Delhi District Court
Central Bureau Of Investigation (Cbi) vs . on 26 August, 2021
IN THE COURT OF MS. NIRJA BHATIA, SPECIAL JUDGE
(PC ACT) CBI03, ROUSE AVENUE DISTRICT COURTS,
NEW DELHI.
CNR NO. DLCT110008202019
Registration/CC No. 174/2019
RC. No. 42(A)/2006
Branch : CBI/ACB/New Delhi
U/s : 120B IPC r/w Sections 420/471/468 IPC and
13(2) r/w section 13 (1) (d) of PC Act.
In re:
Central Bureau of Investigation (CBI)
Vs.
(1) Subhash Chand Jain (S.C. Jain) Accused No.1
S/o Late Sh. S.D. Jain
Flat No.3, TypeIV, Kidwai Nagar,
New Delhi.
Permanent Add :
Flat No. 504, Veer Apartment,
Sector13, Rohini.
Also at : H.No.68, Sector47, Gurgaon (HR)
(2) P.K. Mathur Accused No.2
S/o Late Sh. H.S. Mathur
R/o H. No.588B, Sector23, Raj Nagar,
Ghaziabad, UP.
Permanent Add :
1906, Gali Matawali, Chera Khanna,
Nai Sarak, Delhi 110006.
Also at : H. No. B1201, Gateway Tower,
Sector4, Vaishali, Ghaziabad (UP).
R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 1 of 209
(3) Yad Ram Singh Shami Accused No.3
S/o Late Sh. Chetram Singh
R/o H.No.45B, Gali No.5,
Old Govind Puri Extn.
Delhi 110051.
(4) Dinesh Chand Sharma Accused No. 4
S/o Late Sh. Jagdish Prasad Sharma
R/o RZ7A/5, Puran Nagar,
Palam Colony, New Delhi.
Permanent Add :
H. No.5088, Vishwakarma Mills,
Maiin Bazar, Pahaar Ganj,
New Delhi 110055.
Also at :
H. No. A6263, Second Floor,
Flat No.111, ABlock, Mansaram Park,
Uttam Nagar, New Delhi.
(5) Ravi Gupta Accused No.5
S/o Sh. R.R. Gupta
R/o A4/304, Printer Apartment,
Sector13, Rohini, Delhi.
Date of institution : 04.07.2015
Date on which judgment was reserved : 12.08.2021
Date of judgment : 26.08.2021
JUDGMENT
1. Factual matrix of the present chargesheet raising allegations against accused persons Sh. S.C.Jain (Manager); Sh.P.K. Mathur (AE); Sh.Yad Ram (JE); Sh.Dinesh Chand Sharma (Head Draftsman);
R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 2 of 209and, Sh.Tripan Singh Negi (Beldar) have arisen on complaint of Sh.R.K. Shivanna, the then SP, CBI, ACB, New Delhi on 26.06.2006, wherein, it is alleged that accused conspired amongst themselves to defraud the NDMC in a matter pertaining to execution and award of electrical works and for which purpose, they awarded the work and released the payments to the contractor without ensuring that the related work was executed.
2. It is claimed that the estimate of work was prepared by Sh. Yad Ram, JE on the basis of quotation of M/s United Electrical & Mechanical Works. In response to the tender M/s Raj Engineering Company, Sh. Ravi Gupta, M/s M.K. Engineering and M/s Gupta Trading Company quoted their rates. The work order was awarded to Sh.Ravi Gupta, who was also provided a payment of Rs.1,22,913/.
3. It is alleged that the quotations for justification for award of work of M/s Arcee Trading Corporation, M/s. Bhawana Electricals, M/s Divya Sales Corporation used for preparation of estimate were found bogus and fake. While the payment of Rs.1,22,913/ was made, work was not completed by the contractor, who received the payment. It is further alleged that the contractor paid substantial amount of this payment to various NDMC officials as illegal gratification.
4. However, after the investigation, on 06.11.2008 the closure report was filed. The same was rejected by the ld. Predecessor of this court R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 3 of 209 vide order dated 30.01.2010 with directions for further investigation.
5. During further investigation, the witnesses were reexamined. It was claimed by IO that during the process of reinvestigation Sh.V.S. Rustagi, JE (Electrical), Sh.C.L. Jindal, Sh.Vinod Singh Rana and Sh.S.C. Arya did not support their earlier version. IO opined that abovesaid witnesses were not worthy of any credit, and since no new facts have surfaced to substantiate the allegations conclusively against the accused persons, he filed Second Closure Report.
6. At the stage of second closure report, ld. Predecessor in view of the law laid down by Hon'ble Apex Court in Bhagwant Singh Vs. Commissioner of Police & Anr. (1985) 2 SCC 537, which was quoted by Hon'ble Apex Court in Vinay Tyagi vs. Irshad Alam @ Deepak & Ors. (2013) 5 SCC 762, summoned the complainant who appeared before the ld. Predecessor on 06.10.2015 and stated that he is satisfied with the investigation and has no objection if the closure is accepted. This Statement was recorded separately and the matter was kept for arguments on 15.10.2015, whereafter, upon hearing, vide order dated 28.11.2015, the plea of prosecution for acceptance of Closure Report was again rejected and the cognizance under Section 13(2) read with Section 13(1)(d) of PC Act and Section 120B IPC read with Sections 420 and 471 IPC was taken against accused Sh.S.C.Jain, Sh.P.K.Mathur, Sh.Yad Ram, Sh.Dinesh Chand and Sh.Ravi Gupta.
R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 4 of 2097. Vide order dated 08.06.2016, charge under Section 420/471 read with Section 468 IPC and Section 13(2) read with Section 13(1)(d) PC Act was made against accused Subhash Chand Jain, P.K. Mthur, Yad Ram, Dinesh Chand Sharma and Ravi Gupta, qua which, accused did not plead guilt and claimed trial.
8. The prosecution then proceeded towards the evidence and, in all, 21 witnesses were examined.
9. PW1 Sh. V.S. Rustagi retired Chief Engineer (Electrical) was first witness examined by prosecution. He detailed the requisited procedure to be followed while awarding any tender and stated that - while awarding tender work by NDMC (Electrical Department), firstly, estimate and sanction by Planning Department by separate division is taken, which is then sent to other division for execution. He stated that estimate is prepared by JE/AE/XEN depending upon the amount involved in the work is approved from the competent authority, XEN, SE, Chief Engineer etc.
10. The approval of competent authority is taken before calling Notice Inviting Tender (NIT) irrespective of amount involved in case of award of tender. NIT is called on the basis of sanctioned estimate through publicity by giving it in the newspapers/publishing to contractor cell and also by publishing it in NDMC before a week or 10 (ten) days of opening of tender.
R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 5 of 20911. He detailed that thereafter, the proceedings are recorded in a tender opening register duly signed by all participants including at least two gazetted officers of the department preferably Executive Engineer.
12. The tenders are then to be scrutinized by accounts branch financial department depending on the cost of the tender, whereafter, on the recommendations of AE, work is awarded to the lowest bidder by Executive Engineer after obtaining approval from the competent authority. The work is got executed by JE/AE concerned within the stipulated time and necessary certificate is also required to be submitted on completion of work. In this regard, the concerned JE is also required to incorporate the quantum, quality and cost of work in the measurement book issued to him. AE checks 50% quantum of executed work and concerned Executive Engineer 10% of executed work and both are required to issue necessary certificate in this regard on the measurement book itself. Thereafter, the bill is prepared by JE concerned and got checked by AE and accounts department of the concerned branch. Then, bill will be passed by Executive Engineer concerned. In case the amount is beyond the power of Executive Engineer, the completion certificate would be given by Superintendent Engineer concerned.
13. While processing award of work, Executive Engineer concerned should certify whether the lowest tenderer is competent to execute the R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 6 of 209 work with respect to his past experience in the field, financial status and rates are reasonable and justified/competitive. In case of quotation, different power is available with the officers for expediting the completion of work in case of urgency.
14. He was then shown document D15, to which the witness stated that the work in the Compost Plant is of mechanical in nature and he had never worked in the Compost Plant. He added that on 09.05.2006 to 25.05.2006, he was given charge of Chief Engineer and the Compost Plant was under his charge, whereafter, it was shifted to Transport Department. However, during this period, he did not deal with the compost plant in any manner.
15. He was shown the quotation for amount of Rs.1,28,459/ on letterhead of M/s Arcee Trading Corporation, 2860, behind G.B. Road Delhi (D3), to which, he stated that he had seen the document earlier as it was shown to him by CBI also and he had told that the quotation does not bear any signature of proprietor or owner of the firm and no date is mentioned on the said quotation. The quotation (D
3) was then exhibited as Ex.PW1/A.
16. He was then shown another quotation for Rs.1,29,098/ on letterhead of M/s Bhawana Electricals 20A, Pocket B6, Mayur Vihar PhaseIII, Delhi (D4), to which, he again stated to have seen the document earlier as was shown to him by CBI and at that time also, he R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 7 of 209 had stated that the quotation does not bear any date, which was then exhibited as Ex.PW1/B.
17. He was also shown another quotation for Rs.1,29,850/ on letterhead of M/s Divya Sales Corporation 1751, Bhagirath Place, Delhi110006 (D5), to which also, he stated to have seen the document earlier as has been shown by CBI and stated that quotation does not bear any date, which was then exhibited as Ex.PW1/C.
18. He was also shown file pertaining to Earthing of Power, take off points for T/A Machines with GI strip pertaining to repairing of Hand Tower Ladder (Sandli), P/F & Commissioning Power Contractor (D
15) and he stated that in this file, copies of quotation Exs.PW/A, PW1/B and PW1/C were placed at page 25, 26 and 27 respectively, which were approved by concerned JE and AE. The file was then exhibited as Ex.PW1/D.
19. He stated that he cannot comment about genuineness of these quotations as he never worked in Compost Plant, though, he detailed that the quotations should be filed in original at the time of award of tender. He admitted that in the tender file, quotations are Photostat whereas those should have been original. The Photostat copies of quotations of M/s Arcee Trading Corporation (D25) page 27 was then exhibited as Ex.PW1/E. Photostat copy of quotation of M/s Bhawana Electricals (D5) was then exhibited as Ex.PW1/F and photocopy of R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 8 of 209 quotation M/s Divya Sales Corporation was then exhibited as Ex.PW1/G. He also replied that Ex.PW1/E, PW1/F and PW1/G should have been filed in original and duly signed and dated, whereas in the present case, all the above have been filed Photostate without signed by the firm, owner and date. He stated that the concerned officer should have gone through these quotations i.e. Exs.PW1/E, PW1/F and PW1/G and should have objected about the same at the time of opening the tender. He stated to have no knowledge whether any Head Draftsman was posted in Compost Plant. He was then shown the note sheet portion of P1/D (page8) and he admitted that the estimate/justification are checked by Head Draftsman.
20. In the crossexamination by ld. Counsel for A4, he admitted to have been called to the CBI office and detailed that before 26.05.2006 he had not visited CBI office, however, he went and visited one more time thereafter and on both the occasions, his statement was recorded. He narrated that the third occasion was in the year 2014 and on all three occasions, his signatures were taken on the statements. He narrated that he had asked for the copy of statements from IO but he refused to provide the same. He further narrated that he was unaware about identity of the officer who recorded his first, second and third statements, though, he stated that his first two statements were recorded by the concerned officer and crux of all three statements including one made in the year 2014, was same and he further R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 9 of 209 volunteered that he told the IO that since considerable time has elapsed, he was unable to remember anything.
21. He narrated that he did not tell CBI that the quotations were bogus and volunteered that he had stated that he could not comment. He claimed that in the statement recorded under Sec. 161 Cr.P.C. by IO, the IO on his own has written bogus and he never said the same. He admitted that he had no knowledge as to what was the work which was to be done in Compost Plant as per tender and where. He admitted that he never visited Compost Plant where the work of disputed tender was to be done as at that time, he was not knowing that CBI case was going on, of which, he came to know only on 26.05.2006 and on inquiry, it was revealed by Vigilance Officer, NDMC to attend CBI office as the summons were received by him.
22. He admitted that he even told the IO in CBI office that he had no direct or indirect connection with Compost Plant and reasoned for his being called, to which, he told that he being the Chief Engineer (Electricals), knows the procedure for which he was called. He stated that he had no knowledge whether during his tenure of heading the Compost Plant, any work was done in the Compost Plant since he had not dealt with any file relating to Compost Plant. He denied having knowledge of accused S.C.Jain having authority upto Rs.2,00,000/ for awarding tender. He further stated that accused S.C. Jain was not working as Executive Engineer at the Compost Plant when he gave R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 10 of 209 statement to CBI. He did not know whether S.C. Jain had then retired from services. He was unaware as to who were the accused persons in the present case and what allegations were made by CBI against them. He further volunteered that when his statement was recorded by CBI. From the record, he came to know that S.C. Jain was Executive Engineer of Compost Plant.
23. He further admitted that he did not know as to for what purpose and for what items quotation Ex.PW1/E was sought from M/s Arcee Trading Corporation but he volunteered that on seeing the record, he came to know about the purpose and name of number of items. He further admitted that he did not know as to for what purpose and for what items quotation Ex.PW1/F was sought from M/s Bhawana Electricals, though, he knew that he stated that after seeing quotation on that day he came to know about the items and name and number of items. Similar was the reply regarding Ex.PW1/G from M/s Divya Sales Corporation.
24. He stated that in his office there has never been any shortage of letterhead and he never used photocopy of letterhead for any purpose. He was then shown Ex.PW1/D (D15) and was asked to point out the irregularity, on which, he replied that since he has never dealt work of Compost Plant, he was unable to point out any procedural irregularity in the entire tender record.
R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 11 of 20925. He admitted that the tender is published in newspaper only if the value of tender is more than Rupees Two Lakhs and in case where the value is less than Rs.2 lakhs, the same is advertised through NDMC website and copies are supplied to the contractors as well. He could not state that tender Ex.PW1/DA (D Page 7881) was duly notified on NDMC website and copy was duly sent to the contractor as well, as he had no knowledge about the Compost Plant.
26. He admitted that he had stated correctly and truthfully before CBI on 17.06.2004 that "on perusal of aforementioned quotations, I cannot state whether these are genuine or bogus. I do not remember today whether I had made any comment about these quotations earlier as shown to me". He was then shown/confronted with his statement under Section 161 Cr.P.C. dated 17.06.2004, which was Ex.PW1/D1A and the portion of his statement marked X to X. He narrated that he did not remember the contents of his first statement in detail as neither at that time he had any knowledge about Compost Pant nor at the time of his statement Ex.PW1/DA1, he knew about working of Compost Plant. He admitted that he had no knowledge as there has been written in the statement dated 13.12.2006 by CBI and he can narrate only after going through the same which was then shown to him and exhibited as Ex.PW1/DA2. He replied that he had gone to CBI office on 26.05.2006, which statement he had not seen in the record. He did not remember exactly when he specifically visited R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 12 of 209 CBI office, though he visited twice during his service before retiring on 30.09.2007. He then went to CBI office in the year 2014.
27. He admitted that during his tenure and as per his knowledge, no payment of work had been made in cash from NDMC, though he volunteered that he could say only about himself and could not comment about whole of NDMC. He narrated that on completion of work and on certificate of completion given by concerned Executive Engineer, the bill is prepared by accounts and the payment is made by cheque. He could not state whether the work awarded by Compost Plant on the basis of tender in question was completed or not as he stated that it was not related to him and he also could not state whether any of the accused persons committed any procedurally illegality or irregularity and/or they committed in violation of CPWD works manual during the awarding of tender in question. He further stated to have seen the original of Ex.PW1/E, PW1/F and PW1/G in court file. He narrated that he did not know the job of Head Draftsman in Compost Plant and could say whether the justification of tender done by Head Draftsman in Ex.PW1/D from point X1 to X1 is legal or illegal. He denied having knowledge of and/or having told the IO in his statement that Head Draftsman had no power to justify the estimate as per CPWD works manuals.
28. The crossexamination conducted by ld. Counsel for other accused persons was then adopted by ld. Counsel for A4 Dinesh R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 13 of 209 Chand Sharma.
29. PW2 Sh.Rishi Kumar, Asstt. Engineer, NDMC deposed that he was posted at Compost Plant, NDMC from 2003 to 2008, though, earlier to this period also, he had remained at Compost Plant but he did not remember the dates and exact period.
30. He detailed that as an Assistant Engineer in Compost Plant, his duties were to lookafter the electrical and mechanical work of Compost Plant and estimates and justification of electrical works were checked and routed through him to Manager, Compost Plant. At that time, accused S.C. Jain (to whom he identified correctly during his deposition) was Manager, Compost Plant.
31. He stated that only few files were routed through him. At the relevant time, accused P.K. Mathur was AE (C), to whom also he identified correctly, was also posted in the Compost Plant. He added that mainly all files were routed through accused P.K. Mathur.
32. He was not crossexamined by A4. His detailed cross examination was conducted by ld. counsel for remaining accused persons, wherein, he denied the suggestion that he was the most inefficient engineer in NDMC, though, he admitted that document dated 07.07.2003, being the remarks recorded in ACR during the year 200203, were served on him, which ACR was then got exhibited as Ex.PW2/D1 (however, its exhibition was objected by ld. Sr.PP for the R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 14 of 209 documents being photocopy and qua the mode of proof). Witness replied that he had given representation against the ACR, however, he did not remember, whether the adverse entries in this ACR were expunged or not. He did not know whether any order, mark PW2/DA was given to him by accused S.C. Jain. The suggestion contrary that he was making false deposition qua above was denied. He claimed that he had no remembrance of having received memo from the then Director, Vigilance on 05.04.2004 mark PW2/DA1. The suggestion that he was not given any responsibility by any officer in NDMC on account of adverse comments recorded in his ACR and memos issued to him at number of times was denied. He further denied the suggestion that despite his remaining absent, he used to mark his presence in the attendance register. It was denied that on 01.11.2002, though, he did not attend the duties, he signed the attendance register showing his presence, regarding which, memo mark PW2/DA1 was given to him. He stated that he does not remember regarding the memo mark PW2/DA1 or that, he gave reply of the same. He denied the suggestion that due to his inefficiency, he was not given any responsibility by accused S.C. Jain.
33. He admitted to have received memo in NDMC during his service, however, claimed that he can search for reply given by him, at which stage, further crossexamination was deferred for producing the reply. On next date (26.08.2016), he produced the copy of R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 15 of 209 representation made against recording of ACR for the year 200203, which was marked as PW2/DA2 running into four pages. He was then further crossexamined on 19.09.2016, wherein, he stated to have no knowledge of result of his representation mark PW2/DA2 dated 28.03.2003, though he denied the suggestion that his representation was rejected, which fact was communicated to him and despite having specific knowledge he was making a false statement.
34. In his further crossexamination, he could not tell about the contents of memo, which he had replied on 02.12.2002. He further denied that from the year 2002 till the date of his deposition, he had not been assigned with any work of tendering in NDMC and claimed that about six months back from the date of his deposition he was given the work of tender by XEN Sh. Gaur regarding the purchase of electrical items and Annual Maintenance Contract (AMC) of DG Set. He could not tell as to what were the contents of memo dated 09.12.2002 and 10.12.2002 against which he had given reply and sought time to produce the same, which were then produced on 21.09.2016. The witness then produced the photocopies of memo dated 02.12.2002, 03.12.2002, 09.12.2002 and original memo dated 17.01.2003, which were then collectively marked as PW2/D1 and the original memo dated 17.01.2003 was exhibited as Ex.PW2/DB.
