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Delhi District Court

Cbi vs . 1) D.K. Sugan S/O Sh. J.P.Sugan, on 31 August, 2015

               IN THE COURT OF SH. BRIJESH KUMAR GARG:
          SPECIAL JUDGE: CBI­01, CENTRAL DISTRICT. DELHI


CC No. 18/2011
Case ID : 02401R0341452011                        RC : 26(A)/2010
                                                  PS : CBI/ACB/New Delhi
                                                  U/s : Section u/s 120­B r/w 420,
                                                          467, 468 & 471 of IPC
                                                          and Sec. 13(2) r/w 13(1)(d)
                                                          of The Prevention of
                                                          Corruption Act 1988.


CBI Vs.          1) D.K. Sugan S/o Sh. J.P.Sugan,
                     r/o House No. 37, Manak Vihar,
                     Delhi­110092.


                 2) Om Prakash Mahla
                     S/o Sh. Banwari Lal,
                     r/o 91, Unik Apartment,
                     Sector­13, Rohini,
                     Delhi.


                 3) Raju V. S/o Sh. Varkey,
                     r/o C­109, Flat No.12, Paryavaran Complex,
                     Saidul Ajab Gaon, IGNOU Road,
                     New Delhi­110030.


CBI Vs. D.K.Sugan etc. (CC No. 18/2011)   Page 1 of 124        Special Judge, CBI­01, Central, Delhi
                  4) Gurcharan Singh S/o late Sh. Babu Ram,
                     r/o C­2728, Sushant Lok, Phase­1,
                     Gurgaon, Haryana.


                 5) M/s. Sweka Powertech Engineers Pvt. Ltd.,
                     Through its Managing Director
                     Tejinder Pal Singh,
                     254, J­Block Community Centre,
                     Vardhman Plaza­II,
                     Rajouri Garden, New Delhi­110 027.


                 6) T.P Singh S/o Sh. Harbhajan Singh,
                     r/o K­18, Rajouri Garden,
                     New Delhi­110027.


                 7) J.P Singh S/o Sh. Harbhajan Singh,
                     r/o K­18, Rajouri Garden,
                     New Delhi­110027.


Date of Institution                            : 28.07.2011
Judgment Reserved on                           : 14.08.2015
Judgment Delivered on                          : 31.08.2015


                                          JUDGMENT

1. The present case was registered on 16.06.2010 u/s 120­B IPC r/w Sec. 420, 468, 471 IPC and section 13(2) r/w 13(1)(d) of CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 2 of 124 Special Judge, CBI­01, Central, Delhi The Prevention of Corruption Act, 1988, on the basis of the letter of Ms. Mamta Upadhyay Lal, Director, Central Vigilance Commission, GPO Complex, INA, New Delhi, bearing No. 010/MCD/023­74225, dated 10.02.2010, wherein it was reported that the CVC has conducted intensive examination of "upgradation of street lighting on roads in Delhi under jurisdiction of MCD, Phase­1". This information further revealed that the accused persons and some other unknown persons entered into a criminal conspiracy, in the matter of award of contract worth Rs. 34,53,68,925/­, regarding upgradation of street lighting of 101.56 Kilometer roads in Delhi, under MCD jurisdiction, Phase­1, New Delhi, during the year 2008. It was further intimated that the accused persons, by manipulating the tender documents of M/s. Sweka Engineering Works Pvt. Ltd., caused undue pecuniary loss of Rs.3.26 crores, to the government and corresponding undue pecuniary advantage to the accused firm.

2. After registration of the FIR, during investigations, it was CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 3 of 124 Special Judge, CBI­01, Central, Delhi revealed that the government of NCT of Delhi had constituted a committee for upgradation of street lighting in Delhi, in connection with the preparations of ensuing Commonwealth Games 'CWG­2010'. In this regard, the Principal Secretary, Power and CMD of Delhi Transco Limited, vide letter No. D.O. No. PS(P)/24(A)/ST.LTG/06/Power/118, dated 03.10.2006, forwarded the technical standards for world class lightings to be adopted for street lighting upgradation program of Delhi, which was to be followed by all road owning agencies, such as PWD, DDA, NDMC, MCD, MES, DSIDC and Discoms. As regards MCD, Chief Secretary, NCT of Delhi, vide letter No. F. 11(13)/2006/Power/CS/4128, dated 29.11.2006, requested the Commissioner, MCD, to prepare the action plan. Thereafter, action plan was prepared and expression of interest (EOI) for Phase­I (100 Kilometer) was called vide NIT, dated 14.09.2007. In response to the above NIT, bids were submitted by various firms, including the accused M/s. Sweka Powertech Engineers Pvt. Ltd., and the work order was issued to it, on 01.07.2008, CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 4 of 124 Special Judge, CBI­01, Central, Delhi being the lowest bidder, called as L­1.

3. During investigations, it was further revealed that the expression of interest for Phase­1 was called by accused O.P.Mahla (A­2), vide NIT No. 3EEE­V/TC/2007­8, dated 14.09.2007 and subsequently vide NIT No. 13EEE­V/TC/2007­8, dated 04.12.2007, due on 15.01.2008, through e­tendering as well as manually and due publicity was also given in National Newspapers. In response, five tenders were sold and received from various companies. But, after detailed scrutiny of documents, the Commissioner MCD approved only the four firms as pre­qualified firms and tenders for estimated amount of Rs. 34,78,15,544/­ were issued to all the four pre­qualified firms and in response to this, only two firms namely, (1) Consortium of Sweka Powertech Engineers Pvt. Ltd. (Leader) for amount of Rs. 345368925/­ and (2) Consortium of M/s. Spaceage (Leader) for amont Rs.42,44,02,080/­, submitted their tenders. CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 5 of 124 Special Judge, CBI­01, Central, Delhi

4. Investigations further revealed that the lowest rates offer of accused M/s. Sweka Powertech Engineers Pvt. Ltd. (A­5), amounting to Rs.34,53,68,925/­ was recommended for approval, by accused O.P.Mahla, E.E., (Electrical­V) (A­2), through accused D.K.Sugan, S.E. (Electrical) (A­1) and thereafter, the file was processed through proper channel and after approval of the "draft preamble" by the competent authority i.e. the standing committee of the MCD, a fair preamble was prepared and was approved by the standing committee vide resolution No. 224, dated 25.06.2008 and accordingly, the work order was issued to accused M/s. Sweka Powertech Engineers Pvt. Ltd. (A­5), vide No. D/EEE­ V/TC/08­09/07, dated 01.07.2008 for Rs.34,53,68,925/­ by accused O.P.Mahla (A­2) and an agreement to this effect was executed with the accused firm on 01.07.2008.

5. It is further stated in the chargesheet that during investigations, it was revealed that the tenders received from the two bidders CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 6 of 124 Special Judge, CBI­01, Central, Delhi were opened by the tender opening committee on 14.05.2008, in the presence of various representatives of the two companies and item­wise rates of both the companies were announced by accused D.K.Sugan, S.E. (A­1). In furtherance of the conspiracy and by abusing his official position, accused D.K.Sugan did not mention that there were certain cuttings and over­writings in the tender document of accused M/s. Sweka Powertech Engineers Pvt. Ltd., which had been encircled and signed by accused O.P.Mahla (A­2) and Raju V. (A­3) The GEQD had established that by cuttings and over­writings at item No. 21 (a), 20(a) and 20(b), the rates have been changed from Rs. 215/­ to Rs. 315/­; Rs.930 to Rs. 1930/­ and Rs.802/­ to Rs. 1802/­ respectively. Due to this forgery at three instances, a total loss of Rs. 1,42,83,000/­ has been caused to the MCD / Government.

6. It is further stated in the charge sheet that the announced rates were not mentioned in the tender opening register, simultaneously, when the same were being announced and the CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 7 of 124 Special Judge, CBI­01, Central, Delhi witnesses have deposed, before the Ld. Magistrate, in their statements, u/s 164 Cr.P.C., that the rates were not mentioned in the tender opening register, when they signed the same. It is further stated that the manner in which the rates were written in the tender opening register, reveals that the same had been written to accommodate the signatures of the officials, present at the time of the opening of the tender documents. It is further stated that the report of the GEQD has established that the entries in the tender opening register were made after the announcement of the rates.

7. It is further alleged in the charge sheet that the total value of the items was not mentioned in the tender documents of the accused M/s. Sweka Powertech Engineers Pvt. Ltd., deliberately, to facilitate the forging of rates of certain items.

8. It is further alleged in the charge sheet that after opening of the tender documents and announcement of rates by accused CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 8 of 124 Special Judge, CBI­01, Central, Delhi D.K.Sugan, he instructed one of the officials of the MCD to mark the page numbers on the tender documents of M/s. Spaceage Switchgear Ltd., whereas, he took the tender documents of accused M/s. Sweka Powertech Engineers Pvt. Ltd., outside the room and was followed by co­accused T.P.Singh (A­6). On suspicion, PW­6 Shri Gaurav Bhalla, representative of M/s. Spaceage Switchgear Ltd., went outside the room and saw that accused T.P.Singh was writing something in the tender documents, in the presence of accused D.K.Sugan, in the room of his P.A. Thereafter, he immediately informed PW­5 Shri J.D.Paul, the General Manager of M/s. Spaceage Switchgear Ltd., who was also present during the tender opening process.

9. It is further alleged in the chargesheet that accused D.K.Sugan (A­1) and O.P.Mahla (A­2) were responsible for opening of the tender documents and announcing the rates correctly and ensuring that all the cuttings and over­writings, found in the tender documents, were correctly mentioned in the tender documents. CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 9 of 124 Special Judge, CBI­01, Central, Delhi Co­accused Raju V. (A­3), accountant, was required to encircle all cuttings / over­writings and number them and mention them in red ink and the numbers of such cuttings / over­writings were required to be mentioned clearly at the end of the each relevant page and was required to be properly attested with date.

10. It is further alleged in the chargesheet that accused Gurcharan Singh, the tender clerk (A­4), was required to make the entires in the tender register, simultaneously, when the rates were being announced by co­accused D.K.Sugan. Thereafter, it was his responsibility to get the tender register signed by all present. But, non­making of the entries in the tender register, simultaneously with the announcement of rates, establishes that he was also in conspiracy with the other co­accused persons and facilitated the forgery in the tender documents.

11. It is further alleged in the chargesheet that the justification of the rates was carried out after announcement of L­1 and before CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 10 of 124 Special Judge, CBI­01, Central, Delhi issuance of actual award of work. The justification of rates was also not done properly, deliberately. The rates obtained for justification were from the company which was the part of the consortium, to whom the work has been awarded. There was no justification for obtaining rates from consortium partner. From the comparative table, it was clear that the rates obtained from consortium partner were slightly different than the quoted rates, thereby justifying the rates. The rates were called by accused O.P.Mahla (A­2) and as per his instructions and on the basis of the rates already called, the justification was prepared by Purshottam Bhardwaj, JE and Sandeep Sharma, AE and the same were approved by accused O.P.Mahla, E.E. (A­2).

12. It is further alleged in the chargesheet that the financial bid of L­1 i.e. accused M/s. Sweka Powertech Engineers Pvt. Ltd., has been tampered with after opening of the bid, in order to increase the quoted amount, to avail the difference between the next higher quoted amount, without changing the overall status of the CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 11 of 124 Special Judge, CBI­01, Central, Delhi firm, i.e. L­1.

13. It is further alleged in the chargesheet that accused D.K.Sugan (SE) (Electrical) (A­1), O.P.Mahla, E.E. (Electrical­V) (A­2), Raju V., Accountant (A­3), Gurcharan Singh, UDC (A­4), M/s. Sweka Powertech Engineers Pvt. Ltd. (A­5), through its Managing Director T.P.Singh, Shri T.P.Singh (A­6) and Shri J.P.Singh, Director of M/s. Sweka Powertech Engineers Pvt. Ltd. (A­7), as well as Shri Mehul Karnik, representative of Philips India Ltd., have committed offences punishable u/s 120­B, r/w 420/467/468/471 IPC and Section 13 (2) r/w Section 13(1) (d) of The Prevention of Corruption Act, 1988 and the substantive offecnces thereof.

14. It is further stated in the chargesheet that during investigations, the statements of the witnesses were recorded and the sanction orders for prosecution of accused D.K.Sugan, O.P.Mahla, Raju V. and Gurcharan Singh were obtained, u/s 19 CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 12 of 124 Special Judge, CBI­01, Central, Delhi of the P.C.Act, 1988, from the competent authority, being the government servants and after completion of investigations, the charge sheet was filed in the court and the accused were sent up for trial.

15. Vide orders dated 24.02.2012, order on charge was passed by my Ld. Predecessor, Sh. Pradeep Chaddah, Special Judge, CBI, Delhi, and in pursuance to the said order, the charges were framed against all the accused persons on 12.03.2012. Charges under Section u/s 120­B r/w 420, 467, 468 & 471 of IPC and Sec. 13(2) r/w 13(1)(d) of The Prevention of Corruption Act 1988, were framed against all the accused persons. Additional charges for the substantive offences, punishable u/s 420 IPC and Section 13(2) r/w Section 13 (1)(d) of the Prevention of Corruption Act, 1988, were also framed against accused D.K.Sugan (A­1), O.P.Mahla (A­2), Raju V. (A­3) and Gurcharan Singh (A­4). Additional charges for the offences, punishable u/s 420/471 IPC were also framed against M/s. Sweka Powertech Engineers Pvt. CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 13 of 124 Special Judge, CBI­01, Central, Delhi Ltd., (A­5). Additional charges for the substantive offences, punishable u/s 420/467/468/471 IPC were also framed against accused T.P.Singh (A­6); and additional charges for the substantive offences, punishable u/s 420/471 IPC were also framed against accused J.P.Singh (A­7). All the accused persons had pleaded not guilty to all the charges and had claimed trial.

Prosecution Evidence

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

i) PW­1 Sh. K.S. Mehra, Commissioner MCD, Delhi, who has granted the sanction for prosecution of accused D.K. Sugan, O.P. Malha, Raju V., and Gurcharan Singh vide orders Ex.PW1/A to Ex.PW1/D, respectively.

ii) PW­2 Sh. Yogesh Kumar, LDC, from Vigilance Department of the MCD, who handed over various documents to the IO Inspector Anand Sarup, vide production­cum­seizure memo CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 14 of 124 Special Judge, CBI­01, Central, Delhi Ex.PW2/A (D­6).

iii) PW­3 Sh. Praduman Bhardwaj, Jr. Engineer in Electrical Department of the MCD, who had also handed over the files containing various documents, to the CBI, vide production­cum­ seizure memo Ex.PW3/A (D­14).

iv) PW­4 Sh. A.K. Bandopadhyay, who was working as Dy.

Manager in M/s. Spaceage Switchgears Ltd., and accompanied his vice president J.D. Paul (PW­5) and Gaurav Bhalla, A.G.M. (PW­6), to participate in the tender opening process on 14.05.2008.

v) PW­5 Sh. J.D. Paul , the vice president (Lighting & Contracts) of M/s. Spaceage Switchgears Ltd. , who participated in the tender opening process on 14.05.2008, at the office of Superintending Engineer, Rajpura Road, MCD, Delhi.

vi) PW­6 Sh. Gaurav Bhalla, Dy. General Manager of M/s. Spaceage Switchgears Ltd., who also accompanied PW­4 A.K. Bandopadhyay and PW­5 J.D.Paul, for participating in the tender opening process on 14.05.2008.

CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 15 of 124 Special Judge, CBI­01, Central, Delhi

vii) PW­7 Ms. Mamta Upadhyay Lal, Director, CVC, who forwarded the office memorandum Ex.PW7/A and the intensive examination report Ex.PW7/B of Satyendra Kumar, the Chief Technical Examiner of CVC, to the CBI for registration of the FIR.

viii) PW­8 Sh. A.S. Sohal, who was working as General Manager of M/s. Spaceage Switchgears Ltd., at the relevant time and he handed over various documents to the IO Inspector Anand Sarup, vide production­cum­seizure memo Ex.PW8/A (D­26).

ix) PW­9 Sh. Ashwani Saini, Technical Assistant (Contract Division) of M/s. Spaceage Switchgears Ltd., who handed over the file pertaining to the tender documents, regarding the bid of M/s. Spaceage Switchgears Ltd., vide production­cum­seizure memo, dated 26.04.2011 (D­29) Ex.PW9/A. The file has been proved on record as Ex.PW9/C and the forwarding letter signed by A.S. Sohal, G.M. of M/s. Spaceage Switchgears Ltd., is Ex.PW9/B.

x) PW­10 Sh. T. Joshi, GEQD, Scientist Grade­B, from CFSL, Chandigarh, who has examined the various exhibits and has CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 16 of 124 Special Judge, CBI­01, Central, Delhi compared the same with the specimen writings and signatures of the various accused persons. He has proved his report / opinion No. CX 205/10, dated 14.02.2011 as Ex.PW10/Q, detailed reasons as Ex.PW10/R; & report / opinion No. CX 205/10, dated 12.05.2011 as Ex.PW10/S.

xi) PW­11 Sh. Ram Kumar Sharma Rakesh, Chief Engineer South Delhi Municipal Corporation, who was working as Chief Engineer, MCD, at the relevant time. This witness has deposed about the entire tender process and has also deposed about the duties of the various accused persons, who were the concerned officials of the tender opening committee.

xii) PW­12 Inspector Anand Sarup, who is the investigating officer of the present case.

xiii) PW­13 Vikas Jain, Executive Engineer (Electrical), MCD, who had looked after the project of CWG, regarding the upgradation of the street lights, after the start of the work on the project.

xiv) PW­14 Sh. Sundeep Sharma, Executive Engineer CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 17 of 124 Special Judge, CBI­01, Central, Delhi (Electrical), who participated in the process of preparation of justification of rates, for the project.

xv) PW­15 Sh. Sumit Saran, Commissioner of Police, Tirunelveli, Tamil Nadu, who was working as SP, ACB, CBI, New Delhi, during the relevant period. He had directed for registration of FIR in the present case.

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

(i) Accused D.K.Sugan (A­1) has further stated that since the tender was related to the CWG and there was a lot of pressure of the Media, therefore, this false and fabricated case was filed. The CVC also acted under the pressure of Media and without verifying the correct facts from him or the MCD and has proceeded to recommend the registration of FIR, without application of mind. CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 18 of 124 Special Judge, CBI­01, Central, Delhi Under the pressure of the media and the CBI, the Commissioner, MCD, granted sanction for prosecution, when he was not the competent authority to do so.

(ii) Accused O.P. Mahla (A­2) has stated that there is no evidence against him and since it was the responsibility of the standing committee, they have tried to put it on him, whereas, he has done no non­official act in the job of tender, which was done by him diligently, without a favour to anyone.

(iii) Accused Raju V. (A­3) has stated that he has faithfully discharged all his duties without showing any favour to anyone. He is a victim of circumstances. He was arrested in haste by the CBI without there being any evidence on record to justify his arrest. The present case is a case of dishonest investigation and arrest. He has further stated that he has clean antecedents and Cuttings and over writing in tender documents are a common feature appearing in various tenders and the allegation of giving wrong certificate by him is without any basis as the grant of certification even if the same is wrong, does not have any impact CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 19 of 124 Special Judge, CBI­01, Central, Delhi on the award of the contract. He has infact caused a saving of Rs. 1.81 crores to the Department in the exercise of his duties as he had recorded an entry appearing at serial no.2(a) of tender document of M/s Sweka Powertech and had in fact noted down the lower amount.

(iv) Accused Gurcharan Singh (A­4) has stated that the practice and norms followed by them, during the tender opening process was in accordance with the procedure practice/norms followed by MCD during a Tender Opening Process and is uniformly accepted in MCD. No authority, whatsoever, has ever raised any objection regarding the said accepted procedures/practices/ norms followed during the tender opening process. He has always performed his duty honestly and diligently and has not violated any rule/procedure/norms during the tender opening process in question.

(v) Accused M/s. Sweka Powertech Engineers Pvt. Ltd. (A­5), through its Managing Director Sh. Tejinder Pal Singh, has stated that the company is innocent and has been falsely implicated in CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 20 of 124 Special Judge, CBI­01, Central, Delhi this case. The tender was submitted correctly in all respect, as per the law, with permissible cuttings and over­writings. The rates of the company were lower than the estimated cost, justified rates and lower as compared to the bidder PWD. The investigation is tainted and conducted in the malafide manner, which has caused great prejudice to the company.

(vi) Accused Tajinder Pal Singh (A­6), has stated that the cuttings and over­writings are permissible and the same have been done prior to the submission of the tender to the MCD. A tainted investigation has been done in malafide manner and great prejudice had been caused to him.

(vii) Accused Jasminder Pal Singh (A­7), has also stated that the investigations is tainted and was conducted in a malafide manner, which has caused great prejudice to him.

18. None of the accused has preferred to lead any evidence in defence, despite ample opportunity.

CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 21 of 124 Special Judge, CBI­01, Central, Delhi

19. After completion of trial, final arguments were addressed by Shri Praneet Sharma, Ld. PP for the CBI; Shri H.R. Khan Suhel, Advocate, for accused D.K. Sugan (A­1); Sh. R.M. Tufail, Advocate, for accused O.P. Mahla (A­2); Sh. Harish Gulati, Advocate, for accused V. Raju (A­3); Sh. Amardeep Singh, Advocate, for accused Gurcharan Singh (A­4); Sh. Ashok Kumar Sharma, Advocate, for accused M/s. Sweka Powertech Pvt. Ltd. (A­5) and Sh. Pramod Kr. Dubey, Advocate, for accused T.P.Singh (A­6) and J.P.Singh (A­7).

Arguments on behalf of the CBI / Prosecution

20. It has been argued by Shri Praneet Sharma, Ld. PP for the CBI that on 14.5.2008 the tenders of the parties were opened in the presence of the accused persons and the representatives of M/s. Sweka Powertech Engineers Pvt. Ltd. & M/s. Spaceage Switchgears Ltd., and the rates of various items were announced by accused D.K Sugan, Superintending Engineer (A­1) and the same were noted down by PW­5 Sh. J.D. Paul, the General CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 22 of 124 Special Judge, CBI­01, Central, Delhi Manager of M/s. Spaceage Switchgears Ltd., in a blank photocopied tender document. The rates announced by accused D.K.Sugan, S.E. (A­1), were different from the rates noted down by PW­5 J.D. Paul on the photocopied tender document Ex.PW5/B.

21. The Ld. PP for the CBI has further argued that the tender document submitted on behalf of M/s. Sweka Powertech Engineers Pvt. Ltd., has been proved on record as Ex.PW10/E and PW­4 A.K. Bandopadhyay, PW­5 J.D. Paul and PW­6 Garuav Bhalla have all deposed that after announcement of the item­wise rates, on 14.5.2008, the accused D.K. Sugan along with co­ accused T.P. Singh went out of the room and accused T.P. Singh made various corrections in the tender document and he specifically made three corrections in the tender document Ex.PW10/E. The corrections were made on page­103 of the tender document in item No. 21(a), 20(a) and 20(b). The rate mentioned against item No. 21(a) was increased from Rs.215 to CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 23 of 124 Special Judge, CBI­01, Central, Delhi Rs.315/­, whereas the rate mentioned at item No. 20(a) were increased from Rs.930/­ to Rs.1930/­. The rate mentioned against item No. 20(b) was increased from Rs.800/­ to Rs.1800/­. The above corrections in the rates had increased the total tender amount by a sum of Rs.1,42,83,000/­, without changing the overall status of accused M/s. Sweka Powertech Engineers Pvt. Ltd., as L­1.

22. The Ld. PP has further argued that the GEQD, PW­10, T. Joshi has examined the tender document Ex.PW10/E and has compared the over­writings and corrections done in the said document and has given a report in this regard. His reports and reasons for opinions have been proved on record as Ex.PW10/Q, Ex.PW10/R and Ex.PW10/S, wherein, he has opined that the over writings and corrections were done by accused T.P. Singh (A­6).

23. The Ld. PP for the CBI has further argued that after announcement of the rates by accused D.K. Sugan, co­accused CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 24 of 124 Special Judge, CBI­01, Central, Delhi Gurcharan Singh (A­4) was required to note down the announced rates in the tender opening register Ex.P­4 (D­5), simultaneously, but he has not recorded the announced rates simultaneously and has mentioned the subsequently corrected increased rates in the tender opening register. The pattern of signatures of the persons, present at the time of the opening of the tenders and writing of the rates of various articles, on page­2 & 3 of the tender opening register, which have been proved on record as Ex.PW4/A and Ex.PW4/B respectively, clearly indicates that the rates were written by accused Gurcharan Singh, later on, after corrections in the tender document of co­accused M/s. Sweka Powertech Engineers Pvt. Ltd.

24. The Ld. PP for the CBI has further argued that the prosecution witnesses have corroborated the prosecution case and the CFSL report given by PW­10, T. Joshi, has established on record that the tender document Ex.PW10/E was tampered by accused T.P. Singh, in the presence of co­accused D.K. Sugan. He has further CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 25 of 124 Special Judge, CBI­01, Central, Delhi argued that all the circumstances clearly indicate that all the accused persons were hand in glove with each other and had conspired together to cause a pecuniary loss of Rs.1,42,83,000/­ to the MCD. He has further argued that the Commissioner, MCD has validly granted the sanction for prosecution of accused D.K. Sugan, O.P. Mahla, Raju V. and Gurcharan Singh, after going through the entire record and therefore, all the accused persons should be held guilty for the various offences, as alleged against them and should accordingly be convicted and punished for the said offences.

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

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

(ii) State of Maharashtra Through C.B.I. vs. Mahesh G. Jain, reported as (2013) 8 SCC 119.

(iii) State of M.P. Vs Bhooraji & Ors., reported as (2001) 7 SCC 679.

(iv) Tehsildar Singh & Anrs. Vs. State of UP, report as AIR CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 26 of 124 Special Judge, CBI­01, Central, Delhi 1959 Supreme Court 1012;

(v) Hari Khemu Gawali v. Dy. Commissioner of Police, Bombay & Anr., reported as AIR 1956 Supreme Court 559. Arguments in defence, on behalf of accused D.K.Sugan (A­1)

26. Sh. H.R. Khan Suhel, Advocate, for accused D.K. Sugan, has argued that the sanction for prosecution of accused D.K. Sugan (A­1), Superintending Engineer, and co­accused Om Prakash Mahla (A­2), Executive Engineer, granted by the Commissioner, MCD, is no sanction under the eyes of law. He has addressed three fold arguments in this regard. He has argued that the Commissioner MCD was not the competent authority to grant the sanction for prosecution of the aforesaid two accused persons as both the aforesaid two accused persons were Group 'A' officers and only the "Corporation" was competent to grant sanction for their prosecution.

27. The Ld. Defence counsel has further argued that the CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 27 of 124 Special Judge, CBI­01, Central, Delhi Commissioner MCD, PW­1 Sh. K.S. Mehra, was himself involved at every stage of the tender process, till its approval by the competent authority, i.e., the 'Corporation', and therefore, he should not have given the sanction for prosecution of the aforesaid senior MCD officials.

28. The Ld. Defence counsel has further argued that PW­1 K.S. Mehta, Commissioner MCD has also not perused any document and has not applied his mind to the evidence on record & the circumstances of the case and has granted the sanction for prosecution of the accused persons in a mechanical manner and therefore, the sanction for prosecution of the accused persons, granted by him, is not a valid sanction.

29. The Ld. Defence counsel has further argued that there are a large number of material contradictions in the depositions of the three star witnesses of the prosecution, namely, PW­4 A.K. Bandopahdyay, PW­5 J.D. Paul and PW­6 Gaurav Bhalla, CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 28 of 124 Special Judge, CBI­01, Central, Delhi regarding the corrections in the tender document Ex.PW10/E, by accused T.P. Singh, in the presence of co­accused D.K. Sugan. He has further argued that the facts that the tender document was taken out of the room by accused D.K. Sugan and thereafter, co­ accused T.P. Singh followed him and co­accused T.P. Singh made corrections in the rates of various articles in the tender document, in the room of the P.A. of accused D.K. Sugan, were never disclosed by any of these witnesses, to the IO, during the investigations, either in their statements, u/s 161 Cr.P.C or in their statements u/s 164 Cr.P.C. and therefore, the improvements made by these witnesses, during the trial cannot be relied upon and once, this part of the evidence is deleted from the prosecution evidence, then there is no other admissible evidence to prove that accused T.P. Singh in connivance with co­accused D.K. Sugan had made the corrections in the tender document. He has further argued that the CFSL report cannot give any opinion about the time or age of the corrections in the tender document and therefore, it cannot be said with certainty that the corrections were CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 29 of 124 Special Judge, CBI­01, Central, Delhi made by accused T.P. Singh, after the announcement of the rates by co­accused D.K. Sugan. He has further argued that even the excel sheet Ex.PW1/D­8 has indicated that there was no correction of rates in the tender document, after the announcement of rates by accused D.K. Sugan. He has further argued that all these corrections & over­writings were already present in the tender document, when the tenders were opened and the rates were announced by D.K. Sugan, as the corrections and over­writings in the tender document were well permitted under the CPWD Manual.

30. The Ld. Defence counsel has further argued that the large number of material contradictions in the depositions of aforesaid three star witnesses of the prosecution, with the documentary evidence on record, makes the entire prosecution case doubtful and therefore, all the accused persons be acquitted for the offences alleged against them.

CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 30 of 124 Special Judge, CBI­01, Central, Delhi

31. The Ld. Defence counsel has relied upon the following judgments, in support of his above contentions:

(i) G.S.Matharaoo vs. CBI, in Crl. M.C. 2695/2010 & Crl.

M.A. 13999/2010 (stay);

(ii) Dhirendra Krishan vs. Bharat Heavy Electricals Ltd., and Others, reported as 1999 SCC OnLine Del 328;

(iii) Nanjappa vs. State of Karnataka, reported as 2015 SCC OnLine SC 649.

