Delhi District Court
Central Bureau Of Investigation vs (1) Anil Kumar Tyagi on 18 January, 2016
1
IN THE COURT OF SH. GURDEEP SINGH, SPECIAL JUDGE (PC ACT),
CBI-05, NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
CC No. 01/15
Unique Case ID No. 02403R0013442015
Central Bureau of Investigation
Versus
(1) Anil Kumar Tyagi
S/o Sh. Chandra Kiran
Junior Engineer
Delhi Jal Board, South-1, Saket, New Delhi
R/o House No.40, Village Chhatarpur
New Delhi.
(2) B. Jaypal Reddy
S/o Sh. Penta Reddy
Proprietor of M/s Sri Raghavendra Borewells
R/o : J-3/145, DDA Flats, Kalkaji, New Delhi-110019
Permanent Add.: 1-7-102/61-62 Sai Enclave, Habsi Guda
Hyderabad-500000, A.P.
(3) M/s Sri Raghavendra Borewells
Through its Proprietor Sh. B. Jaypal Reddy s/o Sh. Penta Reddy
R/o : J-3/145, DDA Flats, Kalkaji, New Delhi-110019
Permanent Add.: 1-7-102/61-62 Sai Enclave, Habsi Guda
Hyderabad-500000, A.P.
....Accused
RC No. : DAI 2011-A-0031/CBI/ACB/Delhi
U/s : 120B r/w Sec. 420/471 IPC and
Sec. 13(2) r/w 13(1) (d) of PC Act, 1988 and
substantive offence thereof.
Date of Institution : 23.12.2014
Arguments concluded on : 12.01.2016
Date of Decision : 18.01.2016
CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 1 of 62
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Appearances:
Sh. K. P. Singh, Ld. PP for CBI
Sh. Arun Satija, Ld. Counsel on behalf of A-1 and Sh. Rajeev Sharma, Ld.
Counsel for A-2 and A-3
JUDGMENT
1) Accused Anil Kumar Tyagi, Junior Engineer, Delhi Jal Board, public servant, accused B. Jaypal Reddy, Private Person Contractor and the firm M/s Sri Raghavendra Borewells through its proprietor accused B. Jaypal Reddy were sent up by Central Bureau of Investigation (CBI) to stand trial for offences punishable under S. 120B r/w Sec. 420 and 471 IPC and Sec. 13(2) r/w 13(1) (d) of PC Act, 1988 and alongwith substantive offences thereof.
2) The case of the prosecution in brief is that Contract Agreement (CA) No.60/2007-08 was entered into between the accused B. Jaypal Reddy being sole proprietor of M/s Raghavendra Borewells (A2 and A-3) and the DJB for reboring of two numbers of tubewells, first at in R/S at Jonapur Village near Harijan Basti, which later on shifted to Hargovind Enclave, and second at Booster site Panchayat Ghar. As per terms and conditions of the contract regarding bill of quantity, it provided for "providing 'Johnson' make all welded low carbon galvanized (LCG) cage type V wire would screen for size 150 mm having slot opening 0.75 mm thickness 7.0 mm tensile load 10 ton od 167 mm percentage open are 25% as per IS 8110-2000. Screen will be of continuous trapezoidal wise spirally would around fabricated cage........" The day to day progress of work at the site was entered in the measurement book by JE accused Anil Kumar Tyagi who was responsible for 100% test check of the work. As per entry in CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 2 of 62 3 measurement book dated 5.7.2007 with respect to borewell near Panchayat Ghar Jonapur, it mentions 'providing of 150 mm Jhonson pipe' and quantity is written as 75 meters. Thereafter bill alongwith completion statement which is to be prepared by JE and signed by AE and EE alongwith starta chart showing placing of Johnson pipe and other pipe at the relevant strata chart alongwith invoice of purchase of quantity of pipe is submitted by contractor and on the basis of the same payment was released. Subsequently the matter was investigated, the site was got inspected through expert who vide his report in respect of Booster, Panchayat Ghar, Jonapur Village stated that "depth of the well was seen through borehole camera as 148 meter, Top 82 m of the well is covered with 200 mm dia blank pipe followed by approx. 13 mtr. MS slotted pipe and 6 mtr blank pipe. Well diameter reduced to 150 mtr at about 100 mtr and from there about 40 mtr heavily damaged MS slotted pipe is seen." Meaning thereby, this MS slotted pipe is used against 75 mtr length of Johnson Pipe, which was found heavily damaged, and thereby Johnson pipe was not used as per contract agreement and for which money was charged, thereby cheating the department. Besides, Sh. Kamal Agarwal, Managing Director of M/s Bharti Waters (P) Ltd., sole authorized distributor of strainer filter pipe make Johnson in Delhi, who maintains the regular ledger account of M/s Raghavendra Borewells (A-3) stated that he had not sold Johnson pipe to B. Jaypal Reddy, Proprietor of M/s Raghavendra Borewells through invoice of purchase of Johnson Pipe, photocopy of which has been placed on record while claiming the bill and in fact had sold vide concerned invoice to Executive Engineer, Punjab Mandi Board, Ludhiana.
CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 3 of 62 43) It is alleged that Sh. Anil Kumar Tyagi, JE, who was responsible for 100% checking by abusing his position as public servant in criminal conspiracy with accused B. Jaypal Reddy, Proprietor of M/s Raghavendra Borewells had made false entries in the MB No.14508 showing the use of 75 mtrs Johnson Pipe and he thereby facilitated the contractor to obtain wrongful gain by causing the corresponding wrongful loss to the DJB. The payment was made to the contractor on the certification of JE and AE causing undue pecuniary advantage to the contractor and corresponding loss to the government exchequer to the tune of Rs.1,81,128/-.
4) However, it is stated that no evidence has come forth against Sh. Anil Kumar Sharma, EE, DJB since he has not given the test check report in respect of Johnson pipe. Similarly no case is made out against the concerned ZE Sh. Ghanshyam and AE Sh. A. P. Garg since none of them certified the entry in MB pertaining to lowering of tube well assembly in this case. Sanction for prosecution u/s 19 of PC Act, 1988 has been accorded by the competent authority against accused Anil Kumar Tyagi, the then JE, DJB.
5) On the above allegations, after completion of investigation, accused persons were chargesheeted by the CBI.
6) My Learned Predecessor, after taking cognizance, summoned the accused persons vide order 03.01.2015 and copies were supplied in compliance of 207 Cr.PC.
7) After finding prima facie case, vide order on charge dated 04.03.2015, my Learned Predecessor charged all accused persons for offences punishable under S. 120-B r/w Section 420/471 and 477-A IPC and CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 4 of 62 5 Sec. 13(2) r/w 13(1)(d)(iii) PC Act and accused A-1 Anil Kumar Tyagi for an offence punishable under S. 13(2) r/w 13(1)(d)(iii) PC Act 1988 and Sec. 477 A IPC and Section 120 B IPC and A2 B. Jaypal Reddy and A3 M/s Raghavendra Borewells through its proprietor B. Jaypal Reddy for offences punishable under S. 420/471 IPC and substantive offence under S. 120 B IPC. Accordingly, charges were framed separately, to which accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
8) Prosecution in support of their case examined as many as 14 witnesses, which can be categorized as follows:-
A. Formal Witnesses to prove the sanction to prosecute public servants and bank statement of M/s Sri Raghavendra Borewells:- The prosecution examined following witnesses :-
(i) PW-2 Sh. Anil Kumar Ahuja, Special Assistant, Corporation Bank is witness from whom documents regarding statement of account of M/s Sri Raghvendra Borewells for the financial period from 2006 to 2010 [Ex.PW-13/G (Colly)], account opening form (Ex.PW-13/H) and certificate under Bankers' Books Evidence Act (Ex.PW-13/F) were seized by CBI through seizure memo Ex.PW-13/E.
(ii) PW-5 Dr. Jayadev Sarangi, IAS, Member (Administration), Delhi Jal Board proved sanction for prosecution of accused Anil Kumar Tyagi as Ex.PW-1/B.
(iii) PW-6 Sh. Vivekanand Badoni, UDC DJB is the witness who identified signatures of Sh. Anil Sharma, EE, South-I and Sh.CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 5 of 62 6
Ramesh Kumar, OS, South-I and proved copy of letter dated 02.11.2012 as Ex.PW-6/A, posting details (D-20) as Ex.PW-6/B and letter dated 11.12.2012 as Ex.PW-6/C. B. Expert witnesses with respect to site inspection and conducting test regarding use of 'Johnson' make pipe in borewells :-
(i) PW-9 Sh. Jyothi Kumar Nalli, Scientist-C, Central Ground Water Board is witness of site inspection of borewells by Dr. Reddy of NGRI, Hydrabad conducted on various dates. In addition to other memos, he proved site inspection memo dated 28.02.2013 as Ex.PW-9/A. He is witness to inspection of borewell at Hargovind Enclave. (However, he is not relevant for this case as he was not present at the inspection of site at Panchayat Ghar, Jonapur Village.)
(ii) PW-11 Sh. Y. B. Kaushik, Scientist 'D' in Central Ground Water Board is also witness of site inspections of various tubewells on various dates conducted by Dr. D. V. Reddy using borehole camera. In addition to other memos, he proved site inspection memo dated 27.6.2012 as Ex.PW-11/A, sketch of site as Ex.PW-11/B and copy of site inspection memo dated 27.06.2012 as Ex.PW-11/C and copy of sketch as Ex.PW-11/D.
(iii) PW-12 Dr. D. V. Reddy, Senior Principal Scientist, National Geographical Research Institution, Hyderabad is witness who examined the borewells using borehole camera in South Delhi in particular to identify casing in borewells drilled by DJB at the request of CBI. In addition to other, he proved copy of report 27.11.2012 (D-23) as Ex.PW-12/A, and report dated 18.11.2013 CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 6 of 62 7 Ex.PW-12/B (colly) not relevant for present case.
C. Witnesses to prove standard procedure adopted in Delhi Jal Board and witnesses who were dealing with the matter at the relevant time:-
(i) PW-03 Ms. Lekha Pawar, Head Draftsman (It should be Draftswoman) in the office of Superintending Engineer, DJB and at the relevant time she was Draftswoman (sic) Grade-I in the office of EE. She proved file of re-boring of tubewells in CA No.60/2007-08 as Ex.PW-3/A (D-11) collectively, estimate as Ex.PW-3/B, completion report dated 05.11.2007 (D-9) as Ex.PW-3/C, and measurement book no.14508 (D-12) as Ex.PW-
3/D Collectively.
(ii) PW-04 Sh. Satya Prakash, Senior Accounts Officer, DJB who during the relevant period was Accountant in the concerned division. He also deposed regarding the procedures adopted and in addition to other, he proved final bill as Ex.PW-4/A, copy of invoice no.BW/171-2007-08 dated 30.07.2007 of Bharti Waters Pvt. Ltd. as Ex.PW-4/B and test check report as Ex.PW-4/C.
(iii) PW-9 Shiv Kumar Bhardwaj, Superintending Engineer, DJB who deposed regarding procedures adopted by DJB in case of boring.