35. PW3 C.L. Jindal, Chief Engineer Electrical (Retd.) detailed that probably in the year 2004 Compost Plant Unit of NDMC was R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 16 of 209 transferred and attached to his circle, before being transferred to him from Sh. V.P. Sharma, the then Addl. Chief Engineer (Electrical). He was then shown document D15 already Ex.PW1/D which was the file pertaining to earthing of power, take off points for TA Machines with GI strip, repairing of Hand Tower Ladder (Sandli), P/F & Commissioning Power Contractor. After going through which, he stated that all these works are different in nature and should not have been clubbed. He stated that for supplying split type AC there is separate division namely BM2 (Electrical) and so, this work should have been done only through that division. On the rates for various items taken in file Ex.PW1/D he further observed that the rates are on higher sides, though, he could not comment upon the rate of Hand Tower Ladder placed at page 140 portion X to X he added that rates of various other items are on higher sides besides no justification/proof has been attached with the estimates. He detailed that for earthing items in CPWD SR94 approved rates are given which are normally taken for preparation of estimates and thereafter rates are increased or decreased giving justification while preparing estimates and he stated that in the present case, SR94 rates are not mentioned and the rates which are mentioned are at higher side than approved SR94 rates, whereafter, the estimates placed in file Ex.PW1/D (page 8196) was exhibited as Ex.PW3/A. Estimate boar signature of accused S.C. Jain, the then Manager, Compost Plant at point B, which was identified by the witness, who had seen him writing and signing in normal course.
R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 17 of 20936. He had seen the photocopy of quotations in Ex.PW1/D (tender file) pages 25, 26 and 27 (already Exs.PW1/E, PW1/F and PW1/G) and stated that quotations are photocopies, however, the same should have been original. He also stated that in Ex.PW1/E, there are no signatures of the firm's owner or the person who has given the quotation and no date is mentioned. On Exs.PW1/F and PW1/G no dates are mentioned, whereas, as per the prevalent practice, original quotation, dates and signatures are required. He stated that quotation Exs.PW1/E, PW1/F and PW1/G bear signatures of accused P.K.Mathur, the then AE at point A, though he could not identify the signatures of JE at point B.
37. He then stated about comparative statement placed at page 28 vide Ex.PW1/D (tender file). The comparative statement was prepared on the basis of quotation received and Exs.PW1/E, PW1/F and PW1/G contain the signatures of accused P.K. Mathur at point A. He stated to have no remembrance whether at the relevant time any Head Draftsman was posted in Compost Plant. He stated to have seen note sheet part of Ex.PW1/D, in portion X2 to X2, there is note sheet of accused P.K. Mathur regarding 0.5% above the rates of estimated cost but no reason are mentioned regarding the same.
38. On 25.05.2017, during further examination, it was stated that estimate schedule of rates for earthing work was prepared on the basis R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 18 of 209 of CPWD SR94 , which was then shown to him and was exhibited as Ex.PW3/B. He was then asked to compare the rate of schedule of quantity from tender file D15 page 35 with SR94, whereafter, he stated that the rates taken are on higher side.
39. He was crossexamined by ld. Counsel for accused except A4 in the first instance. He admitted his statement under Section 161 Cr.P.C. dated 29.04.2015 which was shown to him by the ld. Defence counsel and was then exhibited as Ex.PW3/DX1.
40. He admitted that he was immediate officer of accused S.C. Jain from 2004 till his retirement.
41. He stated that he did not know from where the split AC was to be shifted and from where it was to be installed or why said AC was to be shifted. He came to know about its shifting when he looked into the record. He stated that total amount for shifting of split AC should have been less than Rs.3,000/ but he could not tell how much was paid without going through the file in the present case. He did not know the length of copper pipe used to shifting of AC, though, he admitted that the cost would depend upon "length" of copper pipe used and AC gas would also be required while shifting AC.
42. He stated that he did not receive any complaint about the malpractice of shifting of split AC.
R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 19 of 20943. He came to know about the case when he was summoned by CBI for conducting investigation. He admitted that whatever statement he gave to CBI was based on his personal expertise and knowledge. He did not inspect the space where split AC was shifted nor did he know whether iron cage was installed in the present case to protect the outer unit of split AC from theft. He had no knowledge whether split AC was earlier installed in protected area or later on was shifted to open area where iron cage was required for its protection. He did not know that S.C. Jain is having his office at the ground floor and on the first floor. PS to Financial Advisor, NDMC was residing with his ailing father. He could not tell the cost of 2 core x 1.5 sq. mm wire in PVC conduit permitted and stated that it could be verified at the spot only. He admitted that he did not visit the spot but stated that shifting would not cost more than Rs.3,000/ inclusive of all expenses. He could not tell that the copper pipe used in shifting of split AC was 12.19 mtrs. and did not know whether the cost of copper pipe per meter at the @ Rs.240 was reasonable. He stated that CPWD SR94 did not provide for cost of copper pipe and the manual shown to him was for internal wiring. He was not aware about any manual for copper pipe also in regarding for shifting of split AC which included cutting and dismantling of copper pipes etc. with insulation, fixing of 2 core x 1.5 sq.mm copper wire in PVC conduit (for transmission), fixing of exhaust fan I/C servicing, placing/fixing in position, gas filling and replacement of any defective minor part if any, providing R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 20 of 209 and fixing of MS cage, though, he reiterated that after having seen hundreds of such split AC being shifted, he could say that including of all expenses it should not exceed Rs.3,000/. He stated that he retired in the year 2008 and could not cite two instances of shifting of split AC but such record could be produced by Building MaintenanceII Division. He stated that the said division was working with him during his service. The maximum copper wire required for split AC would be around 15 mtrs. and same was the length required for copper pipe, beyond this earthing system would not work satisfactorily. He stated that requirement of cage may or may not arise depending upon each case. The suggestion contrary was denied by him.
44. He stated that all file pertaining to work in Compost Plant were not routed through him and only by verification from record he could answer whether all work done in Compost Plant was routed through him to quality control department. He was then shown copy of letter dated 13.04.2005 to Director, Quality Control and Technical Audit written by S.C. Jain on subject to monthly statement of progress of works and procurement of stores for the month of March, 2005 where it was written that the original statement has been submitted to SE(IV) the post of occupied by the witness, to which, he replied that he could not offer any comment on the letter without verification from record. The letter was then mark as Mark PW3/A. He could not say whether the letter was forged, fabricated or contained false contents, though, R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 21 of 209 he stated that some monthly statements were received from the Manager, Compost Plant for development work, he stated that he did not remember whether Mark PW3/A was ever produced before him or not.
45. He stated that as far as expenses upto Rs. 2 lakhs are concerned, the same were within the power of Manager, Compost Plant and if he would have raised any objection with regard to costing of ladder, transfer of split AC etc., the same would have been recorded in the records. He had not seen record before going to CBI office since the CBI had not told him the purpose of summoning. He stated he was shown on receiving notice from CBI for investigation. He had not checked the records even second time in the year 2008 and stated that at the second time, records of SEIV were not with him. He had not checked the records even in the year 2006 after the statement was recorded by CBI. He did not know when the earthing work at Compost Plant and Sandli and shifting of AC taken place. He did not know the number of pulleys in the Sandli since he did not see this particular Sandli at the time of repair. He did not examine the Sandli even after his statement was recorded by CBI and clarified that it was not an electrical item, though, it was part of Compost Plant and he was SE at Compost Plant. He was not aware about the number of earthing unit, their location or colour and stated that the same was looked after by the Manager, Compost Plant. He offered clarification for not R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 22 of 209 examining earthing unit after his statement was recorded on 12.11.2006 by CBI and stated that the inquiry made by CBI was regarding rates. He was not aware whether CBI inspected with regard to installing or noninstalling of earthing unit.
46. He stated that he had not told the CBI in his statement that cost of shifting of AC would not have exceeded Rs.3,000/ or that he could give the correct cost of split AC shifting only after examining of spot and clarified that he was not asked the same and further volunteered that he had told the CBI that rates are on higher sides. He further stated that CBI asked him the price of single earthing point which according to him was on higher side and in the estimate it was taken on a lumpsum basis. He had not seen the make of components/spare parts used at the site whether they were of L&T make. He stated that it was not in his consideration when he stated that the costs incurred are on higher side that the brand name of components/spare parts was not mentioned.
47. He did not remember whether accused S.C. Jain could award work order upto Rs.20,000/. For the job in question, help of B2 Division could have been taken. He stated that job in question should not have been got done on tender basis and should have only been done through B2 division as B2 division had been created for this purpose and therefore, once there was exclusive unit, the work should not have been got done through tender. He further stated that the R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 23 of 209 earthing item is complete as a whole and included excavation which he stated to be mentioned at page 46 of Ex.PW3/B. He denied the suggestion that excavation is not covered at point X at Ex.PW3/B. He was then shown ChapterV Earthing from CPWD Manual mark PW3/DX2 but affirmed the answer that excavation is included in earthing unit. He further denied that there was any need for seeing method of pipe earthing mark PW3/DX3 for giving rate of earthing unit. The contrary suggestion that he was making statement under pressure of CBI and/or that he had never visited the Compost Plant during his service period and/or has failed to discharge his duties and/or that the statement was in vengeance towards S.C. Jain, were denied.
48. In his further crossexamination by ld. Counsel for A4 Dinesh Chand Sharma, he stated that in electrical division estimates are not checked by Draftsman and same are checked by Head Assistant and Electrical accountant and volunteered that in some cases estimates are got checked from Planning Division. He further stated that draftsman are not posted in every electrical division and whether a draftsman is posted in every civil division could be answered by EE (Civil). He further narrated that the Compost Plant is a separate unit created for a specific work and as per his memory he stated that the Compost Plant at time was attached with the Civil Department, Electrical Department, Medical Officer (Health) and even Secretary, NDMC.
R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 24 of 20949. He was questioned specifically that if Compost Plant was under
Civil Department, would there never be any need for the assistance by draftsman, to which, he stated that the aforesaid question can be replied by Incharge of Civil Department. He was then asked specifically whether any draftsman was posted in Compost Plan, to which, he stated that he cannot say anything and only records pertaining to Compost Plant can reveal the same. He also could not state whether a circumstance could arise needing help of a Draftsman of a Compost Plant as the Compost Plan was never under his supervision.
50. He replied that Manager of Compost Plant was a Senior Most Officer in the Unit. The Manager was always an Engineer, who was assisted by AE (Civil) and some JEs including one JE (Electrical) and some other staff as well. He was then asked as to who prepares work estimate, to which he replied that work estimate in electrical department is prepared by technical staff and is initiated by JE (Electrical) or equivalent officer such as Supdt. (Technical) and that, at the time of his deposition, JE (Electrical) and Supdt. (Electrical) were one and the same post. He denied that Draftsman has no field job and stated that Draftsman at times in Electrical Department goes to site for making measurements for preparing electrical plans etc. He narrated that JE prepares the estimates and submits to AE and then, EE checks itself and thereafter, processed further to obtain competent R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 25 of 209 authority's approval. In case, it is in jurisdiction of AE, then he approves it or otherwise the estimates are submitted to higher authorities which may be SE, Addl. Chief Engineer, Chief Engineer and other Head of Department, Council with concurrence of Finance and Chairman, NDMC.
51. He was then shown document D15 (Ex,PW1/D) and stated that he had seen the file at the time of investigation also. As per page1 of D15, the estimate had been prepared by AE, Compost Plant which appears to be under signatures of AE Sh. Mathur. He had seen note at point A to A at page1, as per which, the estimate was prepared by AE on the basis of market rates quotation and checked for Rs.1,31,655/ and submitted for NA please, which normally means "necessary action". He stated that in his information this was a vague statement as the person writing this should have satisfied himself with the market rates quotation, the basis of rate taking and estimates while checking. He was then shown page10 of Ex.PW1/D and after seeing note at point B to B, he replied that if a specific question is put to him, he could make his comments, however, by seeing this page, one very interesting observation has been noted, which is that the file was submitted to Manager, Compost Plant under signatures of AE, Compost Plant dated 6th March, Manager Compost Plant had seen and signed the file marking as "please check" without putting any date under his signatures to HDM, who then, checked the estimate D to D R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 26 of 209 putting his signatures without date to Manager, Compost Plant but further notings are of AE, Compost Plant dated 7 th March, who had never marked the file to anybody but the next notings are of Manager, Compost Plan without his dated signatures writing that please check and put up for approval to AAO, Compost Plant. The file moved from one officer to another and in the single date, it was put up before four officers within a day. The file was marked to Manager but the notings are of AE, Compost Plant dated 7th March and he connected with all notings from B to B. It is observed that checking was done in a hurry is obvious. He was then questioned of his not making observation to CBI, to which, he replied that he had answered whatever questions were put to him. The suggestion that he did not deliberately disclose this fact to CBI was denied.
52. He was then shown page90 from Ex.PW1/D and inquired about the nature of the document, to which, witness replied that the documents is selfexplanatory and it was the abstract of cost, original, preliminary/detailed estimate. He was then asked that the documents have been prepared on the basis of market rate, to which, he replied that "market rate" words have been written but while preparing estimate the authority preparing the estimate should satisfy himself regarding justification of market rate. The market rate word is a vague expression. He was then shown writing C to C, which was stated to be comment regarding market rate, to which, he replied that his R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 27 of 209 observations will remain same.
53. He was then shown page 86 Ex.PW1/D and was asked that the estimate was approved by JE, AE and Manager Compost Plant, to which, he replied that the document is signed by JE, AE (Compost Plant) and counter signed by Manager, Compost Plant and nowhere it is written "as approved". He was then shown page 145 Ex.PW1/D and was asked that the documents Ex.PW8/A, Ex.PW1/A and Ex.PW1/B are signed by JE, AE and counter signed by Manager, Compost Plant, to which, he replied in affirmative and volunteered "however, Ex.PW1/A and Ex.PW1/B are signed on photocopies of letter of firm by JE, AE and counter signed by Manager, Compost Plant. He was then given a suggestion that only the letters were photocopies but the quotations are original, to which, he replied that original quotations' authenticity can be given only by the firm giving quotation and he could not make any reply. He was then shown page 25 of Ex.PW1/D and asked that it is mixed design involving mechanical, civil and electrical work, to which, he stated that it is a standard pipe earthing drawing followed by electrical department, this is a single item. He further stated that this is the standard item shown in CPWD SR94 as single item. He stated that further details if required could be called from CPWD, which has special wing to prepare rates, based or material cost and labour cost, which were available in their department document. He was then asked to show R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 28 of 209 the specific item in SR94, whereafter, he showed page 46 mark X of booklet scheduled of rates of electrical works partI, 1994 Ex.PW3/B. He denied that SR94 electrical shown is used by electrical engineer and not by civil draftsman and stated that it is the government publication available in market for everyone. Estimates are prepared normally for such work based on SR94.
54. He was then shown pages 143/28 of D15 from point D to D and asked that the remarks referred to checking of calculations only, to which, he replied that the remarks for calculations checked. He was then shown pages 195, 197 and 198 of D15 of Ex.PW1/D and asked that these notes pertain to additional quantity approved for Compost Plant, to which, he replied that additional quantity note was submitted by JE(E), CP on 16.03.2005 to AE, CP, who under his signatures dated 16.03.2005 submitted one more paper for approval of one more power take point earth to Manager (Compost Plant) , who under his signatures dated 16.3.2005 had written "yes, I agree with the proposal" . As per note written on page 195. He was then shown page 199 of D15, from point E to E, which contained a note "calculation checked", which was affirmed by the witness. He was then shown back pages from 177 to 179 and asked that the same are the first and final bill and it was replied by the witness that the document shown is the first and final bill of Compost Plant Division prepared and signed by AE.
R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 29 of 20955. He was inquired that whenever required, Manager, Compost Plant can take assistance of any draftsman and he used to call draftsman of civil division, to which, he replied that it can be answered only by the Manager, Compost Plant, whereafter the cross examination was concluded.
56. PW4 Sh. Sanjay Chabra, Proprietor of M/s Divya Sales Corporation stated that he had never given any quotation to any government department and never supplied any goods to any government department. Since his shop is very small, he preferred only counter sale. He did not supply any electrical goods to NDMC department nor did he had any contact with NDMC officer or new anyone from NDMC department. He was shown letter/quotation having no date, addressed to Manager, Compost Plant, NDMC, purportedly issued by his shop on photocopy letterhead of M/s Divya Sales Corporation, 1751, Bhagirath Place, New Delhi (D5) already Ex.PW1/C and stated that the same letter/quotation was not issued by his firm to NDMC or to any other department nor did he know anything about this matter. He further stated that the letterhead did not tally with his original letterhead and the letterhead did not bear any hand writing of him or his signatures. He denied the signatures at point A to be that of him. He stated that he does not deal in products mentioned in this letter and never did any business for GI strips etc., though the name and address on Ex.PW1/C was same as of his shop R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 30 of 209 but the same was not issued by him or by his shop. He stated that since he does not deal in GI Pipe products, he cannot tell the rate of GI Pipe in the year 200405. He had given his statement in writing on the asking of CBI officer. He was shown D11 page 125127. He admitted the same to be his specimen hand writing and signatures at point A. He had appended his signatures in token of its correctness, which was then Ex.PW4/A (colly). He then stated that photocopy of the said quotation is available in file D15 which was already exhibited as Ex.PW1/D at page 25 already exhibited as Ex.PW1/G.
57. The witness was crossexamined by ld.PP on the point of rate of GI Pipe. He admitted that his statement was recorded by CBI officer, which he had seen having been recorded on 08.02.2007 under Section 161 Cr.P.C., which was exhibited as Ex.PW4/B, wherein, he had stated that the rates mentioned in the letter are much higher than the market rate as per as knowledge and market experience i.e. the rate of item no.1 mentioned at serial no.1 of letter may not be more than 200 per unit, whereas in the quotation/letter shown to him it is written at 8000 per unit, whereafter he volunteered that on request of CBI officers, he had taken rates from another shop keeper from Bhagirath Place which was dealing with GI Pipe/other products mentioned on the basis of which it was mentioned. He was not subjected to any crossexamination by ld. Counsel for A4.
58. In his crossexamination by ld. Counsel for other accused R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 31 of 209 persons, he narrated that he cannot give the exact date, month and the year when he came to know about Ex.PW1/C, whereafter, he volunteered that he came to know that CBI had summoned him about 10 years back. He affirmed it as correct to have stated that the letterhead of his Corporation was different which statement he made before the Court. He had not brought the original letterhead of M/s Divya Sales Corporation, which he later produced on 21.09.2016 on asking of ld. Defence counsel and stated that his original letterhead is the same since the beginning of business which he has been getting it printed up till date, which then was exhibited as Ex.PW4/DA. He admitted that he had not seen Ex.PW1/C, which was not his document nor he had signed it. He could not read the contents of Ex.PW1/C. He stated that he knows English writing a bit, but it cannot be understood by anyone. He stated that if he has to write any communication in English, he takes help from his employee at the shop and of his brother for writing. He stated that CBI had not examined any of his employee or his brother in this case, nor CBI had taken any specimen signatures of any of his employees or brother in this case. He stated that he cannot say as to who had written document Ex.PW1/C and denied the suggestion that it deposed writing any document of employees of his shop and given to Manager, Compost Plant.
59. He stated that they do not maintain dispatch and receipt register R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 32 of 209 at shop. He did not make any complaint regarding Ex.PW1/C and clarified that it was already under investigation in CBI. He did not make any complaint to higher authorities of NDMC and denied the suggestion that it was complained since he knew that the letter was given by his employee. The suggestions that statements dated 08.02.2007 and 09.06.2014 to CBI having been made under pressure, were denied.
60. PW5 Sh. Vinod Singh Rana was working as temporary Beldar from the year 20012006 in NDMC Compost Plant, Okhla under Sh.S.K. Aggarwal (Electrical) JE and accused Yad Ram, the then JE (Electrical). He stated that during this period i.e. 20012006 he used to write quotations on asking of accused Yad Ram, the then JE (Electrical) and Tripan Singh Negi, the then permanent Beldar. Accused Yad Ram was identified by the witness during court testimony correctly. He stated that he was 11 th class pass and used to copy the writing material of English and therefore, used to prepare quotations on asking of abovestated NDMC officials. He was shown the quotation of M/s Divya Sales Corporation Ex.PW1/C and stated that the said quotation was written by him in his writing on instructions of accused Yad Ram, who gave blank letterhead of M/s Divya Sales Corporation and asked him to copy the matter on this blank letterhead, which was given by accused Yad Ram. He had signed the said as proprietor's signatures of M/s Divya Sales R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 33 of 209 Corporation at point A on Ex.PW1/C on the asking of accused Yad Ram. He stated that accused Yad Ram was his superior in the Plant and he used to follow his instructions since he was working as Beldar on temporary basis. In the year 2006, his job was discontinued. His specimen hand writing and signatures were taken by CBI and he stated that he can identify the same if shown to him, at which stage, his specimen handwriting and signatures (D7, page 112116) bearing his signatures at point A were admitted by him, which was then was exhibited as Ex.PW5/A. The photocopy of the quotation in file (D15) was also affirmed by the witness which had been already Ex.PW1/J and he was not crossexamined by A4.
