Delhi District Court
Cbi vs Naresh Kumar Gupta And Others on 21 December, 2024
IN THE COURT OF SH. MUKESH KUMAR, SPECIAL
JUDGE-05, (PREVENTION OF CORRUPTION ACT), CBI,
ROUSE AVENUE COURT COMPLEX, NEW DELHI.
Case No. : 249/2019
RC No. : DAI-2013-A-0004 dated 16.01.2013
U/s : 13 (1) (d) of Prevention of Corruption Act, 1988,
u/s 13 (2) of Prevention of Corruption Act, 1988,
r/w Section 420/471 IPC.
Branch : CBI/ACB/ND
CNR No. DLCT11-001346-2019
CBI
Versus
1. Naresh Kumar Gupta
S/o Late Sh. B. N. Gupta
R/o H. No. 150 A, GG.-1,
Vikas Puri, New Delhi.
2. Mata Deen Gupta
S/o Late Sh. Ram Narayan
R/o H. No. 3323, Hari Mandir,
Paharganj, New Delhi-110055.
3. Rajesh Kumar Bhambi (R. K. Bhambi)
S/o Sh. C. L. Sharma
R/o H. No. 292, M. S. Enclave,
Village Dhakoli Zirakhpur,
District Mohali, Punjab.
4. Amit Dabas
S/o Sh. Bhupinder Singh Dabas
R/o H. No. 417, Village Mubarakpur Dabas,
CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 1 of 66.
Delhi-110081, near Nangloi.
5. Vilas Rao Ghodeswar
S/o Late Sh. Raibhan Rao Godeswar
R/o (i) H. No. 1043, Type-III, Block-22,
Lodhi Colony, New Delhi.
(ii) H. No. C-1/182, Sector-82,
Noida, U.P. ........ Expired
6. Vibhuti Thakur
S/o Late Sh. Upendra Thakur
R/o B-34, Third Floor,
Munirka Village, Near Prateek Market,
New Delhi-110067 (proprietor of M/s Sunsilk Carpets
and Furnishers).
7. M/s Sunsilk Carpets and Furnishers
Address B-34, Third Floor,
Munirka Village, Near Prateek Market,
New Delhi-110067 (through A-6)
Date of institution : 25.08.2015
Date on which reserved for judgment : 18.12.2024
Date on which judgment announced : 21.12.2024
JUDGMENT
1. By this judgment, I shall decide the RC No. 4 (A)/2013 under Section 13 (1) (d) of Prevention of Corruption Act, 1988, u/s 12 (2) of Prevention of Corruption Act, 1988, r/w Section 420/471 IPC filed by CBI, ACB, New Delhi Branch. Brief facts of the case are that the case was registered on the basis of written complaint of Sh. Raman Kumar Shukla, SI, CBI wherein, it was CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 2 of 66. alleged that he conducted preliminary inquiry and detected some irregularities in award of tender pertaining to renovation work at Pay & Accounts (PAO), IRLA (Individual Running Ledger Accounts), AGCR Building, Ministry of Information & Broadcasting, New Delhi. It is also alleged that accused no. 1 N. K. Gupta, Sr. AO, accused no. 2 Mata Deen Gupta, AAO, accused no. 3, AAO R. K. Bhambi and accused no. 4 Amit Dabas, Accountant, all of them working in PAO during the year 2008 entered into criminal conspiracy with the representative of M/s Sunsilk Carpets and Furnishers through accused no. 6 Vibhuti Thakur, proprietor and dishonestly and fraudulently facilitated payment of bills to the tune of Rs. 42.7 lacs. It is further alleged that during investigation, it was disclosed vide note dated 18.06.2008 that accused no. 5 Vilas Rao Ghodeshwar, Chief Controller of Accounts, Ministry of I&B approved proposal moved by accused no. 1 N. K. Gupta and constituted a tender committee without a single technical person and the committee was to suggest suitable remedies to improve the condition of the office premises of PAO.
It is further alleged that the tender committee submitted an estimated area for renovation work and accused no. 5 Vilas Rao Ghodeshwar approved the estimated area of work of 4725 sq. ft. for Rs. 85,07,060/- which was beyond his financial delegation of power. It is also alleged that financial approval was to be obtained from the Addl. Secretary & Financial Advisor (AS&FA) but no such approval was obtained and without the approval of (AS&FA) by accused no. 5, tender for renovation of work was invited on the website of Ministry of I &B on 09.07.2008 with due date of submission on 24.07.2008.
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2. In response, five firms submitted their applications, that is,
(i) M/s Sunsilk Carpets and Furnishers, Munirka, New Delhi, (ii) M/s Vidhi Carpets, C-26, Kamalpur, Burari, Delhi-110092, (iii) Sudan Carpets, 4641/21, Ansari Road, Daryaganj, New Delhi- 110002, (iv) Vimala Enterprises, 1295, Sector-5, R. K. Puram, New Delhi-110022 and (v) M/s Kamal Enterprises, 328/12, R. K. Pura, New Delhi. It is further alleged that the NIT mentioned an estimated area of 4725 sq. ft. to be renovated but no estimation of cost involved on the basis of specifications of the work to be carried out was mentioned in the NIT and required detailed specifications and the quantities of items to be used and estimates on the basis of schedule of rates maintained by CPWD were also not prepared. It is further alleged that the eligibility condition was stipulated in order to gave undue favour to M/s Sunsilk Carpets and Furnishers, a proprietorship firm of accused Vibhuti Thakur.
It is further alleged that instead of stipulating experience in any Government Office, the same was restricted to seven similar works in Office of Chief Controller Accounts and Office of Controller of Accounts of various Ministries of Government of India. It is further alleged that the bank drafts of all the firms were prepared from the current account of M/s Sunsilk Carpets and Furnishers or the saving bank account of Vibhuti Thakur at different bank's branches and the quotations were received by the pay and accounts office by hand and not through post.
It is further alleged that the quotation of M/s Vidhi Carpets were rejected on the ground of having sufficient experience and the work was awarded to M/s Sunsilk Carpets and Furnishers, second lowest bidder for Rs. 85.07 lacs. It is also alleged that the CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 4 of 66. work order issued by the accused public servants and carried out by M/s Sunsilk Carpets and Furnishers of accused Vibhuti Thakur was at exorbitant price and in violation of the applicable CPWD manual and GFR. It is further alleged that a comparison of the rates quoted by the firm and government approved rates shows that there was a loss of Rs. 42.7 lacs to the government.
3. Therefore, it was requested that a regular case against the four public servants and private person/firm be registered under Section 120-B, 13 (2) read with Section 13 (1) (d) of P. C. Act, 1988 and Section 420, 468, 471 of IPC. On the basis of preliminary inquiry, RC-DAI-201-A-004 was registered on 16.01.2013.
4. It is also alleged that on completion of investigation, charge sheet was filed alleging commission of offence punishable under Section 120-B IPC, 13 (2) r/w Section 1 (1) (d) of P. C Act, 1988 and Section 420, 471 of IPC and substantive offences against Vilas Rao Ghodeswar, CCA, N.K. Gupta, Sr. accounts Officer, M.D. Gupta, AAO, R.K. Bhambi, AAO and Amit Dabas, Accountant, all of Office of PAO (IRLA), Ministry of Information and Broadcast, New Delhi, Vibhuti Thakur proprietor of M/s Sunsilk Carpets and Furnishers and M/s Sunsilk Carpets and Furnishers. It is further alleged that the charge sheet besides reiterating the findings of preliminary inquiry also mentions that approval of estimated area of work 4725 sq. ft. for Rs. 85,07,060/- was beyond financial delegation of power and financial approval was to be obtained from the Additional Secretary and Financial Advisor of Ministry of Information and Broadcasting, Government of India but no such approval was obtained from him.
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5. The charge sheet also alleged that besides above three firms, the other two firms which had submitted their bids were Sudan Carpets and Vimal Carpets. The investigation revealed that all the firms except M/s Sunsilk Carpets and Furnishers were non existent firms and no such firm was found at the given address. It is further alleged that the drafts towards EMD were deposited by M/s Vibhuti Thakur proprietor M/s Sunsilk Carpets and Furnishers in his account no. 12598, Canara Bank, South Extension, New Delhi and State bank of India, Subroto Park, New Delhi bearing account No. 010454632508 which shows that these firms were dummy firms floated by Vibhuti Thakur. The charge sheet also relied on positive opinion from CFSL to allege that the drafts forms of EMD of M/s Vidhi Carpets and M/s Vimla Carpets were filled in the handwriting of Vibhuti Thakur. The charge sheet further alleged that a Quality Control Committee was constituted by Vilas Rao Ghodeshwar but no technically skilled person was involved in that committee. It is further alleged that the members of this committee despite not being technically skilled, certified the material casually. It is further alleged that the lapses were referred for departmental action as no criminality on their part could be established.
6. In the charge sheet, the prosecution also relied on report by Sh. Partap Singh, AE (Civil), CPWD, Nirman Bhawan, New Delhi to allege that the material used by M/s Sunsilk Carpets and Furnishers were found to be substandard and payments were made to exorbitant rates against the prevailing rates of 2008 as well as rates stipulated in DSR 2007. In the charge sheet, it is further alleged that the accused Vibhuti Thakur (private person), Vilas Rao Ghodeswar, N. K. Gupta, M. D. Gupta, R. K. Bhambi CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 6 of 66. and Amit Dabas (public servants) entered into a criminal conspiracy and dishonesty and fraudulently abused their position as public servants for the purpose of facilitating the contractor resorting to illegal means and by aforesaid modus operandi, caused wrongful loss to the extent of Rs. 53,36,945/- to the government exchequer and corresponding wrongful gain to themselves. It is prayed that the aforesaid accused persons may be summoned and tried according to law.
7. It is pertinent to mention that all the accused persons were discharged for all the offences against them by Ld. Predecessor vide order dated 19.04.2016. The said order was challenged by CBI before the Hon'ble High Court and the matter was remanded back vide orders dated 08.01.2019 with the directions that question charge or discharge shall be considered afresh after taking into consideration the evidence/material submitted with the charge sheet in entirety. Thereafter vide order dated 16.12.2020, Ld. Predecessor has framed charges against all the accused persons vide order dated 23.12.2020. A-1 to A-5 were charged for the offence of criminal misconduct under Section 13 (1) (d) of P.C. Act, 1988 punishable under Section 13 (2) of P.C Act (prior to its amendment w.e.f 26.07.2018). A-1 to A-5 are also charged for the offence of criminal conspiracy under Section 120B IPC r/w Section 420 and 471 IPC r/w Section 13 (1) (d) and 13 (2) of P.C. Act, 1988. A-6 was also charged for the offence under Section 420 and 471 IPC.
8. During the course of proceedings, accused no. 5 V. R. Godeshwar expired and proceedings against the accused no. 5 stands abated vide order dated 09.10.2021.