D. Independent public witnesses regarding issuance of bill/invoices:-
(i) PW-1 Sh. Sukhchain Singh, Sub-Divisional Officer, Executive Engineer, Punjab Mandi Board, Ludhiana, Punjab is witness of purchase of one micro processor based water disinfection equipment from M/s Bharti Water Pvt. Ltd. He proved certified copy of letter dated 11.4.2012 as Ex.PW-1/A, attested copy CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 7 of 62 8 Supply/ Purchase No.4294 order dated 08.10.2007 as Ex.PW-
1/B, certified copy of Invoice No. BW/171-2007-08 dated 13.10.2007 as Ex.PW-1/C, certified copy of pages of Measurement Book No.628 as Ex.PW-1/D, attested copy of Supply/Purchase No.2838 order dated 14.6.2007 as Ex.PW-1/E, certified copy of Invoice No. BW/245-2006-07 dated 15.6.2007 as Ex.PW-1/F, certified copy of pages of Measurement Book No.140 as Ex.PW-1/G, certified copy of contractor ledger pertaining to M/s Bharti Waters Pvt. Ltd as Ex.PW-1/H.
(ii) PW-8 Sh. Kamal Kumar Aggarwal, Managing Director, Bharti Waters Pvt. Ltd., sole authorized distributor of strainer filter pipe make Johnson in Delhi. He proved production-cum-seizure memo dated 07.02.2012 (D-2) as Ex.PW-8/A, photocopy of account ledger of his company as Ex.PW-8/B (Colly) (D-3), photocopy of Invoice No.BW/69/2006-07 dated 23.5.2006 as Ex.PW-8/C, photocopy of invoice No.BW/162/2007-08 (D-5) as Ex.PW-8/D, photocopy of Invoice No.BW/171/2007-08 dated 13.10.2007 (D-6) as Ex.PW-8/E. E. Witnesses who joined the Investigating and conducted the investigation and Investigating Officer (IO) :-
(i) PW-7 Vikas Rathi, JE (Civil), Vigilance Department, DJB is the witness of site inspection alongwith CBI team and handing over of documents to CBI relating to this case and its seizure. He proved copy of Production-cum-Receipt Memos dated 28.11.2011 (D-10) as Ex.PW-7/A, copy of production memo dated 13.8.2012 (D-15) as Ex.PW-7/B, copies of instructional order, circulars and guidelines from Ex.PW-7/C to Ex.PW-7/K. CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 8 of 62 9 He also proved site identification memos of various sites conducted on various dates as Ex.PW-7/L, Ex.PW-7/N, Ex.PW-
7/P, Ex.PW-7/R, and sketch memos as Ex.PW-7/M, Ex.PW-7/O, Ex.PW-7/Q, Ex.PW-7/S. He also proved Production-cum- Seizure Memo Ex.PW-7/T (D-22) and circular as Ex.PW-7/T.
(ii) PW-13 Inspector Pramod Kumar, CBI, New Delhi is the investigating officer (IO). He in addition to other documents, proved copy of FIR as Ex.PW-13/A, production-cum-seizure memo Ex.PW-13/B dated 23.11.2011, production-cum-seizure memo Ex.PW-13/C, photocopy of invoice bill Ex.PW-13/D, production-cum-seizure memo dated 24.07.2012 (D-14) Ex.PW-13/E, copy of certificate u/s Bankers' Books Evidence Act as Ex.PW-13/F, copy of statements of account of M/s Raghavendra Borewells (D-14) as Ex.PW-13/G and account opening form as Ex.PW-13/H and letter dated 15.5.2012 (D-17) as Ex.PW-13/J, forwarding letter of EE alongwith bio-data of accused Anil Kumar Tyagi as Ex.PW-13/K (Colly).
(iii) PW-14 Inspector Kailash Sahu, who conducted preliminary inquiry and thereafter recommended registration of case against accused persons and witness of seizure and handing over. In addition to other documents/memos, he proved complete file of CA File No.60/2007-08 (D-8) as Ex.PW-14/A, photocopy of Production-cum-Receipt Memo dated 25.11.2011(D-10) as Ex.PW-14/B, photocopy of ledger account of M/s Bharti Waters Pvt. Ltd. as Ex.PW-14/C (Colly), photocopy of Production- cum-Receipt Memo dated 26.11.2011 (D-10) as Ex.PW-14/D, photocopies of invoices as Ex.PW-14/E (Colly).
CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 9 of 62 10STATEMENT OF ACCUSED
9) After conclusion of prosecution evidence, the statement of accused persons recorded u/s 313 Cr.PC on 21.12.2015 wherein accused persons denied the incriminating prosecution evidence and claimed to be innocent. Written statement on behalf of A-2 and A-3 under S.313(5) Cr.PC was also filed.
(i.) Accused Anil Kumar Tyagi, JE admitted procedures. He stated that all entires made by him in the present measurement book are correct and same were entered simultaneously when the work was in progress and after execution of the work and the same were test checked and certified by AE and EE. The ZE had test checked the use of Johnson Pipe in measurement book and further in the present tubewell, lowering of "Johnson Pipe"
was done in the presence of ZE and EE. Entires in measurement book were signed by AE also simultaneously when work is being done and the same was cross-checked by EE and AE and after fully satisfying themselves, they signed the certificate that work was done as per specification. He stated that 'Johnson pipe' was used and lowered in the tubewell which was confirmed by Sh. Ghanshyam ZE who had signed the same at the spot. He stated that the completion certificate is signed by EE but the invoice Ex.PW-4/B was not submitted to him and was never processed by him for release of payment to contractor. There is mandatory procedure to sign the bill/invoice by all the officials i.e. JE, AE and EE and he had submitted all the original documents duly signed by him, AE and EE and further stated that in fact, in this case, Ex.PW-4/B was procured CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 10 of 62 11 by Sh. Kamal Kumar Aggarwal (PW-8) with the connivance and pressure of CBI to falsely implicate him and inserted by CBI with connivance of other witnesses. As per provisions payment was released after satisfaction of the work done and only after verifying of the documents/bills by the accounts department. He further stated that the documents seized from Bharti Waters Pvt. Ltd. are manipulated, fabricated in connivance with Sh. K. K. Aggarwal (PW-8) and the person who handed over the documents to Kailash Sahu was not examined by Inspector Kailash Sahu or IO Inspector Pramod Kumar and these documents were not verified by any of them from any department i.e. Income Tax, Sale Tax/ VAT/ Stock Position regarding genuineness and authenticity of the same. As regard sanction, he stated that the sanction accorded against him was in a mechanical manner and without application of mind and without going through the entire record and the same has been accorded under pressure of CBI. This is a false case and he has been falsely implicated in this politically motivated case. He further stated that he is innocent and had got executed the work honestly as per bill of quantity and specification and entered the items in measurement book as per actual execution of work at the site and the same was checked (test checked) by AE and EE. The same was certified in the certificate given at the end of abstract in measurement book duly signed by JE, AE and EE. Johnson pipe was brought at the site and also lowered in the tubewell in the presence of AE and EE as per item no.8 page no.60 of measurement book. Even after the lapse of significant period of 7-8 years, the borewell is still functioning and giving CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 11 of 62 12 sufficient water. There is no complaint. The entries entered by him in the record are true and correct. Moreover, the after execution of work, the payment was also released to the contractor by Accounts Department after verifying the bills/invoice etc. However, he chose not to lead evidence in his defence.
(ii.) Accused B. Jaypal Reddy, Proprietor of M/s Raghavendra Borewells in his statement recorded u/s 313 Cr.PC, admitted that work order was given to his firm. Regarding fake bill, he stated that it was procured by PW-8 (Sh. Kamal Aggarwal) in connivance and under pressure of CBI to falsely implicate him. The bill was inserted by CBI in connivance with PW-8 and other witneeses. He stated that he had purchased Johnson pipe from Bharti Waters after making payment in cash and the invoice/bill was issued by the employee of the said company in the office of the company and the same bill was submitted in the office of DJB and after completion of work, the officials of DJB as well as Accounts Section after duly verifying the said original bill made the payment to him. He stated that he is innocent and falsely implicated in this case. Further, it is submitted that as per the terms and conditions of the contract, he was supposed to use slotted pipe of Johnson make in the tubewells. After the work was awarded to him, he approached M/s Bharti Waters with whom he was having business relations for last good number of years for buying the slotted pipes of Johnson make and bought the same after making the payment in cash to the said company for executing the contract. The invoice CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 12 of 62 13 for purchase of said goods was raised by one of the employee of the said company and said invoice was handed over to him and goods were delivered. Thereafter, he executed the work at site as per terms and conditions of the contract and never flouted the said terms and conditions during the execution of work till the completion of the work no objection was ever raised by the officials of DJB in as much as work was executed in the presence of officials of DJB and the same was duly recorded in the measurement books. After being fully satisfied, officials of DJB as well as Accounts Department, released payment due in my favour after due verification of the invoice / bill. Further, it is submitted that the work was executed by as per the terms and conditions of the contract to the satisfaction of the department concerned and the original invoice of Johnson pipe, the bill was submitted in the DJB office and after being duly satisfied the payment was released. There is no misappropriation, forgery committed by him and have been falsely implicated in the present case. However, he also chose not to lead evidence in his defence.
10) I have heard Sh. K. P. Singh, Ld. PP for CBI and Sh. Arun Satija, Ld. Counsel for A-1 Anil Kumar Tyagi and Sh. Rajeev Sharma, Ld. Counsel for B. Jaypal Reddy, Proprietor of M/s Raghavendra Borewells (A-2 and A-3). I have also gone through the record.
11) For the prosecution to succeed in proving their case against accused persons, they must prove following :-
(i) Sanction for the prosecution against public servant
(ii) There was conspiracy CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 13 of 62 14
(iii) Procedures followed in execution of work and procedures adopted in making payment
(iv) The pipe make 'Johnson' not used in borewells and false entries made in records
(v) submission of fake bill for the payment and the payment against them received by the contractor SANCTION
12) Firstly, I shall deal with the issue of sanction for prosecution of government servants. PW-5 Dr. Jayadev Sarangi, IAS, Member (Administration) Delhi Jal Board was examined, who deposed that he is appointing as well as removing authority for J.E.s in Delhi Jal Board and in these cases, he had given sanction for prosecution and proved sanction Ex.PW-5/A. He stated that in the present case, he had received investigation report, expert report, statement of witnesses and CD containing report of the expert and after going through the record, he had applied his own mind and after satisfaction he had accorded sanction in the present case against the accused (Anil Kumar Tyagi).
In his cross-examination, he was questioned regarding his knowledge of installation of borewell, rules and regulations of DJB, CPWD Manual and regarding having seen contract in original. He denied the suggestion that he had mechanically granted sanction without application of mind.
13) The hon'ble Supreme Court of India has culled out the principles on the subject, in case titled as State of Maharashtra Through CBI v. Mahesh G. Jain, (2013) 8 SCC 119, as follows:-
(a) It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 14 of 62 15 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 it 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 its 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 sanction.
(g) The order of sanction is a pre-requisite 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 a hyper-technical approach to test its validity.
14) It is also worthwhile to note the observation of the Hon'ble Supreme Court of India as under:-
17. At this stage, we think it apposite to state that while sanctity attached to an order of sanction should never be forgotten but simultaneously the rampant corruption in society has to be kept in view. It has come to the notice of this Court how adjournments are sought in a maladroit manner to linger the trial and how at every stage ingenious efforts are made to assail every interim order. It is the duty of the court that the matters are appropriately dealt with on proper understanding of law of the land. Minor irregularities or technicalities are not to be given Everestine status. It should be borne in mind that historically corruption is a disquiet disease for healthy governance. It has the potentiality to stifle the progress of a civilized society. It ushers in an atmosphere of distrust.CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 15 of 62 16
Corruption fundamentally is perversion and infectious and an individual perversity can become a social evil. We have said so as we are of the convinced view that in these kind of matters there has to be reflection of promptitude, abhorrence for procrastination, real understanding of the law and to further remain alive to differentiate between hyper-technical contentions and the acceptable legal proponements.
