Delhi District Court
State vs . Mhd. Salman Aquil & Anr. on 24 May, 2022
1
In the Court of Sh. Dig Vinay Singh: Special Judge (PC Act) (ACB)-02
Rouse Avenue Courts, New Delhi
In re:
CNR No. DLCT110005762019
CC No. 129/19
State Vs. Mhd. Salman Aquil & anr.
FIR No. 22/2004
PS ACB
State
Vs.
1. Mohd. Salman Aquil
S/o Mohd. Usman
R/o A-112, Radhey Shyam Park,
Delhi
2. H. W. Madan
S/o Sh. Munshi Ram Madan
R/o SU-11, Pitampura, Delhi
3. M. K. Gupta
S/o Sh. R. D. Gupta
R/o 154, Avtaar Enclave,
Paschim Vihar, Delhi
Date of Institution: 21.04.2009
Date of Arguments: 17.05.2022
Date of Judgment: 24.05.2022
JUDGMENT
1. The above named three accused faced trial in the present matter for offences U/s 13(1)(c) r/w Sec. 13(2) of POC Act, 1988 and, U/s 120B/409/420/468 & 471 of IPC. At the relevant time accused Mohd. Salman Aquil (A1) was posted as Junior Engineer (JE), accused H. W Madan (A2) &, accused M. K. Gupta (A3), were posted as Assistant Engineers (AE), in MCD. Besides them, one more accused namely S. S. Negi was charge sheeted in the case, who was Executive Engineer, but he was discharged vide order dated 11.10.2013, at the stage of charge.
2. Brief facts of the case are, that in order to avoid water logging during Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 1 of 49 2 monsoon season, the Conservancy & Sanitation Engineering (CSE) Department of Municipal Corporation of Delhi (MCD), conducts drive to desilt the drains in Delhi. For that purpose, preparation of Estimate; Desilting and; then carrying silt up to the Silt Land Fill (SLF) site, is carried out. CSE, Shahdara, West Zone similarly prepared an action plan for the year 2002-03, obtained sanctions required and then the work was executed under the supervision of EE (CSE). For desilting, casual labourers were engaged from open market.
2.1. It is the case of investigating agency that the accused persons while working as JE, AE & EE, entered into criminal conspiracy amongst themselves wherein they reflected fake entries in the Mustor Rolls qua engagement of some of the casual labourers, to misappropriate the wages qua those fake entries and, also that wages of some of the labourers who had actually worked were not paid and was misappropriated. It is also the case of investigating agency that the accused persons forged / got forged the signatures / thumb impressions in token of receipt of wages of many such ghost labourers and then misappropriated the wages.
2.2. Initially, a complaint was received in the Vigilance Department of MCD on 15.05.2002, from one Smt. Shimla Beniwal, alleging irregularities in maintaining Muster Rolls (MR for short) and in making payments to the labourers qua desilting of drains. The allegations in the complaint included;
a) non-issuance of Muster Rolls in time and instead issuing them later on ante-dated;
b) mentioning number of labourers in the Muster Rolls and forging their signatures and thumb impressions in drawing money against it;
c) bogus payment against tractor / trolley for lifting of silt;
d) showing of more than one rounds of trolley to get payment more than once;
e) payment without slip from the SLF site and;
f) lastly, payment against Muster Rolls even without carrying out the desilting work at all.
2.3. On the above-mentioned complaint, the Vigilance Department of MCD conducted an inquiry and recommended registration of FIR as also departmental action against various EE/AE/JE/Accountant/LDC/Cashier Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 2 of 49 3 and few Beldars. Based on the said inquiry recommendation, a complaint was lodged in police station Anti-Corruption Branch and FIR No. 42/2002 (another case) was registered on 13.08.2002. During investigation of that FIR No. 42/2002, various MRs as to engagement of labourers, prepared between the months of March 2002 to June 2002, were seized by the investigating agency. Those MRs were then separated by the investigating agency as per the JE concerned who had prepared those MRs, since for different wards and area, different JEs prepared various such MRs during the period. According to the said separation of MRs, few other FIRs were registered, including the FIR of the present case.
2.4. In the present FIR, we are concerned with Seventy-Eight (78) Muster Rolls.
These 78 MRs were issued to A1, as he was working as JE at the relevant. It is alleged that under the 78 MRs prepared by A1, he had reflected and claimed to have engaged total 960 labourers desilting of drains, during the period March to June, 2002. After closing these MRs, A1 submitted them for payment, through A2 & A3 and the discharged accused. Total payment of Rs. 21,58,176/- with respect to payment of wages of labourers engaged under those MRs was collected on different dates from cashier for disbursement. Out of it, Rs.1,04,152/- is claimed to have been disbursed to casual labourers, whereas remaining Rs. 20,54,024/- was returned and redeposited with the MCD.
2.5. Before registration of FIR of the present case, an inquiry was conducted by Inspector R. S. Khatri, who scrtunised the 78 MRs prepared by A1 and tried to verify the labourers named in MRs, and found that Nine persons claimed that though they had worked for desilting of drains, but they have not been paid complete wages and that their signatures / thumb impressions on the respective entries in the MRs were forged. Inspector R. S. Khatri also found Seven more persons who also claimed that they had also worked for desilting but were not paid wages. Qua the last mentioned Seven persons Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 3 of 49 4 no wages were shown to have been disbursed in the MRs. Accordingly, Inspector R. S. Khatri got the present FIR registered on 24.05.2004.
2.6. During investigation of the present case, the investigating officer verified various labourers named in the MRs and as per the final report, following Twelve persons claimed that though they had worked for desilting of drains, but they did not receive wages and their signatures/thumb impressions on the MRs in token of receipt of wages, were forged. The tabulated information of those 19 entries, qua Twelve persons, in Seven MRs, as mentioned in the charge sheet, is as follows.
Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 4 of 49 5 2.7. From amongst the abovementioned persons, specimen signatures of five labourers, namely, Ashok Kumar, Rajesh, Satpal, Yash Kumar and Devender and specimen thumb impressions of three labourers, namely, Yashpal, Umed and Hari Kishan, were collected and were got compared and the hand writing expert opined that the questioned signatures/thumb impressions do not tally with the respective specimen of the labourers.
2.8. The case of investigating agency is that under CPWD Manual Rule 9.5, 9.12 & 9.13, as applicable to MCD, both the AE & EE were responsible to conduct surprise checks at the site and since they failed to notice and detect the bogus names in the MRs and did not check the labourer working at the site, and also they failed to notice the fake payments and signatures, therefore, they were in connivance.
2.9. Sanction U/s 19 of POC Act, 1988 were obtained against the accused persons and they were charge sheeted for the above-mentioned offences.
3. Vide order dated 11.10.2013, S. S. Negi was discharged by the Ld. Predecessor Court observing that there was no direct role attributed to him as regards the preparation of MRs or certification thereof and payments were also not made in his presence, therefore, he cannot be roped in U/s 120B of IPC.
4. Qua the remaining three accused, charge U/s 120B of IPC and Sec.
13(1)(c)/13(2) of POC Act, 1988 as well as Sec. 409/420/468/471 r/w Sec. 120B of IPC was framed. All the three accused pleaded not guilty and claimed trial.
5. In support of its case, prosecution examined total 26 witnesses. It may be mentioned here that inadvertently two witnesses were numbered as PW17.
5.1. From MCD, the witnesses examined are PW17 Bharat Bhushan, PW17 K. S. Mehra, PW24 Naresh Kumar and PW25 Ashok Kumar.
Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 5 of 49 6 5.1.1. PW17 Bharat Bhushan deposed that he was posted in Vigilance Department of MCD at the relevant time and was deputed along with officers of Audit / Accounts department of MCD to ensure that payments of wages to the labourers were made in their presence, in which payment to the tune of Rs. 20-25 Lakh were disbursed (Including the payments of other MRs in other such cases). He claimed that from amongst the labourers engaged by A1 only an amount of Rs. 25,000/- could be disbursed, in the month of February 2003 or 2004, as the labourers did not turn up for collecting wages.
This witness was subjected to cross examination by the Ld. Prosecutor after declaring him partially hostile in which the witness claimed that payments were released to only those persons whose identity could be verified on the basis of documents produced by them and that A1 had certified them to be the persons who had actually worked for desilting. He claimed that a large number of labourers were present outside the office and to whom payments were not released for want of verification of their identities.
In the cross examination by the accused persons, the witness admitted that payments were being disbursed by the witness and others inside the office, whereas the labourer were waiting outside the premises and, at the time of payment, name and addresses of the labourers mentioned in the MRs were being compared with the Id proof brought by them and also that the payment qua this case could be made only on one day. The witness also admitted that A1 was not even present at the time of disbursement of wages to the labour and that the payments through Vigilance & Audit Department were released in compliance of directions dated 14.01.2003 Ex.PW17/DA.
Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 6 of 49 7 5.1.2. PW17 K. S. Mehra (wrongly re-numbered) was Commissioner of MCD who accorded and proved Sanction U/s 19 of POC Act against A2 & A3, as Ex.PW17/A. Similarly, PW24 Naresh Kumar the then Additional Commissioner in MCD accorded and proved Sanction U/s 19 of POC Act against A1 as Ex.PW24/A. In the cross examination, PW24 admitted that the appointing and dismissal authority for the post of Junior Engineer, who falls in Category C employee, was the Commissioner of MCD. But he clarified that the said power was delegated to Additional Commissioner of MCD as is also mentioned in the Sanction Ex.PW24/A. 5.1.3. PW25 Ashok Kumar was a member of the Audit Team along with accountant Jagdish Rajesh, Senior Auditor Mr. Bhasin, LDC Mr. Naresh Kumar and, auditor Ms. Raj Kumari. They conducted internal audit of the MRs in question as well as other MRs qua other JEs. He deposed that during audit, some of the casual labourers shown to have been engaged in the MRs prepared qua the CSE West Zone, it was noticed that some of them were claimed to have worked on the same date and time at two different places. The witness also deposed that subsequently vide order dated 14.01.2003 Ex.PW17/DA, this witness along with Naresh Kumar (LDC) and Surender Singh (Senior Vigilance Inspector) were deputed as a team to supervise the distribution of wages to the labourers. Witness claimed that at the time of disbursement of wages, A1 & A3 completed the verification of identity of the labourers. He claimed that payment to all the labourers under the MRs in question were not made in his presence, and that some wages had already been disbursed by the accused persons prior to the visit of the vigilance / audit team. He claimed that some of the wages had been disbursed by the accused persons even prior to the internal audit conducted by MCD. Qua the payments made in presence of the members of Vigilance team, the witness deposed that even at that time the identification and verification of identity of labourers who collected payment was that of the Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 7 of 49 8 concerned JE / AE and at that time the JE / AE collected photographs, copy of Id proof of the labourers and they also certified in writing on the copy of Id proof to the effect that the said person had actually worked under the MR in question. He also deposed that in some cases where the labour named in MR did not carry id proof, such person had produced affidavit sworn before SDM and in those cases the certificate was given by the accused persons on the back side of affidavit. He claimed that those certificates were retained by Surender Singh, Senior Vigilance Inspector. In the cross examination by the accused persons, the witness claimed that the team for making payment was constituted sometime in January 2003 and all the record relating to the payment were with Mr. Surender. The witness admitted that he was unaware whether the proof collected at the time of payment were provided by Mr. Surender Singh to the IO or not.
5.2. The hand writing expert PW18 Devak Ram was the Senior Scientific Officer (Documents), FSL, Delhi who proved his report Ex.PW18/B. 5.3. From amongst the police officials, 5.3.1. PW4 SI K. L. Meena was the duty officer who proved registration of FIR and endorsement on rukka Ex.PW4/A & B. 5.3.2. PW19 Ct. Manoj Kumar witnessed obtaining of specimen thumb impressions / signatures of the labourers.
5.3.3. PW20 the then Inspector R. S. Khatri was the inquiry officer who conducted inquiry qua the MRs prepared by A1. He deposed that about 16 labourers claimed to have worked under the MR in question and out of them nine persons claimed that their signatures / thumb impressions on the MR towards payment of wages were forged and that they had not received wages. Whereas other seven persons who also claimed to have worked, qua them no payment was shown to have been made even in the relevant entries in MRs. Thereafter, he prepared rukka and got the FIR registered. Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 8 of 49 9 In the cross examination by the accused persons the witnesses admitted that during inquiry he had recorded signed statements of the labourers examined by him which he claimed to have submitted along with the inquiry report. However, no such signed statement of the labourers were proved in this case. The witness also claimed that during inquiry he had issued notices to various labourers and copies of all those notices were also submitted with the inquiry report. But even those notices are not on record. The witness admitted that he did not make any inquiry from the Vigilance Branch of MCD as regard disbursement and therefore cannot admit or deny that disbursement of wages was made in compliance of letter Ex.PW17/DA. He even denied knowledge that all the wages were disbursed to all the labourers during tenure of another JE namely Hari Om.
5.3.4. PW21 the then Inspector S. S. Sandhu conducted part investigation of the case during which he seized the 78 MR in question from Inspector R. S. Khatri vide seizure memo Ex.PW20/C and received the inquiry report from Inspector R. S. Khatri. He deposed that during investigation he tried to contact the labourers named in 78 MR and had visited Village Nilothi and Hastsal, but could not find those labourers and thereafter he was transferred. No details are forthcoming in the testimony of this witness or in the charge sheet as to who were those labourers who could not be found by this witness and, in which MRs were they named. During cross examination by the accused, the witness claimed that he did not visit the concerned sites which were to be desilted and did not receive any complaint that the work was not done.
5.3.5. PW22 the then Inspector Harvinder Singh also conducted part investigation of the case and he deposed that during investigation he recorded statements of certain labourers and also obtained specimen signatures / thumb impressions of few of them and thereafter investigation was transferred from him to some other IO.
Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 9 of 49 10 During cross examination of this witness by the accused, even this witness claimed that he did not receive any complaint from MCD regarding the desilting work not done. He also claimed that he did not know as to for which period A2 & A3 were posted in the West Zone and that he did not collect admitted signatures of the labourers who denied having signed the MRs in question.
5.3.6. PW23 the then Inspector Roop Lal deposed that he conducted investigation of this case during which he visited addresses of the labourers named in the MRs; obtained specimen signatures / thumb impressions of Yashpal (PW1); Manoj (PW8); Rajender (PW7); Umed (PW15); Mukesh (PW9); Yash Kumar (PW6) and; that of one Devender. He also deposed that he got the specimens compared with the questioned signatures / thumb impressions; then obtained Sanction against the accused persons; sought Estimate report, Inspection report, Measurement Book and other Registers and documents qua the desilting work by sending requests U/s 91 Cr.P.C., but those documents were not supplied by MCD claiming that they were not traceable vide reply of MCD Ex.PW23/C-1. He deposed that out of Rs. 21,58,176/- a sum of Rs. 1,04,152/- was distributed to the labourers and the balance Rs. 20,54,024/- were re deposited with the cashier. He deposed that out of 960 labourers named in 78 MRs signatures / thumb impressions of about 12 persons were found to be not matching in the expert's report and they had also not received the wages, whereas other 7 persons named in the MRs who were shown to have been paid wages did not actually exist. Here, it may be mentioned that though this witness claimed that 7 persons named in the MRs did not actually exist, but neither in the charge sheet nor in the evidence of any of the witnesses it has come as to what were the name, address, entry number or the MRs number containing those entries, who could not be found. The witness also deposed that the accused persons did not comply with the CPWD Manual and therefore they were involved. Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 10 of 49 11 In the cross examination by the accused persons, this witness admitted that he did not learn from anyone that the work of desilting was not done or was partly done. He also claimed that as per Ex.PW17/DA the wages were to be disbursed by the officials of Vigilance Department etc., but clarified that even in that eventuality the labourers were to be identified by the JE concerned i.e. A1 and also as per CPWD Manual it was responsibility of A1 to identify the labourers. Even this witness claimed ignorance as to when A2 joined the Ward in question and that some part of payment to the labourers were made in the month of April and May 2002 in presence of Vigilance team. However, he denied the suggestion that all the payments to the witnesses were made in those two months in presence of Vigilance Team only.
5.4. From amongst the panch witnesses, 5.4.1. PW10 Nand Kishore, PW11 Rajender Singh Bansal and, PW12 Narayan Singh, all witnessed obtaining of specimen signatures/ thumb impressions of the persons who had claimed to have worked but not signed the MRs.
5.5. From amongst the Labourers, the witnesses examined are PW1 to PW3, PW5 to PW9 and PW13 to PW16. Their testimonies are discussed here after at appropriate stage in order to avoid repetition.
6. On completion of prosecution's evidence, all the incriminating evidence was put to the three accused in their respective statements U/s 313 of Cr.P.C.
6.1. A1 Mohd Salman Aquil claimed that entire desilting work was completed;
no amount was misappropriated; there was no condition at the time when labours were engaged in the MRs in question to check the Id proof of the labours; the Sanction was granted mechanically and by an incompetent officer; the wages to the labours were not disbursed by him and it was Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 11 of 49 12 disbursed by the team constituted from Vigilance and Audit Department; he claimed ignorance as to the disbursal of wages by the Vigilance team; he did not certify the identity of any person at the time of disbursal of wages, claiming that at that time he had no role to play and it was the responsibility of the Special Team; he claimed that the labourers were engaged from the open market and whatever names and addresses those labourers disclosed, it was noted in the MR; it was a false case against him and instead the members of special team which disbursed the wages were negligent, but out of fear of prosecution and in order to protect them, he was implicated. He claimed innocence and also opted to lead evidence in his defence.
6.2. A2 H. W. Madan claimed that the investigation was done unfairly manifesting pick & choose policy; he joined the Ward in question on 04.04.2002; Sanction was granted without application of mind and mechanically; no amount was either withdrawn by him or disbursed by him and that during his tenure from 04.04.2002 to 31.05.2002 only a sum of Rs. 25,000/- were disbursed by the Vigilance Team with which he had no concern; the CPWD Manual was not applicable to MCD; and that he was innocent. Even this accused opted to lead evidence in his defence.
6.3. A3 M. K. Gupta admitted that he was working as AE at the relevant time, but he also claimed that entire desilting work was completed; no funds were misappropriated; there was no condition at the time when labours were engaged in the MRs in question to check the Id proof of the labours; the Sanction was granted mechanically and by an incompetent officer; the wages to the labours were not disbursed by him and it was disbursed by the team constituted from Vigilance and Audit Department; he claimed ignorance as to the disbursal of wages by the Vigilance team; it was a false case against him and instead the members of special team which disbursed Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 12 of 49 13 the wages was negligent, but instead he was implicated. This accused also claimed innocence and opted to lead evidence in his defence.
