proved its case and accused persons are liable to be convicted.
FINDINGS 6.0 The case of the prosecution in RC No.51(A)/03 can broadly be classify as under :
1. A1 SC Sharma splitted the estimate of construction of boundary wall unauthorizedly in violation of the rules ;
2. A4 HS Sharma passed the bill knowing fully well that work has been splitted up and awarded in violation of the rules ;
3. The estimate for the construction of boundary wall was splitted up into following five heads :
a) Brick work and finishing work
b) RCC work
c) Earth filling
d) Iron grill work on compound wall ;
e) Iron grill work on boundary wall; and,
4. A1 to A5 in conspiracy with A6, prepared the forged bill and released CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 58 of 10 59 the payment to A6 without any work having been executed.
The case of the prosecution is that brick work and finishing work was not executed in its entirety. The plaster was not done at all. Similarly, in relating to earth filling work, the accused persons in conspiracy with each other charged public exchequer unauthorizedly. RCC work was also not done in accordance with the work accorded. Remaining two work of iron and grill work were not executed at all. It is an admitted case of the accused persons that plaster at the boundary wall of Mangol Puri Telephone Exchange was not done at the direction of Engineer Incharge and the plaster was done at some other place and similarly, iron and grill work were done at boundary wall (except backside of wall) at CSD store, Sector 5, Rohini. The accused persons took the plea that plaster work was not done on the boundary wall and the same was done at the CSD store, Section 5 Rohini on the directions of PW15 HK Bansal but this fact was not at all put to PW15 HK Bansal in his cross examination.
Iron Grill Work 6.1 The case of the prosecution is that MBs in this case were not traceable and accused persons intentionally withheld the same with malafide intention. Whereas, the case of the defence is that MBs were withheld by IO CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 59 of 10 60 and IO did not produce the same for the reasons best known to him. Accused persons have pleaded that had the MBs were produced, it could have been brought on record that iron and grill work were done at CSD store, Sector - 5, Rohini at the instructions of Engineer Incharge and similarly, the plaster was done at Saraswati Vihar at the directions of Engineer Incharge. PW10 Harish Chand Sharma deposed on oath that no grill from Mangol Puri was put in the work over CSD store. PW22 Rakesh Dutt also specifically stated on oath that iron grill was not at all installed at the boundary wall. IO also specifically stated in his testimony that during inspection of CSD store Rohini, the officers posted there told that iron grill fixed at CSD store was installed from different sanction for this particular purpose. If we examine the plea of the accused from the angle that the bills Ex.PW13/A and Ex.PW17/G were related only to the backside of boundary wall and the grill on the other side of the wall were on account of the iron grill meant for TE building Mangol Puri, it would be clear that in order to prove this, the accused persons were supposed to bring two facts on record by way of positive evidence. Firstly, that iron grills meant for TE building Mangol Puri were actually installed at CSD Store, Sector 5 Rohini and secondly, no payment was made for such iron grills.
In respect of the splitting up, accused persons have taken a plea that XEN was authorized to split up the work. It has been submitted that CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 60 of 10 61 initially the joint estimate was passed for the purchase of land and construction of boundary wall. First splitting had already been done when two different estimates for purchase of land and construction of boundary wall were made and therefore, accused SC Sharma had merely splitted it into further subheads for the purpose of expediency and in order to ensure maximum utilization of public exchequer. It is pertinent to mention here that PW1 Niranjan Singh specifically stated on oath that XEN cannot call the tender without approval from the competent authority. At the outset, I may mention here that merely splitting up of work, if seen alone may not be more than a technical lapse, but it could be serious if it is seen with the surrounding facts and circumstances. Had the work been splitted and being executed, the mere splitting might have of no consequences. But if the work is splitted up and then it is not executed and the payments are made, then it is of serious consequences.
6.2 Accused HS Sharma was the accounts officer. The case against him is that he accorded the financial concurrence knowing fully well that XEN have splitted up the work unauthorizedly. CBI has acted on the presumption that had HS Sharma not granted the sanction, the payment would not have been made to accused Mahavir Singh (A6 in CC No.31/11) and accused Pradeep Mann (A6 in CC No.32/11).
CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 61 of 10 62 The case of the defence is that as per the procedure laid down in CPWD manual, the bills are prepared at subdivision office and then it is sent to the accounts office. It is also pertinent to mention here that in MTNL, accounts office is centralized where bills from all the subdivisions have come. In the accounts office, the prechecking of the bill is done. This pre checking is done by comparing the measurements with the measurement book and after prechecking is done, if the bill is found in order, it is sent back to the division office. If the bill is not found in the order, the pre checking team sent it back to the office for further clarification. However, in the first case, when the bill is sent to the division office, XEN passes the bill and then it comes back to the accounts office and accounts officer merely passes the bill for payment. If we see the entire scheme, the role of the accounts officer seems to be that when the bill is produced before him after getting it prechecked and passed by XEN, accounts officer merely passes it for the payment.
6.3 In the present case, prosecution has placed on record the initial estimate on which the financial concurrence has been accorded by A4 HS Sharma. If we go through these estimates which are on notesheets, Ex.PW32/DE, Ex.PW32/DF and Ex.PW32/DG, it would indicate that XEN has specifically mentioned that estimates have been made awaiting the CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 62 of 10 63 formal sanction from the appropriate authorities. There is ample material on the record that accounts officer has no other role to play. There is no occasion for accounts officer to ascertain that whether the actual work has been executed or not. The verification of inspection of work is to be done by JE - 100%, AE - 50% and XEN - 10% as per rules. In the entire hierarchy, there is no place for accounts officer to conduct the verification of the inspection of work. In the circumstances, I consider that no case is made out against A4 HS Sharma.