61. In crossexamination by other accused, he stated to have told the CBI in is statement dated 30.01.2008 recorded under Section 161 Cr.P.C. that he used to write quotations on the asking of accused Yad Ram, the then JE (Electrical) and Tripan Singh Negi, the then permanent Beldar, at which stage, he was confronted with his statement (Ex.PW5/D1),wherein it was not so recorded, however, it was recorded that this quotation was written by witness on the instructions of Yad Ram, JE. He was further confronted with Ex.PW5/D1 and stated that he had told CBI that he is 11 th class pass and used to copy the written material of English and therefore used to prepare quotations on asking of above mentioned NDMC officer and it was found recorded that his qualification is 11 th class pass and he is R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 34 of 209 able to copy written material to be copied on the given blank letterhead. He then stated that he had told CBI in his statement dated 30.01.2008 u/s 161 Cr.P.C. that he had signed the said quotations as purported signatures of Divya at point A on Ex.PW1/C on asking of accused Yad Ram. He was then confronted with his statement Ex.PW5/D1, wherein it was not so recorded, however, it was recorded that this quotation was written by him on instructions of accused Yad Ram, JE.
62. He admitted that Yad Ram did not issue his appointment letter as temporary Beldar. He stated that Yad Ram could have removed him from service had he not followed his instructions.
63. The witness stated that his statement was again recorded on 19.04.2015 which was exhibited as Ex.PW5/D2. He stated that he had told CBI in his statement dated 19.04.2015 u/s 161 Cr.P.C. that he used to write quotations on asking of Yad Ram, the then JE (Electrical) and Tripan Singh Negi, he then permanent Beldar. The witness was then confronted with statement Ex.PW5/D2, wherein, it was not so recorded.
64. He then stated to have told CBI in his statement dated 19.04.2015 that he is 11th class pass and used to copy the written material of English and therefore, used to prepare quotations on asking of above mentioned NDMC officers. The witness was R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 35 of 209 confronted with the statement Ex.PW5/D2, wherein, it is not so recorded.
65. He then stated to have told CBI in his statement dated 19.04.2015 u/s 161 Cr.P.C. that he has seen the quotation of M/s Divya Sales Corporation already Ex.PW1/C. The said quotation being written by him in his hand writing on the instructions of Yad Ram, who gave blank letterhead of M/s Divya Sales Corporation and asked him to copy the matter on this blank letterhead which was given by accused Yad Ram stated "I had signed the said quotation and purported signature of Divya at point A on Ex.PW1/C on the asking of Yad Ram". It was also not found recorded "accused Yad Ram was my superior officer in the Plant, I used to follow his instructions as I was working as Beldar as temporary post".
66. He further stated to have not told CBI officer in his statement Ex.PW5/D1 that he had studied upto 11th class and volunteered that he had studied upto 11th class.
67. He told that he had not stated to CBI in his statement dated 19.04.2015 "I now Yad Ram, JE (Electrical) by post only and Yad Ram was posted at Compost Plant during my tenure. I have never interacted with him regarding my official or private work", as recorded in Ex.PW5/D1.
R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 36 of 20968. He admitted as correct that he told CBI in his statement Ex.PW5/D2 dated 19.04.2015 that he was working under S.K. Aggarwal, JE (Mechanics) and he used to mark his attendance. He stated that he had not made similar statement in his earlier recorded statement dated 30.04.2008 Ex.PW5/D1 since he was not asked.
69. He stated that his attendance register used to be with the office of Sh.S.K. Aggarwal, JE (Mechanics) and in case he had to go for any leave he would report to Tripan Singh Negi. All the work was allotted to him by Tripan Singh Negi.
70. He admitted that Tripan Singh used to tell him to copy quotation on blank paper/letterhead of the firm and he would tell him that he had been directed by S.K. Aggarwal Sahab to fillup the quotation. He admitted that on directions of Tripan Singh with specific instructions of his being directed by S.K. Agarwal he filled up quotations provided to him by Tripan Singh Negi. However, he stated the quotation Ex.PW1/C was given to him by accused Yad Ram directly.
71. He further stated to have made statement Ex.PW5/D2 wherein, it is mentioned that quotation of M/s Divya Sales Corporation was prepared by him at the instance/behest of Tripan Singh Negi, the permanent Beldar and Tripan Singh Negi had also brought typed material to be copied and photocopy of blank letterhead of M/s Divya Sales Corporation. He admitted it to be correct that he had been R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 37 of 209 specifically told by him to copy the material as asked by Sahab S.K. Aggarwal, JE (Mechanics). He admitted to have told in his statement Ex.PW5/D2 that he made the quotation of M/s Divya Sales Corporation on the instruction of Tripan Singh Negi and S.K. Aggarwal as S.K. Aggarwal at which point he was put a court question of him having stated to CBI in his statement dated 30.01.2008 that he used to write the quotation on the instruction of Yad Ram who used to provide/give the written material to be copied on blank letterhead of the firm for quotation of M/s Divya Sales Corporation was written on the instructions of Yad Ram and that he gave the blank letterhead to him, whereas, he has named S.K. Aggarwal in his statement dated 19.04.2015, which of his statement is correct and why he changed the version, to which, the witness replied that the quotation of M/s Divya Sales Corporation was prepared at the instance of Yad Ram. He stated that he had changed his version but there was no pressure on him from CBI or other party.
72. Witness stated that he worked under Tripan Singh Negi for two years and worked under accused Yad Ram for six months, though, he could not show such order. He stated that Tripan Singh Negi used to get him marked present from S.K. Aggarwal. He revealed that he joined Compost Plan in the year 2001. After 2/3 months of his joining, Tripan Singh Negi started getting written quotation from him and whenever Tripan Singh Negi used to ask him to write quotation, R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 38 of 209 he used to write the same. He admitted further that Ex.PW1/C is in his hand writing and he had signed at point A. He stated that he was not aware while writing the quotations that it was an illegal work. He did it as it is official work. He stated that he did not know whose signatures he made at point A on Ex.PW1/C and admitted that it not his signatures and further stated that he had signed at the instruction of accused Yad Ram.
73. The witness stated to have told the CBI in his statement dated 19.04.2015 Ex.PW5/D2 that "since I was a temporary employee and was supposed to obey the orders of Sh. Tripan Singh Negi who was very close to Sh. S.K. Aggarwal, JE (Mechanics) and in case I did not comply with their instructions/orders, I could have been removed from the temporary jobs."
74. Thereafter, Ex.PW1/C was put to the witness, who thus correctly and rightly read the tile on letterhead from point X to X. He stated that he could not say whether potion X to X1 was written on the paper when it was given to him for writing.
75. He stated that he may have written 50 such quotations on asking of Tripan Singh Negi from 2001 to 2006. He did not make any complaint to any officer about Tripan Singh Negi getting the quotations written from him. He was not paid any money for writing the quotations but was treated him with tea or dinner. He admitted that R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 39 of 209 while writing 50 quotations, he knew that it was not the part of his job but was writing the quotations as he apprehended that if he would not write the quotations as per directions of Tripan Singh Negi, he would be thrown out of the job.
76. He was informed about extension of his contract by Tripan Singh, who used to recommend to the Senior Officer relating to his extension. He stated that he had no information about other officers except S.K. Aggarwal and Tripan Singh Negi.
77. He denied that the paper for writing the quotation was given by Tripan Singh and S.K. Aggarwal only and volunteered that accused Yad Ram also used to give paper for writing the quotations.
78. He stated to not remember the date, month and year when he wrote Ex.PW1/C. He did not remember the name of any other company for which the quotations were written by him on the asking of Yad Ram. He did not remember the name of any other company, date, month and the year for the other quotations given by Yad Ram. He could tell the name of even five companies out of 50 companies for which he had written the quotations on the asking of Tripan Singh Negi. He denied that Yad Ram had been giving him any quotation and/or that all quotations were given by Tripan Singh Negi. He further denied that in his statement Ex.PW5/D1, he did not name Tripan Singh Negi giving paper to him since he had helped him in R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 40 of 209 continuation of his job. He was then put a question specifically about him having said in his statement dated 31.01.2008 Ex.PW5/D1 that accused Yad Ram gave him blank letterhead of M/s Divya Sales Corporation and asked him to copy the material on the same blank letterhead, which was given to him and in his examinationinchief in court he stated that he used to write he quotations on asking of accused Yad Ram, the then JE (Electrical) and Tripan Singh Negi, as to which of his statement was correct, to which, the witness replied that both of them were correct and denied the suggestion that he was deposing falsely.
79. PW6 Sh. J.S. Kohli, Retd. Executive Engineer, NDMC deposed that he remained as such from the year to 2008 to 2012 and was posted in BMII division or 78 months during the relevant period. He knew accused S.C. Jain, who was the then Executive Engineer BMII division and had taken the charge from him. He identified the signatures of accused S.C. Jain, since he had worked and had seen him writing and signing in official records. The witness then shown document D17 page 657 bearing signatures of accused S.C. Jain at point A, which he then marked PW6/A (objected to the mode). He read out the report and stated that as per this report NIT (NCP)AB/1068/D dated 31.01.2005 mentioned at Sr. No.1, was not received by BM2 division of NDMC.
80. He was then crossexamined by ld. Counsel for all accused R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 41 of 209 except A4, during which, he denied that diarization of tender notice started only after the CBI contacted the persons posted in Compost Plant in the year 2006 and read out portion X to X from mark PW6/DA (page 22), which read "Action taken if received", "it is to inform that before January, 2006 the division used to display the NIT received from other division including CP Okhla division directly on the notice board of the division but after January, 2006, the same was diarized in this division those received by NIT from other divisions and displayed the same on the notice board. So, the requisite information is not possible to make available for disputed period as desired", on which, the witness replied that he does not agree with the said findings and volunteered that every communication received in any division of NDMC would be first diarized and then action is taken, at which stage, he was shown page 524 which was then marked PW6/DA1 and which received action taken if received" and from portion X1 to X1 that it is to inform that before January, 2006, the division used to display NIT received from other division including CP Okhla division directly on the notice board of the division but after January, 2006, the same was diarized in this division those received by NIT from other division and displayed the same on the notice board. So, the requisite information is not possibly made available for disputed period as desired", to which, witness again stated that he does not agree with the said finding and again volunteered that in case any communication is received in any R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 42 of 209 division of NDMC it is first diarized and then action is taken. He further stated that it is mandatory to diarize the dak and documents received in the office which is general practice in order to keep the record of the same. He stated that he cannot produce any tender document prior to 2006 which was diarized. He had retired from the department and had no access to the record of the department. He could not give any reference of three tender documents which were diarized and action was taken, however, he volunteered that at that time, auction of tender was within the purview of Executive Engineer and he was only Assistant Engineer and hence, it was not in his purview. He also stated that he had worked on the draft of noting inviting tender during 2002 2006 as Assistant Engineer. He stated that he had no information when report marked PW6/A was prepared and by whom it was prepared. He admitted that except identifying signatures on report marked PW6/A, he had no other knowledge. He was not crossexamined by ld. Counsel for A4.
81. PW7 Sh.B.K.Sandill, Retd. Executive Engineer (C), NDMC. In the year 2008, he was posted as Executive Engineer in C1 division of Civil Engineering Department. During the year 20042005 there were two divisions namely C1 and C2 and later on, C2 division merged in C1 division. He had given the report regarding receipt of NITs in C1 division to CBI. He was shown photocopy of his report dated 20.02.2008, 30.07.2008 and 20.02.2008 (D17) (page16, 17 & R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 43 of 209
19), he acknowledged his signatures at point A, wherafter they were marked as mark PW7/A1 and PW7/A3.
82. Vide his report dated 20.02.2008 (mark PW7/A3), C1 division of NDMC had not received NIT No. M(CP) AB/1068/D dated 31.01.2005. He had checked the same from his staff and verified the same himself also from the diary/dispatch register which was duly maintained in their division. In the entry of said NIT was not there and accordingly, he had given the report above stated that NIT was not received in their division. He was then subjected to crossexamination by ld. Counsel for accused except A4.
83. He admitted that in his report marked PW7/1A, there is reference of six NIT communication and information of the NITs were received in his division. He could not tell the number and date of any NIT which were duly received in the office and volunteered that he retired from the office in 2009 and therefore, he does not remember whether during preparation of his report he came across any NIT which was received in their division. The report was given with respect to NITs which were asked by the CBI and hence, his reports were with respect to those NITs only and information of the NITs which were asked by the CBI was received in their division and hence, there is no mention of NITs which were received in their division. He could not remember that he had seen the original of mark PW7/A1 to PW7/A3 to CBI.
R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 44 of 20984. He admitted that NITs were pasted on the notice board. He could not tell anything about the fact that prior to 2006, when the present case was registered by CBI, NIT notices were pasted on notice board and it is only after CBI wrote about the procedure of formal receiving the NITs at receipt branch was being followed. He could not tell whether NIT No. M(CP) AB/1068/D dated 31.01.2005 was pasted on the notice board of his division or not. He volunteered that since it was not received in his division, it could not have been pasted on the notice board.
85. He denied that at the relevant time, there was no practice for receiving the NIT in the office and thereafter pasting, therefore, the present NIT was pasted on notice board without entry in dak/dispatch register.
86. He stated that he had prepared reports mark PW7/A1 and PW7/A3 after checking the dak/dispatch register and he got the said record checked by his staff also. He stated that he did not remember at the time of deposition as how many NITs he found in receipt/dispatch register having been received in his division and denied the suggestion that he did not find any NIT having been received in the receipt/dispatch register because that was not the prevalent practice at the relevant time. The suggestion that he was making false deposition was denied.
R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 45 of 20987. He was then crossexamined by ld. Counsel for A4 and he denied the suggestion that he had not properly checked the report and/or applied his mind and given the report on dictation of CBI officials. He further denied that he had given the reports as desired by CBI officials to help CBI officials to implicate the accused falsely.
88. PW8 Sh. Raghunandan Kumar Gupta deposed that he started his business (contract basis) in the year 198687 under the name and style of M/s United Electrical and Mechanical Works at 86/1, East Park Road, Modal Basti, New Delhi 110005. Till the year 2012 nature of his business was repairing pump and other mechanical work and he used to take contract from CPWD, MES and various Govt. Departments. He was shown handwritten letter/quotation dated 27.12.2004 (D2) (objection was raised regarding letter being mentioned as quotation and it was observed that word "quotation" was mentioned, however, the witness stated it appears to be given for purpose of estimate). He stated that the letterhead appears to be belonging to his firm i.e. M/s United Electrical and Mechanical Works, however, the contents written on the same were neither in his hand nor given by him nor did he sign and neither they were given by him or his firm. His purported signatures at point A were denied by him. Letter was exhibited as Ex.PW8/A, photocopy of which was placed in file (D15) (page86 and was Ex.PW8/A (Objected to mode).
R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 46 of 20989. The witness stated that neither he nor his firm had ever dealt with any work to which the letter was addressed. It was not in handwriting of any person working in his firm. His specimen signatures and hand writing were taken by CBI, which he identified (D9) (page 123), which was then exhibited as Ex.PW8/B.
90. During crossexamination for accused except A4, he stated that he was called by CBI office 3/4 times, though he did not remember the years but it was between 20042007. The inquiry had been made by CBI from him. His signatures were taken twice. His statement was recorded once and signatures were taken twice. On the second time, all matters mentioned on Ex.PW8/A were got written in hand writing. Witnesses stated that he did not see the statement on the date of deposition in the court which he had signed in the CBI office for the first time and had seen on the date of his deposition in court, the matter which was got written from him by CBI as Ex.PW8/B on which the Court observation as "specimen handwriting was recorded". He had told CBI that neither the signatures nor hand writing on Ex.PW8/A were belonging to either him or any of his employees. He had not specifically sated to CBI that signatures and handwriting on Ex.PW8/A were of none of his employees of his (firm). He had not told in statement recorded under Section 161 C.P.C. that letterhead Ex.PW8/A of his firm only and volunteered that he had stated the CBI that the letterhead appears to be belonging to him but he could not say R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 47 of 209 whether it was original or has been got printed, at which stage, he was confronted with his statement, which was then exhibited as Ex.PW8/DA, wherein, it was recorded "this letterhead is of my firm only" in the portion X1 to X1).
91. He then deposed that he was doing the job of paper wortk with the government department since 198687. The quotations/estimates submitted to the government department from his firm were either in his handwriting or were typed.
92. He then stated to have told CBI in his statement that up till 2007, he had never done any job with Manager, Compost Plant, at which stage, he was confronted with his statement Ex.PW8/DA, where, it was not so recorded.
93. He denied the suggestion that Sh. Y.P. Taneja was working in his firm. He further denied the suggestion that Sh. Y.P. Taneja was given Power of Attorney by him and he was used to submit quotations/estimates to Government departments.
94. He stated that he had not lodged any FIR with the police after knowing of forgery of his letterhead. He denied that apart from him, his employees also used to prepare estimates in their handwriting and submit to the government department. He then admitted that Ex.PW8/A is an estimate and not quotation. He stated that he did not R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 48 of 209 pay any attention after seeking the Ex.PW8/A when it was shown to him by CBI as to what type of work was mentioned in same and volunteered that since it did not belong to him he did not pay attention. He did not remember what were the contents which were got written by him from CBI. He did not remember as to which branch of engineering work was related to though he admitted to have been frightened and panic on receiving the call from CBI and further admitted that he was not knowing the nature of enquiry to be made but denied that he had written whatsoever CBI officials dictated to him. On being confronted with Ex.PW8/DA, he stated that it is the crux of his statement made to CBI, though, it was not in his handwriting and signatures were of other person, who was working in his firm, whereafter, he volunteered that they have forgotten to write "not". He had given in writing to CBI on first date that hand writing and signatures were not of any persons who were working in his firm. He did not take any copy of the said statement and further denied that he had not made any such statement due to which reason it was not available in the Court file. He denied the suggestion that he was making false statement as it was in his knowledge that Ex.PW8/A was prepared by his employee and in order to save him he was making false statement. He further stated that he could not produce the record of quotations/estimates given to government department from 2001 to 2007 and stated that the records were weeded out. Contrary suggestions were denied by him.
R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 49 of 20995. PW9 Sh. Govind Ram Garg was partner of M/s Arcee Trading Corporation while Ms. Kanak was stated to be the sleeping partner. He stated that the firm was doing business in supplying and trading of electrical items and supplied electrical items to NDMC on contract basis since 1983.
96. He was shown letter quotation D3 (already Ex.PW1/A) and stated that it was not issued by the firm Arcee Trading Corporation in which he was partner. Document did not have any date or signatures and was made by photocopy of letterhead of his firm i.e. Arcee Trading Corporation. The document was not in his hand writing or any person who was known to him or any employee of Arcee Trading Corporation. He had never submitted the said letter/quotation to Manager, Compost Plant, Okhla, New Delhi, the photocopy of which was already placed in file D15 (page 27) already Ex.PW1/E. His specimen signatures were taken by CBI, which he identified as Ex.PW9/A (D10) (page 1 to 2).
