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Cbi vs . 1) Phool Singh S/O Late Sh. Sugan Singh on 13 May, 2016

                 IN THE COURT OF SH. BRIJESH KUMAR GARG 
          SPECIAL JUDGE:CBI­01: CENTRAL: TIS HAZARI, DELHI
CC No. : 37/2008
Case ID : 02401R011363200
                                                             RC :  79(A)/1997
                                                             PS :  CBI/ACB/New Delhi
                                                        U/s:   Section 120 B IPC, 
                                                                r/w Sec. 409, , 477A,   
                                                                    IPC and Sec. 13(2) 
                                                                  r/w Sec. 13 (1) (d) of
                                                                 The Prevention of Corruption 
                                                                 Act 1988.


CBI  Vs.   1) Phool Singh S/o Late Sh. Sugan Singh
                      r/o House No. 138, Ward No. 10, 
                      Barh Mohalla, Old Faridabad, Haryana.
                    2) A.R.Bhati S/o Sh. P.B. Bhati,
                      r/o B­20, Vivek Vihar, Phase­II,
                      Delhi­110095.
                    3) Sanjay Kumar Malhotra S/o Sh. J.L. Malhotra
                        r/o D­1/21, Lodhi Colony,
                      New Delhi­110003.
Date of Institution                                      :   13.06.2000
Judgment Reserved on                                     :   04.05.2016
Judgment Delivered on                                    :   13.05.2016




CBI  Vs. Phool Singh (CC No. 37/2008)      Page  1   of  114                         Special Judge, CBI­01, Central, Delhi 
                                                J U D G M E N T  

1. In the present case, accused Phool Singh, K.C. Wahi (since deceased), A.R.Bhati and Sanjay Kumar Malhotra were sent up for trial for the offences Under Section 120­B IPC, r/w Section 409, 420, 477A, 511 IPC and Section 13(2), r/w Section 13 (1)(d) of The Prevention of Corruption Act, 1988.

2. It has been stated in the charge sheet that a reliable source information was received, regarding malpractices by CPWD officials of Srinivaspuri sub­division in connection with the replacement of SW pipes in H­Block of Srinivaspuri. On this information, Inspector P. Balachandran collected the documents, i.e. measurement book, agreement papers and contractor's bills th and then a surprise check was conducted at various sites, on 14 October, 1997. It was found that as per the original agreement, work for replacement of damaged SW pipes was awarded to th contractor Sanjay Kumar Malhotra on 18 August, 1997 for Rs. 61,784/­. As per measurement book No. 5900 issued to A.R. CBI Vs. Phool Singh (CC No. 37/2008) Page 2 of 114 Special Judge, CBI­01, Central, Delhi Bhati, Junior Engineer, CPWD of Sub Division Srinivaspuri, the said work commenced on 28.08.1997. Till 11.09.1997, 457.17 metres of SW pipes had been replaced in 75 quarters in H­Block, Sriniwaspuri. On 11.09.1997, the first running bill for Rs. 1,55,638/­ was submitted to the divisional office. This running bill was submitted after inspection and certification by A.R. Bhati, J.E. and K.C. Wahi, A.E., CPWD. This bill was passed by Phool Singh, Executive Engineer, CPWD, P­Division on 13.09.1997.

3. It is further stated in the charge sheet that the work had then continued and 306.45 metres of SW pipes had been further shown to have been replaced in 45 quarters in H­Block, Sriniwaspuri. The second and final bill for the said work for Rs. 76,340/­ was submitted to the Divisional office. This was also submitted after certification by K.C. Wahi, A.E. and A.R. Bhati, J.E. This bill was yet to be passed, when the FIR was registered. CBI Vs. Phool Singh (CC No. 37/2008) Page 3 of 114 Special Judge, CBI­01, Central, Delhi

4. It is further stated in the charge sheet that as per the measurement book and cement register, a total of 15.30 M.T., of cement had been issued to the contractor for the said work costing Rs.38,363/­ at government rates. The deviation from the original estimate work out to approximately 400%.

5. It is further stated in the charge sheet that on conducting physical verification of the work, it was found that out of 45 quarters mentioned in the second and final bill, work appeared to have been done only in six quarters. It is alleged that the surprise check clearly brought out the fact that the CPWD officials, in connivance with the contractor Sanjay Kumar Malhotra, had raised false bills without executing the specified work as recorded in the measurement book and thereby cheated the CPWD and also abused their official positions with the object of causing wrongful pecuniary advantage to the contractor. In addition to this, the above mentioned cement of 15.30 MT issued from the CPWD store had mostly been misappropriated.

CBI Vs. Phool Singh (CC No. 37/2008) Page 4 of 114 Special Judge, CBI­01, Central, Delhi

6. It is further stated in the chargesheet that the investigations have revealed that requirement for carrying out any work in the CPWD is generated by three modes :

a) The demand may come from the side of the allottee of the quarter or through residents' association;

b) The demand may be ascertained through the complaint register which is kept in the Enquiry Office where in each and every allottee is authorized to make complaint about the requirement;

c) By inspection by officials or officers of the CPWD who, on inspection, find defect in the maintenance of quarters and order the same.

7. It is further stated in the charge sheet that in this case, none of the above procedure was followed and there was no documentary evidence to show that there was actually any demand for the change of SW pipes.

CBI Vs. Phool Singh (CC No. 37/2008) Page 5 of 114 Special Judge, CBI­01, Central, Delhi

8. It is further stated in the charge sheet that as per schedule of quantity, following six items of work were to be carried out :

i) Dismantling of 150 metres SW pipes;

ii) Supply of 150 metres SW pipes of 100 mm diameter and to joint and fix it;

iii) Providing and laying cement concrete of 40 mm around the above 150 metres of SW pipes;

iv) To clean 60 manhole covers;

v) To clean gully traps 150 Nos.;

vi) To clean 1000 metres sewer lines.

9. It is further stated in the charge sheet that the total estimated cost of the above work was Rs. 39,353/­. The work was to be carried out as per the directions of Engineer Incharge within a stipulated period of one month. 1% water charges were to be deducted from the gross bill. Cement of 5 MT @ Rs.2325/­ per MT was to be issued and the value of the cement was to be CBI Vs. Phool Singh (CC No. 37/2008) Page 6 of 114 Special Judge, CBI­01, Central, Delhi deducted from the gross bill. Tenders were invited. The lowest rate quoted was 65% above the estimated rate. After negotiations, the work was awarded to accused Sanjay Kumar Malhotra @ 57% above the estimated rate.

10. It is further stated in the charge sheet that the work was allotted to the contractor accused Sanjay Kumar Malhotra on 18.08.1997. As per the agreement executed between the CPWD through K.C.Wahi, Assistant Engineer and Contractor, Sanjay Kumar Malhotra, the estimated cost was Rs.39,353/­ and the tendered amount was Rs.61,784/­. As per the terms and conditions of this agreement, the work was to start on 28.08.1997 and was to be completed by 27.09.1997. The measurement book No. 5900 was initially issued in the name of accused K.C. Wahi, A.E., who again issued the same to co­accused A.R. Bhati, J.E., on 14.08.1997. Accused A.R.Bhati recorded the measurements in this measurement book on 28.08.1997 on page No. 1 and 2. As per this measurement book, contractor, accused Sanjay CBI Vs. Phool Singh (CC No. 37/2008) Page 7 of 114 Special Judge, CBI­01, Central, Delhi Kumar Malhotra had shown the dismantling of old SW pipes measuring 453.97 metres spread over 75 quarters of 'H' Block, situated at different places and laying of fresh pipes on the same day. It is not possible to carry out all this work in one day. A running bill for Rs.1,89,776/­ was prepared and after deducting Rs.34,138/­, a net amount of Rs.1,55,638/­ was allowed to be paid to the contractor. This bill was passed for payment by K.C. Wahi, Assistant Engineer, showing it as the first running bill. Accused Sanjay Kumar Malhotra has made an entry accepting the measurements in the bill. This bill was checked in the Divisional Office on 15.09.1997. It shows deviation of 208%. As per calculations, cement weighing 10 MT was shown as consumed for the work done. Phool Singh, Executive Engineer passed this bill for payment on 15.09.1997, without following the proper procedure by getting it checked from the Assistant Surveyor of Works. A sum of Rs.1,55,638/­ was paid to the contractor vide cheque No. 940177.

CBI Vs. Phool Singh (CC No. 37/2008) Page 8 of 114 Special Judge, CBI­01, Central, Delhi

11. It is further stated in the charge sheet that on 29.09.1997, accused A.R. Bhati, Junior Engineer, made entries about abstract of work / costs, in the measurement book and also about the second and final bill. He also prepared statement of the theoretical calculation of cement consumption, recovery statement, test check statement, deviation statement Part­I and Part­II and on the same day. Accused Sanjay Kumar Malhotra signed the measurement book, accepting the measurements and the bill. Second and final bill was got prepared by A.E., K.C. Wahi. The final bill was for Rs.2,84,057/­. After deducting the amount already paid and the recovery of a sum of Rs.71,941/­, Rs.76,340/­ was yet to be paid to the contractor. This bill was sent to the Divisional office on 29.09.1997 by accused K.C. Wahi. The measurement book shows that accused Phool Singh, Executive Engineer, recorded that he had test checked this bill. The entries in the cement register show that a total 330 bags of cement was shown supplied to the contractor during the period 28.08.1997 to 20.09.1997. The cement register also shows that it CBI Vs. Phool Singh (CC No. 37/2008) Page 9 of 114 Special Judge, CBI­01, Central, Delhi was checked by accused K.C. Wahi, A.E., from time to time. The reason for deviation of 407.08% had been shown by the A.E., and the J.E., on the basis of demand of the allottees, in the deviation statement. But, there were no complaints of allottees in the complaint register of the Sub­Division. Investigations also revealed that during the physical verification, position of work in respect of 25 quarters, where work was shown as executed completely, the work in respect of only six quarters was found to have been executed. The inspection of the work of replacement of SW pipes was based on the statement of persons occupying the said quarters. Physical verification of the ground revealed that the work, as shown in the bills, had not been done. Subsequently, the site was inspected by an inspecting team comprising of CBI officers and assisted by engineers. According to Measurement Book No. 5900, 760.62 metres SW pipes had been shown to have been replaced, but, as per vigilance inspection report, only 235.87 metres SW pipe was found to have been replaced. Thus only 31.01% of work was executed. It was CBI Vs. Phool Singh (CC No. 37/2008) Page 10 of 114 Special Judge, CBI­01, Central, Delhi found that the bills were raised for the full measurement of 760.62 metres of SW pipes.

12. It is further stated in the charge sheet that the accused A.R.Bhati, Phool Singh and Sanjay Kumar Malhotra had gone to Shimla together on a pleasure trip, which establishes their closeness and intimacy. The CBI has alleged commission of offences punishable under Sections 120­B, 420, 511, 477­A, 409 IPC and under Section 13 (2) read with Section 13 (1)(d) of The Prevention of Corruption Act, by the accused persons.

13. In pursuance to the order, dated 10.03.2014, charges for the offence punishable under Section 120­B IPC read with Section 409/477­A/420/511 IPC and also read with Section 13 (2), read with Section 13(1)(d) of The Prevention of Corruption Act, 1988 and for the substantive offences punishable under Section 477­ A/409/420/511 IPC were framed against the accused persons, to which, they all pleaded not guilty and claimed trial. Additional CBI Vs. Phool Singh (CC No. 37/2008) Page 11 of 114 Special Judge, CBI­01, Central, Delhi charges for the offence punishable under Section 13(2) read with Section 13(1) (d) of The Prevention of Corruption Act, 1988, were also framed against the accused Phool Singh, K.C. Wahi and A.R. Bhati, to which also, they pleaded not guilty and claimed trial.

14. It is pertinent to mention here that during the trial, accused K.C. Wahi, A.E., had expired and therefore, the proceedings against him stand abated, vide order, dated 19.11.2013. Prosecution Evidence

15. During the course of trial, the prosecution has examined the following witnesses, namely:

i) PW­1 Sh. P. Balachandran, DSP, EOU­I, CBI, Delhi, who is the complainant of the present case. He conducted surprise check and observation at Sriniwaspuri Division of CPWD, on 10.10.1997, 13.10.1997 & 14.10.1997, along with Inspector C.K. Sharma, SI Brajesh Kumar and other staff members. He randomly checked 25 works related to the laying of SW pipes and CBI Vs. Phool Singh (CC No. 37/2008) Page 12 of 114 Special Judge, CBI­01, Central, Delhi observed that the work was done at six places only. He seized the relevant files and the measurement book and verified the measurement book from the actual work done at the site and lodged the complaint Ex.PW1/A, to the then S.P. CBI, on the basis of which, FIR Ex.PW1/B was got registered by Sh. N.N. Singh, the then SP, CBI, ACB, against the accused.

ii) PW­2 Sh. A. Vishwanathan, who was working as Assistant Accounts Officer in CPWD, P­Division, during the period w.e.f. June 1996 to 1999. He was entrusted with the duty to check the bills submitted by the contractor, which came to the account branch of the division, along with the other documents, for payment of the bill amount to the contractor. He used to check the bills in respect to the test checkings by the A.E/E.E, theoretical calculation statements, part rate statements, recovery statements, measurement books etc. He was required to point out the short comings in the bill and the documents, if any, and to put the bills before the Executive Engineer.

iii) PW­3 Inspector C.K. Sharma, ACB Branch of CBI, Delhi, CBI Vs. Phool Singh (CC No. 37/2008) Page 13 of 114 Special Judge, CBI­01, Central, Delhi who accompanied complainant, Inspector P. Balachandran (PW­1) and other officials of the CBI and independent witnesses, for the purpose of surprise check of sites at Sriniwas Puri Sub­ Division of CPWD, on 10.10.97, 13.10.97 & 14.10.97.

iv) PW­4 Sh. T.K. Majumdar, who was working as Executive Engineer in Vigilance Department of CPWD at its Headquarter, in October 1997. He was deputed by his office to inspect and check the work done at H­Block Quarters at Sriniwas Puri and Nehru Nagar, along with the CBI team. After checking of the quarters, regarding the execution of work, he submitted his report Ex.PW4/A. He had reported that in the checking conducted on 07.11.1997, he found that only 235.87 meters of SW Pipe was actually replaced in the streets, outside the quarters in H­Block, instead of a total quantity of 760.62 meters, as mentioned in the measurement book.

v) PW­5 Sh. Rampal, a resident of quarter No. H­161 Sriniwaspuri Delhi, during the period w.e.f. 1987 to 2001. He has deposed that no sewer line was changed from his kitchen to the CBI Vs. Phool Singh (CC No. 37/2008) Page 14 of 114 Special Judge, CBI­01, Central, Delhi street, by any contractor or the CPWD, during the year 1997.

vi) PW­6 Sh. Satish, a resident of quarter No. H­49 Sriniwaspuri, New Delhi, for the last 20 years. He has also deposed that no sewer line was changed by any contractor or CPWD, during the year 1997.