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9. In order to prove its case, prosecution has examined as many as 27 witnesses and also relied upon the following documents. Details of which are given as under :
Sr. No. Exhibit Document
1. Ex.PW1/A Khaki colour envelope
2. Ex.PW2/A Letter dated 19.09.2013
3. Ex.PW2/B Envelope
4. Ex.PW3/A Electricity bill in the name of Sh. Prem
Nath Jha
5. Ex.PW4/A Letter
6. Ex.PW5/A Envelope
7. Ex.PW6/A Sanction order dated 18.06.2015
8. Ex.PW7/A Search list
9. Ex.PW7/B Documents recovered from the search
proceedings
10. Ex.PW8/A List of rates prevailing in the market based
on DSR 2010
11. Ex.PW9/A Complaint dated 15.01.2013
12. Ex.PW9/B Handing over charge memo
13. Ex.PW9/C Seizure memo
14. Ex.PW9/D Production cum receipt memo
15. Ex.PW9/E Production cum receipt memo
16. ExPW9/F Letter dated 09.11.2012
17. Ex.PW10/A Tender file bearing No. G-11917/1/2008-
09/ Renovation/Admn.I
18. Ex.PW11/A Copy of the given Rules and Delegation of
Financial rules
19. Ex.PW12/A Letter dated 07.06.2013
20. Ex.PW12/B Letter dated 24/25.07.2013
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21. Ex.PW12/C-1 CFSL report dated 31.07.2013
22. Ex.PW12/C Report dated 13.08.2013
23. Ex.PW12/D Specimen writing of accused Vibhuti Thakur
24. Ex.PW12/E Cheque
25. Ex.PW12/E-1 Cheque
26. Ex.PW12/E-2 DD No. 468923
27. Ex.PW12/E-3 DD application form dated 22.07.2008
28. Ex.PW12/E-4 DD dated 22.07.2008
29. Ex.PW12/E-5 DD application form dated 22.07.2008
30. Ex.PW12/E-6 Cheque of Vijya Bank
31. Ex.PW12/E-7 Letter dated 23.07.2008
32. Ex.PW12/E-8 Envelope
33. Ex.PW12/E-9 Letter dated 20.07.2008
34. Ex.PW12/E-10 Letter dated 22.07.2008
35. Ex.PW12/E-11 Letter dated 21.07.2008
36. Ex.PW12/E-12 Envelope
37. Ex.PW13/A Sanction order against the accused Amit Dabas
38. Ex.PW16/A Search list and Inventory memo
39. Ex.PW17/A Letter of proprietorship
40. Ex.PW17/B Account opening form of M/s Sunsilk Carpets & Furnishers
41. Ex.PW17/C Statement of account of M/s Sunsilk Carpets & Furnishers
42. Ex.PW17/D Certificate under Section 2 of the Bankers Book of Evidence Act
43. Ex.PW17/E Two vouchers
44. Ex.PW18/A Seizure memo CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 9 of 66.
45. Ex.PW18/B Account opening form
46. Ex.PW18/C Statement of account
47. Ex.PW18/D Letter dated 19.11.2012
48. Ex.PW19/A Seizure memo
49. Ex.PW19/B Account opening form
50. Ex.PW19/C Statement of account
51. Ex.PW20/A PNG Gas bill, electricity bill and water bill
52. Ex.PW21/A Letter dated 26.05.2014
53. Ex.PW21/B Letter dated 09.06.2014
54. Ex.PW22/A FIR
55. Ex.PW22/B Letter dated 23.11.2012
56. Ex.PW22/C Statement of account of M/s Sunsilk Carpets & Furnishers
57. Ex.PW22/D Notice inviting tender
58. Ex.PW22/E Tender application of M/s Sunsilk Carpets & Furnishers
59. Ex.PW22/F Tender application of M/s Vimala Enterprises
60. Ex.PW22/G Tender application of M/s Vidhi Carpets
61. Ex.PW22/H Tender application of M/s Sudan Carpets
62. Ex.PW22/J Comparative statement of quotation rates
63. Ex.PW22/K Letter dated 31.07.2008 to M/s Vimala Enterprises
64. Ex.PW22/L Letter dated 31.07.2008 to M/s Vidhi Carpets
65. Ex.PW22/M Letter dated 01.08.2008 to M/s Sunsilk Carpets & Furnishers
66. Ex.PW22/N Letter dated 05.08.2008 to M/s Sunsilk Carpets & Furnishers CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 10 of 66.
67. Ex.PW22/O Measurement/dimension statement of renovation work
68. Ex.PW22/P Statement of job work and prescribed rates
69. Ex.PW22/Q Measurement/dimension statement of renovation work
70. Ex.PW22/R Statement of job work and prescribed rates
71. Ex.PW22/S Constitution of quality control committee
72. Ex.PW22/T Certificate of quality of materials
73. Ex.PW22/U Certificate of quality of material
74. Ex.PW22/V Bill/invoice dated 25.02.2009
75. Ex.PW22/W Original bill of renovation of PAO
76. Ex.PW22/X Rubber stamps of Vimala Enterprises
77. Ex.PW22/Y Letter dated 07.06.2013
78. Ex.PW22/Z Letter dated 24/25th July, 2013
79. Ex.PW22/Z-1 Letter dated 19.09.2013
80. Ex.PW22/Z-2 Report of postman
81. Ex.PW22/Z-3 Letters
82. Ex,.PW22/Z-4 Letter
83. Ex.PW22/Z-5
84. Ex.PW22/Z-6 Charge sheet
85. Ex.PW23/A
10. In his examination in chief, PW 1 Sh. Dayanand deposed that he was posted as Postman at the Post Office situated at Sector-5, R.K. Puram, and in the year 2013, and his duty was to collect letter from the post office and to deliver the same to their prospective addresses. During his examination in chief, his attention was drawn to D-62 ExPW1/A (colly.) which is letter CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 11 of 66. dated 19.09.2013 along with Khaki colour envelope. He deposed that this envelope was handed over to him by speed post Dispatch Section of R.K. Puram, Post Office for delivery to the respective address and he went to the said address but he could not find the person or the proprietor whose name was written on the letter. PW 1 further deposed that he gave his report in Hindi language on the envelope i.e "1295/5- Praptkarta nahi rehta hai 24.09.2013" and identify his report at point X. He further deposed that he made inquiry from the neighbors regarding the whereabouts of the said person and it revealed that now such person is not living at the said address. PW 1 proved the Khaki colour envelope as Ex.PW1/A and identified the envelope as the same envelope which he collected from dispatch Section and he tried to deliver.
11. In his examination in chief, PW 2 Sh. Gyanender Kumar deposed that he was working as Postman and promoted in the year 1986 and his duty was to collect the letters from Indraprastha Post Office and to deliver it to its respective addresses. He deposed that area of Daryaganj falls in his jurisdiction and he used to deliver the letter of that area. Attention of PW 1 was drawn to the envelope handed over to him by the dispatch Section for delivery to its address. PW 1 further deposed that he visited the 21 Block, Daryaganj and found no such address written on the envelope and gave his report on the envelope at point X. He further deposed that he went at the given address but the said address was not found and does not exist in the said area. PW 1 further deposed that as the letter was returned to the originator address with his report. He identified CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 12 of 66. his report as correct and proved the letter dated 19.09.2013 as Ex.PW2/A and envelope as Ex.PW2/B.
12. In his examination in chief, PW 3 Sh. Prem Nath Jha deposed that he was working as MTS, CGHS, South Zone, Sector-8, R. K. Puram since 2008 and Flat No. 1295, Sector-5, R. K. Puram was allotted to him in the year 2005 and he is living in this flat. He further deposed that he is living in the said house along with his wife and no other person except his family have been residing in the said Government flat. PW 3 further deposed that no firm is running in the aforesaid flat and no firm in the name of M/s Vimala Enterprises was being run from the aforesaid flat/address. He further deposed that Sh. Vibhuti Thakur is his brother in law and Smt. Vimla is his wife. PW 1 further deposed that he had not rented his aforesaid quarter/flat to anyone for running any business. Attention of the witness is drawn to Ex.PW1/A and the witness identified his address on the on the brown envelope. The witness further identified the electricity connection CRN No. 2550019018 in the name of Prem Nath Jha S/V/1295, R.K. Puram and deposed that the bill belongs to his quarter/flat and it is in his name. PW 3 proved the bill as Ex.PW3/A.
13. In his examination in chief, PW 4 Sh. Narender Kumar deposed that he was working as Postman and posted at Sector-5, Post Office, R. K. Puram, New Delhi-110022. He further deposed that he has been working in Beat No. 10 which comes in Section-12, R. K. Puram. PW 4 further deposed that as a Postman, he collect the letters/posts from Sector-5, Post Office and deliver these letters on their respective address mentioned on CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 13 of 66. the letters/envelopes. Attention of the witness was drawn towards brown envelope which was collected by him from Sector-5, Post Office and was handed over to him for delivery. He further deposed that he visited at the given address and he do not remember who was the person who met him, however, the person on whose name the letter was addressed was not found. He further deposed that the report regarding non existence of said person was given by him in his handwriting on the envelope itself at point X. PW 1 proved the said envelope as Ex.PW4/A. He further deposed that thereafter the said letter was returned undelivered to the Post Office, Sector-5 and there was no person with the name of proprietor Kamal Enterprises at 328/12, R. K. Puram, New Delhi-110022.
14. In his examination in chief, PW 5 Sh. Rajpal Singh Rana deposed that he was also working as Postman and was posted as Post Office Burari since 1998 and the locality/mohalla which falls under the jurisdiction of his posting were Harijan Basti, Satyavihar, Tomar Colony and Kamal Vihar. The attention of the witness was also drawn towards envelope which was collected by him from the Post Office of Burari for delivering the same at the mentioned address and the address mentioned on the envelope was not found as there was no gali number mentioned in the envelope. He further deposed that he gave his report on the envelope at point X and proved the envelope as Ex.PW5/A. He further deposed that as in the address, there was no gali number mentioned on the envelope, therefore, it was not possible to deliver the same and accordingly, he returned the envelope to the Post Office.
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15. In his examination in chief, PW 6 Sh. M. Pran Konchady deposed that he was posted as Additional Controller General of Accounts, Department of Expenditure, Ministry of Finance, New Delhi and his work profile was to look after items of work like internal audit, grant of sanction for prosecution etc. He accorded the sanction for prosecution against M.D. Gupta, AAO and proved the sanction order dated 18.06.2015 as Ex.PW6/A.
16. In his examination in chief, PW 7 is Sh. Haris Mukhtar deposed that during the year 2013, he was posted as Jr. Engineer at DDA in Vikas Sadan, INA, New Delhi and on 17.01.2013, he was directed by his Sr. officer to report to CBI office. On 18.01.2013, he reported in CBI office where he was informed that he had to participate in the house search proceedings. He deposed that he along with the CBI official went to some address where search proceeding were conducted and the documents which were recovered there were seized and search document was prepared in his presence and he signed the searched documents. PW 7 proved the search list as Ex.PW7/A and the documents as Ex.PW7/B. PW 7 also identified the accused in the Court in whose house search was carried out.
17. In his examination in chief, PW 8 Sh. Pratap Singh deposed that he was working as AE Vigilance (CPWD) at Nirman Bhawan, New Delhi during the year 2010 to 2014. He identified his signature on the list of prevailing market rates on DSR 2010, which was prepared by him. He deposed that the list was prepared by him on the basis of the rates prevailing in the market based on DSR 2010. PW 8 also calculated the difference amount paid to contractor and the loss caused to Government CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 15 of 66. exchequer. He proved the list as Ex.PW8/A (colly) and deposed that the loss caused to the Government in the renovation work at IRLA, AGCR Building was of Rs. 53,36,945.91 p.
18. In his examination in chief, PW 9 Insp. Raman Kumar Shukla deposed that during the year 2013, he was posted as Sub Inspector in CBI, ACB, New Delhi and one preliminary inquiry was registered in CBI in the month of September, 2012 in ACB, CBI, New Delhi in this case and he was the preliminary inquiry officer of that preliminary inquiry. PW 9 further deposed that there was a source information received in the CBI office with regard to irregularities in Award for renovation of work at Pay & Accounts Office, Information and Broadcast, New Delhi. He further deposed that there was an allegation that the tender was manipulated by a committee comprising of four members namely Naresh Kumar Gupta-Sr. AO, M.D. Gupta-AAO, R.K. Bhambhi- AAO and Amit Dabas-Accountant and there was a criminal conspiracy with private person namely Vibhuti Thakur, proprietor of M/s Sunsilk. He proved the complaint as Ex.PW9/A. He further deposed that after concluding the preliminary inquiry, he found that there is a prima facie case against the public servants as well as private person. He proved the handing over charge memo as Ex.PW9/B, seizure memo Ex.PW9/C, production cum receipt memo as Ex.PW9/D, production cum receipt memo as Ex.PW9/E and letter dated 09.11.2012 as Ex.PW9/F.
19. In his examination in chief, PW 10 Sh. Dharam Pal Dahiya deposed that he joined the office of PAO, Main Secretariat, Ministry of Information and Broadcasting as Accounts officer on CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 16 of 66. 27.10.2008 and Mr. Godeshwar was the Chief Controller of Accounts at that time. He proved the tender file bearing No. G- 11917/I/2008-09/Renovation/Admn.I maintained in the Office of Pay and Accounts Officer, IRLA as Ex.PW10/A (colly.).
