Delhi District Court
Cbi vs . Pradeep Kumar Etc. on 9 October, 2015
IN THE COURT OF MS. ANJU BAJAJ CHANDNA,
SPECIAL JUDGE (PC ACT) (CBI)6,
PATIALA HOUSE COURT, NEW DELHI
CC No. 12/2014
RC DAI 2012A0022, CBI, ACB, New Delhi dated 29.06.2012.
U/s 120B IPC r/w 420, 471 r/w 468, 477A &
Sec 13 (2) r/w 13 (1)(d) of PC Act.
CBI vs. Pradeep Kumar etc.
Unique ID No.: 02403R0240842014
Central Bureau of Investigation
vs
Pradeep Kumar (A1) S/o Sh. Charan Singh,
R/o H.No. 330, Church Gali,
Fatehpur Beri, New Delhi110074.
Ravi Goyal (A2) S/o Sh. Vishwanath Goyal,
R/o Flat No. 19, Sitaram Apartment, Patparganj,
Delhi110092.
Date of FIR : 29/06/2012.
Date of filing of chargesheet : 16/12/2014.
Arguments concluded on : 18/09/2015.
Date of Judgment : 09/10/2015.
Appearances
For prosecution : Sh P.K Dogra, Ld. Senior Public Prosecutor for CBI.
For accused persons : Mohd. Qamar Ali, Ld. Counsel for A1.
Sh. R.C. Tiwari, Ld. Counsel for A2.
JUDGMENT
RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 1 of 40
1. Accused persons Pradeep Kumar (A1), Junior Engineer (JE), Delhi Jal Board (DJB) and Ravi Goyal (A2) contractor have been sent for trial vide the present chargesheet submitted by CBI as RC DAI 2012A0022, CBI, ACB, New Delhi, dated 29.06.2012 for the offences punishable under section 120B r/w 420, 471 r/w 468 and 477A of IPC and Section 13 (2) r/w 13 (1) (d) of The Prevention of Corruption Act, 1988 and also substantive offences thereof.
2. The case of the prosecution has been that accused A2 Contractor under DJB was awarded the contracts for installation of tubewells for drinking water at different places with SouthI division and without installation or incomplete installation, contractor claimed bills for the entire work on the basis of false and forged invoices and more specifically the Johnson screen pipes have not been used.
3. The subject matter of present chargesheet is contract agreement (CA) no. 46/200910 under which reboring of two tube wells situated at (i) near Aggarwal Dharamshala and (ii) Truck Market, Chhatterpur Enclave, under Executive Engineer (EE) SouthI, was to be done. The Contract was awarded to contractor A2 Ravi Goyal vide executing the agreement on 08/07/2009. The work regarding installation of tubewells was looked after by accused Junior Engineer RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 2 of 40 Pradeep Kumar (A1) on behalf of DJB. The Assistant Engineer (AE) and EE who were also to supervise the work were Sh. Himanshu Aggarwal and Sh. Anil Kumar Sharma respectively. According to Bill of Quantity (BOQ), contractor A2 was required to install Johnson screen pipes estimated 40 meters per site.
4. It is further the case of prosecution that contractor A2 claimed the payment on account of having installed Johnson screen pipes but no invoice is available on record. The entries regarding the execution of the work have been mentioned by A1 in Measurement Book (MB) No. 18067 showing installation of Johnson pipes. However, during investigation, both the tubewells were inspected by expert from NGRI through bore hole camera and it was found that there was no use of Johnson pipe in the borewells. The expert report with respect to the borewell of Ghitorni Johar site is stated to be not conclusive, whereas with respect to tubewell at Aggarwal Dharamshala it is conclusive. The camera could go up to the maximum depth of 152m and no Johnson screen pipe could be found, whereas as per strata chart (actual diagram of the site), the Johnson screen pipe should have started from 116.61m. The report shows that from 113.8m to 152m blank and slotted casing is observed.
RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 3 of 405. The amount was claimed on behalf of M/s Ravi Goyal on account of having purchased Johnson screen pipe to the extent of 120 meters in both the borewells and amount was transferred in his account maintained at Allahabad Bank, Anand Vihar Branch, Delhi. It is alleged that A1 entered into criminal conspiracy with A2 and facilitated him in obtaining pecuniary advantage by cheating the department of DJB. The JE (A1) particularly is responsible for 100 per cent checking of the work of installation of borewells and to make corresponding entries mainly in completion report (CR) and MB. A1 in furtherance of said criminal conspiracy have made false entries in the official records and further A2 in pursuance thereof did not submit the invoice and did not use the Johnson screen pipe thereby causing wrongful loss to the government and corresponding gain to the accused persons.
6. It has been revealed in the investigation that EE is required to check entries in the MB and prepare the test check report based on the checking made by him for the items costing upto 10 per cent of the total work. AE is responsible for 50 per cent checking of the work and he also checks the entries in the MB and prepares test check report. JE of the area makes entries in the MB at the time of execution and progress of the work, as per Bill of Quantity (BOQ) and RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 4 of 40 is responsible for 100 per cent checking of the work, which include checking of Johnson Pipe and installation of assembly of tubewells etc. and culpability lies solely on him.
7. After submission of the chargesheet in the court on 16/12/2014, the court took cognizance against the accused persons vide order dated 02/01/2015. Charges were framed on 12.02.2015 against A 1 for the offences under section 120B r/w 420, 477A of IPC and Section 13 (2) r/w 13 (1) (d) of The Prevention of Corruption Act, 1988 and also substantive offences thereof and against accused no. 2 for the offences under section 120B r/w 420, 477A of IPC and Section 13 (2) r/w 13 (1) (d) of The Prevention of Corruption Act, 1988 and u/s 420 IPC separately to which both accused pleaded not guilty and claimed trial.