vii) PW­7 Smt. Godambari, a resident of quarter No. H­223 Sriniwaspuri, New Delhi. She has also deposed that no sewer line was changed by any contractor or CPWD, during the year 1997.

viii) PW­8 Sh. Layak Ram, a resident of quarter No. H­1, Sriniwaspuri, New Delhi. He has also deposed that no sewer line was changed by any contractor or CPWD, during the year 1997.

ix) PW­9 SI D.K. Singh, who was posted as Inspector CBI, ACB, New Delhi, in the year 1997. He is the investigating officer of the present case. After registration of the FIR, in the present case, on 20.10.1997, the case was entrusted to him for investigations. He has also obtained the sanction orders Ex.PW9/J & Ex.PW9/H, under Section 19 of The Prevention of Corruption Act, 1988, regarding prosecution of accused A.R. Bhati, J.E., and Phool CBI Vs. Phool Singh (CC No. 37/2008) Page 15 of 114 Special Judge, CBI­01, Central, Delhi Singh, E.E., from the competent authority.

x) PW­10 Sh. Munish Girdhar, who was posted as Under Secretary to the Government of India, Ministry of Urban Development, New Delhi, in the year 2000. He has conveyed the sanction for prosecution of accused Phool Singh, Executive Engineer, CPWD, on behalf of the Hon'ble President of India, vide sanction order, dated 03.02.2000, Ex.PW9/H.

xi) PW­11 Sh. Jagmohan Singh Aswal, a resident of quarter No. H­385, Sriniwaspuri, New Delhi, who was working as Joint Secretary of "Sudhar Samiti" of H­Block Sriniwas Puri, during the period w.e.f. 1995 to 1997. He has deposed that neither he nor any governing member of the Sudhar Samiti has sent any request letter to CPWD regarding the replacement of SW Pipes.

xii) PW­12 Sh. Bachan Singh, a resident of quarter No. H­231, Sriniwaspuri, New Delhi. He has also deposed that no sewer line was changed by the CPWD, at any time and he had never lodged any complaint for replacement of the sewer line.

xiii) PW­13 Smt. Angoori Devi, a resident of quarter No. H­179, CBI Vs. Phool Singh (CC No. 37/2008) Page 16 of 114 Special Judge, CBI­01, Central, Delhi Sriniwaspuri, New Delhi. She has also deposed that no sewer line was changed, during the year 1997.

xiv) PW­14 Smt. Shakuntala, a resident of quarter No. H­161, Sriniwaspuri, New Delhi. She has also deposed that no sewer line was ever changed by any contractor or the CPWD in her quarter or quarter No. H­163, Sriniwas Puri, during the year 1997.

xv) PW­15 Sh. Gobind Ram Sharma, who was posted as telegraph master (operative) in the office of C.T.O., New Delhi. He accompanied the CBI officials to Sriniwas Puri Sub­Division of CPWD, for conducting the surprise checks on 10.10.1997, 13.10.1997 & 14.10.1997.

xvi) PW­16 Sh. Sukan Pal Singh Verma, who was posted as Assistant Surveyor of work in P­Division at Sadiq Nagar office of CPWD, during the period w.e.f., the year 1991 to 1999. He was required to check / calculate the estimate and the deviation statements of the sub divisional office, which were marked to him by the Executive Engineer of the Division.

xvii) PW­17 Sh. Pradeep Kumar, who was temporarily posted at CBI Vs. Phool Singh (CC No. 37/2008) Page 17 of 114 Special Judge, CBI­01, Central, Delhi Sriniwas Puri Sub­Division of CPWD, as a Beldar­cum­Inquiry Clerk. He had prepared the second and final bill pertaining to agreement No. 56/AE/IV­P/97­98, Ex.PW2/L & Ex.PW2/M, (admitted documents) (carbon copies of which are Ex.P­21 & Ex.P­22), on the directions of accused K.C. Wahi, A.E. (since deceased).

xviii) PW­18 Sh. Manindra Lal Roy. He was working as Assistant Engineer in CPWD sub division 3­P, Andrews Ganj Extension, in the year 1997. He was also given the additional charge of sub­division 4­P Sriniwaspuri, at that time. He has also deposed about the procedure for preparation of the estimates of the repair work and the process for calling of the tenders. xix) PW­19 Sh. Rajender Singh Rawat, In the year 1998, he was posted as Executive, Planning & Administration in CPWD, New Delhi. This witness has also deposed about the procedure for award of the maintenance work to the contractors. He has also checked the first running bill Ex.PW2/S & second and final bill Ex.PW2/L and the relevant annexures and documents, attached CBI Vs. Phool Singh (CC No. 37/2008) Page 18 of 114 Special Judge, CBI­01, Central, Delhi with the bills. He has categorically stated that the bill Ex.PW.2/L was prepared on the basis of abstract of work recorded in the measurement book and this bill was for a total amount of Rs. 2,84,057/­, out of which, an amount of Rs.1,89,776/­ was paid against first running bill and the balance amount of Rs.94,281/­ was to be paid to the contractor.

xx) PW­20 Sh. Rajender Krishan, who was posted as Telegraphman (indoor), Central Telegraph Office, Janpath, Connaught Place, New Delhi. He was a member of the CBI team, which conducted the physical verification of work at H­type quarters at Sriniwaspuri, on 10.10.97, 13.10.97 & 14.10.97. He also deposed that certain documents were also seized in his presence, from CPWD office at Sriniwaspuri.

xxi) PW­21 Sh. Rajender Kumar, who was working as reception clerk in Hotel Gulmarg, Distt. Mandi, Himachal Pradesh. He has deposed that as per their guest register, one S.K. Malhotra along with three other persons, stayed in their hotel on 24.08.97 and 25.08.97.

CBI Vs. Phool Singh (CC No. 37/2008) Page 19 of 114 Special Judge, CBI­01, Central, Delhi xxii) PW­22 Sh. S.K. Bansal, who was posted as Asstt. Engineer, Vigilance Branch, CPWD, Head Quarter, New Delhi. He has also deposed about the procedure for awarding a tender to a contractor at Sub­division level. He has also assisted PW­4 T.K.Mazumdar, during inspection / checking of work on 07.11.97 and 11.11.97.

xxiii) PW­23 Sh. N.C. Kapoor, who was also a contractor for CPWD. He has identified the signatures of accused K.C.Wahi (since deceased), on the tender opening register Ex.PW.23/A. xxiv) PW­24 Sh. G.G. Garg, who was posted as Executive Engineer in Delhi Central Circle­V, East Block­IV, R.K. Puram, Sector­1, New Delhi, in August, 1997. He has deposed that on 23.08.97 he along with accused Phool Singh and two other persons, visited Shimla.

xxv) PW­25 Dr. S.C. Mittal, who was Principal Scientific Officer & Dy. Director­cum­Assistant Chemical Examiner, CFSL/CBI, New Delhi. He has compared the handwriting and signatures of the accused persons with the questioned bills and documents and CBI Vs. Phool Singh (CC No. 37/2008) Page 20 of 114 Special Judge, CBI­01, Central, Delhi has proved his report as Ex.PW25/B. This report was forwarded by him to SP, ACB, CBI, vide letter dated 05.08.1999 Ex.PW. 25/A. xxvi) PW­26 Sh. S. K. Gupta, who was posted as JE, CPWD in 4­P, Sub­Division, Sriniwaspuri, New Delhi. He has witnessed the office search of the office of sub­divisional clerk Ghamandi Lal, SDC, on 16.10.97. He has proved the search / seizure memo as Ex.PW26/A and receipt memo as Ex.PW26/B. xxvii) PW­27 Sh. Kripal Singh, who was posted as Asstt. Engineer in 4­P Sub­division of CPWD at Sriniwaspuri, New Delhi in December, 1997. He has also deposed about the procedure of tender process. He had supplied various documents to the I.O., Inspector D.K. Singh, during the investigations. xxviii) PW­28 Sh. N.K. Jain, who was posted as Jr. Engineer in CBI, ACB, New Delhi, in the year 1997. He accompanied the CBI team during the surprise check of the work pertaining to replacement of WC pans, SW pipes and manhole covers, at Sriniwaspuri, New Delhi, on 10.10.97, 13.10.97 & 14.10.1997. He CBI Vs. Phool Singh (CC No. 37/2008) Page 21 of 114 Special Judge, CBI­01, Central, Delhi has also deposed that various documents were seized by the CBI in his presence.

xxix) PW­29 Sh. Jagdish, resident of quarter No. H­633, Sriniwaspuri. He has not supported the prosecution case. xxx) PW­30 Sh. B.R. Sharma, resident of quarter No. H­511, Sriniwaspuri, Delhi, in the year 1997. He was the Secretary of "Sudhar Samiti" of the area, during the period w.e.f. 1995 to May 1997. He has also not supported the prosecution case. He has deposed that he never asked in writing to replace or change the chokhat, SW pipe, WC pan and manhole cover in H­Block, Sriniwaspuri.

xxxi) PW­31 Sh. Parveen Kumar, a resident of quarter No. H­453, Sriniwaspuri, who has deposed that sewage pipes were changed three or four times, during his occupation of the quarter till the year 2004.

xxxii) PW­32 Sh. Dheeraj Kumar, a resident of H­55, Sriniwaspuri, who has deposed that sewer of the common toilet was never changed, during his occupation of the quarter. CBI Vs. Phool Singh (CC No. 37/2008) Page 22 of 114 Special Judge, CBI­01, Central, Delhi xxxiii) PW­33 Sh. Rajender Kumar, who was working as Clerk in the Oriental Bank of Commerce, Safdarjung Enclave Branch, New Delhi, in June 1998. He has handed over various documents to IO Inspector D.K. Singh, vide memo Ex.PW.33/A. xxxiv) PW­34 Dr. Rajender Singh, Director CFSL, New Delhi. He has examined the various documents and has compared the handwritings of the accused in the said documents with their specimen handwritings and signatures. He has proved his report as Ex.PW.34/A. xxxv) PW­35 Sh. Virender Thakran, who was posted as Inspector, CBI, ACB, New Delhi. He accompanied the complainant, Inspector P. Balachandran, along with other officials, for conducting the surprise check, CPWD sub­division office at Sriniwaspuri, New Delhi, on 10.10.97.

xxxvi) PW­36 Sh. Naresh Kumar, resident of quarter No. H­317, Sriniwaspuri, Delhi. He has deposed that the sewer line of his quarter or quarter No. H­319, was never changed. xxxvii) PW­37 Sh. Rajesh Kumar Prasad, Sub­Inspector, ACB, CBI Vs. Phool Singh (CC No. 37/2008) Page 23 of 114 Special Judge, CBI­01, Central, Delhi CBI, New Delhi. He was also the member of the CBI team, which conducted surprise check at Sriniwaspuri, New Delhi, on 10.10.97 & 13.10.97.

xxxviii) PW­38 Sh. Brajesh Kumar, who was posted as sub­ inspector, ACB, CBI, New Delhi, in the year 1997­98. He was also a member of the CBI team, which conducted the surprise check and physical verification of H­type quarters at Sriniwaspuri, on 13.10.1997.

xxxix) PW­39 Sh. Bharat Raina, a resident of quarter No. H­639, Sriniwaspuri, New Delhi. He has deposed that sewer pipe in the kitchen of his quarter, was never changed by CPWD officials, during the period July, 1997 to October / November, 1997.

xxxx) PW­40 Smt. Geeta, a resident of quarter No. H­279, Sriniwaspuri, New Delhi. She has not supported the prosecution case.

xxxxi) PW­41 Smt. Rajkumari, a resident of quarter No. H­75, Sriniwaspuri, New Delhi. She has also not supported the CBI Vs. Phool Singh (CC No. 37/2008) Page 24 of 114 Special Judge, CBI­01, Central, Delhi prosecution case.

xxxxii) PW­42 Smt. Rita Devi, a resident of quarter No. H­71, Sriniwaspuri, New Delhi. She has deposed that no sewage work was performed in the quarter, during the period, she resided in the aforesaid quarter.

xxxxiii) PW­43 Smt. Gandhimati Natrajan, UDC, who was working with Sh. S.K. Singhal, Superintending Engineer, PWD, New Delhi, in the year 2000. She has identified the signatures of Sh. S.K. Singhal, Superintending Engineer, on the sanction order Ex.PW9/H. xxxxiv) PW­44 Sh. N.N. Singh, Superintendent of Police, Anti Corruption Branch, CBI, New Delhi, who got the FIR, Ex.PW1/B, registered on the complaint of Inspector P. Balachandran, on 20.10.1997. He has also proved his letter dated 22.10.97, as Ex.PW9/A, vide which he requested Sh. K.K.Verma, Chief Engineer (Vigilance), CPWD Head Quarters, Nirman Bhawan, New Delhi, to constitute a team of technical officers to inspect and evaluate the relevant work and submit a technical report. CBI Vs. Phool Singh (CC No. 37/2008) Page 25 of 114 Special Judge, CBI­01, Central, Delhi

16. After completion of the prosecution evidence, the statements of the accused persons were recorded, u/s 313 Cr.P.C., wherein, all the three accused have denied all the incriminating evidence against them and have deposed that they are innocent and have been falsely implicated in this case.

17. Accused Phool Singh, in his statement, u/s 313 Cr.P.C., has stated that he joined P­Division of CPWD on 16.07.97 and he had committed no offence and he did his work, as per rules and manual of CPWD. He has not examined any witness in his defence, despite opportunity.

18. Accused A.R. Bhati, in his statement, u/s 313 Cr.P.C., has stated that he got the work done upto 100%, as per directions of his superiors and had withdrawn the bills on 09.10.1997, much prior to the surprise check by the CBI, for the purposes of re­ checking of the work done by the contractor and since the bills CBI Vs. Phool Singh (CC No. 37/2008) Page 26 of 114 Special Judge, CBI­01, Central, Delhi were never sent to the accounts department, there was no question of verification for passing of the bills. Accused A.R. Bhati has not examined any witness in his defence.

19. Accused Sanjay Kumar Malhotra, in his statement, u/s 313 Cr.P.C., has stated that he had completed the work, as per the terms & conditions of the contract, awarded to him. He has also not examined any witness in his defence, despite opportunity.

20. After completion of trial, final arguments were addressed by Shri Praneet Sharma, Ld. Sr. PP for the CBI; Shri Y.K.Kahol, Advocate, for accused A.R. Bhati; Sh. Dinesh Parashar, Advocate, for accused Phool Singh and Sh. Amit Goel, Advocate, for accused Sanjay Kumar Malhotra, at length.

Arguments on behalf of the CBI / Prosecution

21. It has been argued by Shri Praneet Sharma, Ld. Sr. PP for the CBI that the prosecution has successfully proved its case against CBI Vs. Phool Singh (CC No. 37/2008) Page 27 of 114 Special Judge, CBI­01, Central, Delhi all the accused persons. He has argued that the work for replacement of 150 meter damaged SW pipes in H­Block, Sriniwaspuri, Sub­division of CPWD, was awarded to accused Sanjay Kumar Malhotra, for Rs.61,784/­, in respect of which agreement Ex.P­7 (D­54) was executed and award letter Ex.PW2/E was issued. Both these documents have been admitted by the accused persons, during the trial.