Arguments in defence, on behalf of accused O.P.Mahla (A­2)

32. Sh. R.M. Tufail, Advocate, for accused O.P. Mahla (A­2), has also argued that the sanction for prosecution of accused O.P. Mahla granted by the Commissioner MCD is not a valid sanction for the same reasons, as argued by the Ld. Counsel for co­ accused D.K. Sugan. He has further argued that there is no admissible evidence on record to prove the fact that the rates of the various articles in the tender document were changed or fabricated or corrected, after the announcement of the rates by co­accused D.K. Sugan. He has further argued that the document Ex.PW5/B (D­27) on which PW­5 J.D. Paul has CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 31 of 124 Special Judge, CBI­01, Central, Delhi allegedly noted down the announced rates, is a fabricated document and was prepared later on, during the investigations and therefore, the same cannot be relied upon, by the prosecution, to corroborate the depositions of PW­4 A.K. Bandopadhyay, PW­5 J.D. Paul and PW­6 Gaurav Bhalla.

33. The Ld. Defence counsel has relied upon the following judgments, in support of his above contentions:

(i) State Inspector of Police, Vishakhapatnam vs. Surya Sankaram Karri, reported as (2006) 7 Supreme Court cases 172.

(ii) K. Devassia vs. State of Kerala, reported as (2006) 10 Supreme Court Cases 447.

Arguments in defence, on behalf of accused Raju V. (A­3)

34. Sh. Harish Gulati, Advocate, for accused Raju V. (A­3), has argued that there are a large number of material contradictions in the depositions of PW­4 Sh. A.K. Bandopadhyay and PW­6 Gaurav Bhalla and both these witnesses have made material CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 32 of 124 Special Judge, CBI­01, Central, Delhi improvements from their earlier statements recorded by the I.O., u/s 161 Cr.P.C. and their statements recorded before the Ld. Magistrate, u/s 164 Cr.P.C. He has further argued that the depositions of these two witnesses, regarding taking out of the tender document by accused D.K. Sugan and T.P.Singh and thereafter, corrections of the rates in various articles in the tender document, does not inspire any confidence as the excel sheet Ex.PW.1/D­8 was simultaneously prepared by accused Gurcharan Singh (A­4), who was noting down the announced rates in his computer and within few minutes, he prepared the excel sheet, which mentions the same rates, as mentioned in the tender document of M/s. Sweka Powertech Engineers Pvt. Ltd., after the alleged corrections. He has further argued that the corrections and over writings are permissible under the CPWD manual and all these corrections were already there when the tender document was submitted by accused M/s. Sweka Powertech Engineers Pvt. Ltd. He has further argued that in addition to the alleged three corrections, there are several other CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 33 of 124 Special Judge, CBI­01, Central, Delhi corrections also in the tender document Ex.PW.10/E and if, the benefit of all the corrections is taken by M/s. Sweka Powertech Engineers Pvt. Ltd., even then, there was no change in its final status as L­1. But still, only the benefit of three corrections was taken by M/s. Sweka Powertech Engineers Pvt. Ltd. Nobody had prevented the accused persons to take the benefit of all the corrections and therefore, the depositions of the prosecution witnesses, in this regards, is highly doubtful.

35. He has further argued that the tender document was approved by the competent authority, after going through the various channels, but none of the officials of the MCD had pointed out any illegality or irregularity in the tender process or the tender document and therefore, the depositions of PW­4 A.K.Bandopadhyay and PW­6 Gaurav Bhalla that accused D.K.Sugan and T.P.Singh have taken out the tender document for corrections, after the announcement of the rates, is an afterthought.

CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 34 of 124 Special Judge, CBI­01, Central, Delhi

36. He has further argued that no complaint was ever lodged with any authority by any of the prosecution witnesses, including PW­4 A.K.Bandopadhyay; PW­5 J.D.Paul and PW­6 Gaurav Bhalla. No complaint was ever lodged either by the MCD or any other authority in respect of the present tender.

37. He has further argued that a faulty investigation has been done by PW­12 IO Inspector Anand Swaroop and he has also fabricated Ex.PW5/B (D­27), only to substantiate the case of the CBI. He has further argued that the report of the C.V.C., which was sent to PW­7 Ms. Mamta Upadhyay Lal, Director, CVC, New Delhi, could not be proved during the trial and even the Chief Technical Examiner, who prepared the CVC report, has not been produced or examined before the court, during the present trial. He has further argued that even the recovery of Ex.PW5/B (D­27) is doubtful and therefore, no reliance can be placed on this document.

CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 35 of 124 Special Judge, CBI­01, Central, Delhi

38. He has further argued that the material contradictions in the depositions of the witnesses and the discrepancies in the various documents submitted on record, makes the entire prosecution case doubtful and therefore, all the accused are entitled to be acquitted for the offences alleged against them.

39. The Ld. Defence counsel has relied upon the judgment of the Hon'ble Supreme Court, in case titled as, "Vikramjit Singh @ Vicky vs. State of Punjab", reported as (2006) 12 Supreme Court Cases 306, in support of his above contentions. Arguments in defence, on behalf of accused Gurcharan Singh (A­4).

40. It has been argued by Sh. Amardeep Singh, Ld. Defence counsel for accused Gurcharan Singh, that the role of accused Gurcharan Singh, UDC, was to note down the rates of various articles, in the tender opening register Ex.PW4/A, from the tender CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 36 of 124 Special Judge, CBI­01, Central, Delhi documents of the parties, before announcement of the rates by accused D.K. Sugan and he has discharged his duties accordingly and the material contradictions in the deposition of PW­4 Sh.A.K. Bandopadhyay, PW­5 Sh. J.D. Paul and PW­6 Sh. Gaurav Bhalla have demolished the entire prosecution case and the prosecution has failed to prove the allegations, beyond a shadow of doubt, that the accused Gurcharan Singh had noted down the rates of various articles in the tender opening register, later on, after the corrections and alternations of the rates.

41. He has further argued that the prosecution has to stand on its own legs and has to prove its case first, beyond a shadow of doubt and only thereafter the accused can be asked to explain his conduct, under the provisions of Section 106 of the Indian Evidence Act. He has further argued that the document Ex.PW5/B, containing the item­wise rates of various articles, allegedly noted down by PW­5 J.D. Paul, on a photocopy of the tender document, is a forged and fabricated document and was CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 37 of 124 Special Judge, CBI­01, Central, Delhi supplied to the IO later on, during the investigations at a belated stage, only to substantiate the prosecution case and therefore, no reliance to be placed on this document.

42. The Ld. Defence counsel has relied upon the following judgments, in support of his above contentions :

(i) Bhagirath vs. State of Madhya Pradesh, reported as AIR 1976 SC 975;

(ii) Kali Ram vs. State of Himachal Pradesh, reported as AIR 1973 SC 2773;

(iii) Subhash @Dhillu & Another vs. State of Haryana, reported as III (2005) SLT 193;

(iv) State of Andhra Pradesh vs. M. Madhusudhan Rao, reported as 2008 (4) Crimes 350 (SC);

(v) Dalpat Singh & Another vs. State of Rajasthan, reported as AIR 1969 SC 17.

Arguments in defence, on behalf of accused M/s. Sweka Powertech Engineers Pvt. Ltd., (A­5).

43. Sh. Ashok Kumar Sharma, the Ld. Defence counsel has argued that there is no admissible evidence on record to prove CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 38 of 124 Special Judge, CBI­01, Central, Delhi any conspiracy and the material contradictions in the deposition of PW­4 Sh.A.K. Bandopadhyay, PW­5 Sh. J.D. Paul and PW­6 Sh. Gaurav Bhalla, makes the entire prosecution case doubtful. He has also argued that the IO PW­12 Inspector Anand Sarup has conducted a faulty investigation in a biased manner and the nearest available witnesses, i.e., the PA of accused D.K. Sugan and the other officials of the MCD, who were present in the MCD office, on 14.05.2008, were not examined by the IO, deliberately. Even the chief technical examiner of CVC, Sh. Satyendra Kumar, has not been examined before the court, during the trial. He has also argued that there is an unexplained delay of about three years in lodging of the FIR, which makes the entire prosecution case doubtful.

44. The Ld. Defence counsel has relied upon the following judgments, in support of his above contentions:

(i) Bijoy Singh and Another vs. State of Bihar, Criminal Appeal Nos. 1339­40 of 1999, decided on April 17, 2002.

(ii) Ganesh Bhavan Patel and Another vs. State of CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 39 of 124 Special Judge, CBI­01, Central, Delhi Maharashtra, reported as (1978) 4 Supreme Court Cases 371.

(iii) Ram Chandra Singh vs. Savitri Devi & Ors., Civil Appeal No. 8216 of 2003, decided on 09.10.2003.

Arguments in defence, on behalf of accused Tajinder Pal Singh (A­6) and accused Jasminder Pal Singh (A­7).

45. Sh. Pramod Kumar Dubey, Ld. Counsel for accused T.P. Singh and J.P. Singh, has argued that there is no admissible evidence on record to prove the fact that after announcement of the rates by accused D.K. Sugan, the file was take out from the room by him and co­accused T.P. Singh had followed him and in the room of the PA of D.K. Sugan, corrections were made by accused T.P. Singh in the tender documents. He has further argued that there are a large number of material contradictions in the deposition of PW­4 Sh.A.K. Bandopadhyay, PW­5 Sh. J.D. Paul and PW­6 Sh. Gaurav Bhalla, which makes the entire prosecution case doubtful. He has further argued that the certificate issued by co­accused Raju V. may appear to be a CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 40 of 124 Special Judge, CBI­01, Central, Delhi wrong certificate. But, issuance of a wrong certificate is not an offence and it was only an inadvertent error on the part of accused Raju V. and no criminality can be attached to it. He has further argued that the CFSL report cannot determine the age of the corrections in the tender document and the corrections and over­writings are permissible under the CPWD Manual and therefore, no criminality can be attributed to the accused persons. He has further argued that due to various corrections and over­ writings, there was no loss to the department / MCD and giving of a wrong certificate by co­accused Raju V. (A­3) does not adversely effect the tender process, in any manner. He has further argued that there is no evidence of prior meeting of minds and no admissible evidence has come on record to make out any conspiracy between the accused persons and therefore, all of them be acquitted for the offences alleged against them.

46. The Ld. Defence counsel has relied upon the following judgments, in support of his above contentions:

CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 41 of 124 Special Judge, CBI­01, Central, Delhi

(i) Dr. Vimla vs. The Delhi Administration, reported as AIR 1963 Supreme Court 1572 (V 50 C 232)

(ii) Khalil Khan vs. State of M.P., reported as (2003) 11 Supreme Court Cases 19.

(iii) Vimal Suresh Kamble vs. Chaluverapinake Apal S.P. & another, reported as (2003) 3 Supreme Court Cases 175.

OBSERVATIONS / FINDINGS

47. I have carefully perused the case file and I have given my considered thoughts to the arguments addressed by the Ld. PP for the CBI and the Ld. Defence counsels and I have also perused the various judgments, cited by them. From the arguments of the Ld. Defence counsels, it is observed that the main thrust of the arguments of the Ld. Defence counsels has remained on two major issues. First, that the corrections in the tender documents were permissible under the rules and the CPWD Manual and no admissible evidence has come on record to prove, beyond a shadow of doubt, that the corrections in the tender document of accused M/s. Sweka Powertech Engineers Pvt. Ltd. (A­5), were done by the accused T.P. Singh (A­6), in presence of accused CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 42 of 124 Special Judge, CBI­01, Central, Delhi D.K. Sugan (A­1), after opening of tender documents and the announcement of rates. Second, that the sanction granted for prosecution of the government servants, i.e., accused No. 1 to 4, is invalid due to incompetency of the Commissioner MCD and his involvement in the entire tender process, as well as for complete non­application of mind by him, while granting sanction for prosecution. Let us examine the first contention of the Ld. Defence counsels, first.

48. Perusal of the record shows that in order to prove its case, the prosecution / CBI has examined the Chief Engineer, MCD Shri Ram Kumar Sharma Rakesh, as PW­11. He has explained the entire tender process and the circumstances of the case, including the fabrication of the documents and corrections / over writings etc., done by the accused persons, in their tender document. The prosecution has also examined three witnesses namely, PW­4 Sh. A.K.Bandopadhyay; PW­5 Sh. J.D.Paul and PW­6 Sh. Garuav Bhalla from M/s. Spaceage Switchgears Ltd., CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 43 of 124 Special Judge, CBI­01, Central, Delhi who also attended the tender opening process on 14.05.2008, at th the office of the Superintending Engineer­II (Electrical) at 5 floor, room No.501, 16, Rajpur Road, Delhi. M/s. Spaceage Switchgears Ltd., was the second company, which had submitted its tender, besides the accused company M/s. Sweka Powertech Engineers Pvt. Ltd.

49. Perusal of the record further shows that PW­11 Sh. Ram Kumar Sharma Rakesh has categorically stated before the court that in the year 2010, he was working as Chief Manager, South Delhi Municipal Corporation at Ambedkar Stadium, Delhi Gate, for upgradation of street lighting in Delhi to international level for ensuing commonwealth games, 2010. The Principal Secretary, Power­cum­CMD, Delhi Transco, had formed a committee under the chairmanship of Mr. Sethi, Director (Operation) Delhi Transco Ltd. The Chief Secretary, Delhi had sent a request to the Commissioner, MCD, for preparing the action plan accordingly. The said request came to him being the Chief Engineer and he CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 44 of 124 Special Judge, CBI­01, Central, Delhi assigned the job to Executive Engineer (Planning) Sh. Rajan Kohli and Superintending Engineer Ramesh Narula. They framed a preliminary estimate for approximately 159 kilometer for Phase­1 and 800 kilometer for Phase­II, costing Rs.225 crores approximately and the same was approved by the competent authority, i.e. the MCD. He has further deposed that the estimate for 100 kilometer for phase­I was prepared and technically sanctioned by him and thereafter, after completing the formalities of allocation of budget, the expression of interest for phase­I was called by accused O.P.Mahla, Executive Engineer (A­2), vide NIT No. 3/EEE­V/TC/2007­08, on 14.09.2007, through e.tendering, as well as, manually. Wide publicity of tenders was also given in National Newspapers and in response to it, seven firms requested for issuance of the tender and the tenders were issued to all the seven firms, but only three firms, namely M/s. Schnieder Kecelac Sweka JV; M/s. Crompton Greaves and M/s. Space Age Lighting, submitted their tenders. Some of the firms requested for more time to submit their documents and therefore, the tender for CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 45 of 124 Special Judge, CBI­01, Central, Delhi expression of interest were re­invited for the second time, through e­tendering, as well as, manually, vide NIT No. 13/EE(E)­ VI/TC/2007­08, dated 04.12.2007, due on 15.01.2008, with due publicity in national newspapers. In response to this, five tenders were sold and five tenders were received from five firms, namely, (1) M/s. Crompton Greaves, (2) M/s. Consortium of Sweka Powertech Engineer Pvt. Ltd. (Leader), (3) Consortium of M/s. Bajaj Electrical Ltd. (Leader) TRILUXLENZE GmbH +Co. KG. POLYCAB Cables Pvt. Ltd., behat Hortivision Pvt. Ltd., (4) Consortium of M/s. Space Age (Leader) GE India Industries Pvt. Ltd., and (5) Phillips India Ltd. Out of these five firms, the Commissioner, MCD approved four firms as pre­qualified firms, except M/s. Crompton Greaves. Thereafter, a detailed estimate amounting to Rs.34,78,15,544/­ was prepared by JE Praduman Bhardwaj and AE Sandeep sharma. The said estimate was checked by G.S.Rana, draftsman; A.K.Aggarwal, AE and O.P.Mahla, Executive Engineer (Planning) (A­2). CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 46 of 124 Special Judge, CBI­01, Central, Delhi