6.4 In respect of remaining accused persons, A1 SC Sharma, A2 Nihal Chand, A3 Ramesh Chand Bansal and A5 Anil Kumar, who are PWD officials and A6 Mahavir Singh in CC No.31/11 and A6 Pradeep Maan in CC No.32/11, the prosecution has alleged that they acted in conspiracy with each other and in pursuant to that conspiracy prepared the bill for which either no work was executed or the work which was executed was much lesser than what was purportedly to have been done. 6.5 As far as the case of accused Anil Kumar is concerned, he has been chargesheeted on the ground that he had prepared the MBs unauthorizedly. The case of the CBI was that Sh. RR Meena was the concerned JE. However, accused Anil Kumar who was posted in Shakti CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 63 of 10 64 Nagar Branch made entries in MBs. However, admittedly MBs have not been produced by prosecution. In absence of the same, charge on this account against accused Anil Kumar may not stand on its legs. It has also been alleged against accused Anil Kumar that he had prepared the deviation statement in respect of bills in question. I consider that merely because Anil Kumar put his signatures on certain papers annexed with the bills, the criminality cannot be attributed to A5 Anil Kumar. It is pertinent to mention here that primarily A1, A2 and A3 were responsible for passing of the bills in question. It is also pertinent to mention here that PW Ramroop Meena was the concerned. There is no other credible evidence against A5 Anil Kumar. In view of the facts and circumstances, prosecution has failed to prove its case against accused Anil Kumar beyond reasonable doubt. 6.6 It is borne out from the record that an estimate of Rs.16,52,700/ was passed for the construction of compound wall on the plot meant for the construction of Telephone Exchange Mangol Puri. The land was acquired from DDA. As per the estimate, the compound wall was meant to be supported on RCC Column and beams with provision of 10ft high compound wall plus 2ft high grill. Besides this, steel gate of 7.2m wide was also required to be made.
CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 64 of 10 65 The following work was awarded : Nature of work Work awarded by Work awarded to Details of Payment Brick work and A1 SC Sharma M/s. Pee Aar Payment was made finishing work Builders through A6 vide bill Ex.PW6/E. Mahavir Singh Earth filling A1 SC Sharma M/s. Satya Payment was made Construction vide bill Ex.PW2/A. Work of RCC A1 SC Sharma M/s. Satya Payment was made Construction vide bill Ex.PW6/A. Iron and Grill Work A2 Nihal Chand M/s. Pee Aar Payment was made Builders vide bill Ex.PW4/A. Iron grill on A2 Nihal Chand M/s. Satya Payment was made boundary wall Constructions vide bill Ex.PW6/C
The videography conducted at the site revealed that iron grills were not at all installed. The plea of the accused persons is that iron grills were actually placed at CSD store, Sector 5, Rohini. This fact is assailed by the prosecution on the ground that grill at the backside of boundary wall was carried out by the different agreement No.22/EE/CC/MTNL/0203 for which the first and final bill, Ex.PW17/G was passed for Rs.77,490/. Similarly, another bill, Ex.PW13/A was also passed regarding repairing of boundary wall and finishing of iron grill. It is interesting to note that both these work were also awarded to M/s. Satya Constructions and were passed by XEN Nihal Chand and SC Sharma. It is pertinent to mention here that on bill Ex.PW13/A, AE RC Bansal had duly put his signatures.
CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 65 of 10 66 The videography and inspection conducted on 11.09.2005 revealed that quantity of work mentioned in the bill as compared to the actual work carried out was far below the quantity.
Sanction 6.7 Accused persons have assailed the sanction order on the ground that sanction has not been accorded by the competent authority and the same has also not been proved in accordance with law. In respect of the sanction, the defence has relied upon Jaganath's case (supra).
In order to prove sanction, prosecution has examined PW1 Niranjan Singh, who has accorded the sanction for prosecution against A2 Nihal Chand. The sanction for prosecution against A3, A4 and A5 was accorded by Sh. Shiv Kumar. The sanction order have been proved as Ex.PW30/A, Ex.PW30/B and Ex.PW30/C. These sanction orders have been proved by PW30 Rajneesh Mohindra. PW30 brought the official record relating to sanction orders passed by Sh. Shiv Kumar. He duly identified the sanction orders. It also came in his testimony that Sh. Shiv Kumar has since been retired and is in USA as per his knowledge. Witness specifically stated that Sh. Shiv Kumar, Director (HR) was the competent authority to grant sanction and was competent to remove the said persons in respect of sanction CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 66 of 10 67 order. The defence has assailed the sanction on the ground that PW30 Rajneesh Mohindra admitted in the cross examination that he did not know Sh. Shiv Kumar and had never worked under him.
In Jaganath's case (supra), the sanctioning authority was not examined and clerk was examined. The court held that examination of clerk from office is tantamount to the examination of no witness at all because, that clerk is certainly not a competent witness for purposes of deciding the crucial question as to whether the sanctioning authority applied his mind to the facts of the case and whether he granted a valid sanction. Such questions also arose before the Hon'ble Supreme Court in State of Rajasthan Vs. Tarachand Jain, AIR 1973 SC 2131. In this case, sanction was accorded by the Chief Minister. Prosecution examined a witness PW29, who in the course of evidence stated that sanction bore the signatures of Sh. RD Thapar, Special Secretary in the Appointments Department and the defence assailed the mode of proof. The appellant assailed the sanction on the ground that there was no evidence to show that the papers had been put up to the Chief Minister and he had given the sanction for the prosecution after applying his mind. Spl. Judge rejected the contention. In High Court, the plea of the defence was accepted. However, Supreme Court inter alia held that so far as this aspect of the matter is concerned, the position of law is that the burden to proof that the requisite sanction had been obtained rests upon the CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 67 of 10 68 prosecution. Such burden includes proof that the sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was to be based. These facts might appear on the face of the sanction or it might be proved by the independent evidence that sanction was accorded for prosecution after those facts had been placed before the sanctioning authority. It is pertinent to mention here that in Tara Chand Jain's case also PW29 had appeared to prove the sanction and identified the signatures of RD Thapa, Spl. Secretary.
In the present case, PW30 Rajneesh Mohindra had brought the official record relating to the sanction order passed by Sh. Shiv Kumar. He has also specifically stated that Sh. Shiv Kumar has since been retired. It seems difficult to procure the presence of such a person. I consider that the court cannot fall into this technicality and has to follow the procedure which would subserve the cause of justice. The sanctions proved, on the face of it indicates that the same have been granted after having due appreciation of mind. The defence did not cross examine PW30 at all on the point that Sh. Shiv Kumar was not competent to grant the sanction. It is pertinent to mention here that the witness had duly brought the entire record.