20. In his examination in chief, PW 11 is Sh. Ramesh Chander Misra deposed that in the year 2008-2009, he was posted as Additional Secretary and Financial Advisor in the Ministry of Information & Broadcasting and as far as he remember, Sh. Vilas Rao Godeshwar was Chief Controller (Accounts) in the Ministry of Information & Broadcasting. He further deposed that as per the requirement, the department can carry out the renovation work of civil through open tender of CPWD. After seeing the file Ex.PW10/A, PW11 deposed that his approval is not there in this file for award of contract and this contract was awarded to M/s Sunsilk Carpet & Furnishers. PW 11 further deposed that Mr. Vilas Godeshwar approved this on 05.08.2008 and the file was never put up before him while he was working as Additional Secretary & Financial Advisor in Ministry of Information & Broadcasting.
It is pertinent to mention here that on the application of prosecution under Section 311 Cr.P.C, witness PW 11 Sh. Ramesh Chander Misra was again recalled for examination vide order dated 31.08.2023.
PW 11 further proved the copy of given Rules and the Delegation of Financial Rules as Ex.PW11/A.
21. In his examination in chief, PW 12 Sh. Vijay Verma deposed that he has joined CFSL, CBI in the year 2012 and CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 17 of 66. earlier he was working from 1999 to 2007 as Scientific Assistant in FSL, Delhi. He further deposed that the documents of this case were forwarded by SP, CBI, ACB, New Delhi vide letter dated 07.06.2013 through which questioned documents along with specimen writing and signatures of Vibhuti Thakur were sent. Further, some more writing and signatures were sent vide letter dated 24/25.07.2013. He further deposed that both the letter bears the stamp of Case Assistant, CFSL, CBI, CGO Complex. He proved the letter dated 07.06.2013 as Ex.PW12/A and letter dated 24/25.07.2013 as Ex.PW12/B. PW 12 further deposed that after receiving the documents in CFSL through proper channel, the case was allotted to him and he has examined the documents of this case scientifically and thoroughly and expressed his opinion with detailed reasons. He proved his report as Ex.PW12/C-1 and the letter dated 13.08.2013 vide which the report was forwarded as Ex.PW12/C. PW 12 further proved the specimen writing of accused Vibhuti Thakur as Ex.PW12/D and cheque bearing marking as Ex.PW12/E. He further proved the original DD application form of Canara Bank dated 17.07.2008 as Ex.PW12/E-1 and original cancelled DD No. 468923 dated 17.07.2008 as Ex.PW12/E-2. He further proved the original DD application form dated 22.07.2008 as Ex.PW12/E-3, cancelled DD no. 440707 dated 22.07.2008 as Ex.PW12/E-4, DD application form dated 22.07.2008 as Ex.PW12/E-5, cheque of Vijaya Bank as Ex.PW12/E-6, letter dated 23.07.2008 of Sunsilk Carpets and Furnishers as Ex.PW12/E-7, envelope as Ex.PW12/E-8, letter dated 20.07.2008 of Vimala Enterprises as Ex.PW12/E-9, letter dated 22.07.2008 as Ex.PW12/E-10, letter dated 21.07.2008 as CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 18 of 66. Ex.PW12/E-11 and envelope written as quotation, renovation as Ex.PW12/E-12.
22. In his examination in chief, PW 13 Sh. Dalip Singh deposed that during the year 2014-15, he was posted in the rank of Brigadier as Commandant of AOC Centre and Officer Incharge (records) at Secundrabad. He further deposed that after going through the material placed before him, he had accorded prosecution sanction against the accused Amit Dabas and proved the sanction order as Ex.PW13/A.
23. In his examination in chief, PW 14 Sh. Rajesh Kumar deposed that during the year 2012, he was posted as Under Secretary to Government of India in Vigilance Wing of Ministry of Information and Broadcasting. He deposed that his profile was to process the complaint received against the employee of the ministry and media Units. After perusal of letter dated 09.11.2012, PW 14 deposed that the tender file bearing no. G- 11917/1/2008-09/ Renovation/Admn.I relating to work order PAO/IRLA/I&B-608 dated 05.08.2006 was provided to CBI after obtaining the same from the Principal Account Office (IRLA), Ministry of Information & Broadcasting. He identified the file Ex.PW10/A which was provided to CBI from the office record.
24. In his examination in chief, PW 15 Sh. Surender Singh deposed that during the year 2013, he was posted as Inspector, Central Excise, Delhi-I, Range-20, Rajendra Place, New Delhi and on the instructions of Assistant Commissioner, he visited CBI office on 19.07.2013. He further deposed that the writing of accused Vibhuti Thakur was given by the accused in his presence. PW15 proved the said writing as Ex.PW15/A. CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 19 of 66.
25. In his examination in chief, PW 16 Sh. Kumar Rakesh Mohan deposed that in the year 2013, he was posted as Inspector in Central Excise, Division-VII, Nehru Place, New Delhi and on the instructions, he went to CBI Office. He along with CBI officials went to some house, exact address, he do not remember. He further deposed that at the said house some search proceedings were conducted in his presence and documents were also collected. He identified his signature at point A on search list and inventory memo and proved the same as Ex.PW16/A (colly.).
26. In his examination in chief, PW 17 Sh. Raj Pal Singh deposed that in the year 2012, he was posted as Senior Manager at Canara Bank, South Extension, New Delhi and on the asking of CBI, some documents from the bank record were given to CBI by him. He proved letter of proprietorship given by Vibhuti Thakur as Ex.PW17/A, opening form of the proprietorship concern of M/s Sunsilk Carpets and Furnishers as Ex.PW17/B, Certificate under Section 2 of the Bankers Book of Evidence Act as Ex.PW17/D, original cheque bearing no. 627266 as Ex.PW12/E, three vouchers as Ex.PW17/E and original cancelled DD as Ex.PW17/F.
27. In his examination in chief, PW 18 Sh. Hem Chand Mehra deposed that in the year 2013, he was posted as Senior Branch Manager at R. K. Puram Branch of Vijaya Bank and in the year 2019, Vijaya Bank had merged in Bank of Baroda. He further deposed that on the asking of CBI, some documents were handed over to CBI from the bank record. PW 18 proved the original account opening form along with specimen signature of Vibhuti CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 20 of 66. Thakur and statement of account in the name of Vibhuti Thakur as Ex.PW18/A, original account opening form alongwith specimen signature card in the name of Vibhuti Thakur as Ex.PW18/B and statement of account along with certificate under the Bankers Book of Evidence Act as Ex.PW18/C. It is pertinent to mention here that on the application of prosecution under Section 311 Cr.P.C, witness PW18 Sh. Hem Chand Mehra was again recalled for re-examination vide order dated 28.01.2023.
PW18 further proved the letter dated 19.11.2012 addressed to SI Raman Kumar Shukla as Ex.PW18/D, account opening form along with statement of account as Ex.PW18/E, application for issuing DD as Ex.PW22/E5 and self cheque as Ex.PW12/E6.
28. In his examination in chief, PW 19 Sh. Ram Lal deposed that in the year 2013, he was posted as Sr. Manager, South Extension-I and on the asking of CBI, the original account opening form of account no. 0267201012598 in the name of M/s Sunsilk Carpets and its statement of account were handed over to CBI. PW 19 proved the seizure memo dated 20.09.2013 which bears his signature at point A, account opening form of M/s Sunsilk Carpets having CC account No. 12598 and deposed that this account was opened on 25.05.1995 and proved the same as Ex.PW19/B. PW 19 further proved the statement of account for the period 01.07.2008 to 30.08.2008 which bears his signature at point A as Ex.PW19/C and deposed that the statement of account mentioned the account No. 0267201012598 which consists the branch DP code, Product code and account number.
CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 21 of 66.
29. In his examination in chief, PW20 Sh. Inder Singh Bisht deposed that he was posted as Auditor in BSF, HQ, IT-Wing, CGO Complex, New Delhi and he resided at H. No. 1295, Sector-5, R.K. Puram, Delhi and resided there till 2016. He deposed that before his occupation in this quarter, Sh. B.K. Thakur was residing in this quarter and no business under the name of M/s Kamal enterprises used to be run by him or by his family members in this quarter. He further deposed that even before occupancy of this quarter by him, no such business was reportedly carried out in the name of M/s Kamal Enterprise. After seeing the PNG and electricity bill, PW 20 deposed that both the PNG and electricity bill are of the year 2013 and in his name and the water bill dated 20.03.2012 is in the name of previous occupant/allottee B.K. Thakur. He further deposed that since the change in the name of allottee in respect of water bill happened later on, the bill dated 20.03.2012 was however paid by him towards the consumption of water for the given period. He proved the bills as Ex.PW20/A (colly.).
30. In his examination in chief, PW 21 Sh. M.C. Dagar deposed that in the year 2014, he was posted as Accounts Officer (Admn.) in Ministry of Information and Broadcasting, Shastri Bhawan, New Delhi as accounts Officer, he was looking after the office of Chief Controller of Accounts. He further deposed that in response to CBI letter dated 13.05.2014 with the approval of the competent authority to CBI and vide this letter, it was informed to the CBI the requisite file/document was not traceable despite strenuous efforts. He proved the letter dated 26.05.2014 bearing his signature at point A as Ex.PW21/A. He further proved letter dated 09.06.2014 bearing his signature at point as CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 22 of 66. Ex.PW21/B. PW 21 further proved the internal note and copy of CCA's diary as Ex.PW21/C (colly.).
31. PW 22 is Inspector H. Suresh Kumar Singh. He was Investigating Officer of this case and has proved FIR and all other relevant documents which were seized and relied upon by the prosecution. He had filed the charge sheet of the present case.
32. In her examination in chief, PW 23 Mrs. Annie G. Mathew deposed that on 07.08.2015, he was posted as Joint Secretary (PERS) & CVO in the Ministry of Finance, Department of Expenditure, Govt. of India and this matter came to her department for sanction for prosecution under PC Act against Vilas Rao Godeshwar, the then chief Controller of Accounts, Ministry of I & B. She further deposed that on the basis of document received from CBI, they examined the matter and took the comments from CVC and thereafter the file was sent to the Competent Authority i.e The Finance Minister who granted sanction for prosecution after due application of mind and she prepared this sanction order and sent it to CBI after perusal of the concerned file and documents. PW 23 proved the sanction order as Ex.PW23/A bearing her signature at point A. This witness is not cross examined by any of the counsel for the accused persons.
33. In his examination in chief, PW 24 Sh. S. K. Tandon deposed that in the year 2013, he was posted in the Regional Office of Syndicate Bank at Bhagwan Das Road, New Delhi and he do not remember the date, month or year but it was about 1½
- 2 years before his retirement in March, 2015 and that on the CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 23 of 66. instructions of the Personnel Department of his bank, he had visited CBI office. He further deposed that in the CBI office he was told that the other person would give his specimen writing and signature and that he had to witness it. He proved the specimen writing and signature of accused Vibhuti Thakur as Ex.PW12/D (colly.) and deposed that the same specimen/signature were given by the said person voluntarily in his presence and bears her signature at point Y on each sheet.
34. In his examination in chief, PW 25 Sh. Naresh Kumar deposed that in the year 2013, he was posted as Data entry Operator, NDMC, Palika Kendra, Sansad Marg, New Delhi and on the instructions of his department, he visited CBI office to be a witness to some proceedings. He proved the specimen writing/signature of accused Vibhuti Thakur as Ex.PW12/D and deposed that specimen writing/signature were given by the said person voluntarily in his presence and bears his signature at point Y1.
35. In his examination in chief, PW 26 Sh. Baljit Singh deposed that in the year 2012, he was posted as AGM, Subroto Park Branch of CBI and one CBI officer visited their branch in November, 2012 and asked for some documents. He further deposed that on the asking, he provided some documents from the bank record. PW 26 proved the letter dated 23.11.2012 as Ex.PW22/B and Ex.PW 12/E3 which is original draft application of Rs. 2 lacs. PW 26 further proved Ex.PW12/E 4 which is original draft bearing No. 440707 of Rs. 2 lacs, Ex.PW22/C which is statement of account no. 10454632508 and CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 24 of 66. Ex.PW12/E4 which is credit entry of Rs. 2 lacs in respect of cancelled DD.