6.4. A1 & A3 examined two witnesses in their defence.
6.5. DW1 Smt. Pramod Verma proved certain official notes, communications as Ex.DW1/A-1, Ex.DW1/B-1, Ex.DW1/C-1, Ex.DW1/D-1 & Ex. DW1/E-
1. Out of it, Ex.DW1/A-1 is an office note dated 21.01.2002 which was signed by DW2 Ravi Dass. In this office note, it is mentioned that for the purposes of desilting of drains below 6 feet in depth and width which are supposed to be got done by labour engaged on MR basis, the trucks and labour be taken from market. Ex.DW1/B-1 is a circular dated 25.09.2009 in which it is mentioned that all the payments to the labourers should be made by 07.11.2002 but only in the presence of officials of Vigilance Department and some other independent observer of MCD and payment should be made only when some convincing proof of residence is furnished by the labour such as attested copy of ration card, election id card, driving license or an affidavit duly signed by the Executive Magistrate / SDM. It is also mentioned in Ex.DW1/B-1 that after 07.11.2002 no payment should be made to the MR employees and in future without mentioning complete bio-data with proof of residence, age and three photographs no one should be employed on MR. Ex.DW1/C-1 prescribed that the circular Ex.DW1/B- 1 be strictly complied with. Ex.DW1/D-1 is a letter dated 14.01.2003 under which a team of three officials was constituted to oversee the disbursal of payments. Similarly, the communication Ex.DW1/E-1 dated 16.03.2004, a circular issued by Direction-in-Chief, CSE, specifies that since the departmental labour were not available locally, and in view of urgency of work of desilting before monsoon, the labourer may be engaged even from belonging to outside Delhi and the concerned EE(CSE) shall not insist on the condition of ration card for engaging the labour and payment to such labourers may be made in cash instead of cheque in order to avoid delay Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 13 of 49 14 and inconvenience to the labourers.
6.6. DW2 Ravi Dass identified his signature on Ex.DW1/A-1 as well as E-1.
He had worked as Director in CSE. He deposed that the work of desilting of drains was of such a nature that most of the labourers would not like to do that work and the said work used to be got done from labourers in open market who otherwise could not find any other work to do and it was not expected from those persons to carry Id proof. He claimed that no complaint was received from any corner that the work was not done or was done unsatisfactorily. In the cross examination, he admitted that it was the responsibility of JE to remain present at the time of disbursement of wages. He also claimed that that AE was also supposed to be present at the time of payment to oversee that the person receiving payment is signing the MR.
6.7. A2 examined himself in defence as DW3, in which he simply proved his transfer order Ex.DW3/A, according to which he joined the West Zone of CSE department on 3rd or 4th April, 2002.
7. I have heard Ld. Prosecutor for the State and Ld. Counsels for both the accused.
7.1. Ld. Prosecutor for the State argued that from the testimonies of the public persons i.e. the labourers examined in this case, it is proved beyond doubt that various labourers who were claimed to have been engaged for desilting by A1 under the MRs in question actually did not work and did not sign the MRs against receipt of payments whereas payments were claimed to have been made to them or that they did not get payment against work, therefore, the case of prosecution about the MRs prepared falsely; forgery of signatures; using forged MRs for collecting payments from the cashier and; misappropriation of money, is made out against all three accused.
7.2. On the other hand, on behalf of A1 & A3, it is argued that there was no complaint or allegation from any corner that the work of desilting was not Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 14 of 49 15 completed or it was unsatisfactorily done and therefore necessary inference is that the said work was done and the requisite number of labourer were not only required but were also engaged and those labourers worked for desilting. It is also argued that a sum of Rs. 21,58,176/- was withdrawn towards payment of wages of labourers, out of which Rs.1,42,520/- was disbursed by the Vigilance Team, and the remaining amount of Rs.20,54,024/- was deposited back in the MCD, therefore, there was no wrongful loss caused to MCD and consequently there is no wrongful gain to the accused persons. Accused argues that the alleged discrepancies in the MRs does not indicate any culpability of accused as wages were disbursed by the Vigilance Team in terms of Ex.DW1/B1. It is argued that the labourers were engaged from open market in terms of Ex.DW1/A1 and since the number of labourer engaged were very high, the same were engaged through contractors, which is also admitted by the prosecution witnesses, and that JE cannot feasibly engage 960 labourers without contractor, therefore A1 cannot be faulted with. It is also argued that Ex.DW1/A1 did not stipulate any requirement of either checking or verifying or keeping on record Id or residence proof of the labourers engaged and, due to the very nature of work of desilting, it used to be done by only those persons who could not find any other work and such persons might have given incorrect particulars or particulars of someone else to conceal their identities, in order to save themselves from embarrassment for doing such kind of work. It is also claimed that the said fact is clear from Ex.DW1/E1, circular dated 16.03.2004, which speaks about engagement of labour from outside Delhi due to non-availability of departmental labour and non-insisting upon the condition of ration card and payment of wages in cash to the labourers. It is also argued that most of the labourers examined in this case admitted that they were engaged through Mates / Contractors and even many of them accepted that payment was Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 15 of 49 16 made to them by the Mates / Contractors, therefore it strengthens the arguments of A1 that A1 did not engage those labourers and instead they were engaged by the contractors, otherwise A1 would not have been in a position to note the particulars of those witnesses in the MRs. It is also argued that even though the wages to the labours were disbursed by the vigilance team and, as per Ex.DW1/D1 dated 14.01.2003, pursuant to Ex.DW1/B1 dated 25.09.2002, name of Ashok Kumar, Naresh Kumar and Surender Singh were mentioned as the persons deputed for disbursement of payment, yet despite the fact that they disbursed the payments, Naresh Kumar and Surender were not examined as witnesses in this case. It is argued that there is no evidence led by the prosecution to show that payments to any of the disputed entries in question in this case were released in presence of any of the accused, which even otherwise is against circular Ex.DW1/B1 dated 25.09.2002. It is claimed that in order to save the members of Vigilance Team, the accused persons have been implicated. It is also argued that Sanction granted against the accused is illegal as the documents Ex.DW1/A1 to E1 were deliberately concealed by the investigating agency from the sanctioning authority as also the fact as to who disbursed the amount and therefore sanction is invalid. It is also argued that there is no evidence to the effect that any payment was entrusted to A1 at any point of time and therefore there is no question of misappropriation or criminal breach of trust. It is also argued that the alleged residential proof of the labourers, collected at the time of disbursal of wages, as admitted by the witnesses from MCD, were concealed by the prosecution and were not proved and it was because of the fact that A1 was not physically present at the time of disbursal. It is also argued that so far as A3, as an AE is concerned, he had absolutely no role in either preparation or maintenance of the MRs or engagement of labourers or payment of wages.
Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 16 of 49 17 7.3. On the other hand, in addition to the arguments raised by A1 & A3, A2 argues that PW1, 2, 3 and 13 are unreliable witnesses; the testimonies of PW17 Bharat Bhushan and PW25 Ashok Kumar are not against A2 at all and also the IO PW23 Roop Lal did not depose anything against A2. Even A2 challenges the Sanction against him claiming that the sanction order does not find mention as to the documents perused by the sanctioning authority and therefore it is without application of mind and he relies upon the cases of Mansukhlal Vithaldas Chauhan Vs. State, JT 1997 (7) SC 695; K. C. Singh Vs. CBI, Crl. Appeal no. 976 of 2010, decided by DHC on 10/08/2011 and; Om Prakash Vs. State & Ors. 2009 (2) JCC 1210. It is also argued that there is no evidence qua conspiracy and in that regard A2 also relied upon the cases of Kehar Singh & Ors. Vs. State (Delhi Administration) 1988 (3) SCC 609 and the case of John Pandian Vs. State (2010) 14 SCC 129, on the point that necessary ingredients of the offence of conspiracy are not fulfilled in the present case.
8. As mentioned above, it is an admitted case of the three accused that they were respectively posted as JE and AE in the concerned Ward at the relevant time. It is not in dispute that under the MRs in question work of desilting was initiated and for that purpose A1 engaged casual labourers from open market and named 960 total number of casual labourers in the 78 MRs.
9. Though, all three accused challenged the Sanction, claiming that the Sanction was accorded without application of mind by the Sanctioning Authority, but besides making those bald allegations no substantive argument could be raised and nothing substantive could be shown to the Court by any of the accused as to why the Sanctions Ex.PW17/A & 24/A are not valid. The Sanction orders, specifically mentions in detail as to the material taken into consideration by the sanctioning authority before according the sanctions. Merely because the Sanctioning Authority did not Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 17 of 49 18 personally peruse the MRs in question, and the subsequent circulars as to payments of wages and engagements of labourers were not sent to the Sanctioning authority, it is insufficient to hold that the Sanctioning authority accorded Sanction without application of mind.
9.1. The case of Mansukhlal Vithaldas Chauhan (supra), relied by A2, is distinguishable on facts. In that case while the matter of grant of sanction was under the consideration of the State Government, a petition was filed in the Gujarat High Court under Article 226 of the Constitution for a Writ in the nature of Mandamus directing the State Government to grant sanction. In that petition, the Secretary of the Department who, originally was not impleaded, was, subsequently, arrayed as Respondent 7 and a direction was issued to him to grant sanction and the Secretary, acting in pursuance of the order of the High Court, granted the sanction. 9.2. Similarly, the case of K. C. Singh Vs. CBI (supra), relied by A2, is distinguishable on facts as in that case perusal of the sanction order, which admittedly was the verbatim copy of the draft sanction order sent by CBI, so far as facts of the case are concerned, revealed that it referred to some other CFSL report and not the CFSL report pertaining to that case. That factor, by itself, reflected non-application of mind by the sanctioning authority to the material collected during investigation of the case. 9.3. Similarly, the case of Om Prakash (supra), relied by A2, is distinguishable on facts.
9.4. In the case of Vinod Kumar Garg v. State (NCT of Delhi), (2020) 2 SCC 88, it is observed as follows;
"25. On the said aspect, the later decision of this Court in State of Maharashtra v. Mahesh G. Jain [State of Maharashtra v. Mahesh G. Jain, (2013) 8 SCC 119: (2014) 1 SCC (Cri) 515: (2014) 1 SCC (L&S) 85] has referred to several decisions to expound on the following principles of law governing the validity of sanction: (SCC pp. 126-27, para 14) "14.1. It is incumbent on the prosecution to prove that the valid sanction has been Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 18 of 49 19 granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
14.2. 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.
14.3. 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 it.
14.4. 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.
14.5. 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. 14.6. If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction.
14.7. The order of sanction is a prerequisite as it is intended to provide a safeguard to a 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." ...............