22. The Ld. Sr. PP for the CBI has further argued that a source information was received by PW­1 DSP P.Balachandran, regarding non­execution of work, with respect to the replacement of SW pipes, at Sriniwaspuri Sub­division of CPWD, on which, he conducted surprise check and observation of the alleged tendered work on 10.10.1997, 13.10.1997 and 14.10.1997 and found that the work was not done completely. Thereafter, he lodged the complaint Ex.PW1/A, in this regard, with his the then SP CBI Sh. N.N. Singh, on the basis of which, FIR Ex.PW1/B, was registered. CBI Vs. Phool Singh (CC No. 37/2008) Page 28 of 114 Special Judge, CBI­01, Central, Delhi

23. The Ld. Sr. PP for the CBI has further argued that the measurement book No. 5900, Ex.P­6, was issued to accused A.R. Bhati, J.E., through co­accused K.C. Wahi, A.E. (since deceased), and he made false entries in this measurement book, regarding the replacement of 760.62 meters of SW pipes, pertaining to the tendered work and the same were checked and verified by co­accused K.C. Wahi, Asstt. Engineer, and were forwarded to co­accused Phool Singh, E.E., along with the first running bill for Rs.155638/­ for checking and passing. The measurement book Ex.P­6 (D­53), is also admitted by the accused persons.

24. The Ld. Sr. PP for the CBI has further argued that the surprise check memos Ex.PW1/C (D­10); Ex.PW.1/D (D­12) and the observation memo Ex.PW.26/A (D­13), dated 16.10.97 were prepared by PW­1 P. Balachandran and he lodged the complaint Ex.PW1/A, on the basis of which FIR Ex.PW.1/B was registered on 20.10.97 and the investigation was marked to PW­9 Inspector CBI Vs. Phool Singh (CC No. 37/2008) Page 29 of 114 Special Judge, CBI­01, Central, Delhi D.K.Singh. Vide letter dated 22.10.97 Ex.PW.9/A, CPWD was requested to constitute a vigilance team for physical verification of the work. Thereafter, PW­4 T.K.Majumdar & PW­22 S.K. Bansal were deputed to inspect and check the work at H­type quarters at Sriniwaspuri and Nehru Nagar, alongwith the CBI team. They conducted the physical verification of the sites and submitted their report Ex.PW.4/A. As per this report, only 235.87 metres of SW pipes were replaced, but, the total quantity of 760.62 metres of SW pipes was shown as replaced, in the measurement book.

25. The Ld. Sr. PP for the CBI has further argued that the contractor, accused Sanjay Kumar Malhotra has replaced only 235.87 meters of SW pipes, instead of 760.62 meters. But, a first running bill for Rs.1,55,638/­, was prepared & passed for payment and he in connivance with accused A.R. Bhati, J.E., K.C. Wahi, A.E. and Phool Singh Executive Engineer, hatched a conspiracy to cheat the CPWD. He has further argued that in pursuance to the said conspiracy, accused A.R. Bhati made false entires in the CBI Vs. Phool Singh (CC No. 37/2008) Page 30 of 114 Special Judge, CBI­01, Central, Delhi measurement book No. 5900, Ex.P­6 (D­53) and the same were also checked and verified by accused K.C. Wahi A.E (since deceased) and thereafter, the bill Ex.P­6, along with other documents and the measurement book were forwarded to accused Phool Singh, E.E. and he also falsely verified the bill and passed it for payment. Thereafter, the payment of the said bill was made to accused Sanjay Kumar Malhotra, against cash voucher No. 81, vide cheque No.94077, dated 15.09.1997 for a total sum of Rs.4,90,638/­, which included the amount of Rs. 1,55,638/­, pertaining to the present case and three amounts of Rs.89,831/­; Rs.2,16,161/­ and Rs.29,008/­ pertaining to other works / tenders, in other cases pending against the accused persons.

26. The Ld. Sr. PP for the CBI has further argued that the second & final bill for Rs.94,281/­ (Ex.PW2/L), dated 29.09.97, was also prepared and was again checked, verified and passed for payment, by the accused persons. But, the payment of the said CBI Vs. Phool Singh (CC No. 37/2008) Page 31 of 114 Special Judge, CBI­01, Central, Delhi amount could not be made to contractor Sanjay Kumar Malhotra. He has further argued that the deviation in the work done, as recorded in the measurement book was more than 400%, but still no prior sanction of the competent authority was taken by the accused persons. Accused Phool Sing, E.E., should have obtained the prior sanction of the competent authority, i.e., the Superintending Engineer, in the present case.

27. The Ld. Sr. PP for the CBI has further argued that the residents of H­Block, Sriniwaspuri, PW­5 Ram Pal; PW­6 Satish; PW­7 Smt. Godambari; PW­8 Layak Ram; PW­13 Angoori Devi; PW­14 Smt. Shakuntla; PW­32 Dheeraj Kumar; PW­36 Naresh Kumar; PW­39 Bharat Raina and PW­42 Smt. Rita Devi have all supported the prosecution case and have all deposed that no sewage line (SW pipe) of their quarters was ever replaced by the CPWD or any contractor.

28. The Ld. Sr. PP for the CBI has further argued that PW­4 T.K. CBI Vs. Phool Singh (CC No. 37/2008) Page 32 of 114 Special Judge, CBI­01, Central, Delhi Majumdar and PW­22 S.K. Bansal have also supported the prosecution case and they have proved their report Ex.PW4/A and its' annexure Ex.PW4/A­1. Furthermore, PW­1 Inspector P. Balachandran has also proved his complaint, Ex.PW1/A, the surprise check memos, dated 10.10.97 & 13.10.97 and the observation memo, dated 14.10.97, as Ex.PW1/C to Ex.PW1/E respectively, and the other prosecution witnesses have corroborated his testimony and have also proved these observations memos. He has further argued that the reports Ex.PW4/A and its' annexure Ex.PW4/A­1 have established on record that accused Sanjay Kumar Malhotra, contractor, has not done the entire work and inflated entries were made in the measurement book, Ex.P­6, and it has been established on record, beyond a shadow of doubt that only 235.87 meters of SW pipes were replaced by the contractor Sanjay Kumar Malhotra, instead of 760.62 meters. But, still a first running bill and the second final bill for the said work were raised, checked and verified and the amount of the first running bill also stands paid to CBI Vs. Phool Singh (CC No. 37/2008) Page 33 of 114 Special Judge, CBI­01, Central, Delhi accused Sanjay Kumar Malhotra.

29. Ld. Sr. PP for the CBI has further argued that the competent authorities have also granted the sanction, under Section 19 of The Prevention of Corruption Act, 1988, for prosecution of accused A.R.Bhati, JE and Phool Singh, E.E., vide sanction orders Ex.PW9/J & Ex.PW.9/H respectively, after going through the entire evidence and documents on record. Therefore, the testimony of the prosecution witnesses and the material evidence on record has proved the prosecution case against the accused persons, beyond a shadow of doubt, and therefore, all the accused persons, be held guilty and convicted for the offences charged against them.

30. The Ld. PP for the CBI has relied upon the following judgments, in support of his above contentions:

(i) State of Bihar & Ors. vs. Rajmangal Ram, reported as AIR 2014 Supreme Court 1674;

(ii) State of Maharashtra Through C.B.I. vs. Mahesh G. Jain, CBI Vs. Phool Singh (CC No. 37/2008) Page 34 of 114 Special Judge, CBI­01, Central, Delhi reported as (2013) 8 SCC 119;

(iii) Tehsildar Singh & Anrs. Vs. State of UP, reported as AIR 1959 Supreme Court 1012.

Arguments in defence, on behalf of accused A.R. Bhati, J.E.

31. Sh. Y.K.Kahol, Advocate, for accused A.R. Bhati, J.E., has argued that the prosecution has miserably failed to prove any case against the accused persons. He has argued that Sh. S.K. Singhal, Superintending Engineer, had granted sanction for prosecution of accused A.R. Bhati under Section 19 of the P.C.Act 1988, vide sanction order Ex.PW9/J and PW­10 Sh. Munish Girdhar, Under Secretary to Government of India, Ministry of Urban Development, has also conveyed the sanction for prosecution of accused Phool Singh, E.E., on behalf of the President of India, vide sanction order Ex.PW.9/H. But, the said orders are not the valid or legally sustainable sanction orders, as the same does not disclose anything about the material evidence or the documents perused by the competent authorities, before passing of the said sanction orders.

CBI Vs. Phool Singh (CC No. 37/2008) Page 35 of 114 Special Judge, CBI­01, Central, Delhi

32. The Ld. Defence counsel has further argued that there are a large number of material contradictions in the depositions of the prosecution witnesses, which makes the entire prosecution case doubtful. He has argued that the surprise inspections were allegedly conducted by the CBI team, headed by PW­1 Inspector P.Balachandran, on 10.10.1997, 13.10.1997 and 14.10.1997 and he prepared the observation memos, Ex.PW1/C, dated 10.10.1997 and Ex.PW1/D, dated 13.10.1997, but, no such surprise inspections were actually conducted by him, at the site. Furthermore, these surprise inspections were conducted on the basis of some secret informations, but, the said secret informations were never reduced into writing and were never produced before the Court, during the trial.

33. He has further argued that the FIR in the present case was registered on 20.10.1997 on the basis of the written complaint of Inspector P. Balachandran dated 20.10.1997. But, PW­1 CBI Vs. Phool Singh (CC No. 37/2008) Page 36 of 114 Special Judge, CBI­01, Central, Delhi P.Balachandran has lodged his complaint after an unexplained delay of about 7 to 10 days, from the alleged surprise inspections, which also castes a doubt on the prosecution case.

34. The Ld. Defence counsel has further argued that accused Sanjay Kumar Malhotra had performed the entire work of replacement of 760.62 metres of SW pipes. Accordingly, accused A.R. Bhati, J.E., had made the necessary entries in the measurement book No. 5900, Ex.P­6, after due verification. He has further argued that there are a large number of material discrepancies in the report Ex.PW.4/A and its annexure Ex.PW4/A­1, which indicate that these documents were prepared by PW­22 S.K.Bansal and PW­4 T.K.Mazumdar as per the wishes of the IO and the CBI officials. Furthermore, it is almost impossible for any expert to check or verify the work of laying of SW pipes, by occular examination of soil, after a lapse of about one and a half month. Furthermore, the CPWD manual has itself provided that the item of work, like laying of SW pipes, buried in CBI Vs. Phool Singh (CC No. 37/2008) Page 37 of 114 Special Judge, CBI­01, Central, Delhi floor or drainage installation etc., was incapable of being checked, subsequently, owing to its situation (para 7.27.2 of CPWD Manual). He has further argued that the public witnesses, who were the occupants of the various H­type quarters, have also not supported the prosecution case and have turned hostile.

35. The Ld. Defence counsel has also pointed out various discrepancies in the report Ex.PW4/A and its 'Annexure­B' Ex.PW4/A­1, and has argued that these discrepancies clearly indicate that the alleged physical verifications were never conducted at the site.

Arguments on behalf of accused Phool Singh, E.E.

36. Sh. Dinesh Parashar, Advocate, for accused Phool Singh, E.E., has also pointed out various contradictions and discrepancies in the observation memo, dated 14.10.1998, ExPW1/E with the depositions of the prosecution witnesses, regarding the date and time of preparation of this memo. CBI Vs. Phool Singh (CC No. 37/2008) Page 38 of 114 Special Judge, CBI­01, Central, Delhi

37. The Ld. Defence counsel has further argued that the tendered work was actually completed on 27.09.1997 and the physical verification of the work done was allegedly conducted by the CBI team alongwith PW 4 T.K. Majumdar and PW­22 S.K. Bansal, in the presence of accused A.R. Bhati, on 09.11.1997 and 11.11.1997 and thereafter, the report Ex.PW.4/A alongwith its annexure Ex.PW.4/A­1 was submitted on 20.11.97. But, the discrepancies in these two aforesaid documents and delay in submitting these reports indicates that no such inspections were carried out for physical verification of the actual work done at site. He has also argued that both these documents were prepared by T.K.Majumdar and S.K.Bansal, as per the wishes of the CBI officials, while sitting in the CBI office.

38. The Ld. Defence counsel has further argued that the deviations in the work done were to be approved by the competent authority only after the completion of the entire work and accused Phool CBI Vs. Phool Singh (CC No. 37/2008) Page 39 of 114 Special Judge, CBI­01, Central, Delhi Singh, E.E., had approved the deviations, as the same were within his powers and therefore, no criminality can be attached to his approval of the deviation. He has also argued that no digging was done at the sites to check the actual laying of SW pipes at the sites and after a period of about one and half month, it was almost practically impossible to physically verify the work done, only by occular examination of the site.

Arguments on behalf of accused Sanjay Kumar Malhotra

39. Sh. Amit Goel, Advocate, for accused Sanjay Kumar Malhotra has also argued that the observation memo Ex.PW.1/E and the reports Ex.PW.4/A and its annexure Ex.PW.4/A­1 were all forged and fabricated documents and were prepared as per the directions of the CBI officials. He has also pointed out various discrepancies in these documents and has also pointed out various contradictions in the statements of the prosecution witnesses, to support his contentions.

40. The Ld. Defence counsel has further argued that the public CBI Vs. Phool Singh (CC No. 37/2008) Page 40 of 114 Special Judge, CBI­01, Central, Delhi witnesses are also not reliable and have turned hostile and have not supported the prosecution case and therefore, not much reliance can be placed on their depositions to corroborate the reports submitted by the prosecution witnesses.

41. The Ld. Defence counsel has further argued that accused Sanjay Kumar Malhotra, who is the contractor in the present case, has performed and completed the entire work as mentioned in the measurement book and the same was duly verified by the concerned officials of the PWD and accordingly, he had submitted the first running bill for Rs.1,55,638/­, Ex.PW.2/S and the final bill for Rs.94,281/­, Ex.PW2/L. However, it has been accepted by the Ld. Defence counsel that the payment of the first running bill has already been received by the accused Sanjay Kumar Malhotra, in his bank account, vide cheque No. 94077.

42. The Ld. Defence counsel has further argued that accused Sanjay Kumar Malhotra has completed the entire work, as per CBI Vs. Phool Singh (CC No. 37/2008) Page 41 of 114 Special Judge, CBI­01, Central, Delhi rules and has followed the various guidelines issued by the PWD as per the CPWD Manual and therefore, he has not committed any illegality and therefore, he may be acquitted of all the charges.

OBSERVATIONS / FINDINGS

43. I have carefully perused the case file and I have given my considered thoughts to the arguments addressed by the Ld. Sr. PP for the CBI and the Ld. Defence counsels and I have also perused the various judgments, cited by the Ld. Sr. PP for the CBI.