50. This witness has further deposed that the proposal in such cases i.e. the case of above rupees 25 lacs, comes in the form of a preamble with the comparative statement duly signed by the tender opening team. It is pertinent to mention here that the tender opening committee comprised of accused D.K.Sugan, S.E. (A­1); O.P.Mahla, E.E. (A­2); Raju V., Divisional Accountant (A­3) and Gurcharan Singh, tender clerk (A­4). He has further deposed that accused O.P.Mahla, Executive Engineer (A­2) framed the preamble, alongwith the comparative statement, checked by the tender opening team and forwarded the same to accused D.K.Sugan, S.E. (A­1) and then it was forwarded to him. Thereafter, he checked the preamble and the comparative statement and sent the same to the Engineer­in­Chief, who further forwarded the same to the Additional Commissioner, MCD. This witness has further deposed that the Additional Commissioner, MCD called him and the Engineer­in­Chief and asked for comparison of rates from PWD and accordingly, the same had been incorporated by way of calling the rates from CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 47 of 124 Special Judge, CBI­01, Central, Delhi PWD and thereafter, the comparative statement and the preamble were forwarded to the Additional Commissioner, MCD, who then forwarded the same to the Commissioner, MCD. Thereafter, Commissioner MCD forwarded the same to CA­cum­FA for financial comparison. The Commissioner MCD, also raised observations on two occasions and the same have been replied by accused D.K.Sugan, S.E. (A­1) and accused O.P.Mahla, Executive Engineer (A­2). These two accused had incorporated the reply of the objections raised by the CA­cum­FA and the same forms part of the draft preamble. Thereafter, the draft preamble was again submitted to him by accused D.K.Sugan, S.E. (A­1) and accused O.P.Mahla, Executive Engineer (A­2) and thereafter, he checked the draft preamble and comparative statement and forwarded it to the Engineer­in­Chief, who forwarded the file to the Additional Commissioner, MCD, who approved the draft preamble. Thereafter, a fair preamble was prepared by accused O.P.Mahla, Executive Engineer (A­2) and forwarded it to accused D.K.Sugan, S.E. (A­1), who forwarded the same to him. The fair CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 48 of 124 Special Judge, CBI­01, Central, Delhi preamble was thereafter signed by the Additional Commissioner (Engineering).

51. PW­11 Ram Kumar Sharma Rakesh, has further deposed that the file D­11 pertaining to upgradation of street lighting on roads in Delhi, under the jurisdiction of MCD, phase­1, pertaining to M/s. Spaceage Switchgears Ltd., was dealt by him and it contained the various documents and the fair preamble. He has further deposed that the technical specifications forwarded by the Principal Secretary Shri Rakesh Mehta, vide forwarding letter, dated 03.10.2006, was marked to him and the said standard specifications were put up before him by Shri Rajan Kohli, E.E. (Planning) and thereafter, he forwarded the file containing the standard specifications to Ramesh Narula, SE. The forwarding letter, dated 03.10.2006 and the common standard technical specifications, in file D­11 at internal page 185 to 187 have been proved on record as Ex.PW.11/B. CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 49 of 124 Special Judge, CBI­01, Central, Delhi

52. This witness has further deposed that the action plan was prepared by Rajan Kohli, Ramesh Narula and accused D.K.Sugan, S.E. (A­1) and the same was approved by the Corporation vide Resolution No. 76, dated 30.07.2007. He has further deposed that after approval of the action plan by the Corporation, the same was received in his office on 22.08.2007 and he forwarded the same to accused D.K.Sugan, S.E. (A­1). The action plan at page No. 1/C to page 198/C has been proved on record as Ex.PW.11/D.

53. PW­11 Ram Kumar Sharma Rakesh, Chief Engineer, has further deposed that after approval of the technical sanction, four tenders were issued to all the pre­qualified firms, but only two firms, namely (1) Consortium of M/s. Sweka Powertech Engineers Pvt. Ltd. (Leader) and (2) Consortium of M/s. Space Age (Leader) GE India Industries Pvt. Ltd., submitted their tenders for Rs. 34,53,68,925/­ and Rs.42,44,02,080/­ respectively. Thereafter justification of rates for an amount of Rs. 45,47,98,006/­ was CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 50 of 124 Special Judge, CBI­01, Central, Delhi prepared by JE Praduman Bhardwaj and the same is on record as Ex.PW.11/G. This justification of rates was checked by G.S.Rana, draftsman; A.K.Aggarwal, AE; accused O.P.Mahla, (A­2), Executive Engineer and S.K.Aggarwal, AE.

54. This witness has further deposed that the lowest rate of Rs.

34,53,68,925/­ was offered by consortium of M/s. Sweka Powertech Engineers Pvt. Ltd. (A­5), and therefore, the name of the said company was recommended for contract. After the said recommendation before its approval, the rates, per pole, were got compared with PWD (GNCTD rates) and the case file was forwarded to CA­cum­FA, through Commissioner MCD, for financial concurrence, before approval of rates and agencies, which were put up by accused O.P.Mahla (A­2), Executive Engineer. Thereafter, CA­cum­FA again raised some observations and the reply was submitted by accused O.P.Mahla, Executive Engineer (A­2). The said file was thereafter submitted to him for approval of draft preamble through accused D.K.Sugan, CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 51 of 124 Special Judge, CBI­01, Central, Delhi S.E. (A­1) and thereafter the same was approved by the Commissioner, MCD. This witness has further deposed that a fair preamble was sent to the Standing Committee of MCD, for its approval, under the signatures of Additional Commissioner MCD and after the approval of the said preamble, a work order was issued to M/s. Sweka Powertech Engineers Pvt. Ltd.,(A­5), vide agreement, dated 01.07.2008 Ex.PW.9/H, for Rs. 34,53,68,925/­.

55. PW­11 Ram Kumar Sharma Rakesh, Chief Engineer, has further deposed about the cuttings and over writings in the tender documents of M/s. Sweka Powertech Engineers Pvt. Ltd.,(A­5). He has also deposed that pages 101 to 107 of the tender document contained the item­wise rates, but the grand total has not been mentioned. This witness has further deposed that on page Ex.PW.10/A to Ex.PW.10/G, there is cutting at item 1(a) on page Ex.PW.10/A and at item 3(a) on page Ex.PW.10/B and there are over writings in item No. 2(a) on page Ex.PW.10/E and in item No. 20(a), 20(b) and item No. 21 and 22 on page Ex.PW.10/G. CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 52 of 124 Special Judge, CBI­01, Central, Delhi

56. Perusal of the record further shows that this witness was further examined on 04.04.2013 and on that day, he had deposed about the responsibilities of the various government officials i.e. accused D.K.Sugan, S.E. (A­1); accused O.P.Mahla, Executive Engineer (A­2); accused Raju V., accountant (A­3) and accused Gurcharan Singh, UDC (A­4), who were the members of the tender opening committee.

57. It has been specifically stated by this witness that the responsibilities of checking the cuttings in the tender document was of Divisional Accountant Raju V. (A­3) and the members of the tender opening committee. The attendance of the bidders and the officials of the tender opening committee, present at the time of opening the tender document, is marked in the tender opening register simultaneously. Thereafter, the divisional accountant opens the tender envelope, submitted by the bidders and thereafter, he will mark the serial number on the envelope, as CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 53 of 124 Special Judge, CBI­01, Central, Delhi well as the tender documents, with red ink. For example, for tender number 1, if three bids are submitted, then he will open the first envelope and mark in red ink, "1/1" and shall put his signatures. Then he will open the second envelope and will write, "1/2" on the envelope as well as on the tender document and shall also put his own signatures in red ink. Thereafter, he shall open the third envelope and shall write "1/3" on the envelope, as well as the tender document and shall also sign the same. Thereafter, the divisional accountant shall encircle the rate of each item mentioned in the tender document with red ink and at the bottom of each page of the bid document, he will give a certificate as to how many cuttings and how many over writings are in that sheet. Thereafter, the tender clerk shall make the entries of the rates of each item, in the tender opening register. At that time, tender clerk was Gurcharan Singh (A­4). This witness has further deposed that the divisional accountant shall thereafter compare the entries made in the tender opening register by the tender clerk, with the bid document and after checking the same, he will CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 54 of 124 Special Judge, CBI­01, Central, Delhi put his signatures at the bottom of every page of the tender opening register. Thereafter, the Executive Engineer (accused O.P.Mahla, A­2 herein) shall put his signatures on every page of the tender opening register. Thereafter, Superintending Engineer (accused D.K.Sugan A­1, herein) shall put his signatures on every page of the tender opening register. This witness has identified the signatures of all the four accused persons, namely accused D.K.Sugan (SE) (Electrical) (A­1); O.P.Mahla, E.E. (Electrical­V) (A­2); Raju V., Accountant (A­3) and Gurcharan Singh,UDC (A­4), on the pages­2 & 3 of the tender opening register Ex.PW.4/A and Ex.PW4/B.

58. PW­11 Ram Kumar Sharma Rakesh, Chief Engineer, has further deposed that after marking of the entries and verification of the item­wise rates and after signatures of all the members of the tender opening committee, all the tender documents are submitted to the Superintending Engineer (accused D.K.Sugan, A­1). Thereafter, the item­wise rates are announced by the CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 55 of 124 Special Judge, CBI­01, Central, Delhi Superintending Engineer in the presence of the bidders and the bidders were supposed to note down the item­wise rates.

59. The aforesaid deposition of PW­11 Ram Kumar Sharma Rakesh, Chief Engineer, finds corroboration from the CPWD Manual 2007, wherein, the procedure has been prescribed for receipt, opening and acceptance of the tenders, under Section 19, which is reproduced below, for ready reference :

SECTION 19 RECEIPT, OPENING AND ACCEPTANCE OF TENDERS With a view to avoid the possibility of original tender documents being tampered with, the following procedure shall be adopted in connection with the receipt and opening of tenders and their acceptance.

19.1 Receipt of tenders (1) All the tenders in the power of Executive Engineer and higher officers shall be received in the Divisional Office. Tenders in the power of Assistant Engineer shall be received in the Sub­ Division.

(2) Provisions under para 18.2 of this Manual may be seen regarding deposit of earnest money. Since the NIT stipulates deposit of earnest money with the tender application, a few sets of tender documents should be kept ready in the office of CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 56 of 124 Special Judge, CBI­01, Central, Delhi the tender sale authority to facilitate the intending tenderers to see them if they so desire. A register should be maintained by the designated official to obtain the signature of the intending tenderer(s) as a proof of having seen the tender documents. 19.1.1 Witnessing the opening of tenders (1) All the tenders should be opened in the presence of such intending tenderers or their representatives as may choose to attend at the time and place, which should be advertised. The tenders should be entered in the Register Form CPWD 41. (2) The Divisional Accountant (Sub­Divisional Clerk in Sub­ Division) should be encouraged to be present at the time of opening of tenders. The tenderers should also be encouraged to be present at the time of opening of the tenders. (3) The tenders that are received after the due date and time of receipt are not to be considered at all. They should neither be opened nor entered in the tender opening register. (4) When tenderers sign their tenders in any Indian script or can only write their names in English, the amount of the tender, or rate of percentage above or below offered by them, should be written in the tenderer's own handwriting in Indian script, and in the case of illiterate tenderer, the amount of tenders should be attested by one of the witnesses.

(5) Percentage and lump sum tenders should be read out to the tenderers as far as possible. In the case of item rate tenders, the total amount worked out by the different tenderers may be read out, if required by the tenderers present. 19.1.2 Procedure for dealing with corrections, etc. CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 57 of 124 Special Judge, CBI­01, Central, Delhi (1) The Officer opening the tenders should encircle all corrections, cuttings, conditions, additions and over­writings and number them and attest them in red ink.

(2) In case of a number of corrections in the rate of any one item, either in words or in figures or in both, the number of corrections marked should indicate the corrections serially, that is to say, in case of, say, three corrections in rates of any one item, each of these corrections should be allotted independent numbers serially and not one number to represent all the three corrections.

(3) The number of such corrections, cuttings, additions, conditions and over­writings must be clearly mentioned at the end of each relevant page of the Schedule attached to the tender documents, and they should be properly attested with date. Any omission observed should also be brought out clearly on each relevant page of the Schedule.

(4) The corrections, cuttings, conditions, additions and over­ writings etc., should be allotted separate numbers, i.e. corrections should start from 1,2,3, etc., and over­writings should similarly start separately from 1,2,3, etc. Use of correction fluid anywhere in tender documents should not be allowed. In case use of correction fluid is noticed, such tender will be liable for rejection.

19.1.3 Procedure for dealing with omissions (1) Any ambiguity in rates quoted by the tenderers, either in words or figures, must be clearly indicated on each relevant page of the Schedule attached to the tender documents to which it concerns.

CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 58 of 124 Special Judge, CBI­01, Central, Delhi (2) Where the contractor has quoted rates in rupees and no paisa is mentioned, the word "only" should invariably be added after the words 'rupees', and the corrections should be initiated and dated with suitable remarks at the end.

(3) Where the contractors have omitted to quote the rates/amount either in figures or in words, or both as applicable, the Officer opening the tender should record the omissions on each page of the Schedule.

(4) The Divisional/Sub­Divisional Officer should see that the tenderers quote entire rates in words including paise to avoid chances of tampering in rates, and if the contractor fails to do so the Executive Engineer /Assistant Engineer should himself write the rates in words at the time of opening of tenders. (5) The tenderer should be asked to fill in the tenders properly and carefully. They should avoid quoting absurd rates and making too many corrections in the tenders. The amounts should also be correctly worked out. If any contractor does not follow these instructions and desists from filling the tenders carefully, it would be open to the Department to take disciplinary action against the contractor.

19.2 Scrutiny of tenders (1) After opening the tenders in the manner mentioned above, and keeping a record as given in para 19.3.1(1)(i), and preparation of comparative statement, the Executive Engineer will send the same to the office of the Superintending Engineer /Chief Engineer (i.e. the tender accepting authority concerned) and the detailed scrutiny will be done in the office of that accepting authority. The market rates for preparation of justification will, CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 59 of 124 Special Judge, CBI­01, Central, Delhi however, be sent by the Executive Engineer.

(2) In case of tenders within the powers of Additional Director General /Director General (Works)/Central Works Board, complete scrutiny will be done in the office of the Chief Engineer concerned.

19.2.1 Preparation/checking of comparative statement (1) Preparation of comparative statement A complete comparative statement of all the tenders received in response to the notice should be drawn up in the office of the Executive Engineer in CPWD Form No. 13 or 14 as the case may be, and the following instructions should be carefully noted:

(i) The Officer opening the tender should prepare in his own hand in the tender opening register a statement of the "Percentage" or "Lump Sum" tenders received and should sign that statement. In the case of item rate tenders, he needs to prepare only a list of tenders received.