28. This Court in Ashok Tshering Bhutia v. State of Sikkim [Ashok Tshering Bhutia v. State of Sikkim, (2011) 4 SCC 402: (2011) 2 SCC (Cri) 258: (2011) 2 SCC (L&S) 697] referring to the earlier precedents has observed that a defect or irregularity in investigation however serious, would have no direct bearing on the competence or procedure relating to cognizance or trial. Where the cognizance of the case has already been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless a miscarriage of justice has been caused thereby. Similar is the position with regard to the validity of the sanction. A mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby. Section 19(1) of the Act is matter of procedure and does not go to the root of the jurisdiction and once the cognizance has been taken by the court under the Code, it cannot be said that an invalid police report Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 19 of 49 20 is the foundation of jurisdiction of the court to take cognizance and for that matter the trial."
9.5. In the case of Girish Kumar Suneja v. CBI, (2017) 14 SCC 809, a three judges bench of Supreme Court made following observations: -
"67. In CBI v. V.K. Sehgal [CBI v. V.K. Sehgal, (1999) 8 SCC 501: 1999 SCC (Cri) 1494] it was held that for determining whether the absence of, or any error, omission or irregularity in the grant of, sanction has occasioned or resulted in a failure of justice, the court has a duty to consider whether the accused had raised any objection on that score at the trial stage. Even if it had been raised at the trial and early enough, it would not be sufficient to conclude that there was a failure of justice. Whether in fact and in law there was a failure of justice would differ from case to case but it was made clear that if such an objection was not raised in the trial, it certainly cannot be raised in appeal or in revision. It was explained that a trial involves judicial scrutiny of the entire material before the Special Judge. Therefore, if on a judicial scrutiny of the evidence on record the Special Judge comes to a conclusion that there was sufficient reason to convict the accused person, the absence or error or omission or irregularity would actually become a surplusage. The necessity of a sanction is only as a filter to safeguard public servants from frivolous or mala fide or vindictive prosecution. However, after judicial scrutiny is complete and a conviction is made out through the filtration process, the issue of a sanction really would become inconsequential."
10. Here, it would be appropriate to discuss the testimonies of labourers who had worked for desilting, and had deposed about receiving / non-receiving of payment and / or signing / non-signing on the MRs. Twelve such witnesses have been examined by the prosecution.
11. It may be mentioned here that in this case, not even a single witness has been examined by the prosecution about any labourer named or claimed to have worked, who was found non-existent person. Though, in the testimonies of the investigating officers there is a mention that many addresses mentioned in the MRs as to the labourers, were found not existing, but neither the investigating officers nor any other witness from Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 20 of 49 21 public specified as to which address of the labourer named in which of the MRs was found to be not existing. Though it was claimed that many notices were sent to the labourers and that several such notices were received back with report of incorrect address, but not even a single notice has been proved. Nobody from public persons either residing on the given address where the labour was not found residing or as to incorrect address has been examined in this case. It is not even mentioned, either in the charge sheet or in the evidence as to which particular address of labour and as to which entry in the MRs was not locatable.
12. Therefore, the entire case of the prosecution in this case pertains to the fact that some of the labourers who had actually worked for desilting, did not sign the relevant entries in the MRs and their purported signatures / thumb impressions were forged and / or that some of them did not get their wages at all or partially.
13. From amongst the 12 labourers examined by the prosecution, 13.1. PW2 Ashok Kumar turned hostile to the case of prosecution and did not support the case of prosecution. He claimed that he was not only employed by A1 but he also received entire wages. He even identified his thumb impressions and signatures on the four MRs, Ex.PW1/A, 1/B, 1/C & 2/A. The witness admitted that he gave specimen signatures during investigation in English as well as Hindi.
The witness was cross examined by the Ld. Prosecutor and in the cross examination by the prosecution, the witness claimed that before the investigating officer he had correctly stated that he saw the MR Ex.PW1/A, and that the thumb impression on it was forged as he used to sign either in English or in Hindi. He also admitted the suggestion that since he was literate, he would sign and not append thumb impression. However, in the same cross examination by the Ld. Prosecutor, he denied the suggestion Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 21 of 49 22 that he deliberately did not give straight answer as to the questioned thumb impression on Ex.PW1/A. In the cross examination by the accused, the witness claimed that he cannot admit or deny that he had put the thumb impression in question on Ex.PW1/A in a rush of time, but he admitted that on account of rush of time, some labourers used to append thumb impressions instead of signatures.
13.1.1. Thus, the testimony of PW2 does not convincingly leads this Court to any particular direction. The witness did not admit in the cross examination of the prosecution that the questioned thumb impression at point B on Ex.PW1/A belonged to him or did not belong to him. Interestingly, the investigating agency did not send this questioned thumb impression for comparison and even specimen thumb impressions of this witness were not obtained. Only his specimen signatures were obtained in both the languages which were sent for comparison with the signatures questioned as Q1 to Q3 on Ex.PW2/A, Ex.PW1/B and Ex.PW1/C. The hand writing expert's opinion Ex.PW18/B reports that the questioned signatures on these three MR are different from the specimen signatures of this witness on Ex.PW2/B & C. In the cross examination by the prosecution, the witness was not questioned as to his signatures on Ex.PW2/A, 1/B and Ex.PW1/C. He was questioned only regarding thumb impressions on Ex.PW1/A. In any case, the opinion of a hand writing expert is in the nature of corroborative evidence only and once this witness did not support the case of prosecution as to his questioned thumb impressions or signatures, the hand writing expert's opinion leads to nowhere. Thus, the testimony of this witness does not support the case of prosecution at all.
Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 22 of 49 23 13.2. However, all the remaining eleven labourer witnesses of the prosecution have supported the case of prosecution.
13.3. PW1 Yashpal deposed that he was engaged by A1 and some part payment was made to him qua his wages for working as a labourer for desilting of drain but he did not receive entire wages. Out of his three entries on Ex.PW1/A, B & C (at Serial no. 4), the witness admitted his signatures on MR no. 523 & 675, respectively Ex.PW1/B & C, and claimed that those payments were received by him, but specifically deposed that his thumb impression on MR No. 452 Ex.PW1/A were not appended by him as he used to sign in English and that the said thumb impression is forged.
13.3.1. Qua testimony of this witness, it is argued on behalf of A2 that since this witness admitted his signatures on the two so-called disputed entries Ex.PW1/B & C, therefore the entire testimony of this witness has to be excluded. The said argument of accused cannot be accepted for the reason that though the witness admitted two entries and his signatures on those two entries, but the witness specifically also deposed that he used to put signatures and not thumb impressions, whereas in the entry in Ex.PW1/A what is found appended is thumb impression in the name of this witness. The very fact that the witness admitted two entries but disputed the third one, indicates that the witness was deposing truthfully otherwise the witness could have denied all the three entries. Since the witness specifically admitted that Rs. 617/- and Rs. 2674/- were received by him which were paid by one Mate working under A1, therefore from the testimony of PW1 the obvious evidence against accused is that Rs. 1778/- qua entry in Ex.PW1/A were not paid to the witness and someone forged the thumb impression at Point Q-51 on this document. Though, PW1 did not specify in exact words as to how much amount due towards him remained unpaid, but when he admitted receiving other two payments and disputed his thumb impression on third payment only, it is but obvious that Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 23 of 49 24 this witness was not paid Rs. 1778/- against entry at Sl.No.4 on MR no. 452 Ex.PW1/A. 13.4. PW3 Rajesh Kumar also deposed that he was engaged by A1 for desilting of drains, but he was not paid entire wages. Qua the four entries about this witness on MR Ex.PW1/A, B, C & Ex.PW2/A, the witness deposed that on Ex.PW1/A, 1/C & 2/A, the thumb impressions and signature are forged and he did not append those thumb impressions / signatures, claiming that he signs in Hindi and does not append thumb impression. Qua the fourth entry, the witness was not sure and claimed that the signature on Ex.PW1/B may or may not be his signature. The witness admitted his specimen thumb impressions and signatures Ex.PW3/A to 3/C. The hand writing expert's report Ex.PW18/B confirms that the specimen signature of this witness does not match with the questioned signatures at Point Q4 on MR no. 523 Ex.PW1/B, & Q5 on MR no. 675 Ex.PW1/C. The questioned thumb impressions Q51 & Q52 on Ex.PW1/A & 2/A, were not even sent to the expert with the specimen of the witness for comparison. Anyhow, the witness did specifically depose that out of the four questioned entries, three are forged.
13.4.1. The testimony of this witness is sought to be challenged by A2 claiming that the witness is unreliable since in his cross examination the witness admitted that he was paid his wages only once but he could not recollect the amount received; he did not complain about non-receipt of wages; his identity as Rajesh is questionable as also the fact whether the witness occupied the house in question.
13.4.2. None of these arguments are enough to create any doubt as to veracity of this witness. The witness was examined more than 12 years after the incident in question and therefore if he could not recollect exact amount received by him, he cannot be faulted with. As to his identity and residence, Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 24 of 49 25 he clarified that house numbers in the village were not in serial order and house numbers were allotted / changed subsequently, therefore nothing can be read in favour of the accused out of those answers. Even if the witness supplied his driving license to the IO during investigation containing house no. 83 instead of the house number mentioned in the disputed entries, that would not be enough to reject his testimony as investigation commenced in this case after more than two years from the date of incident. The witness specifically deposed that he used to sign in Hindi, whereas out of the three disputed entries, two entries bear thumb impression and the third bears signature. Thus, from the testimony of this witness, it is proved that the three entries at Sl.No. 3 on MR Ex.PW1/A, 2/A & 1/C, respectively are forged and that the witness did not receive those three amounts mentioned in those three entries i.e. respectively Rs. 1778/-, Rs. 592/- and Rs. 2674/-.