8. In evidence, prosecution has examined 13 witnesses. The substance of the prosecution evidence is as follows:
(i) PW 1 Sh. Kamal Kumar Aggarwal is the Managing Director of M/s Bharti Waters Private Limited and according to him his company is the authorized sole distributor in Delhi of Johnson Screen Pipes since perhaps year 2004. The ledger regarding the RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 5 of 40 material sold to the parties is maintained and further the invoice number is unique number and it cannot be repeated to any other party. During crossexamination, PW 1 admitted that his company is Income Tax as well as Sales Tax payee but no such record was handed over to CBI. He has not given any bills to CBI with respect to sale purchase of relevant period.
(ii) PW 2 Dr. Jayadev Sarangi, Member Administration, Delhi Jal Board, has been the competent authority to appoint as well as remove Junior Engineers (JEs) of DJB and he has given sanction for prosecution of accused Pradeep Kumar, JE (A1) vide Ex. PW 2/A. The witness denied during crossexamination that he has not carefully gone through the record of the case or that EE has the main and exclusive responsibility to clear the bill on his satisfaction. He denied the suggestion that he granted the sanction mechanically without application of mind or that he has granted sanction at the instance of CBI.
(iii) PW 3 Sh. Sanjay Gupta, Joint Director (Vigilance), Delhi Jal Board deposed about forwarding letter dated 02/12/2014 for prosecution sanction of Junior Engineer Pradeep Kumar (A1) Ex. PW 3/A. RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 6 of 40
(iv) PW 4 Ms. Ritika Sethi Manager from Allahabad Bank, Anand Vihar Branch, Delhi deposed about handing over documents to the CBI vide seizure memo Ex. PW 4/A. They pertain to account opening form of Ravi Goyal (Proprietor) and statement of the said account.
(v) PW 5 Dr. D.V. Reddy, Senior Principal Scientist, National Geophysical Research Institute, Hyderabad, deposed about inspection of borewell of this case situated at near Aggarwal Dharamshala, 100 feeta Road, New Delhi on 21.09.2013. He inserted the bore hole camera into the well and scanned the total available length. He proved his report dated 02/12/2013 Ex. PW 5/A. Video recording of the scanning was also done through palm top and thereafter the same was transferred to a CD, which was also produced and is exhibited as Ex. PW 5/B. Site inspection memo was also prepared by the IO Ex. PW 5/B along with rough site plan Ex. PW 5/C. The videography with respect to borewell situated at near Aggarwal Dharamshala is also contained in the said CD. During cross examination, the witness could not recollect whether the memo was prepared at the CBI office or at the spot or at the Delhi Jal Board Office. The witnesses signed the memo in his presence. He further RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 7 of 40 stated that metal pipe will be corroded relatively faster than the PVC pipe and if the water is salty, the corrosion would be faster in the iron pipes. Johnson pipe is made of metal with special alloy and geophysical method is there to identify the metals buried in the ground. PW 5 denied that in the present case there was Johnson pipe used in the borewell and hence it is giving out the pure ground water and not dirty water. In this case, no geophysical method was used nor any other method to find out the buried metal pipe in the bore well. Witness admitted that if the water is salty, there would be deposits inside the metal pipe and then it would not be possible to find out the type of the pipe. On the date of inspection he had inspected about 45 borewells using the same camera, palm top and memory card and on every occasion a new file was created. He could not explain at the site while putting camera inside the borewell to anyone that there was a Johnson pipe buried inside. He prepared his report after thorough examination of videos collected through his camera. He was having the strata chart with him at the time of preparing the report Ex. PW 5/A. He denied the suggestion that he had given deliberate findings in his report in order to counter the strata chart at the instance of CBI. The format of certificate u/s 65 B Evidence Act was not provided by the IO. The witness denied the suggestion that he tampered with the CD or that he has not adopted the correct method to find out the RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 8 of 40 Johnson Pipe. He denied the suggestion that 60 meter Johnson pipe has been used in the present borewell. He came to the conclusion that the pipes installed were not Johnsons screen pipes as the pipes were not wiremesh around rather it was MS slot which contains about 1 mm hole size of few cms long. He denied the suggestion that due to moss formation the type and nature of pipe could not be ascertained from the camera used by him. The witness further admitted that over a period of five years, rust and moss formation develop inside the pipes. He sent the certificate u/s 65B on 24/02/2014. He admitted that there was rust formation above the water and below the water. He denied the suggestion that his findings are against the law of sedimentation or that CD is manipulated.
(vi) PW 6 Sh. Vikas Rathi Junior Engineer (Civil), Vigilance Department, Delhi Jal Board (DJB) since December 2010 furnished documents required by CBI vide seizure memo Ex. PW 6/A and Ex. PW 6/B. The inspection of borewell at near Aggarwal Dharamshala was done in the presence of himself, Assistant Engineer (AE) Sh. Himanshu Aggarwal, accused Pradeep Kumar, concerned contractor and Executive Engineer (EE) Sh. Anil Kumar by Dr. D.V. Reddy. The site memo is Ex. PW 5/C and inspection memo is Ex. PW 5/B. During crossexamination he denied that no such proceedings had taken place.
RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 9 of 40He admitted that during inspection Dr. Reddy did not tell him whether Johnson pipes were found inside or not. The witness stated that the bill purchase order submitted by contractor is verified by the accounts section and when the material is received at the spot, JE verifies the purchase voucher / invoice. The witness has been reexamined by CBI, wherein he admitted that he never remained posted in accounts section and he never dealt with any file personally with respect to the clearance of bill / purchase voucher. The witness during further cross examination admitted that instructional order dated 06/09/2000 Mark A is issued in their department. In response to the court question, the witness admitted that it is the duty of the JE to check and verify the material used as well as the bill / purchase voucher submitted by the contractor.
(vii) PW 7 Sh. Manoj Kumar Rathor, LDC, Delhi Jal Board, handed over the payment details to CBI vide production cum seizure memo dated 25/03/2014 Ex PW7/A and Ex PW7/B. During cross examination, witness admitted that payments are processed and released by the accounts department in accordance with the instructional order and the payments are released after checking all the documents. He denied the suggestion that accounts department is responsible to verify the genuineness of the bill / purchase voucher.
RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 10 of 40The payment is released to the contractor as per the bill of quantity furnished/signed by the JE, ZE and EE.
(viii) PW 8 Sh. Satya Prakash, Senior Accounts Officer, has deposed about the sanction of estimate of work and also about the pay order of first and final bill with respect to CA of this case and proved various documents. Note sheet regarding proposal of reboring of tubewells situated at near Aggarwal Dharamshala is Ex. PW 8/A. Pay order of first and final bill of present CA is Ex. PW 8/B. Completion certificate of present CA is Ex. PW 8/C. Copy of instructional order dated 02/11/2014 is Ex. PW 8/D. During crossexamination, the witness admitted the instructional order Ex. PW 8/D1 and thereafter further circular Ex PW 8/D. The payment in this case was released to the contractor after finding that everything was in order. The final bill was verified from MB. He has no knowledge whether the bill was verified from the vendor or not. The witness denied the suggestion that it is the primary duty of the accounts department to get the bill verified before releasing the payment.
(ix) PW 9 Sh. Anil Kumar, Executive Engineer, DJB, has deposed about the procedure of sanctioning / granting the contract / work order and the percentage of the responsibility of various officers RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 11 of 40 and thereafter the preparation of the report on enclosing the requisite documents. The witness has proved the official files of CA of this case Ex. PW 9/A, Ex. PW 9/B, Ex. PW 9/C (MB) and Ex. PW 9/D. File D 7 containing work order no. 113 dated 08/07/2009 is Ex. PW 9/E. The CA is Ex. PW 9/F. The final bill is Ex. PW 9/G and he further deposed about the strata chart bearing the signatures of JE Ex. PW 9/H and Ex. PW 9/J. The witness stated that no invoice regarding purchase of Johnson pipe is available on the record. Details of pay order is Ex. PW 9/K. The test check report is Ex. PW 9/L. Details of joining and relieving of A1 is Ex. PW 9/M. The witness was also present at the time of inspection by Dr. D.V. Reddy (PW 5) and deposed about the said inspection memo and related documents. The witness identified his signatures on letter of contractor for validity of rates Ex. PW 9/N, reasonability of rates Ex. PW 9/O, check list Ex. PW 9/P, comparative statement Ex. PW 9/Q, scrutiny form Ex. PW 9/R, NIT Ex. PW 9/S. The witness has been thoroughly crossexamined on behalf of the accused persons with respect to the procedure adopted, the extent of working and responsibility of the JEs, ZEs, EE and about the release of payment. During crossexamination witness admitted that Bill of Quantity (BOQ) Ex. PQ 9/DA is the part of contract agreement and the certificate Ex. PW 9/DB given by JE, AE and EE to the effect that work has been done as per specifications. The witness further admitted RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 12 of 40 that as per 0.42 of CPWD Specifications VolumeI (Ex. PW 9/DC), EE is the Engineer Incharge.
(x) PW 10 Smt Lekha Pawar, Head Draftsman for Delhi Jal Board has deposed about the checking of the estimate and preparation of completion report by the JE.
(xi) PW 11 Deputy SP Joseph Krelo was entrusted with the investigation of the present case during the year 2013. He deposed about the inspection conducted by PW 5 Dr. D.V. Reddy in the presence of various DJB and CBI officers and about the preparation of memos. The investigation was transferred from him to Inspector Anand Sarup during the year 2014.
(xii) PW 12 SI Tika Ram was entrusted with the investigation of this case when he was Sub Inspector in CBI. He has given the details of the investigation conducted by him. He proved the FIR as PW 12/A. The witness has been crossexamined at length.
(xiii) PW 13 Inspector Anand Sarup took over the investigation of this case in the year 2014. He has deposed about the RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 13 of 40 correspondence of PW 5 Ex. PW 13/A and the letter Ex. PW 13/B through which he received the CD and certificate u/s 65B of Indian Evidence Act. Forwarding letter / acknowledgment of CFSL is Ex. PW 13/C. Copy of report (D15) is Mark P13/1. D16 is Ex. PW 13/D and response to D16, D17 is Ex. PW 13 /E. The witness has prepared the chargesheet. The witness has also deposed about the CFSL report and has been crossexamined at length.
9. Thereafter prosecution evidence was closed.
10. The statements of both the accused persons were recorded u/s 313 Cr. PC by putting entire evidence in question and answer form, to which both the accused have pleaded innocence and false implication.