44. Perusal of the record shows that the complainant Inspector P. Balachandran (PW­1) has deposed in the court that in the year 1997, he gave a complaint to his the then SP, CBI, for registration of the FIR against CPWD officials of Sriniwaspuri Sub Division, New Delhi, regarding the non­execution of work, with respect to the replacement of the SW pipes. The complaint dated CBI Vs. Phool Singh (CC No. 37/2008) Page 42 of 114 Special Judge, CBI­01, Central, Delhi 20.10.1997 has been proved on record as Ex.PW.1/A.

45. PW­1 complainant Inspector P. Balachandran has further deposed that the said complaint was given on the basis of the surprise check and observations conducted in Sriniwaspuri Sub Division of CPWD on 10.10.1997; 13.10.1997 and 14.10.1997. The surprise check memos, dated 10.10.1997 and 13.10.1997, whereby, various documents were seized by the CBI team, headed by the complainant Inspector P. Balachandran, PW­1 have been proved on record as Ex.PW.1/C & Ex.PW.1/D, respectively. The observation memo, dated 14.10.1997 regarding the random physical verification of various sites, in respect to the work done by the contractor accused Sanjay Kumar Malhotra, regarding replacement of SW pipes in H­Block (Type­1) residential quarters at Sriniwaspuri, has been proved on record as Ex.PW.1/E. As per this observation memo, 25 sites were randomly inspected by the CBI team on 14.10.97, in the presence of independent witnesses and on physical verification, it was CBI Vs. Phool Singh (CC No. 37/2008) Page 43 of 114 Special Judge, CBI­01, Central, Delhi found that the tender work was done only at six places.

46. Perusal of the record further shows that the complainant PW­1 Inspector P. Balachandran has reported in his complaint dated 20.10.1997, Ex.PW.1/A, that vide Agreement No. 56/AE/4P/97­98, (Ex.P­7), the work for replacing the 150 meters of damaged SW pipes was awarded to the contractor accused Sanjay Kumar Malhotra on 18.08.1997, for an amount of Rs. 61,784/­. The complaint Ex.PW.1/A further states that as per the measurement book No. 5900, Ex.P­6, issued to accused A.R.Bhati, J.E., the said work commenced on 28.08.1997 and by 11.09.1997, 454.17 metres of SW pipes was reported to have been replaced in 75 quarters, at H­Block, Sriniwaspuri and on 11.09.1997, the contractor, accused Sanjay Kumar Malhotra, submitted the first running bill for Rs.1,55,638/­ to the Divisional Office, after due inspection and certification by accused A.R.Bhati, J.E., and K.C.Wahi, A.E. (since deceased). This bill was passed by accused Phool Singh, E.E., of CPWD Sub CBI Vs. Phool Singh (CC No. 37/2008) Page 44 of 114 Special Judge, CBI­01, Central, Delhi Division, Sriniwaspuri, on 13.09.1997, after completing the test check of the work. Further, the work regarding the replacement of 306.45 metres of SW pipes was also undertaken in another 15 quarters in H­Block and the second and final bill for the said work for Rs.76,340/­ was submitted to the Divisional Office, after due inspection and certification by accused A.R.Bhati and K.C.Wahi (since deceased), on 29.09.1997. But, the said bill was yet to be passed.

47. The complaint Ex.PW.1/A further states that the deviation in the work done, from the original estimate, works out to be approximately 400 % and on physical verification, it was found that most of the work mentioned in the first running bill and the second final bill had not been carried out at all. The complaint further states that the SW pipes were laid underground and the check / physical verification was conducted on the basis of the statements of the residents and also by observing the ground conditions, which was supposed to have been dug up for laying of CBI Vs. Phool Singh (CC No. 37/2008) Page 45 of 114 Special Judge, CBI­01, Central, Delhi the SW pipes.

48. The complainant PW­1 Inspector P. Balachandran has further deposed that during the surprise check, the CBI team recovered five photographs from the table drawer of accused A.R.Bhati, J.E., which contains the photographs of accused Phool Singh, A.R.Bhati and Sanjay Kumar Malhotra. He has further stated that the files and the measurement books were also seized vide seizure memo Ex.PW.1/F and the same are Ex.P.7 & Ex.P.6 respectively.

49. During the trial, the photographs were placed on record, as Ex.P­1 to Ex.P­5 (admitted documents) and PW­17 Pradeep Kumar identified accused A.R. Bhati, A.E., in these photographs. During his examination in the court, these photographs were marked as Ex.PW17/1 to Ex.PW17/5. These original photographs have been placed on record in the other charge sheet, bearing No. 77(A)/1997, as Ex.P­1 to Ex.P­5. Perusal of CBI Vs. Phool Singh (CC No. 37/2008) Page 46 of 114 Special Judge, CBI­01, Central, Delhi these photographs indicate that accused A.R. Bhati, Phool Singh & Sanjay Kumar Malhotra, have visited Shimla, together. The photographs Ex.P­1 to Ex.P­4 are of accused A.R. Bhati and Sanjay Kumar Malhotra, whereas photograph Ex.P­5 depicts all three accused persons. Furthermore, PW­21 Rajender Kumar, reception clerk from Hotel Gulmarg, Shimla (H.P.), has produced the photocopies of the hotel record (guest register) for 24.08.97 & 25.08.97 and has deposed that as per his hotel record, one S.K. Malhotra, resident of D­1/21, Lodhi Colony, New Delhi, along with three other persons, checked­in in his hotel on 24.08.97 at about 6.30 p.m. and they checked out on 25.08.97 at about 9.00 a.m. These records, though 'not proved', strictly in accordance with law, points towards the fact that accused A.R. Bhati & Phool Singh, were well acquainted with co­accused Sanjay Kumar Malhotra, prior to the award of the tenders in his favour. Even otherwise, these photographs have not been denied by the accused persons and it is a settled legal position that the admitted documents, need not be proved.

CBI Vs. Phool Singh (CC No. 37/2008) Page 47 of 114 Special Judge, CBI­01, Central, Delhi

50. Perusal of the record further shows that on the basis of the complaint Ex.PW.1/A, PW­44 Shri N.N.Singh, SP, ACB, CBI, got the FIR Ex.PW.1/B registered on 20.10.1997 and on 22.10.1997, he wrote the letter Ex.PW.9/A to Shri K.K.Verma, Chief Engineer (Vigilance) CPWD Headquarters, Nirman Bhawan, New Delhi, for constituting a team of officers of proven integrity to inspect and evaluate the relevant work, claimed to have been carried out by the contractor accused Sanjay Kumar Malhotra, in the bills and to submit the expert report, in this regard. He further informed that the team of experts may also assist the IO Inspector D.K.Singh, in the present case.

51. In pursuance to the letter dated 22.10.1997, Ex.PW.9/A, PW­4 Shri T.K.Majumdar, E.E.(Vigilance), CPWD and PW­22 Shri S.K.Bansal, A.E. (Vigilance) were deputed to verify and check the work done at the sites, with the assistance of the CBI officials. The SP, CBI was intimated accordingly vide letter dated 23.10.1997. Thereafter, the physical verification of the sites was CBI Vs. Phool Singh (CC No. 37/2008) Page 48 of 114 Special Judge, CBI­01, Central, Delhi conducted by a joint team and the work done in respect of three tenders vide Agreement No. 54/AE/4P/97­98 (replacement of WC pan and accessories in respect of which RC 77(A)/97­DLI was registered); Agreement No. 60/AE/4P/97­98 (replacement of manhole covers in H­Block in respect of which RC 78(A)/97­DLI was registered); and Agreement No. 56/AE/4P/97­98 (regarding replacement of SW pipes in respect of the present case), were conducted during the period w.e.f. 05.11.1997 to 11.11.1997. A consolidated report Ex.PW.4/A alongwith its' Annexure­A and Annexure­B (Ex.PW.4/A­1) was submitted by PW­4 Shri T.K.Majumdar, E.E., and Shri S.K.Bansal, A.E., on 20.11.1997.

52. Perusal of the report Ex.PW.4/A shows that the physical verification of various sites at residential quarters in H­Block Sriniwaspuri, pertaining to the present case was conducted on 07.11.1997 and 11.11.1997in the presence of PW­4 Shri T.K.Majumdar; PW­22 Shri S.K.Bansal; PW­18 Shri Maninder Lal Roy; PW­9 Inspector D.K.Singh; PW­37 SI Rajesh Prasad; and SI CBI Vs. Phool Singh (CC No. 37/2008) Page 49 of 114 Special Judge, CBI­01, Central, Delhi K. Lokhi Joses and the accused A.R.Bhati. The report Ex.PW.4/A further mentions that the tender, vide agreement No. 56/AE/4P/97­98, Ex.P.7, for replacement of damaged SW pipes was awarded to contractor accused Sanjay Kumar Malhotra, for replacement of 150 metres of SW pipes. But, in the measurement book No. 5900 Ex.P­6, the measurements for replacement of 760.62 metres of SW pipes have been recorded. It has been specifically mentioned that in actual, only 235.87 metres of SW pipes was found replaced, as per Annexure­B (Ex.PW.4/A­1) of the report.

53. Perusal of the Annexure­B, Ex.PW.4/A­1, also shows that the residential quarters at H­Block, Sriniwaspuri were inspected and physically verified on 07.11.1997 and 11.11.1997, for laying of the SW pipes there. Perusal of the Annexure­B, Ex.PW.4/A­1, further shows that on 07.11.1997, a total of 17 quarters in H­Block, Sriniwaspuri, were inspected on 07.11.1997, whereas, the remaining quarters were inspected on 11.11.1997. It further CBI Vs. Phool Singh (CC No. 37/2008) Page 50 of 114 Special Judge, CBI­01, Central, Delhi shows that the quarter Nos. 167 & 383 in H­Block find mention in the list of quarters, for both the dates. In the physical verification list dated 07.11.1997, it has been mentioned that the SW pipes in quarter No. 167 & 383 were found replaced. But, in the list dated 11.11.1997, it has been mentioned that the SW pipes were not replaced near quarter No. 167 & 383. Perusal of the lists dated 07.11.1997 and 11.11.1997 indicates that the SW pipes were found replaced in a total of 37 quarters, totaling about 235.87 metres and the SW pipes in the remaining quarters were found not replaced. It has been mentioned specifically that "old flooring is laid to open space", against quarter numbers, in which it was reported that the SW pipes were not replaced", which indicates that the old flooring was existing there and was not disturbed or dug up to lay the SW pipes there.

54. It is pertinent to mention here that during the final arguments, the Ld. Defence counsels have stressed that the physical verification of the sites and the checking of the laying of SW pipes CBI Vs. Phool Singh (CC No. 37/2008) Page 51 of 114 Special Judge, CBI­01, Central, Delhi cannot be done by any expert, after laying of the SW pipes, without digging of the actual sites and it was also argued that since the Annexure­B, Ex.PW.4/A­1, has clearly mentioned that the old flooring was found laid on the open space at the site of about 80% of the total work, it cannot be said with certainty that the SW pipes were not replaced there. The Ld. Defence counsels have also quoted the relevant provisions of the CPWD manual, wherein, it has been mentioned that the lines of pipes buried in floor or masonry in internal sanitary, water supply or drainage installation and of the work below the ground level, such as concrete, masonry, steel work etc., in the foundation cannot be checked subsequently, owing to their situation, below the ground level.

55. Para No. 7.27.1 & 7.27.2 of the CPWD Manual are reproduced below for ready reference :

"7.27.1 Important works, within meaning of the above, include items which owing to the situation cannot be subsequently checked or which have very CBI Vs. Phool Singh (CC No. 37/2008) Page 52 of 114 Special Judge, CBI­01, Central, Delhi high unit rates. For guidance, these items are classified generally as below ­ 7.27.2 Items of work which owing to their situation cannot subsequently be checked.

(i) All work below ground level such as ­

(ii) Fabricated Steel work in columns, beams, etc., which are encased either in masonry or concrete.

(iii) Wood work, Iron work, etc., hidden by ceilings, wall panelling or floor boardings.

(iv) Bitumen painting of roofs under mud phuska and tiles paving or under terrace concrete.

                     (v)     Water   proofing   compounds   used   in   gauging  
                     cement.
                     (vi)     Lines   of   pipes   buried   in   floor   or   masonry   in  
                     internal   sanitary,   water   supply   or   drainage  
                     installations. 

            

56. In order to prove the physical verification, vide report Ex.PW.

4/A and its Annexure­B Ex.PW.4/A­1, and to prove that the work as mentioned in the measurement book No. 5900, Ex.P­6, was not completely done, the prosecution has examined five witnesses, namely, PW­4 Sh. T.K.Majumdar, E.E.; PW­9 Inspector D.K.Singh; PW­18 Sh. M.L.Roy, A.E.; PW­22 Sh. S.K.Bansal, A.E. and PW­37 SI Rajesh Kumar Prasad. Out of CBI Vs. Phool Singh (CC No. 37/2008) Page 53 of 114 Special Judge, CBI­01, Central, Delhi these five witnesses, PW­4 Shri T.K.Majumdar, E.E. (Vigilance) and PW­22 Shri S.K.Bansal, A.E. (Vigilance), were the experts, who were appointed by the Chief Engineer, CPWD Shri K.K. Verma, in response to the letter dated 22.10.1997 of Shri N.N.Singh, SP, CBI.

57. PW­4, Shri T.K.Majumdar has categorically stated in the court that he was deputed by his office to inspect and check the work done at H­type quarters, Sriniwaspuri and Nehru Nagar quarters, alongwith the CBI team and after physical verification of the quarters, regarding the execution of work, he submitted his report. He has proved his report as Ex.PW.4/A; its annexure­B as Ex.PW.4/A­1 and the forwarding letter as Ex.PW.4/B. He has further deposed that in the checking, he found that only 235.87 metres of SW pipes had been replaced in the streets, outside the quarters in H­Block and 524.75 metres of SW pipes, as per the measurement book, had not been replaced. The total quantity of SW pipe replaced was mentioned in the measurement book as CBI Vs. Phool Singh (CC No. 37/2008) Page 54 of 114 Special Judge, CBI­01, Central, Delhi 760.62 metres. During his cross­examination, he had admitted that the total quantity of SW pipes was tallied with the measurement book. He has further admitted that this work was an underground work. He has categorically stated that he came to the conclusion that the SW pipes had not been replaced, inside or in front of a particular quarter, as new concrete is laid after replacement of every SW pipe and from both the sides of the manhole, it can be checked whether the SW pipe is new one or not. He has further stated categorically that the digging marks would be present there. During his cross­examination, he has further admitted that the inspection was started on 07.11.1997 and was completed on 11.11.1997. He has denied the suggestion of the Ld. Defence counsel that the inspection was started only on 09.11.1997.