(ii) Care should be taken in preparing and scrutinizing the comparative statement of tenders to guard against arithmetical and other mistakes. Failure to do this may result in the work being awarded to a contractor who is not the lowest acceptable tenderer, a contingency which must be guarded against.

(2) Checking of comparative statement.

The detailed arrangements for proper check of tenders and comparative statement are left to the tender accepting authority, but any such arrangements must provide:

(i) That the work will be carried out under the control of the CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 60 of 124 Special Judge, CBI­01, Central, Delhi financial officer in the Chief Engineer's Office, SE(P) in case financial officer is not available. Executive Engineer (Planning)/AE(P) in Superintending Engineer's Office, Divisional Accountant in Division Office and by Sub­ Divisional Clerk in Sub­Division Office. The duties and responsibilities of the Divisional Accountant mentioned in the subsequent paras shall be deemed to be the duties of the above mentioned officers under whose control the scrutiny of tenders is being done. The officials handling the tender should work on it in the Branch only, and the tenders should not be taken outside the Branch in any case. The tenders and related papers must be kept under lock & key by the officials before leaving the office.

(ii) That the officials date and initial all papers the calculations of which they have checked and that all working sheets are preserved.

(iii) That the Divisional Accountant or the concerned officer mentioned in para 19.2.1(2)(i) makes satisfactory and efficient arrangements for checking the computed tenders.

He should also conduct personally a test check of computed and checked tenders, sufficient to satisfy himself reasonably that the checking work has been properly done. He should also see that the comparative statement correctly incorporates the total as checked in individual tenders. Full details of the Divisional Accountants responsibility in the matter are contained in para 19.2.2.

(iv) Procedure for dealing with ambiguities in rates :

That if on check there are differences between the rates given by the contractor in words and in figures or in amount CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 61 of 124 Special Judge, CBI­01, Central, Delhi worked out by him, the following procedure shall be followed :

(a) When there is a difference between the rates in figures and in words, the rates which correspond to the amounts worked out by the contractor shall be taken as correct.

(b) When the amount of an item is not worked out by the contractor, or if it does not correspond with the rates written either in figures or in words, then the rate quoted by the contractor in words shall be taken as correct.

(c) When the rate quoted by the contractor in figures and in words tallies, but the amount is not worked out correctly, the rates quoted by the contractor shall be taken as correct and not the amount.

(d) In the case of percentage rate tender, the tenderers are required to quote their rates, both in amount as well as in the percentage below / above the rates entered in the Schedule. In such cases, in the event of arithmetical error committed in working out the amount by the contractor, the tendered percentage and not the amount should be taken into account.

(e) All corrections in the comparative statement should be carried out neatly and clearly, and initialed by the person making the corrections. The corrections shall then be attested by the authority concerned.

19.2.2 Responsibilities of the Divisional Accountant (1) The responsibilities of a Divisional Accountant as regards the CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 62 of 124 Special Judge, CBI­01, Central, Delhi computation and checking of tender and the preparation of comparative statements, as decided by the Comptroller and Auditor General of India in consultation with the Government of India, are as follows :

(i) The Divisional Accountant is responsible for the safe custody of tender documents during the period when they remain in the Accounts Branch until submission to the Executive Engineer.

(ii) He is responsible for the arrangements for checking the computed tenders, i.e. for seeing that satisfactory and efficient arrangements are made for checking.

(iii) He should conduct personally a test check of the computed and checked tenders sufficient to satisfy himself reasonably that the checking work has been properly done.

(iv) He should see that the comparative statement correctly incorporates the totals as checked on the individual tenders.

(2) The Divisional Accountant himself should not be called on to do any of the actual computing work or of the intermediate verification of the computations or of the preparation of comparative statement. His responsibility extends to the final checking arrangements and he himself doing a reasonable amount of test check. Infact, an Executive Engineer would be quite entitled to ask the Divisional Accountant to note on the comparative statement that as far as he could ascertain from such test check as he had been able to carry out, the statement is accurate. There is no objection for the employment of Accounts Clerks, as distinct from the Divisional Accountant on the computation, if the work is large and the CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 63 of 124 Special Judge, CBI­01, Central, Delhi preparation of a comparative statement is urgent. It should, however, be open to the Divisional Accountant, if he thinks this the more satisfactory method of ensuring accurate check, to reserve or to detail one or more of the Accounts Clerks solely for him, to satisfy himself that any check has been properly done.

(3) The Divisional Accountant should record the following certificate on the comparative statement :

"Certified that :

I have personally conducted a test check of all the computed and checked tenders and have satisfied myself that the checking work has been properly done. The comparative statement correctly incorporates the totals as checked on the individual tenders."

60. Perusal of the above provisions makes it clear that PW­11 Ram Kumar Sharma Rakesh, Chief Engineer, has deposed correctly about the tender opening process. This witness has been cross­examined by the Ld. Defence counsels, at length, but, even in his cross­examination, this witness has deposed in a consistent and trustworthy manner and no material discrepancy has come on record, to discard his testimony. In his cross­ examination on 25.04.2013, by Shri H.R.Khan, Advocate, for CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 64 of 124 Special Judge, CBI­01, Central, Delhi accused D.K.Sugan (A­1), this witness has categorically stated that the signatures of the bidders are taken on the first page of the tender opening register, which is specified for the attendance and it is not only the practice, but also the procedure to get their signatures. He has admitted that signatures of the parties are obtained for the purpose of attendance, on the first page and are never obtained on the page, on which, the rates are written in the tender opening register. He has further admitted that whenever the rates are mentioned in the tender document, the same rates are copied on the tender opening register, by the tender clerk, checked by the accountant and countersigned by the Executive Engineer. This deposition, in the cross­examination, has supported the contentions of the Ld. Defence counsels that the first page of the tender opening register contains the signatures of the parties only to indicate their presence, at the time of opening of the tenders. But, perusal of the tender opening register Ex.P­4 (D­5), at page No. 2 & 3, Ex.PW.4/A and Ex.PW.4/B, respectively, indicates that these pages bear the names and designation etc., CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 65 of 124 Special Judge, CBI­01, Central, Delhi of the parties, who were present on 14.05.2008, at the time of opening of the tender. This register indicates that PW­4 A.K.Bandopadhyay, PW­5 J.D. Paul; and PW­6 Gaurav Bhalla, have attended the process as representatives of M/s. Spaceage Switchgears Ltd., while accused T.P.Singh (A­6) and accused J.P.Singh (A­7) have attended the process on behalf of M/s. Sweka Powertech Engineers Pvt. Ltd.,(A­5). Shri Mehul Karnik (who was accused no.9 in the charge sheet, but was lateron discharged by the Ld. Predecessor of this court, vide orders, dated 24.02.2012), had also attended the process on behalf of Phillips India Ltd. Perusal of this register further indicates that this register bears the signatures of PW­5 Sh. J.D.Paul; PW­6 Sh. Gaurav Bhalla and Accused J.P.Singh (A­7) on page­3 i.e. Ex.PW.4/B, against their names in the same row. However, PW­4 Sh. A.K.Bandopadhyay and accused T.P.Singh (A­6) had signed this register on page­2 Ex.PW.4/A, itself. But, again Mehul Karnik (A­9, who was lateron discharged vide orders dated 24.02.2012) had signed in the same row in the first column of CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 66 of 124 Special Judge, CBI­01, Central, Delhi Ex.PW.4/B. Perusal of this register further indicates that page­2 Ex.PW.4/A also bears the signatures of accused D.K.Sugan (SE) (Electrical) (A­1); O.P.Mahla, E.E. (Electrical­V) (A­2); Raju V., Accountant (A­3); Gurcharan Singh,UDC (A­4), at the bottom of this page, being the members of the tender opening committee. Perusal of page­3 of this register Ex.PW.4/B indicates that this page does not bear the signature of any of the members of the tender opening committee, but it bears the signatures of PW­5 J.D. Paul, PW­6 Gaurav Bhalla, accused J.P.Singh (A­7) and Mehul Karnik, in column No.1 of this page, against their names mentioned in page No.2 Ex.PW.4/A. The pattern of signing by PW­4 A.K.Bandopadhyay; PW­5 J.D.Paul; PW­6 Gaurav Bhalla; accused J.P.Singh (A­7); Mehul Karnik and accused T.P.Singh (A­6) on page­2 and page­3, Ex.PW.4/A and Ex.PW.4/B respectively, clearly indicate that these two pages were meant only for the purpose of mentioning the names of the representatives of the various parties, who were present at the time of tender opening process, besides indicating the presence CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 67 of 124 Special Judge, CBI­01, Central, Delhi of the members of the tender opening committee of MCD. The pattern of signatures by PW­5 J.D.Paul; PW­6 Gaurav Bhalla; accused J.P.Singh (A­7) and Mehul Karnik, on page­3, Ex.PW. 4/B, clearly indicate that page­3 was never meant for mentioning the item­wise rates of the tenders. The rates should have been mentioned on the subsequent pages of this register. Perusal of page­3, Ex.PW.4/B, further indicates that the pattern of writing of rates of various items is in such a manner that signatures of J.D.Paul, PW­5; Gaurav Bhalla, PW­6; accused J.P.Singh (A­7) and Mehul Karnik are duly adjusted in its first column. Perusal of the tender opening register, page­2 & page­3, Ex.PW.4/A and Ex.PW.4/B respectively, further indicates that the manner in which the item­wise rates have been mentioned on page­3 Ex.PW.4/B, the same could have been done only after the witnesses J.D.Paul, PW­5; Gaurav Bhalla, PW­6; accused J.P.Singh (A­7) and Mehul Karnik had signed this page. The pattern of mentioning of the item­wise rates in Ex.PW.4/B clearly indicate that these rates were entered lateron, as the first column, CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 68 of 124 Special Judge, CBI­01, Central, Delhi wherein, the item numbers have been mentioned, curves on the right side, just to accommodate the signatures of the prosecution witnesses and the accused persons, otherwise the item numbers should have been mentioned in column No.1 of page­3 Ex.PW. 4/B in a straight line. Furthermore, page­3 Ex.PW4/B does not contain the rates of all the tender items and the rates are also mentioned on page­4 of this register. Perusal of column No.1 of page­4 of this register also indicates that item numbers have been mentioned in column No.1 of this page in a straight line. All these circumstances clearly indicate that the rates have been entered in the tender opening register, at a later stage.

61. These observations find corroboration from the testimonies of PW­4 A.K.Bandopadhyay, PW­5 J.D. Paul; and PW­6 Gaurav Bhalla, who have categorically deposed that the tender opening register was in blank condition when they had signed it.

62. Perusal of the testimonies of PW­11 Sh. Ram Kumar Sharma CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 69 of 124 Special Judge, CBI­01, Central, Delhi Rakesh, Chief Engineer, further indicates that in his cross­ examination on 02.08.2013, this witness has further categorically stated that the cuttings and over writings in the tender documents were permissible under the CPWD manual and no individual certificate for cuttings and over writings on each page of the tender document was required. He has categorically stated that as per usual practice, certificate of cuttings and over writings was not required to be given on each page. Therefore, during the course of final arguments, the main thrust of arguments of the Ld. Defence counsels has remained that the cuttings and over writings in the tender documents, were permissible under the CPWD manual and the CFSL report by GEQD cannot comment anything about the age or date of the corrections and therefore, it cannot be said with certainty that the corrections and over writings, as found in the tender document of M/s. Sweka Powertech Engineers Pvt. Ltd.,(A­5), were done by accused T.P.Singh (A­6), in connivance with accused D.K.Sugan (A­1), after the announcement of rates on 14.05.2008. They have CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 70 of 124 Special Judge, CBI­01, Central, Delhi further argued that these cuttings and over writings were already present in the tender document Ex.PW10/E, when the same was submitted by accused T.P.Singh (A­5) on behalf of M/s. Sweka Powertech Engineers Pvt. Ltd.,(A­5) and making of an incorrect certificate by accused Raju V. (A­3) on each of the pages at page No.101 to page No.107 of the tender document, was only an inadvertent error. But, from perusal of the tender document Ex.PW.10/E, it is clear that the corrections and over writings were made in this tender document, at a subsequent time and the same were not present in the tender document Ex.PW10/E when the same was submitted to the MCD. The corrections in this tender document on page­101 to page­107, which are Ex.PW. 10/G to Ex.PW.10/A respectively, are also to be examined by the court, besides the testimonies of the prosecution witnesses, as per the procedure prescribed in Section 19.1.2 of CPWD Manual, 2007, which is reproduced below:

19.1.2 Procedure for dealing with corrections, etc. (1) The Officer opening the tenders should encircle all corrections, cuttings, conditions, additions and CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 71 of 124 Special Judge, CBI­01, Central, Delhi over­writings and number them and attest them in red ink.

(2) In case of a number of corrections in the rate of any one item, either in words or in figures or in both, the number of corrections marked should indicate the corrections serially, that is to say, in case of, say, three corrections in rates of any one item, each of these corrections should be allotted independent numbers serially and not one number to represent all the three corrections.

(3) The number of such corrections, cuttings, additions, conditions and over­writings must be clearly mentioned at the end of each relevant page of the Schedule attached to the tender documents, and they should be properly attested with date. Any omission observed should also be brought out clearly on each relevant page of the Schedule.

(4) The corrections, cuttings, conditions, additions and over­writings etc., should be allotted separate numbers, i.e. corrections should start from 1,2,3, etc., and over­writings should similarly start separately from 1,2,3, etc. Use of correction fluid anywhere in tender documents should not be allowed. In case use of correction fluid is noticed, such tender will be liable for rejection.

63. Perusal of page­107, Ex.PW.10/A, indicates that there are corrections in the rates of the items at two places and there is CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 72 of 124 Special Judge, CBI­01, Central, Delhi over writing in rates at one item, but still, accused Raju V. (A­3) has encircled these cuttings in red ink and has mentioned at the bottom of this page as "C­1 O.W. - One 1", which indicates that despite presence of two cuttings and one over writing, he mentioned one cutting and one over writing in the certificate. Furthermore, two cuttings at item 1(a) have been initialed by accused T.P.Singh (A­6), but the over writing at item No. 2 (a) has not been initialed by him. In item No. 1(a), the rate of the item has been increased from Rs.32,149/­ to Rs.42,149/­ and necessary corrections have been done in words and numerals, accordingly, which have been initialed by accused T.P.Singh (A­6). In item No. 2(a), the rate has been corrected to Rs. 38,358/­ from Rs.28358/­, but the over writing is only in the numerals and the corresponding corrections or over writings have not been done in words. This correction was not initialed by accused T.P.Singh (A­6).

64. Perusal of page­106, Ex.PW.10/B, indicates that there is CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 73 of 124 Special Judge, CBI­01, Central, Delhi correction of rates at item No. 3(a) and the rate has been changed from Rs.23,974/­ to Rs.28,974/­, by making the corresponding corrections in the numerals and in words. The numeral "3" in 23974/­ has been changed to "8", thereby making it Rs.28,974/­. The numeral "3" has been changed to "8" and the said correction has been initialed by accused T.P.Singh (A­6). But, the certificate given by Raju V. (A­3) at the bottom of the page at point Q­12 mentions, "C­1 O Nil", indicating one correction and no over­writing.