11. According to accused Pradeep Kumar (A1) he has been the JE with respect to the installation of borewells of this case and he is 100 per cent responsible for the work. He admitted having made entries in MB and the same was test checked by his superior officers. He has admitted entire evidence relating to the grant of contract and execution of the work at the site and preparation of documents such as final bill, completion report, strata chart, test check report, releasing of RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 14 of 40 payment to the contractor, etc. He admitted having verified the material at the spot along with AE/ZE. The accused, however, disputed the report of PW 5 Dr. D.V. Reddy by stating that he has not been an expert to inspect the borewell or to find out the nature of pipes used. The procedure adopted by the expert witness to inspect the borewell and preparation of CD is strongly disputed. The company M/s Bharti Waters Private Limited, used to evade sales tax and the cash sales were not shown / accounted for. The invoices with the same number were generated in respect of cash sales. A1 specifically claimed that he is innocent and he has properly executed the work as per work order and requisite 60 meters of Johnson pipes were installed and the borewell is properly working till date. No complaint has been received and no wrongful loss has been caused to the Government and the entries in the official records are true, correct and genuine. The work was supervised by his seniors and also test checked the same. The case has not been fairly investigated by the investigating officer.
12. A2 has admitted the grant of contract and work order and the submission of original bill by him to release the payment in his favour. He further admitted having submitted the original purchase voucher bearing no. BW112/200809 dated 25/09/2008, Mark DA, along with strata chart and other requisite documents, as per the RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 15 of 40 contract but he has denied the report of the expert PW 5 D.V. Reddy and stated that videography is manipulated and prepared in CBI office. Also, the evidence of PW 1 is strongly disputed. Accused stated that the work was supervised by EE and after his satisfaction the Johnson pipes were installed in his presence and on completion of work the borewell was handed over to the department. He had submitted the purchase voucher, strata chart and same were verified and signed by concerned DJB officials. The purchase voucher was got verified from the vendor and payment was released to him. A2 submitted that requisite Johnson Pipe were installed in the borewells in the presence of EE and borewell is still working. He had paid Rs. 1,93,565/ through cheque dated 18/10/2008 of Allahabad Bank for purchase of 110 meters Johnson pipe.
13. Both the accused have preferred not to lead evidence in defence and accordingly defence evidence was closed.
14. I have heard Sh. P.K. Dogra, Ld. Senior PP for CBI, Mohd. Qamar Ali, Ld. Counsel for A1, Sh. R.C. Tiwari, Ld. Counsel for A2 and have perused the case record.
15. It is argued by Ld. Senior PP for CBI that prosecution has RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 16 of 40 been able to bring home the guilt of the accused persons. It is admitted case that vide work order no. 113 dated 08/07/09, the work of bore wells situated at (i) near Aggarwal Dharamshala and (ii) Truck Market, Chhatterpur Enclave under Executive Engineer (EE) SouthI, was assigned to A2. A1 being the JE of DJB was responsible to check 100 per cent execution of the work. It has been established through the evidence of PW1 that their company is the sole distributor of Johnson screen pipe. Accused A2 has failed to submit the original invoice / bill showing the purchase of Johnson screen pipe through the company of PW 1, after the completion of the work. There is no bill existing regarding purchase of Johnson screen pipe and the bill produced by A 2 in his statement Mark DA is apparently incorrect and does not pertain to this work. The witness PW 1 was not shown the said bill during crossexamination and A2 having taken the burden of proving the bill has failed to discharge the same by bringing sufficient evidence on record. The entries made by JE in the official records particularly in the MB and completion report are also inconsistent showing manipulation by JE to facilitate A2 contractor to claim the payment on account of using Johnson screen pipes. The fact has been further corroborated through the testimony of PW 5 Dr. D.V. Reddy, scientific expert, who has physically inspected the borewells and came to the conclusion that no Johnson Pipes were found installed RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 17 of 40 therein. It is evident that contractor and the JE have represented to the department of DJB through various documents that the work has been executed as per the work order and BOQ requirements and only thereafter the payment was released in favour of the contractor. It has resulted in wrongful gain to both the accused persons and wrongful loss to the government. The bill used by the contractor in getting the payment has not been in connection with the present work order. The witnesses of the prosecution have deposed in a consistent manner and documents have corroborated their version and therefore, the findings of conviction be recorded against the accused persons.
16. It is argued on behalf of A1 by Ld. Counsel Mohd. Qamar Ali, that case of the CBI is groundless and the charge against the accused has not been substantiated through concrete and admissible evidence. The JE is responsible for the execution of the work by the contractor and in this case JE has properly discharged his duties. The senior officers i.e. EE and Zonal Engineer (ZE) have also checked the material as well as the progress of the work at the site from time to time and have made entries in the record. They are also responsible for the execution of the work and no explanation has been given by CBI for not proceeding against them. The JE has been picked up to face the criminal proceedings without any justification. The RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 18 of 40 bill/purchase voucher submitted by the contractor was forwarded to the accounts department with the completion report and test check report and it was the duty of the accounts department to verify the genuineness of the bill before releasing the payment to contractor. The JE cannot be held responsible in case the payment is released without verifying the bill so submitted by the contractor. With respect to the execution of the work, it is argued that it has been properly done at the site and stands confirmed in the testimony of various witnesses of DJB who have deposed that the payment was released only after recording satisfaction about the work done. The method of ascertaining nonuse of Johnson Pipes by PW 5 is totally faulty and the evidence relating to this has to be discarded. It is not possible to find out the nature of pipes once it is installed beneath the ground level and the method adopted by PW 5 is devoid of any scientific justification. The inspection conducted by him after the lapse of long period since installation, is meaningless and futile exercise. The CBI has failed to prove the case against the accused by sufficient evidence and therefore the accused must be acquitted.