13.5. PW5 Hari Krishan deposed that he worked under MR no. 445 Ex.PW5/B, entry at Sl.No. 8 and that he received Rs. 1000/- as wages, but his thumb impressions Q-60 on this entry were forged as he used to put signatures only and not thumb impressions. Against this entry, a sum of Rs. 2371/- is shown to have been paid to PW5. Even specimen thumb impressions of this witness were not sent for comparison by an expert.
13.6. PW6 Yash Kumar also supported the case of prosecution claiming that he too was paid part payment of Rs. 1600/- only and the remaining wages were not paid and that his questioned signatures at Point Q-10 on MR no. 445 Ex.PW5/B were forged and he did not append the signature on the MR. His specimen signature Ex.PW6/A were admitted by the witness. The hand writing expert's opinion Ex.PW18/B also supports that the questioned signature of this witness does not match with his specimen.
13.7. PW7 Rajender also deposed that he was paid only partially i.e. Rs. 1000/-
qua his work done under MR no. 477 Ex.PW2/A, and his remaining wages Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 25 of 49 26 were not paid, but the thumb impressions at Point C & D against entry at Sl.No. 5 & 7 on the same MR Ex.PW2/A are forged and he did not append those thumb impressions. His specimen thumb impressions were taken vide Ex.PW7/A, but they were not sent for comparison by an expert. The witness specifically deposed that it was A1 who had engaged him as a labour. Perusal of Ex.PW2/A reveals that at Sl.NO. 5 the name of labour mentioned is Rajbeer Singh S/o Kalu Ram R/o 217, Nilothi Village, whereas the entry at Sl.No. 7 is in the name of Rajender S/o Kalu Ram R/o 227, Nilothi Village. The age against both those entries are mentioned as 25 years and 26 years, respectively. Therefore, it seems that those two entries do not pertain to the same person, though the father's name may be same. Neither the prosecutor, nor during cross examination the accused, asked the witness as to whether the witness had any brother by the name of Rajbeer or not. Thus, prosecution cannot claim that both these entries in the same MR pertain to the same person. The witness did not recollect his house number, when he was questioned in the cross examination, nor he had furnished any address proof to the IO.
13.8. PW8 Manoj deposed that though he worked as a labour for desilting under entry at Sl.No. 13 on MR no. 462 Ex.PW8/A, but he was not paid his wages at all and his questioned thumb impressions at point Q54 on this MR were forged, which are shown to have been appended in token of receipt of Rs. 2371/-. The witness specifically claimed that he had not signed any MR entry and he was not paid any amount. Even specimen thumb impression of this witness on Ex.PW8/B, were not sent for comparison by an expert.
13.9. PW9 Mukesh S/o Mathu Ram also deposed that he too was paid partially i.e. Rs. 1600/- and he did not get his complete wages. He also deposed that his questioned thumb impressions at Point A on MR no. 445 Ex.PW5/B at Sl.No. 6 are forged as he used to sign and not append thumb impressions. His specimen thumb impressions Ex.PW9/A were though obtained but, Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 26 of 49 27 they were also not sent for comparison. In this entry, this witness is shown to have been paid Rs.2371/-, whereas the witness claims that he received only Rs. 1600/-.
13.10. PW13 Satpal deposed that he too worked as labour for desilting under two different MR no. 640 Ex.PW13/A & MR no. 516 Ex.PW13/B, at Sl.No. 13 on both the MR. He deposed that so far as entry on Ex.PW13/A is concerned; it bears his genuine signatures at Point Q-7. He claims that he was paid about Rs. 2300 or 2400/-, whereas the entry on Ex.PW13/A finds mention that he was paid Rs.2674/-. The witness confirmed that even Ex.PW13/B contains his correct name and address. In the cross examination by the accused, the witness though admitted that Ex.PW13/B does not bear any signature, but the said statement is factually incorrect as Ex.PW13/B does bear one Revenue Stamp with the signature in the name of Satpal. On this MR at the relevant page from amongst Sl.No. 8 to 14, besides Satpal mentioned at Sl.no. 13, there is no other labour who worked by the name of Satpal. It seems that the questioned signature of this witness on the Revenue Stamp, 'Q-6', were not inadvertently put to the witness in his examination in chief and therefore the witness did not specifically answer whether they were or were not his signature. The hand writing expert's opinion Ex.PW18/B mentions that the signatures at point Q-6 & Q-7 on both those MR, does not tally with the specimen signatures of this witness on Ex.PW12/A. Since in the ocular testimony of this witness the disputed signature on Ex.PW13/B were not even shown to the witness and no answer was elicited from the witness by the prosecution as to whether or not those signatures belong to him, merely on the basis of hand writing expert's opinion, which at the most is in the nature of an expert's opinion and thus a corroborative evidence only, the accused cannot be faulted with.
13.11. PW14 Mukesh S/o Nafe Singh deposed that he too worked as a labour for desilting under entries in MR no. 445 Ex.PW5/B at Sl.No. 11 as well as Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 27 of 49 28 MR no. 516 Ex.PW13/B at Sl.No.5. He claimed that the thumb impression on Ex.PW5/B were not appended by him and were fake and he did not receive Rs. 2371/- as mentioned in that entry. This thumb impression of this witness seems to have not been marked as questioned thumb impression during investigation and were not sent for comparison with his specimen Ex.PW14/A-1 to A-4. So far as entry at Sl.No.5 in Ex.PW13/B is concerned, the said entry does not bear any signature or thumb impression of anyone, for the reason that the amount of Rs. 2674/- against this entry was not paid to anyone.
13.12. PW15 Umed Singh also deposed that he worked under A1 as a labour for desilting and though he worked under both the MR no. 452 Ex.PW1/A & MR no. 477 Ex.PW2/A, but both those entries bear his forged thumb impressions and he did not receive the payment mentioned against those two entries i.e. Rs. 1778/- and Rs. 592/-, respectively. He claimed that he only received Rs. 900/- and not the entire wages. Though specimen thumb impressions of this witness were obtained, but they were also not sent for comparison by the expert. It may be mentioned here that the perusal of Ex.PW2/A would reveal that at Sl.No. 6 name of this witness is mentioned, whereas the Revenue Stamp affixed at Sl.No. 5, bears signature of Umed i.e. in the name of this witness. On this page of MR at Sl.No. 5, Umed did not work, instead one Rajbeer is claimed and shown to have worked. On this page, there is no other labour by the name of Umed having worked. Therefore, it seems that instead of questioning the signature of Umed on the Revenue Stamp against entry at Sl.No.5, the thumb impressions at Sl.No. 6 were questioned.
13.13. PW16 Sagar also claimed that he worked as a labour and received part payment of Rs. 500-600/- only and was not paid complete wages. He claimed that thumb impressions Q-58 on MR no. 462 Ex.PW8/A (inadvertently typed as Ex.PW3/A in the evidence) at Sl.No. 11 were not Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 28 of 49 29 appended by him and are forged. In this entry, payment of a sum of Rs. 2371/- is shown to have been made, whereas the witness claimed that he was not paid that amount. The witness even claimed that he had signed a Revenue Stamp which was not pasted on MR. He gave his specimen thumb impressions, but his specimens were not sent for comparison.
14. Thus, out of the 78 MRs prepared by A1, the prosecution could prove the disputed entries only qua the following five MRs.
14.1. In MR no. 445 Ex.PW5/B, as to entries at Sl.No. 3, 6, 8 & 11, as deposed by PW6, PW9, PW5 & PW14, respectively. Out of them the entry at Sl.No. 3 bears forged signature of PW6 whereas the other three entries bear forged thumb impression of the other three witness. Perusal of this MR would reveal that on the last page of this MR there are four proforma certificates / tables. The first proforma certificate / table pertains to the Sanctioning of amount against this MR by the Executive Engineer. This certificate is filled up mentioning that Rs. 28,452/- were sanctioned against this MR on 18.04.2002. Thereby meaning that the payment against this MR was released sometime after 18.04.2002. The entire MR does not bear any endorsement as to on which date and how much amount, if at all, was entrusted to or obtained by any of the three accused. The last page the MR also contains another certificate / Table no.2, which required that the amount received, the amount paid and, the balance amount ought to have been entered in this certificate and the person paying the amount to the labourers should have signed this certificate. In this certificate, there is no mention as to who received the amount for disbursal and how much amount was received. But, interestingly it is mentioned that Rs. 28,452/- (the same amount which was sanctioned), remained as balance. Someone has signed this certificate, but it is not proved by the prosecution as to who signed it and as to on which date it was signed. The certificate no. 3 on the last page required that the JE should have certified that in his personal presence the Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 29 of 49 30 amount was disbursed, clearly mentioning the amount, both in numerical and words, and that the JE should have also certified that the person receiving payment actually worked and was entitled to that payment. This was the requirement of proforma certificate no. 3. This proforma certificate no. 3 on this MR is left blank and nobody has either filled up the certificate or has signed this certificate. Similarly, the fourth certificate on the last page of the MR as to details of the unpaid amount is left blank and unsigned. Interestingly if one looks at inner pages of MR, in the last few columns against the entries of labourers engaged, the rate/ per day wages payable to the labour; thereafter the total amount payable to that labour, after multiplying the number of days the labourer worked with per day labour, is required to be mentioned. The subsequent column requires the date of payment to the labour to be mentioned. The next column requires it to be mentioned as to how much amount was paid and the last column requires that the receiver of amount signs/appends his thumb impression therein. In none of the MRs containing disputed entries, the date of payment is mentioned. Only the number of days a person worked, his daily wages due and payment paid are mentioned. Against those entries where payments have been made, signature or the thumb impression have been obtained, some of which are in dispute in this case.