65. Perusal of page­105, Ex.PW.10/C, indicates that there is no correction or over writing and therefore, accused Raju V. (A­3) has mentioned at the bottom of the page as "C O - Nil", indicating, no correction and no over­writing.

66. Similarly, there is no correction or over writing at page 104, Ex.PW.10/D and accordingly, a similar certificate has been given by accused Raju V. (A­3).

CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 74 of 124 Special Judge, CBI­01, Central, Delhi

67. Perusal of page­103, Ex.PW.10/E, which is the bone of contention in the present case, shows that there are cuttings and over writings at several places. The rate mentioned at item No. 20(a) has been changed from Rs.930/­ to Rs.1930/­., The rate at item No. 20(b) has been changed from Rs.802/­ to Rs. 1802/­ and the rate mentioned against item No. 21 has been changed from Rs.215/­ to Rs.315/­ and the rate against item No. 22 has been changed from Rs.185/­ to Rs.285/­, by making necessary corresponding changes in the numerals and words. The entries and changes against item No. 20(a) and item No. 20(b) were never sent to CFSL, for expert opinion of the GEQD, by the IO of the CBI, for the reasons best known to him. However, the necessary changes against the rates of the items at item No. 21 and 22, were taken into consideration and necessary changes were sent as questioned corrections and over writings, for expert opinion of the GEQD. Despite four corrections and two over writings at these various items, the certificate at the bottom of the CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 75 of 124 Special Judge, CBI­01, Central, Delhi page, as given by accused Raju V. (A­3) mentions, "C O - Nil", which indicates that there was no correction or over writing in the rates of any of the items, till the time, when the tenders were submitted and scrutinized by Raju V.

68. The main thrust of the arguments of the Ld. Defence counsels has remained that the corrections and over writings were permissible under the CPWD manual and all the above noted corrections and over writings were present in the tender documents, when the same was submitted to the MCD. But, I do not find any merit in this contention also as the certificate given by accused Raju V. (A­3) was required to be given by him just after the opening of the tender document itself and after checking of each and every item. As per the CPWD manual, he was required to encircle all corrections, cuttings and over­writings and number them and alter them in red ink. He was further required to mention the corrections serially, as per Section 19.1.2 (2). He should have also allotted separate serial numbers to each and CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 76 of 124 Special Judge, CBI­01, Central, Delhi every correction and over­writing and should have attested the same with date.

69. Perusal of the pages 101 to 107, Ex.PW.10/A to Ex.PW.10/G, clearly indicate that accused Raju V. (A­3) has given the certificates, just after opening of the tender document, after its scrutiny and the corrections and over writings in the tender document Ex.PW.10/H, on page­107 Ex.PW.10/A; page­106 Ex.PW.10/B and page­103 Ex.PW.10/E, clearly indicate that these corrections and over­writings were done at a subsequent stage, after the announcement of the rates. No other inference is possible or can be drawn by this court, from perusal of the tender document Ex.PW10/H. Even otherwise, the corrections in item­ wise rates, at a later stage has made the certificates given by accused Raju V. (A­3), the wrong certificates. Therefore, the giving of these incorrect certificates can never be termed as an "inadvertent­error", on the part of accused Raju V. Furthermore, the accused Raju V. was assigned an expert work of a divisional CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 77 of 124 Special Judge, CBI­01, Central, Delhi accountant and he was required to discharge his duties with due care & diligence, while dealing with the corrections and over­ writings, as per the provisions of Section 16 of the CPWD Manual, 2007.

70. The above observations find corroboration from the testimonies of PW­4 A.K.Bandopadhyay, PW­5 J.D. Paul; and PW­6 Gaurav Bhalla also.

71. PW­4 A.K. Bandopadhyay was working as Dy. Manager in M/s.

Spaceage Switchgears Ltd. and he attended the tender opening process on 14.05.2008. He had categorically stated that the tenders were submitted only by M/s. Sweka Powertech Engineers Pvt. Ltd., and M/s. Spaceage Switchgears Ltd and apart from the representative of the bidding companies, the employees of the MCD, namely, accused D.K. Sugan (A­1), O.P. Mahla (A­2) and three other employees were also present there. In presence of all the representatives and the officials, the tender box was sealed CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 78 of 124 Special Judge, CBI­01, Central, Delhi and was later on opened after desealing the same. The tender documents were taken out and the quoted rates were announced. This witness had categorically stated that the announced rates were noted down by them and the notings of rates were done by PW­5 J.D. Paul. He has further deposed that the rates were announced by accused D.K. Sugan (A­1) and the tender was awarded to M/s. Sweka Powertech Engineers Pvt. Ltd. as its rates were the lowest. This witness has further deposed that all the persons had signed the tender opening register and when they signed the same, nothing was written on it. This witness has further deposed that after announcement of the rates, PW­5 J.D. Paul had told PW­6 Gaurav Bhalla that the file of M/s. Sweka Powertech Engineers Pvt. Ltd., has been taken out to the PS room and therefore, he (Gaurav Bhalla) should go and find out, what is happening. On his return from outside, PW­6 Gaurav Bhalla told PW­5 J.D. Paul that something was being written in the file.

CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 79 of 124 Special Judge, CBI­01, Central, Delhi

72. PW­5 J.D. Paul, the Vice President (Lighting & Projects) of M/s. Spaceage Switchgears Ltd. has also deposed in a similar manner. He had also categorically stated that the tender documents were submitted only by M/s. Spaceage Switchgears Ltd. and M/s. Sweka Powertech Engineers Pvt. Ltd. and the tender documents were sealed before half an hour of the opening of the tenders and at about 4'O Clock the tender documents were opened. He has further stated that the tender documents of M/s. Spaceage Switchgears Ltd. were opened first and after completing the document of M/s. Spaceage Switchgears Ltd. the documents of M/s. Sweka Powertech Engineers Pvt. Ltd. were opened and he noted the rates announced by Mr. D.K. Sugan. He has categorically stated that he noted down the rates of M/s. Spaceage Switchgears Ltd., as well as of M/s. Sweka Powertech Engineers Pvt. Ltd. He has further stated that he was having a blank photocopy of the tender document and he had noted down the rates on it. The said photocopy of the tender document, on which the announced rates were allegedly recorded by this CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 80 of 124 Special Judge, CBI­01, Central, Delhi witness has been proved on record as Ex.PW5/B (Collectively 7 pages) (D­27).

73. PW­5 J.D. Paul has further deposed that M/s. Sweka Powertech Engineers Pvt. Ltd., was declared as L­1 and after announcement of the rates, the page numbers were put on the tender documents. He has categorically stated that after numbering, the tender documents of M/s. Sweka Powertech Engineers Pvt. Ltd., were taken to the next room by accused D.K. Sugan (A­1) and thereafter, he asked his colleague PW­6 Gaurav Bhalla to go out and look as to what was happening and on his return he told him that something was being written on the tender document of M/s. Sweka Powertech Engineers Pvt. Ltd. This witness has specifically and categorically stated that PW­6 Gaurav Bhalla told him that something was being written on the tender document of M/s. Sweka Powertech Engineers Pvt. Ltd.,by accused T.P. Singh (A­6). He has further stated categorically that the tender documents of M/s. Sweka Powertech Engineers Pvt. CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 81 of 124 Special Judge, CBI­01, Central, Delhi Ltd., were not shown to the persons present there at the time of the tender opening process and he signed the register in token of his presence.

74. PW­6 Gaurav Bhalla, who was Dy. General Manager of M/s.

Spaceage Switchgears Ltd., has also deposed in a similar manner. He has stated that on 14.05.2008 he accompanied PW­4 A.K. Bandopadhyay and PW­5 J.D. Paul to attend the tender opening process at the office of the S.E., MCD, Civil Lines, where Mr. D.K. Sugan (A­1) was the S.E. He has also stated that apart from his company, the tender was submitted by M/s. Sweka Powertech Engineers Pvt. Ltd., and both the tenders were put in a box and the box was sealed and after about 15 minutes, the box was opened in the presence of all the persons. First of all, the tender of M/s. Spaceage Switchgears Ltd. was opened and thereafter, the tender of M/s. Sweka Powertech Engineers Pvt. Ltd. was opened. Thereafter, accused D.K. Sugan S.E., announced the rates, item­wise. He has categorically stated that CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 82 of 124 Special Judge, CBI­01, Central, Delhi the tender documents of M/s. Sweka Powertech Engineers Pvt. Ltd., were not shown. He has further stated that M/s. Sweka Powertech Engineers Pvt. Ltd., was L­1 and therefore, it was awarded the tender. This witness has further stated that when they were just about to leave, PW­5 J.D. Paul told him that the accused had gone out and just see what were they doing. Thereafter, he went out and saw accused T.P. Singh (A­6), writing something on the file. He has categorically stated that accused D.K. Sugan, S.E., (A­1) was also there with accused T.P. Singh. He has also reported that their attendance was also marked in a register. He has categorically stated that the tender opening register containing page No. 2 & 3 Ex.PW4/A and Ex.PW4/B, respectively, was signed by him and when he put his signatures, the signatures of J.D. Paul were already there and portion 'A' to 'A' (i.e. the particulars of the tender and the NIT in the present case) only was written by that time. At that time nothing was encircled in red pencil and beyond his signatures nothing was written on these pages. He has categorically stated that besides CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 83 of 124 Special Judge, CBI­01, Central, Delhi the name of J.D. Paul and M/s. Spaceage Switchgears Ltd. and his name and the portion 'A' to 'A', the register was all blank.

75. During the course of arguments, the Ld. Defence counsels have pointed out various contradictions in the depositions of these three star witnesses of the prosecution and have stressed strongly that all the aforesaid three witnesses have made major improvements in their depositions before the court, regarding the manner in which the tender document of M/s. Sweka Powertech Engineers Pvt. Ltd., was taken out of the room and the over writings or corrections were allegedly done by co­accused T.P. Singh, in the presence of accused D.K. Sugan. They have also argued that none of these witnesses have deposed anything about these facts, either in their statements, u/s 161 Cr.P.C. or the statements, u/s 164 Cr.P.C., and therefore, these witnesses are not reliable witnesses and their testimonies in this regard be rejected.

CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 84 of 124 Special Judge, CBI­01, Central, Delhi

76. As far as the improvements and the contradictions in the statements of the prosecution witnesses, as pointed out by the Ld. Defence counsels, during their final arguments are concerned, I am of the considered opinion that the law in this regard has been settled by the Hon'ble Supreme Court of India, way back in the year 1959, in the case titled as "Tehsildar Singh & Anrs. vs. State of U.P." (Supra), (as relied by the Ld. PP for the CBI), wherein, it has been held as under:

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

(emphasis supplied by me) CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 85 of 124 Special Judge, CBI­01, Central, Delhi

77. Even in the present case, the cross­examination of these three witnesses has indicated that there are several improvements in their statements. They have also made improvements from their statements recorded, u/s 161 Cr. P.C. and the statements u/s 164 Cr.P.C. But, these improvements are not such that the entire testimonies of these witnesses should be discarded by the court. These witnesses have given a trustworthy and consistent narration of the tender opening process and the subsequent corrections of item­wise rates, in the tender document of M/s. Sweka Powertech Engineers Pvt. Ltd., by its director accused T.P. Singh (A­6), in the presence of accused D.K. Sugan, S.E. (A­1). Their statements, u/s 161 Cr.P.C. & 164 Cr.P.C., in this regard are not so inconsistent or irreconcilable from their statements recorded in the court that these statements cannot co­exist. The improvements made by these witnesses in the court, from their earlier statements, cannot be termed as fatal to the prosecution case.

CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 86 of 124 Special Judge, CBI­01, Central, Delhi

78. The testimonies of the aforesaid three star witnesses of the prosecution, namely, PW­4 A.K. Bandopadhyay, PW­5 J.D. Paul and PW­6 Garuav Bhalla, also finds corroboration from the CFSL report, given by the GEQD, PW­10, Sh. T. Joshi. His CFSL report and opinion No. CX­205/2010, dated 14.02.2011, Ex.PW10/Q and the reasons for the said opinion, Ex.PW10/R (Collectively 7 sheets) and the report / opinion No. CX­205/2010, dated 12.5.2011, Ex.PW10/S (Collectively 5 sheets), have also established on record that accused T.P. Singh (A­6) has done the corrections marked at points Q­21 to Q­25 in the tender document Ex.PW10/H at page 103 Ex.PW.10/E. The testimonies of the aforesaid three star witnesses, i.e., PW­4 A.K. Bandopadhyay, PW­5 J.D. Paul & PW­6 Garuav Bhalla and the CFSL report of the GEQD, PW­10, Sh. T. Joshi has established on record, beyond a shadow of doubt that the existing corrections and over­ writings, in the tender document Ex.PW10/E, were done by accused T.P. Singh (A­6) in the presence of accused D.K. Sugan (A­1), after the announcement of the rates.

CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 87 of 124 Special Judge, CBI­01, Central, Delhi SANCTION FOR PROSECUTION

79. Let us now examine the second contention of the Ld. Defence counsels, regarding the validity of the sanctions for prosecution of accused D.K. Sugan (A­1), O.P. Mahla (A­2), Raju V. (A­3) and Gurcharan Singh (A­4), which was granted by PW­1 Sh. K.S. Mehra, Commissioner MCD, vide orders Ex.PW1/A to Ex.PW1/D, respectively.

80. The Ld. Defence counsels for the aforesaid four accused persons have challenged the validity and legality of the sanction orders on three grounds. First, that the Commissioner MCD was not the competent authority to grant sanction for prosecution of accused D.K. Sungan (A­1) and accused O.P. Mahla (A­2) as the "Corporation", only, was the competent authority to grant sanction for their prosecution as both these officers belong to Category 'A' posts. The Ld. Defence counsels have relied upon the judgment of the Hon'ble High Court of Delhi, in case titled as, "G.S. CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 88 of 124 Special Judge, CBI­01, Central, Delhi Matharaoo vs. CBI" (Supra), wherein, it has been held as under:

19. In terms of Section 59(d), DMC Act, it is clear that the power of the Commissioner for disciplinary action is subject to Regulations that may be made thereunder. By virtue of power to make Regulations under Section 480 of the DMC Act, the Corporation vide its notification dated 15th December, 1976 notified the Schedule to Regulation 7 which provided that for category A posts, the Corporation was the authority competent to impose penalty. This Regulation 7 and the Schedule thereto have not been rescinded till date despite the amendment under Section 59 of the DMC Act. As a matter of fact, the Additional Commissioner (Establishment) had sent a proposal to bifurcate the posts in Category A and as per the amendments proposed, it was proposed that for officers of the rank of Deputy Commissioner and above, the authority competent to impose the penalty of removal would be the Corporation and for the post below that of Deputy Commissioner, the Commissioner would be the competent authority...........