17. On the other hand, it has been argued on behalf of A2 by Ld. Counsel Sh. R.C. Tiwari that work has been properly executed as per the work order and BOQ and the same was duly checked and RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 19 of 40 satisfaction recorded by various officers of DJB. The bill / invoice submitted by contractor with respect to the purchase of Johnson Pipes is true and genuine bill, whereas the testimony of PW 1 is not truthful. The payments were released to the contractor only after verification of the bill in question and therefore no question of having submitted forged bill arises. It has also been submitted on behalf of A2 that due to moss formation and deposits over a period of time, it is not possible to find out the nature of the pipes used in the borewell and the method adopted by PW 5 is not correct and conclusive. The Compact Disc (CD) prepared by PW 5 is not admissible as not accompanied with the certificate under section 65B of Indian Evidence Act, 1812. The use of Johnson Pipe is clearly evident from the documents proved on record and also with the fact that borewells are functioning properly even till date. False case has been registered by CBI against the contractor (A2) who has carried out his job according to the requirements and prescribed procedure and no criminal liability can be attributed to him.
18. I have given due consideration to the rival contentions, facts, evidence and the record of the case. I have also gone through the written arguments filed by the accused persons. The video CD has also been played and viewed in the court during the trial and at final stage.
RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 20 of 4019. The present case pertains to reboring of tubewells situated at (i) near Aggarwal Dharamshala and (ii) Truck Market, Chhatterpur Enclave under Executive Engineer (EE) SouthI, under contract agreement no. 46/200910 dated 08/07/2009. It is important to understand the procedure to grant the work and to release the payment. On completion of procedural formalities, Bill of Quantity (BOQ) is ascertained and tender is floated. BOQ contains requirements of using and providing Johnson Screen Pipes. The work is awarded through contract and contractor is required to execute the work at the site under the supervision of JE, AE and EE. The boring of tubewell involves boring on the ground upto the specified depth as provided in strata chart in loose soil as well as rocky strata. On completion of boring, tubewell pipe assembly is lowered in accordance with the strata chart to facilitate the inflow of water from underground to above level of ground water. The pipes of different kinds are joined as per strata chart i.e. actual diagram of site. During execution of work, physical test check is 100 per cent by JE, 50 per cent by AE and 10 per cent by EE. The measurements are noted by JE in the Measurement Book (MB) signed by all above three and based on the quantity noted therein, the completion report is prepared by JE and signed by AE and EE and the contractor. The contractor is required to submit purchase voucher and RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 21 of 40 also the strata chart and certificates etc. On scrutiny of all the documents including the purchase voucher/bill, the payment is approved.
20. The case of prosecution is primarily based on two allegations, firstly that the contractor has not submitted the bill / invoice showing the purchase of Johnson screen pipe and even then the payment was released and secondly, the work has not been executed as per the work order and BOQ and requisite Johnson screen pipes were not used at the site, (which fact is confirmed through physical inspection by putting bore hole camera and videography of the same) thereby cheating the government and causing wrongful loss.
21. Accused Pradeep Kumar (A1) Junior Engineer under Delhi Jal Board is the public servant and is discharging public duties. He has been chargesheeted on the basis of preliminary inquiry and before filing the chargesheet, the sanction has been obtained from the competent sanctioning authority. The said competent authority has been examined in the present case as PW 2 Dr. Jayadev Sarangi and also the sanction order has been placed on record as Ex. PW 2/A. On examining the testimony of competent authority i.e. PW 2 and the record of the case, it is clear that sanction has been properly granted by RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 22 of 40 the competent authority with due application of mind. The sanction order Ex. PW 2/A is supported with due reasons on consideration of material available and it cannot be said that sanction has been mechanically granted. No question has been raised on behalf of A1 to the effect that PW 2 is not the competent authority to remove him from the post in question. Therefore, it is clear that PW 2 is the appropriate and competent authority to grant the sanction and it is evident that sanction has been properly accorded in terms of section 19 of The Prevention of Corruption Act, 1988.
22. According to sequence of events as per completion report Ex. PW 8/C, the work started on 09/07/2009 and completed on 19/07/2009. The payment was released to the contractor on 01/01/2010. The important documents relating to the work prepared and submitted are as follows:
1. Bill of Quantity (BOQ) - contains details and specifications of work to be executed (provides estimate of Johnson pipes).
2. Contract - signed by EE on behalf of DJB with contractor.
3. Measurement Book (MB) - JE records day to day progress of the work done at the site.
4. Strata Chart - actual diagram of the site showing the work RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 23 of 40 done and specifications of pipes used and their measurements.
5. Completion Report (CR) - prepared on the basis of MB, contains details of estimate and actually executed work at site with rates of material etc.
23. Coming to the terms and conditions of contract Ex. PW 9/F, General conditions of the contract (clause - 9) and the clauses of the contract (clause - 3), the work is to be carefully executed strictly in accordance with the approved drawing supplied to the contractor or with such modifications as may be approved by the Engineerin Charge from time to time. The amended or revised or detailed drawings may be issued by the EngineerinCharge or approved in writing by him during the progress of the work. The Engineerin Charge would have the discretion to determine the contract in the event of contractor failing to complete the work within the stipulated time or if contractor commits default in complying with any of the terms and conditions of the contract. Executive Engineer (EE) is the EngineerinCharge and the work is carried out under his supervision.