97. In crossexamination by ld. counsel for accused except A4, he stated that he can produce the partnership deed to prove that he was partner of Arcee Trading Corporation. There were only two employees namely Sh.Sanjay Gupta and Sh.Pawan Aggarwal in his firm apart from other persons. Specimen handwriting of Sh.Pawan Aggarwal and Sh.Sanjay Gupta were not taken by CBI nor they were summoned by CBI. He had not stated that above employees were R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 50 of 209 working in the firm. He stated that since he was not inquired specifically, he did not tell about them to CBI. He stated that he had made supplies to NDMC fifty times during a year and accordingly from the year 2001 to 2006 he might have supplied about 350 items. Quotations/estimates were written by him and his partner, however, mostly the same were written by him. He could produce any of the estimates/quotations above referred as the same were sent to the department and no copy of the same is maintained. He denied the suggestion that he was deliberately not producing copy of any of such quotation/estimate as he will be exposed since the documents besides him has also been prepared by his employee/partner/CA and by his helper and he had destroyed all the documents because of threat of CBI.
98. He stated that he had never received any payment in cash from NDMC from the year 1983 till 2016 when he retired as partner from the firm. He had not paid any bribe at any moment of time to accused Yad Ram, S.C. Jain and P.K. Mathur and admitted that he never paid any bribe in NDMC from 1983 to 2016. He stated that Ex.PW1/A is an estimate and not quotation. He admitted that as per procedure in NDMC, before finalizing the quotation the estimates are requisitioned from persons dealing in the required job work for supplies and then final quotations are given and the same modus was adopted by his firm since 1983 till he retired. He stated that he was called by CBI R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 51 of 209 twice in the year 2007. At the time of first interrogation, his signatures were not obtained. He stated that the CBI did not obtain his signatures on any paper however, later on changed the statement by saying that he did not remember. He was then shown statement recorded under Section 161 Cr.P.C. , after seeing which, he replied that the same was recorded by CBI in his presence when he was called to CBI office and he had not signed the same. The statement was then exhibited as Ex.PW9/DA. He stated that the above statement was recorded by Sh.Sandeep, Inspector, CBI. He did not make any enquiry from his employees. After seeing the statement Ex.PW1/A in CBI office he volunteered that he did not deem it appropriate to enquire from his employees as they were not involved in preparing the estimate or quotation. He did not make any FIR regarding forgery of letterhead of his firm. He did not make any complaint with NDMC regarding the same. The suggestion that he did not deliberately did above as he knew that documents were prepared by his employees and he did not give the name of his employees on being scared of getting involved in the matter. He denied that Ex.PW1/A was given by him or his firm. He further stated that none of the jobs mentioned in Ex.PW1/A were done by his firm, at which stage, he was confronted, to which observations came from the court regarding the inapplicability of the confrontation due to variance in the nature of the statement.
99. In further crossexamination by ld. Counsel for A4, he admitted R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 52 of 209 that his firm used to supply items to divisionVI, NDMC and they were giving estimates to divisionVI, NDMC and no complaint was received. He stated that he had never given estimate to Compost Plant Division but again said that he did not remember and he might have given estimate to above division. He did not know accused P.K. Mathur and never met him except in the court. Thereafter, in response to further crossexamination he stated that though he met draftsman working in several divisions of NDMC, he did not recollect their names. He had not met any draftsman of DivisionVI and that he had not meet any draftsman in connection with electrical supply. Thereafter, remaining crossexamination conducted by ld. Counsel for other accused was adopted.
100. PW10 Sh. Ashok Mehta, Retd. Superintendent Engineer deposed about photocopy of his report dated 15.02.2008(D7) (page 2 & 3), which he exhibited as Ex.PW10/A. The report contained his signatures at point A and of Jai Bhagwan at point B, whose signatures he identified as having worked with him and seen him writing and signing during officials course of duty. As per his report Ex.PW10/A NIT No. M(CP) AB/1068/D dated 31.01.2005 was not received in the store division, NDMC (mode of report of proof was objected to being photocopy).
101. During crossexamination by ld. Counsel for accused other than A4, he admitted that he was not aware of anything about official R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 53 of 209 proceedings and communication in store division in the year 2005 since he was not placed there in the year 2005. He was not aware as to how many notices of NIT were received in store division between 2001 to 2005 and volunteered it to be a matter of record.
102. He stated that he had given the report on the basis of the report received from Head Clerk and accounts branch of division. The report Ex.PW10/A was prepared by his coassistant whose name he did not remember. The report was prepared on his direction after receipt of the format. He verified personally the report from the dak register. He did not know as to how many NITs were received in the store division in the year 200405. He did not know whether at the relevant time NITs for the above purposes of publicity were used to be kept on notice board nor he knew whether there was procedure for getting the NITs received from the respective XEN of different division for display. Though, he again said that at the relevant time, it was established procedure that NITs used to be sent to all concerned departments for display on their notice boards.
103. He stated that he cannot produce the dak register from which he had verified the nonreceipt of NIT in question. He did not remember whether he had checked the certificate on first page of dak register as to how many pages it contains. He denied the suggestion that procedure of getting NITs received from XEN of different divisions was started after CBI raid in this case. He was not aware whether R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 54 of 209 before January, 2006 the divisions used to display the NIT received from other division including Compost Plant, Okhla division directly on the notice board of the division. He was not aware whether after January, 2006, same was diarized in the store division office receiving the NIT from other divisions and displaying the same on the notice board became mandatory. He volunteered that at that time, he was SDO, a junior officer and was not dealing with NIT. He was not able to remember whether in the dak register any NIT was received during the relevant period for display. The dak register pertains to store division, which he had checked. He denied the suggestion that he had not checked the dak register before signing the report Ex.PW10/A or in the dak register there was no other entry of NIT in this or that report Ex.PW10/A was prepared in routine manner without checking the records or that it was prepared under the threat of CBI without looking into the records and/or that he had signed the report Ex.PW10/A in routine manner due to which only he was not able to remember the details about other NITs. He was not called by CBI at CBI office and he admitted that he had given statement only before the court regarding the matter and was not aware as to who lodged this case and against whom and the nature of the case.
104. In his further crossexamination by ld. Counsel for A4, he admitted that in NDMC, the draftsman of all categories i.e. Civil, Mechanical and Surveyor were working and that draftsman (civil) R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 55 of 209 checks the estimate of civil work and draftsman of electrical checks the work of electrical and draftsman of mechanical checks the estimate of mechanical work. He then volunteered that he was not aware about other draftsman as he worked as civil engineer. He admitted that draftsman of civil looks after the estimate of civil constructions and volunteered that he also used to check NIT and justification in relation to civil work.
105. PW11 Sh. R.S. Rana was working as Assistant director and Scientist (IC) of CFSL, Shimla. In the present case, he had received the questioned documents, specimen hand writing/signatures for examination, which he had examined and given his detailed report alongwith reasons. He exhibited his report bearing No. CS/35/08 dated 24.06.2008 (D16) bearing his signatures at point A and that of Sh.B.A. Vaid, the then Dy. Government Examiner on questioned document at point B, whose signatures he also identified being well versed as he had seen him writing and signing during official course of duties. He then exhibited the report alongwith forwarding letter dated 15.07.2008 (D16) page3 forwarded with signatures of Sh. N.C. Sood, the then Government Examiner at point C, whose signatures he also identified being well versed as he had seen him writing and signing during official course of duties and proved as Ex.PW11/A.
106. He also identified the specimen and hand writing Q1 (D2) already Ex.PW8/A, Q2 (D3) already Ex.PW1/A, Q3 and Q4 (D4) R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 56 of 209 already Ex.PW1/B, Q5, Q5(1) and Q6 (D5) already Ex.PW1/C and Q6A, Q7, Q11 (D6) page 2, which he then exhibited as Ex.PW11/B, which bore his signatures and official seal of Government Examiner as questioned document at point D.
107. He had also seen the specimen documents S21, S26, purported to be of Sh. Vinod Singh (D7) already Ex.PW5/A and had also seen specimen documents S27, S29 (D8), which he then exhibited as Ex.PW11/C. He had also seen specimen documents S 30, S31, S31A (D9) already Ex.PW8/B and specimen documents S 32 to S33 (D10) already Ex.PW9/A and S34 and S36 (D11) already Ex.PW4/A (colly), which all documents bore official seal of Government Examiner as questioned documents which were examined by him and detailed report was given as Ex.PW11/A alongwith their reasons.
108. In crossexamination by ld. counsel for accused except A4, he admitted his report Ex.PW11/A is only with respect to Q5/1. He admitted that his opinion was sought with regard to questioned documents Q1 to Q11, Q5/1 and Q6A. He also admitted that he had not given his opinion in respect of documents Q1 to Q4 and Q6 to Q11 and Q6A as material was not sufficient to give opinion.
109. He admitted that as per report, the author of Q5 Ex.PW1/C and Q5/1 already Ex.PW1/C is the same who was the author of specimen R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 57 of 209 document S22, S26, Ex.PW5/A, Ex.PW11/C, Ex.PW8/B and Ex.PW9/A.
110. He was further crossexamined on 02.02.2018, when he was shown D5 (part of Ex.PW1/C), he admitted that Ex.PW1/C is CX 35/08 (lab case number) and pertains to RC No. 42(A)/2006. He further admitted that he had examined document pertaining to Lab Slip No. CX35/08 only and added that he had used specimen writing mark S27 to S42 of CBI case bearing RC No. 41(A)/2006, which was sent in the Lab Case No. CX34/08. On the query of Court, he further clarified that he had received request from CBI in two cases i.e. RC No. 41(A)/2006 and RC No.42(A)/2006 and in his report he has used specimen from both the cases. He stated that expression "Case RC 42(A)/2006 DLI" was written by CBI before the sample document is sent to them for examination and the same is not written at their end. He was then asked to show any document on court file which had been examined by him on which he might have put seal CX35/08 to show that he examined any document pertaining to RC 41(A)/2006/DLI, to which, he replied that there is no such document pertaining to above RC in record of this case. He was then asked that while examining the document in the present RC (RC42(A)/2006/DLI) except the documents on record i.e. the questioned documents Ex.PW8/A (D2), Ex.PW1/B (D4) and Ex.PW1/C (D3) and S22 to S26 and S27 to S42, the CBI had not R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 58 of 209 referred any other document to him for information, to which, the witness replied that he had received documents S27 to S42 in RC No.41(A)/2006/DLI also for examination. The specimen from S22 to S26 were of Sh. Vinod Singh in RC No. 42(A)/2006/DLI and S27 to S42 were also of Sh. Vinod Singh in RC No. 41(A)/2006/DLI and S1 to S21 in RC No.42(A)/2006/DLI and S30, S31 and S31A of Sh. R.K. Gupta in RC No. 42(A)/2006/DLI, S32 and S33 of Sh. G.R. Garg in RC No.42(A)/2006/DLI and S34 to S36 of Sh. Sanjay Chhabra in RC No. 42(A)/2006/DLI. No other specimen documents were examined in RC No. 42(A)/2006/DLI. He was then inquired of him having examined Ex.PW11/C, Ex.PW8/B, Ex.PW9/A and Ex.PW4/A in the present case, to which, he replied that he had examined these documents, however, no specific opinion could be formed on the basis of these specimen writings/signatures. He was asked that in his report Ex.PW11/A he had referred to S27 to S42 in file CX35/08 and whether it is correct that these documents were Ex.PW11/C, Ex.PW8/B, Ex.PW9/A and Ex.PW4/A, to which, he replied that in his report D16/4 under para 2, there is one typographical mistake i.e. CX35/2008 has been mistyped in place of CX34/2008 as CX 34/2008 is case file number of RC 41(A)/2006/DLI. It is therefore, incorrect to suggest that documents Ex.PW11/C, Ex.PW8/B, Ex.PW9/A and Ex.PW4/A pertaining to RC No.42(A)/2006/DLI. It is affirmed that S27 to S42 mentioned in his report Ex.PW11/A are not R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 59 of 209 Ex.PW11/C, Ex.PW8/B, Ex.PW9/A and Ex.PW4/A S27 to S42 pertains to RC No.41(A) of 2006 of Sh. Vinod Singh Rana and not RC. 42(A) of 2006. He was then asked that whether it is correct that he had not given any report with regard to Ex.PW11/C, Ex.PW8/B, Ex.PW9/A and Ex.PW4/A (S27 to S42) pertaining to RC No.41(A)/2006/DLI being part of judicial record, to which, he affirmed that he had not given any report using these specimen writings.
111. He was then asked that in his report Ex.PW11/A (D16/4 dated 24.06.2008) the documents mentioned as S27 to S42 are entirely different from the documents forming part of judicial file under the same numbers from S27 to S36 which are namely D8/1 to D8/3 to D11/3, to which, witness affirmed stating that two sets of documents are different as S27 to S42 mentioned in Ex.PW11/A is for RC41(A)/2006/DLI and S27 to S36 in this case are for RC 42(A)/2006/DLI. He was then asked whether he had seen the documents S27 to S42 which he claimed to be the documents relating to RC No.41(A)/2006/DLI and having been examined by him, to which, he replied in negative. He was asked that as to whether anywhere in his report Ex.PW11/A, he mentioned that document S27 to S36 sent to him in RC No.42(A)/2006/DLI for his opinion were not sufficient material for giving opinion, to which, he replied that in para 3 of his report where it is mentioned "it has not been possible to R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 60 of 209 express any opinion on rest of the documents on the basis of material supplied" means that the opinion has been expressed only with regard to documents S22 to S26 and not on documents S27 to S36. He was then asked that beside the above report Ex.PW11/A did he prepare a separate report for RC No.41(A)/2006/DLI or whether it was collective report for both the cases, to which, he replied that a separate report was given by some other examiner with regard to RC No.41(A)/2006 DLI and he did not give any such report for RC No.41(A)/2006/DLI. He was asked as to whether documents S27 to S42 of RC No.41(A)/2006/DLI were made part of report while sending his report to CBI, to which, he replied in negative and stated that those might have been sent with report for RC. No. 41(A)/2006/DLI separately. He was then asked that who had sent him documents S27 to S42 of RC No. 41(A)/2006/DLI in this case for examination, to which, he replied that both cases were received by in his Lab from SP, CBI, ACB and Sh. Vinod Singh was common accused in both the RCs i.e. RC No. 41(A)/2006 DLI and RC No. 42(A)/2006 DLI that is how he used S27 to S42 of RC No. 41(A)/2006/DLI for providing his opinion on the questioned documents for RC No. 42(A)/2006/DLI. He was then asked that in RC No. 42(A)/2006/DLI, the CBI had not sent him S27 to S42 part of RC No. 41(A)/2006/DLI for his opinion, to which, he replied that documents S27 to S42 part of RC No. 41(A)/2006/DLI were received by their HoD from CBI and specimen documents of RC No. R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 61 of 209 42(A)/2006/DLI were also received by their HoD simultaneously. These were sent by CBI separately for each case. The HoD exercised his discretion to use specimen documents for one case to study questioned documents of other case, if, in the second case insufficient specimen material pertaining to the same person is received in the lab. In the envelope for RC No. 42(A)/2006/DLI obviously S27 to S42 of RC. No. 41(A)/2006/DLI were not sent. He was then asked that as to how he requisitioned S27 to S42 of RC No. 41(A)/2006/DLI and how these documents came in his possession, to which, he replied that it was brought to the notice of HoD of Lab that the opinion on Q5 and Q5/1 cannot be formed on the basis of specimen writings supplied in RC No. 42(A)/2006/DLI and HoD directed to use the specimen Mark S27 to S42 of RC No. 41(A)/2006/DLI as they were of the same person namely Sh.Vinod Singh. He was then asked to show any document to support his above answer, to which, he replied that HoD Sh. N.C. Sood (since retired) has forwarded the report under his signatures which shows his permission to use documents S27 to S42 for RC No. 42(A)/2006/DLI. Contrary suggestion was denied. It was denied that no person has authority to use documents of one case in another case unless and until it is to requested by the investigating agency. He denied that he had not examined S27 to S42 in RC No. 41(A)/2006/DLI while preparing report Ex.PW11/A. It was denied that he had examined only documents Ex.PW11/C, Ex.PW8/B, Ex.PW4/A and Ex.PW9/A and given his report in the present case.
R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 62 of 209He further denied that he could not name the examiner of documents in RC No. 41(A)/2006/DLI as there was no examiner and/or no separate report was prepared in aforementioned RC and due to that reason the said report was not part of the court record. It was denied that he had no authority for using the documents of RC No. 41(A)/2006/DLI without taking investigating agency into confidence.
112. He further denied that 'reasons for opinion as in para 2' at page 2 of his report Ex.PW11/A were formed after examining the documents S27 to S36 in RC No. 42(A)/2006/DLI. He further denied that documents S27 to S36 were sufficient to express his opinion on the questioned documents. He was then asked that as per procedure and protocol in case the examiner is unable to give his opinion on the basis of insufficiency of the material he is required to convey his inability to the investigating agency so that the investigating agency can choose the course of action, to which he replied that HoD is also a scientist and being the senior most examiner, he can exercise his discretion in a given case in the interest of justice. He was then inquired whether the CBI was communicated in writing or otherwise about the insufficiency of material for giving opinion in case RC No. 42(A)/2006/DLI, to which he stated that it is communicated to CBI in the form of para no.3 of the report Ex.PW11/A. He was then asked that before resorting for help from HoD did he communicate to CBI in writing about his inability to give opinion because of insufficiency of R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 63 of 209 material, to which, he replied that only HoD is empowered and authorized to communicate with CBI and the factum of insufficiency of material was conveyed to the HoD. He denied the suggestion that he never expressed his inability to impart opinion on the material supplied by the CBI in the present case. He further denied that he was making a false deposition to support the report prepared by him which was Ex.PW11/A. He denied that his report is false and fabricated.
113. He was then asked as to whether he can produce the report in RC No. 41(A)/2006/DLI to the court, to which, he replied in negative. However, he denied the suggestion that he cannot produce the report because no such report is in existence. He further denied that report Ex.PW11/A is based only on comparison of questioned documents S22 to S36 and only after comparing the documents which are part of the judicial record he formed his opinion Ex.PW11/A. He further denied that there was no typographical mistake in CX35/2008 in Ex.PW11/A. He was then asked as to whether he can produce record that his report under No. CX34/2008 in RC No. 41(A)/2006/DLI is in existence, to which, he stated that it was not in his possession at the relevant date, whereafter, the crossexamination was deferred, which crossexamination was conducted on 08.02.2018. The witness produced the original case file of CX34/2008 in RC No.41(A)/2006/DLI which comprised opinion/report (10 pages) and letter dated 06.02.2008 from CBI comprising six pages, which he then R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 64 of 209 exhibited as Ex.PW11/D (colly) (OSR). He had also brought photocopies of specimen signatures and handwriting sent by CBI for preparing report, original thereof, were returned to CBI in RC No. 41(A)/2006/DLI, which were then Mark X (16 pages). The witness was again called for further crossexamination on 24.05.2018 and was asked that mark X letter dated 06.02.2018 pertains to RC No.41(A)/2006/DLI and the documents with admitted signatures and questioned documents pertain to tenders and quotations for servicing and overhauling the incinerator and other accessories of the incinerator and were not the subject matter of present RC which is RC No. 42(A)/2006/DLI meaning thereby, that questioned documents in RC No.41(A) were not the questioned documents in RC No.42(A/2006/DLI), which fact was admitted by the witness. He was then asked that specimen documents were handwritten documents of the questioned documents in RC No.41(A)/2006/DLI, to which, witness again replied in affirmative and elaborated that the specimen documents in RC No. 41(A)/2006/DLI also contained signatures reading "Rajiv" and "Anil" executed by Sh. Vinod Singh in addition to the extensive specimen handwriting. He was then inquired that in RC No. 42/2006/DLI the characters "Anil" and "Rajiv" did not exist in the questioned documents and as such no specimen handwriting of these two words was sent to him for examination, to which, the witness answered in affirmative and elaborated that alphabets "A, n, i, l, R, a, j, i, v" were there in the questioned documents of RC No. R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 65 of 209 42/2006 and hence, used for report. He was then asked whether his opinion was sought on the author of the signatures "Anil" and "Rajiv" in RC No. 42(A)/2006, to which, the witness answered in negative. He stated that he was not aware that in RC No. 41(A)/2006 CBI had given cancellation report which was accepted by the Court. He was then asked that S27 to S42 were sent to him only in RC No. 41(A)/2006 as mentioned at each page of the specimen signatures at the top, to which, he replied in affirmative. He was then put a question that he made a false statement on 02.02.2018 that separate report was given by some other examiner with regard to RC No. 41(A)/2006/DLI, to which, the witness replied that the report in RC No. 41(A)/2006 was not before him on the date of his deposition on 02.02.2018. He was the main examiner in that report, though the same was signed by other examiner Dr. B. A. Vaid, while the signatory on Ex.PW11/A were he and Dr. B. A. Vaid.