20. A perusal of the proposal sent by the Additional Commissioner (Establishment) on 20th September, 2010 itself states that the said amendments in the Regulations was to bring the same in conformity with the provisions of the act and as per the 4th paragraph it was proposed that the existing schedule framed under Regulation 7 as placed as Annexure A may be substituted by the amended schedule as proposed at Annexure B. However, this proposal was not accepted by the CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 89 of 124 Special Judge, CBI­01, Central, Delhi Corporation. Thus, it is clear that the Corporation itself is of the considered opinion that the existing schedule needs to be continued. This is contrary to what has been urged by learned counsel for the CBI that the schedule to the Regulations stood repealed by the amendment Act of 1993. Further Section 59(d) of the DMC Act could not be construed to mean that it repealed the existing Regulations and was only subject to the Regulations which would be made after the amendment Act. A plain reading of the provisions of the Act and the Regulations show that the Corporation is the competent authority to remove the Petitioner from the service and not the Commissioner, MCD.

(emphasis supplied by me)

81. During the course of final arguments, the Ld. PP for the CBI has accepted the contention of the Ld. Defence counsels that the Commissioner MCD (PW­1 Sh. K.S. Mehra), was not the competent authority to grant the sanction for prosecution of accused A­1 and A­2, as both these officers belong to category 'A' posts and only the "Corporation", was the competent authority to grant sanction for their prosecution. But, he has further argued that competency of the authority is no ground to declare the CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 90 of 124 Special Judge, CBI­01, Central, Delhi sanction orders as invalid or illegal. He has relied upon the judgment of the Hon'ble Supreme Court, in case titled as, "State of Bihar vs. Rajmangal Ram" (Supra), wherein, it has been held as under :

5. The object behind the requirement of grant of sanction to prosecute a public servant need not detain the court save and except to reiterate that the provisions in this regard either under the Code of Criminal Procedure or the Preventions of Corruption Act, 1988 are designed as a check on frivolous, mischievous and unscrupulous attempts to prosecute a honest public servant for acts arising out due discharge of duty and also to enable him to efficiently perform the wide range of duties case on him by virtue of his office. The test, therefore, is always is - whether the act complained of has a reasonable connection with the discharge of official duties by the government or the public servant. If such connection exists and the discharge or exercise of the governmental function is, prima facie, founded on the bonafide judgment of the public servant, the requirement of sanction will be insisted upon so as to act as a filter to keep at bay any motivated, ill­founded and frivolous prosecution against the public servant. However, realising that the dividing line between an act in the discharge of official duty and an act that not, may, at times, get blurred thereby enabling certain unjustified claims to be raised also on behalf of the public servant so CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 91 of 124 Special Judge, CBI­01, Central, Delhi as to derive undue advantage of the requirement of sanction, specific provisions h ave been incorporated in Section 19(3) of the Prevention of Corruption Act as well as in Section 465 of the Code of Criminal Procedure, which, inter alia, make it clear that any error, omission or irregularity in the grant of sanction will not affect any finding, sentence or order passed by a competent court unless in the opinion of the court a failure of justice has been occasioned. This how the balance is sought to be struck...................

7. In a situation where under both the enactments any error, omission or irregularity in the sanction, which would also include the competence of the authority to grant sanction, does not vitiate the eventual conclusion in the trial including the conviction and sentence, unless of course a failure of justice has occurred, it is difficult to see how at the intermediary stage a criminal prosecution can be nullified or interdicted on account of any such error, omission or irregularity in the sanction order without arriving at the satisfaction that a failure of justice has also been occasioned. This is what was decided by this Court in State by Police Inspector vs. T. Venkatesh Murthy wherein it has been inter alia observed that, "14. ................ Merely because there is any omission, error or irregularity in the matter of according sanction, that does not affect the validity of the proceeding unless the court records the satisfaction that such error, omission or irregularity has resulted in failure of justice."

CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 92 of 124 Special Judge, CBI­01, Central, Delhi

8. The above view also found reiteration in Praksh Singh Badal and Another vs. State of Punjab and Other wherein it was, inter alia, held that mere omission, error or irregularity in sanction is not to be considered fatal unless it has resulted in failure of justice. In Prakash Singh Badal (Supra) it was further held that Section 19(1) of the P.C. Act is a matter of procedure and does not go to the root of jurisdiction. On the same line is the decision of this Court in R. Venkatkrishnan vs. Central Bureau of Investigation. In fact, a three judge Bench in State of Madhya Pradesh vs. Virender Kumar Tripathi while considering an identical issue, namely, the validity of the grant of sanction by the Additional Secretary of the Department of Law and Legislative Affairs of the Government of Madhya Pradesh instead of the authority in the parent department, this Court held that in view of Section 19(3) of the P.C. Act, interdicting a criminal proceedings mid­course on ground of invalidity of the sanction order will not be appropriate unless the court can also reach the conclusion that failure of justice had been occasioned by any such error, omission or irregularity in the sanction. It was further held that failure of justice can be established not at the stage of framing of charge but only after the trial has commenced and evidence is led (para 10 of the Report).

(emphasis supplied by me)

82. In rebuttal, the Ld. Defence counsel for accused D.K. Sugan CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 93 of 124 Special Judge, CBI­01, Central, Delhi (A­1) has relied upon the judgment of the Hon'ble Supreme Court, in case titled as, "Nanjappa vs. State of Karnataka" (Supra), as under :

16. Having said that there are two aspects which we must immediately advert to. The first relates to the effect of sub­section (3) to Section 19, which starts with a non­ obstante clause. Also relevant to the same aspect would be Section 465 of the Cr.P.C., which we have extracted earlier. It was argued on behalf of the State with considerable tenacity worthy of a better cause, that in terms of Section 19(3), any error, omission or irregularity in the order sanctioning prosecution of an accused was of no consequence so long as there was no failure of justice resulting from such error, omission or irregularity.

It was contended that in terms of explanation to Section 4, "error includes competence of the authority to grant sanction". The argument is on the face of it attractive but does not, in our opinion, stand closer scrutiny. A careful reading of sub­section (3) to Section 19 would show that the same interdicts reversal or alteration of any finding, sentence or order passed by a Special Judge, on the ground that the sanction order suffers from an error, omission or irregularity, unless of course the court before whom such finding, sentence or order is challenged in appeal or revision is of the opinion that a failure of justice has occurred by reason of such error, omission or irregularity. Sub­section (3), in other words, simply CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 94 of 124 Special Judge, CBI­01, Central, Delhi forbids interference with an order passed by Special Judge in appeal, confirmation or revisional proceedings on the ground that the sanction is bad save and except, in cases where the appellate or revisional court finds that failure of justice has occurred by such invalidity. What is notworthy is that sub­section (3) has no application to proceedings before the Special Judge, who is free to pass an order discharging the accused, if he is of the opinion that a valid order sanctioning prosecution of the accused had not been produced as required under Section 19(1). Sub­section (3), in our opinion, postulates a prohibition against a higher court reversing an order passed by the Special Judge on the ground of any defect, omission or irregularity in the order of sanction. It does not forbid a Special Judge from passing an order at whatever stage of the proceedings holding that the prosecution is not maintainable for want of a valid order sanctioning the same. The language employed in sub­ section (3) is, in our opinion, clear and unambiguous. This is, in our opinion, sufficiently evident even from the language employed in sub­section (4) according to which the appellate or the revisional Court shall, while examining whether the error, omission or irregularity in the sanction had occasioned in any failure of justice, have regard to the fact whether the objection could and should have been raised at an early stage. Suffice it to say, that a conjoint reading of sub­sections 19(3) and (4) leaves no manner of doubt that the said provisions envisage a challenge to the validity of the order of CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 95 of 124 Special Judge, CBI­01, Central, Delhi sanction or the validity of the proceedings including finding, sentence or order passed by the Special Judge in appeal or revision before a higher Court and not before the Special Judge trying the accused. The rationale underlying the provision obviously is that if the trial has proceeded to conclusion and resulted in a finding or sentence, the same should not be lightly interfered with the appellate or the revisional court simply because there was some omission, error or irregularity in the order sanctioning prosecution under Section 19(1). Failure of justice is, what the appellate or revisional Court would in such cases look for. And while examining whether any such failure had indeed taken place, the Court concerned would also keep in mind whether the objection touching the error, omission or irregularity in the sanction could or should have been raised at an earlier stage of the proceedings meaning thereby whether the same could and should have been raised at the trial stage instead of being urged in appeal or revision.

(emphasis supplied by me)

83. To analyse the aforesaid judgments, let us first have a look at the relevant provision of Section 19 of the P.C Act, 1988, which is reproduced below :

19. Previous sanction necessary for prosecution. ­ (1) No Court shall take cognizance of an offence CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 96 of 124 Special Judge, CBI­01, Central, Delhi punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction (save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014) ­

(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;

(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with sanction of the State Government, of that Government;

(c) in the case of any other person, of the authority competent to remove him from his office.

(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub­section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974);

(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 97 of 124 Special Judge, CBI­01, Central, Delhi required under sub­section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby;

(b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;

(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. (4) In determining under sub­section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.

Explanation. ­ For the purposes of this section, ­

(a) error includes competency of the authority to grant sanction;

(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.

(emphasis supplied by me) CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 98 of 124 Special Judge, CBI­01, Central, Delhi

84. When the above provisions are carefully analysed in the light of the above noted judgments, as cited by the Ld. Defence counsels and the Ld. PP for the CBI, this court is of the considered opinion that a harmonious construction of the provisions of Section 19 and the explanation appended thereto, is to be given by this court. In the considered opinion of this court, once the legislature has provided that appellate court / the Hon'ble High Court is barred under Section 19 (3) of the P. C. Act, 1988, from interfering with the order passed by the Special Judge, in appeal, confirmation or revisional proceedings, on the ground that the sanction is bad, save and except in cases where the appellate or revisional court finds that 'failure of justice' has occurred by such invalidity, then it can never be the intention of the legislature that the Special Courts can declare the same sanction order as invalid, on the same ground of incompetency of the authority granting sanction for prosecution. That is why, in the considered opinion of this court, the explanation has been appended to Section 19 as a whole and not to the provisions of Sub­section 3 of Section 19 CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 99 of 124 Special Judge, CBI­01, Central, Delhi only. Furthermore, during the trial and the final arguments, the accused and the Ld. Defence counsels have failed to disclosed any cause or ground, which has caused or occasioned the 'failure of justice', to them. They have failed to disclose anything in this regard and have failed to show as to how the proceedings or the trial was vitiated or was not proper. During the entire trial, the accused were having the knowledge of the entire prosecution case against them and the case was hotly contested by them. It has been held by the Hon'ble Supreme Court, in case titled as, "State of M.P. vs. Bhooraji & Ors." (Supra), as relied by the Ld. PP for the CBI, as under :

15. A reading of the section makes it clear that the error, omission or irregularity in the proceedings held before or during the trial or in any enquiry were reckoned by the legislature as possible occurrences in criminal courts.

Yet the legislature disfavoured axing down the proceedings or to direct repetition of the whole proceedings afresh. Hence, the legislature imposed a prohibition that unless such error, omission or irregularity has occasioned "a failure of justice" the superior court shall not quash the proceedings merely on the ground of such error, omission or irregularity.

CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 100 of 124 Special Judge, CBI­01, Central, Delhi

16. What is meant by "a failure of justice" occasioned on account of such error, omission or irregularity? This Court has observed in Shamnsaheb M. Multtani v. State of Karnataka thus : (SCC p.585, para 23) "23. We often hear about 'failure of justice' and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression 'failure of justice' would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. of the Environment). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage."

(emphasis supplied by me)

85. In view of the above pronouncements and the facts & circumstances of the present case, I am of the considered opinion that the sanction orders Ex.PW1/A to Ex.PW1/D, cannot be held to be invalid or illegal, on the ground that the Commissioner MCD was not competent to grant the sanction for prosecution of the aforesaid four accused persons, as no 'failure of justice' has been caused to them.

CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 101 of 124 Special Judge, CBI­01, Central, Delhi

86. The Ld. Defence counsels have challenged the sanction orders, Ex.PW1/A to Ex.PW1/D, on the second ground that the Commissioner MCD, has participated in the entire tender process, from its start to the end and therefore, he should not have granted the sanction for prosecution of the accused persons himself. They have relied upon the judgment of the Hon'ble High Court of Delhi, in case titled as "Dhirendra Krishan vs. Bharat Heavy Electricals Ltd., and Others", (Supra), wherein, it has been held as under :

13. This note was recorded in response to the objection raised by the Director (Finance) to the purchase of the said second­hand equipment. The respondents have not denied the allegation of the petitioner that even few days earlier to the note dated August 25/28, 1989 the third respondent had requested the Directors and the C.M.D., for according sanction to the purchase of the Forge Lathe in question through his note dated August 23, 1989. It seems to us that in the circumstances the third respondent was disqualified from according sanction to the prosecution of the petitioner. Since the third respondent had to decide in his discretion whether or not sanction ought to be granted for prosecution of the CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 102 of 124 Special Judge, CBI­01, Central, Delhi petitioner. In that sense, he was an adjudicator. When the adjudicator at an earlier stage had supported the purchase of the equipment from M/s. Smachtin Machine Tools, West Germany, he cannot be allowed to judge the action of his subordinates, who had advocated and recommended the purchase of the same equipment, at a latter stage at the time of granting sanction for their prosecution. The essence of a fair decision is that it should have been made by an impartial adjudicator. In case where bias is alleged. The reviewing court sitting under Article 226 of the Constitution is not required to decide whether or not the decision of the adjudicator was in fact biased, but it can certainly decide whether there was a likelihood of an objectionable bias of the adjudicator in deciding the matter. The submission of the respondents is that the third respondent as the CMD of BHEL was legitimately and legally entitled to consider the question whether or not sanction to prosecute the petitioner ought to be granted. The fact that he had recorded the note dated August 25/28, 1989 recommending the purchase of the second hand equipment in question from M/s. Smachtin Machine Tools will be of no consequence for the decision of the said question as the note was based upon the report of the Committee of which the petitioner was a member and he had no occasion to inspect the equipment before its purchase as he had not visited West Germany with the members of the committee. In other words, the submission is that if the third respondent had known the CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 103 of 124 Special Judge, CBI­01, Central, Delhi actual condition of the Lathe, he would not have recommended its purchase and he was misled by the recommendation of the Committee. In case the third respondent was misled by the petitioner and others into making a recommendation which could expose him to a possible criminal prosecution or other penal consequences leading to serious repercussions on his life and career, then this will give rise to a possibility of bias against the persons who misled him into committing the mistake. Therefore, it will be hard to reconcile with the argument that the sanction accorded by him to the prosecution of the petitioner is in order. It must not be forgotten that the third respondent had once approved the purchase of the equipment and having done so, he cannot be asked to judge the action of the members of the Committee and others who had recommended its purchase. In the circumstances, it would not be a fair procedure to seek sanction from the third respondent for prosecution of the members of the Committee who held the same view as he held once.

14. Having considered the matter from the point of view of the third respondent being misled by the recommendation of the Committee, we would no like to consider, by taking a hypothetical situation, whether the sanction to prosecute the petitioner and the others would be in accordance with law if the sanctioning authority had not been misled by the recommendations of the Committee. In case it was not misled in recording the note dated August 25/28, 1989 and it knew about the fact CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 104 of 124 Special Judge, CBI­01, Central, Delhi that the equipment was a junk and the purchase of the same would cause pecuniary loss to the BHEL but still supported the move to buy the same from M/s.