58. PW­22 Shri S.K.Bansal, A.E. (Vigilance) CPWD, New Delhi has also stated that he was deputed by his department to assist PW­4 Shri T.K.Majumdar, for inspection / checking of work at CBI Vs. Phool Singh (CC No. 37/2008) Page 55 of 114 Special Judge, CBI­01, Central, Delhi Sriniwaspuri, New Delhi, regarding the replacement of the damaged sewer lines and cleaning etc., and they inspected the work on 07.11.1997 and 11.11.1997, pertaining to laying of SW pipes near quarters in H­Block, Sriniwaspuri, numbers of which have been mentioned in Annexure­B, Ex.PW.4/A­1. He has also identified his signatures on his report Ex.PW.4/A. He has also categorically stated that as per the Schedule of quantity Ex.P.13 and the agreement, only 150 metres of SW pipes were to be replaced, whereas, on its physical inspection, only 235.87 metres of SW pipes were found to have been replaced in H­Block area, as per Annexure­B, Ex.PW.4/A­1. In his cross­examination, he has admitted that as per para 7.27.2 of Volume­2 of CPWD Manual, lines of pipes buried in floor or masonry in internal sanitary, water supply or drainage installation and SW pipes cannot be checked subsequently, after the same had been laid. But, he has volunteered and has categorically stated that by mere looking at the surface and the conditions of the soil, one can know whether it was earlier dug up or not, for laying of the SW pipes. CBI Vs. Phool Singh (CC No. 37/2008) Page 56 of 114 Special Judge, CBI­01, Central, Delhi He has further stated that by feeling, by his foot, he could know whether the soil was hard or soft and the soft soil indicate that the same had been dug up earlier. During his cross­examination, he has further clarified that the SW pipes worth 19.67 metres, as mentioned in the measurement book No. 5900 Ex.P.6, at page­11, has not been mentioned in his inspection report and he had already reduced 19.67 metres of SW pipes from the total quantity. He has further stated that no digging was carried out for verification purposes, but, he carried out the measurement with a tape from the manhole to manhole and connecting the main lines. During his cross­examination, he has further stated that there was no mention of the fact that the flooring was to be replaced, where the SW pipes were supposed to have been laid. He has admitted that he had not seen the agreement in this regard. He has categorically stated that as per the CPWD Manual, SW pipes can be laid without flooring and in the present case, he presumed that the flooring was old one. He has further stated that whenever a shaft has to be laid, then the flooring has to be broken and the CBI Vs. Phool Singh (CC No. 37/2008) Page 57 of 114 Special Judge, CBI­01, Central, Delhi SW pipes have to be laid and thereafter, it is a choice, whether to lay a fresh flooring or not. He has also given the numbers of the quarters, in front of which, the old cemented flooring was observed by him during the inspection. He has further stated categorically, that there was kacha flooring against the two quarters and there was kacha flooring and loose earth. But, the same were not dug up to check the SW pipes.

59. It is pertinent to mention here that during his cross­ examination, the Ld. Defence Counsel for accused A.R.Bhati has produced an attested copy of the measurement book No. 5896, pertaining to the other case, registered against the accused persons, regarding the non­execution of the work of laying of fresh flooring. The said attested copy of the measurement book was placed on record, as Ex.PW.4/DX. After going through the said copy of the measurement book, PW­22 S.K. Bansal has admitted that there was a mention of fresh flooring against 32 quarters, against which, he had reported that the old flooring was CBI Vs. Phool Singh (CC No. 37/2008) Page 58 of 114 Special Judge, CBI­01, Central, Delhi observed by him, in Annexure­B, Ex.PW.4/A­1, of his report Ex.PW.4/A. He has further admitted that as per this attested photocopy of measurement book No. 5896 Ex.PW.4/DX, the said flooring might have been carried out after laying of the SW pipes. The above depositions of this witness, regarding his report Ex.PW.4/A and the Annexure­B, Ex.PW.4/A­1, in respect of his observations that the old flooring was observed by him against the 32 quarters, as mentioned in Ex.PW.4/DX, does not favour the accused and goes against them in strengthening the other cases of the prosecution, wherein, the accused persons have been chargesheeted for not laying the fresh flooring. Therefore, the accused cannot take the benefit of the entries in the measurement book No. 5896 Ex.PW.4/DX, to support their contentions in the present case that the flooring had already been changed against the 32 quarters. The Ld. Sr. PP for the CBI had clarified that the CBI had registered separate cases against the accused persons, for non­execution of various works, including the work of laying of fresh flooring etc. and in those cases also the CBI Vs. Phool Singh (CC No. 37/2008) Page 59 of 114 Special Judge, CBI­01, Central, Delhi accused persons had inflated the entries and false entries have been made in the measurement books, regarding the laying of fresh floorings and infact, the fresh floorings were never laid.

60. PW­9, Inspector D.K.Singh, who accompanied the CBI team and the experts of the CPWD, during the physical verification of the work pertaining to the laying of SW pipes in H­type quarters in Sriniwaspuri, has also deposed in a similar manner and has stated that the physical verification had revealed that 235.87 metres of SW pipes was found actually replaced, whereas, in the measurement book No. 5900, the measurement of 760.62 metres of SW pipes was shown as replaced. Thus the recording of the replacement of the SW pipe was inflated by 524.75 metres. This witness is also the Investigating Officer of the present case and was cross­examined by the Ld. Defence counsels, at length. During his cross­examination, he has categorically stated that the spots which were not dug up for physical verification, were presumed that no SW pipes were replaced therein, by observing CBI Vs. Phool Singh (CC No. 37/2008) Page 60 of 114 Special Judge, CBI­01, Central, Delhi the surface with naked eyes and observing that no soil substratum was found disturbed and was old. However, this witness has deposed that some digging was carried out at the site, during the physical verification on 07.11.1997 and 11.11.1997. He has further stated that only the random digging work was done for checking and the entire line was not dug out.

61. Perusal of the testimonies of the aforesaid three witnesses has proved on record, beyond a shadow of doubt that only 235.87 metres of SW pipes were replaced in H­Block, Sriniwaspuri, New Delhi and SW pipes worth 524.75 metres were not replaced by the accused. The report Ex.PW.4/A and its' Annexure­B, Ex.PW. 4/A­1, has clearly mentioned that the CBI team and the experts had observed that the old flooring was existed at the sites in respect of which the entries have been made in the measurement book Ex.P.6, regarding the replacement of SW pipes. The testimonies of PW­4 Shri T.K.Majumdar and PW­22 Shri S.K.Bansal have also established, beyond a shadow of doubt that CBI Vs. Phool Singh (CC No. 37/2008) Page 61 of 114 Special Judge, CBI­01, Central, Delhi the replacement of the SW pipes could be checked by them without digging the actual site and by merely looking at the site of the alleged replacement of the SW pipes. These two witnesses have clarified that wherever the SW pipes is to be laid, the soil has to be dug up and only thereafter, the SW pipes are to be laid. Since the CBI team and the experts have observed the old floorings at the various sites, in the considered opinion of this court, they were right and correct in their observation that no SW pipes were replaced at those sites. In case, the SW pipes were replaced at each and every site, then the experts and the CBI team would have observed that the old flooring was broken and fresh new flooring was laid there.

62. It is pertinent to mention here that as per the measurement book No. 5900, Ex.P.6, the date of start of the work has been mentioned as 28.08.1997 and the date of completion of the work has been mentioned as 27.09.1997. The physical verification and the inspections were conducted by the experts and the CBI team, CBI Vs. Phool Singh (CC No. 37/2008) Page 62 of 114 Special Judge, CBI­01, Central, Delhi during the period w.e.f. 07.11.1997 to 11.11.1997 and therefore, there is not much delay in conducting the physical verification of the sites and during this period, it was almost impossible for the sub­soil to have settled, to give an appearance like the old surface or flooring. In case, the soil was dug up during the aforesaid period w.e.f. 28.08.1997 to 27.09.1997 for laying of the SW pipes, then the sub­soil near and in front of the quarters at H­ Block should have been observed by the experts and the CBI team, in loose condition.

63. The testimonies of the aforesaid witnesses also finds corroboration from the testimonies of the public witnesses, who were the occupants of the various quarters in H­Block, Sriniwaspuri. PW­1 complainant Inspector P. Balachandran has also mentioned in his observation memo, dated 14.10.1997, Ex.PW.1/E, that the inspection of the work of replacement of SW pipes at H­Block, Sriniwaspuri was carried out on the basis of the physical verification of the disturbance on the ground, supposed CBI Vs. Phool Singh (CC No. 37/2008) Page 63 of 114 Special Judge, CBI­01, Central, Delhi to contain the SW pipes underneath and on the basis of the statements of the occupiers of the said quarters. PW­5 Shri Rampal, resident of quarter No. H­161; PW­5 Shri Satish, resident of quarter No. H­49; PW­7 Smt. Godambari Devi, resident of quarter No. H­223; PW­8 Shri Layak Ram, resident of quarter No. H­1; PW­12 Shri Bachan Singh, resident of quarter No. H­231; PW­13 Smt. Angoori Devi, resident of quarter No. H­179; PW­14 Smt. Shakuntla Devi, resident of quarter No. H­161; PW­32 Shri Dhiraj Kumar, resident of quarter No. H­55; PW­36 Shri Naresh Kumar, resident of quarter No. H­317; PW­39 Shri Bharat Raina, resident of quarter No. H­639 and PW­42 Smt. Rita Devi, resident of quarter No. H­71, have all deposed that no sewerage work was performed by the CPWD or any contractor, during the relevant period, when they occupied the quarters at H­ Block, Sriniwaspuri, New Delhi.

64. Perusal of the record further shows that PW­1, Sh.P. Balachandran; PW­4, Sh. T.K. Majumdar; PW­22, Sh. S.K. CBI Vs. Phool Singh (CC No. 37/2008) Page 64 of 114 Special Judge, CBI­01, Central, Delhi Bansal and PW­9, SI D.K Singh (IO), have all been cross­ examined at length by the Ld. Defence counsels. But, no material discrepancy or contradiction has come on record to discard their entire depositions. However, some minor contradictions have appeared in their depositions, during their cross­examinations. But, in the considered opinion of this court, these contradictions are not fatal to the prosecution case, as such kind of minor contradictions are bound to occur during the cross­examination of the witnesses, when the witnesses depose in the court in consistent manner and that too, after a gap of several years. The present case was registered on 20.10.1997 and PW­1 Sh. P. Balachandran was examined on 01.09.2005; PW­4, Sh. T.K. Majumdar was examined on 28.02.2007; Inspector D.K.Singh, PW­9 was examined on 01.11.2007 and PW­22, Sh. S.K. Bansal was examined on 27.09.2011, 19.01.2012, 01.02.2012, 16.03.2012, 25.07.2012 & 14.09.2012. The time lag in recording their evidence might have also caused some dent in their memory.

CBI Vs. Phool Singh (CC No. 37/2008) Page 65 of 114 Special Judge, CBI­01, Central, Delhi

65. It has been held by the Hon'ble Supreme Court, in case titled as, "Prem Singh Yadav vs. CBI, reported as, 2002 Law Suit (SC) 43 ", as under :­

7. Before proceeding to see the veracity of the testimony of this witness, in the light of the testimonies of other witnesses, namely PW3, PW5 and PW6 and to see as to whether the discrepancies as pointed out by learned Counsel were material as alleged by him or insignificant as submitted by learned Counsel for the prosecution, it may be appropriate to refer to the judgment in the case of Zamir Ahmed v. State, 1996 Crl. Law Journal 2354. with regard to the discrepancies, it was observed by the Division Bench of this Court that :

"It would be a hard nut to crack to find out a case which is bereft of embellishment, exaggeration, contradictions and inconsistencies. The said things are natural. Such contradictions and inconsistencies are bound to creep in with the passage of time. If the witnesses are not tutored, they would come out with a natural and spontaneous version on their own. The two persons on being asked to reproduce a particular incident which they have witnessed with their own eyes would be unable to do so in like manner. Each one of them will narrate the same in his own words, according to his own perception and in proportion to CBI Vs. Phool Singh (CC No. 37/2008) Page 66 of 114 Special Judge, CBI­01, Central, Delhi his intelligence power of observation."

(emphasis supplied by me)

66. Furthermore, the Hon'ble Supreme Court of India, way back in the year 1959, in the case titled as "Tehsildar Singh & Anrs. vs. State of U.P." (Supra), (as relied by the Ld. PP for the CBI), has held as under:

19. "Contradict" according to the Oxford Dictionary means to affirm to the contrary, Section 145 of the Evidence Act, indicates the manner in which contradiction is brought out. The cross­examining Counsel shall put the part or parts of the statement which affirms the contrary to what is stated in evidence. This indicates that there is something in writing which can be set against another statement made in evidence. If the statement before the police­ officer - in the sense we have indicated - and the statement in the evidence before the Court are so inconsistent or irreconcilable with each other that both of them cannot co­exist, it may be said that one contradicts the other.

(emphasis supplied by me)

67. Even in the present case, the cross­examinations of the CBI Vs. Phool Singh (CC No. 37/2008) Page 67 of 114 Special Judge, CBI­01, Central, Delhi aforesaid three witnesses have indicated that there are some minor contradictions in their depositions, but, the same are not so inconsistent or irreconcilable from their statements recorded in the court that their depositions in their examination­in­chief and the cross­examination cannot co­exist and therefore, the contradictions or the minor discrepancies in their cross­ examination cannot be termed as fatal to the prosecution case, in the present case.

68. Perusal of the record further shows that the measurement book No. 5900, Ex.P­6, finds mention that a total of 760.62 meters of SW pipes were replaced and all these measurements were done by accused A.R.Bhati and the same have been verified as correct, by co­accused K.C.Wahi (since deceased). Co­accused Sanjay Kumar Malhotra has also accepted these measurements as correct. The measurement book is an admitted document and the entries in it have been admitted by the accused persons, as correct. On the basis of the measurement book, Ex.P­6, the first CBI Vs. Phool Singh (CC No. 37/2008) Page 68 of 114 Special Judge, CBI­01, Central, Delhi running bill, Ex.PW.2/Y, was prepared in respect of the laying of 453.97 meters of SW pipes. This first running bill Ex.PW.2/Y, is also an admitted document. It is also an admitted fact that this bill was prepared and this bill, alongwith the measurement book Ex.P­6, was verified and forwarded by accused A.R.Bhati to co­ accused K.C.Wahi (since deceased), who again verified the bill and forwarded the same to Phool Singh, Executive Engineer. Executive Engineer Phool Singh has also passed the said bill. The payment of Rs.1,55,638/­ was made to accused Sanjay Kumar Malhotra (Contractor), vide cash voucher No. 81, against cheque No. 94077, dated 15.09.97. This cheque was issued to the accused Sanjay Kumar Malhotra for a total amount of Rs. 4,90,638/­, which included the amounts of cash voucher No.79 for Rs.89,831/­, amount of Rs.2,16,161/­, against cash voucher No. 80 and an amount of Rs.29,008/­ against cash voucher No. 82, which were issued to accused Sanjay Kumar Malhotra for his other works. This cheque worth Rs.4,90,638/­ was duly credited to the bank account of accused Sanjay Kumar Malhotra on CBI Vs. Phool Singh (CC No. 37/2008) Page 69 of 114 Special Judge, CBI­01, Central, Delhi 19.09.97. The statement of his bank account No. 300965 has been proved on record as Ex.PW33/D. The certificate issued by Oriental Bank of Commerce, in this regard, have been proved on record as Ex.PW33/A & Ex.PW33/C, respectively.