14.2. In MR No. 452 Ex.PW1/A, the disputed entries proved are at serial no. 3, 4 and 6, as proved by PW3, PW1 and PW15 respectively. All these three entries bear disputed thumb impressions. Qua these three entries Rs. 1,778 each are shown to have been paid to the labourer. Perusal the last page of even this MR reveals that on 18.04.2002 a sum of Rs. 14,224 were sanctioned by the EE, bearing signature of EE and the accountant. Certificate no. 3 and 4 on this MR are blank and unsigned. However, certificate no. 2 bears someone's signature which are not proved as to whom it belongs and the certificate no. 2 mentions that the same amount which Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 30 of 49 31 was sanctioned remained balance as unpaid. The internal entries as to the date of payment is missing even in this MR.
14.3. In MR No. 462 Ex.PW8/A, the disputed entries proved are at serial no. 13 and 16, as proved by PW8 and PW16, respectively. Both these entries bear disputed thumb impressions. Qua these entries Rs. 2,371/- each are shown to have been paid to the labourer. Perusal the last page of even this MR reveals that on 18.04.2002 a sum of Rs. 30,823/- were sanctioned by the EE, bearing signature of EE and the accountant. Certificate no. 3 and 4 on this MR are also blank and unsigned. However, certificate no. 2 bears someone's signature which are not proved as to whom it belongs and the certificate no. 2 mentions that the same amount which was sanctioned remained balance as unpaid. The internal entries as to the date of payment is missing even in this MR.
14.4. In MR No. 477 Ex.PW2/A the disputed entries proved are at serial no. 3, 6 and 7 as proved by PW3, PW15 and PW7 respectively. All these three entries bear disputed thumb impressions. Qua these three entries Rs. 592/- each are shown to have been paid to the labourer. Perusal the last page of even this MR reveals that on 18.04.2002 a sum of Rs. 4,736/- were sanctioned by the EE, bearing signature of EE and the accountant. Certificate no. 3 and 4 on this MR are also blank and unsigned. However, certificate no. 2 bears someone's signature which are not proved as to whom it belongs and the certificate no. 2 mentions that the same amount which was sanctioned remained balance as unpaid. The internal entries as to the date of payment is missing even in this MR.
14.5. In MR No. 675 Ex.PW1/C, only one disputed entry is proved, i.e. at serial no. 3, proved by PW3. This entry bears disputed signature of PW3, reflecting Rs. 2,674 has been paid to the labourer. Perusal the last page of even this MR reveals that on 04.06.2002 a sum of Rs. 34,769/- were Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 31 of 49 32 sanctioned by the EE, bearing signature of EE and the accountant. Certificate no. 2 to 4 on this MR are also blank and unsigned. The internal entries as to the date of payment is missing even in this MR.
14.6. Prosecution could not prove any disputed entry in the MR No. 516 Ex.PW3/B; MR No. 523 Ex.PW1/B; and MR No. 640 Ex.PW13/A or in other MRs.
15. Thus, a total of only 13 disputed entries could be proved by the prosecution, as mentioned above. Since, no other disputed entry could be proved by the prosecution, discussion in this judgment shall be confined to only those disputed entries.
16. The question which arises is, whether either of the accused can be held liable for forgery or using forged documents, Criminal breach of trust or Criminal misconduct?
16.1. The argument of accused that the MRs cannot be called forged documents, as they were legitimately prepared for desilting, is without force. The Mustor Rolls as a whole may not have been a forged document when they were prepared for the purposes of desilting by A1. However, the moment signatures / thumb impressions qua the disputed entries were forged / got forged, the said entries became forgery as it would fall within the definition of preparing false document as defined in Sec. 463 & 464 of IPC. Section 470 of IPC provides that a false document made wholly or in part by forgery is designated "a forged document". But the question is whether those forgeries can be attributed to the accused?
16.2. Taking up the question whether any of the three accused can be held liable for the charge U/s 468 of IPC, the obvious answer has to be in the negative. From amongst all the prosecution witnesses, not even one witness claimed that the MRs in question were prepared in the hand writing of A1, who was responsible to prepare them legally. There is no ocular evidence of any of Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 32 of 49 33 the witnesses to the effect that it was any of the three accused who forged the thumb impressions or the disputed signatures in the above mentioned 13 disputed entries. There is no doubt that direct evidence as to those forgeries would not have been easy for the prosecution. However, the prosecution could have established that charge by even circumstantial evidence. In order to prove it through circumstantial evidence, the best evidence would have been that specimen/ admitted thumb impressions and signatures of the accused persons should have been obtained and sent for comparison from an expert. The prosecution chose not to even collect either the specimen signatures / thumb impressions or even admitted signatures / thumb impressions of any of the three accused. Only specimen signatures of some of the labourers, who had denied having signed the MRs, were obtained and were sent for comparison. Interestingly, even thumb impressions of some of the labourers were collected but they were not even sent for comparison, for reasons not explained by the prosecution. The second best circumstantial evidence could have been that the prosecution should have proved that at the time when the 13 questioned signatures / thumb impressions were appended by someone, at that time the MRs were in exclusive custody of A1 or the other two accused. In the entire evidence led by the prosecution, it is not forthcoming as to on which date the MRs were issued to A1; as to on which date the MRs were submitted by the A1 to the Assistant Engineers after the work, thereafter when it was forwarded to the Executive Engineer and so on to the cashier for release of payment. It is not even forthcoming as to on which date the payments mentioned on the last page of each of the five MRs containing 13 disputed entries were issued after the same were sanctioned by the Executive Engineer and as to whom that payment was made. No evidence is forthcoming as to for the purposes of disbursal of wages to the labourers, when the MRs were again handed over to A1 or anybody else.
Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 33 of 49 34 16.3. Rather, it would be important to recapitulate here the answers given by PW17 Bharat Bhushan and PW25 Ashok Kumar. It was PW17 Bharat Bhushan who as a representative of Vigilance Department along with the audit / accounts department officials of CSE Department was deputed to ensure the payments were made to the labourers in their presence. Admittedly, this witness along with others was deputed vide communication dated 14.01.2003 Ex.DW1/D1. As per testimony of this witness on one day a sum of Rs. 25,000/- was disbursed to some of the labourers whose identity could be verified on the basis of Id documents produced by the labourer. Though this witness also specified that the said payment was disbursed sometime in February 2003 or 2004, but in the entire prosecution's evidence nothing has come on record as to the fact that if some part payment was made by A1 prior to the Vigilance Team took over the work of disbursal, how much amount was paid by A1 and to whom and on which dates.
16.4. Prosecution could have examined any labourer whose signatures and receiving of payment were not in dispute to prove the fact that A1 was physically present at the time of making payment to the labourers named in the same MR, but not even one such witness has been examined.
16.5. Though PW17 Bharat Bhushan also deposed that at the time when he and other team members made payments one JE certified / identified the labourers having worked for desilting, but in his cross examination, this very witness specifically admitted that A1 was not present at the time of disbursement of wages.
16.6. Thus, neither is it proved by the prosecution as to when any part payment qua any of the MRs was made by A1 prior to the constitution of the Vigilance Team and how much amount and to which of the labourer A1 paid any amount.
Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 34 of 49 35 16.7. In absence of the filling up and signing up Certificate no. 3 on the MR, there is nothing on record to establish that it was A1 who was given any payment for disbursal at any point of time or who received that amount or who disbursed any such amount.
16.8. No one has been examined by the prosecution from the cash department / accounts department of MCD as to when and how much amount qua the MR in question payment was released and to whom. Obviously when cash amount was allegedly disbursed to A1, his receiving must have been obtained but it is withheld by the prosecution and the said receiving never saw the light of day. An adverse inference has to be drawn against prosecution for withholding this crucial piece of evidence.
16.9. Similarly, PW25 who was a member of the Audit Team though deposed that during audit they found that some of the casual labourers were named in more than one MR to have worked on the same date and time but at two different locations, however, no such duplicate entries reflecting that any labourer worked at two different sites on the same date and time is proved by the prosecution in this case.
16.10. Though PW25 orally deposed that at the time of disbursement of wages A1 was present who verified the identity of the labourers and also at that time A3 M. K. Gupta as AE was also present, but it is not forthcoming in the entire prosecution's evidence as to on which dates, qua which MR and qua which labourers PW25 made payment in presence of A1 or A3.
16.11. PW25 admitted that along with him Naresh Kumar and Surender Singh were also part of the team to supervise the disbursement and he also admitted that at the time of making payment photographs and copy of id proof of the labourer receiving payment were collected by the two accused A1 & A3 and that they also certified in writing on the copy of id proof to the effect that the person had actually worked as per the MR. In some of Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 35 of 49 36 the cases, even affidavit of the labourer were collected and the same certificate was issued on the back side of the affidavit. PW25 also admitted that those certificates were retained by Surender Singh the senior vigilance Inspector who as part of the team in disbursal.
16.12. But then neither Surender Singh has been examined in this case nor even one such certificate certified by the accused is proved in this case. It is not the case of prosecution that those id proofs and certificates were retained by any of the three accused. When those certificates were collected by Inspector Surender Singh, one of the member of the vigilance team who was present at the time of payment, he should have been examined and also those documents containing certificates / endorsements as to identity of labourers in the handwriting of the accused persons ought to have been proved. Adverse inference has to be drawn against the prosecution for withholding of even that crucial evidence.
16.13. When the prosecution did not prove those certificates containing handwriting / signatures by any of the three accused as to the identity of labourers at the time of making payments, in presence of vigilance team, and there is material difference in the testimony of PW17 Bharat Bhushan and PW 25, the prosecution cannot claim that any of the three accused were physically present at the time of disbursal of payment by the vigilance team.
16.14. As mentioned above, it is not clear, as it has not been proved and even honest attempt was not made by the prosecution to prove as to which of the payments, if at all, were made by A1 prior to the vigilance team.
16.15. In absence of the date when payment if any, was entrusted to accused; in absence of the dates of payment to any of the 13 disputed entries and as to physical presence of accused at the time of disbursal, the prosecution cannot expect this Court to even hold any of the three accused liable for forgery or even knowledge as to forgery against the 13 questioned Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 36 of 49 37 signatures / thumb impressions.