36. In his examination in chief, PW 27 Sh. Atul Priadarshi deposed that in the year 2015, he was posted as AGM, Subroto Park branch of SBI and on asking of CBI office, he issued a certificate under Section 2 A of Bankers Book of Evidence Act in support of the statement of account of account No. 10454632508. PW 27 proved the certificate under Section 2 A of Evidence Act as Ex.PW27/A.
37. It is pertinent to mention that during the course of trial, the the Court has taken judicial note on the CPWD manual for understanding the tender process.
Statement of accused under Section 313 Cr.P.C.
38. On the submissions of Ld. Sr. PP for CBI the prosecution evidence was closed on 15.03.2023. Thereafter, separate statement of all the accused persons A-1, A-2, A-3 and A-4 and A-6 under Section 313 Cr.P.C were recorded, in which the entire incriminating evidence appearing against all the aforesaid accused persons was put to them, in which the defence of A-1 mainly was that-
"The entire case is made by CBI on a concocted story. Even the loss to Govt. of India is calculated based on the figure obtained from a person who is not authorised nor competent to provide the same. Therefore, the basis of prosecution is bad and doubtful in the eyes of law. The entire prosecution is based on an estimate nor on actual basis. Therefore, I have been prosecuted for a loss which is completely imaginary without any CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 25 of 66. material in support. This is a false and fabricated case. I have honestly performed my duty as Govt. Officer following all the rules and regulations and following the directions of Superiors. I am innocent and I have not done anything wrong either in my capacity as Sr. A.O in PAO, IRLA or in my capacity as a member of the tender committee. Whatever notings I made in the tender file were as per my competence and knowledge and my notings/proposals were subject to approval/rejection by my superiors/CCA/HOD".
39. Similarly, the defence of A-2 was that-
"It is a false case and the answering accused has been made a scape goat being one of the junior officer in the department. I followed all the instructions, written as well as verbal, issued by the Chairman of the Committee and the Chief Controller of Accounts. I had no power to take decision rather being a junior I was made to follow the instructions of the Chairman and the CCA. I am innocent and have been falsely implicated".
40. Similarly, the defence of A-3 was that-
"It is a false case and the answering accused has been made a scape goat being one of the junior officer in the department. I have never worked in PAO, IRLA. I used to receive phone call from CCA office informing me to come to the office of PAO IRLA. Being a subordinate, I used to visit the office and used to find CCA and the Chairman sitting. CCA used to direct me to sign note-sheets, committee proceedings etc. and I used to sign on the same being a very CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 26 of 66. subordinate officer. I was also not at all aware about the other members namely Mata Deen Gupta and Amit Dabas. I do not know what all proceedings were done in the present matter as I used to merely sign on the directions of the CCA. I am innocent. Further, it was hardly 1 ½ months of my having joined PAO, Ministry of Information & Broadcasting from Ministry of Home Affairs where I was then posted as AAO. As AAO in MHA, we never even used to see the CCA and contrary to this, in PAO, MIB, CCA used to often visit our seats and also often called us to his office and to PAO, IRLA. Being such a subordinate, we were literally afraid of the CCA and could not utter a word against him or his directions. Further, whatever we did as members of the tender committee we did as per the written directions of CCA/Chairman".
41. Similarly, the defence of A-4 was that-
"My initial appointment was a Lower Division Clerk in Ordinance Depot, Shakur Basti, Ministry of Defence. My recruitment and controlling authority was AOC Records, Secundrabad, AP. Even my prosecution sanction was accorded by Col. (Record) who was Brigadier Dalip Singh and he had no knowledge of my work profile in my deputation posting. I was never called by him or by any officer subordinate to him either at that point of time or till date. I was also not called to give any explanation. On deputation, I got the posting as Accountant in PAO IRLA, AGCR Building, ITO, New Delhi on 04.01.2008. When my name was given in the Tender Committee, I had only brief experience in the department of not more than six months and that too in GP Fund Section. I had no knowledge of the tendering process CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 27 of 66. and at the time when I was nominated in the tender committee, I was verbally told by the CCA that my role would only be as a Typist and nothing more. He also gave me assurance of nothing to worry about not knowing anything about the tendering process and that he would keep on guiding the committee. Believing him since he was Head of the Department, I kept on following the instructions as and when the same were received. I was about 8 ranks junior to the CCA. I was also technically incompetent to look into and ascertain the breaches/violations being made in the tendering process or thereafter. I had followed the orders of my superiors keeping in mind the conduct rules. I am innocent.
42. Similarly, the defence of A-6 was that-
"I am a civil contractor and taking Government contracts since the year 1996. I had worked for any Government departments like MHA, Defence, Ministry of Commerce, Textiles, Environment, MEA, AAI and Ministry of Information & Broadcasting. While inviting open tenders every Government Department stipulates its own conditions in the tender and the contractor do not have any role in that. I did not know the co-accused persons personally before this tender was awarded to me. Neither, I had met them nor talked to them on phone. I was approached by the proprietors Sh. Murlidhar and Sh. Santosh Kumar of Vidhi Carpets and Vimala Enterprises respectively requesting me to advance them business loan as they also wanted to apply for the NIT published by PAO, IRLA, MIB. It is quite common in our line of business to seek small temporary loans without interest and also for proper competition in tendering process and as such CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 28 of 66. we help fellow contractors. It is in this spirit and as the proprietors were known to me, that I had helped them by advancing loan in the form of issuing bank DDs to be submitted by them with PAO, IRLA. They applied for the said tender independently. When they could not succeed in the tender process, that they returned the DDs to me for cancellation and encashment. I am a small contractor. I did not commit nor I had any intention to commit cheating or forgery. I had not hatched any conspiracy. This case has in fact damaged my reputation as a Government contractor".
Defence Evidence
43. In his defence, accused no. 6 Vibhuti Thakur has examined two witnesses. D6W1 Sh. Santosh Kumar deposed in his examination in chief that M/s Vimala Enterprises was a proprietorship concern of his late father Sh. Rudrakant Thakur under which he was doing the business of renovation work. He further deposed that Vimala is the name of his late grand mother and during the lifetime of his father, he used to assist him in this firm and after his death in the year 2006, he took the control of this firm. In his examination in chief, D6W1 further deposed that in July, 2008, there was a tender floated by I&B, IRLA for some renovation work in IRLA, ITO and he tried to participate in his tender process, however, he had some financial constraints due to the death of his father in the year 2006 and he started looking for arranging the earnest money deposit of Rs. 2 lacs. He further deposed that he contacted Vibhuti Thakur who was known to him and Vibhuti Thakur helped him by arranging DD of Rs. 2 lacs and he assured him that he will return the amount after the tender. He further CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 29 of 66. deposed that since his quotation was not accepted in the tender process, therefore, he visited the office of IRLA at ITO and took return of his EMD DD of Rs. 2 lacs which he handed over to Vibhuti Thakur for cancellation. He further deposed that firm M/s Vimala Enterprises was running from the address H. No. 1295, Sector-5, R.K. Puram, Delhi and it was a temporary shed that kept by him behind the Government quarter 1295, Sector-5, R.K. Puram. He further deposed that the allottee of the said quarter was one Prem Nath Jha and as per oral understanding with him, he was permitted to continue his shed on making payment of Rs. 2,000/- per month. He further deposed that all the correspondences were received at the said Government quarter and Prem Nath Jha used to hand it over to me and some of the letters, he had received at the said address has been brought by him and proved the same as Ex.DW6W1/A (colly.). He further deposed that he brought blank letter head of his said concerned firm with the stamp impression of his concerned firm and proved the letter head as Ex.D6W1/B with the stamp impression of his firm at point A. He also proved the stamp of his firm as Ex.D6M1.
44. In his examination in chief, D6W2 Murlidhar Thakur deposed that he started his work under the name and style of M/s Vidhi Carpets in the year 2001 and he was dealing in the work of furniture, laying of tiles, carpets dry cleaning etc. with its registered address as of his home address. D6W2 further deposed that in the year 2008, he had participated in a tender process of some Ministry, the name he do not remember but it was at ITO and on 5th Floor in respect of some furniture, carpet and paint work and for this, he had taken one DD of Rs. 2 lacs CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 30 of 66. from Vibhuti Thakur which he returned as he was not selected in the tender process. He further deposed that he took the DD from the office of the said Ministry to return it to Vibhuti Thakur. He further deposed that he has stopped doing his said work during the Covid period and presently he is unemployed, however, his children who are now grown up are working. D6W2 further deposed that he has brought some blank letter heads, bill book of his firm and some other letters and he had received from various departments and proved the same as Ex.D6W2/A (colly.). He also proved the seal/stamp of his firm as Ex.D6M2. He also proved his AADHAR card showing his address as 14/264, Kamalpur, Kamal Vihar, Burari, Delhi-110094 and proved the copy of AADHAR card as Ex.D6W2/B (OSR).
45. Thereafter accused no. 6 has not examined any witness in his defence and defence evidence was closed vide order dated 11.07.2023.
46. In his defence accused no. 1 has examined Sh. Ramesh Chand Jain as D1W1 and during his examination in chief D1W1 deposed that he joined as Auditor in Director General of Security, Cabinet Secretariat, Government of India in the afternoon of 31st July, 1976 and on 09.02.2009, he joined the Ministry of Information & Broadcasting as Assistant Controller of Accounts. He further deposed that as ACA, he had the responsibility of doing administrative work in Accounts Branch and at the time when he had joined as ACA, the post of his immediate superior Deputy Controller of Accounts was lying vacant and his boss in the accounts branch was Chief Controller of Accounts. He further deposed that his CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 31 of 66. subordinates in the branch were the Pay & accounts officers (PAOs) and he know Naresh Kumar Gupta who at that point of time was either the accounts officer or Senior Accounts Officer in the accounts branch of MIB. He further deposed that he was the reporting officer of all the PAOs including Naresh Kumar Gupta and any file which was to go to CCA from the PAOs including Naresh Kumar Gupta were used to be routed in the administrative chain through him. D1W1 has proved the tender file of Ministry of I & B as Ex.PW10/A. D1W1 after seeing the noting prepared by Naresh Kumar Gupta seeking administrative approval of payment of Rs. 45,47,000/- against the bill of Rs. 47,07,296/- to M/s Sunsilk Carpets and Furnishers and on seeing the same, witness states that the file was put up before him on 25.02.2009 and as he has joined the Ministry only in February, 2009 (on 09.02.2009), he was not much aware of the file and as such Naresh Gupta had told him that as the bill which is of approximately Rs. 47 lacs and was in excess of the allocated budget of Rs. 45 lacs, that necessary finance has to be diverted from other PAO to PAO (IRLA).
He further deposed that since he was new and was not knowing much about the procedure that Naresh Gupta told him that the file has to go to Deputy Secretary (B&A) and as such on the information so given and on the guidance of Naresh Kumar Gupta that he gave the noting. He further deposed that he has no knowledge whether budgetary approval of the excess amount was sought for by Naresh Kumar Gupta under his given noting. D1W1 further deposed that it is correct that in his noting from X1 to X1, he had proposed budgetary CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 32 of 66. diversion of Rs. 1,60,296/- for the excess amount of the bill raised by the contractor and he was not aware at that point of time as to who had the competence to accord administrative approval of such budgetary diversion and on the guidance of Naresh Gupta that it would go to DS (B&A) that he referred his noting to DS (B&A). He further deposed that generally in the administrative chain any file coming to him would go to the CCA and he is not aware what was the equivalent posting of ACA in the administrative chain what he know is that the ACA was a Group A Gazetted Post. He further deposed that he can not tell whether the post of Under Secretary was a Group A post or not. During the examination in chief, witness identify his noting at file Ex.PW10/A and deposed that the said noting is the noting of AAO and this noting was put up before him by Naresh Gupta with his signature at point X3. D1W1 further deposed that he had approved by appending his signatures at point X4 and his approval was formal in as much as the budgetary approval was already given by the DS (B&A) and CCA and it was only to be conveyed which he approved.