69. Perusal of the record further shows that in order to prove the procedure of tendering process, the preparation of the bill, its checking and verification and forwarding to the concerned senior authorities, for passing the same for payment to the contractor, the prosecution has examined PW­2 Shri A.Vishwanathan, Asstt. Accounts Officer; PW­16 Sh. Sukanpal Verma, Asstt. Surveyor; PW­19 Shri Rajender Singh Rawat, UDC (Auditor), P­Division, CPWD, Sadiq Nagar, New Delhi; PW­18 Shri Manindra Lal Roy, Assistant Engineer, CPWD, New Delhi and PW­27, Sh. Kripal Singh, J.E.

70. It has been stated by PW­2, Shri A. Vishwanathan, Assistant Accounts Officer, that the Assistant Engineer can award the work CBI Vs. Phool Singh (CC No. 37/2008) Page 70 of 114 Special Judge, CBI­01, Central, Delhi upto an amount of Rs.60,000/­. He has further deposed that the requirement for the repair work in respect of the residential flats is made on the basis of the complaints of the residents and if no complaint is received, then the requirement of work is estimated on the basis of the policy of the department. Thereafter, the estimate of the work is prepared by the Junior Engineer and he puts up the same to the Asstt. Engineer. If the estimate is above the amount of Rs.60,000/­, then the proposal is sent to the XEN, otherwise, it is dealt by the Asstt. Engineer himself. He has further stated that if the work to be carried out is within the power of Asstt. Engineer, i.e. upto Rs.60,000/­, a tender is to be made by the Asstt. Engineer himself and if the work is more than Rs. 60,000/­, then the tender is to be floated by the XEN.

71. PW­2 Shri A.Vishwanathan has further deposed that the supervision of execution of the work is to be done by the JE, AE and the XEN and a measurement book is maintained by the JE and the entries are made in the book, as per the work done at the CBI Vs. Phool Singh (CC No. 37/2008) Page 71 of 114 Special Judge, CBI­01, Central, Delhi site. The contractor is also required to sign the measurement book in token of the correctness of the measurements.

72. PW­2 Shri A.Vishwanathan has further deposed that the Sub­ Divisional Clerk prepares the bill on the basis of the measurements recorded in the measurement book and thereafter, the bill is put up before the JE and the AE. If there is any deviation, the bill is put up for signatures before the XEN and thereafter, the bill is sent to the accounts branch of the division. If the bill is found in order, the accounts branch passes the same for payment. He has further stated that sometimes, running bills are also made on the basis of the work done and interim payments are made to the contractor as making of the final bill takes time.

73. PW­2 Shri A.Vishwanathan has further deposed that the work relating to the replacement of damaged sewer line was awarded to accused Sanjay Malhotra, vide Agreement No. 56/AE/4P/97­98, Ex.P­7, with an estimated cost of Rs.39,353/­ CBI Vs. Phool Singh (CC No. 37/2008) Page 72 of 114 Special Judge, CBI­01, Central, Delhi and the tendered amount of Rs.61,784/­. He has further deposed that the measurement book No. 5900 was issued for measurement of the work and the first running bill Ex.PW2/5 alongwith scrutiny sheet Ex.PW.2/7 and schedule of quantity Ex.PW.2/R was submitted to the divisional office for passing and the same was checked and verified by accused A.R.Bhati, K.C.Wahi (since deceased) and Phool Singh. This witness has proved the general conditions of the contract as Ex.PW2/A. The tender has been proved as Ex.PW2/B and the tender award letter has been proved as Ex.PW.2/E. The schedule of quantity has been proved as Ex.PW2/C. The measurement book has been proved as Ex.P­6.

74. PW­2 Shri A.Vishwanathan has further deposed that the measurements were recorded by the accused A.R.Bhati, JE, in the measurement book No. 5900, Ex.P­6 and the same were duly checked by co­accused K.C.Wahi (since deceased) and test checked by co­accused Phool Singh. He has further deposed CBI Vs. Phool Singh (CC No. 37/2008) Page 73 of 114 Special Judge, CBI­01, Central, Delhi that the measurement book bears the endorsements of K.C.Wahi and Phool Singh. The contractor Sanjay Kumar Malhotra had accepted the bill and measurements, vide his endorsements on the measurement book Ex.P­6.

75. PW­2 Shri A.Vishwanathan has proved the various documents pertaining to the tender and the agreement and have also proved the various documents accompanying the first running bill and the second final bill. He has identified the signatures of accused A.R.Bhati,J.E.; K.C.Wahi (since deceased) A.E. and Phool Singh, E.E., on various documents and has also categorically stated that the contractor accused Sanjay Kumar Malhotra had accepted the bills and the measurement. He has proved the scrutiny sheet for the first running bill as Ex.PW.2/R and has categorically stated that the same was submitted to the account section and it bears the signatures of accused K.C.Wahi (since deceased) and accused Phool Singh. The bill has been proved on record as Ex.PW.2/S. The schedule of quantity has been proved on record CBI Vs. Phool Singh (CC No. 37/2008) Page 74 of 114 Special Judge, CBI­01, Central, Delhi as Ex.PW.2/T. The theoretical calculation has been proved on record as Ex.PW.2/U and the recovery statement has been proved on record as Ex.PW.2/V. The part rate statement has been proved on record as Ex.PW.2/W and the test check statement has been proved on record as Ex.PW.2/X. The justification sheet, regarding the analysis of the rates has been proved on record as Ex.PW.2/H and Ex.PW.2/I, respectively. The comparative statement has been proved on record as Ex.PW.2/J.

76. PW­2 Shri A.Vishwanathan has further stated that the scrutiny sheet regarding the second and final bill bears the signatures of accused K.C.Wahi (since deceased) and the same has been proved on record as Ex.PW.2/K. The second and final bill has been proved on record as Ex.PW.2/L. The schedule of quantity, attached with this bill, has been proved on record as Ex.PW.2/M. The statement of theoretical calculation, signed by accused A.R.Bhati and K.C.Wahi (since deceased) has been proved on record as Ex.PW.2/N. The recovery statement bears the CBI Vs. Phool Singh (CC No. 37/2008) Page 75 of 114 Special Judge, CBI­01, Central, Delhi signatures of accused A.R.Bhati and K.C.Wahi (since deceased), has been proved on record as Ex.PW.2/O. The test check statement, prepared and signed by accused A.R.Bhati and also signed by accused K.C.Wahi (since deceased) has been proved on record as Ex.PW.2/P. The deviation statement has been proved on record as Ex.PW.2/Q. This witness has categorically stated that the payment of the first running bill was made to the contractor, vide cheque No. 94077, dated 15.09.1997 for Rs. 1,55,638/­ and it bears the signatures of accused Phool Singh. He has further stated that the cheque was received by the contractor, vide his signatures on the memo of payment Ex.PW2/Y.

77. PW­16 Sh. Sukan Pal Singh Verma has deposed about the deviation statement. In the year 1991, he was posted as Assistant Surveyor of Works in P­Division at Sadiq Nagar, Office of the CPWD and his job was to check / calculate the estimate and the deviation statement submitted by the sub­divisional office. CBI Vs. Phool Singh (CC No. 37/2008) Page 76 of 114 Special Judge, CBI­01, Central, Delhi He has categorically stated that the Assistant Engineer is the incharge of the sub­division and at the relevant time, the Assistant Engineer was empowered to award the work in one tender upto Rs.60,000/­ and in case, there was any deviation and work was extended beyond Rs.60,000/­, then the Assistant Engineer would obtain the consent of his immediate senior, who is the Executive Engineer (E.E.). He had categorically stated that the second and final bill in respect to the agreement No. 56/AE/IV­P/97­98, submitted by accused K.C.Wahi (since deceased) A.E., never came to him for checking. The deviation statement pertaining to the present case is Ex.P­8 (admitted document) and this witness has deposed that the initial work was awarded for Rs.61,784/­ and as per this deviation statement, the work was carried out for Rs.92,674/­ and this deviation statement was prepared by accused K.C.Wahi (since deceased), A.E.

78. PW­18 Shri Manindra Lal Roy, Assistant Engineer, CPWD, New Delhi, has also deposed that there are 3­4 sources for CBI Vs. Phool Singh (CC No. 37/2008) Page 77 of 114 Special Judge, CBI­01, Central, Delhi preparation of estimates for calling tender and the estimate is prepared by the JE in consultation and direction of the AE. After preparation of estimate by the JE, it is submitted to the Asstt. Engineer for his approval and after checking of 25% of the estimate, AE will technically sanction the estimate and the same is recorded in the technical sanction register. Thereafter, the AE directs the JE to prepare the schedule of work and quantity for calling the tender and an estimate file is maintained in the sub­ division. Thereafter, the AE directs the sub­divisional clerk to issue NIT (Notice Inviting Tender) and a copy of the same is sent to the divisional office for circulation. He has further stated that on the stipulated date, AE opens the tenders and the same are entered into a tender opening register and on the same day, all the earnest money has to be deposited in the office of the Executive Engineer. Thereafter, the AE directs the JE to prepare the justification of rates and also directs the sub­divisional clerk to prepare a comparative statement of the percentage rates of tenders and thereafter, the AE awards the work to the lowest CBI Vs. Phool Singh (CC No. 37/2008) Page 78 of 114 Special Judge, CBI­01, Central, Delhi tenderer, with proper reasons and he may also call the contractor for negotiation. Thereafter, the SDC prepares the award of work letter and the same is issued and signed by the AE.

79. PW­18 Shri Manindra Lal Roy, has further deposed that JE is supposed to supervise the work, which is to be performed as per the specifications and the JE has to record the measurement of the work done and also to prepare the abstract of the cost, as per the directions of the AE and AE has to check 50% of the work done. The contractor has to sign the measurement book for acceptance of the bill and thereafter, the bill is sent to divisional office for pass and payment. The bill is to be forwarded by the JE and at the divisional office, the bill is checked by the auditor and the assistant accounts officer and thereafter, the Executive Engineer has to check the 10% of the work done.

80. PW­19, Shri Rajender Singh Rawat, has also deposed in a similar manner and has also deposed about the process of CBI Vs. Phool Singh (CC No. 37/2008) Page 79 of 114 Special Judge, CBI­01, Central, Delhi opening of the tenders. He has further deposed that the tenders are opened in the presence of the contractor / tenderer and the AE and thereafter, the Sub­Divisional Clerk prepares a comparative statement, reflecting the rates quoted by the contractors. Then the comparative statement is marked to JE by the AE for preparation of the justification. If the lowest rate is within the justification, the AE would award the contract to the lowest bidder. He has further deposed that after the start of the work at the site, after issuance of the award letter, the responsibility to look after the site work is of the concerned JE and the AE.

81. PW­19, Shri Rajender Singh Rawat, has also proved the various documents, pertaining to the agreement Ex.P­7, vide which the tender was awarded to accused Sanjay Kumar Malhotra and various documents pertaining to the first running bill Ex.PW.2/S and pertaining to the second and final bill Ex.PW.2/L. He has categorically stated that the comparative statement CBI Vs. Phool Singh (CC No. 37/2008) Page 80 of 114 Special Judge, CBI­01, Central, Delhi Ex.PW.2/J was prepared by Shri Ghamandi Lal, SDC, on the orders of accused K.C.Wahi, after opening the tenders and the same was submitted to AE K.C.Wahi on 16.08.1997. On the same day, K.C.Wahi, AE directed A.R.Bhati, JE to prepare the justification statement Ex.PW.2/H. As per the comparative statement Ex.PW2/J, the rates were 65% above and the first lowest tender was of contractor accused Sanjay Kumar Malhotra. The justification of rates prepared by accused A.R.Bhati was 53.04% above and on 18.08.1997, accused K.C.Wahi negotiated the rates with contractor accused Sanjay Kumar Malhotra, on the basis of the rates in tender and the justification rates. After negotiations, vide letter Ex.PW.2/D, the contractor agreed to perform the work at the rate 57% above. Thereafter, SDC Ghamandi Lal issued the award letter Ex.PW.2/E, under the signatures of accused K.C.Wahi on 18.08.1997. This witness has also proved various entries in the measurement book, regarding the work done awarded to co­accused Sanjay Kumar Malhotra vide agreement Ex.P­7. The document of the first running bill has CBI Vs. Phool Singh (CC No. 37/2008) Page 81 of 114 Special Judge, CBI­01, Central, Delhi been proved on record as Ex.PW.2/R to Ex.PW.2/Y. This witness has further stated that the first running bill was prepared by SDC Ghamandi Lal on 11.09.1997 for Rs. 1,89,776/­ as per the entries in the measurement book Ex.P­6. On the said date, it was shown in the measurement book , that a total of 454.17 metres SW pipes had been replaced. The said documents were sent to the divisional office under signatures of accused K.C.Wahi.

82. PW­19, Shri Rajender Singh Rawat, has further deposed that the first running bill Ex.PW.2/S alongwith its documents was received in the divisional office and was put up before him on 19.09.1997 for checking. He checked the bill on the basis of the measurement book No. 5900 and the agreement and put up a note to Shri A.Vishwanathan, AAO, for counter checking. He has further stated that the AAO checked the bill and noted the deviation of 208% and after noting, the bill was forwarded by AAO to accused Phool Singh, EE. On 15.09.1997, accused CBI Vs. Phool Singh (CC No. 37/2008) Page 82 of 114 Special Judge, CBI­01, Central, Delhi Phool Singh passed the bill through memorandum of payment Ex.PW.2/Y. Thereafter, casher Chatur Singh prepared the cheque No. 94077 for Rs.1,55,638/­ vide cash voucher No. 81, dated 15.09.1997 and the payment was made to the contractor accused Sanjay Kumar Malhotra.

83. PW­19, Shri Rajender Singh Rawat, has further deposed that the second and final bill alongwith the document Ex.PW.2/K to Ex.PW.2/P were received by him in the divisional office on 30.09.1997 and alongwith the bill and the documents, the agreement No. 56 and the measurement book No. 5900 was also received. He has further stated that on 09.10.1997, accused A.R.Bhati had taken back the second and final bill, the measurement book No. 5900 and the agreement No. 56 from him, under the pretext that these documents had been called by the Superintending Engineer. This witness has also identified the signatures of the accused persons on various documents, as narrated above and has further stated that the second and final CBI Vs. Phool Singh (CC No. 37/2008) Page 83 of 114 Special Judge, CBI­01, Central, Delhi bill dated 29.09.1997 Ex.PW.2/L was prepared by SDC Ghamandi Lal, was sent to the divisional office under signatures of accused K.C.Wahi and the same was prepared on the basis of the abstract of work, recorded in the measurement book. This bill was for a total amount of Rs.2,84,057/­ and out of this amount, Rs. 1,89,776/­ was paid against first running bill and the balance amount of Rs.94,281/­ was to be paid to the contractor. He has further stated that as per the entries in the measurement book No. 5900, the SW pipes changed were mentioned as 760.62 metres and therefore, there was a deviation of work to the extent of 407.08%. He has further stated that as per the agreement, the tender amount was Rs.61,784/­, whereas, as per the entries in the measurement book No. 5900, the work done was for an amount of Rs.2,84,057/­ and therefore, there was a deviation in the tender amount for 359.76%. This witness has categorically stated that for such a deviation, accused KC.Wahi (since deceased) should have taken approval in writing from Executive Engineer Phool Singh, which is not done in this case. He has CBI Vs. Phool Singh (CC No. 37/2008) Page 84 of 114 Special Judge, CBI­01, Central, Delhi further stated that accused Sanjay Kumar Malhotra has also accepted the bill and the measurements against the second and final bill. He has further stated that on the second and final bill Ex.PW.2/E, there is a noting at point X to X that "E.E.s test check is more than 10%", whereas, there is no such entry in the measurement book No. 5900 Ex.P­6.