24. It is evident from the procedure deposed by DJB officials and also admitted by accused persons in their statements u/s 313 Cr. PC, that EE is responsible for checking of the work up to 10 per cent RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 24 of 40 and ZE and JE are responsible up to 50 per cent and 100 per cent respectively.
25. On examining the important documents relating to the work of the present contract, I find that as per MB 60 meters of Johnson pipe was installed at Aggarwal Dharamshala, whereas at the site of Truck Market, Chhatterpur Enclave, boring failed due to non availability of water and no Johnson pipe could be installed therein. The MB, further, mentions about change of site to Ghitorni Johar as approved by competent authority and Johnson pipe installed there but there is nothing on record to confirm this fact. It is important to note that even after recording the change of site and noting installation of 60 meters of Johnson pipe at near Ghitorni Johar, JE concerned has not mentioned this fact anywhere particularly under the head of 'Abstract of cost' starting from below of page 92 of the MB nor in the completion report Ex. PW 8/C whereby the cost of Johnson pipe to the extent of 120 meters has been claimed. The note regarding change of site appearing at page 91 of the MB No. 18067 is not signed either by ZE or EE to prove that the change of site was approved by the competent authority in terms of the clauses and conditions of the contract. It is further important to note that strata charts prepared with respect to the site at Aggarwal Dharamshala Ex. PW 9/J and Ghitorni RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 25 of 40 Johar Ex. PW 9/H have not been signed by ZE or EE. Only JE has signed the strata charts showing installation of Johnson pipes at the sites.
26. I have come across the strata charts of other sites and they have invariably been signed by ZE and EE concerned. It is evident from these facts and circumstances that the change of site from Truck Market, Chhatterpur Enclave to Ghitorni Johar was not properly approved or done and the records have been manipulated by JE only to facilitate the contractor to claim payment about installation of Johnson pipes. It is clear that 120 meters of Johnson pipes is not installed at two sites mentioned in completion report and final report i.e. at Aggarwal Dharamshala and Truck Market, Chhatterpur Enclave.
27. Coming to the bill produced by A2 contractor during his statement u/s 313 Cr. PC mark DA, it shows purchase of 110 meters of Johnson pipe on 25/09/2008. According to sequence of events, CA No. 46/200910 was executed on 08/07/2009 under which work of two borewells were to be completed. Completion report Ex. PW 8/C shows that the work started on 09/07/2009 and was completed about 19/07/2009. The payment was released to the contractor on 01/01/2010. The photocopy of the invoice no. BW/112/20082009 RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 26 of 40 dated 25/09/2008 is shown by contractor without explaining as to from where the extra 10 meters Johnson pipe was purchased or procured. The invoice Mark DA is dated about 10 months prior to the acceptance of tender or grant of contract. It is difficult to believe that even before submitting the tender in question, the contractor had purchased Johnson pipes that too several months before. There is no explanation coming from A2 contractor as to what required him to purchase Johnson pipe in September 2008. Also, the bill Mark DA shows purchase of Johnson pipe at the rate of 1,692/ per meter, whereas according to completion report Ex. PW 8/C, the rate of 120 meter Johnson pipe is shown and claimed at the rate of Rs. 1,669/ per meter. There is no possibility that after having purchased the Johnson pipe at a higher cost, the contractor reduced the price while claiming the bill on account of the same. It is further important to note that bill Mark DA was not produced during the evidence of prosecution witnesses in order to confront them with the same. During crossexamination of DJB witnesses concerned with clearance of payment, no suggestion has been given that bill Mark DA pertains to the present contract / work order. All this raises doubt about the fact that the bill pertains to this contract / site.
28. No explanation has come forth from either of the accused RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 27 of 40 as to why there are inconsistent entries in the documents relating to the execution of the work specifically not mentioning the Ghitorni site anywhere except in the MB and strata chart and they were not signed by higher officials. Even the documents prepared after noting change of site, like completion report and final bill do not mention the changed / new site. No document or material is on the record to suggest that the site was ever duly changed by EE while the work was in progress with respect to the site of Truck Market, Chhatterpur Enclave.
29. Prosecution has alleged conspiracy between Pradeep Kumar JE (A1) and Ravi Goyal contractor (A2). To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither is it necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implication. In most of the cases, the conspiracy is proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 28 of 40 accused involved in the conspiracy. Criminal conspiracy is an independent offence in the Penal Code. The unlawful agreement is sine qua non for constituting offence under the Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express or partly implied.
30. In "Shivanarayan v. State of Maharashtra", AIR 1980 Supreme Court 439, it was held that "It is manifest that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from the inferences drawn from acts or illegal omission committed by the conspirators in pursuance of a common design."
31. In the case of State of Maharashtra and Others vs Som Nath Thapa and Others, (1996) 4 SCC 659, it was held that "To establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 29 of 40 would do, so long as it is known that the collaborator would put the goods or service to an unlawful use."