During the examination in chief, witness identify his noting at file Ex.PW10/A and deposed that the said noting is in the handwriting of Naresh Kumar Gupta giving information of payment of Rs. 43,93,276/- to M/s Sunsilk Carpets and Furnishers and it bears signature of N. K. Gupta at point X6 and his signatures at point X7 as acknowledgment of such information.
During the examination in chief, witness identify his noting at file Ex.PW10/A and deposed that on this noting page, his signature are at point X8 and is in the context of CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 33 of 66. sending the file for further approval under his remarks at point X9 which is marked in red.
During the examination in chief, witness identify his noting at file Ex.PW10/A and deposed that his signature and remarks are at point X10, marked in red.
D1W1 further deposed during his examination chief that he was aware about the General Financial Rules and he is not able to recollect what was the sanctioning power of the officers under the said rules. He further deposed that he did not have the occasion to go through the GFR when the noting file came before him for the first time and by that time, the budgetary approval was already accorded and he was not aware of the financial powers of each of such officer. D1W1 further deposed that he has given as general description and he do not exactly remember but the Head of the department of our accounts branch was CCA. He further deposed that payment made to the contractor is within his knowledge as per the notings in the file.
47. D1W2 Sh. V. A. K. Nambiar deposed in his examination in chief that he joined as LDC in Department of Industrial Development, Ministry of Industry, Udyog Bhawan on 29.05.1972 and in early, 2007, he joined the Ministry of Information & Broadcasting as Deputy Secretary and he was posted in the Finance Wing under AS&FA. He further deposed that as Deputy Secretary, he was to process all the files coming from Administrative Wings of the Ministry of I&B to the AF&FA and the Administrative Wings under its head who is of the level of Joint Secretary process the CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 34 of 66. proposals for approval and the file comes to Finance Wing only for concurrence.
During his examination in chief, attention of D1W2 was drawn to the tender file Ex.PW10/A and on seeing the same, he deposed that this file came to him in his official capacity and that he had returned the file with his noting on page 22 N with the remarks that the file for the purposes of seeking budgetary approval for an excess amount of Rs. 1,60,296/- need not come to AS&FA and should be dealt with by the CCA who is the Administrative Head of PAO, IRLA. D1W2 identify his noting at point D1 to D1 and his signature at point X. During his examination in chief, attention of the witness was further drawn to tender file Ex.PW10/A and on seeing the same, D1W2 states that the noting on this page records payment of Rs. 43,93,276/- which was within the budget of Rs. 45 lacs and he had acknowledged noting of this fact by his signatures at point D2 sending the file to CCA who again sent the file to him under his signature at point D4 intimating of his approval which he acknowledged by appending his signature at point D3. He further deposed that the file was never meant to be put up before the AS&FA and he is not aware of the financial power of the CCA under the General Financial Rules as he was not concerned with it. He further deposed that whenever any file is to be put up from the CCA to AS&FA, it was to be routed through him as Deputy Secretary.
CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 35 of 66.
48. All the DWs as examined by the accused persons in their defence has been cross examined at length by Ld. Sr. PP for CBI.
49. I have heard Ld. Sr. PP for CBI and Ld. Counsels for accused persons and carefully gone through the record.
50. Ld. Sr. PP for CBI has argued that accused Vibhuti Thakur (Contractor, private person) and Vilas Rao Godeswar (since expired), N.K. Gupta, M.D. Gupta, R.K. Bambi and Amit Dabas (all public servants) entered into a criminal conspiracy and they dishonestly and fraudulently by abusing their position as public servant for the purpose of facilitating the contractor and resorted to illegal means and cause wrongful loss to the extent of Rs. 53,36,945/- to the Government exchequer and corresponding wrongful gain to private contractor. In pursuance of conspiracy, accused N. K. Gupta, Sr. Accountant moved a proposal dated 16.08.2008 (Ex.PW10/A colly.) (N-1 tender file) for constitution of the three member committee to get stock of the position and suggest a way to provide suitable remedies regarding dilapidated condition of PAO (IRLA). Accused Vilas Rao Godeswar CCA constituted four members committee consisting of N. K. Gupta Sr. Accounts Officer, M. D. Gupta AAO, R. K. Bambi AAO and Amit Dabas Accountant vide order dated 18.06.2008 (Ex.PW10/A colly.) (N-1 tender file). It is further argued by Ld. Sr. PP for CBI that there was no single technical person in the aforesaid committee. The tender committee submitted an estimated area for renovation work and accused Vilas Rao Godeshwar approved the estimated area work of 4725 sq. ft. (D-21-N3 part of Ex.PW10/A).
CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 36 of 66. Accused Vilas Rao Godeshwar approved for inviting the tender and NIT was issued consequently (D-22 page 282 of Ex.PW10/A colly). In furtherance of the criminal conspiracy, accused Vibhuti Thakur managed to submit NITs of five firms (most of the firms were non existence/dummy firms). The five firms in conspiracy with Vibhuti Thakur and other accused persons submitted their bids as under :
1. Vimala Enterprises (D-24 page no. 52 to 70 of Ex.PW10/A (colly.), Ex.PW12/E-9 (PW22/F colly.)
2. Sudan Carpets (Ex.PW12.E-11 paged No. 71 to 73 of Ex.PW10/A colly.) (PW22/H colly. D-26)
3.Vidhi Carpets (page no. 74 to 84 of Ex.PW22/G (colly.) D-
25)
4. Sunsilk Carpets (D-23 Ex.PW12/E-7 page no. 85 to 164 of Ex.PW10/A colly) (Ex22/E colly. D-23).
5. Kamal Enterprises (page no. 165 to 171 of Ex.PW10/A colly.) (D-
51. In pursuance of the criminal conspiracy, the tender committee after examining the bids prepared a comparative statement (page no. 172 of tender file Ex.PW10/A colly.). The lowest rate was quoted by Vidhi Carpets and second lowest rate was quoted by Sunsilk Carpets. The tender was not awarded to Vidhi Carpets as the requirement of seven years experience was not fulfilled by this firm. Therefore, the tender was awarded to next lowest bidder i.e Sunsilk Carpets which had quoted rate Rs. 85,07,060/- and also fulfilling the seven year experience condition. The bid of M/s Vimala Enterprises was rejected as it has quoted higher rates. Kamal Enterprises and Sudan Carpets had not submitted drafts of Rs. 2 lacs qua CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 37 of 66. EMD therefore, tenders of both the firms were rejected by the committee. It is alleged that these firms except the Sunsilk Carpets & Furnishers were dummy firms which were used in the tender process by Vibhuti Thakur in conspiracy with other accused persons. It is argued that the department was induced by the accused persons to award the tender in favour of Sunsilk Carpets by fraudulent and dishonest acts/omission. Further, it is argued that there was no competitive bidding in the entire process and department was induced to award the tender in favour of Sunsilk Carpets & Furnishers by putting the dummy firms in the tender process and there was intention from the inception to cheat the department fully knowing the fact that the dummy firms were put in the process just to complete the corum of the tender process and fraudulently/dishonestly obtained the tender for which Sunsilk Carpets and Furnisher was not legally entitled as fictitious/dummy firm were put in the tender process.
52. It is further argued that the EMD draft of Vidhi Carpets (Ex.PW12/E-2) (D-50) was prepared by accused Vibhuti Thakur proprietor M/s Sunsilk Carpets and Furnishers from his bank account. In the same manner the EMD draft of Vimala Carpets was prepared by accused Vibhuti Thakur proprietor M/s Sunsil Carpets and Furnishers from his SBI account no. 10454632508. The relevant debit entry is reflected in statement of account Ex.PW22/C (colly.). It is further argued that there is positive opinion of CFSL on the draft forms of EMD (Ex.PW12/E-2 D-15) and (Ex.PW12/E-4 D-19) that the draft forms bears the writing of accused Vibhuti Thakur. Ex.PW12/E-3 (D-18) draft form for draft Ex.PW12/E-4 (D-19) CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 38 of 66. has the writing of Vibhuti Thakur at Q5 and Q5A. CFSL Expert vide his expert report Ex.PW12/C-1 (part of D-54) gives his positive opinion that the Q5 and Q5A when compared with the specimen writing of accused Vibhuti Thakur S1 to S64, S1A to S9A, S19A to S28, S41A to S50A, S70A to S79A, S84A, S85A and S111A to S115A, S152A to S161A are of accused Vibhuti Thakur.
53. In the same manner the draft form Ex.PW12/E-1 (D-9) of draft Ex.PW12/E-2 (D-5) is also in the handwriting of accused Vibhuti Thakur. CFSL Expert vide his expert report Ex.PW12/C-1 (part of D-54) gives his positive opinion that the Q3 and Q3A (D-9), Q1A (D-8) when compared with the specimen writing of accused Vibhuti Thakur S1 to S64, S1A to S9A, S19A to S28, S41A to S50A, S70A to S79A, S84A, S85A and S111A to S115A, S152A to S161A (D-53 Ex.PW12/D (colly.) and Ex.PW15/A (colly.) are of accused Vibhuti Thakur.
54. It is further argued by Ld. Prosecutor that cancelled DD of Canara Bank bearing No. 468923 dated 17.07.2008 Ex.PW12/E-2 was later on deposited by accused Vibhuti Thakur in his bank and the amount of this DD was got credited in his firms account no. 026201012598 i.e Sunsilk Carpets and Furnishers account. Q-4 questioned handwriting of Vibhuti Thakur on Ex.PW12/E-2 (D-50) (cancelled DD) when compared with the above said specimen handwriting given in Ex.PW12/D (colly.)/Ex.PW15/A (colly.) (part of D-53) gives positive opinion regarding the writing of Vibhuti Thakur. It is further submitted that it was the same draft Ex.PW12/E-2 (D-
50) which was submitted by dummy firm i.e M/s Vimala CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 39 of 66. Enterprises along with the tender documents Ex.PW22/F (D-
24). It is submitted that relevant debit entry for issuance of draft (dated 22.07.2008) and credit entry (dated 02.08.2008) for cancellation of draft is reflected in Ex.PW22/C (colly.). It is alleged that the draft was collected from the office of P&A Account office (IRLA) by putting bogus signature on the letter dated 31.07.2008 Ex.PW22/K (D-28).
55. It is further submitted by Ld. Sr. Public Prosecutor that in the same manner cancelled DD of SBI bearing No. 440707 dated 22.07.2008 Ex.PW12/E-4 was later on deposited by accused Vibhuti Thakur in his bank and the amount of this DD was got credited in his firms account no. 10454632508 i.e Sunsilk Carpets and Furnishers account. Q-6 and Q-6A questioned handwriting of Vibhuti Thakur on Ex.PW12/E-2 (D-50) when compared with the above said specimen handwriting given in Ex.PW12/D (colly.)/Ex.PW15/A (colly.) (part of D-53) given positive opinion regarding the writing of accused Vibhuti Thakur. It is further submitted that it was the same draft Ex.PW12/E-4 (D-19) which was submitted by dummy firm i.e M/s Vidhi Carpets along with the tender documents Ex.PW22/G (colly.) (D-25). It is submitted that the relevant debit entry for issuance of draft (dated 22.07.2008) and credit entry (dated 02.08.2008) for cancellation of draft is reflected in Ex.PW22/C (colly.) (D-20) in the statement of account bearing no. 10454632508 of M/s Sunsilk Carpet & Furnishers. The draft was allegedly collected from the office of P&A Account office (IRLA) by putting bogus signature on the letter dated 31.07.2008 Ex.PW22/L (D-29). D6W2 Sh. Murli Dhar Thakur who was examined as defence witness by CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 40 of 66. accused Vibhuti Thakur who was not able to identify the signature on Ex.PW22/L and Ex.PW22/Z-4. It is further submitted that during the investigation search were also conducted at the residence of Vibhuti Thakur at third floor, Munirka Village, Prateek Market, New Delhi and in this search the incriminating document like seal in the name of Vimala Enterprises, seal in the name of Vidhi Carpets proprietor, letter heads of Vidhi Carpets Ex.PW7/B (colly.) (D-47), Vimala Enterprises, Sudan Carpets and other blank letter heads of different firms were recovered from the residence of accused Vibhuti Thakur. It is submitted that the incriminating documents/articles were duly seized in the presence of independent witness PW7 Harish Mukhtar which was duly recorded in the search list vide Ex.PW7/A (D-47). It is further submitted that recovery of blank letter head of dummy firms Vidhi Carpets, Vimala Enterprises, Sudan Carpets who were made to participate in the tender process, proves that the Vibhuti Thakur was having connection with these dummy firms.