15) The sanction order finds mentioned RC number, offences and name of accused Anil Kumar Tyagi and allegations against them which show that the sanctioning authority was having all the material before him and he applied his mind while granting sanction. He was cross- examined with respect to his knowledge of technical work but no question is asked about the material before him. The sanctioning authority is not required to be expert in technical work. Accordingly, I am of the opinion that the same is properly accorded sanction for prosecution of public servant.
Charge of Conspiracy
16) Accused persons have been charged for having conspired to commit offences. Section 120 A IPC defines criminal conspiracy as under :
120 A - Definition of Criminal Conspiracy - 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 as agreement is designated a criminal conspiracy Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
17) The essence of conspiracy is meeting of mind to commit an act. It is true that there cannot be direct evidence of the same but same can be inferred from the facts and circumstances.
CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 16 of 62 1718) The charges against accused persons are for offences punishable under S.120-B read with S. 420/471 and 477-A IPC and Sec. 13(2) read with 13(1)(d)(iii) PC Act of 1988.
19) Charge against A-1 Anil Kumar Tyagi is that he had made false entry in the Measurement Book (MB) regarding use of 'Johnson' Pipe as per the strata chart and made false entries in the completion bill leading to release of payment to the contractor causing wrongful loss to the government and corresponding gain to the contractor and thus by corrupt or illegal means abused their official position.
20) The charge against B. Jaypal Reddy, Proprietor, M/s Raghavendra Borewells (A-2 and A-3) is that he had filed fake purchase vouchers to falsely claim the payment.
21) There is no evidence on record which shows that there was meeting of mind between the accused or there was agreement to commit the offence. Therefore, the charge u/s 120-B IPC does not stand.
22) The other aspect to be dealt with at the outset is the charge against M/s Sri Raghavendra Borewells. Admittedly, it is neither an incorporated company nor a registered society having distinct legal entity. PW-13 Inspector Pramod Kumar, IO admitted in his cross-examination that M/s Raghavendra Borewells is neither incorporated company nor registered society and it is a proprietorship firm. Therefore, it cannot be separately charged. The same is therefore merged with B. Jaypal Reddy.
STANDARD PROCEDURE
23) To prove the procedures, the prosecution examined PW-3 Ms. Lekha Pawar, Head Draftswoman; PW-4 Sh. Satya Prakash, Accountant, and CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 17 of 62 18 PW-10 Sh. Shiv Kumar Bhardwaj, Superintending Engineer, DJB.
24) PW-10 Sh. Shiv Kumar Bhardwaj, Superintending Engineer, DJB testified that he is working as S.E. since July, 2010 and during the year 2006, decision for boring of tubewell used to be taken on recommendation of Junior Engineer (JE) and AE (Assistant Engineer) by the X'EN (Executive Engineer), S.E. and Chief Engineer based on short supply of the water as well as non-availability of water pipe lines in the area. In the year 2006, the permission for fresh borewell used to be given by Central Ground Water Board and later on, the permission for boring of fresh tubewell used to be given by District Advisory Committee under Chairmanship of Deputy Commissioner of the concerned district.
25) However, re-boring in place of old defunct tubewell was permissible by Delhi Jal Board with the permission from Chief Engineer of that area. Further deposed that the boring of the tubewell involves, boring on the ground upto the depth specified as per the strata chart in loose soil as well as rocky strata. After boring is completed, the tubewell pipe assembly is lowered in the tubewell. First of all, the lower most portion of pipe assembly i.e. a blank cap or "MS Screw Cap" is fitted with "MS Steel Pipe" and lowered at the bottom of borehole. Thereafter, Slotted/Strainer pipe is welded and further lowered in the said borehole. The slotted pipe is utilized to facilitate the inflow of water from the surrounding underground water sources into the well. Above the level of groundwater, MS Steel Pipe is welded with slotted pipe and further lowered into the bore well. This MS Steel Pipe is fitted upto to the ground level and at sometime slightly above the ground level as per requirement. The proportion of Mild Steel (MS) CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 18 of 62 19 Blank/Blind Pipe and slotted pipe varies from borewell to borewell depending upon the underground strata of the soil and availability of underground water level. In rocky strata, where the depth of bore is very deep, boring and lowering is done in two stages.
26) When the tubewell boring is started at site, soil strata and water samples are collected. The pipe is brought by the contractor at site which is checked by field engineers i.e. J.E./ A.E./ EE. If it is as per specifications mentioned in the Bill of Quantity (BoQ), the lowering of pipe is done. After lowering of pipe i.e. slotted pipe and blank/blind pipe, pea gravels are filled around the pipe and thereafter development of bore is done. During execution of work, normally physical test check of 100% is to be done by J.E., 50% by Assistant Engineer and 10% by EE unless otherwise specifically mentioned in the Work Order/ Contract. However, it is pertinent to mention here that J.E. is required to conduct 100% Physical Test Check in every case.
27) The measurements are taken and entered in Measurement Book, which is signed by the Junior Engineer and 50% and 10% test checks are also signed by the A.E. and EE respectively. Bill and completion Report is prepared on the basis of entries in the Measurement Book (MB) made by the J.E. which is signed by A.E., EE and the contractor. Completion Report is approved as per delegation of powers by the EE or S.E. Normally, Contractor has to submit Purchase Vouchers in original which is signed by J.E. and A.E., who record the quantities of materials utilized in that work. In case, if a contractor purchase larger quantities of materials for utilization in different works, he may submit a photocopy of the purchase voucher. The Contractor has to submit the Strata Chart which is signed by J.E., A.E. and EE. In Strata CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 19 of 62 20 Chart quantity of pipe used and location of the blind/blank pipe and slotted pipe are mentioned. Scrutiny of bill and documents is done by Accounts Section.
28) There is a check list proforma circulated by Director, Finance and Administration vide letter no. DJB/Director F & A/2006/60388 dated 08.6.2006 in this regard and proved Instructional Order issued by Director F&A regarding scrutiny of bill by Accounts/Finance, use of Johnson Screen pipe for better well efficiency and circular regarding test checking of measurement by JE/AE/EE.
29) Since no irregularity is found in the tender process, therefore, evidence of the witnesses in that respect is unnecessary and is not being mentioned.
30) PW-3 Ms Lekha Pawar, was posted as Draftsman Grade-I in the Office of E.E. (South-I) since February, 2003 to January, 2012. She corroborated PW-10 Sh. Shiv Kumar Bhardwaj regarding during the execution of work, JE makes entries in measurement book periodically and after completion of the work the JE prepares the completion report and an abstract in the MB Book which is duly signed by all the concerned engineers.
31) She stated that she had dealt with file regarding CA No.60/2007-08 and proved same as Ex.PW-3/A and estimates of work prepared by accused Anil Kumar Tyagi JE as Ex.PW-3/B and checking of estimates by Smt. Usha Arora, Draftswoman, Grade-III. Recommendation of estimate to XEN by ZE. Then the estimate was marked to her for checking on 17.5.2007 and then the estimate was checked by Smt. Usha Arora and was counter signed by her (witness).
CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 20 of 62 21The estimate was sanctioned by Sh. Anil Kumar, EE. After seeing page no. 36/C of Ex.PW3/A, she stated that the Work Order was given to M/s. Raghvendra Borewell on 27.6.2007. She also proved completion report dated 05.11.2007 (D-9) as Ex.PW-3/C, which bears signatures of accused Sh. Anil Tyagi, JE, Sh. A.P. Garg, ZE and Sh. Anil Kumar Sharma, EE. As per the completion statement Ex. PW3/C, total 145 meters length of 150 MM Diameter Johnson Pipe of total value of Rs. 2,42,005/- was actually used. She also proved Measurement Book No.14508 (D-12) as Ex. PW3/D collectively. As per pages no.59 to 65 of Measurement Book, there is an entry regarding the above mentioned work order and as per page no. 60 at serial no.8, there is entry of 75 meters of Johnson pipes. She stated that the said entry is made by accused Anil Kumar Tyagi, JE and is checked by Sh. Ghanshyam, ZE and bears their signature. She stated that on this entry, there is no signatures of EE. After seeing page no. 61 at serial no. 8, she stated that there is entry of 70 meters of Johnson pipes and the said entry is made by Sh. Anil Kumar Tyagi, JE and is checked by Sh. A.P. Garg, AE and bear their signature.
32) PW-4 Sh. Satya Prakash testified that he remained Accountant in South Circle, DJB in the Office of SE South from April, 2006 to July, 2010. He also corroborated witnesses that after award of tender, the work is executed at site by the Technical Staff i.e. JE and ZE. They enter day to day work done in Measurement Book. After completion of work, a certificate is recorded that work has been completed as per specification and test check report as per CPWD Manual is given in Measurement Book and completion report of work is duly approved by the Competent Authority. JE prepares bill according to CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 21 of 62 22 Measurement Book and it is duly signed by JE, ZE and XEN and the contractor also. XEN submits the bill alongwith procurement/purchase voucher in support of work done by JE, AE at the site. The Junior Accountant check arithmetically the bill and if it is as per the completion report he/she records pay order and Junior Account himself sign the pay order and the EE also signs the pay order. In case the bills are neither original nor attested by JE/AE, then Junior Accountant demands the original invoice or the CA No. in which the original invoice is used and after going through that, Junior Accountant marks CA No./Work No. on the photostate copy of voucher and the complete bill including Measurement Book and agreement file was forwarded to Accountant for signing the pay order. The Accountant checks whether the amount mentioned on the pay order is as per the completion report or not. The Accountant also checks that the purchase vouchers are available in support of entries made in the completion report as well as in the Measurement Book or not. After satisfaction, the Accountant signs the pay order and thereafter, returned to EE for payment. The payment is disbursed by the EE and the Assistant Chief Accountant through EFT or cheques.
33) PW-4 further stated that CA File No. 60/2007-08 (D-11) Ex. PW3/A collectively was dealt by him and identified his signatures on page no. 40/C, vide this, he had marked the same file to EE after the concurrence of estimate. After seeing page no. 37/C, he states vide this, the file was finally accepted by Sh. Anil Sharma, EE for Rs. 9,42,078/- and bears signatures of Sh. Anil Sharma, EE. After seeing seen final bid (D-9), as per this bill the total bill was claimed for Rs. 8,33,719/- by M/s Raghavendra Borewells. He stated that the bill was CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 22 of 62 23 prepared by JE and signed by Sh. Anil Sharma, XEN at point A. He after seeing completion statement Ex.PW-3/C, which bears signatures of Sh. Anil Sharma, EE stated that by this completion Statement, one photocopy of invoice bearing no. BW/171-2007-08 dated 30.7.2007 (Ex.PW-4/B) of M/s Bharti Waters Pvt. Ltd issued in the name of M/s Shree Raghvendra Borewell for purchasing strainer filter in pipe form amounting to Rs. 3,07,008/- is placed. On this bill, CA No. 60(7/A) and work order no. 95 dated 27.6.2007 is mentioned. The copy of bill was not certified by any JE, AE and EE. He proved Test Check Report Ex.PW-4/C and stated that it bears signatures of Sh. Anil Sharma, EE and of concerned ZE at point B. He also proved pay order D-9 Ex.PW- 4/A and stated that it bears his signatures at point A and of Smt. Satya Dhingra, the then Junior Accountant (Since Expired) at point B and signatures of Sh. Anil Sharma, EE at point C. The payment was made through EFT No. 47 dated 08.11.2007 to concerned contractor by Accounts Department on the basis of completion certificate which contains the bill form.
34) PW-4 further stated that the Accounts Department only checks the quantity mentioned in the invoice from the completion certificate and voluntarily stated that "the verification is done by the Division Office". The photocopy of invoice or original invoice if available, is verified by the JE or the AE who also signs the same. The original bill may be available with JE, AE and X'EN who gets the work conducted. Before making the payment, the same is also verified from the Measurement Book which is duly certified regarding the completion of work by JE, AE and EE.