32. Coming to the case in hand, alleged conspiracy is with respect to non installation of Johnson pipes and not submitting the proper invoice for the same. It is admitted position that according to procedure of DJB, JE is responsible for 100 per cent check of the work. The important papers relating to the work of borewells have been prepared by JE under his hand. The MB is the important document whereby JE is required to make entries on the basis of day to day progress at the site. According to MB, only 60 meters pipe was installed at the site of Aggarwal Dharamshala, whereas boring had failed at Truck Market, Chhatterpur Enclave. In other papers, like CR and final bill, the payment has been claimed on the basis of having installing 120 meters of Johnson pipe at the above mentioned two sites. Although, strata chart has been submitted with respect to site of Aggarwal Dharamshala and changed site of Ghitorni but they were not signed by senior officers of DJB particularly the EngineerinCharge. It is therefore, evident that JE and contractor worked in complete collaboration at the site. The conspiracy on part of JE is clearly demonstrated with the conduct that he has made entries in the official records about use and installation of Johnson screen pipes to the extent of 120 meters but actually it was not done. Also, considering the RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 30 of 40 record, I conclude that no conspiracy can be attributed to ZE and EE in this case as neither MB about change of site is signed by them nor strata chart of changed site is signed by them. The responsibility lies only upon JE who has failed to establish his defence and failed to show that site was changed with the approval and consent of EE. No cross examination of relevant witnesses were done on this point. There is no explanation coming forth on behalf of JE as to why he has not mentioned the factum of change of site in the papers prepared after the change of site was recorded in MB and how he continued mentioning the original site. In this situation, the JE and contractor are responsible and conspiracy is clearly proved against them.
33. In view of aforesaid discussions, I conclude that documentary evidence itself is sufficient to prove the case of CBI to the effect that Johnson pipes have not been used at the site and no invoice was submitted to claim the payment and false entries were made in the official records.
34. The second significant evidence of prosecution about cheating and false entries made in official records is expert evidence to confirm non installation of the Johnson pipes. According to BOQ and Strata Chart the contractor was required to install Johnson pipe of total RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 31 of 40 length of 120 meters at (i) near Aggarwal Dharamshala and (ii) Truck Market, Chhatterpur Enclave under Executive Engineer (EE) SouthI. The prosecution has relied upon expert and scientific evidence on this issue and have examined PW 5 Dr. D.V. Reddy and also played CD Ex. PW 5/B. The defence has challenged the inspection report and very expertise of PW 5 and very strongly argued about admissibility of CD which is electronic evidence, due to the absence of certificate u/s 65B of Evidence Act. The defence Counsels have relied upon State of H.P. Vs Jai Lal and Others, (1999) 7 SCC which says: "...................
18. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions.
..................
20. The question for consideration is whether the evidence of Shri P.C. Panwar who was examined as an expert witness measures up to the well accepted principles for judging the credibility of such an evidence. As noted RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 32 of 40 earlier, Shri Panwar has not stated anything in his testimony to show that he had made any scientific study or research in assessing the productivity of apple trees in the State of Himachal Pradesh. He does not even state whether he had undertaken any such work prior to the present case. No doubt as an officer of the Horticulture Department of the State Government he might have acquired some experience in the matter but that is not sufficient to make him an expert in the field and to give the label of 'expert evidence' to his testimony. ...........
................."
35. With respect to admissibility of video CD they have relied upon P.V. Anwar vs P.K. Basheer (2014) 4 SCC online 739 and Ankur Chawla vs CBI, Manu/DE/2923/2014 to stress that certificate u/s 65B Evidence Act has to be of the same date when CD was prepared and sent to CBI.
36. I have given due consideration to the defence contentions about the admissibility of the CD and expertise of the witness (PW 5).
37. PW 5 Dr. D.V. Reddy is M.Sc. (Geology) and M.Sc. (Tech.), Hydrogeology from Hyderabad. The inspection of borewell in question was conducted by him on 21/09/2013. He has 30 years of experience in ground water studies in different Hydrogeologic environs. The witness has put bore hole camera into the well and RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 33 of 40 scanned total length and he has given his report Ex. PW 5/A. The video recording was done by him on his palm top and on the same date transferred the material into a CD. It is evident that initially the CD was sent to CBI in open condition and without certificate u/s 65B Evidence Act but thereafter at the request of CBI officer the witness sent the CD in sealed condition along with certificate u/s 65B Evidence Act. Although, the date of preparation of CD is not given in certificate u/s 65B Evidence Act but looking to the over all language of the certificate particularly the fact that data stored in laptop was controlled and preserved by the witness through password, in my opinion the requirement of certificate u/s 65B Evidence Act stands complied with. It is true that the witness in his examination in chief has not specifically proved the certificate u/s 65B Evidence Act but during crossexamination the witness has admitted having sent the said certificate.
38. As per his profile, PW 5 has done doctorate in groundwater investigations from NGRI and is involved in groundwater studies. The main objective of the witness was to find out the depth of the borewell and type of casing used therein. The simple under water camera was used and considering the qualification and experience of PW 5, it is clear that he had the relevant expertise.
RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 34 of 4039. Coming to the evidentiary value of contents of CD and inspection report, PW 5 has used simple method to assess the depth of the well and nature of casing used. The bore hole camera was put inside the bore well and it had the provision of lighting and also the audio and video recording, connected with the monitor on ground surface and the images were visible on the monitor. The witness visited the site on 21/09/2013 and he was having the material like strata chart and related documents with him and the officials of DJB were also present. In his report Ex. PW 5/A, the expertise, procedure and experiment have been detailed by the witness. According to the report, from 113.8 m to 152 m MS slotted pipe was seen, whereas as per prescribed requirement Johnson pipe was to start from 116.1 m.