56. It is further argued by the Ld. Sr. PP for CBI that during cross examination of Prem Nath Jha PW3, who was brother in law of accused Vibhuti Thakur, no suggestion was given by him that Vimala Enterprises which claimed to be run from the above said address that any rent or rent of Rs. 2,000/- used to be paid to Prem Nath Jha PW3 and witness specifically denied that any firm with the name of Vimala Enterprises used to be run from this address. It is further argued by Ld. Prosecutor that Vibhuti Thakur never put any suggestion during cross examination of the prosecution witnesses that he gave friendly CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 41 of 66. loan by way of demand draft to participate in the tender process. This particular fact was specifically in his knowledge even at the time of arguments on charge and during trial. The accused Vibhuti Thakur took this plea only during defence evidence and while recording the statement under Section 313 Cr.P.C, which is after thought.
57. Ld. Counsel for accused no. 1 has argued that the D-28 (Ex.PW22/K letter regarding return of DD to Vimala Enterprises) the presence of forwarding letter and acknowledgments and as such prosecution evidence is false that forwarding letter and acknowledgments are absent and is completely misdirected and therefore, the plea of payment of EMD without forwarding letter in the complaint is false and fabricated. It is further submitted that no firm M/s Sudan Carpets has been returned with the EMD indicates non application of mind and as such foundation of prosecution evidence is completely non existence. It is further submitted that prosecution evidence suggests loss of Rs. 42.7 lacs without any basis or supportive documents and as the relevant documents were obtained from the concerned department on 09.11.2012 whereas complaint is filed on 26.09.2012 and as such the calculation of loss has no basis. It is further submitted that the FIR is lodged on 16.01.2013 wherein the loss amount is mentioned as 53 lacs. It is further submitted that due to absence of technical person prior estimation was not done that is attributable to administrative authority who has chosen to form the tender committee on their own and accused no. 1 has no role to play in this. It is further submitted that seven works experience was included in the NIT of PAO CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 42 of 66. (IRLA) as per the direction of the CCA and as such this is not attributable to the tender committee. It is further submitted that the experience is a paramount criteria for the contract, the seven works experience was included in the NIT adopting the earlier NIT of Principal Account Office of MIB as per the written direction of the CCA (HOD). It is further submitted that despite being the opinion regarding the bogus inspection, no action has been initiated against the quality control committee. It is further submitted that the tender committee has only recommended the name of the lowest bidder and the tender committee on its own did not award any contract and contract was awarded after having the administrative approval of the CCA (HOD) and as such acceptance of the recommendation is the exclusive duty of administration. It is further submitted that tendering process was initiated for the second time as the same was already rejected on account of single bidder.
It is further submitted that accused no. 1 has initiated the recovery of income tax of Rs. 24,514/- from the contractor as a part of TDS as Senior Accounts Officer (Administration) which indicates his role is biased to the contractor. It is further submitted that no incriminating material was found from the residence of accused no 1 in the search dated 18.10.2013. It is also argued by Ld. Counsel for A-1 that preliminary inquiry has been conducted by a person who was on probation which is against the crime manual of CBI/law. It is also submitted by Ld. Counsel for accused no. 1 there is no allegation of gratification to the accused persons and no amount was ever transferred to their account and no amount was recovered CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 43 of 66. during search and seizure. It is argued by Ld. Counsel for accused that NIT was duly sent to the DAVP for publication which is a pre condition for every Government tender that it is to be published in the publication of DAVP. It is submitted that the first tender process was dropped due to the non application of the bidders in the first tender and the second tender was floated to get the work done as the office of CCA was in a shabby condition and it was not in a position to be utilize for office, which required to be repaired at the earliest. It is also submitted that no departmental action or any inquiry has been conducted against any of the public servant by their department and CBI has registered the case on source information without any basis. Ld. Counsel for accused persons prayed for acquittal of the accused persons from the charges framed against them. It is submitted by Ld. Counsel for accused no. 1 that D-48 (Ex.PW8/A) is the rate list which is not certified and is having no reference regarding the certification of material whether it is ISO/ISI standard material as deposed by PW 8 Pratap Singh.
It is also submitted by ld. Counsel for accused that PW 14 in his cross examination dated 15.03.2022 wherein he has categorically deposed that he has no knowledge of the bill no. 66 of June, 2008. It is also submitted by Ld. Counsel for accused that there is no case of Disproportionate of Assets against the accused persons or no such case has been registered against any of the accused. It is also submitted by ld. Counsel for accused that no action against the CCA has been taken by the ministry. It is also submitted by ld. Counsel for accused that complaint was filed in September, 2012 and CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 44 of 66. the relevant documents were received by the inquiry officer in November, 2012 and he calculated the amount on imaginary calculation. It is also not clear from the record that what is the difference of amount of loss whether it is Rs. 43.7 lacs or Rs. 53 lacs. In his arguments it is submitted by ld. Counsel for accused that in the tender file at page no. 160 and 161, the letter was forwarded to 9 agencies including DAVP. It is submitted by ld. Counsel for the accused that awarding of tender was not within the competence of A-1 Naresh Gupta and there was no Chairman of the Managing Committee and all were working under the directions of CCA.
58. Ld. Counsel for accused no. 2, 3 and 4 argued that accused persons had no criminal conspiracy and were acting on the written directions of their senior as they all are governed by the CCS (Conduct) Rules. It is further argued by Ld. Counsel for accused no. 2, 3 and 4 that the tender file was never in the custody of accused no. 2, 3 and 4 at any point of time and before 16.06.2008, no written administrative order on record for the formation of committee between N. K. Gupta and Vilas Godeswar. It is further submitted that the proposal for committee was raised by N. K. Gupta on 16.06.2008 directly to CCA by bypassing official hierarchy and also the office of CCA as file was directly put to CCA without any movement of file. It is further submitted that the decision of PAO's and Sr. A.O's was also mentioned by N. K. Gupta and no technical person was involved even in the proposal. It is further submitted the the CCA saw the file on 18.06.2008 and gave the name of the members of the committee in his own writing without their knowledge and consent and he also called CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 45 of 66. them and asked them to sign the same in front of him and this fact is also proved from the statement of the IO and other witnesses. It is further submitted that directions were given to N. K. Gupta by CCA to contact Sr. A.O and obtain NIT/NIQ vide written direction dated 01.07.2008 and vide order dated 03.07.2008 N. K. Gupta himself contacted Sr. A.O collected NIQ and modified it. It is further submitted that accused no. 2, 3 and 4 were not even asked about the same and it can be proved by the noting sheet bearing no reference or signature of the accused no. 2, 3 and 4 and even the statement of IO has proved the said version. It is further submitted that accused no. 2, 3 and 4 have no role in the entire payment procedure and after the 1st phase of the work i.e 29.08.2008, accused no. 2, 3 and 4 were not involved in the 2 nd phase of work which was awarded on 12.01.2009. It is further submitted that none of the member of the committee was being asked anything in the 2nd phase of the work except the Chairman i.e N. K. Gupta, thereafter, the entire work was being look after by Chairman and CCA.
It is further submitted that vide order dated 14.01.2009 Chairman proposed the name of quality control officials in his own writing, however, CCA also introduce the name of M. D. Gupta in his writing. It is further submitted that M. D. Gupta never signed the certificate of quality control except the certificate of completion of work. It is further submitted that accused N. K. Gupta was made the Chairman on 24.07.2008 by the members of the committee and the notice inviting tender proves that accused no. 2, 3 and 4 has no connivance with any person nor there was any conspiracy by them at any CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 46 of 66. point of time. It is also argued by Ld. Counsel for accused persons that the CCA was a very strict HOD who always keep threatening the subordinates to get them suspended on petty issues and there was so much pressure from CCA that even PW 10 Dharm Singh Dahiya in his voluntarily statement during cross examination deposed that he suffered a heart attack due to the pressure from the CCA and the accused persons are working under the threatening atmosphere. It is also submitted that whenever any subordinate official does not obey the direction of CCA, he was issued show cause notice and got suspended.
Discussion on evidence and submissions made by the counsels for the prosecution and the accused persons.
59. I have heard Ld. Sr. PP for CBI and Ld. Counsels for accused persons and gone through the record carefully.
60. Now, coming to the facts of the present case, the principle allegations in the present case are that the tender committee was constituted without a single technical person. The second allegation is that accused no. 5 Vilas Rao Ghodeshwar, CCA was competent to award tender upto Rs. 10 lacs and above the said amount, approval of AS & FA was required. No such approval was taken. Third allegation is that the material used was found to be of sub-standard and payment was made at exorbitant rate as per rates stipulated in DSR 2007. It is alleged that during the investigation, the material was inspected by Sh. Partap Singh, AE (Civil), CPWD, Nirman Bhawan, New Delhi who found the same as sub- standard and calculated a loss of Rs. 53,96,945.91 to the Government Exchequer. The other allegations are regarding CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 47 of 66. non-existence of the firm, who had participated in the tender and the EMD was returned without verification and the same got deposited by A-6 Vibhuti Thakur in his account.
61. The investigating officer had recorded the statement of Sh. Raman Kumar Shukla, Sub-Inspector who had conducted the preliminary enquiry. In his testimony, PW9 Sh. Raman Kumar Shukla stated that work order was issued to firm of A-6 Vibhuti Thakur, namely, M/s Sunsilk Carpets & Furnishers was on exorbitant rates and was in violation of CPWD rates. He further stated that on analogous rates quoted by the firm, total loss of Rs.42.7 lacs was caused to Government Exchequer. He had filed the complaint on the basis of which FIR was registered. He had seized bank documents from Sr. Manager, Canara Bank showing the payment and the file containing the tender and bills.
62. Apart from Sh. Raman Kumar Shukla, other witnesses were also examined to prove the case of prosecution.
63. PW10 Sh. D. S. Dahiya, who was LDC in the office of Accountant Central Revenue, AGCR Building stated that sealed quotations were handed over to him for safe custody and he returned the same on the next day to the Chairman of the Committee. Approval of the rate was communicated to contractor; renovation work was handed over and was completed. After obtaining the sanction from CCA, bill was submitted to PAO, Admin. Payment was released under the signatures of witness (Sh. D. S. Dahiya). Bill was passed after obtaining certificate from Committee regarding use of quality material up to the mark as per the specification. The work was completed within stipulated time. Material used was got CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 48 of 66. approved by from the committee. Work station was prepared as per the specification and waste material was cleared by the agency.
64. PW 1 Sh. Dayanand, PW2 Sh. Gyanender Kumar, PW 3 Sh. Premnath Jha, PW 4 Sh. Narender Kumar, PW 5 Sh. Rajpal Singh are from Postal Department who stated with respect to addresses of bidder firms. PW20 Sh. Inder Singh Bisht stated about his relation with the accused A-6 Vibhuti Thakur and the firm M/s Kamal Enterprises.
65. PW11 Sh. R. C. Mishra, Additional Secretary & Financial Advisor stated that Chief Controller of Accounts can award works upto Rs.10 lacs and approval of AS and FA is required, if the work is above Rs.10 lacs. On seeing the file of renovation, he stated that work in the case was awarded and was approved by A-5 Vilas Rao Ghodeswar and payment was released. Approval was to be obtained from competent authority, which was not taken.