Even otherwise, the amended phase of section 19(3) of PC Act, 1988 makes it crystal clear that sanction order may not be rejected merely on the ground of irregularities. The court has to see whether on the face of it, CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 68 of 10 69 the sanctioning authority has duly applied his mind before granting the sanction. The defence only during the course of arguments has taken a plea that Sh. Shiv Kumar was not competent to grant the sanction. Sanction is prerequisite for prosecution under PC Act. However, the court is required to take a pragmatic view and is required to see only the fact that the sanction has been accorded by the appropriate authority. I consider that prosecution has duly proved the sanction in accordance with law. The judgment cited by Ld. Defence counsel is respectfully distinguished on the facts and circumstances of the present case.
RCC Work 6.8 PW22 Rakesh Dutt was the member of the inspection team. The inspection was conducted by CBI on 11.09.2005. In his examination, the witness stated that there was masonry wall of around 2ft on which there was around 5 ½ ft brick wall. In between the wall, there were RCC columns and there was plinth beam on the masonary wall. It also came in the testimony of this witness that the boundary wall was not complete and it was also not plastered and the RCC columns were also incomplete. PW22 conducted the measurements and the measurements have duly been recorded in Ex.PW22/A. Perusal of Ex.PW22/A would indicate that no grill was found on the boundary wall and the boulder wall shown in he bills did not match CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 69 of 10 70 with the quantity physically seen at the spot. PW22 has also made the comparison statement of the actual work done and detailed scrutiny of documents available with the MTNL. In his detailed statement, Ex.PW22/D, which has been proved by way of calculation, there was deficiency of around Rs.13 Lakhs in the work actually found on the spot and as compare to the bill. The quantity was also found much lesser as compare to the quantity as per the measurement book. The defence has made an attempt to raise their case on the basis of document Ex.PW22/A in which PW22 has written the quantity as per measurement. Ld. Counsel for accused has vehemently argued that bare perusal of document Ex.PW22/A would indicate that measurement book was available with CBI on 11.09.2005 and the same was not produced before the court with ulterior motive. It has consistently been the case of the prosecution that MBs were not available since beginning. It is also pertinent to mention here that in the cross examination, PW22 was not all all asked that whether he had measurement books available with him on 11.09.2005. PW22 was also not asked to clarify that on what basis the quantity was recorded by him in Ex.PW22/B. However, there does not seem to be any force in the arguments of the defence, I have compared Ex.PW22/D with the abstract of work placed alongwith the first and final bill. In respect of iron grill relating bills are Ex.PW4/A and Ex.PW6/C, the total quantity to be used was 6196.76 and 6967.52 and the exactly same quantity has been CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 70 of 10 71 shown in Ex.PW22/D. It is pertinent to mention here that the quantity in the abstract of work are taken from the measurement books and the same are prepared at the time of processing of the bill. It is wroth to note here that the case of the CBI is that the MBs were available till the time the bills were processed. Similarly, in respect of RCC work, as per abstract of work, the quantity has been shown to be 16.93 and 51.10 and exactly the same quantity has been shown in Ex.PW22/D. In order to reassure myself, I have also seen the first and final bill Ex.PW22/C relating to brick work and RCC columns and the quantity shown in abstract of work. In this also the quantity of plaster shown in the abstract of work is exactly the quantity shown in Ex.PW22/C. PW22 was the star witness of the prosecution. The defence has assailed this witness on the ground that he has deposed falsely at the instance of IO. Ld. Defence counsel has assailed the testimony of PW22 on the ground that PW22 himself has admitted in the cross examination that he knew Insp. CK Sharma since 2002 and have good relations with him. I consider that merely on this ground the testimony of PW22 cannot be discarded. A person may have good personal relations but might have total neutrality while working as professional. On the face of it, the testimony of a public servant cannot be rejected merely because he had personal relations with the IO, on the same analogy that a person cannot be branded as an interested witness, unless and until there is material on record to indicate that CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 71 of 10 72 he has deposed falsely.
It is a settled proposition that there is no prohibition on a conviction being recorded on the basis of testimony of official witness if they are found to be trustworthy. Reference can be made to Khalek Shaikh Vs. State of West Bengal (2006) 7 SCC 439. I do not see any reason to reject the testimony of PW22. PW22 is a public servant. There is no reason for him to depose falsely against the accused persons. In the ordinary course, a public servant acts honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servant they are interested in the success of their case. Reference can be made to State of Kerala Vs. MM Mathew, AIR 1978 SC 1571.
6.9 The major plank of the case of CBI is that iron and grill work has not at all been executed on the boundary wall of telephone exchange of Mangol Puri, whereas the accused persons in conspiracy with each other passed the bill Ex.PW6/C for Rs.2,57,889/ and first and final bill, Ex.PW4/A for Rs.2,58,364/. The work relating to bill Ex.PW4/A was awarded to M/s. Pee Aar Builders and was shown to have been executed between 23.02.2002 to 15.03.2003. Similarly, the work relating to bill Ex.PW6/C was awarded to M/s. Satya Construction and shown to have been CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 72 of 10 73 executed between 23.02.2003 to 07.04.2003. The plea of the accused persons were that these grills were installed at the backside of CSD store, Sector 5, Rohini at the instructions of Engineer Incharge. However, prosecution negated this plea by producing the bill Ex.PW13/A and Ex.PW17/G. Both the bills were relating to repair of boundary wall and finishing of iron grill at backside of CSD store, Sector 5, Rohini. The bill Ex.PW13/A was passed for payment in the sum of Rs.2,50,457/ in favour of M/s. Satya Constructions and work was purportedly to have been executed between 07.02.2003 to 14.02.2003. Similarly, bill Ex.PW17/G was passed for payment of Rs. 69,500/ and it was shown to have been executed between 03.08.2002 to 07.08.2002.