16.16. Though, as mentioned above, someone's initial do exist on certificate no. 2 on MRs in question No. 445, 452,462 and 477, but the prosecution did not prove whose signature they are.
16.17. Though in exercise of powers under Sec. 73 of Evidence Act this Court can always compare disputed signatures from admitted signatures on judicial record, and the admitted signature of A1 on the charge as well as his signatures on his statement U/s 313 Cr.P.C., when compared with the signature on certificate no. 2 on the four MRs reveal similarity that these signatures are same, but it is observed by Apex Court that Courts should be slow and hesitant to base their findings solely on comparison made by it under that provision.
16.18. In Garre Mallikharjuna Rao v. Nalabothu Punniah, (2013) 4 SCC 546, it is held as follows:
"14. In Ajay Kumar Parmar v. State of Rajasthan [(2012) 12 SCC 406 : (2013) 2 SCC (Civ) 405 : AIR 2013 SC 633] while dealing with the provisions of Section 73 of the Evidence Act, 1872, this Court observed that courts should be slow to base their findings solely on comparison made by it. The Court further held: (SCC pp. 417-18, para 28) "28. The opinion of a handwriting expert is fallible/liable to error like that of any other witness, and yet, it cannot be brushed aside as useless. There is no legal bar to prevent the court from comparing signatures or handwriting, by using its own eyes to compare the disputed writing with the admitted writing and then from applying its own observation to prove the said handwritings to be the same or different, as the case may be, but in doing so, the court cannot itself become an expert in this regard and must refrain from playing the role of an expert, for the simple reason that the opinion of the court may also not be conclusive. Therefore, when the court takes such a task upon itself, and findings are recorded solely on the basis of comparison of signatures or handwritings, the court must keep in mind the risk involved, as the opinion formed by the court may not be conclusive and is susceptible to error, especially when the exercise is conducted by one, not conversant with the subject. The court, therefore, as a matter of prudence and caution should hesitate or be slow to base its findings solely upon the comparison made by it. However, where there is an opinion whether of an expert, or of any witness, the court may then apply its own observation by comparing the signatures, or handwritings for providing a decisive weight or influence to its decision."
16.19. In the present case, the disputed signatures are like initials and not complete signatures, therefore it would be unsafe for this court to hold conclusively Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 37 of 49 38 that they were appended by A1 only.
16.20. The sum and substance of the above discussion is that someone may though have forged those 13 entries, but prosecution fails to prove that those entries were forged by any of the three accused, either by circumstantial or direct evidence. For convicting a person U/s 468 of IPC, it is necessary to prove that the said person committed the forgery. Reliance in this regard can be placed upon the case of Sheila Sebestian Vs. R. Jawaharaj (2018) 7 SCC
581. 16.21. Thus, offence under Sec. 468 of IPC is not proved against any of the accused and none of the three accused can be held guilty U/s 468 of IPC.
17. Admittedly the disputed signatures, if at all were forged by someone, they were forged at the time when wages were disbursed in the name of those witnesses to somebody. The payments were made in the presence of vigilance inspectors, as claimed by PW-17 & 25. However, the residence proof of those persons who received payment containing certificate allegedly issued by A1 and retained by Surender Singh from the Vigilance, are not proved. Rather they are concealed and an adverse inference needs to be drawn against the prosecution. Surender was not even examined as a witness. It is not proved which payment was made prior to the constitution of Vigilance team and which after it. Once it is established that the questioned signatures, if at all were forged, they were forged at the time of receiving of payment, the prosecution cannot even claim that any of the three accused used those forged entries in the MRs, knowing or having reasons to believe the same to be forged.
17.1. Admittedly when these Muster rolls were submitted by A1 through A2 or A3 before release of payments, these so called forged signatures did not exist in the muster rolls as they were appended at the time of disbursal of wages to the labourers. After release of payments the muster rolls were not submitted to the MCD by any of the accused. There is no such evidence on Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 38 of 49 39 record. Therefore, even Section 471 of IPC does not get attracted against any of the accused.
17.2. There is no evidence with the prosecution to even claim that any of the accused used the forged documents either knowing or having reasons to believe the same to be forged. It is so because it is not even proved as to after making payments who resubmitted the MRs to the MCD, containing forged signatures, after the alleged signatures were forged by someone. Thus, ingredients of Sec. 471 of IPC are also not fulfilled in this case. In absence of any evidence, that any of the accused knew or had reasons to believe the signatures to be forged, none of them can be held guilty U/s 471 of IPC for using a forged document fraudulently or dishonestly as genuine, knowing or having reasons to believe it to be forged.
18. Also, when the prosecution fails to prove as to whether any amount and if so, how much amount was paid to accused, there is no entrustment of any amount proved by the prosecution.
18.1. Section 409 IPC pertains to criminal breach of trust by a public servant or a banker, in respect of the property entrusted to him. The entrustment of public property and dishonest misappropriation or use thereof in the manner illustrated under Section 405 are a sine qua non for making an offence punishable under Section 409 IPC. Unless it is proved that the accused, a public servant or a banker etc. was 'entrusted' with the property which he is duty bound to account for and that such a person has committed criminal breach of trust, Section 409 IPC may not be attracted. The onus is on the prosecution to prove that the accused, a public servant or a banker was entrusted with the property which he is duly bound to account for and that he has committed criminal breach of trust. (Sadupati Nageswara Rao v. State of Andhra Pradesh 9 (20210 8 SCC 547).
Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 39 of 49 40 18.2. Sec. 13(1)(c) of POC Act, 1988, as was inforce at the time of offence of this case, provided that a public servant is said to commit the offence of 'criminal misconduct' if the public servant dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant. It also provides that even if such a public servant allows any other person to so misappropriate or convert for his own use any such property, still the public servant would be guilty of criminal misconduct. Sec. 13(2) of the POC Act, 1988, provides punishment for the offence of criminal misconduct. It is not in dispute that A1 was a public servant at the relevant time. 18.3. Even under section 13(1)(c) of The POC Act, the onus is on the prosecution to prove that the accused, a public servant was entrusted with the property which he is duly bound to account for and that he dishonestly or fraudulently misappropriates or otherwise converts for his own use the property entrusted to him or under his control as a public servant or allows any other person to so misappropriate or convert for his own use any such property.
18.4. None of the MRs bear any endorsement as to on which date and what amount, if at all, were entrusted to or obtained by any of the accused. The certificate / Table no.2 on last page of the MRs, which required that the amount received, the amount paid and, the balance amount ought to have been entered in this certificate and the person paying the amount to the labourers should have signed this certificate. In these certificates, there is no mention as to who received the amount for disbursal and how much amount was received.
18.5. At internal pages of MRs in question, in the last few columns against the entries of labourers engaged, the rate/ per day wages payable to the labour; thereafter the total amount payable to that labour after multiplying the number of days the labourer worked with per day labour, is required to be Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 40 of 49 41 mentioned. The subsequent column requires the date of payment to the labour to be mentioned. The next column requires it to be mentioned as to how much amount was paid and the last column requires that the receiver of amount signs/appends his thumb impression therein. In none of the MRs proved in this case the date of payment is mentioned against any entry. Only the number of days a person worked, his daily wages due and payment made are mentioned. In the internal pages of the MRs no date of payment is mentioned.
18.6. Though in all the 8 MRs in question, the first certificate is filled up and signed by the Executive Engineer and the Accountant, as to the sanction of amount, but out of the 8 MRs, in Four MRs no. 516, 523, 640 & 675, the certificate no. 2 to 4 are not only blank but they have also not been signed by anyone.
18.7. Remaining four MRs no. 445, 452, 462 & 477, the certificate no. 2 on the last page of each of those four MRs bear signature of someone, but it is not proved as to who has signed then.
18.8. When the prosecution fails to prove as to whether any amount and if so, how much amount was paid to A1 or the other two accused, there is no entrustment of any amount proved by the prosecution.
18.9. In absence of proof of any entrustment, there cannot be any criminal breach of trust, punishable either U/s 409 of IPC or any criminal misconduct punishable U/s 13(1)(c) of POC Act, 1988, against any of the accused.
19. Similarly, there is no evidence as to dishonest or fraudulent inducement by any of the accused in obtaining payment from MCD or having caused any wrongful loss or any wrongful gain to anyone. Section 420 IPC, provides that whoever cheats and thereby dishonestly induces a person deceived to deliver any property to any person, or to make, alter or destroy, the whole or any part of valuable security, or anything, which is signed or sealed, and Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 41 of 49 42 which is capable of being converted into a valuable security, shall be liable to be punished. There are, three components of this offence, i.e., (i) deception of any person, (ii) fraudulently or dishonestly inducing that person to deliver any property to any person, and (iii) mens rea of the accused at the time of making the inducement. For the offence of cheating, fraudulent and dishonest intention must exist from the inception when the promise or representation was made. The word 'dishonestly' emphasizes a deliberate intention to cause wrongful gain or wrongful loss, and when this is coupled with cheating and delivery of property, the offence becomes punishable under Section 420 IPC.
19.1. Therefore, ingredients of Sec. 420 of IPC are also not attracted in the present case.
20. It may be mentioned here that in the present case, it is not the case of prosecution, in absence of any such evidence, that in any of the 78 MRs prepared by A1 there was any entry as to any non-existent person or that there was any entry in the name of anyone who did not actually work for desilting. Rather, the case of prosecution is that all the witnesses from amongst the labourers who were examined in this case had actually been employed as labourers but they were either not paid any wages at all or only part payments were made to them and that some of the signatures / thumb impressions of those witnesses were forged by someone.
20.1. Thus, it is not a case where any of the three accused made any false entry in the MR as to non-existent person or the person having not worked, therefore, it is not even a case where accused induced or attempted to induce, fraudulently and dishonestly the MCD authorities in releasing of payments against those MR.