66. There is no statement of any witness on record nor any inspection report made by Sh. Partap Singh, AE who had allegedly said the work to be of sub-standard quality and that payment was made at exorbitant rates. Admittedly, the work was not carried out by CPWD. There is also no evidence of any witness recorded whether member of tender committee required to join the technical person for the purpose of renovation work.
67. From the perusal of file, it transpired that tender was published on the website of Ministry of I&B two times. The first time, there was only one bidder and, therefore, the same was re-published. Further, it is also the case of the prosecution CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 49 of 66. itself that work was got checked from the quality control committee consisting of Sh. R. P. Sharma, Sr. AO, Smt. Sunita Sharma, AO and Sh. Om Prakash, Sr. AO, all of PAO was constituted by A-5 Vilas Rao Ghodeswar. There is no evidence or document on record which shows that the quality control committee is required to join technical person for the same. The committee certified that the material used by the agency was got approved by the committee and also regarding quality of work. Even the PW8 Pratap Singh has failed to provide the updated rate list for the material used in renovation work for the relevant period.
68. From the perusal of the tender file vide Ex.PW10/A (colly.), it was also transpired that note was put up by A-1 N. K. Gupta for renovation work and suggestion was given for making 3 Members committee for consideration of the same. A-5 Vilas Rao Ghodehswar had made four Members Committee instead of three members and, thereafter, on the perusal of file it transpired that committee took decision and details of the renovation requirements were prepared and tender was published and after due consideration tender was awarded. A-5 Vilas Rao Ghodeswar approved the recommendation of the tender committee by accepting the tender.
69. Surprisingly, IO has neither got any quality control check from any independent agency nor checked the prevalent market rates for the purpose of comparison. No evidence has been brought on record to this aspect. It is also worthwhile to mention that prosecution has examined 27 witnesses. Testimonies of witnesses which have been recorded which do CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 50 of 66. not in any manner show any incriminating material on record regarding public servants.
70. Before coming to the final conclusion, it is necessary to go through the relevant provisions of the offence of conspiracy which is defined under 120 A IPC which read as under :
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 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.
Explanation.-- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
71. The offence of conspiracy is punishable under Section 120 B IPC. Section 120 B IPC reads as under :
120 B. Punishment of criminal conspiracy. -- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
72. It may also be noted that mere agreement to commit a conspiracy is a punishable offence. So essentially in case of criminal conspiracy, the Court has to infer certain facts and CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 51 of 66. circumstances to arrive at its conclusion of existence of conspiracy and the involvement of the persons so conspiring from their act and attending circumstances. So, keeping these fundamental and governing principles of law relating to conspiracy in mind, it is necessary to examine the case of each accused qua his involvement, if any, in the conspiracy and other offences in terms of the charges so framed against them.
73. To arrive at a conclusion that there was conspiracy between the contractor and public servants, there has to be some bedrock evidence which may be of quality from which inference can be drawn about meeting of minds. But, the entire record does not show any iota of evidence by which one can come to conclusion of any conspiracy hatched or entered into between A- 1 to A-4 with contractor. Further, the fact that all the tenders were submitted by one person, which was later on found by CBI would not come to the knowledge of the tender committee members in any manner as the addresses and names itself show that they were of different identities. Had there been any conspiracy, the tender would not have been published on the website and that too on two occasions. The quality was checked by the quality control committee and found to be in order and, thereafter, amount was released. There is not even an iota of evidence that rates quoted by the bidder was not as per the prevalent market rate or exorbitant in any manner. The only allegation which is left is that A-5 Vilas Rao Ghodeswar was not competent to approve the tender beyond Rs.10 lacs. The fact remains that the amount was subsequently released and approved by providing budget. for the same amounts to ratification of the act and may be an irregularity for which departmental action can CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 52 of 66. be taken. It does not amount to criminal misconduct within the meaning of Section 13 (2) read with Section 13 (1) (d) of PC Act.
74. Even the prosecution has failed to show that there was prior meeting of minds with guilty intention to hatch the conspiracy for the purpose of cheating and for the purpose of offence of corruption under the PC Act for which the charges have been framed against the public servants. There may be a meeting of minds with the positive thought to get the office renovated as it was not in a good working condition which is to be used as office but there was no criminality on the part of public servants. Moreover, all these public servants were working under the supervision and control of CCA who was the head of the department and CCA was having a rude behavior against the subordinates and was creating a threatening atmosphere to get them suspended on petty issues. There may be a irregularity on the part of public servants while performing their duties but it can not be termed as they were having any criminal conspiracy with guilty intention to cheat the department or to gain something wrongfully or to favour some other person.
75. Even there are no allegation of any gratification and no departmental action has been taken by the department against any of the public servants and there is no abuse of official position by A-1 to A-4 as defined under 13 (1) (d) r/w Section 13 (2) of PC Act, 1988 which read as under :
"13. Criminal misconduct by a public servant.- (1) A public servant is said to commit the offence of criminal misconduct,-
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) xxx xxx xxx
(d) if he,-
CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 53 of 66.
(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 a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or"
76. In the judgment titled as C. Surendranath and Ors. Vs. State of Kerala and Ors. cited as MANU/KE/0112/2024, the Hon'ble High Court of Kerala held as under :
12. A reading of Section 13(1) (d) of the PC Act would reveal that a public servant can be prosecuted only if he has abused his position as a public servant and obtained for himself or any other person any valuable thing or pecuniary advantage. The intention of the legislation is not to punish a public servant for erroneous decision, but to punish for corruption. To fall within the four corners of sub-clause (ii) of Clause (d) of sub-section (1) of Section 13 of the PC Act, the decision/conduct of the public servant must be dishonest, amounting to corruption.
13 . To attract the term 'abuse' as contained in Section 13(1)(d) of the PC Act, the prosecution has to establish that the official concerned used his position for something it is not intended. The sum and substance of the discussion is that dishonest intention is the gist of the offence under Section 13(1)(d) of the PC Act.
14. The prosecution allegations, at the most, point to certain irregularities committed in the tender process. The prosecution also alleges conspiracy among the petitioners and the other accused.
15. It is trite that conspiracy need not be yet necessarily proved by direct evidence. It is also capable of being proved by circumstances pointing out the existence of a conspiracy to commit an unlawful act.
16. In Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra (AIR 1965 SC 682) a three-Judge Bench of the Apex Court held that the offence of conspiracy can be established either by direct evidence or by circumstantial evidence and the section will come into play only when the Court is satisfied that there is reasonable ground to believe that two or more persons have conspired to commit an offence or an actionable wrong, that is to say, there should be prima facie evidence that a person was a party to that conspiracy.
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17. In State of M.P. v. Sheetla Sahai [MANU/SC/1425/2009 : (2009) 8 SCC 617], the Apex Court has held as follows:-
"Criminal conspiracy is an independent offence. It is punishable separately. Prosecution, therefore, for the purpose of bringing the charge of criminal conspiracy read with the aforementioned provisions of the Prevention of Corruption Act was required to establish the offence by applying the same legal principles which are otherwise applicable for the purpose of bringing a criminal misconduct on the part of an accused."
18. In Zakia Ahsan Jafri v. State of Gujarat (MANU/SC/0809/2022 : 2022:INSC:653 : AIR 2022 SC 3050), the Apex Court held that every act of commission and omission would not result in hatching criminal conspiracy unless the acts have been done deliberately and there is meeting of minds of all concerned.
19. Dishonest intention is sine qua non to attract the offence punishable under Section 13(1)(d) of the Act. Mere conduct and action of the accused contrary to rules and departmental norms would not amount to criminal misconduct by a public servant.
20. A fundamental principle of criminal jurisprudence with regard to the liability of an accused is the element of mens rea. On the principles of actus reus and mens rea, the learned author Sri. Glanville Williams in the 'Textbook of Criminal Law' [Third Edition, Dennis J. Baker, page 95] comments thus:
"The mere commission of a criminal act (or bringing about the state of affairs that the law provides against) is not enough to constitute a crime, at any rate in the case of the more serious crimes. These generally require, in addition, some element of wrongful intent or other fault. Increasing insistence upon this fault element was the mark of advancing civilization."
21. On the principles of Criminal Liability, the learned author Sri. K.D. Gaur in his book Criminal Law [Lexis Nexis, Butterworths, page 37] explains thus:
"Criminal guilt would attach to a man for violations of criminal law. However, the rule is not absolute and is subject to limitations indicated in the Latin maxim, actus non facit reum, nisi mens sit rea. It signifies that there can be no crime without a guilty mind. To make a person criminally accountable, it must be proved that an act, which is forbidden by law, has been caused by his conduct, and that the conduct was accompanied by a legally CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 55 of 66.
blameworthy attitude of mind. Thus, there are two components of every crime, a physical element and a mental element, usually called actus reus and mens rea respectively."
22. Dishonest intention is the crux of the offence under Section 13(1)(d) of the PC Act. The question of whether violation of the rules and departmental norms would amount to the offence under Section 13(1)(d) of the PC Act was considered by the Apex Court in C.K. Jaffer Sharief v. State [MANU/SC/0960/2012 : 2013 (1) SCC 205]. The Apex Court held thus:
"If in the process, the rules or norms applicable were violated or the decision taken shows an extravagant display of redundance it is the conduct and action of the appellant which may have been improper or contrary to departmental norms. But to say that the same was actuated by a dishonest intention to obtain an undue pecuniary advantage will not be correct. That dishonest intention is the gist of the offence under Section 13(1)(d) is implicit in the words used i.e corrupt or illegal means and abuse of position as a public servant."
23. In M. Narayanan Nambiar v. State of Kerala (MANU/SC/0164/1962 : AIR 1963 SC 1116), while dealing with Section 5 of the 1947 Act, the Apex Court held that dishonest intention is the gist of the offence.
24. In the present case, the prosecution records reveal only a violation of the rules and departmental norms or procedural norms for the tender process. The prosecution failed to produce any material to show that the petitioners, with dishonest intention, committed any acts.
77. The offence under section 420 IPC already has in its sweep the meaning of 'cheating' as defined u/s 415 IPC. For ready reference, Section 415 IPC defines cheating as under:
"S.415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation.-- A dishonest concealment of facts is a deception within the meaning of this section.
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78. Section 420 IPC read as under :
420. Cheating and dishonestly inducing delivery of property.-- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
79. Reliance is placed on the judgment titled as Ajay Mitra Vs. State of Madhya Pradesh AIR 2003 SC 1069 wherein it has been held by the Hob'ble Apex Court as under :
"Even if the allegation made in the complaint are accepted to be true and correct, the appellants can not be said to have committed any offence of cheating. Since the appellants were not in picture at all the time when the complainant alleges to have spent money in improving the bottling plant, neither any guilty intention can be attributed to them nor there can possibly be any intention on their part to deceive complainant".
80. As the prosecution has failed to bring on record that rates approved by tender committee was not as per the prevalent market rate, there is not even an iota of evidence to show that they have by corrupt or illegal means obtained for themselves or for any other person any valuable or pecuniary advantage. Therefore, neither any conspiracy between public servants and bidder (A- 6 Vibhuti Thakur) nor any criminal misconduct is found on the part of public servants.
81. In the present case the investigating officer Insp. H. Suresh Singh has been examined at length as PW 22. In his cross examination certain suggestions were given to the witness where he categorically admits the suggestion of Ld. CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 57 of 66. Counsel for A-1. in the cross examination dated 20.01.2023, the witness deposed as under :
"It is correct that the tender committee was constituted by accused Vilas Rao Godheswar (since died). It is further correct that accused N.K. Gupta did not become member of the tender committee by his choice"
In the cross examination, it was also put to the witness whether there was reference of any ISO ISI material in Ex.PW8/A and the witness answered to this question as under :
"This can be explained by Pratap Singh PW8, A.E CPWD".
In the cross examination witness also answered to the question as under :
"That I had requisitioned the record w.e.f 01.01.2006 to 31.12.2007 and from 01.01.2008 to 30.06.2008 from the AS&FA, M/o I&B, New Delhi vide letter dated 27.05.2014 (which is part of Ex.PW21/C (colly) at page no. 657 of judicial file and reply is a matter of record"
Witness also deposed as under :
"It is correct that I did not received the noting for the relevant period from the office of AS&FA".