The accused persons took a plea that actually the iron grill were placed on the other two side of boundary wall of CSD store, Sector 5, Rohini and the bill Ex.PW17/G and Ex.PW13/A are only relating to backside of boundary wall. Now this fact that iron grills were placed on the other side of the boundary wall at CSD store, Sector 5, Rohini is within the special knowledge of accused persons. The prosecution has proved that iron grills were not installed at the place for where they were meant to be. The prosecution has also proved that the bills for installation of these iron grills were duly passed and payment was also duly made. It is pertinent to mention here that accused persons have not disputed the payment of bill Ex.PW6/C CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 73 of 10 74 and Ex.PW4/A. Then, the accused persons took a plea that had the measurement books been produced it would have been clear that the grills were installed at the other side of boundary wall at the instructions of Engineer Incharge. It is pertinent to mention here that the bills are made on the basis of entries made in the measurement books. Had there been something in the measurement books, it must have reflected in the bills also. There is no mention in the bills that the grills were placed at CSD store, Sector 5 Rohini in place of boundary wall, Telephone exchange Mangol Puri. In order to prove their point, the defence has relied upon the cross examination of PW3 who has stated that iron grills were installed at northern side and partly on southern side. This statement on the face of it cannot be believed as in the examination in chief, this witness stated that the work of boundary wall and the grill work in the Telephone Exchange area was done before the date of his joining. The defence has also relied upon the testimony of PW17 Ashok Kumar Chandok who proved the bill Ex.PW17/G and Ex.PW13/A pertaining to grill at the backside of boundary wall at CSD store, Sector 5, Rohini and repair to boundary wall and finishing of iron grill at the backside of CSD store, Sector 5 Rohini. The defence has also assailed the case of CBI on the ground that though the videography was conducted at plot meant for telephone exchange building, Mangol Puri but no videography was conducted at CSD Store, Sector 5, Rohini. It was also pointed out that CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 74 of 10 75 PW22 admitted in the cross examination that he did not conduct any measurement during the inspection conducted on 20.09.2005. I consider that this argument of the defence has also no force. The prosecution is not obliged to collect the evidence for defence.
Brick Work and finishing work 6.10 In respect of the brick work and finishing work, it is again an admitted case of the accused persons that the plaster was not done at the boundary wall on the spot meant for Telephone Exchange Building Mangol Puri. The accused persons took a plea that this work was actually conducted at Saraswati Vihar Store as indicated from document Ex.PW22/C. In this respect, there is some contradiction regarding the height of the wall. As per the abstract of the work filed along with bill Ex.PW6/B, the brick work was to be done about plinth level upto 5 floor level. However, in the videography it seems that the full height of the wall was seen and further because the prosecution has not proved that actually upto what height the wall was to be raised, it cannot be said that the wall of complete height was not constructed. However, as far as the plaster work is concerned, admittedly the same has not been done. Again, it was for the accused persons to prove that the plaster meant for here was done at the some other place at the instructions of Engineer Incharge. There is no indication on bill Ex.PW6/B that the plaster CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 75 of 10 76 meant to be done at this place was done at some other place. Prosecution has proved on record that payment has been made to M/s. Pee Aar Builders for this work. It was within the special knowledge of accused persons that the work has been done at some other place in accordance with the directions and this fact has not been proved by the accused persons. Hence, here also, accused persons seems to be in conspiracy with each other for having made and received the payment against the work which was not actually executed. Earth Filling 6.11 In respect of the earth filling, I consider that the prosecution has not been able to bring on record the sufficient evidence to show that the earth filling has not been done in accordance with the work order or the payment which has been made was not in excess of the work actually executed.
7.0 Accused persons have been charged for conspiracy. The criminal conspiracy has been defined u/S 120A IPC:
"120A - Definition of criminal conspiracy -
When two or more persons agree to do, or cause to be done,
1. an illegal act, or
2. an act which is not illegal by illegal means, such an agreement is designated a CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 76 of 10 77 criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof."
It is a settled proposition that it is difficult to find out the direct evidence in the case of conspiracy because normally the conspiracy is hatched in the dark and executed in utter secrecy but there has to be cogent and credible evidence on record to attribute the conspiracy to the accused persons.
It is a settled proposition that conspiracy cannot be assumed from a set of unconnected facts or from a set of conduct exhibited by different accused persons at different places and time without reasonable link. Suspicion, however strong, cannot take the place of legal proof. The accused persons cannot be held liable for the conspiracy on the mere presumption and assumption. There has to be legal evidence to the effect that accused persons hatched the conspiracy. The conspiracy can be inferred by necessary implications but such inference can only be drawn on the parameters in the manner of proved facts. Whatever be the incriminating circumstances, it must be clearly established by reliable evidence and they must form the full chain whereby a conclusion about the guilt of the accused CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 77 of 10 78 can be safely drawn.
In Chaman Lal v. State of Punjab , AIR 2009 SC 2972, it has been inter alia held as under :
"7. It would be appropriate to deal with the question of conspiracy. Section 120B IPC is the provision which provides for punishment for criminal conspiracy. Definition of "criminal conspiracy" given in Section 120A reads as follows:
"120A. When two or more persons agree to do, or cause to, be done, (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof."
The elements of a criminal conspiracy have been stated to be:
(a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and (d) in the jurisdiction where the statute required an overt act. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. From this, it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Law making conspiracy a crime, is CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 78 of 10 79 designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which coconspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment.
The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. (See American Jurisprudence, Vol. II, Sec. 23, p. 559.) For an offence punishable under Section 120B, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or caused to be done an illegal act; the agreement may be proved by necessary implication. The offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and an act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for use of criminal means.
8. No doubt in the case of conspiracy there cannot be any direct evidence. The ingredients of the offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 79 of 10 80 circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused.
9. In Halsbury's Laws of England (vide 4th Edn., Vol. 11, p. 44, para 58), the English law as to conspiracy has been stated thus:
"58. Conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law, the punishment for which is imprisonment or fine or both in the discretion of the court.
10. The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied, or in part express and in part implied. The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however it may be. The actus reus in a conspiracy is the agreement to execute the illegal conduct, not the execution of it. It is not enough that two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose. It is not, however, necessary that each conspirator should have been in communication with every other."
Perusal of the above judgment indicates that prosecution is CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 80 of 10 81 bound to place on record cogent and creditworthy material to prove that there was meeting of mind for an unlawful purpose. In the present case, there are two set of accused persons i.e. public servants and contractors. The case of the CBI is that forged bills have been prepared and the payments were made to the contractors without any work having been executed. If it is found that no work was executed against the bills for which payments were made, it would be sufficient to hold the accused persons liable for conspiracy. In such a case, no other evidence would be required.
7.1 Prosecution has proved by cogent and creditworthy evidence that the bills were prepared and the same were signed by AE and passed by XEN Nihal Chand or XEN SC Sharma and the payments were received by Pradeep Mann and Mahavir Singh shows that they were in conspiracy with each other. In respect of the splitting up of work, PW15 HK Bansal stated that in this case, splitting was done by XEN. The splitting is allowed in the rules for the purpose of execution with the permission of the competent authority who is competent to accept the tender as a whole. In this case, no sanction was taken for the splitting. The splitting in this case by the XEN was permissible only after taking approval from the SE. The witness specifically stated that in this case, no sanction was taken from him for the splitting.
CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 81 of 10 82 Ld. Defence counsel has argued that the prosecution has not brought any material to show that there as any mensrea or malafide intention on the part of accused persons. It has also been submitted that there is no material on record to show that accused persons had obtained any pecuniary advantage. Whether the offence of misconduct prerequisite, came up for discussion before the Hon'ble High Court in Sukhram Vs. CBI, Crl. A. 536/2002, decided on 21.12.2011. The division bench of Hon'ble High court after discussing the entire legislative background and number of judgments, inter alia held as under :
"Though the reference order elaborately lists out the salient facts in the Appeals, notes rival contentions, and even notices relevant case law, it is necessary to recapitulate the preexisting law, i.e. Section 5 (1) (d) of the 1947 Act, and juxtapose it with the 1988 Act. The controlling clauses, in both provisions, are in pari materia )"a public servant is said to commit the offence of criminal misconduct if he..."). Section 5 (1) (d) reads as follows:
"(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage..."
Section 13 (1) (d) (i), (ii) and (iii), on the other hand, read thus:
"(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 position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as servant, obtains for any person any valuable thing or pecuniary advantage without any public interest..."
It is clear from the above comparison that in clause (i), the reference to "corrupt or illegal" means, (of a public servant obtaining -for himself, or someone else any valuable thing or pecuniary advantage) has been retained. However, the reference to doing of such an act "otherwise" (which was there in the previous law, i.e. Section 5 (1) (d)) has been omitted. The latter parts of Section 5 (1) (d), CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 82 of 10 83 i.e. the public servant obtaining for himself or for any one else any valuable thing or pecuniary advantage, by abusing his position as a public servant has been retained, in Section 13 (1) (d) (ii). A new offence (or subspecies, of the existing offence) has been carved out, in Section 13 (1) (d) (iii) which criminalizes, as "criminal misconduct" the act of a public servant, holding office, which results in someone else ("any person") benefitting by getting a valuable thing or pecuniary advantage, "without any public interest". There is no doubt that Parliament created this new offence of criminal misconduct, where abuse of office, or use of corrupt or illegal means by a public officer, is inessential to prove the crime. What the prosecution has to establish, in accordance with law, is that the public officer, obtained for someone else - not necessarily by abusing his office, or using corrupt or illegal means - pecuniary advantage or a valuable thing - without public interest.
67. It is not as if Parliament had changed the law, for the first time. The legislative history of Section 5 would reveal that it was amended repeatedly. The first amendment, in 1952, introduced Section 5 (4) which clarified that the provision was in addition to, and not in derogation of any other existing law; the second amendment substituted Section 5(2) which provided for a minimum sentence; it also introduced subsection (2A). The third amendment, brought about in 1964, introduced a significant change; the controlling expression, or the opening phrase defining criminal misconduct, under Section 5 when the Act was introduced, and till its amendment in 1964, was "a public servant is said to commit the offence of criminal misconduct if he in the discharge of his duty...". The third amendment omitted the expression "in the discharge of his duty". Thus, whether or not a public servant acted in discharge of his duty, if his conduct fell into the questionable categories specified in Section 5, he became an offender. The intention was clear: to cast the net and draw all manner of behavior which was deleterious and injurious to public functioning, whether the public servant acted in the discharge of his duty, or otherwise.
68. Before embarking on a discussion of the case law cited, and the submissions regarding the interpretation of Section 13 (1) (d), it would be essential, at this stage to notice the Statement of Objects and Reasons for the 1988 Act. They are extracted below:
"The Bill is intended to make the existing anticorruption laws more effective by widening their coverage and by strengthening the provisions.
2. The Prevention of Corruption Act, 1947, was amended in 1964 based on the recommendations of the Santhanam Committee.
There are provisions in Chapter IX of the Indian Penal Code to
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deal with public servants and those who abet them by way of criminal misconduct. There are also provisions in the Criminal Law Amendment Ordinance, 1944, to enable attachment of ill gotton wealth obtained through corrupt means, including from transferees of such wealth. The Bill seeks to incorporate all these provisions with modifications so as to make the provisions more effective in combating corruption among public servants.
3. The Bill, inter alia, envisages widening the scope of the definition of the expression "public servant", incorporation of offences under Sections 161 to 165 A of the Indian Penal Code, enhancement of penalties provided for these offences and incorporation of a provision that the order of the trial court upholding the grant of sanction for prosecution would be final if it has not already been challenged and the trial has commenced. In order to expedite the proceedings, provisions for daytoday trial of cases and prohibitory provisions with regard to grant of stay and exercise of powers of revision on interlocutory orders have also been included.
4. Since the provisions of Sections 161 to 165A are incorporated in the proposed legislation with an enhanced punishment, it is not necessary to retain those sections in the Indian Penal Code. Consequently, it is proposed to delete those sections with the necessary saving provision.
5. The notes on clauses explain in detail the provisions of the Bill."
69. The reference order relies on various materials, such as G.P.Singh‟s Principles of Interpretation of Statutes, (9th edition, pp.779780). The passage extracted referred to the judgment of Lord Goddard, in Brend v Wood (1946) 62 T.L.R. 462 to the effect that mens rea must be inferred in every penal statute if it does not expressly provide it, unless it is ruled out by necessary implication. The passage is as follows:
"It is in my opinion the utmost importance for the protection of the liberty of the subject that a court should always bear in mind that, unless the statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, a defendant should not be found guilty of an offence against the criminal law unless he has got a guilty mind."
CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 84 of 10 85 Counsel for the Appellants had relied on the decisions in M. Narayanan Nambiar v. State of Kerala, 1963 Supp (2) SCR 724; Soma Chakravarthy v State 2007 (5) SCC 403; Ram Krishan v. State of Delhi, 1956 SCR 182; Major S.K. Kale v. State of Maharashtra, (1977) 2 SCC 394; S.P. Bhatnagar v. State of Maharashtra, (1979) 1 SCC 535; Abdulla Mohammed Pagarkar v State 1980 (3) SCC 110; A. Wati Ao v State of Manipur 1995 (6) SCC 488; C.K. Damodaran Nair v Govt of India 1996 (9) SCC 477; M. Mohiuddin v State of Maharastra 1995 (3) SCC 567 and R. Balakrishna Pillai v State of Kerala 2003 (9) SCC 700 to say that mens rea or criminal intent is an essential ingredient which the prosecution has to prove in every case. It was urged, in this context, that Section 13 (1) (d) (iii) cannot be divorced from its setting and context and that there was nothing in the Act to say that criminal intent ought not to be read into. On the other hand, the ASG had relied on the decisions reported as Ranjit Udeshi v State of Maharastra 1965 (1) SCR 65, State of Maharastra v Meyer Hans George 1965 (1) SCR 123, Dineshchandra Jamnadas Gandhi v State of Gujarat 1989 (1) SCC 420 and Radhey Shyam Khemka v State of Bihar 1993 (3) SCC 54, Y.S. Parmar v Shri. Hira Sikngh Paul 1959 Supp (1) SCR 213 and Gopaldas Udhavdas Ahuja v Union of India 2004 (7) SCC 33 for the argument that mens rea cannot be read into a statute, on the application of any rigid thumb rule.
70. There is no doubt that Section 13 (1) (d) (iii) differs from other parts of the Act, not only in structure, but also in substance. The use of terms such as "habitually accepts" "agrees to accept" "attempts" "consideration which he knows to be inadequate" "dishonestly or fraudulently misappropriates.." (property "entrusted" to him or "allows any other person so to do"); "corrupt or illegal" "abusing his position" are clear pointers to Parliamentary intention that mens rea is essential to be proved in relation to the offences provided for under Section 13 (1) (a) to (d) (i) and (ii). Section 13 (1) (d) (iii) contains no such words, which point to criminal intent. There is substance in the Appellants‟ arguments that the Supreme Court had previously interpreted Section 5 (1) (d) so as to mean the existence of criminal motive (dishonest intent). This was stated in Narayanan Nambyar's case (supra) as follows:
"The gist of the offence under this clause is, that a public officer abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage. "Abuse" means misuse i.e. using his position for something for which it is not intended. That abuse may be by corrupt or illegal means or otherwise than those means. The word "otherwise"
has wide connotation and if no limitation is placed on it, the words "corrupt", "illegal",and "otherwise" mentioned in the CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 85 of 10 86 clause become surplus age, for on that construction every abuse of position is gathered by the clause. So some limitation will have to be put on that word and that limitation is that it takes colour from the preceding words along with which it appears in the clause, that is to say something savouring of dishonest act on his part...."
Similarly, the other cases cited, i.e. S.P. Bhatnagar ("whether the accused abused their position and acted dishonestly or with a corrupt or oblique motive") Abdulla Mohammed (supra); A. Wati Ao; C.K. Damodaran Nair; M. Mohiuddin and R. Balakrishna Pillai (supra) support this view. In the last decision, it was held that the offence requires intention, and the offence comprehended an "element of mental state would be necessary to do a conscious act to get the required result of pecuniary advantage or to obtain any valuable thing, even if it is for someone else.."
71. The question is, whether this setting compels the court to hold that mens rea is, like the other provisions, a necessary prerequisite or precondition which the prosecution has to establish, from the conduct of a public servant. It would also be relevant here to mention that Section 13 (1) (e) appears to be in line with Section 13 (1) (d) (iii) in as much as there is no pointer to criminal intent. That provision declares that a public servant in possession of pecuniary resources or property which he cannot satisfactorily account, or which are disproportionate to his known sources of income is guilty of criminal misconduct. Here, the sources of income may or may not be connected with the public servant‟s duties; the emphasis is on inability to satisfactorily account, or that the wealth or assets held are disproportionate to the servant‟s known sources of income. If the ingredients of the provision are satisfied, it is not necessary to prove mens rea. Section 13 (1) (e) enacts that a public servant is guilty of criminal misconduct:
"(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
The ingredients which the prosecution has to prove in relation to this offence, (which is in pari materia with Section 5 (1) (e) of the 1947 Act, were spelt out in M. Krishna Reddy v State Deputy Superintendent of Police 1992 (4) SCC 45 as follows:
"To substantiate a charge under Section 5(1)(e) of the Act, the prosecution must prove the following ingredients, namely, (1) the CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 86 of 10 87 prosecution must establish that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property which were found in his possession (3) it must be proved as to what were his known sources of income, i.e. known to the prosecution and (4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income..."
It is clear therefore, that mens rea or criminal intent does not have to be proved in the case of a charge under Section 13 (1) (e); it is enough for the prosecution to establish the four ingredients of the offence. As noticed earlier, the setting of this provision too needs to be taken into account, along with the legislative history (of Section 5 of the earlier Act, with its amendments, and the new Section 13 (1) (d) recast in a totally different manner) -it appears immediately after another offence of criminal misconduct (Section 13 (1) (d)
(iii)) that does not textually allude to or require intent, or mens rea.
72. A multitude of precedents was relied upon by Counsel on either side, to deal with the question. The Supreme Court, noticing most of the earlier decisions, on the issue, and also the approach adopted by Courts in England, said, in Nathulal v. State of M.P., AIR 1966 SC 43 that:
"....it is a sound rule of construction adopted in England and also accepted in India to construe a statutory provision creating an offence in conformity with the common law rather than against it unless the statute expressly or by necessary implication excluded mens rea. The mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social evil is by itself not decisive of the question whether the element of guilty mind is excluded from the ingredients of an offence. Mens rea by necessary implication may be excluded from a statute only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated. The nature of the mens rea that would be implied in a statute creating an offence depends on the object of the Act and the provisions thereof: see Srinivas Mall Bairoliya v. King Emperor 1947 ILR (26) Pat 460 (PC), Ravula Hariprasada Rao v. State 1951 SCR 322 and Sarjoo Prasad v. State of Uttar Pradesh 1961 (3) SCR 324. Most of the relevant English decisions on the subject were referred to in the judgment of this Court in State of Maharashtra v. Mayer Hans George AIR 1965 SC 722. How to disprove mens rea has been succinctly stated in Halsbury's Laws of England, 3rd Edn., Vol. 10, at p. 283, thus:
CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 87 of 10 88 "When the existence of a particular intent or state of mind is a necessary ingredient of the offence, and prima facie proof of the existence of the intent or state of mind has been given by the prosecution, the defendant may excuse himself by disproving the existence in him of any guilty intent or state of mind, for example, by showing that he was justified in doing the act with which he is charged, or that he did it accidentally, or in ignorance, or that he had an honest belief in the existence of facts which, if they had really existed would have made the act an innocent one. The existence of reasonable grounds for a belief is evidence of the honesty of that belief."