84. PW­27 Kirpal Singh has also deposed in a similar manner about the process of lodging of complaints, regarding execution of the repair works, preparation of the estimates, technical sanction and issuance of the tender, for the repair work. The testimony of this witness corroborates the testimonies of PW­16, 18 & 19, in this regard. This witness has also identified the signatures of the various accused persons on the various documents.

85. During the investigations, the specimen signatures and handwritings of accused persons, along with the seized questioned documents and measurement book, were sent to CBI Vs. Phool Singh (CC No. 37/2008) Page 85 of 114 Special Judge, CBI­01, Central, Delhi CFSL, New Delhi, for comparison and expert opinion. PW­25 Dr.S.C. Mittal has deposed that the questioned, specimen and admitted documents were received in the CFSL, vide letter No DLI/AC/CR/3/79(A)/97/9111, dated 27.07.98, and further material was received, vide memo No. DLI/AC/CR/3/78&79(A)/97­ DLI/5313, dated 07.06.99, in RC 78 & 79(A)/97­DLI. Further material was also received in the form of standard writings and signatures marked S­1 to S­43, S­67 to S­129, S­130 to S­177 and A­1 to A­289, A­512 to A­640 in RC 90(A)/97­DLI, vide letter No. DLI/AC/CR/3/90(A)/97/8395, dated 10.07.98, and admitted writings marked A­1 to A­21 were received in RC 77(A)/97­DLI. He has further stated that the present case was marked to him for scientific examination and opinion on questioned document in comparison with the specimen and admitted documents and after carefully examining the documents with various scientific instruments, he arrived at several opinions, which were incorporated by him in his detailed report. He has proved his report as Ex.PW25/B. PW­34 Dr. Rajender Singh, Director, CBI Vs. Phool Singh (CC No. 37/2008) Page 86 of 114 Special Judge, CBI­01, Central, Delhi CFSL, has also proved the report bearing No. CFSL/97/D­377, dated 31.12.98, Ex.PW34/A, which was prepared by Sh. N.K. Aggarwal, Principal Scientific Officer of CFSL, New Delhi. Both these reports have proved on record that accused A.R. Bhati, K.C. Wahi, Phool Singh and Sanjay Kumar Malhotra have made various entries in the measurement book and the documents and they have checked, verified and signed the same.

86. Perusal of the record shows that the testimonies of the prosecution witnesses has established on record, beyond a shadow of doubt, that accused A.R. Bhati, J.E., K.C. Wahi, A.E. (since deceased) and accused Phool Singh, E.E. have entered into a criminal conspiracy with the contractor, accused Sanjay Kumar Malhotra, to cheat the CPWD, by abusing their official positions with the common object of the conspiracy to cause wrongful pecuniary loss to the CPWD and corresponding wrongful pecuniary gain / advantage to their co­accused Sanjay Kumar Malhotra (contractor).

CBI Vs. Phool Singh (CC No. 37/2008) Page 87 of 114 Special Judge, CBI­01, Central, Delhi

87. It has been held by the Hon'ble Supreme Court of India, in case titled as "K.R.Purushothaman Vs. State of Kerala", reported as (2005) 12 Supreme Court Cases 631, as under :

11. Section 120­A IPC defines "criminal conspiracy".

According to this Section when two or more persons agree to do, or cause to be done (i) an illegal act, or

(ii) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. In Major E.G.Barsay V. State of Bombay Subba Rao J., speaking for the Court has said :(SCR p.228) "The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts."

12. In State V. Nalini it was observed by S.S.M. Quadri, J. at JT para 677: (SCC pp.568­69, para 662) "In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act CBI Vs. Phool Singh (CC No. 37/2008) Page 88 of 114 Special Judge, CBI­01, Central, Delhi or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus with the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences."

13. To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither is it necessary that every one of the conspirators take active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implication. In most of the cases, the conspiracies CBI Vs. Phool Singh (CC No. 37/2008) Page 89 of 114 Special Judge, CBI­01, Central, Delhi are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the court to keep in mind the well­ known rule governing circumstantial evidence viz. each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. Criminal conspiracy is an independent offence in the Penal Code. The unlawful agreement is sine qua non for constituting offence under the Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement.

14. Suspicion cannot take the place of legal proof and prosecution would be required to prove each and every circumstance in the chain of circumstances so as to complete the chain. It is true that in most of the cases, it is not possible to prove the agreement CBI Vs. Phool Singh (CC No. 37/2008) Page 90 of 114 Special Judge, CBI­01, Central, Delhi between the conspirators by direct evidence but the same can be inferred from the circumstances giving rise to conclusive or irresistible inference of an agreement between two or more persons to commit an offence. It is held in Noor Mohd. Mohd. Yusuf Momin V. State of Maharashtra, that: (SCC pp.

699­700, para 7) "[I]n most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material."

15. It is cumulative effect of the proved circumstances which should be taken into account in determining the guilt of the accused. Of course, each one of the circumstances should be proved beyond reasonable doubt. The acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. While speaking for the Bench it is held by P. Venkatarama Reddi, J. in State (NCT of Delhi) V. Navjot Sandhu (p.63) as follows: (SCC pp.691­92, para 103) "103. We do not think that the theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design even if such offences were ultimately committed by some of them, without the participation of others. We are of the view CBI Vs. Phool Singh (CC No. 37/2008) Page 91 of 114 Special Judge, CBI­01, Central, Delhi that those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy; but, the non­ participant conspirators cannot be found guilty of the offence or offences committed by the other conspirators. There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them. Criminal offences and punishments therefor are governed by the statute. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy or by extension of a common law principle.

(emphasis supplied by me)

88. In the present case, the prosecution witnesses examined by the CBI, during the trial, have proved, beyond a shadow of doubt that accused Sanjay Kumar Malhotra (contractor) had performed the work of laying of 235.87 metres of SW pipes only, but inflated and false entries were made by the accused A.R.Bhati, JE, in the measurement book No. 5900, Ex.P­6, to show that the SW pipes worth 760.62 metres were laid. Co­accused K.C.Wahi, AE and CBI Vs. Phool Singh (CC No. 37/2008) Page 92 of 114 Special Judge, CBI­01, Central, Delhi Phool Singh, EE, have also, intentionally and wilfully, in conspiracy, with the other accused persons, have falsely verified and test checked these false entries in the measurement book, as correct. The first running bill Ex.PW.2/S worth Rs.1,89,776/­ was submitted by accused Sanjay Kumar Malhotra and was forwarded by accused A.R. Bhati, J.E., to his co­accused K.C. Wahi , A.E. (since deceased). Accused K.C. Wahi (since deceased) was required to check and verify the bills, the measurement book and other documents and was supposed to verify the 50% of the entries of the work done. But, he has falsely verified these entries and forwarded the bill along with the other relevant documents and the measurement book to the co­accused Executive Engineer, Phool Singh, through the divisional office, for passing and payment. Accused K.C. Wahi (since deceased) was further required to take the prior written permission of the Executive Engineer, Phool Singh, regarding the deviations in the first running bill, before making verification and checking of the measurement book and the bill. But, no such procedure was CBI Vs. Phool Singh (CC No. 37/2008) Page 93 of 114 Special Judge, CBI­01, Central, Delhi followed by accused K.C. Wahi (since deceased).

89. The relevant rules of procedure, as per the prevailing CPWD Manual, regarding the deviations in the contract are reproduced below, for ready reference :

Definition 25.1 Deviation in the contract would normally comprise of:

(a) New items of work, i.e., items completely new and in addition to the items in contract. These are commonly known as Extra or Additional items.

(b) Substituted items, i.e., items which substitute the existing ones or are taken up in lieu of those already provided in the contract. These can be with slight modification or partially omitting items of work in the contract.

(c) Deviation in quantities of items, i.e., where there is increase or decrease in the quantities of items of work in the agreement. In other words, the nomenclature of work remains the same but the quantities vary with those provided in the agreement. In order to exercise effective control over deviations, instructions have been issued from time to time to keep these to the minimum and to obtain approval of the competent authority, where required. All plus and minus deviations beyond ten percent of the stipulated quantities in respect of Non A.H.R. & A.L.R. Items should invariably be approved by CBI Vs. Phool Singh (CC No. 37/2008) Page 94 of 114 Special Judge, CBI­01, Central, Delhi the tender accepting authority.

Deviation to be Avoided 25.2 A Divisional Officer is strictly prohibited from making or permitting any deviations, except trifling deviations from the quantities specified in the Schedule of Quantities, except under specific authority of the competent authority or in the case of emergency. In the latter case the change should be forthwith reported to the SE.

25.3 To obviate large scale deviations after call of tenders, the following instructions should be followed :­

(i) Detailed estimates should be based on adequate plans and designs. Authority according technical sanction should satisfy itself that the proposals are structurally sound and estimates are based on adequate data.

(ii) Architectural working plans and elevations and other detailed drawings which are required to be mentioned in the nomenclature of various items in the detailed estimates should be ready before sanctioning the detailed estimate. Structural details of foundations and roof of ground floor should also be ready by then. Specifications incorporated in the detailed estimates should be precise and comprehensive and should be scrutinized carefully by the officer sanctioning the estimate.

(iii) Changes in the specifications from those indicated in the contract documents should be made with the specific orders of the authority technically sanctioning CBI Vs. Phool Singh (CC No. 37/2008) Page 95 of 114 Special Judge, CBI­01, Central, Delhi the detailed estimates for the project.

Prior sanction of competent authority necessary for deviations 25.4 If deviations from the sanctioned plans and estimates become necessary, these should ordinarily be first discussed by the JE/AE, with the EE and, if he agrees in principle, then the proposals should be formulated. The EE shall be responsible to obtain the prior sanction of the competent authority to such deviations. The fact that the deviations are shown in the architect's plans should not be construed as having the sanction of the competent authority. The Architect should, similarly, obtain prior concurrence of the competent authority for making deviations from the approved plans, on the basis of which, estimates have been framed and tenders called for. In the case of Architects, the competent authority will be the same authority who has sanctioned the estimate technically.

90. Perusal of the above provisions clearly indicate that the accused were strictly prohibited from making or approving the variations to the extent of 408%, as done by them in the present case. Accused K.C.Wahi (since deceased), A.E., the Tender Accepting Authority, was required to obtain the prior written permission of co­accused Phool Singh, E.E., before checking and CBI Vs. Phool Singh (CC No. 37/2008) Page 96 of 114 Special Judge, CBI­01, Central, Delhi submitting the first running bill and the second final bill. Accused Phool Singh was further required to take the prior sanction of the competent authority, i.e., the Superintending Engineer, in the present case, before test checking the bills and releasing the amount of the first running bill to the co­accused Sanjay Kumar Malhotra.

91. It has been held by the Hon'ble High Court of Delhi, in case titled as, "Runu Ghosh vs. C.B.I", reported as, "2011 SCC OnLine Del 5501", as under :

" 73. Having regard to the previous history of the statute, the amendments to the 1947 Act, its avowed objects and the distinctive structure which Parliament adopted consciously, under the 1988 Act, despite being aware of the pre­existing law, as well as the decisions of the Court­the conclusion which this court draws is that mens rea is inessential to convict an accused for the offence under Section 13(1)(d)(iii). It would be sufficient if the prosecution proves that the public servant "obtains" by his act, pecuniary advantage or valuable thing, to another, without public interest. The inclusion of public interest, in the opinion of the Court, tips the scale in favour of a CBI Vs. Phool Singh (CC No. 37/2008) Page 97 of 114 Special Judge, CBI­01, Central, Delhi construction which does not require proof of mens rea. There can be many acts of a public servant, which result in pecuniary advantage, or obtaining of a valuable thing to someone else; typically these may relate to payment of royalty, grant of license or concessions, issuance of permits, authorizations, etc. Yet, such grants, concessions, or other forms of advantages to third parties would not criminalize the public servant's actions, so long as they have an element of public interest. They (acts of the public servant) are outlawed, and become punishable, if they are "without public interest".

74. Having now settled the true interpretation of whether the offence under Section 13(1)(d)(iii) requires proof of mens rea, it would now be vital to settle what really the prosecution would have to establish to say that the public servant's actions or decisions, which result in a third party obtaining a pecuniary advantage or valuable thing, without public interest. The expression "public interest" is known to law; at the same time its meaning is not rigid, and takes colour from the particular statute or policy (Ref. Srinivasa Co­operative House Building Society v.

Madam Gurumurthy Sastry 1994 (4) SCC 675). It might be useful to consider the following formulation of what is public interest, in relation to actions by public officials or agencies or instrumentalities of state, in every sphere of government functioning, given in Shrilekha Vidyarthi (Kumari) v. State of U.P. CBI Vs. Phool Singh (CC No. 37/2008) Page 98 of 114 Special Judge, CBI­01, Central, Delhi (1991) 1 SCC 212"

xxxx xxxx xxxx "78. In a previous part of this judgment, what constitutes "public interest" and the trust element, which informs every decision of a public servant or agency, was discussed and emphasized. The State in its myriad functions enters into contracts, of various kinds, involves itself in regulation, awards or grants largesse, and holds property. Each action of the State must further the social or economic goals sought to be achieved by the policy. Therefore, when a public servant's decision exhibits complete and manifest disregard to public interest with the corresponding result of a third party obtaining pecuniary advantage or valuable thing, he is fastened with responsibility for "criminal misconduct" under Section 13(1)(d)(iii). There is nothing reprehensible in this interpretation, because the "act" being "without public interest" is the key, the controlling expression, to this offence. If one contrasts this with "abuse" of office resulting in someone "obtaining" "pecuniary advantage or valuable thing", it is evident that Section 13(1)(d)(ii) may or may not entail the act being without public interest. This offence­under Section 13(1)(d)(iii) advisedly does not require proof of intent, or mens rea, because what Parliament intended was to punish public servants for acts which were without public interest. This kind of offence is similar to those intended to deal with other social CBI Vs. Phool Singh (CC No. 37/2008) Page 99 of 114 Special Judge, CBI­01, Central, Delhi evils, such as food and drug adulteration, (offences under Prevention of Food Adulteration Act, Section 13(1), Drugs and Cosmetics Act:, Section 7(1) Essential Commodities Act, 1955, Section 25, Arms Act, 1959), possession of explosives, air and water pollution, etc.