21. Turning to the charge whether the three accused were in Criminal conspiracy with each other or anybody else in committing those offences, Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 42 of 49 43 in the entire evidence led by the prosecution there is no evidence pointing to conspiracy between any accused. This Court is conscious of the fact that for an offence of conspiracy, there cannot be any direct proof and in most of the cases conspiracy will have to be gathered from the attending circumstances of an offence. The only circumstance claimed against the AE, in order to claim conspiracy, is that A2 & 3 were duty bound to conduct surprise checks at the site, which they did not.
21.1. It would be apt to note few important observations of Apex Court in the case of K.R. Purushothaman v. State of Kerala, (2005) 12 SCC 631, wherein it is held as follows;
"11. Section 120-A IPC defines "criminal conspiracy". According to this section when two or more persons agree to do, or cause to be done (i) an illegal act, or (ii) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. In Major E.G. Barsay v. State of Bombay [(1962) 2 SCR 195:
AIR 1961 SC 1762: (1961) 2 Cri LJ 828] Subba Rao, J., speaking for the Court has said: (SCR p. 228) "The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts."
12. In State v. Nalini [(1999) 5 SCC 253: 1999 SCC (Cri) 691: JT (1999) 4 SC 106] it was observed by S.S.M. Quadri, J. at JT para 677: (SCC pp. 568-69, para 662) "In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 43 of 49 44 and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus with the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences."
13. To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither is it necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implication. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the court to keep in mind the well-known rule governing circumstantial evidence viz. each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. Criminal conspiracy is an independent offence in the Penal Code. The unlawful agreement is sine qua non for constituting offence under the Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement.
14. Suspicion cannot take the place of legal proof and prosecution would be required to prove each and every circumstance in the chain of circumstances so as to complete the chain. It is true that in most of the cases, it is not possible to prove the agreement between the conspirators by direct evidence but the same can be inferred from the circumstances giving rise to conclusive or irresistible inference of an agreement between two or more persons to commit an offence. It is held in Noor Mohd. Mohd. Yusuf Momin v. State of Maharashtra [(1970) 1 SCC 696:
1970 SCC (Cri) 274: AIR 1971 SC 885], that: (SCC pp. 699-700, para 7) "[I]n most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material."
15. It is cumulative effect of the proved circumstances which should be taken into account in determining the guilt of the accused. Of course, each one of the Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 44 of 49 45 circumstances should be proved beyond reasonable doubt. The acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. While speaking for the Bench it is held by P. Venkatarama Reddi, J. in State (NCT of Delhi) v. Navjot Sandhu [(2005) 11 SCC 600: 2005 SCC (Cri) 1715: JT (2005) 7 SC 1] (p. 63) as follows: (SCC pp. 691-92, para 103) "103. We do not think that the theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design even if such offences were ultimately committed by some of them, without the participation of others. We are of the view that those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy; but, the non-participant conspirators cannot be found guilty of the offence or offences committed by the other conspirators. There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them. Criminal offences and punishments therefor are governed by the statute. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy or by extension of a common law principle."
21.2. A perusal of the relevant rules of the CPWD Manual, which is applicable to MCD, in preparation of Mustor Rolls / Daily Labour Reports (DLR), would reveal that as per Rule 9.5, it was the responsibility of JE In-charge of the work to mark attendance of casual labourers in the MR daily at the time of roll call and to check once during the day. The responsibility of AE / Additional EE / EE was to conduct surprise checks frequently to ensure that the workers as indicated in the DLR and MR were actually employed and that their output was commensurate to the expenditure incurred. As per Rule 9.5 to 9.7, the preparation of MRs and checking presence / attendance / details of the labourers was the responsibility of JE only. 21.3. It is clearly mentioned in Rule 9.8 that at the close of the MR it was the JE who was supposed to give certificate under his dated signatures on the MRs as well as the DLR in the following words; "Certified that the workers Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 45 of 49 46 mentioned in the Mustor Rolls were actually employed by me on government work". As per Rule 9.9, after closing of the MR the JE In- charge of the work was supposed to complete all the formalities regarding making entries in the measurement book, work out cost of the work etc. and it was then the MR was to be submitted to the AE concerned within two days.
21.4. Thereafter, Rule 9.10 onwards deals with procedure of making payment against MRs. Under Rule 9.11, after the MR was closed by the JE it was required to be sent to Sub-Divisional Clerk who was supposed to check the MR arithmetically and the AE was to conduct test check within a day and then the MR was to go to Divisional Office. The Divisional Officer was then to scrutinise the MR under Rule 9.12 and then forward it to EE and the EE was to pass the MR and hand over the amount as temporary advance to the AE for disbursal of wages. Rule 9.13 makes it clear that it was the responsibility of JE in charge to make payment and to certify on the MR that the payment has been made in his presence and on his identification. 21.5. It is claimed by the Prosecution that according to the Rule 9.5, since it was the responsibility of AE to conduct frequent checks, which the AE did not do, therefore, they were in conspiracy with JE.
21.6. There is no evidence available with the prosecution to indicate that there was any such conspiracy between the JE concerned with the AE or the EE. The prosecution assumes that the AE did not conduct surprise checks and therefore they should be held guilty. In the considered opinion of this Court, there cannot be any such assumption or presumption against AE, legally. Either they did not conduct physical checks as was required or they did it. In either of the eventualities, there would be no criminal liability against them. If the AE did not conduct physical checks but merely countersigned the MRs and thereafter those MRs were processed for payments to the labourers and so that JE can make payments to the casual labourers, it Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 46 of 49 47 would at the most be dereliction of duty, and merely on that basis neither can conspiracy be presumed, nor any other offence. In any case, it is merely a presumption of the prosecution that A2 & 3 did not conduct physical checks. What if they indeed conducted physical checks. Was it their responsibility to also verify the identity of each and every casual labour employed by the JE? Even as per the admitted case of prosecution i.e., their reliance on Rule 9.5 of CPWD manual, there was no such responsibility or duty of AE or EE or AEE.
21.7. Though in the Rule 9.12 of CPWD Manual, it is mentioned that the Divisional Office should not take more than two days for scrutiny of the MR and similarly the EE should not take one day to pass the MR and then handing over the amount of the passed MR through temporary advance to the AE for disbursing wages to the persons engaged on MR, but in the facts of the present case no evidence has been led by the prosecution that the amount was handed over to AE. In absence of any evidence that any amount was handed over to AE or that they were physically present at the time of disbursal of payments, nothing can be read in Rule 9.12 against AE in the present case.
21.8. It is nobody's case that the desilting works in question were not carried out.
In the light of this circumstance, coupled with the fact that nowhere was it the responsibility of AE or EE to conduct actual identity check of each and every casual labour, entitles A2 & 3 to be given benefit of doubt. When it was not the duty of the A2 & 3 to find out the actual identity of the casual labourers engaged by the JE and their responsibility was merely checking head count and work commensurate to the payment, it cannot be presumed that A2 & 3 were in any manner in conspiracy with the JE. Thus, assuming that AE did not conduct the surprise checks or did conduct them but failed to notice or ignored the number of labourers working at the site, it can at the most point to dereliction of duty and nothing more.
Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 47 of 49 48 21.9. No witness has been examined by the prosecution from amongst the actual labourers who had worked at the site to prove whether the AE and EE conducted the surprise checks or not. In such circumstances, AE cannot be roped in for conspiracy with the JE just like the EE could not have been roped in.
21.10. In the case of C. Chenga Reddy & Ors. Vs. State of A. P., AIR 1996 Supreme Court 3390, it was observed by the Hon'ble Supreme Court that the entire case hinged on circumstantial evidence and there was no direct evidence available on record connecting the public servants with the commission of crime viz., payment made for various amount without the execution of work etc. It was held that at best the evidence of that case established violation of Codal provisions and ignorance of departmental instructions and circulars regarding nomination of contractors and allotment of work and those lapses at best made those public officers liable for departmental action but not for criminal offence. It was held that the circumstances proved in that case were not such which can be said to be compatible only with their guilt or incompatible with their innocence. In this regard, reliance may also be placed upon the cases of Abdulla Mohd. Pagarkar v. State, (1980) 3 SCC 110; Union of India & Anr. Vs. Major J. S. Khanna & Anr. (1972) 3 SCC 873 and; J. Siri. Ram Surya Prakash Sharma Vs. State of A. P. 2011 Crl. Law Journal 2027. 21.11. So far as the present case is concerned, as mentioned above, it is not even a case where there was any false entry of any worker who actually did not work but was named in the MR, was made in any of the MRs. Rather it is a case where the actual workers worked but did not get their payments and instead the MRs mentioned that payments were made and qua some entries the signatures were claimed to be forged. Since, the AE had no role to identify the labourer at the time of disbursal of payment which was responsibility of JE, the AE cannot be held responsible even if some of Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 48 of 49 49 the signatures on the MR were found to be forged. Since it is not even the case of prosecution that any of the MR contained any entry of any non- existent person or any person who actually did not work but was named in the MR, therefore, it cannot even be argued by the Prosecution that since the AE did not conduct inspection at the site, therefore, they were in conspiracy.
22. The sum & substance of the above discussion is, that the prosecution fails to establish conspiracy between A1, A2 & A3 or anybody else. And as discussed above, there is no evidence qua any of the three accused for any other offence.
23. Resultantly, all the three accused are acquitted of all the charges.
Announced in the Open Court on 24-05-2022.
DIG Digitally signed
by DIG VINAY
VINAY SINGH
Date: 2022.05.24
SINGH 10:39:54 +0530
(DIG VINAY SINGH)
Special Judge (PC ACT) (ACB)-02
Rouse Avenue Courts
New Delhi / 24-05-2022 (r)
Judgment in CNR No. DLCT110005762019 CC No. 129/19 State Vs. Mhd. Salman Aquil & anr. FIR No. 22/2004 Dated 24.05.2022 Page 49 of 49