35) PW-4 further stated that when he signed the pay order the invoice Ex.
CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 23 of 62 24PW-4/B (D-9) was presented with the completion certificate. After seeing Measurement Book No. 14508 Ex. PW3/D collectively (D-12) page no. 59 to 65, he stated that the relevant entry is at page nos. 60 and 61 dated 05.7.2007 which is encircled at point C and C1 wherein it is mentioned "Providing 150 MM Johnson Pipes" After seeing completion statement Ex. PW3/C (D-9) page no. 7, wherein the entry of the said 150 MM Johnson Pipes is mentioned in encircled portion at point C. The completion statement is prepared by the JE, AE and EE and the Accounts department only cross-check. They also check the calculation in amount and the Junior Accountant reports regarding arithmetical checking. He after seeing Measurement Book Ex. PW3/D, page no. 65 (D-12) and stated that it is certified by JE Sh. Anil Kumar Tyagi (Accused) at point A and Sh. A.P. Garg, the then Zonal Engineer at point B and by Sh. Anil Sharma, the then EE at point C. The entry at point C at page no. 60 is not certified by X"EN Anil Sharma, however, it has been certified by accused Anil Kumar Tyagi, JE and Sh. Ghanshyam, ZE.
36) He further stated that there is circular/instructional order with respect to procurement of voucher passed by Delhi Jal Board dated 02.11.2004 which he has brought today and the same is photocopy of the original and proved same as Ex. PW-4/D. ARGUMENTS
37) It is submitted on behalf of accused Anil Kumar Tyagi, who is public servant, that the Executive Engineer (XEN) is Engineer-in-charge and borewell is hidden item and he is required 100% test check as per CPWD Manual and responsibility was common to Junior Engineer (JE) and EE, but JE has been singled out and made scapegoat to save CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 24 of 62 25 higher official. CPWD Manual Specification Vol. I, Ex.PW-10/DA-1A is cited where Engineer-in-charge is referred to as XEN who signs the contract on behalf of President. As per Ex.PW-10/DA-1B, EE must satisfy himself before passing a bill for payment, or before submitting to the Divisional Officer for payment and that the work or supply billed for has actually been carried out/completed. It is further submitted on behalf of accused persons that it is the responsibility of the XEN and the Account Department to verify the bill submitted and after being satisfied then only to release the payment. Further, it is submitted that it is admitted by the Account Officer that when the payment in this case was released everything was in order. Therefore, the documents placed on record are not the one which were submitted for payment.
38) Ld. PP for CBI submitted, it is the responsibility of JE to verify the goods used in the borewell and verify the purchase voucher before sending it to XEN for payment. The purchase voucher is placed in file which submitted by contractor and placed on file by accused Anil Kumar Tyagi, J.E.
39) PW-10 Sh. Shiv Kumar Bhardwaj in cross-examination admitted that DJB follows CPWD Manual, Specification, Circulars and Guidelines issued from time to time and voluntarily stated that DJB also follows Circulars and Guidelines issued by DJB in addition to CPWD Manual. The Circulars and Instruction issued from time to time by the Department are mandatory to be followed by officials. The Engineer- in-Charge means normally Executive Engineer (EE). The word 'Engineer-in-Charge' means who shall supervise and be incharge of work. The EE signs the contract regarding boring and re-boring of CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 25 of 62 26 borewell on behalf of DJB. The general conditions, special conditions, and bill of quantities, which are part of the contract, are binding upon both the parties signing the contract i.e. DJB and DJB Contractor.
40) PW-10 admitted that EE/AE/JE supervises the work of tubewell/borewell and conduct mandatory test check as per requirement. He also admitted that EE satisfies himself regarding the completion of the work based on 100% check by JE, 50% test check by AE and 10% by himself. The satisfaction of EE includes installation of tubewell assembly. He, however, stated that he is not sure whether the lowering of pipe in the presence of EE is mandatory. He admitted that 10% test check by EE is regarding the quality and quantity of the work. He voluntarily stated that 10% means the 10% cost of the entire work. He does not remember whether 10% test check by EE means 10% check of cost of the entire work, is mentioned in any circular or rule or manual. However, he stated that it is practice. He could not tell as to what portion of the entire work would constitute 10% of the cost of the entire work and could not admit or deny that the 10% test check has to be on each and every item of the entire work and voluntarily stated that it is not in his knowledge. However, he had no personal knowledge about present case.
41) PW-10 admitted that if EE satisfies with the execution of work by the contractor then only he will process the bill for the payment.
42) He admitted as per CPWD Manual Ex.PW-10/DA-1A that the Executive Engineer should test check 10% of the measurements recorded by his subordinates at least every alternate bill for works at his headquarter, and at least every third bill for works outside his headquarter. Measurements selected by EE should be independent of CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 26 of 62 27 measurements test checked by AE. However this will not apply to items, the measurement of which are checked 100% by AE. He also admitted Ex.PW-10/DA1-B. He, however, stated that he does not remember whether there is any circular which provides that hidden item shall be test checked by EE/AE/JE.
43) He also admitted that after completion of the work, the bill form, strata chart are signed by EE/AE/JE and the contractor. The completion report is prepared by JE and signed by AE and EE. He admitted that the purchase voucher in original is to be signed by the Contractor, JE, AE and EE which records the quantity utilized in that work normally. The progress of the work is mentioned in the Measurement Book (MB). JE makes the entries in respect of progress of work in the Measurement Book. He denied the suggestion that AE and EE also make entry in the Measurement Book, however, voluntarily stated that AE and EE mark the item test check. He admitted that after the completion of the work, JE makes the certificate which is to be signed by AE and EE.
44) In cross-examination on behalf of A-2 and A3, PW-10 admitted that the test check means checking of quality, quantity and dimensions (physical/execution of work). In the present case, the work has been carried out in supervision of all three engineers i.e. EE/AE/JE and he does not know whether in this case any action has been taken against AE/EE. He admitted that as per circular/guidelines of DJB, the Accounts Section has to release the payment after verification of the documents.
45) In cross-examination, PW-3 Ms. Lekha Pawar, Head Draftswoman, admitted that after completion report, file is marked to her through CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 27 of 62 28 executive engineer (EE) for its checking. She also stated that measurement book is signed by JE, AE and EE certifying that work has been done as per specifications and admitted that in the present case also the JE, AE and EE had duly certified on respective measurement book certifying that the work has been done as per the specifications and that finally the EE sends the documents for payment only after his satisfaction that the work has been done as per specifications. She admitted that all the three engineers i.e. JE, AE and EE sings the documents before sending it to the draft man which are relating to the draft man and that the documents i.e. measurement book, completion report, original purchase vouchers, strata chart, photocopy of degree of engineer of contractor estimate, test check also are the part of file which is received by the draft man.
46) She admitted that the completion report was prepared after seeing the record entry i.e. detail of measurement in the measurement book. She admitted that strata chart was also singed by JE, ZE and EE after going through the detail in the measurement book. The record entries are recorded simultaneously as the work progresses, in the measurement book. She admitted that both ZEs n Sh. A.P. Garg and Sh. Ghanshyam had signed record entry on measurement book. She could not tell whether all the entries are signed by EE. As far as, she remembers some of the entries are signed by EE.
47) She stated that she knows that as per PWD norms the work is test check by 100 percent JE and 50 percent by AE and 10 percent by EE but she can not say with the authority the same. She could not tell as to who prepares the test check report and on seeing documents Ex.PW4/C stated that test check report is prepared by AE and signed CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 28 of 62 29 by the EE Sh. Anil Kumar Sharma and AE Sh. A.P. Garg and admitted that in the test check report i.e. Ex.PW-4/C it is mentioned that Johnson pipe (145 metres) was used. The Strata Chart bears the signatures JE Mr. Anil Tyagi, EE Mr. Anil Kumar Sharma, and AE Mr. A.P. Garg which are exhibited Ex.PW3/D1-A1 and Ex.PW3/D2-A1 which bears signatures of the above said persons is at point A, B and C respectively. She stated that she did not know whether strata chart was prepared after going through the measurement book and admitted that documents Ex.PW3/C also bears the signatures of JE, EE and AE at point A, B and C. On page no. 59 in document D-12 Ex.PW3/D (Colly) the signatures of Mr. Ghanshyam appears at point A (AE) and signatures of Mr. Anil Kumar Sharma (EE) at point B.
48) IO Inspector Pramod Kumar admitted that bill form Ex.PW-4/A, completion report Ex.PW-3/C and test check report Ex.PW-4/C and strata chart Ex.PW-3/D1A and D2A bear signatures of JE, AE and EE and photocopy of invoice Ex.PW-4/B does not bear signature of JE, AE and EE. MB Book Ex.PW-3/D (Colly) bears signature of Sh. Ghanshyam the then EE and of accused Anil Kumar Tyagi, JE. In this case ZE was not made accused since on measurement book the signature of ZE Sh. Ghanshyam was appearing whereas in test check report and completion report the signature of other ZE Sh. A. P. Garg was appearing, since, it was difficult to fix the responsibility, therefore the ZE was not made accused.
CONCLUSION
49) PW-10 has stated that during the execution of work, normally physical test check of 100% is to be done by J.E., 50% by Assistant Engineer and 10% by EE unless otherwise specifically mentioned in the Work CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 29 of 62 30 Order/ Contract. However, he stated that J.E. is required to conduct 100% Physical Test Check in every case. The measurements are taken and entered by JE in Measurement Book, and 50% and 10% test checks are also signed by the A.E. and EE respectively. Normally, Contractor has to submit Purchase Vouchers in original which is signed by J.E. and A.E., who records the quantities of materials utilized in that work. PW Smt. Lekha Pawar proved signature on the completion report of the accused Anil Kumar Tyagi and of Sh. A. P. Garg, ZE and of Sh. Anil Sharma, EE wherein it is mentioned that total 145 mtrs. Length of 150 mm diameter Johnson pipe was actually used. She also proved measurement book Ex.PW-3/D, wherein page no.60 at serial no.8, there is entry of 75 meters of Johnson pipe, made by accused Anil Kumar Tyagi and checked by Sh. Ghanshayam ZE and bear their signatures. It is pertinent to mention that present contract pertains to reboring of two borewells; one at Booster Panchayat Ghar, Jonapur Village and other at Harijan Basti, Jonapur Village which was later on shifted to Hargovind Enclave and in both borewells, Johnson pipe of 75 meters and 70 meters respectively are shown to have been used and the entry signed by accused Anil Kumar Tyagi, and checked by Sh. Ghanshayam, ZE. PW Sh. Satya Prakash also stated that completion statement bears signatures of EE and test check report bears signature of Sh. Anil Sharma, EE and concerned ZE. He also proved pay order and stated that the payment was made through EFT dated 08.11.2007 to concerned contractor by account department on the basis of completion certificate which contain the bill form. He also proved entry in measurement book regarding using of Johnson pipe and completion statement, instructional order Ex.PW- 4/D which was however objected to by Ld. Counsel during cross-
CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 30 of 62 31examination as it was photocopy. However, the same was produced by the official of DJB and since it is public document and came from official of DJB, the same is relevant and accordingly proved. Now the question arises as to whether it is JE who is responsible for 100% test check at the site. As per CPWD manual, which was shown to witness Sh. Shiv Kumar Bhardwaj and it is proved that Engineer-in-charge is Executive Engineer (EE) who is required to be satisfied himself before making of the payment. Engineer-in-charge is the supervisory officer and junior engineer and zonal engineer work for him. Therefore it cannot be said that it is only engineer-in-charge alone who is required to do 100% test check. Hence it is responsibility of the site engineer i.e. JE to get work completed 100% at the site. Instructional Order Ex.PW-4/D is dated 2.11.2004, which is direction to the executive engineer to obtain original procurement voucher from the contractor. As per Ex.PW-10/DA1B, it is pointed out by Ld. Counsel for accused that in respect of hidden items, it provides that hidden measurements shall be test checked 100% by JE/AE & at least 10% of the hidden measurements are to be test checked by EE. In the present case, there is no test check by EE, however, there is test checked by ZE, who has test checked johnson pipe having been brought at the site. In the test check report Ex.PW-4/C, 145 meters Johnson pipe at the site has been test checked by ZE. The arguments of learned counsel on behalf of accused does not hold good as according to CPWD Manual also it is the duty of test check 100% by JE and AE and 10% by EE. Merely because EE has not done 10% test check of the work, which he was required to test check, cannot be absolved liability of junior engineer who is liable for 100% test check. Second aspect of the matter is with respect to instructional order Ex.PW-10/DA-1B. The executive CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 31 of 62 32 engineer is required to satisfy himself before passing the bill. All the witnesses are consistent on this aspect that the payment to the contractor can only be released after EE satisfies himself that the work undertaken at the site satisfactorily. Therefore it is established on record that the JE is responsible for 100% test check at the site. However, in the present case, it is established on record that as per test check report required quantity of Johnson pipe has been brought at the site as the same is test checked by concerned ZE also, who has further certified the entry in measurement book regarding Johnson pipe and the satisfaction of EE and ZE has also proved on record as completion statement has been signed by them and on the basis of which the payment was also released.