114. He was then asked as to whether he has made report in writing qua this question to Sh. Vaid and Sh. Sood and/or any other superior authority that there has been any typographical mistake "CX35/2008 (RC No. 41(A)/2006 DLI) which should have been CX34/2008, to which, the witness replied that Sh. Sood and Sh. Vaid had retired about five years ago. There were no directions available in the department to report about the testimony recorded in the court and he had not informed the superior authority about clerical mistake pointed R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 66 of 209 out by him while recoding testimony on 02.02.2018.
115. He was then examined that the entire records of the department regarding RC No. 42(A)/2006 maintains the record in consonance with Ex.PW11/A and there is no correction as proposed by him in his crossexamination, to which, he replied that during his cross examination on 02.02.2018, it was observed by him that in Ex.PW11/A, reference to CX35/2008 is made as against CX 34/2008. He corrected this typographical mistake in his record and he had corrected CX35/2008 to CX34/2008 at point A, so that for future reference this mistake is not repeated. The photocopy of letter dated 24.06.2008 showing the correction to the typographical error made by him was then exhibited as Ex.PW11/D1. He stated that the correction was carried out after the hearing in the case was over. Probably, it was on the day when his evidence was recorded. He was the custodian of the file. The record room was also under him. The correction was not initially by him. Since he is the main examiner, he did not feel the need to bring the same in the notice of his senior authority and no corrigendum of this correction has been issued till the date of his statement. He denied that he had committed any tampering or forgery in the official record to protect himself and his statement which he made before the court. He denied that he had no authority to make such corrections, as the same was also signed by Mr. B.A. Vaid. He stated that the correction was not brought to the notice of Mr. B.A. R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 67 of 209 Vaid, who had retired five years back. He could not produce any document to show that he was the custodian of the record. He then elaborated that an entry is made in the register when the records are taken for deposing in the court on receiving summons but till the time the evidence in that case is being recorded every time for court hearing entry is not made and the last entry is made when the evidence is concluded in the case. He stated that he can produce the said register if the court so directs, at which stage, request was made by ld. counsel for production of the register in which the witness had made entry before taking the record for deposing in the court was made, which was refused by the ld. Predecessor with liberty to the defence to summon the relevant register during their deposition and/or at any other appropriate time in accordance with law.
116. The witness replied that record Ex.PW11/A in his official custody since the day he received summons from the court to appear as a witness. The suggestion that the documents were in his personal possession and it was not within the knowledge of the department was denied by the witness. It was denied that he was making a false statement.
117. PW12 Sh. D.K. Sharma deposed that at the relevant time he was posted as Technical Officer in CBI, ACB. On 06.05.2008, he alongwith Insp. Sandeep Chaudhary, Kishan Lal, Prem Nath, Y.K. Sabarwal visited NDMC, Compost Plant, Okhla. There, a memo and R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 68 of 209 inspection report were prepared which were signed by all the above concerned officers including him.
118. He stated that still photography and videography of work of earthing of power and take off of TA machine with GI strips, repairing of hand tower ledeer (SAndli), P/F and commissioning power contractor ML 6 of 100 power amp. capacity of of L&T make to power capacitator bank no.1 at E/S/S 11 KV at Compost Plant. The photographs of aforementioned power take off points with earthing points, sandli and power capicatator pertaining to above mentioned works which were 12 in numbers were signed by him and other concerned officers and stated that he can identify the same if it is shown to him.
119. He was shown then shown inspection memo dated 06.05.2008 (D12), which bore his signatures at point 'A' and was exhibited as Ex.PW12/A. He stated after seeing inspection report that the said report was prepared by him in consultation with Sh. Y.K. Sabarwal, the then AE (Electrical), which bore his signature at point 'A' and was then exhibited as Ex.PW12/B.
120. He stated that they had visited the same plant and inspection memo and report were prepared. He disclosed, the inspection memo dated 11.02.2008 (D18) page1 bearing his signatures at point A which he exhibited as Ex.PW12/C and the inspection report dated R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 69 of 209 11.02.2008 (D18) page 2 bearing his signatures at point A, which he then exhibited as Ex.PW12/D. He was shown 19 photographs (D19) which bore his signatures at point 'A' on all the photographs' overleaf which were taken at the time of visit to the Compost Plant, were collectively exhibited as Ex.PW12/E (colly).
121. In his crossexamination by ld counsel for accused except A4, he admitted that the inspections were carried out on 06.05.2008 and 11.02.2008. He admitted that when he reached the said Compost Plant was closed and no work was going on and it was shut down completely and that, there was a security guard at the barrier of the entries, however, no entry register was maintained and hence, they did not make any entry in the register. The guard did not inquire from the inspecting team the purpose of visit. He admitted that the inspection team visited the Compost Plant to find whether the work was executed or not as was stated in the FIR and during the inspection, they found that work had been done for earthing of Compost Plant. The main inspection job was to find out around of 12 points which they found the same to be there. The witness was not subjected to cross examination by ld. Counsel for A4 on the said date, however, he was crossexamined on 03.11.2017 by ld. Counsel for A4 in which he stated to have known Sh. D.C. Sharma who was involved in NDMC case. He met A4 on 06.05.2008 at Compost Plant, Okhla in connection with inspection. He denied the suggestion of having made R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 70 of 209 a false statement regarding meeting A4 Sh. D.C. Sharma or that he did not inspect Okhla Compost Plant on 06.05.2008. He was not aware of the designation of A4.
122. He was then shown report Ex.PW12/A. The witness stated that by clarical mistake under his signatures at point X to X in place of D.K. Sharma, D.C. Sharma is mentioned. He admitted at point X to X, the reference was to him and not for accused D.C. Sharma. He narrated the same in respect of Ex.PW12/C (D12) wherein also at point X to X the name Sh. Dinesh Chand Sharma was mentioned in place of Dinesh Kumar Sharma. He admitted that Ex.PW12/A D12 does not bear the signature of A4. His presence is not recorded in exhibited document. The suggestion that the accused was not present during inspection was denied and it was stated that it was the role of the witness to record the presence on any document.
123. The witness further deposed that Ex.PW12/B (D12/2) has been prepared by him on 06.05.2008, wherein also, the presence of Sh. D.C. Sharma is not recorded. He had recorded the presence of A2 P.K. Mathur at point X and that of A1 S.C. Jain but again stated that he recorded the presence of Y.K.Sabarwal and not S.C. Jain. The presence of S.K. Aggarwal was also recorded on Ex.PW12/B at point Y. He was then shown the photograph Ex.PW12/E (D19) in which D.C. Sharma was not photographed. On 06.05.2008, witness was R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 71 of 209 posted as JE in CBI. He denied the suggestion that he was making a false deposition that D.C. Sharma was not posted at Compost Plant and the absence of signatures of Sh. D.C. Sharma of any exhibits showed that he was not present at the time of inspection.
124. PW13 Sh. Anil Kumar narrated that in the year 1991 one of his relatives Sh. Praduman Singh, Proprietor of M/s PCM services brought him to Delhi. He was doing the business of electrical works, maintenance, supply etc. He worked with M/s PCM Services till 1996 and after a couple of year, he again joined and continued with M/s PCM Services till the May, 2000. From 1996 November to 1997 November, he worked with M/s Shatabdi Switch Gears situated at Kalkaji.
125. He stated that during the period of his working with M/s PCM Services, he used to visit Compost Plants, NDMC and attended electrical works on the directions of his proprietor, where he came in contact with one Malhotra, JE; Sh.Gulati, AE, NDMC and after their transfer from NDMC, he came in contact with A1 S.C. Jain, Manager, Compost Plant, NDMC, A2 Pradeep Kumar Mathur, AE, A3 Yad Ram, JE whom all he identified as person and their other staff. He stated that electrical and maintenance work was done under supervision of A3 Yad Ram, who was the Head of Electrical Department at NDMC Compost Plant and they used to receive payment by cash. He stated that almost all the electrical R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 72 of 209 work of Compost Plant was done by him and whenever A3 Yad Ram and S.K. Aggarwal required any job work, they used to tell him to do the work and give payment by cash.
126. In the month of May, 2000 he left the services of M/s PCM Services and started his own firm in the name of M/s Bhawana Electricals. Since he was knowing all electrical work of Compost Plant, A3 Yad Ram started giving him work and he used to do the job and got payment in cash and on some occasions he was given other work on work order basis for which instances the payment was made by cheque also.
127. He was then shown D4 hand writing letter/quotation of photocopy of his letter having impression of Bhawana Electricals, 20A, Pocket B, Mayur Vihar Phase3, Delhi110096 already Ex.PW1/B, whereafter, he replied that neither handwriting on the said letterhead belongs to him nor to any person known to him. The signatures purported of him at point A were stated to be forged. He had no knowledge as to how it was placed in the departmental file of NDMC as he had never submitted the said quotation to Manager, Compost Plant, Okhla, New Delhi. He stated that the letter/quotation is forged. He revealed that CBI had taken his specimen signatures and hand writing which he identified as D8 (page 1 to 3) /S27, S29 already Ex.PW11/C. He stated that the specimen signatures hand writing shown bear his signatures at point A, which he had given R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 73 of 209 voluntarily for comparison.
128. In his crossexamination by ld. Counsel for A4, he stated that while he was working with M/s PCM Services, no payment was received in cash, though, he admittedly said in his examinationin chief. He was not able to remember the details about what amount of cash he received on first occasion from whom and for which nature of work and stated that these details have been given to CBI earlier. He stated that on memory basis he had provided the details to CBI. He was not maintaining any cash book or record for that purpose. He could not tell from the year 20002006 how many times he might have received payment from NDMC officials in cash as well as nature of work performed by him. He did not remember the minimum or maximum payment received in cash. He was not issuing any cash receipt. He stated that he was not maintaining record as the cash used to disburse to labourers. The articles for repairs were provided by NDMC from store and he was not providing any article for repair.
129. He had no other documentary proof except Ex.PW1/2 work order to show that he had worked for NDMC for which payment was received by cheque. Since considerable time has elapsed, he could not bring any labour who worked with him for NDMC in the court. He had no receipt in written communication from NDMC for doing the work for which he was given payment in cash. He admitted it as correct that he did not remember the nature of work he did for NDMC R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 74 of 209 and what payments were received in cash by him. The suggestion that there is no practice in NDMC or any govt. department to pay in cash was denied by him. He was not knowing any other contractor who was given payments for work done in cash by NDMC. He had seen photocopy of work order dated 02.07.2002, 05.06.2003, 01.06.2004, 03.07.2004, 21.07.2005 and replied that these work orders might have issued in his favour, whereafter, the work order (two pages in total) as mark DX.
130. He admitted his signatures on work order dated 03.07.2004 and 21.07.2005. He admitted that he has realized the payment against each and every order and nothing is pending. He admitted his letter dated 27.10.2006 requesting NDMC to give him TDS certificate for financial year 200506, which was exhibited as Ex.PW13/DX1. He denied that signatures at point A on Ex.PW1/B and at point B on mark DX are same. He denied that Ex.PW1/B was given by him to NDMC under the pressure of CBI.
131. He admitted nature of work mentioned in Ex.PW1/B carried by him in Compost Plant for NDMC. He narrated that the author of Ex.PW1/B knew about what kind of job he was having expertise and was doing for NDMC and denied that apart from him no other person knew for his expertise for electrical work.
132. He narrated that he could not say whether the rate mentioned in R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 75 of 209 Ex.PW1/B is the standard rate for work mentioned in Ex.PW1/B. CBI not made any enquiry from him about the rate mentioned in Ex.PW1/B being the standard rate. He admitted that Ex.PW1/B is not tender document to quotation of estimate rate for work mentioned therein.
133. He denied that Yad Ram, S.C. Jain, P.K. Mathur never dealt with in cash and that Yad Ram was a junior official in NDMC and he had no authority for issuing him work or work order, though, he admitted that work orders are issued after a decision of committee in NDMC. He was not crossexamined by ld. Counsel for A4.
134. PW14 Sh. Mahender Gupta deposed that he was supplier of spare parts to the Government offices and was working with Sh.Anil Nischal in the name of firm M/s Accurate Sales which was opened by Anil Nischal in his proprietorship and he alongwith Sh. Anil Nischal did some electrical and mechanical work.
135. He was shown the application and paper pertaining to purchase of tender document (D15) page 76, which he admitted was bearing his signatures at point A and he then exhibited it as Ex.PW14/A. He also admitted the tender documents (D15) page 42 to 48 bearing his signatures alongwith seal of Gupta Trading Company at point A on all pages, which was then exhibited as Ex.PW14/B. He stated that the rate of tender quoted by him was approximately 3% to 3.15% above R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 76 of 209 the estimated cost of tender of Rs.1,27,220/. He was not aware about any wrong dealing with respect to tender at NDMC. He was then crossexamined by Ld. PP, wherein he denied having made any statement to Sh. Sandeep Chaudhary, Inspector, CBI. He was shown statement dated 09.02.2007 recorded by Insp. Sandeep Chaudhary under Section 161 Cr.P.C., which he denied having made, which was thereafter marked PW14/PX. He then stated that his statement was recorded by Sh. S.K. Khullar, Inspector Police, CBI dated 17.06.2014, which he admitted having made and was exhibited as Ex.PW14/PX. He denied that the accused and other NDMC officials used to make exaggerated estimate and used to take commission from the contractors. He denied having knowledge of accused procuring estimate from nonexisting firm or forged contractors without their knowledge. He denied that he was beneficiary of wrong deeds of accused due to which he was making false statement.
136. During his crossexamination by ld. Counsel for accused except A4, he admitted that tender document Ex.PW14/A was purchased on payment of price from NDMC, Palika Kendra and for other tenders also he used to purchase tender document as at that time tender documents were not available online. He stated that he had given his tender on the basis of best price after survey of market. He admitted that in past several of his tenders were accepted and several were rejected and he had no grievance against NDMC officials. He stated R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 77 of 209 that none of the accused ever demanded bribe from him nor they hold payments of his bills. He stated that he had no communication with the accused persons as he was preparing his bills and presenting them to Accounts for getting cheques. There was no crossexamination by ld. Counsel for A4.
137. PW15 Sh. T.R. Meena, Executive Engineer, RIII, Palika Kendra deposed that on 06.06.2008 he was posted in RIV Division as Executive Engineer, NDMC and was thereafter transferred to RIII Division, where he remained till March, 2011.
138. Reports dated 19.02.2008 and 26.02.2008 regarding receipt of NIT No. M(AB)/1068/D dated 31.01.2005 in RIII and RIV Divisions were prepared by him. The said report was then exhibited as ExPW15/A (Colly2 pages). His reports dated 19.02.2008 and 26.02.2008 (D17) page 22 to 24 were already marked Exs.PW6/DA and PW6/DA1. Part of his report at D17/23 was then marked Ex.PW15/B. He stated that all the reports bear his signatures. He stated since the record of receipts in their office did not show receipt of NIT No.M(CP)/AB/1068/D dated 31.01.2005, the some were not received in RIII and RIV Divisions. He was crossexamined by ld. Counsel for all accused except A4, wherein he stated that noting Point X to X1 at D17, 22 (Ex.PW6/DA and Ex.PW6/DA1) (D 17/24) is of his office and he had signed the same. He admitted that he R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 78 of 209 had signed the notes after verifying the record.
139. He was then crossexamined by ld. counsel for A4, wherein he stated that the role of draftsman is to scrutinize NIT by subject division office. The draftsman can carry out correction in calculation or any other error as well as nomenclature of each item in NIT. The estimate and NIT are made by JE and AE, which are checked in the office of EE by draftsman. He denied that estimate made by JE/AE on the basis of market rate cannot be changed by draftsman. He was shown Ex.PW1/D (D15) method of pipe earthing and stated that the estimate of this drawing was prepared on the basis of market rates as mentioned in page 140 as the draftsman has given estimates on the basis of market rates given by JE/AE, Compost Plant. He stated that he cannot say whether these were the market rates at that time. The Compost Plant was never under him so he cannot say that no draftsman was posted in Compost Plant. He admitted that for advertising NIT in different divisions draftsman has no role which is to be done by office of EE through accounts office.
140. PW16 Sh. Y.K. Sabarwal revealed that on 13.02.2008, he was posted as Assistant Engineer (Electrical), NDMC and retired in February, 2016 as Executive Engineer (Electrical). The estimate of electrical schedule items was prepared as per CPWD SR94 after calculating the cost index.
R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 79 of 209141. He revealed that the electrical items which are covered under scheduled rates, the estimates are framed on the rates given in the schedule. The items which are not covered under the schedules rates, the estimates are framed on the basis of market rates after collecting the quotations or consulting the price list of the firm for different items.
142. He was shown Ex.PW12/C (D18/1, memorandum dated 11.02.2008. He identified his signatures thereupon at point X and stated that memorandum was prepared before carrying out inspection of item no. 1, 2 3 and agreement no. M(CP)/AV/37 of 2004 to 2005 earthing of pillars of compost plant at Okhla. He was then shown document D18/2 (part of Ex.PW12/D) with his signatures at point X, in response to which, he replied that inspection report was prepared on the basis of CPWD Schedule Rate 94 (Electrical Internal) plus cost index. The witness was then shown letter dated 12.02.2008 (D13), on which, he identified his signatures on the said letter at point A as well as on Annexures D13/2 & D13/3 and the said letter with annexures was then exhibited as Ex.PW16/A (colly).
143. He further revealed that rate analysis of item no.1 consisting three items is based on CPWDSR94 (CPWD Scheduled Rate 94) internal electrical installation). The rate calculation is on the basis of SR94 for item no.1 works out to be Rs.1,8,28/. WPI (Whole Sale Price Index) in December, 1994 was 111.2 as issued by government of R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 80 of 209 India whereas, in December, 2004 it was 188.8.
144. He replied that similarly rate for item no.2 consisting eight items of total cost was Rs.11,205/. These rates were based on prevailing market rates at that time. The rate of repairing of aluminum tower ladder (SANDLI) calculated after including VAT etc. The rate of other articles like pullies was calculated as per the market rate.
145. Similarly, rate for item no.3 consisting one item and rate of this item has been calculated as per market rate price index dated 11.11.2004 and works out to be Rs.7,707/. This rate comes after giving the profit of ten percent to the contractor and tax (CESS) 1%.
146. During his inspection, it was found that earthing is found on eight feeding pillars, each pillar is connected with two number of earthing. PSI Mark bricks are used in masonry chambers. It was found that there is no locking arrangement for covering on brick masonry chambers. The witness was shown first and final payment bill under agreement no. M(CP)/18/33 of 20042005 which was for a sum of Rs.96,000/ and he replied that as per their analysis, the bill on the higher side in as much as my report shows it to be Rs.29,248/.
147. He was then shown price of item no.2 which is Rs.17,435/ and he replied that it should be Rs.11,205/. On being shown item no.3, which is Rs.15,385/, he replied that as per his report the same should be Rs.7,707/. For item no. 4, amount of Rs.15,000/ was paid as per R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 81 of 209 bill and he replied that as per this bill, he was not able to say as the same was dealt with his separate division of NDMC. He did not recognize the signatures on bill which was part of file Ex.PW1/D at page no. D15/20.