One key element to construing a statute is the object it wishes to advance, and the mischief it wishes to address itself to. In this regard, it would be useful to recollect the five judge decision in R.S. Nayak v. A.R. Antulay 1984 (2) SCC 183 where the Supreme Court commented on the object of the 1947 Act:
"The 1947 Act was enacted, as its long title shows, to make more effective provision for the prevention of bribery and corruption. Indisputably, therefore, the provisions of the Act must receive such construction at the hands of the court as would advance the object and purpose underlying the Act and at any rate not defeat it. If the words of the statute are clear and unambiguous, it is the plainest duty of the court to give effect to the natural meaning of the words used in the provision..."
Now, the absence of any words or terms in Section 13 (1) (d) (iii) cannot drive the Court to hold that proof of criminal intention is a sine qua non for conviction of an accused. This is one instance where the object of the enactment, the purpose which it seeks to achieve, and the prevailing social evil which is sought to be erased become important. In this context, the need for such purposive approach, rather than adopting a "liberal" approach, based on the doctrine that every offence carries within it the presumption that mens rea is a necessary ingredient, was emphasized in his inimitable style by Krishna Iyer, J, in Murlidhar Meghraj Loya v. State of Maharashtra, (1976) 3 SCC 684: the Supreme Court observed:
"It is trite that the social mission of Food Laws should inform the interpretative process so that the legal blow may fall on every adulterator. Any narrow and pedantic, literal and lexical construction likely to leave loopholes for this dangerous criminal tribe to sneak out of the meshes of law should be discouraged. For the new criminal jurisprudence must depart from the old canons, which make indulgent presumptions and CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 88 of 10 89 favoured constructions benefiting accused persons and defeating criminal statutes calculated to protect the public health and the nation's wealth."
More than a decade later, similar views were echoed - this time by Venkatachalaiah, J in Dineshchandra Jamnadas Gandhi v. State of Gujarat, (1989) 1 SCC 420:
"In Criminal Law by J.C. Smith & Brian Hogan, (5th Edn.), referring to offences in their social context the authors say:
"The courts are greatly influenced in their construction of the statute by the degree of social danger which they believe to be involved in the offence in question. They take judicial notice of the problems with which the country is confronted. The greater the degree of social danger, the more likely is the offence to be interpreted as one of strict liability. Inflation, drugs, road accidents and pollution are constantly brought to our attention as pressing evils; and in each case the Judges have at times invoked strict liability as a protection for society."
The view found favour - (in a slightly different context, when the Supreme Court was deciding whether a juristic personality could be charged with all manner of crimes, and not merely strict liability crimes) - in Standard Chartered Bank v. Directorate of Enforcement, (2005) 4 SCC 530 again by a five judge Bench decision of the court:
"23... It is true that all penal statutes are to be strictly construed in the sense that the court must see that the thing charged as an offence is within the plain meaning of the words used and must not strain the words on any notion that there has been a slip that the thing is so clearly within the mischief that it must have been intended to be included and would have been included if thought of. All penal provisions like all other statutes are to be fairly construed according to the legislative intent as expressed in the enactment. Here, the legislative intent to prosecute corporate bodies for the offence committed by them is clear and explicit and the statute never intended to exonerate them from being prosecuted. It is sheer violence to common sense that the legislature intended to punish the corporate bodies for minor and silly offences and extended immunity of prosecution to major and grave economic crimes.
24. The distinction between a strict construction and a more free one has disappeared in modern times and now mostly the CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 89 of 10 90 question is "what is true construction of the statute?" A passage in Craies on Statute Law, 7th Edn. reads to the following effect:
The distinction between a strict and a liberal construction has almost disappeared with regard to all classes of statutes, so that all statutes, whether penal or not, are now construed by substantially the same rules. ... They are construed now with reference to the true meaning and real intention of the legislature."
At p. 532 of the same book, observations of Sedgwick are quoted as under:
"The more correct version of the doctrine appears to be that statutes of this class are to be fairly construed and faithfully applied according to the intent of the legislature, without unwarrantable severity on the one hand or unjustifiable lenity on the other, in cases of doubt the courts inclining to mercy."
73. Having regard to the previous history of the statute, the amendments to the 1947 Act, its avowed objects and the distinctive structure which Parliament adopted consciously, under the 1988 Act, despite being aware of the preexisting law, as well as the decisions of the Court the conclusion which this Court draws is that mens rea is inessential to convict an accused for the offence under Section 13 (1) (d) (iii). It would be sufficient if the prosecution proves that the public servant "obtains" by his act, pecuniary advantage or valuable thing, to another, without public interest. The inclusion of public interest, in the opinion of the Court, tips the scale in favour of a construction which does not require proof of mens rea. There can be many acts of a public servant, which result in pecuniary advantage, or obtaining of a valuable thing to someone else; typically these may relate to payment of royalty, grant of license or concessions, issuance of permits, authorizations, etc. Yet, such grants, concessions, or other forms of advantages to third parties would not criminalize the public servant‟s actions, so long as they have an element of public interest. They (acts of the public servant) are outlawed, and become punishable, if they are "without public interest".
In view of the law laid down in the aforesaid judgment, it is clear that in order to hold a person guilty u/S 13(1)(d), it is not essential for the prosecution to prove mensrea on the part of the accused persons.
CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 90 of 10 91 It is pertinent to mention here that bill Ex.PW17/G was sanctioned by XEN SC Sharma and bill, Ex.PW13/A was sanctioned by accused Nihal Chand. Both these bills pertains to raising of grill on the backside of boundary wall of CSD store, Sector 5, Rohini and repair of boundary wall and finishing of iron grill at the backside of CSD store, Sector 5 Rohini.