50) As regards the submission of invoice of purchase voucher, same shall be dealt with subsequently.
EXECUTION OF WORK
51) The prosecution in order to show that 'Johnson' Pipe was not inserted in the tubewell, choose to two type of evidences:-
(a) By showing through expert evidence by inspection of borewell that no 'Johnson' Pipe was found; and
(b) By showing that the Contractor had not purchased the 'Johnson' Pipe from sole distributor of 'Johnson' Pipe and therefore how he could say that Johnson Pipe was used.
52) Undisputed facts are that after completing the tender formalities, the work order for re-boring of two borewells was given to Sh. B. Jaypal Reddy, Proprietor, M/s Raghavendra Borewells. The official records prove the use of 'Johnson' Pipe. As per strata chart, Ex.PW-3/D1A1, CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 32 of 62 33 the total drilling depth is shown as 180 Mtr, where top 76.8 m covered with 200 mm blank pipe followed by 12.2 m ERW slotted pipe and further 6 m 200 mm blank pipe. Thereafter 12.24 m covered with 150 mm blank pipe followed by 75 mtr. Johnson pipe and last 6 meter with 150 mm blank pipe.
53) As per Measurement Book No.14508 Ex.PW-3/D (Colly), entry dated 05.07.2008 at page no. 60 'Johnson' 150 MM Slotted pipe 75 meter is shown in respect of borewell site at Panchayat Ghar.
54) In the strata chart Ex.PW-3/D1-A1, 75 mtr. Johnson pipe appears to be written as jenno pipe. The Measurement Book also corroborates respective strata charts regarding length of the 'Johnson' Pipe shown to have been provided.
Johnson Pipe not provided in tubewell.
ARGUMENTS
55) Ld. Counsel on behalf of accused persons has challanged that the Dr. D. V. Reddy was not expert as he had no expertise of dealing pipes in nature of 'Johnson' Pipe and that he did not do any study on the area of South Delhi regarding boring and re-boring that he has not done any thorough study regarding the geology. Therefore, his testimony is not reliable and in support of his arguments cited State of H.P. v. Jai Lal and Others (1997) 7 SCC 280. Secondly, it is submitted that there are serious discrepancies regarding inspection done by Dr. D. V. Reddy. Thirdly, it is submitted that the report of Dr. D. V. Reddy is based on electronic device on which data was transmitted which was later on burnt into CD and was produced in the court. However, in the absence of certificate u/s 65-B Indian Evidence Act, the same could CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 33 of 62 34 not be looked into and cited judgment of Hon'ble Supreme Court of India in case titled as Anvar P. V. v. P. K. Basheer, (2014) 10 SCC 473. It is further submitted that CD Ex.PW-12/Article-1 is not proved as per law and the same was objected to at the time of recording of evidence.
56) Regarding not putting of 'Johnson' Pipe, PW-12 Dr. D. V. Reddy, Senior Principal Scientist, National Geographical Research Institution (NGRI), Hyderabad, who inspected the borewells using borehole camera, testified that he is basically M. Sc. in Geology, M. Sc. (Tech) in Hydro Geology and Ph.D in Ground Water from NGRI. He had undergone DAAD Fellowship Germany where he was trained Hydro Geology and Engineering Geology. he was having 26 years experience in ground water study and in different hydro geological environments. During his service, he had published more than 150 scientific papers in reputed journals. He has also received National Mineral Award for his contribution in the field of ground water field in the year 2012 by Ministry of Mines, Govt. of India. Further, he stated that CBI requested NGRI, Hyderabad to assist them in investigation to find out the casing details in the borewells drilled by Delhi Jal Board in Delhi. In this aspect, he has used a borehole camera purchased from Banglore and this camera is having a graduated cable and outside a palmtop where pictures can be seen and recorded simultaneously. In the investigation he has used this camera. He recorded the videos of borewell and later this was transferred into computer and submitted in CD to CBI. The camera can view upto 300 meters deep. During investigation, he used to accompany CBI officials and Delhi Jal Board' officials for site inspection as well as inspection of borewell. He did CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 34 of 62 35 not remember exact date, but it was in the month of June, 2012, he alongwith CBI team and Delhi Jal Board' team went to Jonapur Village, Near Panchayat Ghar, Delhi for site inspection and inspection of borewell. When he reached there, the borewell was ready for the scan. The pumping assembly was already taken out. After making necessary connections, borewell was scanned and recorded in the palmtop and the data was transferred from the palmtop to laptop. The data was taken to NGRI, processed and the report was prepared at NGRI and later on submitted to CBI. He identified his signatures on site inspection memo dated 27.6.2012 regarding borewell situated at Jonapur Village, Near Panchayat Ghar, Delhi (D-18) exhibited as Ex.PW-7/P. He had proved copy of his report which also includes the strata chart of the borewell Ex.PW-12/A. He could not tell the exact findings of the Jonapur site without referring to his report. In the report, he compared the pipe details of his observation with the strata chart of borewell at Jonapur provided by CBI. As per the strata chart, the borewell should have from 76.8 meters of 200 mm blank pipe followed by 12.2 meters of MS slotted pipe and further 6 mm of blank pipe of 200 mm. Later the diameter of borewell was reduced from 200 mm to 150 mm in which there should have been 12.24 meter MS pipe followed by 150 mm of Johnson pipe of 75 meter and at the end of 6 meter of blank pipe. In his observation, he found that initially 82 meters of blank pipe followed by about 13 meters of MS slotted pipe and further 6 meters blank pipe. At 150 mm diameter, he found MS slotted pipe 101-141 meter depth where certain portion is good and bottom portion was heavily damaged. He also stated that he had also made CD of the recordings and proved the same as Ex.PW-12/Article-1.
CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 35 of 62 3657) PW-7 Sh. Vikas Rathi, JE (Civil) was examined. He testified that he visited the site at Jonapur Village Near panchayat Ghar, Booster, Delhi alongwith CBI team and Dr. D. V. Reddy, Senior Scientist, NGRI on 27.6.2012 on the directions of his seniors and on that day during inspection, Dr. D. V. Reddy had lowered the camera in the borewell with the help of cable/wire and physical site inspection was conducted in his presence and proved the site inspection memo Ex.PW-7/P.
58) PW-11 Sh. Y. B. Kaushik testified that he was posted as Scientist 'D' in Central Ground Water Board, North Western Region, Chandigarh and was directed by his Regional Director to report to CBI office for investigation related to tubewells constructed by Delhi Jal Board. On the spot, Dr. D. V. Reddy Sr. Principal Scientist, NGRI, Hyderabad, Mr. Vikas Rathi, JE, Vigilance, DJB; CBI officers and concerned JE & DJB Officials were present and in his presence, the camera was lowered by Dr. D. V. Reddy with the help of cable in the borewell and recording was made simultaneously in digital camera attached with the device. The site inspection memo was prepared at the spot and they all concerned signed the same.
59) PW-13 Inspector Pramod Kumar, CBI, Investigating Officer deposed that to verify that Johnson pipe is used in the concerned tubewell or not, services of Dr. D. V. Reddy, Sr. Principal Scientist, National Geophysical Research Institute (NGRI), Hyderabad was called and and Dr. D. V. Reddy conducted the examination of the borewell and gave his report alongwith CD and proved the report dated 27.11.2012 (D-23) Ex.PW-12/A. In his cross-examination he stated that he did not obtain certificate u/s 65-B Indian Evidence Act, from Dr. D. V. Reddy of CD prepared by him.
CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 36 of 62 37CONCLUSION EXPERT
60) Firstly as regards the submission of learned counsel on behalf of accused that Dr. D. V. Reddy is not expert. The Hon'ble Supreme Court in case Jai Lal & Others (supra) laid down test as to how the testimony of expert witness is to be evaluated. To quote : -
18. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusion so as to enable the Judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration alongwith the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusion.
61) PW Mr. Reddy has stated that he had done M.Sc. in Geology, M.Sc.
(Tech) in Hydrogeology and Ph.D in Groundwater investigations from NGRI and he has about 26 years experience in groundwater studies in different hydro geological environments and during his services he published more than 150 scientific papers in reputed journals. He has also received National Mineral Award for his contribution in groundwater studies in the year 2012 from Ministry of Mines, Govt. of India. He was cross-examined on this aspect and he deposed that he stated that he does not have any Civil Engineering Degree or Diploma and voluntarily stated that he has done Well Construction Course in Germany. He has not conducted boring or re-boring or supervised boring or re-boring in Delhi or in particularly, South Delhi. He has not CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 37 of 62 38 done any geology (strata determination) research in Delhi and voluntarily stated that he has broad idea about Delhi geology. He stated that to his knowledge, there is no another method to find out the borewell casing. PW-11 Sh. Y. B. Kaushik also stated in cross- examination that there are many experts in India on this subject, however, the expert needs to be equipped with borehole camera and does not know whether any person other than Dr. Reddy is possessed with borehole camera, but he stated that his organization does not have the same. Therefore, it cannot be said that Dr. D. V. Reddy is not expert in the field and as per another expert namely Sh. Y. B. Kaushik, Dr. D. V. Reddy is only expert in this field who is having equipment to see casing of the borewell.
62) Therefore there is no doubt that Dr. D. V. Reddy is not only expert in the field but also only expert having the necessary equipment to study borewell casing.
Site Inspection
63) As regards inspection there are discrepancies in the testimonies of the witnesses with respect to whether borewell assembly was already taken out when they reached at the spot to conduct the inspection or same was taken out subsequent of the same. Dr. D. V. Reddy in his cross-examination stated that he does not remember the exact number of sites visited on that day, however, they visited four to five sites in a day. For the purpose of site inspection, he used to reach CBI office and from CBI office, CBI officers and he used to go to respective DJB Office. He does not remember the respective office of DJB with respect to the present case. There were several people in the DJB office but he could not tell as to how many persons were there. They CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 38 of 62 39 proceeded from DJB office to site on different vehicles and four to five vehicles were employed. He does not remember as to which site we visited firstly on the said day. The site inspection of one borewell site took maximum half an hour. The site was located in thickly populated area. He does not know whether there is guard at the site and voluntarily stated that the site was shown by the DJB officials. he inspected the borewell on the request of CBI to Director, NGRI, Hyderabad, who deputed him to do the same.