79. What then is the behaviour or act which attracts such opprobrium as to result in criminal responsibility? It is not every act which results in loss of public interest, or that is contrary to public interest, that is prosecutable offence. There can be no doubt that all acts prejudicial to public interest, can be the subject matter of judicial review. In those cases, courts consider whether the decision maker transgressed the zone of reasonableness, or breached the law, in his action. However, it is only those acts done with complete and manifest disregard to the norms, and manifestly injurious to public interest, which were avoidable, but for the public servant's overlooking or disregarding precautions and not heeding the safeguards he or she was expected to, and which result in pecuniary advantage to another that are prosecutable under Section 13(1)(d)(iii). In other words, if the public servant is able to show that he followed all the safeguards, and exercised all reasonable precautions having regard to the circumstances, despite which there was loss of public interest, he would not be guilty of the offence. The provision aims at ensuring CBI Vs. Phool Singh (CC No. 37/2008) Page 100 of 114 Special Judge, CBI­01, Central, Delhi efficiency, and responsible behaviour, as much as it seeks to outlaw irresponsibility in public servant's functioning which would otherwise go unpunished. The blameworthiness for a completely indefensible act of a public servant, is to be of such degree that it is something that no reasonable man would have done, if he were placed in that position, having regard to all the circumstances. It is not merely a case of making a wrong choice; the decision should be one such as no one would have taken.

xxxx xxxx xxxx

81. As notice previously, the silence in the statute, about the state of mind, rules out applicability of the mens rea or intent standard, (i.e. the prosecution does not have to prove that the accused intended the consequence, which occurred or was likely to occur). Having regard to the existing law Section 13(1)(1)(e) (which does not require proof of criminal intent) as well as the strict liability standards prevailing our system of law, therefore, a decision is said to be without public interest, (if the other requirements of the provision, i.e. Section 13(1)(d)(iii) are fulfilled) if that action of the public servant is the consequence of his or her manifest failure to observe those reasonable safeguards against detriment to the public interest, which having regard to all circumstances, it was his or her duty to have adopted.

82. It would be useful to in this context, take CBI Vs. Phool Singh (CC No. 37/2008) Page 101 of 114 Special Judge, CBI­01, Central, Delhi recourse to certain examples. For instance, in not adopting any discernable criteria, in awarding supply contract, based on advertisements calling for responses, published in newspapers having very little circulation, two days before the last date of submission of tenders, which result in a majority of suppliers being left out of the process, and resultant award of permits to an unknown and untested supplier, would result in advantage to that individual, and also be without public interest, as the potential benefit from competitive bids would be eliminated. Likewise, tweaking tender criteria, to ensure that only a few applicants are eligible, and ensure that competition (to them) is severely curtailed, or eliminated altogether, thus stifling other lines of equipment supply, or banking on only one life saving drug supplier, who with known inefficient record, and who has a history of supplying sub­standard drugs, would be acts contrary to public interest. In all cases, it can be said that public servant who took the decision, did so by manifestly failing to exercise reasonable proper care and precaution to guard against injury to public interest, which he was bound, at all times to do. The intention or desire to cause the consequence may or may not be present; indeed it is irrelevant; as long as the decision was taken, which could not be termed by any yardstick, a reasonable one, but based on a complete or disregard of consequence, that act would be CBI Vs. Phool Singh (CC No. 37/2008) Page 102 of 114 Special Judge, CBI­01, Central, Delhi culpable.

83. The test this Court has indicated is neither doctrinaire, nor vague; it is rooted in the Indian legal system. A public servant acts without public interest, when his decision or action is so unreasonable that no reasonable man, having regard to the entirety of circumstances, would have so acted; it may also be that while deciding or acting as he does, he may not intend the consequence, which ensues, or is likely to ensue, but would surely have reasonable foresight that it is a likely one, and should be avoided. To put in differently, the public servant acts without public interest, if his action or decision, is by manifestly failing to exercise reasonable precautions to guard against injury to public interest, which he was bound, at all times to do, resulting in injury to public interest. The application of this test has to necessarily be based on the facts of each case; the standard however, is objective. Here, one recollects the following passage of Justice Holmes in United States vs. Wurzach 1930 (280) US 396 :

"Wherever the law draws a line there will be cases very near each other on opposite sides. The precise course of the line may be uncertain, but no one can come near it without knowing that he does so, if he thinks, and if he does so it is familiar to the criminal law to make him take the risk"

(emphasis supplied by me) CBI Vs. Phool Singh (CC No. 37/2008) Page 103 of 114 Special Judge, CBI­01, Central, Delhi

92. In the present case, the evidence on record has established, beyond a shadow of doubt that the accused A.R.Bhati, K.C.Wahi (since deceased) and Phool Singh have connived together to falsify the records and to approve the deviations to the extent of 408% in utter disregard to the rules as prescribed under the CPWD Manual, with the sole motive of causing unlawful pecuniary gain to their co­accused Sanjay Kumar Malhotra. They have passed and cleared the first running bill, worth Rs. 1,55,638/­, on the basis of the falsified records. The evidence on record clearly indicate that no approval of the deviations was taken by the accused persons from the competent authority. The aforesaid three officers of the CPWD, while approving the deviations and releasing the amount of the first running bill, to the co­accused Sanjay Kumar Malhotra had abused and misused their authority to benefit the co­accused Sanjay Kumar Malhotra, without any public interest. The falsification of the records and documents by accused persons, by no stretch of imagination, be termed as a part of their official duties.

CBI Vs. Phool Singh (CC No. 37/2008) Page 104 of 114 Special Judge, CBI­01, Central, Delhi Sanction for Prosecution

93. During the course of final arguments, the Ld. Defence counsels have also objected to the validity of the sanction orders Ex.PW. 9/J and Ex.PW.9/H, regarding the prosecution of the accused A.R. Bhati, J.E., and Phool Singh, E.E.

94. In case titled as, "State of Maharashtra through CBI vs. Mahesh G. Jain" (Supra), it has been held by the Hon'ble Supreme Court of India, as under :

9. In "C.S. Krishnamurthy vs. State of Karnataka", it has been held as follows: ­ "....... sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself then the satisfaction of the sanctioning authority is apparent by reading the order."

10. In R. Sundarajan vs. State by DSP, SPE, CBI, Chennai, while dealing with the validity of the order CBI Vs. Phool Singh (CC No. 37/2008) Page 105 of 114 Special Judge, CBI­01, Central, Delhi of sanction, the two learned judges have expressed thus:­ "it may be mentioned that we cannot look into the adequacy or inadequacy of the material before the sanctioning authority and we cannot sit as a court of appeal over the sanction order. The order granting sanction shows that all the available materials were placed before the sanctioning authority who considered the same in great detail. Only because some of the said materials could not be proved, the same by itself, in our opinion, would not vitiate the order of sanction. In fact in this case there was abundant material before the sanctioning authority, and hence we do not agree that the sanction order was in any way vitiated."

11. In State of Karnataka vs. Ameerjan, it has been opined that an order of sanction should not be construed in a pedantic manner. But, it is also well settled that the purpose for which an order of sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning authority is the best person to judge as to whether the public servant concerned should receive the protection under the Act by refusing to accord sanction for his prosecution or not.

12. In Kootha Perumal vs. State through Inspector of Police, Vigilance and Anti­ Corruption, it has been opined that the sanctioning authority when grants of sanction on an examination CBI Vs. Phool Singh (CC No. 37/2008) Page 106 of 114 Special Judge, CBI­01, Central, Delhi of the statements of the witnesses as also the material on record, it can safely be concluded that the sanctioning authority has duly recorded its satisfaction and, therefore, the sanction order is valid.

13. From the aforesaid authorities the following principles can be culled out:­

(a) It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.

(b) The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution.

(c) The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him.

d) Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.

(e) The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.

(f) If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of CBI Vs. Phool Singh (CC No. 37/2008) Page 107 of 114 Special Judge, CBI­01, Central, Delhi sanction.

(g) The order of sanction is a pre­requisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigants,but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be hyper­technical approach to test its validity.

xxxx xxxx xxxx

16. Presently, we shall proceed to deal with the contents of the sanction order. The sanctioning authority has referred to the demand of the gratification for handing over TDS certificate in Form 16A of the Income­Tax Act, the acceptance of illegal gratification by the accused before the panch witnesses and how the accused was caught red handed. That apart, as the order would reveal, he has fully examined the material documents, namely, the FIR, CFSL report and other relevant documents placed in regard to the allegations and the statements of witnesses recorded under Section 161 of the Code and, thereafter, being satisfied he has passed the order of sanction. The learned trial judge, as it seems, apart from other reasons has found that the sanctioning authority has not referred to the elementary facts and there is no objective material to justify a subjective satisfaction. The reasonings, in our considered opinion, are absolutely hyper­ technical and, in fact, can always be used by an CBI Vs. Phool Singh (CC No. 37/2008) Page 108 of 114 Special Judge, CBI­01, Central, Delhi accused as a magic trick to pave the escape route. The reasons ascribed by the learned trial judge appear as if he is sitting in appeal over the order of sanction. True it is, grant of sanction is a sacrosanct and sacred act and is intended to provide a safeguard to the public servant against vexatious litigation but simultaneously when there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. The filmsy technicalities cannot be allowed to become tools in the hands of an accused. In the obtaining factual matrix, we must say without any iota of hesitation that the approach of the learned trial judge as well as that of the learned single judge is wholly incorrect and does not deserve acceptance.

(emphasis supplied by me)

95. Perusal of the record shows that the prosecution could not examine the competent authority, Sh. S.K. Singhal, Superintending Engineer, P.W.D., Circle­IV, New Delhi, who has granted the sanction for prosecution of the accused A.R. Bhati, J.E., under Section 19 of The Prevention of Corruption Act, 1988, for the offences punishable under Section 120­B, 420/511, 477­A, 201, 409 IPC and Section 13(2) read with Section 13 (1)(d) of The CBI Vs. Phool Singh (CC No. 37/2008) Page 109 of 114 Special Judge, CBI­01, Central, Delhi Prevention of Corruption Act, 1988, vide his sanction order Ex.PW.9/J, as Sh. S.K. Singhal was reported to have already expired. But, the prosecution has examined PW­43 Smt. Gandhimati Natrajan, UDC, to prove his signatures on the sanction order Ex.PW9/J, as she had worked with Sh. S.K. Singhal, S.E., for about four years and has accordingly identified his signatures.

96. Perusal of the sanction order Ex.PW9/J shows that while granting the sanction for prosecution, Sh.S.K. Singhal, S.E., had perused the FIR, the CBI report, statements of the witnesses and other related material on record and has also considered the facts and circumstances of the present case, against the accused A.R. Bhati, J.E. The sanction order Ex.PW9/J clearly indicates that the competent authority had gone through the entire relevant documents and has considered all the relevant facts and circumstances of the case and has applied his mind before granting sanction for prosecution of accused A.R. Bhati, J.E., in CBI Vs. Phool Singh (CC No. 37/2008) Page 110 of 114 Special Judge, CBI­01, Central, Delhi the present case. Therefore, in the considered opinion of this court, the sanction order Ex.PW9/J cannot be said to be suffering from any infirmity or illegality and it cannot be said that the sanction for prosecution of accused A.R. Bhati, J.E., was granted by the competent authority in a mechanical manner, without application of mind.

97. Sanction order Ex.PW.9/H, regarding grant of sanction under Section 19 of The Prevention of Corruption Act, 1988, for prosecution of accused Phool Singh, E.E., by the President of India, has been proved by PW­10 Sh. Munish Girdhar, Under Secretary to the Government of India, Ministry of Urban Development, New Delhi. He has categorically stated that the sanction order Ex.PW.9/H, for prosecution of accused Phool Singh, Executive Engineer, CPWD, was accorded by the Ministry of Urban Development, on behalf of the President of India, on the basis of the incriminating material, i.e., the documents and the statements of witnesses, produced by the Investigating Agency. CBI Vs. Phool Singh (CC No. 37/2008) Page 111 of 114 Special Judge, CBI­01, Central, Delhi He has categorically stated that he signed the sanction order, being the competent conveying authority, under the Business Conduct Rules.

98. Perusal of the sanction order Ex.PW.9/H, dated 15.02.2000 also indicates that the entire details of the case and the evidence against accused Phool Singh has been narrated therein and it has been specifically mentioned that the President of India, being the authority competent to remove Phool Singh, Executive Engineer, from the office, after fully and carefully examining the material, including the statements of the witnesses recorded by the Investigating Agency, under the provisions of Section 161 of the Cr.P.C., placed before him, in regard to the allegations and the circumstances of the case, has considered that accused Phool Singh, the then Executive Engineer has committed the offence and he should be prosecuted in the court of law, for the said offences. The details mentioned in the sanction order dated 15.02.2000 Ex.PW.9/H clearly indicate that the entire material, CBI Vs. Phool Singh (CC No. 37/2008) Page 112 of 114 Special Judge, CBI­01, Central, Delhi which was collected by the Investigating Agency, during the investigations, was placed before the competent authority, for his perusal. Therefore, in the considered opinion of this court, the sanction order Ex.PW.9/H, which was conveyed by PW­10 Sh. Munish Girdhar, on behalf of the President of India, cannot be said to be an invalid or illegal sanction order.

99. In view of the above discussions, I am of the considered opinion that the prosecution has successfully proved its case, against all the accused persons, beyond a shadow of doubt, for the offences punishable under Section 120­B read with Section 420, 477­A, 511 r/w 420 IPC & Section 13(2) read with Section 13(1) (d)(iii) of The Prevention of Corruption Act, 1988. The prosecution has also successfully proved its case against accused A.R.Bhati, J.E. & accused Phool Singh, E.E., beyond a shadow of doubt, for the substantive offences punishable under Sections 420, 477­A & Section 511 read with Section 420 IPC and the offence punishable under Section 13(2), read with CBI Vs. Phool Singh (CC No. 37/2008) Page 113 of 114 Special Judge, CBI­01, Central, Delhi Section 13 (1)(d)(iii) of The Prevention of Corruption Act, 1988. The prosecution has also successfully proved its case, beyond a shadow of doubt, against the accused Sanjay Kumar Malhotra, for the substantive offences punishable under Section 420, 477­A and Section 511 read with Section 420 IPC. However, the prosecution has failed to prove its case, against any of the accused persons, for the offence punishable under Section 409 IPC.

All the accused are accordingly held guilty and convicted for the offences, proved against them.

It is ordered accordingly.

Announced in open Court on 13 day of May, 2016 th BRIJESH KUMAR GARG Special Judge:CBI­01 Central District. Delhi CBI Vs. Phool Singh (CC No. 37/2008) Page 114 of 114 Special Judge, CBI­01, Central, Delhi