148. The witness was then shown quotation dated 27.12.2004 on the letterhead of the firm namely United Electrical and Mechanical Works on the basis of which estimate has been prepared by the Junior Engineer, to which, he stated that this quotation does not bear the item specifically, the rate of item no. 1, 2 & 3 are taken as Rs.8,000/, Rs.17,435/ and Rs.15,385/ respectively which are taken at much higher side. The document was already exhibited as Ex.PW8/A (D 2/85). Thereafter, the estimate prepared on the basis of above mentioned quotation was shown to witness already Ex.PW3/A, to which, he stated that this estimate covers the document from D 15/87 to D15/91. The document on page no. D15/88, D15/89 & D 15/91 were also part of this estimate Ex.PW3/A (colly) and the rates mentioned in this estimate dated 27.12.2004 prepared by the JE (Compost Plant) Okhla are available in CPWD, SR94 Schedule Rate whereas the rate taken is on the basis of market rate. He further stated that rates taken for item no.2 are the market rates while the individual items are mentioned for item no.2, the individual rates were not mentioned. In connection with the work pertaining to the repairing, he pointed out that it is not mentioned whether the item is to be R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 82 of 209 changed or repaired.
149. In regard to item no. 3, he stated that the quoted rate mentioned in above estimate at the rate of Rs.15,385/ in the questioned schedule of work is on higher side in comparison to price rate of Rs.6,850/ and the rate analysis on the basis of the market rate is Rs.7,707/.
150. He was then shown Ex.PW1/A (D3) which is quotation of M/s ARCEE Trading Corporation, Ex.PW1/B quotation of M/s Bhawana Electricals and Ex.PW1/C quotation of M/s Divya Sales Coronation.
151. He was also shown justification of tender D15/28 prepared by the then JE, Composts Plant, to which he replied that in his opinion the same were on higher side in comparison to Ex.PW1A to Ex.PW1/C, at which stage, further examination was deferred and he was summoned again.
152. In his further examinationinchief recorded on 22.09.2017, he was shown a quotation on the letterhead of Bhawana Electricals. The quotation was addressed to the Manager Compost Plant, Okhla, New Delhi and was total amount of Rs.1,29,098/ for performing the different works mentioned in the quotation which was already exhibited as Ex.PW1/B.
153. He was similarly shown another quotation which is on the letter of M/s Divya Sales Corporation, 1751, Bhagirath Palace, Delhi 06 for R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 83 of 209 an amount of Rs.1,29,580/ already exhibited as Ex.PW1/C.
154. He replied that normally all the entries of work done are recorded by the JE in Measurement Book (MB). Signatures of the contractor are also obtained in the measurement book.
155. He was then shown the document D18/1 which was memo of inspection dated 11.02.2008 (already Ex.PW12/C), on which witness identified his signatures earlier marked as X.
156. He was then shown a document D18/2 which was Inspection Report already exhibited as Ex.PW12/D on which he identified his signatures earlier Marked X.
157. He stated that during inspection on 11.02.2008, the length of GI Pipe was found only 40 cm on an average instead of one meter as per schedule.
158. He stated that firstly the bill is prepared by a JE which is then submitted to AE, who then forwards the same to Manager, Compost Plant. He narrated that all physical works were done by the contractor, whereas, the checking of the entire work (100%) was done by the JE, AE was responsible for conducting 50% of checking, whereas the EE of equivalent were responsible for checking 10% of the work.
R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 84 of 209159. The witness is shown a document at page no. 20 which was first and final bill of work of "earthing, repairing of tower/ladder (Sandli), providing and fixing of power contractor, dismantling of exhaust fan of split AC installed towards the stairs" prepared and checked by AE, Executive Engineer, which he stated that it bears the signatures of the then AE and Executive Engineer/Manager, Compost Plant, whereafter, the document was marked Mark A. He further stated that on the basis of this document i.e. Mark A, the then Executive Engineer/Manager, Compost Plant prepared the test check statement for the item no.3/4. He narrated that this document also bears the signatures of the then Manager, Compost Plant, whereafter, it was marked as Mark B. He stated that similarly on the basis of first bill test check statement, which is available on page 17, prepared by the then Asstt. Engineer for three items of total amount of Rs.1,28,820/ also bears signatures of the then AE, whereafter, the document was marked as Mark C. He specifically stated that the payment was made to contractor on the higher than the rates as per norms of CPWD.
160. The witness was shown a document D12/1 which is inspection memo, on which he correctly identified his signatures at point B. The document was already Ex.PW12/A. He affirmed that inspection conducted in his presence and the inspection memo was prepared in his presence as well, whereafter his examinationinchief was R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 85 of 209 deferred.
161. This witness was then summoned for further examinationin chief on 30.10.2017, on which date, he was shown document D19 which was earlier exhibited as Ex.PW12/E (colly) containing 19 photographs of site inspection dated 06.05.2008, on which, he stated that each photograph bears his signatures at point B (objected to by ld. Counsel on the ground that the negatives of photographs are not on record and on manner and mode of proof).
162. He was then crossexamined by ld. Counsel for A4. He was enquired about the number of divisions in NDMC, to which he replied that there are several departments in NDMC and the departments have divisions and the electrical department has 23 divisions. He stated that he is unaware about the number of divisions in Civil/Mechanical Division.
163. He then narrated that a draftsman is covered in 'office staff', who mainly checks the estimate prepared by JE and AE. If the item is scheduled item, then estimate is prepared on the basis of scheduled rates otherwise estimate is prepared on the basis of market rates. According to him, estimates are prepared either on scheduled rates or market rates. Making of drawings is also part of duties of a Draftsman.
164. The witness was then shown D15, page 87 'method of pipe earthing' Ex.PW1/D and was asked whether the same is photocopied R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 86 of 209 from a book, to which, he replied that the said drawing was photocopied from Internal Electrical Specifications of CPWD and admitted that said drawing involved all the three works namely electrical work, mechanical work and civil work.
165. He was then shown D15 page no.90 of Ex.PW3/A and replied that the estimate is prepared by JE but AE being incharge forwards it to the EE. This estimate is prepared on the basis of market rates and then volunteered that however, it is a scheduled item.
166. In reply to query whether he can show any scheduled rate for carrying out the work of the drawing 'method of pipe earthing' collectively covering engineering, mechanical and civil work, he replied that this is a scheduled item of CPWD covering all the three works and the same is in SR94D13/5 Ex.PW16/A (colly).
167. He admitted as correct that coal, charcoal and salt were not covered in this scheduled item and volunteered that these three items are added to decrease earthing resistance.
168. He then stated that repairing of hand tower is not covered in scheduled rate item and admitted as correct that providing fixing and commissioning of power contractor is also not a scheduled item. Besides dismantling of AC Split type and refixing was also stated to be a nonscheduled rate item. He stated that the estimates for all these four above works were given by the JE on the basis of market rates R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 87 of 209 and he could not say who had prepared History sheet at page 91 of D 15 which was Ex.PW3/A. He narrated that the said document shows that the designation of AE and EE (Compost Plant) is written on it.
169. He replied that he was not aware as to whether any draftsman was posted for the Compost Plant from the very beginning itself or not. He stated that EE forwards the estimate to draftsman for verifying the same on his behalf and volunteered that History sheet is also a part of estimate. He affirmed that Manager (Compost Plant) is an equivalent post with EE.
170. He was then shown D15 page no. 91 along with estimate of Ex.PW1/D (note sheet number from 1 to 11), to which he admitted as correct that the Manager (Compost Plant) has sent the estimate to draftsman as per note sheets on page no.1. He further admitted as correct that Extract of cost original/preliminary detailed estimate, details of measurement, drawing and quotation of United Electrical and Mechanical Works were sent to the draftsman for checking the market rates alongwith history sheet by Manager (Compost Plant). He further affirmed that as correct that it is mentioned on the exhibited document that the draftsman has made a note that the estimate is based on market rate as attached and replied that he cannot say whether it was written by draftsman or not.
171. In response to a query that a draftsman was to check the R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 88 of 209 calculation of estimate as provided in the estimate, market rate and he put the note accordingly, he replied that draftsman works on behalf of EE and he has to suggest whether estimate prepared is correct or not. The draftsman should have suggested that it is a scheduled item and estimate cannot be prepared on the basis of market rates.
172. He denied the suggestion that draftsman is subordinate to a Jr. Engineer in hierarchy and stated that he is directly under the EE. Qua the noting at point A to A, he stated that it is at page no.1 to D15 by the draftsman and has been checked as per market rate quotations. From the document it is so mentioned in this document that the detailed estimate was put up before Technical Section by the Manager (Compost Plant) but stated that he does not have personal knowledge about this.
173. He was then shown page 2 part of D15 whereafter he stated that he has no personal knowledge of the same and further stated that for the entire noting, he has no personal knowledge.
174. He was then shown D18/1 on which he stated that he had visited the Compost Plant on the directions of Vigilance Department, NDMC and since he had retired in the year 2016 he did not have written directions for visiting the Compost Plant.
175. He was then enquired about at the time of his visit to the Compost Plant was there any role carved out for a draftsman at the R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 89 of 209 site, to which he replied that a draftsman is supposed to work in the office and not in the field.
176. Qua the question that the role of a draftsman is to check the calculation in the estimate, he replied that if the estimate is wrongly prepared then calculating the estimate will serve no purpose.
177. He narrated that in case of a particular division, if there is no draftsman then the estimate is got verified from the draftsman of other division or Planning Division. He could not say whether no draftsman was ever posted in the Compost Plant. He also could not say that the estimate for Compost Plant was got verified from the draftsman of civil division. He then admitted that the draftsman is subordinate to a JE, AE, EE and Manager (Compost Plant) and the quotations are addressed to EE/Manager (Compost Plant) and a draftsman has nothing to do with the parties giving quotations. He admitted that the draftsman does not visit any site and works in office. He stated that the draftsman checks Notice Inviting Tender (NIT) on behalf of EE/Manager (Compost Plant). The tenders are invited by Divisional Head and a draftsman has no role in that.
178. In reply to question that draftsman has no role in selection of a contractor, he stated that the draftsman checks the tenders to verify whether they are in order or not and explained that "in order"
means whether he has given all the required documents with the R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 90 of 209 tender or not. He had not dealt with tender at Page 81 of D15, Ex.PW1/DA and could not say whether any document was required to be furnished with the tender or not. He further stated that in tender publication, AE/JE or draftsman has no role and that the tenders are floated under the signatures of EE and AE, JE and are his subordinate staffs who render assistance till pretender stage.
179. In response to the question that a draftsman has no role in publication of notice inviting tender, he repeated that all the NITs are under the signatures of EE and a draftsman has no direct role in publication of NIT.
180. He stated that he cannot say anything on the suggestion that Sh.Dinesh Sharma (A4) was posted as Draftsman in Civil Division VI and never posted in Compost Plant. His further crossexamination was deferred.
181. He was called for his further crossexamination on 13.11.2017, on which date, he was crossexamined by ld. Counsel for A2, A3 and A5. He stated that his vigilance department directed him to join the CBI team for inspection in the present case and that there was no written order to this effect.
182. He stated that he met Sh. Sandeep Chaudhary on his visit to CBI office at first instance, though he did not remember the date of his visit however, it was stated to be available in the records.
R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 91 of 209183. He denied the suggestion that without giving his independent thought he made statements, prepared documents and gave reports before CBI on the instructions of Chief Engineer Sh. Jindal. He further denied that there was enmity between Sh. Jindal and Sh. S.C. Jain and on the instructions of Sh. Jindal he made false statements and reports.
184. He stated that the day he met Sh. Sandeep Chaudhary in CBI, inspection was conducted at compost plant. He did not remember whether he had signed any document in CBI office or given any statement before proceeding to Compost Plant.
185. He affirmed that whatever statements he gave to the CBI were given after the inspection and prior to inspection he had not given any statement or signed any document in the CBI office. He denied the suggestion that whenever he visited CBI office, he was accompanied with Sh. Jindal.
186. He then stated that since he was Assistant Engineer (electrical), he was associated with CBI to render technical assistance. He stated that at the time of visit to the compost plant, it was not working. He did not remember whether he found any workers inside compost plant and volunteered that there might be some chowkidar.
187. He stated that he did not know whether the compost plant is spread to 18 acres. He did not observe any garbage at the compost R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 92 of 209 plant at time of his visit and volunteered that they had visited only the area for inspecting electrical pillar where earthing work was executed.
188. He stated that as a technical person, the electrical bores were not dug to find out the depth and volunteered that it was not possible.
189. He stated that he did not remember whether there was a boundary wall around Compost Plant. He did not know whether after retirement of Sh. S.C. Jain in November, 2005, the compost plant was shut down and there was no staff or any security guard at the compost plant.
190. He denied that the rates of item no. 2101 i.e. earthing with G.I. Pipe (EARGIPIP) in SR 94 were exclusive of digging the bore prescribed in the drawing supplied with the schedule of quantity and stated that it is complete work. He was then asked to support his answer with some documentary evidence, to which he replied that it is scheduled rate items. CPWD schedule is the document in question. (At that time, an observation was recorded that the witness has referred to schedule of rates for electrical work (part1 internal 1994) and has submitted that the description of item 2101 at internal page 46 at 2101 is self explanatory and reads as "Earthing with G.I. earth pipe 4.5 mm long x 40 mm dia including accessories, and providing masonry enclosure with cover plate having locking arrangement and watering pipe etc. (but without charcoal or coke and salt) complete as R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 93 of 209 required").
191. His reply was same regarding the excavation would have been specifically mentioned therein. He was then confronted with CPWD, Delhi Analysis of Rates (electrical) 2012 then exhibited as Ex.PW16/D1 (03 pages) and asked to go through the same and explain as to whether the excavation and refilling part is included in this earthing without charcoal/coke and salt. After going through the same he replied that the excavation and refilling part is included in the labour rates given in the analysis of rates. The contrary suggestion was denied.
192. He admitted that there are separate rate analysis for earthing with charcoal/code and salt and earthing without charcoal/coke and salt.
193. He was then confronted with chapterVearthing "providing and fixing 25 mm x 5 mm G.I. strip in 40 mm dia G.I. Pipe from earth electrode.... as required", which is given Ex.PW16/D2. He admitted that Ex.PW16/D2 is also a rate analysis of scheduled item and further stated that despite being scheduled item the excavation and refilling part is specifically mentioned at point A to A1.
194. He was then shown Delhi Schedule of Rate (E&M) 2014 Chaptervii, page 347 titled as M.V. Cable Laying, on which he stated R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 94 of 209 that the item is a scheduled item and was then exhibited as Ex.PW16/D3. He admitted as correct that the rates analysis has been done after taking into consideration excavation, sand cushioning, protective covering and refilling the trench etc.
195. He was then shown chapterVII titled as M.V. Cable laying from Delhi Analysis of Rates (Electrical) 2012, page 26, on which he admitted that item mentioned as 7.1 is a scheduled item, which was then exhibited as Ex.PW16/D4. He admitted that the rate analysis has been done after taking into consideration excavation, sand cushioning, protective covering and refilling the trench etc. are required is specifically mentioned.
196. He was asked what violations and shortcomings were observed by him during his inspection at the Compost Plant, to which, he replied that the pipe for the earthing was already under the earth and no violation or short coming as such could be found out.
197. He admitted that he visited the spot alongwith CBI officials counted the pillars, took photographs of all the pillars alongwith the inspecting team and came back.
198. He was asked what assistance he rendered to CBI being technical expert at the spot, to which, he replied that since the specification, length, quantity awarded and executed could only be assessed after seeing the work awarded to the contractor and he had R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 95 of 209 not seen the contract awarded to the contractor before visiting the compost plant, which contract he had seen the contract later on during inquiry subsequently to his visit to CBI office.
199. He was then asked whether after visiting the Compost Plant, did he compare the NDMC records with the inspection report, to which he replied that he prepared estimate for earthing work as per CPWD procedure and submitted to CBI.
200. He stated that as the estimate was prepared on the basis of Schedule 1994 and in Schedule 1994, there was no such provision for in electrical items, while preparing the rate analysis/estimate, he did not include 25% as additional cost provided under CPWD Delhi Scheduled of Rates (Civil) 2007, which provides that when the working condition is in or under found condition, 25% be included as additional cost. His further crossexamination was deferred and resumed on 08.12.2017, on which date he stated that the Rate Analysis Ex.PW16/A (colly) was prepared by him at my office at Mohan Singh Place, though he did not remember the date of preparation of the said Rate Analysis, Ex.PW16/A (colly) and volunteered that same was mentioned on the said Rate Analysis.
201. He was then asked that the Rate Analysis document No. D13/2 and D13/3 (part of Ex.PW16/A (colly) do not mention the date, month and year of rate of analysis, to which he replied that date is R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 96 of 209 mentioned on the letter accompanying the Rate Analysis which is 12.02.2008, however, he admitted as is correct that no date, month and year of preparation is mentioned on the Rate Analysis.
202. He could not state the time taken for preparing the Rate Analysis and stressed that he had prepared the Rate Analysis on the basis of scheduled items in the estimate and further, as asked by the IO of the case to prepare rate analysis for Pipe Earthing item and other items mentioned in the rate analysis chart on D13/2 and D13/3 by consulting Schedule 1994 Rate Analysis was prepared.
203. He was then asked about qua the mode and manner of sending letter dated 12.02.2008 to the IO to which he stated that he was not able to state the mode and manner of sending this letter as the same was sent by Sh.Jindal and not by him.
204. He was then asked the basis of 'Cost Index @ 70% as mentioned at point A in D13/2 as per his document 'CPWD Cost Index' was @ 209% with base 100, to which he replied that the Cost Index was taken as 70% on Scheduled Rate of 1994 as the WPI (Wholesale Price Index) in December 1994 was 111.2% and WPI in December 2004 was 188.8%.
205. He admitted that as per his calculation after deduction of 111.2 (WPI of December 1994) from 188.8 (WPI of December 2008) he got 70%. The difference is 77.6% whereafter he volunteered that the R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 97 of 209 percentage of increase will be calculated by dividing 77.6 with 112.2 which is 70%. He denied the suggestion that he made wrong calculation deliberately to harm the accused at the instance of Sh.Jindal. Thereafter, his further crossexamination was deferred and resumed on 01.02.2018, on which date he was inquired about the process of boring/excavation, which he detailed. He was the asked whether he included the labour component in his analysis report (D
13) Ex.PW16/A, to which, he replied that the same was included.
206. He was then asked about the specification regarding distance to be maintained between a wall and earthing on the basis of "General Specifications For Electrical Works PartI Internal 2013 Issued By CPWD, on which he stated that actual measurement of site was 0.4 mtrs. He further stated that in order to measure the wire digging was not required. The suggestion that he was not deposing about the factual facts in his knowledge was denied. He denied that the minimum required length of GI Strip in an Electrode is 4 mtrs out of which 1.4 mtrs is required for maintaining the mandatory distance from the wall and another 2.5 mtrs required for vertical then horizontal and then vertical position of the electrode, to which, he replied that the earthing is for a pillar and not for building due to which dimension above were inapplicable. He stated that while preparing his report Ex.PW16/A he went through CPWD Manual and did not see the agreement and drawing regarding method of pipe R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 98 of 209 earthing. He denied that he had deliberately manipulated report Ex.PW16/A. he further denied that as per rules he had to calculate the rate on the basis of cost index but he has manipulated the rates on WPI December, 1994 and WPI December, 2004, which analysis was deliberately made at the instance of Sh. Jindal to harm accused S.C. Jain.
207. He denied having knowledge as to who were the executants of agreement between the contractor and NDMC.
208. In reply to question that where from he gets the rate which he mentioned in Ex.PW16/A item no.2, he stated that it was a tailor made analysis and all the rates shown by the department/accused have been taken in analysis report and as per his memory there was no difference between the rates quoted by the department and the accused and the rates shown in analysis report. Contrary suggestions were denied. He was then asked the source from where he got the cost of ML6, 1 No. contractor as 6850 and discount 7.5% i.e. 5.3175, to which he replied that the same were taken from price list (D13/9). He denied that the cost for aforementioned item is Rs.7750/ and not Rs.6850/. He stated that he has no knowledge that place of work as per contract was 15 km away from NDMC limit. He was then inquired about the premise for analyzing in his report Ex.PW16/A wherein he had calculated the labour rate of electrician for power contractor as half day and helper as half day, to which, he replied that R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 99 of 209 quantum of work justified wages only for half day. He was then inquired about his having knowledge of ML6 contractor having been burnt alongwith wire to which he stated having no knowledge and replied that it is not necessary that once the power contractor get burnt term its wire will also get burned down. He stated that he did not find any thimble at the spot and hardly and insulation tape was used. He was then subjected to suggestions, which he denied.