The witness further admits as under :
"It is correct that the suggestions made on 25.06.2008 reflecting on note sheet page no. 2 of tender file Ex.PW10/A (colly.) are not signed by any members of the tender committee".
The witness also deposed when the attention of the witness was drawn to D-21 which has been exhibited in the CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 58 of 66. testimony of PW10vide Ex.PW10/A (colly. Note sheet page 9) witness deposed as under :
"It is correct I did not find any irregularities in the proceedings done by the tender committee as mentioned on page 9N. He also admits that the tender was awarded to M/s Sunsilk Carpets and Furnishers only after the approval of CCA. The witness in his cross examination on seeing the preliminary inquiry report has deposed that in the preliminary inquiry what has been opined is of exorbitant rate and not of substandard material.
It is also admitted by the witness in the cross examination when a suggestion has been put to him by the ld. Counsel for the accused that "It is correct that during the investigation, accused R.K. Bhambi, Amit Dabass and M.D. Gupta stated that they were following the written orders of their superior officials".
It is also admitted by the witness as under :
"It is correct that nothing incriminating material qua this case was found during the searches of house/locker. I did not find any undisclosed amount or elsewhere in the name or possession of the three accused".
In his cross examination witness also deposed as under :
"It is correct that as per the noting on page no. 32 N, the file was marked by ACA to CA but CCA on his own cut that marking and marked to file to himself and signed it on 08.06.2009".
82. The accused have also examined witnesses in their defence and one of the witness namely A. K. Nambiar as CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 59 of 66. D1W2. In his examination in chief, he has deposed that he was working as Deputy Secretary in 2007 and he was posted in the finance wing under AS&FA to whom the file was to be processed as alleged in the prosecution complaint but the same was not allegedly processed by CCA to the higher ups. The witness further deposed that he was to processed all the files coming from the administrative wings of the Ministry of I&B to the AS&FA. During the examination in chief, the attention of the witness is drawn to D-21 to D-39 vide Ex.PW10/A (colly.). On seeing the same the witness states that this file came in his official capacity and he had returned the said file with his noting on page no. 22 N with his remarks that the file for the purposes of seeking of budgetary provision for excess amount of Rs. 1,60,296 need not to come to AS&FA and should be dealt with by the CCA who was the administrative head of IRLA. The witness also identified his noting on the file at point D-1 to D-1.
83. All these admissions on the part of IO and other witnesses made it crystal clear that there was no abuse of official capacity by any of the accused and they were working under the commands of their superior that is A-5 Vilas Rao Godeshwar who already died and the proceedings have been abated against him. The prosecution has failed to establish on record any criminal conspiracy to commit the offence under Section 120 B r/w Section 420, 471 IPC and 13 (1) (d) r/w Section 13 (2) of PC Act by all the accused.
84. However, as regards the contractor, the charges have been framed against him for the offences under Section 120 B r/w Section 420, 471 IPC and 13 (1) (d) r/w Section 13 (2) of CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 60 of 66. PC Act for the offence of conspiracy along with the public servants. The separate charge for the substantive offences of IPC i.e 420 and 471 is also been framed against the accused A-
6.
85. It has been brought on record that the addresses mentioned by other bidders were found to be either non- existent or of that of A-6 Vibhuti Thakur. The FSL report has confirmed that the draft form of EMD of M/s Vidhi Carpets and Vimala Enterprises, the bidders other than M/s Sunsilk Carpets and Furnishers were prepared by A-6 Vibhuti Thakur in his handwriting. Further, drafts were got cancelled and deposited by A-6 Vibhuti Thakur in his own account. There are allegations of cheating and forgery against A-6 Vibhuti Thakur.
86. It is important to note that the EMD draft of Vidhi Carpets (Ex.PW12/E-2) (D-50) was prepared by accused Vibhuti Thakur proprietor M/s Sunsilk Carpets and Furnishers from his bank account. In the same manner the EMD draft of Vimala Carpets was prepared by accused Vibhuti Thakur proprietor M/s Sunsil Carpets and Furnishers from his SBI account no. 10454632508. The relevant debit entry is reflected in statement of account Ex.PW22/C (colly.). It is established on record by the prosecution that there is positive opinion of CFSL on the draft forms of EMD (Ex.PW12/E-2 D-
15) and (Ex.PW12/E-4 D-19) that the draft forms bears the writing of accused Vibhuti Thakur. Ex.PW12/E-3 (D-18) draft form for draft Ex.PW12/E-4 (D-19) has the writing of Vibhuti Thakur at Q5 and Q5A. CFSL Expert vide his expert report Ex.PW12/C-1 (part of D-54) gives his positive opinion that the CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 61 of 66. Q5 and Q5A when compared with the specimen writing of accused Vibhuti Thakur S1 to S64, S1A to S9A, S19A to S28, S41A to S50A, S70A to S79A, S84A, S85A and S111A to S115A, S152A to S161A are of accused Vibhuti Thakur.
87. In the same manner the draft form Ex.PW12/E-1 (D-9) of draft Ex.PW12/E-2 (D-5) is also in the handwriting of accused Vibhuti Thakur. CFSL Expert vide his expert report Ex.PW12/C-1 (part of D-54) gives his positive opinion that the Q3 and Q3A (D-9), Q1A (D-8) when compared with the specimen writing of accused Vibhuti Thakur S1 to S64, S1A to S9A, S19A to S28, S41A to S50A, S70A to S79A, S84A, S85A and S111A to S115A, S152A to S161A (D-53 Ex.PW12/D (colly.) and Ex.PW15/A (colly.) are of accused Vibhuti Thakur.
88. It is pertinent to mention here that cancelled DD of Canara Bank bearing No. 468923 dated 17.07.2008 Ex.PW12/E-2 was later on deposited by accused Vibhuti Thakur in his bank and the amount of this DD was got credited in his firms account no. 026201012598 i.e Sunsilk Carpets and Furnishers account. Q-4 questioned handwriting of Vibhuti Thakur on Ex.PW12/E-2 (D-50) (cancelled DD) when compared with the above said specimen handwriting given in Ex.PW12/D (colly.)/Ex.PW15/A (colly.) (part of D-53) gives positive opinion regarding the writing of Vibhuti Thakur. This was the same draft Ex.PW12/E-2 (D-50) which was submitted by dummy firm i.e M/s Vimala Enterprises along with the tender documents Ex.PW22/F (D-24). The relevant debit entry for issuance of draft (dated 22.07.2008) and credit entry (dated 02.08.2008) for cancellation of draft is reflected in CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 62 of 66. Ex.PW22/C (colly.). The draft was collected from the office of P&Account office (IRLA) by putting bogus signature on the letter dated 31.07.2008 Ex.PW22/K (D-28).
89. It is also established on record that in the same manner cancelled DD of SBI bearing No. 440707 dated 22.07.2008 Ex.PW12/E-4 was later on deposited by accused Vibhuti Thakur in his bank and the amount of this DD was got credited in his firms account no. 10454632508 i.e Sunsilk Carpets and Furnishers account. Q-6 and Q-6A questioned handwriting of Vibhuti Thakur on Ex.PW12/E-2 (D-50) when compared with the above said specimen handwriting given in Ex.PW12/D (colly.)/Ex.PW15/A (colly.) (part of D-53) given positive opinion regarding the writing of accused Vibhuti Thakur. This was the same draft Ex.PW12/E-4 (D-19) which was submitted by dummy firm i.e M/s Vidhi Carpets along with the tender documents Ex.PW22/G (colly.) (D-25). The relevant debit entry for issuance of draft (dated 22.07.2008) and credit entry (dated 02.08.2008) for cancellation of draft is reflected in Ex.PW22/C (colly.) (D-20) in the statement of account bearing no. 10454632508 of M/s Sunsilk Carpet & Furnishers. The draft was collected from the office of P&Account office (IRLA) by putting bogus signature on the letter dated 31.07.2008 Ex.PW22/L (D-29). D6W2 Sh. Murli Dhar Thakur who was examined as defence witness by accused Vibhuti Thakur who was not able to identify the signature on Ex.PW22/L and Ex.PW22/Z-4. During the investigation search were also conducted at the residence of Vibhuti Thakur at third floor, Munirka Village, Prateek Market, New Delhi and in this search the incriminating document like seal in the CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 63 of 66. name of Vimala Enterprises, seal in the name of Vidhi Carpets proprietor, letter heads of Vidhi Carpets Ex.PW7/B (colly.) (D-47), Vimala Enterprises, Sudan Carpets and other blank letter heads of different firms were recovered. The incriminating documents/articles were duly recorded in the presence of independent witness PW7 Harish Mukhtar in search list Ex.PW7/A (D-47). The recovery of blank letter head of dummy firms Vidhi Carpets, Vimala Enterprises, Sudan Carpets who were made to participate in the tender process, proves that the Vibhuti Thakur was having connection with these dummy firms, has been proved by the PW7 vide D- 47 Ex.PW7/A, the search list.
90. The defence witness who has been examined by the A- 6 in his defence also admits that the amounts for DD was paid by the accused no. 6 from his account. It is also admitted by the defence witnesses that the amount was DD was returned by them to accused no. 6 and the same was got transferred in his account of A-6. It is also admitted by the accused in statement recorded under Section 313 Cr.P.C that he got the DD prepared from the concerned bank and deposit the returned DDs in his account. The argument of Ld. Counsel for accused no. 6 is having no force and can not be believed as in the competitive bidding it is not expected that a bidder is providing financial assistance to his competitors. The accused has gained wrongfully by adopting fraudulent means and get the tender awarded in his favour and thereby he has committing the offence of cheating as defined under Section 415 IPC and punishable under Section 420 IPC. Though, there is no evidence of using forged documents as the documents CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 64 of 66. were prepared by the accused himself which can not be termed as forgery on the part of the accused. It is also necessary to mention here that there is no charge framed against the A-7 M/s Sunsilk Carpets and Furnishers under proprietorship of A-
6. Therefore, no such finding can be given qua the A-7. Conclusion
91. Accordingly, in view of the above discussion and taking into consideration, the facts and circumstances and the evidence led by the prosecution, I am of the considered opinion that the prosecution have failed to prove on record that the accused persons have committed any offence of criminal conspiracy punishable under Section 120 B IPC r/w Section 420, 471 of IPC and 13 (2) r/w Section 13 (1) (d) of PC Act. The prosecution has also failed to prove on record that the accused public servants have committed offence punishable under Section 13 (2) r/w Section 13 (1) (d) of PC Act. Accordingly, A-1 N. K. Gupta, A-2 Mata Deen Gupta, A-3 R. K. Bhambi and A-4 Amit Dabas are acquitted from all the charges framed against them.
92. So far as the role of accused no. 6 Vibhuti Thakur is concerned, the prosecution has been able to prove beyond reasonable doubt that he has committed the offence of cheating punishable under Section 420 IPC. However, there is no evidence has come on record that the accused has used the forged documents or he was a part of any criminal conspiracy with the public servants to commit the offence of 120 B IPC r/w Section 420, 471 of IPC and 13 (2) r/w Section 13 (1) (d) of PC Act. Accordingly, accused no. 6 Vibhuti Thakur is convicted for the offence under Section 420 IPC. Accused No. CC No. 249/2019, RC No. DAI-2013-A-0004, CBI Vs. Naresh Kumar Gupta & Ors. Page No. 65 of 66. 6 is acquitted of the charges under Section 120 B IPC r/w Section 420, 471 of IPC and 13 (2) r/w Section 13 (1) (d) of PC Act and 471 IPC. Let he be heard on the quantum of sentence.
93. Accused persons are directed to furnish bonds under Section 437-A Cr.P.C. Ahlmad is directed to page and book- mark the file forthwith so as to enable digitization of the entire Digitally record. File be consigned to record room. signed by MUKESH MUKESH KUMAR Announced in the open Court KUMAR Date:
2024.12.24 today i.e December 21, 2024.
15:00:16 +0530 (MUKESH KUMAR) SPECIAL JUDGE CBI-05 (PC Act) RADC, NEW DELHI.
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