64) PW-7 Sh. Vikas Rathi was also cross-examined on this aspect and stated that in case of borewell camera inspection to be conducted by Dr. D. V. Reddy, he used to be told a day in advance and he used to inform the concerned AE and JE as well as the E&M Department to remove the assembly and in the presence case the work regarding taking out of assembly was in progress when they reached at the spot. They reached at the spot i.e. Jonapur, Near Panchayat Ghar later on 1:00 to 1:30 p.m. and remained for around 1 ½ to 2 hours. He stated that normally it takes 3 to 5 hours in taking out the assembly from the borewell and it requires around 3 to 4 persons for doing this job. He stated that accused Anil Kumar Tyagi was present and has witnessed the proceedings. Rough sketch plan and site identification plan was prepared on the spot only. Dr. Reddy did not show him the contents/ recording if any in the camera before it was used for inspection. He admitted that area where the inspection proceedings took place was thickly populated and no public witness was asked to join the inspection proceedings by IO. In cross-examination on behalf of A-2 and A-3 he stated that he reached at the sites, only one or two pipes of assembly were remained to be taken out from the borewell, which CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 39 of 62 40 were taken out in their presence. On 27.6.2012, the inspection was over in approx. one and half hour. He stated that he does not remember besides the site in question how many other sites were inspected by him on 27.6.2012 and stated generally four-five sites were inspected in a day.
65) PW-11 Sh. Y. B. Kaushik in his cross-examination stated that On 27.06.2012, he was part of site inspection i.e. Borewell situated at Jonapur Village, Near Panchayat Ghar, Delhi and stated that when they reached at the spot, he could not say whether the assembly was already taken out or it was taken out after few minutes of their reaching. All the sites were situated at populated areas and no public person was asked to join the inspection by IO in his presence. He could not tell the exact time when they reached at Jonapur Village site, however, it was during day time. He does not remember how much time was taken for inspection at Jonapur Village. There was no watchman and security guard present on any of the sites visited on 27.06.2012. He does not remember whether the pumping assembly was already dismantled or any pipe was lying outside the borewell, Jonapur Village site. He does not remember as to how many persons were present at Jonapur Village sites. He stated that when they went for camera inspection the borewell assembly was already taken out and it takes about 20-45 minutes in conducting the examination by way of bore hole camera.
66) PW-13 Inspector Pramod Kumar, IO in his cross-examination stated that no public person was asked to join the proceedings before conducting the inspection of the site. There was a watchman of the borewell present at the time of inspection of site and he did not CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 40 of 62 41 interrogate him nor record his statement nor obtain his signature.
CONCLUSION
67) There are some inconsistencies in the testimonies as to whether assembly was already taken out or was in the process of being taken out or who was present at the site. Further, site was located in thickly populated area but public witnesses were not joined or whether there was watchman was present at the site. However, as per prosecution case itself many inspections were carried out. Therefore, it is not humanly possible to remember each and every detail of every inspection. The purpose of site inspection was to see the casing in the borewell. The joining of public witness is not necessary in such circumstances as the inspection was carried out in the presence of officials of DJB including the accused persons. This does not go to the root of the matter and therefore does not create any doubt regarding the inspection.
Inspection of borewell
68) With respect to finding of Johnson pipe not found in the borewell.
PW-12 Dr. D. V. Reddy, in his cross-examination, admitted that the specification, details and make of borehole camera is not mentioned in the inspection memo Ex.PW-7/C and voluntarily stated that same is mentioned in the report. The cable was connected to the camera and recording was directly done on the palmtop through the said cable. He was speaking the depth to which the camera was lowered through the cable. No one was noting down the respective depth to which the camera was lowered. He voluntarily stated that the speaking was only to record the depth simultaneously. Ordinarily, the same is not CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 41 of 62 42 recorded as he was busy in doing the main job himself. He admitted that he did not burn the CD at the spot of the recordings done on the palmtop and did not play the recordings done on the palmtop to the other team members at the spot. He voluntarily stated that during the recordings as the same is visible to everyone, they can see. He burn the CD and prepared the report at NGRI, Hyderabad. PW-7 Sh. Vikash Rathi, in his cross-examination stated that Dr. D. V. Reddy had used same camera for inspection of all the borewells in question. Dr. D. V. Reddy had recorded the proceedings in the camera, however, in his presence did not transfer same to any laptop, palmtop and computer etc. While recording, Dr. D. V. Reddy was speaking about depth of the borewell, however, no one was noting down the same on paper, diary or notebook etc. He admitted that on the day of inspection, the tubewell was found in running condition. He further stated that he had not seen the recordings made by Dr. D. V. Reddy regarding the proceedings on the spot and had not shown the recordings made during the inspection proceedings to any one in his presence at the spot and did not prepare any CD regarding the recordings of proceedings at the spot. PW-11 Sh. Y. B. Kaushik in his cross- examination stated that he did not ask Mr. Reddy about specification/configuration of the camera used and the same camera was used by Dr. D. V. Reddy for carrying out the inspections on that day. Neither he nor any one of the team in his presence check the camera regarding that the same was having any recording before it was used by Dr. D. V. Reddy. The recordings were being done on palmtop. Dr. D. V. Reddy was speaking about the depth of the camera when lowered in the borewell. The depth was not being noted on paper by anyone. No CD of the recordings was prepared in his CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 42 of 62 43 presence by Dr. D. V. Reddy. He did not see the recordings after it was recorded on the palmtop. He stated that while recording was being done on palmtop, the persons present there were looking at the palmtop by way of curiosity but he could not tell whether any person had seen it specifically. He admitted that camera can view only upto the depth which is obstructionless and without mud. PW-13 IO Inspector Pramod Kumar stated in his cross-examination that he did not seize the camera, cable and laptop used for the inspection of the borewell. The camera was having voice recording facility. Dr. D. V. Reddy was speaking simultaneously while lowering the camera inside the borewell. Dr. D. V. Reddy noted the same in his field book, which was not seized. He had watched the recording in the laptop, however, no other witness present there has seen and he had seen after returning from the site. He admitted that he had stated in his statement made in case of CBI v. K. N. Dhyani & Ors. that Sh. Y. B. Kaushik was telling the depth at which the camera reached and Dr. D. V. Reddy was noting down the same in a diary. He admitted that Dr. D. V. Reddy did not disclose us to whether the Johnson Pipe was present in the borewell or not. He also stated that Dr. Reddy did not send the CD during the investigation before sending the report and the CD was sent in unsealed condition. The CD was not sent to CFSL.
CONCLUSION
69) All the witnesses have consistently proved that Dr. D. V. Reddy conducted the inspection of borewell in question at site and viewed the casing in borewell through bore hole camera. However, the most important aspect of the matter is that during the inspection except Dr. D. V. reddy, no one else has seen the casing through borehole camera CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 43 of 62 44 nor Dr. D. V. Reddy told anybody present there whether Johnson pipe was found or not till he gave his report based on recordings on the palmtop. Therefore, there is no evidence except Dr. D. V. Reddy who can say that there was no Johnson Pipe inside the borewell. Further, admittedly, the findings of Dr. D. V. Reddy was based on recordings on the palmtop, which is electronic device, which he later on burnt into CD, that too without certificate u/s 65-B Indian Evidence Act. Therefore, in the absence of certificate u/s 65-B Indian Evidence Act, the CD, which is a electronic device, same is inadmissible in evidence. Therefore in the absence of evidence recorded in the CD, it cannot be proved on record that metal casing which was buried inside the borewell was not of 'Johnson' make strainer pipe but something else or damaged MS slotted pipe as reported by Dr. D. V. Reddy.
Effect of quality of water on casing
70) Another aspect of the matter is whether as per the strata and quality of water, the casing of borewell remain unaffected after many years i.e. normal life of borewell. PW-12 Dr. D. V. Reddy stated in his cross-examination voluntarily stated that on the day of inspection, the borewell was functioning. Further, he stated that the life of borewell depends on strata on which the borewell encounters and probably, in this borewell, the below strata was hard rock. The hard rocks are broadly three types mainly i.e. granite, basalt and meta sediments. The Delhi quarzite is of meta sediments type. He also admitted that the site was having mica. The Delhi is having saline water at a greater depth and it has effect on the pipe corrosion. PW-10 Shiv Kumar Bhardwaj further stated that the groundwater quality of water generally is not potable and in some cases it is saline also in South and South East, CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 44 of 62 45 Delhi. He admitted that in the inner surface of the pipe, there may be deposits of salt and other metals with the passage of time and due to the deposits on the inner surface of the pipe, the same would not be clearly visible. Further, admitted that due to deposits, it may not be discernible whether the pipes are blind/blank pipe or slotted pipe. The life of tubewell depends on the quality and quantity of water in the well. The average life of tubewells in the South and South East Delhi is five (5) years due to the quantity and quality of the underground water. If the water table goes down the tubewell shall dry up. He also stated that there is no mechanism with DJB to check the quality of the pipe which is already lowered into borewell. However, he admitted that borewell will not discharge the water, if slotted pipe is not lowered into it. If there is no pipe inside the borewell, the borewell will normally collapse. PW-11 Sh. Y. B. Kaushik in his cross-examination stated that the quality of water in South Delhi is good and fresh and the same is potable, however, he could not tell specifically about Jonapur Village. He stated that borewell in the hard rock can sustain without the pipe. The life of such borewell can be upto 20-25 years. He admitted that on the metal there is generally deposit of rust, corrosion and malformation and voluntarily stated that depending upon the quality of water. In cross-examination on behalf of A-2 and A-3, he stated that he could not tell the nature of rock at Jonapur Village.
CONCLUSION
71) PW Dr. D. V. Reddy and PW Sh. Shiv Kumar Bhardwaj are consistent that water in South Delhi is saline in nature and it results in corrosion of the pipes. PW Shiv Kumar Bhardwaj has stated that the borewell CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 45 of 62 46 cannot survive without pipe and admittedly in the present case the borewell was functional when the inspection was carried out. However, PW Sh. Y. B. Kaushik has contradicted the other two experts regarding strata in South Delhi and has also contradicted with respect to life of the borewell. He also claimed that without the pipe also, the borewell can remain functional. Dr. D. V. Reddy, is admittedly is expert in the area and Sh. Shiv Kumar Bhardwaj has experience of working as Superintending Engineer. In the face of their consistent statements, the assertion of Y. B. Kaushik regarding life of borewell and strata does not hold water. Since, the quality of the water affects the life of casing of borewell and the corrosion also takes place, therefore, it is an additional ground of not believing Dr. D. V. Reddy regarding non-availability of Johnson pipe as it would be difficult to ascertain the nature of casing after a gap of considerable period. Moreover the borewell was functional and was discharging water as on the date of inspection. The boring of borewell was done in July, 2007 and the inspection was done on 27.06.2012, almost after five years.
Johnson Pipe not sold to accused M/s Sri Raghavendra Borewells.