209. He was then crossexamined by ld. Counsel for A4, wherein he stated that whether draftsman has a field job is a matter of administration, on which he could not comment. He stated that he has no knowledge about notes from A to A and from X1 to X1 of D.C. Sharma on Ex.PW1/D, which file he had not seen. He stated that he has no knowledge on the file and note sheet except his analysis report.
210. He affirmed that the bill of the contractor is checked from the entries from measurement book. He admitted that engineer at site prepares the measurement book and a draftsman has no role who has to check the bills on the basis of entries made in measurement book and has to compare the entries in the measurement book with what is mentioned in the bill.
211. He stated that he cannot say that in this case the draftsman had no role in preparing the bills for payment to contractor which dependent upon the duties given by the executive engineer. Whether R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 100 of 209 the civil draftsman does not possess the Delhi Schedule Rates of electrical rates, he again made the same reply and repeated in reply the questions about recommendation dated 17.02.2006 of EE Civil VI.
212. PW17 Sh. Anil Kumar, UDC, General Branch, Rohini Zone, MCD stated that on 21.07.2008, he was posted in Education Department, Rohini Zone, where he remained posted from 2008 to 2011 and had received instructions to visit CBI Office on 06.05.2008, on which date when he reached CBI office, one Dinesh and one Sabarwal from NDMC and CBI officer namely Pran Nath etc. and he had gone to Okhla, where, there was a big ground and some electrical boxes were found affixed. It was Compost Plant. The technical team comprising Sh.Sabarwal made some enquiry and he was informed about the proceedings. He then identified his signatures on Ex.PW12/A (D12/1) and Ex.PW12/B (D12/2 and D12/3). He stated that he has signed both exhibits at point C. Still photograph of the site was taken after discussing the matter. He was then shown document D19 (coloured photograph taken at the spot). He admitted his signatures at point C on each photograph taken at the spot, which was already Ex.PW12/E. He stated the report dated 06.05.2008 was prepared as per the details described by Sh. Sabarwal, AE after physical inspection of site pertaining to above mentioned work.
213. The witness was crossexamined by ld. Counsel for accused except A4. He was given suggestion that he had been discharging his R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 101 of 209 duties on 06.05.2008 at his office, which he denied and reiterated his presence with CBI team at Okhla Compost Plant. He stated that he had no reason as to why he had been asked to attend CBI office. Whether he met Pran Nath Inspector under whose supervision other persons as stated by him were also present during inspection. He admitted that Prant Nath continued to be present at the site from beginning and the inspection till the end. He was then shown document Ex.PW12/A and Ex.PW12/B (D12/1, D12/2 and D12/3). He did not identify the signatures of Pran Nath. He again denied that Pran Nath was not present at the site on 06.05.2008. He could not admit or deny the above mentioned exhibits bearing signatures of Pran Nath or not. He named Mr. Sabarwal, Mr. Dinesh and Mr. Chaudhary and himself, who were present amongst 5/6 persons present at the time of inspection. He stated that he could not identify Sh. S.K. Aggarwal if he is standing with 20 strangers. He will not be able to identify Mr. D.K. Sharma also, whose signatures he stated at point B on all pages on Exs.PW12/A and PW12/B.
214. He revealed that he was not informed about the purpose of his being called to CBI office. He denied that he was not present or called by CBI after 06.05.2008 and volunteered that he had visited on 21.07.2008, when the photographs and videography of the site was shown to him and again said that it might be around 10 th July, 2008. He stated that he did not avail any leave for going to CBI office as he R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 102 of 209 went on official duty. He could not name the person who had taken the photographs. He was asked about the details of photographs, to which he stated that transformer type of articles was affixed on the ground for purpose of earthing which was shown in photographs. He further stated that whatever inspection was carried out by team at the site was apprised to him and was recorded in his presence. The CBI officials were explaining to him about wiring in the boxes and all other details from stage to stage and so far as, he remembered probably 12 to 13 boxes were checked on that day in his presence. He was explained about each box one by one during inspection. He could not recollect whether the video recording was shown to him on 10.07.2008 on mobile, laptop or desktop. He admitted that he had no knowledge about the subject matter of the present case and volunteered that technical team had only pointed out the shortcoming at the site. Those were not explained to him because there was no technical person and they were recorded in the reports. He could not tell the shortcomings noted on 06.05.2008. The contrary suggestions put to him were denied.
215. He was then crossexamined by ld. Counsel for A4, wherein he stated that Mr. Dinesh Kumar mentioned in his examination was from CBI and not from NDMC.
216. PW18 Sh. Subhash Chand Arya, Retired Section Officer stated that he joined NDMC in November, 1973 as Junior Clerk and R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 103 of 209 that, later he became Head Assistant and joined Compost Plan (NDMC) in the year 2004 and was transferred in September, 2005 in RII Division, NDMC (Civil), Tilak Lane. His nature of duties as Assistant were maintenance of technical register, issue of stationery, and issue of uniform and maintaining of leave account etc. Other work of account branch was also allotted to him. He was then shown Ex.PW8/A (D2) on letterhead of United Electrical and Mechanical Works on which he identified signatures of P.K. Mathur, AE, Compost Plant, signatures of S.C. Jain, Manager, Compost Plant at point B and that of Yad Ram, JE at point C. He stated that estimates are prepared on the basis of quotation.
217. He was then shown Ex.PW1/A (D3) letterhead of Arcee Trading Corporation and stated that quotation is without date and any signatures of proprietor/authorized signatory. He identified the signatures of P.K. Mathur and Yad Ram, AE and JE at point A and B respectively. He was then shown Ex.PW1/B(D4) letterhead of Bhawana Electricals on which he identified signatures of P.K. Mathur, Yad Ram, AE and JE at point B and C. This quotation was for Rs.1,29,98/. He was also shown Ex.PW1/C (D5) letterhead of M/s Divya Sales Corporation which was undated. He stated that on its back quotation is Rs.1,29,850/ at which he identified signatures of P.K.Mathur, AE at point B and of Yad Ram, JE at point C and stated that all these quotations were collected by Yad Ram, JE from Khan R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 104 of 209 Market. He stated that collections were quoted by JE from market and on that basis estimates were prepared.
218. He was thereafter shown D14 agreement no. M(CP)/AP/33 of 200405. He stated that it is signed by Manager S.C.Jain at point A and is also signed by CE (Electrical) at point B, though, he did not remember the name of CE (Electrical), which agreement was then exhibited as Ex.PW18/A.
219. The witness was then shown letter dated 08.03.2005 signed by S.C. Jain whose signatures he identified whereafter the document was exhibited as Ex.PW18/B. He also identified D14/3 and D14/4 schedule to quantity signed by S.C. Jain, Manager, Compost Plant at point A on each page which was then exhibited as Ex.PW18/C.
220. Ld. Counsel for A4 crossexamined the witness wherein, he stated that A4 Dinesh Chand Sharma was not permanently employed with Compost Plant. He used to be called from his branch for checking estimates whenever required. The witness was then shown Ex.PW1/D (D15) page1, noting at point A to A, which he stated was in handwriting of A4 D.C.Sharma, Draftsman and stated that he had checked the estimate on the basis of market rates. He stated that estimates were checked by accountant but were given to him for entering in the technical register. He had signed the noting at point A and B at page3 dated 27.01.2005 and the noting was received by the R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 105 of 209 witness for making entry in technical register. Further technical sanction was given by Manager, Compost Plant on 18.01.2005 at point C and identified signatures of S.C. Jain, Manager. He too had signed at point D at page2 on 18.01.2005.
221. He was then shown page8 from the note sheet, where he admitted that A4 D.C. Sharma was asked for checking the justification for which he made note from point X to X1. He was then shown Ex.PW3/A (page140 of the same notesheet) and replied that estimates were prepared on the basis of market rates. He admitted that at page 143 draftsman reported "Calculation checked", already marked as MarkD. Similar noting was made at page199 at point A and at page 197 at point A and at page 177, which was observed "quantity compared from MBs". He admitted that when a draftsman employed in any department is called by Sr. Officer of every department, he has to go back and attend office.
222. PW19 Sh. Sandeep Chaudhary, Insp., CBI, ACB was shown FIR (D1). It is on the complaint of R.K. Shivanna, SI, CBI. The FIR under Section 120B IPC read with Section 420/467/468/471/477A/409 IPC and under Section 13(1)(c) of PC Act was registered against accused S.C. Jain, XEN (Retd..), P.K. Mathur, AE, Yad Ram, JE and D.C. Sharma, draftsman and others, which was bearing RC No. 42A/2006/CBI/ACB and was registered on 29.09.2006 by the then SP, CBI, ACB Sumit Saran and entrusted to R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 106 of 209 him for investigation. He identified the signatures of Sh. Sumit Sharna, the then SP, ACB, CBI on page 4 and 5 at point A as he had seen him working in normal course of duties. He also identified of Sh. R.K. Shivana on complaint dated 29.09.2006 at point B at page 8 and his initials at point C at page 7 which he exhibited as Ex.PW19/A (however, the exhibition was objected to).
223. He then stated to have carried the investigation and during the course of investigation, examined relevant witnesses of NDMC, private persons from various firms and also recorded their statements as they narrated their version u/s 161 Cr.P.C. He during investigation also collected relevant documents pertaining to the case from concerned department and also collected specimen signatures and handwriting of Sh. Vinod Singh s/o Sh. Bharat Singh, Sh. Anil Kumar s/o Sh. Prem Narayan, prop. of M/s Bhawana Electricals, Sh. Raghunandan Kumar Gupta S/o Sh. A.R. Gupta, Prop. M/s United Electricsl and Mechanicals Works, Sh. G.r. Garg, Prop M/s Arcee Trading Corporation, Sh. Sanjay Chhabara, Prop M/s Divya Sales Corporation. He was then shown D7 specimen No. S22 to S26 having signatures/handwriting of Sh. Vinod Singh and on seeing the same he stated that the specimen signatures/handwriting was taken by him in presence of Sh. Ashok Kumar (independent witness) and he identified his signatures on the specimen at point B on each page. He also identified the signatures of Sh. Ashok Kumar (independent witness) at R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 107 of 209 point C on each page and stated that the signatures were obtained. The document was already exhibited as Ex.PW5/A.
224. He was then shown D8 specimen no. S27 to S29 having signatures/handwriting of Sh. Anil Kumar on which he stated that the specimen signatures/handwriting was taken by him in presence of independent witness Sh. Virender Kumar. He identified his signatures on the specimen at point B on each page and also identified the signatures of Sh. Virender Kumar independent witness on each page at point C. He affirmed that the signatures were obtained before him. The document was already exhibited as Ex.PW11/C.
225. He was then shown D9 specimen no. S30 to 31A having signatures/handwriting of Sh. R.K. Gupta on which he stated that the specimen signatures/handwriting was taken by him in presence of independent witness Sh. Virender Kumar. He identified his signatures on the specimen at point B on each page and also identified the signatures of Sh. Virender Kumar independent witness on each page at point C. He affirmed that the signatures were obtained before him. The document was already exhibited as Ex.PW8/B.
226. He was then shown D10 specimen no. S32 to S33 having signatures/handwriting of Sh. G.R. Garg on which he stated that the specimen signatures/handwriting was taken by him in presence of independent witness Sh. Naresh Chandra. He identified his signatures R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 108 of 209 on the specimen at point A on each page and also identified the signatures of Sh. Naresh Chandra independent witness on each page at point B. He affirmed that the signatures were obtained before him. The document was already exhibited as Ex.PW9/A.
227. He was then shown D11 specimen no. S34 to S36 having signatures/handwriting of Sh. Sanjay Chhabra on which he stated that the specimen signatures/handwriting was taken by him in presence of independent witness Sh. Naresh Chandra. He identified his signatures on the specimen at point B on each page and also identified the signatures of Sh. Naresh Chandra independent witness on each page at point C. He affirmed that the signatures were obtained before him. The document was already exhibited as Ex.PW4/A (colly).
228. He stated that during course of investigation he conducted the inspection on the spot i.e. Compost Plant situated at Okhla in presence of Sh. D.K. Sharma, JE, CBI, Sh. D.K. Mathur, AE, Compost Plant, Okhla, Sh. S.K. Aggarwal, JE (Mechanical), Compost Plant and independent witness Sh. Anil Kumar, UDC, MCD and Sh. Y.K. Sabarwal, AE, NDMC. He stated hat inspection memo and inspection report were also prepared on the spot in presence of abovementioned persons and signatures were obtained from them on inspection memo and inspection report as genuineness of proceedings, whereafter, he was shown D12/1 the inspection memo on which he identified his signatures at point D. The document was already Ex.PW12/A. He R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 109 of 209 also identified inspection report Ex.PW12/B (D12/3) both bearing his signatures at point D.
229. After collecting the relevant documents, recording the statement of witnesses, specimen signatures/handwriting of relevant persons alongwith question documents were sent to GEQD, Shimla for examination/opinion on questioned documents. After examination by GEQD, Shimla, the report was received by SP, CBI, ACB, which report was shown to him alongwith covering letter dated 15.07.2008 addressed to the then SP, CBI, ACB and was already exhibited as Ex.PW11/A (colly). He then exhibited letter dated 26.02.2008 no D 79/EO(C) addressed to him by Engg./Officer (C) Sh. Murshid Ali alongwith documents about various sections as mentioned in this letter regarding the case which were then exhibited by him as Ex.PW19/B (colly). He was then shown inspection memo and inspection report both dated 11.02.2008. The inspection was done in his presence by Sh. D.K. Sharma, JE; Subhsh Chand Jain, Manager (Compost Plant); P.K. Mathur, AE (Compost Plant); Y.K. Sabarwal, AE, NDMC as well as the inspection report, which both were identified him. Inspection memo was already Ex.PW12/C, while the inspection report was already Ex.PW12/D.
230. He discussed the matter after carrying out his investigation as supervisory officers whereafter competent authority had decided to R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 110 of 209 file a report in Special Judge, CBI and the closure report dated 26.11.2008 was filed under his signatures being IO of the case, which was forwarded by the then SP Sh. Sumit Saran. He had signed at page no.7 at point A of the closure report dated 06.11.2008 which he then exhibited as Ex.PW19/C.
231. In his crossexamination by ld. counsel for accused except A4, he stated that during investigation conducted by him no offence alleged to have made out and hence, he filed the closure report.
232. In his further crossexamination by ld. counsel for A4, he admitted that before registration of FIR, a preliminary inquiry was conducted by CBI. He had only seen the preliminary inquiry report and had not seen any other document on the basis of which the report was prepared. He stated that he cannot comment on the letter dated 24.01.2006 written by Sh. Bhupender Kumar, SP, CBI to Chief Manager (Civil), NDMC, Palika Kendra, New Delhi as the investigation of the case was entrusted to him in September, 2006. He could not identify the signatures of Sh. Bhupender Kumar, SP since he had never worked with him. He admitted that he had not recommended departmental action against D.C. Sharma which is only recommended by SP separately. He stated that he could not comment if actions were taken by accused D.C. Sharma in good faith due to which no departmental action was recommended by CBI. He had not seen the notesheets (11 in numbers both sides of file D15) before R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 111 of 209 filing the chargesheet/closure report.
233. PW20 Sh. Sauraj Babu @ Swaraj narrated that in the year 2007 he was posted at Compost Plant. He was beldar and nature of job was to make tea for staff. Sh. Chaman Lal was the head assistant and there was a peon by the name of Sh. Ashok also when he was posted in Compost Plant. While he was so posted, he had seen Sh. Ashok signing for receiving copies of Notice Inviting Tender (NIT and that that time, S.C. Jain was Manager, Compost Plant). He also stated that S.C. Jain had a scooter which was being plied by Sh. Ashok, Peon.
234. In his crossexamination by ld. counsel for A4, he stated that he could not read and write and stated that he on the date of his deposition in court on 06.08.2018 about investigation conducted by CBI from him about an incident of the year 2007. He stated that he can identify Sh. Chaman Lal even today if he is standing in a group of 15 persons. He had served Sh. Chaman Lal from the year 2005 to 2009. He denied that Chanal Lal was not posted in Compost Plant in the year 2006. He stated that Subhash Chand Arya had joined as head assistant in Compost Plant after Chaman Lal but he did not know the year of his joining. He denied that before making his statement in the court he had not made any other statement and volunteered that his statement was recorded by CBI also. Sh. Sandeep Chaudhary was the investigating officer of CBI who recorded his statement at CBI office, R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 112 of 209 though, he did not remember the date. He stated that in his statement before CBI under Section 161 Ex.PW20/D1. He had stated about his being posted in the year 2007 at Compost Plant. However, the aforementioned was not even recorded in the statement. He was asked the full form of NIT, which he could not tell. He revealed that Ashok, Peon was assigned duty of distributing dak and diarizing the same in register. He was shown statement dated 06.08.2018, wherein, he had stated that Ashok Peon was receiving copies of NIT which he affirmed again. He stated that documents were hand written and sometime typed. He stated that signing by Ashok on NIT was part of his official duties. He could not tell on how many papers Ashok had signed or used to sign everyday in Compost Plant. So long as he was posted in Compost Plant, he had seen him doing his duties assigned to him. He stated that there was no impression that he was doing any Chori/Chakari or tampering in the office while signing on these documents. He stated that he did not know what does NIT refer to and the CBI officials have themselves used the expression in his statement Ex.PW20/D1. He stated further that he had told that Ashok was distributing dak and was signing on several documents but what were those documents he was not knowing. He stated that he had not told that Ashok was signing on tender documents. He stated that he told that Ashok used to sign on some document at around 5.30 pm when the witness used to deliver him tea. There was no crossexamination of this witness by A4.
R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 113 of 209235. PW21 Sh. S.K. Khullar was Inspector, EOW Cell on 29.09.2006. He joined CBI in the year 2009 and took charge of this case from Sh. M.P. Singh, Inspector who had since been repatriated to Delhi Police. He examined Sh. V.S. Rastogi, JE (Elect); Sh.C.S. Jindel (SE); Sh. Vinod Singh; Sh. Subhash Chand Arya (head assistant); Sh. Sanjay Chhabra (prop. Of Divya Sales Corporation); Sh. N.K. Ved (EE); Sh. T.R. Meena (EE) Sh. G.S. Kohli (EE) and Sh. Mahender Gupta (Prop of M/s Gupta Trading Company) and Sh. Y.K. Sabarwal (AE). He stated that he could not record the statement of Sh. Suraj Beldar as he was not traceable. He had not collected further document during investigation and concluded his investigation with approval of competent authority that no new facts emerged which could substantiate the allegation conclusively against the accused persons. He had filed the closure report alongwith annexures (19 pages) on 03.07.2015 which he exhibited as Ex.PW21/A (colly) under his signatures at point A and also identified signatures of then SP, CBI, ACB, New Delhi Sh. Nishith Mishra at point B.
236. During his crossexamination by ld. counsel for accused persons (except A4), he stated that his findings in the investigation report in respect of closure report were upheld by his senior officers. Since he had carried out further investigation only, he could not tell as to whether any other FIR was registered or not.