40. Following tables would show the difference about the casing details, between the strata chart and observations as per video footage: RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 35 of 40 Chart of location: Ghitorni, Johar Site Casing details as per Lengths Casing details Depth Time slot diagram observed 200 mm blank pipe 72.8 m 200 mm blank 58.5 m 02:18 min pipe 200 mm slotted pipe 12.4 m 200 mm blank pipe 6.0 m 150 mm blank 58.5 to 71 2:184:0 min m 150 mm blank pipe 6.0 m 150 mm MS 71121 m 4:014:24 min slotted 150 mm MS screen 7.6 m No casing 121123 pipe m 150 mm Johnson 60 m slotted pipe Chart of location: Chatterpur, near Agarwal Darmsala Casing details as per Lengths Casing details Depth Time slot diagram observed 200 mm blank pipe 73 m 200 mm blank 89.0 m 06:59 min pipe 200 mm MS slotted 12.4 m 200 mm MS 8995.3m 6:598:04 min pipe slotted 200 mm blank pipe 6 m 200 mm blank 95.3 8:048:46 min pipe 102.7m No casing 102.7 8:4612:50 min 105.8 m 150 mm blank pipe 6.21 m 150 mm blank 105.8 12:5013:58 pipe 113.8 m min 150 mm MS slotted 19 m 150 mm MS 113.8 pipe slotted 152+ m 150 mm Johnson pipe 60 m 150 mm blank pipe 6.12 m RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 36 of 40
41. PW 5 was summoned at the site for specific purpose to ascertain the use or non use of Johnson pipes. While conducting the inspection, PW 5 is able to ascertain the depth and heard declaring about the various levels of depth reached. He could also see the video images on his palm top at the site but he did not make any observations or comments about non use of Johnson pipes nor he revealed or discussed his observations to any person particularly the DJB officials who were also experts in the field of identifying the nature of Johnson pipes. PW 5 should have made comments about existence of pipes or strata and their nature, at the spot itself while he was noticing the same. However, it is also true that defence has failed to show that any other method has been more proper or perfect than the one used by PW 5. The testimony of PW 5 could not be impeached with respect to findings and method during his crossexamination. The witness remained consistent and confident about his report.
42. However, the question remains whether expert evidence is conclusive or corroborative. PW 5 Dr. D.V. Reddy has not elaborated in his report as to how he could see the difference in nature of pipes. The specimen of slotted, plain and Johnson pipes were not produced before the court to enable the court to see and differentiate thereof.
RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 37 of 40However, during crossexamination PW 5 stated that he did not find wiremesh around the pipe rather found about 1 mm hole size of few cms long, which is there in MS slotted pipes. Also, it is not the case that there was high turbidity of water or any deposits have occurred due to which PW 5 could not see the nature of pipes installed. Although, it is difficult to find out and ascertain even after careful viewing the CD as to what was the nature of pipes installed and even the CFSL opinion is that video quality is poor and they were unable to offer any opinion, yet examining the record and the expert report, I hold that expert evidence can be relied upon for the purposes of corroboration. The report is positive about the installation of blank and slotted pipes and negative about use of Johnson pipes. [I am conscious about my findings in case RC No. RC DAI 2012A0022, CBI, ACB, New Delhi dated 29.06.2012, titled CBI vs. RafiqueUlIslam etc., where I have not relied upon on the expert report but the facts and evidence of this case are different and distinct. In that case also, I have observed that absolute reliance cannot be placed on expert report but situation herein is different]. There is complete absence of Johnson Pipe in this case and official entries are doubtful and purchase / invoice also raises several doubts. I find no reason to completely discard the report of PW 5 and in my opinion this report can certainly be relied upon for corroboration purposes in view of ample evidence RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 38 of 40 otherwise available on record.
43. It has also been argued on behalf of the defence that no wrongful loss has resulted to the government as it is not the case that the functioning of the borewell has failed. The borewells are still working and providing water for consumption and the purpose of installation of reboring stands fulfilled. However, I find no justification in this argument as once the Johnson pipes were not installed at the site, there was no reason for the contractor to claim the payment on that account. It is not disputed that Johnson pipes are of better quality and therefore are costlier then the MS slotted and plain pipes. By claiming and getting extra payment on account of having installed Johnson pipes, the contractor has enriched himself wrongfully and also caused corresponding loss to the government and it has been facilitated by JE by making relevant entries in the official records. The ingredients of section 120B IPC and section 420 IPC and section 477A IPC stands fulfilled.
44. Elicited facts and circumstances relied upon and proved by prosecution on record as detailed in this judgment, are incriminating and when these are put together, they lead to the irresistible conclusion that these circumstances are compatible only RC DAI 2012A0022 CC No. 12/14 CBI vs. Pradeep Kumar etc. Page 39 of 40 with the hypothesis of the guilt of the accused persons for the charges framed and wholly incompatible with their innocence.
45. In view of above discussions, I conclude that prosecution has been successful in proving its case against all the arraigned accused persons in respect of the charges framed, beyond reasonable doubt. Accordingly, accused Pradeep Kumar JE (A1) is convicted for the offences under section 120B r/w 420, 477A of IPC and Section 13 (2) r/w 13 (1) (d) of The Prevention of Corruption Act, 1988 and substantive offences of 420 IPC, 477A IPC and u/s 13(2) r/w 13(1)(d) of PC Act, 1988 and accused Ravi Goyal contractor (A2) is convicted for the offences under section 120B r/w 420, 477A of IPC and Section 13 (2) r/w 13 (1) (d) of The Prevention of Corruption Act, 1988 and u/s 420 IPC.
46. Let the accused persons be heard on point of sentence.
(Anju Bajaj Chandna)
Announced in open court Special Judge (PCAct)(CBI)6,
today i.e., 09/10/2015 Patiala House Court,
New Delhi
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