Samachtin Machine tools, its subsequent action in sanctioning the prosecution of the members of the Committee would certainly make him a judge in his own cause.

15. Looking from any angle it appears to us that a reasonable man would entertain a serious apprehension that the decision of the third respondent may not have been free from real bias. In Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co­Education) Higher Secondary School, AIR 1993, S.C. 2155, it was sated that "the test of bias is whether a reasonably intelligent man, fully apprised of all the circumstances, would feel a serious apprehension of bias, and that the test is not whether in fact a bias has affected the judgment, the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done."

16. In The King v. Justices of Sunderland, (1901) 2 K.B. 357, it was held that where a person at an earlier stage had supported an application or a procedure which subsequently comes to be adjudicated upon, such a person would naturally be disqualified to act as an adjudicator.

CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 105 of 124 Special Judge, CBI­01, Central, Delhi

19. A decision by an administrative authority whether to grant or to withhold sanction to prosecute a public servant is a very serious and important decision. The grant of sanction is not an idle formality but a solemn sacrosanct act which affords protection to public against frivolous prosecution. The sanctioning authority has to apply its own independent mind to arrive at a decision with regard to the question whether or not prosecution is to be sanctioned. The mind of the sanctioning authority should be free from bias or pressure of any sort as the discretion to grant or to withhold sanction, vests absolutely in the sanctioning authority. If its discretion is shown to have been affected by any extraneous consideration and is not a result of application of its independent mind, the sanction stands vitiated (See: Mohd. Iqbal Ahamed v. State of Andhra Pradesh, (1979) 4 SCC 172, and Mansukhlal Vithaldas Chauhan v. State of Gujarat, (1997) 7 SCC 622.

20. Since the grant of sanction remove the protective umbrella which shields a public servant from prosecution, therefore, the administrative authority, who has to take a decision whether to grant or not to grant sanction for prosecution is required to be free from a possibility of bias against the public servant.

(emphasis supplied by me) CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 106 of 124 Special Judge, CBI­01, Central, Delhi

87. From the perusal of the above judgment, it is clear that the facts of the present case are different from the above case and the facts of the above case does not apply to the present case. In the above case, the competent authority, who had granted sanction for prosecution, has himself participated in the actual selection of the goods and he has himself supported the purchase of the equipments from the concerned companies and therefore, it was declared that he was not competent to grant the sanction for prosecution of his subordinates, being an adjudicator in the case. But, in the present case Commissioner MCD has not actually participated in the tender opening process, when all the offences were committed by the accused persons. Commissioner MCD was never a party to the actual tender opening process on 14.05.2008. Since the Commissioner MCD has never participated himself in the actual tender opening process on 14.05.2008, it cannot be said that he was aware about the various illegalities committed by the accused persons, which were finally approved by him and the "Corporation". Therefore, no ground for CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 107 of 124 Special Judge, CBI­01, Central, Delhi "bias", against the Commissioner MCD, in granting sanction for prosecution of his subordinates, is made out, in the facts and circumstances of the present case.

88. The third contention on which the Ld. Defence counsels have challenged the legality of the sanction orders Ex.PW1/A to Ex.PW1/D has remained that there was a complete non­ application of mind by the Commissioner MCD, while passing the sanction orders. They have stressed that the testimony of PW­1 Sh.K.S. Mehra, Commissioner MCD, has clearly indicated that commissioner MCD has not perused the entire documents, including the tender opening registers and the tender documents, to arrive at a just decision, while granting sanction for prosecution.

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

9. In "C.S. Krishnamurthy vs. State of Karnataka", it has been held as follows: ­ CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 108 of 124 Special Judge, CBI­01, Central, Delhi "....... sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself then the satisfaction of the sanctioning authority is apparent by reading the order."

10. In R. Sundarajan vs. State by DSP, SPE, CBI, Chennai, while dealing with the validity of the order of sanction, the two learned judges have expressed thus:­ "it may be mentioned that we cannot look into the adequacy or inadequacy of the material before the sanctioning authority and we cannot sit as a court of appeal over the sanction order. The order granting sanction shows that all the available materials were placed before the sanctioning authority who considered the same in great detail. Only because some of the said materials could not be proved, the same by itself, in our opinion, would not vitiate the order of sanction. In fact in this case there was abundant material before the sanctioning authority, and hence we do not agree that the sanction order was in any way vitiated."

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

CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 109 of 124 Special Judge, CBI­01, Central, Delhi

12. In Kootha Perumal vs. State through Inspector of Police, Vigilance and Anti­Corruption, it has been opined that the sanctioning authority when grants of sanction on an examination of the statements of the witnesses as also the material on record, it can safely be concluded that the sanctioning authority has duly recorded its satisfaction and, therefore, the sanction order is valid.

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

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

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

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

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

(e) The adequacy of material placed before the sanctioning authority cannot be gone into by the CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 110 of 124 Special Judge, CBI­01, Central, Delhi court as it does not sit in appeal over the sanction order.

(f) If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction.

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

(emphasis supplied by me)

90. When the aforementioned principles are applied to the facts and circumstances of the present case and to the sanction orders Ex.PW1/A to Ex.PW1/D, it is observed that the sanctioning authority has given the details of the circumstances of the present case, which led him to grant the sanction for prosecution of the accused persons. He has also mentioned, in these orders, that the statements of the witnesses, the documents and other material placed before him by the CBI, were considered by him. CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 111 of 124 Special Judge, CBI­01, Central, Delhi

91. It is pertinent to mention here that after the completion of the final arguments, this court had requisitioned the case diaries, as well as the crime file of the prosecution / CBI for perusal and it has been observed that a complete CBI report along with the list of witnesses and the list of documents were initially submitted to the Commissioner MCD, through the Chief Vigilance Officer, MCD. After perusal of the CBI report and the documents attached with it, a letter was written by the Chief Vigilance Officer, MCD, to the CBI, asking for the deficient documents, to be submitted by the CBI for perusal of the competent authority. In pursuance to the said letter of the Chief Vigilance Officer, the IO was directed to submit the entire remaining record and documents to the MCD, for perusal of the Commissioner MCD. Thereafter, the IO had complied the said orders and the entire record and documents was submitted to the Commissioner MCD, for his perusal and thereafter, the Commissioner MCD, i.e., PW­1 Sh. K.S. Mehra, has passed the sanction orders Ex.PW1/A to CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 112 of 124 Special Judge, CBI­01, Central, Delhi Ex.PW1/D. Therefore, it cannot be said that the competent authority has not dealt with the record and has not applied his mind, while granting sanction for prosecution.

92. It is further held by the Hon'ble Supreme Court, in case titled as, "State of Maharashtra vs. Mahesh G. Jain", (Supra), as under :

16. Presently, we shall proceed to deal with the contents of the sanction order. The sanctioning authority has referred to the demand of the gratification for handing over TDS certificate in Form 16A of the Income­ Tax Act, the acceptance of illegal gratification by the accused before the panch witnesses and how the accused was caught red handed. That apart, as the order would reveal, he has fully examined the material documents, namely, the FIR, CFSL report and other relevant documents placed in regard to the allegations and the statements of witnesses recorded under Section 161 of the Code and, thereafter, being satisfied he has passed the order of sanction. The learned trial judge, as it seems, apart from other reasons has found that the sanctioning authority has not referred to the elementary facts and there is no objective material to justify a subjective satisfaction. The reasonings, in our considered opinion, are absolutely hyper­technical and, CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 113 of 124 Special Judge, CBI­01, Central, Delhi in fact, can always be used by an accused as a magic trick to pave the escape route. The reasons ascribed by the learned trial judge appear as if he is sitting in appeal over the order of sanction. True it is, grant of sanction is a sacrosanct and sacred act and is intended to provide a safeguard to the public servant against vexatious litigation but simultaneously when there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. The filmsy technicalities cannot be allowed to become tools in the hands of an accused. In the obtaining factual matrix, we must say without any iota of hesitation that the approach of the learned trial judge as well as that of the learned single judge is wholly incorrect and does not deserve acceptance.

(emphasis supplied by me)

93. The last contention of the Ld. Defence counsels has remained that there is no admissible evidence on record, to prove any prior meeting of minds between the accused persons and no admissible evidence has come on record to prove the charges of conspiracy between the accused persons. But, I do not find any merit even in this submission of the Ld. Defence counsels. CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 114 of 124 Special Judge, CBI­01, Central, Delhi

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

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

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

12. In State V. Nalini it was observed by S.S.M. Quadri, J. at JT para 677: (SCC pp.568­69, para 662) "In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 115 of 124 Special Judge, CBI­01, Central, Delhi Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus with the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences."

13. To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither is it necessary that every one of the conspirators take active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implication. In most of the cases, the conspiracies are proved by the circumstantial CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 116 of 124 Special Judge, CBI­01, Central, Delhi 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 well­known 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 CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 117 of 124 Special Judge, CBI­01, Central, Delhi or irresistible inference of an agreement between two or more persons to commit an offence. It is held in Noor Mohd. Mohd. Yusuf Momin V. State of Maharashtra, that:

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

15. It is cumulative effect of the proved circumstances which should be taken into account in determining the guilt of the accused. Of course, each one of the circumstances should be proved beyond reasonable doubt. The acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. While speaking for the Bench it is held by P. Venkatarama Reddi, J. in State (NCT of Delhi) V. Navjot Sandhu (p.63) as follows: (SCC pp.691­92, para 103) "103. We do not think that the theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design even if such offences were ultimately committed by some of them, without the participation of others.

We are of the view that those who committed the offences pursuant to the conspiracy by indulging in various overt CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 118 of 124 Special Judge, CBI­01, Central, Delhi acts will be individually liable for those offences in addition to being liable for criminal conspiracy; but, the non­participant conspirators cannot be found guilty of the offence or offences committed by the other conspirators. There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them.

Criminal offences and punishments therefor are governed by the statute. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy or by extension of a common law principle.

(emphasis supplied by me)

95. In the present case, P.W.s PW­4 A.K.Bandopadhyay, PW­5 J.D.Paul, PW­6 Gaurav Bhalla, PW­11 Ram Kumar Sharma and PW­14 Sandeep Sharma have successfully proved the prosecution case beyond a shadow of doubt and their testimonies have established on record that all the accused persons had connived together and in pursuance to the common object of the CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 119 of 124 Special Judge, CBI­01, Central, Delhi criminal conspiracy, various illegal acts, as discussed earlier, were committed by them.

96. The testimonies of these witnesses and the documentary evidence on record has established, beyond a shadow of doubt that all the accused persons have willfully participated in the criminal conspiracy with a common object to increase the quoted amount in the tender document of accused M/s. Sweka Powertech Engineers Pvt. Ltd.,(A­5), with an object to avail the difference between the next higher amount, which was quoted by the second company M/s. Spaceage Switchgears Ltd., without changing the overall status of accused M/s. Sweka Powertech Engineers Pvt. Ltd., as L­1 and thereby causing undue pecuniary loss to the MCD and corresponding pecuniary gain to accused M/s. Sweka Powertech Engineers Pvt. Ltd., and its directors. However, during the trial, it could not be established that the rates in the entries at item No. 20 (a) and 20 (b) were changed / altered from Rs.930/­ to Rs.1930/­ and from Rs.802/­ to Rs.1802/­ CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 120 of 124 Special Judge, CBI­01, Central, Delhi respectively, as the necessary corrections in the tender document Ex.PW.10/E, were never sent to the CFSL, for the expert opinion of GEQD Sh. T.Joshi, PW­10, for the reasons best known to the IO or the CBI. But, the entry at item No. 21(a) was questioned and was sent to the CFSL for expert opinion, as the rate of the item no. 21(a) was alleged to have been increased from Rs. 215/­ to Rs.315/­. This change in the quoted rate has caused a pecuniary loss of Rs.1,15,00,000/­, to the MCD / Government. The report / opinion No. CX 205/10, dated 14.02.2011 Ex.PW10/Q, detailed reasons Ex.PW10/R; & report / opinion No. CX 205/10, dated 12.05.2011 Ex.PW10/S, given by PW­10, Sh. T.Joshi, GEQD, has established on record that the corrections and modifications in the rates of item No. 21(a) in the tender document Ex.PW.10/E were done by accused T.P.Singh (A­6), the managing director of accused M/s. Sweka Powertech Engineers Pvt. Ltd.,(A­5).

97. Perusal of the record further shows that PW­11 Ram Kumar CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 121 of 124 Special Judge, CBI­01, Central, Delhi Sharma Rakesh, Chief Engineer, South Delhi Municipal Corporation has categorically deposed about the roles of accused No. 1 to 4, who were the officials of the MCD and were the members of the tender opening committee. The testimony of PW­11 Ram Kumar Sharma Rakesh finds corroboration from the testimonies of the public witnesses, PW­4 A.K.Bandopadhyay; PW­5 J.D.Paul and PW­6 Gaurav Bhalla. The deposition of these witnesses i.e. PW­4 A.K.Bandopadhyay; PW­5 J.D.Paul and PW­6 Gaurav Bhalla and PW­11 Ram Kumar Sharma Rakesh, is not being discussed again to avoid repetition, as the same had already been discussed in the earlier portion of this judgment. The testimonies of the aforesaid four witnesses finds corroboration from the CFSL report of PW­10 Sh. T.Joshi.

98. In view of the above discussion, this court is of the considered opinion that the CBI / prosecution has successfully proved its case against all the accused persons, beyond a shadow of doubt, for the offences punishable u/s 120­B r/w Section CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 122 of 124 Special Judge, CBI­01, Central, Delhi 420/467/468/471 IPC and Section 13(1) (d) of The Prevention of Corruption Act, 1988. The prosecution has also succeeded in proving its case, beyond a shadow of doubt, against the accused D.K.Sugan (A­1), for the substantive offences, punishable u/s 420 IPC and Section 13(1)(d) read with section 13 (2) of The Prevention of Corruption Act, 1988; against accused O.P.Mahla (A­2), for the substantive offences, punishable u/s 420 IPC and Section 13(1)(d) read with section 13 (2) of The Prevention of Corruption Act, 1988; against accused Raju V. (A­3), for the substantive offences, punishable u/s 420 IPC and Section 13(1)

(d) read with section 13 (2) of The Prevention of Corruption Act, 1988; against accused Gurcharan Singh (A­4), for the substantive offences, punishable u/s 420 IPC and Section 13(1)

(d) read with section 13 (2) of The Prevention of Corruption Act, 1988; against accused M/s. Sweka Powertech Engineers Pvt. Ltd., (A­5), for the substantive offences, punishable u/s 420/471 IPC; against accused T.P.Singh (A­6), for the substantive offences, punishable u/s 420/467/468/471 IPC and against CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 123 of 124 Special Judge, CBI­01, Central, Delhi accused J.P.Singh (A­7), for the substantive offences, punishable u/s 420 & 471 IPC.

99. All the accused persons are accordingly held guilty & convicted, for the said offences.

It is ordered accordingly.

Announced in open Court on 31 day of August, 2015 st BRIJESH KUMAR GARG Special Judge:CBI­01 Central District. Delhi CBI Vs. D.K.Sugan etc. (CC No. 18/2011) Page 124 of 124 Special Judge, CBI­01, Central, Delhi