7.2 The defence has also assailed the case of prosecution on the ground that though RC No.51 was lodged in September 2003 but the inspection was conducted after more than 2 years and therefore, such inspection report cannot be believed. I consider that this plea has no force. It is an admitted case of the accused persons that iron grills were not installed on the boundary wall meant for telephone exchange building, Mangol Puri. It is also an admitted case of the accused persons that plaster was also not done on the boundary wall of the plot. As far as other works are concerned, I consider that the prosecution has not been able to prove its case beyond reasonable doubt.
CONCLUSION 8.0 It is a settled proposition that prosecution is required to prove its case by rigid mathematical denominations. Infact, it is not possible. The CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 91 of 10 92 court would expect such evidence as what induce a reasonable man to come to a particular conclusion. Law gives absolute discretion to the court to presume the existence of any fact which is likely to have happen. In that process, the court may record the common course of natural living, human conduct, public and private business vizaviz, the facts of a particular case. A1 to A3 were semi or public servants having been entrusted with the responsibility of execution of civil work. The prosecution has successfully proved by way of clinching material on record that A1 to A3 entered into conspiracy with A6 and raised forged bills relating to the work, which were not executed, and released the payment causing loss to public exchequer.
It is pertinent to mention here that bill Ex.PW17/G was sanctioned by XEN SC Sharma and bill, Ex.PW13/A was sanctioned by accused Nihal Chand. Both these bills pertains to raising of grill on the backside of boundary wall of CSD store, Sector 5, Rohini and repair of boundary wall and finishing of iron grill at the backside of CSD store, Sector 5 Rohini.
It is pertinent to mention here that accused took a defence that plaster work was not done on the boundary wall and the same was done at the CSD store, Section 5 Rohini on the directions of PW15 HK Bansal but this fact was not at all put to PW15 HK Bansal in his cross examination.
It is pertinent to mention here that on bill Ex.PW13/A, AE RC Bansal CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 92 of 10 93 had duly put his signatures.
In view of the discussion made herein above, I consider that prosecution has successfully proved that the first and final bill, Ex.PW4/A relating to placing of iron grill and compound wall for telephone exchange building Mangol Puri, duly passed for payment of Rs.2,58,364/ in favour of M/s. Pee Aar Builders and bill Ex.PW6/B for brick work and finishing work in respect of compound wall passed for Rs.5,01,644 in favour of M/s. Pee Aar Builders and bill Ex.PW6/C for placing of grill on boundary wall and compound wall at telephone exchange, Mangol Puri for Rs.2,57,889/ awarded in favour of M/s. Satya Constructions were the forged bills for which payment were made without any work having been executed. 8.1 On the basis of above discussion, the prosecution has been able to prove the criminality regarding the bills and accused persons as follows :
1. Ex.PW4/A relating to construction of compound wall for TE building, Mangol Puri against accused AE RC Bansal, XEN Nihal Chand and Contractor Mahavir Singh, Proprietor M/s. Pee Aar Builders ;
2. Ex.PW6/B relating to brick work and finishing work against accused AE RC Bansal, XEN SC Sharma and Contractor Mahavir Singh, Proprietor M/s. Pee Aar Builders ; and CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 93 of 10 94
3. Ex.PW6/C relating to grill on boundary wall against accused AE RC Bansal, XEN Nihal Chand and Contractor Pradeep Maan, Proprietor M/s. Satya Constructions.
In the present case, admittedly, the iron grills were not placed on the boundary wall on the spot and boundary wall was also not plastered. Besides admission of the accused persons, the prosecution has also proved the same by way of cogent and creditworthy evidence. The defence taken by the accused persons has failed to inspire the confidence of the court. The defence sees to be an afterthought. I consider that from the proved facts, as discussed above, the court legitimately can draw the influence that accused SC Sharma, Nihal Chand, RC Bansal and Pradeep Maan (in CC No. 32/11) and Mahavir Singh (in CC No.31/11) in conspiracy with each other committed misconduct, cheated public exchequer, prepared the forged bill and also used the forged documents to gain pecuniary advantage for themselves or for the other persons.
The ingredients of the offence u/S 13(1)(d) are as follows:
(i) the accused should be a public servant;
(ii) the accused should use some corrupt or illegal means or otherwise abuse his position as a public servant;
CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 94 of 10 95
(iii) accused should have attained a valuable thing or pecuniary advantage; and,
(iv) for himself or for anyother person.
Reference can be made to Dhaneshwar Narayan Saxena Vs. Delhi Administration, AIR 1962 SC 195.
In the present case, A1 SC Sharma, A2 Nihal Chand and A3 RC Bansal being public servant abused their position and got pecuniary advantage for A6 Pradeep Mann and Mahavir Singh by raising forged and fabricated bills. Accused persons also entered into conspiracy and cheated the State by dishonestly inducing for making the payment. The accused persons also in the conspiracy committed forgery by preparing a bill i.e. document for transfer of the money and also used the forged bills as a genuine document.
Hence, accused SC Sharma, Nihal Chand, Ramesh Chand Bansal, Mahavir Singh and Pradeep Mann are convicted for the charge u/Ss 13(2) r/w S.13(1)(d) PC Act, 1988 r/w S.120B ; u/Ss.420/467/468 & 471 and S.13(2) r/w S.13(1)(d) of PC Act, 1988 r/w S.120B IPC ; and u/S. 120B r/w S.420/467/468 & 471 IPC & S.13(2) r/w S.13(1)(d) of PC Act, 1988 in CC No. 31/11 and CC No. 32/11, of RC No. 51(A)/03. However, CBI Vs. SC Sharma & Anr. CC No.31/11 CBI Vs. SC Sharma & Anr. CC No. 32/11 Page 95 of 10 96 accused Hari Shankar Sharma and Anil Kumar are acquitted of the charge u/Ss 13(2) r/w S.13(1)(d) PC Act, 1988 r/w S.120B ; u/Ss. 420/467/468 & 471 and S.13(2) r/w S.13(1)(d) of PC Act, 1988 r/w S.120B IPC ; and u/S.120B r/w S.420/467/468 & 471 IPC & S.13(2) r/w S.13(1)
(d) of PC Act, 1988 in CC No. 31/11 and CC No. 32/11 of RC No. 51(A)/03.
Announced in Open Court (Dinesh Kumar Sharma )
on 19.12.2012 Spl. Judge (PC Act) : CBI01
Saket Courts : New Delhi.
CBI Vs. SC Sharma & Anr. CC No.31/11
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