72) PW-8 Sh. Kamal Kumar Aggarwal testified that he is Director of company, namely, Bharti Waters (P) Ltd., which deals in trading of MS Pipes, V-Wire Steel etc. His brother Sh. Sanjay Aggarwal is also director of the company. Their company is authorized sole distributor of strainer filter pipe make 'Johnson' in Delhi since year 2003/ 2004. He stated that he has provided authenticated copy of statement of account/ company ledger account of M/s Bharti Waters (P) Ltd. in respect of M/s Raghuvendra Borewell, Delhi and original invoices CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 46 of 62 47 through production-cum-seizure memo to CBI and proved the same as Ex.PW-8/A (D-2). Original invoice bearing no. BW/171/2007-08 dated 13.10.2007 issued in the name of the Executive Engineer, Ludhiana. He also proved photocopy of account ledger of M/s Bharti Waters (P) Ltd. (D-3) pertaining to M/s Raghuvendra Borewells, Delhi for period 01.04.2006 to 31.03.2007, 01.04.2007 to 31.03.2008, 01.04.2008 to 31.03.2009 and 01.04.2009 to 31.03.2010 as Ex.PW8/B (D-3) (colly.). After seeing photocopy of invoice no. BW/171/2007-08 dated 13.10.2007, he stated that vide which his company had sold micro processor based water disinfection equipments with rust proof corrosion free stainless steel water chamber conforming SS-304 of following capacity - 50,000 LPH capacity silver ionization unit, silver ion electron for 50,000 LPH unit for an amount of Rs.1,70,668/- to M/s The Executive Engineer (PH), Punjab Mandi Board, Ludhiana and proved the same as Ex.PW8/E (D-6). The invoice number issued from their company are only in one series and not repeated, for the same financial year. He also proved ledger account of his company for the year 2006-07 in respect of M/s Raghavendra Borewells as Ex.PW- 8/B (Colly).
73) After seeing photocopy of invoice no. BW/171/2007-08 dated 30.07.2007 (Ex.PW4/B), pertaining to Sh. Raghavendra Borewells, he stated that the said invoice is fake and his company M/s Bharti Waters (P) Ltd had never issued such invoice to Sh. Raghavendra Borewells. The basis of his saying that this is not a genuine invoice is that his company was earlier named as 'M/s Bharti Waters', which was later on changed to 'M/s Bharti Waters (P) Ltd.', sometimes in the year 2003/2004. The format of the invoice is not as the invoice of their CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 47 of 62 48 company. Earlier, his company might have used such invoice format. After the name of the company changed, it is now 'M/s Bharti Waters (P) Ltd.' The goods sold from his company are reflected in the ledger account of the parties. This invoice is not reflected in the ledger account of his company. He stated that he has not sold Johnson pipe to M/s Raghavendra Borewells without invoice.
74) Therefore, in nutshell, this witness has stated that invoice No. BW/171/2007-08 dated 30.07.2007 (Ex.PW4/B) was not issued to M/s Raghavendra Borewells and in fact was issued in favour of M/s The Executive Engineer, Punjab Mandi Board, Ludhiana.
75) PW-01 Sh. Sukhchain Singh testified that he was working as Sub-
Divisional Officer in the office of executive Engineer, Punjab Mandi Board, Jila Mandi Pawan, Ludhiana, Punjab since 2009 and the division is providing services of water supply, sewage, public health services in Grain Markets of Punjab State at Ludhiana. He stated that he had provided copies of invoice and contractor ledger account to CBI. He corroborates PW-8 regarding issuance of bill BW/171-2007- 08 in favour of Executive Engineer, Punjab Mandi Board and proved the certified copy of the same as Ex.PW-1/C. He also stated that the said equipment is not further sold to anyone by Punjab Mandi Board and is still installed at water works.
76) In his cross-examination, PW-1 Sh. Sukhchain Singh stated CBI had given a receipt of receiving the documents from him on the document Ex. PW1/A and did not remember the exact date of month of handing over of the document but it was probably in the year 2012 and he was authorized by my EE to do so. He did not went to the Bharti Water for placing the said order and even did not know who had gone to CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 48 of 62 49 purchase the said goods from Bharti Water. Mr. Om Prakash Pruthi was in service at that point of time and he even as on today still in service. He voluntarily stated that Punjab Mandi Board has been allotted a TAN number and no such document was handed over to CBI. He stated that he was employed as Junior Engineer prior to 2007 and after 2007 he was posted as Junior Engineer in Punjab Mandi Board at Ludhiana.
77) PW-8 Mr. Kamal Kumar Aggarwal in his cross-examination on behalf of A-1 Anil Kumar Tyagi stated that they are only two directors in the company and have not appointed any dealer or sub-dealer for sale of strainer pipe make Johnson. He voluntarily stated that he had visited CBI office many times in connection with many cases. He had not lodged any complaint or FIR in connection with this case and his company maintains the stock position of the stock lying in the godown. He could not tell to how many persons he has sold Johnson strainer pipe at the relevant time and voluntarily stated that the same can be seen from record of company. CBI did not ask him as to whom he had sold the Johnson strainer pipe at the relevant time and voluntarily stated that the CBI used to enquire only with respect to matter being enquired.
78) He could not tell number of employees working in his company at the relevant time, but it can be 5 to 10 and he did not handover the list of his employees to CBI nor CBI asked about the same. CBI did not make enquiries or investigated from his staff at any point of time. He admitted that all the goods mentioned as 'sold' have been mentioned in his income tax and sale tax. The total sale shown for the year include the sale made through the invoices. The said invoices were duly CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 49 of 62 50 reflected in the accounts from which total sale figure was reflected and could not identify the signatures on documents (invoices) and voluntarily stated that the staff of the company keeps changing, therefore, he could not identify the signatures. He did not verify from his staff as to whose signatures appeared. He stated that he has not given any authority to any of their employee to sign invoice on their behalf. He admitted that invoices mentioned above are the computer generated. The matter on the invoices are computer generated, which are taken on the already printed invoices and admitted that invoices do not bear his signatures. The CBI did not take his specimen signatures and of his staff.
79) The documents invoice of Executive Engineer, Punjab Mandi Board, Ludhiana Ex.PW-8/E does not bear the TIN/TAN number and voluntarily stated that the government sale do not require TIN/TAN number as they do not have TIN/TAN Number. He stated that he did not hand over the documents relating to the tax paid, that is, income tax, sales tax, VAT or any other Government agency of the relevant period reflecting the same made by invoices to CBI. He voluntarily stated that CBI did not ask him for the same. CBI has not taken sale purchase and stock register of the relevant period from his company. CBI also not asked for the documents relating to profit & loss account, balance-sheet and VAT of the relevant period. CBI did not seize computer of his company. He stated that he had not given the documents to CBI regarding the VAT deposited on the sale made to M/s Raghavendra Borewells, as the same was never asked. He admitted that the ledger of accused is being prepared by employee of their company. He never demanded the ledger maintained by M/s CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 50 of 62 51 Raghavendra Borewells for cross-checking and verification of entries in his ledger. He stated that his company accepts payment in cash. Voluntarily stated that the cash transactions are done only with the new parties sometimes, if they are unable to produce demand draft for advance payment and in cases where the regular party become defaulter. But it is not a regular practice to accept cash. He denied the suggestion that he had sold 150 mts. Of Johnson make strainer pipes to M/s Raghavendra Borewells against cash payment and the entry of such transaction was not reflected in the record and also denied that he maintains two parallel bill books and the sale made in cash are not reflected in the record to avoid payment of tax.
80) In his further cross-examination, he stated that he did not remember whether officials of DJB had made any verification pertaining to the sale made on invoices by them and CBI never interrogated the accountant, who maintains the account in the computer. He stated that he did not know as to in which strata the Johnson pipe is used, however, it is used for water in the borewell.
81) In his cross-examination on behalf of A-2 and A-3, he admitted that M/s Raghavendra Borewells has been buying goods from his company but he could not tell without going through the record whether they have been buying the same from last 10 years, however, it may be 6 to 8 years. He stated that he could not without going through the record whether the M/s Sri Raghavendra Borewells was purchasing sometime on cash and sometime on cheque and voluntarily stated that most of the transaction takes place on cheque, however, if the cheques are dishonoured, they received payments in cash. He admitted that accounts books are prepared and maintained by the employee of his CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 51 of 62 52 company and did not remember the name of the employee who had prepared the accounts books and maintained the same pertaining to M/s Sri Raghavendra Borewells. He stated that Directors of the company generally cross-check the authenticity of the invoices being issued by employees of their company and could not tell whether the invoice/bill in question was cross-checked by Directors and voluntarily stated the same are checked in routine. The entries in the computer are made by the computer operators and they only take out the prints and voluntarily stated that they do so on their instructions. The ledger entries are also made through the computer by computer operator by accounting software. CBI did not make any enquiry from the person who was operating the computer at the relevant time. The CBI did not ask for any certificate from the accountant who maintains the computer about the genuineness of the accounts. He denied the suggestion that signature and certificate of the accountant was not taken as the ledger books was fabricated as per convenience of the case of the CBI. He admitted that the original bill/invoice is given to the buyer. Their company do not maintain any record pertaining to persons employed with their company for which period the said person was employed and voluntarily stated that the records are as per the period when he was given the salary. He stated that when the partnership was converted into the private limited company, the said fact was not informed to the parties.
82) PW-1 Sh. Sukhchain Singh proved the invoice BW-171/2007-08 dated 13.10.2007 Ex.PW-1/C. He was authorized by EE vide a letter and also produced original of the same from official record. It was pointed out by Ld. Counsel that EE Mr. Om Prakash Pruti who has authorized CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 52 of 62 53 him on behalf of Punjab Mandi Board to hand over the documents to CBI and also he is still in service and therefore the document cannot be proved by this witness. This witness has produced the documents from official record for which he was duly authorized. Therefore, it is not necessary that EE himself should appear to produce the documents. Therefore the document Ex.PW-1/C invoice by which M/s Bharti Waters (P) Ltd has sold article to Punjab Mandi Board stands proved.
83) It is proved by the prosecution that Sh. Kamal Kumar Aggarwal, Managing Director, Bharti Waters (P) Ltd. which is a sole distributor of strainer filter pipe make Johnson had sold micro processor based water disinfection equipments with rust proof corrosion free stainless steel water chamber conforming SS-304 of following capacity - 50,000 LPH capacity silver ionization unit, silver ion electron for 50,000 LPH unit for an amount of Rs.1,70,668/ and issued Invoice/Bill No.BW/171/2007-08 in favour of M/s The Executive Engineer (PH), Punjab Mandi Board, Ludhiana.
ARGUMENTS
84) It is submitted on behalf of accused B. Jaypal Reddy that he had purchased the articles from Bharti Waters (P) Ltd. But Bharti Waters (P) Ltd. is not recording correctly in his ledger the sales made to the parties. Ledger are not honestly recorded and therefore the same cannot be relied upon to believe that no Johnson pipe was sold to M/s Sri Raghavendra Borewells.
CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 53 of 62 54CONCLUSION
85) In the cross-examination, Mr. Kamal Kumar Aggarwal (PW-8) admitted that invoices are issued by his employee, however, he could not remember number of employee working in the company. He did not handover the list of his employee to CBI. He also could not tell as to how many persons he has sold Johnson strainer pipe at the relevant time and CBI did not ask him as to whom he had sold the Johnson strainer pipe at the relevant time and voluntarily stated that the CBI used to enquire only with respect to matter being enquired. The total sale shown for the year include the sale made to the invoices. The said invoices were duly reflected in the accounts from which total sale figure was reflected and could not identify the signatures on documents (invoices) and voluntarily stated that the staff of the company keeps changing, therefore, he could not identify the signatures. He stated that he has not given any authority to any of their employee to sign invoice on their behalf. He admitted that invoices mentioned above are the computer generated. The matter on the invoices are computer generated, which are taken on the already printed invoices and admitted that invoices do not bear his signatures. He stated that he did not hand over the documents relating to the tax paid, that is, income tax, sales tax, VAT or any other Government agency of the relevant period reflecting the same made by invoices to CBI. He voluntarily stated that CBI did not ask him for the same. CBI has not taken sale purchase and stock register of the relevant period from his company. CBI also not asked for the documents relating to profit & loss account, balance-sheet and VAT of the relevant period. CBI did not seize computer of his company. His company is duly CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 54 of 62 55 incorporated with Registrar of Companies. He stated that his company accepts payment in cash. Voluntarily stated that the cash transactions are done only with the new parties. He further stated that CBI did not make any enquiry from the person who was operating the computer at the relevant time. The CBI did not ask for any certificate from the accountant who maintains the computer about the genuineness of the accounts.
86) Surprisingly, their company do not maintain any record pertaining to persons employed with their company for which period the said person was employed and voluntarily stated that the records are as per the period when he was given the salary. Therefore, admittedly the invoices/ledger were prepared by employee of the company and surprisingly he neither knows name of the employee who generated invoices through computer nor he could remember number of employee who were employed at that time and stated that employee keeps changing. This is a incorporated company which is expected to maintain proper record of persons employed by them. Therefore, testimony of this witness had created doubt in favour of the accused that whether the ledger maintained by accused for in the name of M/s Sri Raghavendra Borewells are genuine and records all the transactions done by M/s Sri Raghavendra Borewells properly. As admittedly ledger are computer generated ledger without the certificate u/s 65-B Indian Evidence Act, the same also cannot be looked into and is inadmissible in evidence. Therefore it cannot be proved as per the ledger entry, the sale of Johnson pipe was not made to A-3 M/s Sri Raghavendra Borewells.
CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 55 of 62 56Double user of bill
87) Ld. PP for CBI submits that the bill Ex.PW-13/D which is the photocopy of the same bill, which bears signature of K. N. Dhyani, AE and the contractor has used this invoice in two cases one in K. N. Dhyani's case and other in present case. Further, it is submitted that this document has come from official source handed over by Sh. Vikas Rathi to the IO.
88) I have perused the Production-cum-Seizure Memos vide which Sh.
Vikas Rathi, JE has handed over documents to IO CBI. On perusal, it transpired that as per his testimony, there are only three Production- cum-Seizure Memo which were proved by him as Ex.PW-7/A, Ex.PW-7/B and & Ex.PW-7/T respectively and none of them finds mentioned production of the photocopy of Bill invoice No.BW- 171/2007-08 dated 30.07.2007 which was proved by Inspector Pramod Kumar as Ex.PW-13/D deposing that Inspector Kailash Sahu had also taken bill in the name of Sh. Raghavendra Borewells. Therefore, as to how this document Ex.PW-13/D, which bears signature of Sh. K. N. Dhyani, ZE, has come in file is not clear or as to how it comes in the hands of IO is also not clear. Moreover, Sh. K. N. Dhyani was also not examined in this case that document bears his signature and therefore no reliance can be placed on this document and submission of Ld. PP of CBI is devoid of any merit.
How forged voucher came in file ?
89) Now the question arises as to who is responsible for placing on record the purchase voucher Ex.PW-4/B, purportedly forged document ? PW-4 Sh. Satya Prakash in his cross-examination stated that after CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 56 of 62 57 completion of the work, X'EN sends the final bill alongwith the Purchase Vouchers, Completion Report, Measurement Book, Strata Chart, Test Check Report to the Accounts Section. If the Purchase Voucher is photocopy, the Accounts Department released the bill. He voluntarily stated that the purchase voucher is only supporting document. He stated that there is instruction of the Department that in case of photocopy of the purchase voucher, it should be attested by AE, JE and EE. And voluntarily stated that ordinarily, AE and JE attests the same. It is not necessary that the same should be attested before release of payment. He denied the suggestion that as per the instructional order/CPWD Manual, the payment can only be released if the purchase voucher/invoice is attested by the AE, JE in case of a photocopy. Voluntarily stated that the CA No. is marked on the invoice in the present case. He stated that he had checked all the necessary documents before signing the pay order in the present case and they were in order and admitted that if there was any discrepancy in the bill or in any other document then, he could raise the objection for the correction of the same. The payment is released by the Divisional Office which is headed by the EE. The bills were checked at the office of Superintendent Engineer, where they sit. He had signed the pay order in this case as the same was as per the completion report. The Accounts Department do not verify purchase voucher/invoice. He could not tell as to who/which department is responsible for verifying the same. He denied the suggest that it is the duty of the Accounts Department to verify the purchase voucher/invoices.
90) In reply to question as to what is the role of Finance Department in whole process commencing from the issuance of NIT, verification of CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 57 of 62 58 the document, up till the release of payment to the Contractor, he stated that the concurrence of the Finance is required for issuance of NIT for the provision of budget and the EFT/cheque for the payment is signed by Assistant Chief Accountant (ACA) alongwith Executive Engineer. The ACA belongs to the Accounts Department and works under Director (Finance) Delhi Jal Board. With respect to Instructional Order Ex. PW7/C (D-15) regarding release of payment and verification of the document, he stated that at the time of payment, the instructional order of 2004 Ex. PW4/D had come into operation, however, admitted that it is not mentioned in instructional order of year 2004 that it is in supersession of earlier order of year 2000. He also admitted that invoice Ex. PW4/B (D-9) does not bear signatures of anyone including JE, AE, EE and Contractor and that the Measurement Book, Test Check Report, Bill Forms and Completion Report were signed by the EE before forwarding it to him. He denied the suggestion that the accounts department verify the genuineness of the voucher before making the pay order. He voluntarily stated the Accounts Department signs pay order on the basis of completion certificate, measurement book and relevant certificates.
91) In cross-examination on behalf of A-2 and A-3, he admitted that when the file was received by him from the Executive Engineer in this case for the first time, it contained only the estimate and no other document. The file may contain notings by JE or AE and X'EN necessarily. JE does not have the power to make the notings but, he gives the history and estimate. He also admitted that file when received at the second time by him, it is after acceptance of the tender for financial concurrence and that when the file is received 3 rd time at CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 58 of 62 59 Circle Office by him, it contains Measurement Book, Agreement File, Completion Report, Test Check Report and Bill Form etc. duly signed by the concerned Engineer for signing the pay order. He also admitted that the Accounts Department does not verify the purchase invoices and these are verify by the JE and ZE who have worked at the site and that as per Instructional Order Ex. PW4/D the powers to verify the invoice have been given to the Executive Engineer. He voluntarily stated that JE and ZE on behalf of X'EN also used to verify the same. He could not say whether there is any order whereby X'EN had authorized JE and ZE to verify the invoices on his behalf and denied the suggestions that instructional order Ex. PW4/D only pertains to Electrical and Maintenance Department and voluntarily stated that it applies to all the Divisions. He also admitted that after completion of the work, the Civil Division Department hands over the site to the Electrical and Maintenance Department and voluntarily stated that these works were conducted by the Maintenance Division and the copy of the instructional order has been forwarded for compliance to EE (Maintenance), SDW and E & M Division. In reply to question that Ex. PW4/D only pertains to all the EEs of Maintenance, SDW & E&M Division and does not pertain to Civil Division, he stated that EE South-I Civil Division is Maintenance Division. He admitted that EE, South Division of Civil and EE of Electrical & Maintenance Division are separate.
92) PW-3 Smt. Lekha Pawar stated that measurement book is not kept in sealed cover. The same remains in the possession of accounts department after the completion of work. In cross-examination on behalf of A-2 and A-3, PW-3 Smt. Lekha Pawar stated that she could CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 59 of 62 60 not say whether EE is not supposed to sign each and every document attached with the file and admitted that a document which is not signed by the EE there is the possibility of tampering with the document and can be substituted with another document and that every tender has its own different terms and conditions for completion of work.
CONCLUSION
93) As per the testimonies of the witnesses, invoice/bill of purchase of items from the bill of quantity which in the present case Johnson pipe are to be submitted by the contractor in original before release of payment to the contractor. However, in case if a contractor purchase larger quantities of material for utilization in different works, he can submit photocopy of the purchase voucher. In such cases same should be certified by JE/AE/EE and the CA number should be mentioned on the photocopy of invoice, where the original invoice is lying. PW-4 Sh. Satya Prakash, has stated that he has dealt with this document when payment was made by him. On the perusal of the document, it transpired that on the document CA no. 60 (7/A) and work order no. 95 is written and total quantity of the material used mentioned in the invoice is 150 meter of Johnson pipe. This invoice is placed in the file of reboring of 2 nos of borewells in R/S at Jonapur Village near Harijan Basti, which later on shifted to Hargovind Enclave and other at Booster Site Panchayat Ghar, where the total quantity is used as per MB Entry 75 +70 meter which comes to 145 meters. In the ordinary parlance, original voucher is placed where the maximum number of quantity is used. After using 145 meters of Johnson pipe only 5 meters has left with the contractor therefore the testimony of the witness CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 60 of 62 61 namely Sh. Satya Prakash, the Accountant, at relevant time, that he has used this bill without raising objection as to why original is not placed or why same is not certified by JE/AE/EE is not believable. Moreover, PW Smt. Lekha Pawar has stated that each and every document of the file is not signed by EE and there is possibility of tampering with the document which can be substituted by another document. The role account department is also not above board. The alleged forged bill is neither attested nor certified by JE/AE/EE nor it mentions the CA number of work where the original is kept. Rather mentions the CA no. of this work. No objection is raised and the payment is released. Therefore in the facts and circumstances of the case, the prosecution has failed to prove that this forged bill was placed on record by either of the accused JE or the contractor.
FINAL CONCLUSION
94) Therefore, prosecution has failed to prove that there was no pipe make Johnson in the borewell and the bill was forged and submitted by accused contractor B. Jaypal Reddy in connivance with accused Anil Kumar Tyagi, JE and claimed amount and caused wrongful gain to contractor.
95) In view of the findings made hereinabove, I consider that prosecution, in the present cases, has failed to prove its case against accused Anil Kumar Tyagi and accused B. Jaypal Reddy, Proprietor of M/s Sri Raghavendra Borewells beyond reasonable doubt. Hence accused persons (A-1, A-2 and A-3) are acquitted of the charges under S.120-B r/w Section 420/471 and 477-A IPC and Sec. 13(2) r/w 13(1)(d)(iii) PC Act, 1988; Accused Anil Kumar Tyagi (A-1) is also acquitted of the charges under S. 13(2) r/w 13(1)(d)(iii) PC Act, 1988 and Sec. 477 CC No. 01/15 CBI v. Anil Kumar Tyagi etc. Page 61 of 62 62 A IPC and Section 120 B IPC; and accused B. Jaypal Reddy, Proprietor M/s Sri Raghavendra Borewells (A2 & A3) is also acquitted of the charges punishable under S. 420/471 IPC and substantive offence under S. 120 B IPC.
96) Accused persons are on bail. Their bail bonds stand cancelled. Their Sureties discharged. Original documents, if any, be returned to concern person/department against proper acknowledgment. The bail bonds under S. 437 A Cr.PC are already taken and is on record.
97) It is worthwhile to mention that the procedure of preparing the final bill is fraught with difficulties. Except for the strata chart, no document is required to be signed by the contractor for submission to DJB for release of payment. It would be more appropriate if the contractor after the completion of work or part completion of work makes an application to the Executive Engineer for either preparation of bill or for payment alongwith the requisite documents thereby owning the documents submitted by him. If this procedure is followed, it would be easy to fix the liability of wrong doer.
98) File be consigned to record room.
Announced today i.e. on 18.01.2016
in open court.
(GURDEEP SINGH)
SPECIAL JUDGE (PC ACT)/ CBI-05
NDD/PHC/NEW DELHI/18.01.2016
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