237. In further crossexamination by ld counsel for A4, he admitted R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 114 of 209 that letter dated 24.01.2006 was written by Sh. Bhupinder Kumar, the then SP, CBI, ACB, New Delhi to the Chief Manager (Civil), NDMC, Palika Kendra, the copy of which was Ex.PW21/DX1. He could not say if Dinesh Chand Sharma has submitted his reply to the Executive Engineer, NDMC and that reply was forwarded by Executive Engineer to CBI. He was unable to recollect whether any reply was received by CBI of letter dated 24.01.2006Ex.PW21/DX1. The witness had no knowledge that Compost Plant Division was getting proposal estimate checked from the Draftsman of other division, though, it came in his knowledge that any proposal of contract estimation approval of contract was used to be forwarded by the Compost Plant Division to Planning Division and other superior authority but he did not remember whether he had gone through the letter Ex.PW21/DX1 and its inquiry during the course of further investigation. He claimed that he had only conducted further investigation on the points given by the court. He was then shown Ex.PW1/D (D15) and note at point A to A and X1 to X1 at page 1 and 8 respectively, which he told that he had come across. He had also come across of note in red mark "checked" alongwith signatures of Sh. D.C. Sharma at point X at page 21 of Ex.PW1/D and having seen note Ex.PW3/D at page 143 and notings C to C at page 178 of Ex.PW1/D. He stated that on the date of his deposition, he was unable to remember having checked the measurement book at page 178 of R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 115 of 209 Ex.PW1/D. He had also seen the note pertaining to calculation written in red ink with the signatures of D.C. Sharma at point E of page 199 of Ex.PW1/D.
238. He was then put a question that based on the aforesaid explanation to the letter Ex.PW21/DX1 and documents shown to him from Ex.PW1/D, he formed conclusion that there was no case against accused D.C. Sharma. The witness replied that he had gone through the file but based on the testimony of PW5 Vinod Singh Rana and other material on record, he had filed the closure report.
239. After his testimony, vide separate statement of Dr. Jyotsna Sharma Pandey, ld. PP for prosecution, PE was closed on 15.02.2019.
240. Statement of accused persons u/s 313 Cr.P.C. were recorded.
241. On completion of S/A, A4 D.C. Shama led evidence in his defence. He produced Mohd. Shamim Khan, as DW1, who at the relevant time was posted as Addl. Chief Engineer (Civil), NDMC, Palika Kendra, New Delhi. In his examinationinchief, he placed on record letter dated 25.01.2006 of SP, CBI marked to SE (C1), which was marked to him on 30.01.2006 as Ex.DW1/A. He then called explanation from accused D.C. Sharma through letter dated 03.02.2006, which he exhibited as Ex.DW1/B. Reply of accused D.C. Sharma received by him dated 08.02.2006 was exhibited as R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 116 of 209 Ex.DW1/C and his note dated 17.02.2006 was then exhibited as Ex.DW1/D. All the aforementioned documents were photocopies. None of the original was placed on record and ld. Sr. PP objected to the mode of exhibition of the documents though no crossexamination of the witness was conducted.
242. Detailed arguments were addressed by ld. Sr. PP, on behalf of the accused A1, A2, A3 and A5 ld. Counsel Mr. Mir Akhtar Hussain made submissions, besides Sh. G.P. Thareja, ld. Amicus curie made submissions on behalf of A4.
243. Ld. Mr. Mir Akhtar initiated his arguments by reading out the charge which had been framed against the accused persons u/s 420/468/471 IPC and 13(2) read with sec. 13(1)(d) of PC Act. He read out that the entire case on which the charge against the accused persons is made is only valued for Rs.1,27,220/, and claimed that the present case is result of departmental rivalry between Mr. C.L. Jindal and Sh.S.C. Jain (A1) due to which he has been framed. He stated that in his background, as no material regarding any false tender or manipulation of money was shown or evidenced, CBI filed its final report and mentioned only irregularity of procedure which do not involve any element of mens rea against the accused persons. He stressed that since no material of cheating was found it led the CBI in filing its closure report. It is averred that despite the order for further inquiry made by ld. Predecessor the IO submitted his second closure R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 117 of 209 report as no material sufficient to attract the penal provisions was evidenced against the accused. He further argued that being dis satisfied with the second closure report, the ld. predecessor took cognizance and framed the charge.
244. It was argued further that in order to invoke charge u/s 420 IPC, the prosecution must have shown some element of forgery. He claimed that there is no quotation involved and as per the process, the departmental official went to collect from market the estimates before awarding the tender, which has been wrongly assumed as quotations whereas they are mere 'estimates' given by some suppliers and are incapable of being read as final word.
245. He argued further that in order to invoke the charge u/s 420 IPC the prosecution was under the burden to prove that the 'estimate' can be capitalised as valuable security and were capable of being converted as such for the purposes of "own use" by the accused. He then read out the provisions of Section 30 IPC, which provides the definition of valuable security and stressed that no valuable right is created in favour of the shopkeepers who had provided the estimates and these estimates cannot be used as acknowledgments of any right, in absence of which, no legal liability is created. He argued that dozens of global quotations are received which are all not accepted but only one is accepted out of discretion and since in the present case the aspect of valuable security is not existing the ingredients of section R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 118 of 209 420 IPC are not attracted.
246. It is averred that even the provisions of Section 468 IPC are not made out as no document is forged by accused and the prosecution has also not detailed any time, date, place, title etc. of the document and hence in this background as none of the ingredients of section 420/468/471 IPC are shown to have been made, accused merely for the reasons of their being public servants cannot be charged for offence under PC Act. He further elaborated that even otherwise, there is no evidence to suggest any payment having been made by cash. He stressed that only one cheque was issued which was cleared in favour of Ravi Gupta depicting that since no payment in cash is made, no manipulation is suggested to have taken place. He argued further that how many accused could have been benefited from a small amount of Rs.1.27 lakh. He argued that the accounts officer who released the payment is not made accused and further the fact there is no element of mens rea attributable to his clients is shown from the inspection report which clearly suggests that the work is complete. He again averred that the inspection was carried out after lapse of sufficient time and the compost plant being an unprotected site had been visited and frequented by many which would have necessarily lead to some elements from compost plant being found missing, for which, the fault cannot be fastened upon his clients.
247. He further relied upon the expert report Ex.PW11/A (colly) R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 119 of 209 and stressed that the report is not based out of the specimen but the samples were gathered by the expert out of his own endeavour from some other case and cannot be read as conclusive report against his clients.
248. He read from the statements of PWs and stated that they have made their statements under compulsion and pressure of CBI.
249. He concluded his submissions by saying that had Ravi Gupta received the undue advantage which allegedly was passed onto the other accused public servants, he could not have complete the work whereas the mere fact that work is completed in itself is sufficient evidence which demolishes the allegations against the accused persons.
250. He also relied upon his written submissions vehemently and read out itemwise breakup of cost of tender and the same suggested that the statements of PW3 C.L. Jindal and PW16 Y.K. Sabarwal have been suitably discredited from the documentary and oral evidence/crossexamination. I have perused the same and shall be dealing with them in addition to above arguments at appropriate stage. Ld. Amicus curiae Sh. G.P. Thareja has also placed on record the written submissions, which shall be dealt with at appropriate stage.
251. Ld. Sr.PP rebutted the submissions and stressed on the provisions of Sec. 420 IPC and read it in conjunction with the R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 120 of 209 provisions of Section 464Explanation (1) IPC to counter the argument that for want of any "valuable security" the charge cannot be established. He further read over the statements of witnesses and stated that the witnesses specifically Sanjay Chhabra, Govind Ram, Anil Kumar all have denied having made any quotation, which leads to the factum of proving that the quotations used in this process were not theirs and in turn were forged. He stressed on the statement of PW5, who had documented these quotations used in this process at the instance of accused Yad Ram. He stressed that all the necessary ingredients of 420/468/471 IPC are clearly proved against the accused persons and stressed that the accused being public servants indulged in the aforesaid acts to impart advantage to Ravi Gupta which as per the provisions of Section 13(1)(d) is clearly an offence. He argued that the charge is restricted to the abovesaid provision and the fact of inspection is extraneous to the charge. It is stated that since prosecution has proved its case, the accused persons must be convicted.
252. While both sides also made their arguments/counter arguments on the point of section 120B IPC for which accused persons are charged and it was averred by ld. Sr.PP that when the acts are combined with each other, the act of conspiracy is complete and it may be linked to the acts of private parties also. He stressed on the statement of C. L. Jindal to aver that the accused deliberately did not R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 121 of 209 seek the rates from CPWD Manual and made false quotations.
253. On behalf of A4, ld. Sh. G.P. Thareja, who made his vehement submissions through video conferencing, pointed out to para 2.8 of charge sheet of last four lines to stress that no allegations are made against A4 qua whom no element of mens rea is pointed out. He further averred that an anomaly is made by prosecution in this case as the complainant who has made the complaint at which the FIR is registered himself is a police official and the question that comes for discussion is whether a police official can sue moto register a complaint or FIR on his own.
254. He read out from the portions of statement of PW18 to stress on the procedure for preparing of estimate and submitted that after the estimate is prepared the duty of draftsman is to check the calculations whereafter, NIT is prepared, on which tenders are invited, which are submitted by contractors. After a bill is prepared the duty of head draftsman is to check it from the measurement taken in measurement book by JE after which the payment is made. He stressed that testimony of PW18 is vital. He being a man of department and in service since 1973 having technical qualification.
255. He then averred that A4 checked the estimates which was made on the basis of market rate by Asstt. Engineer and signed by Asstt. Engineer and SE, who was the Manager of Compost Plant. He R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 122 of 209 referred to the noting on the document Ex.PW3/A at point A, where A4 had recorded "estimate made by AE on the basis of market rate checked for submitted for necessary action". He stressed that NIT was not made by A4 and A4 had no role in the tender process. He then pointed out to the statement of PW18 at which stage, an objection was made by Mr. Mir Akhtar Hussain to his arguments which were penetrating into the allegations against A1 to A5 except A4. Mr. Mir Akhtar Hussain also objected to the use of word "quotation" by Mr. Thereja and stressed that there is no quotation and only "estimates" are submitted.
256. While resuming his further submissions, it was submitted by ld. Counsel for A4 that the quotations in present case is on a photocopy letterhead with signatures of Yad Ram and P.K. Mathur etc. and the document is prepared on the basis of market rate, at which stage again, the objection was raised by ld. Counsel Sh. Mir Akhtar Hussain as ld. Counsel was making submissions touching upon the interest of his clients.
257. It was averred further by ld. Counsel for A4 that since the estimates were signed and checked by the original signatures of JE/AE, A4 whose expertise were in the civil department was called at the instance of Manager, Compost Plant and being his subordinate he could not have refused and came on being called to attend to the official work assigned and directed to him and on the basis of the R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 123 of 209 signatures of JE/AE on the quotations he made the verification. He further stated that the contract in this case was of composite nature involving civil, electrical and mechanical works, the resort to SR94 was not to be made. He denied the allegations of conspiracy and stressed that there is no material to suggest the same. He read over the crossexamination of material witnesses to stress that there was no hindrance in taking the market rates and the job of his client was only to check calculation from the measurement book and after being satisfied of the quantity measured in the measurement book he verified the estimates. He averred that there is no material to suggest that A4 made demand and concurred with the submissions ld. Sr. Mir Akhtar Hussain that out of a small sum, persons associated with the contract could not have been provided with, sufficiently to encourage their involvement. He then stressed on the statement of PW Y.K. Sabarwal to point towards the limited role of his client and stated that there is no actus rea, mens rea to point any intention or participation of A4 in the acts of conspiracy and resultant undue advantage having been received.
258. His arguments met with rebuttal by ld. Sr. PP, who read over the statement of PW1 V.K. Rustagi, who has deposed that A4 was under duty to check the estimate and other fundamentals and that he did not object at the relevant point suggesting that he was part and parcel of the conspiracy due to which he did not raise objection for the R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 124 of 209 justifications based on market rates and objecting to the photocopies of quotations by which act he connived and facilitated the accused in getting payment. He also stressed that the charge is very specifically made and the arguments regarding the completion of work are to be discarded. He then stressed on the statement of Y.K. Sabarwal, who pointed out that the rates are on higher side and estimates were not based on CPWD Manual.
259. Ld. Sh. Mir Akhatar Hussain then made remaining rebuttal and rested his arguments after reading the statement of PW12 to claim that there was no deviation and even the actual inspection shown that work was complete. He relied on the statement of CBI expert who also made similar affirmations and while during their presence the photography and videography was made and the inspection was joined by top technical official of NDMC. In view of his written submissions tendered additionally, he prayed for acquittal.
260. From the aforementioned details of allegations stated in the final report/chargesheet and enumeration of facts and circumstances detailed through the witnesses during evidence, the following questions have arisen for decision :
(I) Whether the closure report is binding on this court and hence the subsequent proceedings are bad in law?
(II) Is the investigation conducted properly and if R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 125 of 209 not so, what are the consequences and effect?
(III) The effect of expert evidence and the correctness of the statement of forensic expert and its consequence.
(IV) If the expert evidence does not meet the touchstone of fairness and neutrality whether it is to be discarded?
(V) What material is placed on record to support the charge framed against the accused persons u/s 120B IPC i.e. conspiracy and is admissibility?
(VI) The impact and consequences of the assessment of evidence in establishing the charge qua 420/471 r/w Sec. 468 IPC?
(VII) Impact and consequences of evidence to suggest and establish culpability of accused in offence under Section 13(2) read with Section 13(1)(d) of PC Act.
(VIII) Whether any sanction is required against any of the accused persons and if so, the impact of its absence?
(I) Whether the closure report is binding on this court and hence the subsequent proceedings are bad in law?
261. During the arguments ld. Mir Akhtar Hussain submitted that in the present case after detailed investigation, the IO namely Insp. Sandeep Chaudhary submitted the closure report on 06.11.2008 as no incriminating material against the accused persons was found. He also R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 126 of 209 argued that the IO specifically stated that the allegations of FIR could not be substantiated during investigation and no facts were surfaced which fails to show any conspiracy between the firms which participated and officials of NDMC.
262. However, it has been matter of record that the aforementioned closure report was rejected vide order dated 30.01.2010 passed by my ld. Predecessor (Sh. O.P. Saini, Spl. Judge, CBI, as he then was). Further investigation was directed based on certain observations. It is necessary at this stage to note that observations which were made categorically in the order dated 30.01.2010 and are reproduced hereinbelow for elucidating the facts in proper light:
"12. However, PW1 Sh. V.S. Rustagi, Junior Engineer (Electrical) has stated that the photocopies of letterheads of M/s RC Trading Corporation, M/s Bhawana Electricals, M/s Divya Sales Corporation are prima facie bogus quotations. He further states that amount involved in the tender is big and quotations on original letter heads ought to have been obtained from reputed firms dealing in the trade and these questions must bear the date and signatures of Proprietor or owner of the firm. He further states that no Head Draftsman was posted at the Compost Plant and only authorized Head Draftsman should have checked the sale.
13. To the same effect is the statement of PW2 Sh. C.L. Jindal, Superintending Engineer. He states that the quotations are bogus.
14. PW3 Sh. Vinod Singh has stated that from 2001 to R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 127 of 209 2006, he was working at NDMC, Compost Plant, Okhla. He states that he used to write quotations at the instance of Yad Ram, Junior engineer, who used to provide him written material to be copied on the given blank letter heads, which were provided by Yad Ram. He further states that quotations of M/s Divya Sales Corporation amounting to Rs.1,29,850/ was written by him on the asking of Yad Ram, Junior Engineer and he gave him blank letter heads of M/s Divya Sales Corporation.
15. Similarly, PW4 Sh. Suraj has stated that Peon Ashok used to sign receipt of NITs and he used to do this work in the evening at about 5 PM.
16. PW5 Sh. Subhash Chand Arya, Head Assistant, R 2 Division, NDMC has stated that three quotations were collected by Yad Ram, Junior Engineer of M/s RC Trading Corporation, M/s Bhawana Electrical and M/s Divya Sales Corporation and these are bogus quotations.
17. PW8 Sh. Sanjay Chhabra, Proprietor of M/s Divya Sales Corporation has stated that he never supplied any goods to any Department and the quotations filed in his name is not his. He further states that quotations was not given by him to NDMC or to any other Department.
18. PW20 Sh. N.K. Ved, PW21 Sh. T.R. Meena and PW22 Sh. G.S. Kohli, all Executive Engineers have stated that the NITs were not received in their Department.
19. PW12 Sh. Mahender Gupta, Proprietor of M/s Gupta Trading Company has stated that S.C. Jain, Manager, P.K. Mathur, Assistant Engineer, Yad Ram, Junior Engineer, Peon Ashok, Tripan Singh Negi, Beldar etc., used to prepare computerized letter heads of existing and nonexisting firms and this they used to do R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 128 of 209 with the help of 4th Class employees like beldar for the preparations of bogus quotations. He further stated that officials used to do illegal work together and they earned money from the Contractors by preparing bogus quotations on the higher side for preparation of estimate so that they can get the illegal money from contractor by giving them tender on higher side by causing loss to the Government. He further states that Engineers of Compost Plant had their own personal contracts with private mechanics and electricians and they called them to their own to execute the work in low rate and make the payments from their pockets after collecting tender cost from contractor to whom the tender was awarded on higher side.
20. PW13 Sh. Y.K. Sabarwal, Assistant Engineer has also stated that justification of tender is on higher side."
263. However, the investigating agency again submitted a closure report. This time, the IO made the observations "during further investigation no new fact surfaced which could substantiate the allegations conclusively against the accused persons".
264. However, as is evident from record ld. Sh. G.S. Saini (the predecessor court) on perusal found sufficient material on record to formulate an opinion for proceeding against the accused persons namely S.C. Jain, P.K. Mathur, Yad Ram Shami, Dinesh Chand Sharma and Ravi Gupa, who were then summoned u/s 120B IPC r/w 420 and 471 IPC r/w Section 468 IPC and Sec. 13(2) and 13(1)(d) of PC Act.
R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 129 of 209265. It is worthwhile at this stage to note that none of the accused persons and/or the prosecution agency preferred to challenge the summoning order, which hence became final.
266. In view of above preposition, it is difficult to understand that how at this stage, the summoning order can be found fault with and nonacceptance of closure report can be raised as a ground of arguments as is now being attempted to. It is needless to repeat that the said order has already become final.
267. Even otherwise, no material is cited to suggest that where the court had already proceeded on premise of rejection of closure report discarding the opinion of IO assuming nonexistence of sufficient material, how a court is barred or is to be prevented on proceedings where on judicial side after applying the principles well formulated, an opinion based on reasoning is reached to conclude against the opinion of the IO. There is nothing on record and/or by way of submissions to suggest that the opinion of the IO is binding on the court whereby, out of his own investigation he concludes in favour of the accused persons. At no stage, any such inference can possibly be drawn as otherwise the entire purpose of the principles of checks and balance will be frustrated and the investigating agency will assume the twin role of investigation and decision making. In order to prevent this eventuality only, the principle of reasonable restrictions and checks and balance are inserted through the principles and procedures in the R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 130 of 209 statute which cannot be brushed aside casually, mechanically and/or lightly to impart more value than envisaged to the acts and opinion of IO and/or surrender or abdicate the jurisdiction by the court in view of his one sided conclusion.
268. The reasoning of either of the orders dated 30.01.2010 and dated 08.06.2016 i.e. of Sh.O.P. Saini and Sh. G.S. Saini have not been found to be agitated. Rather, the accused have submitted to both the orders and have after obtaining bail, participated in trial.
269. The law relating to acceptance of the principle that the closure report is not binding upon the courts is recently discussed in N.K Rai vs. Central Board of Investigation 2018 SCC OnLine Del 132200, wherein, it is observed as below :
"10. In view of the settled legal position that the closure report is not binding on the learned Trial Court, and the court is in fact expected to apply its independent mind to the material on the record, merely because the CBI had made certain observations which partially support the petitioner, cannot be a ground to tinker with the directions for further investigation given by the learned Trial Court. A perusal of the decision in the case of M.S. Pradhan (supra) clearly shows that the said decision is premised on the fact that once the CBI had filed a closure report, the Court could not, without ordering any further investigation straightway take cognizance against those persons qua whom the CBI had itself categorically stated that there was no evidence. However, the case of the petitioner admittedly does not fall in the said R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 131 of 209 category as further investigation has specifically been directed against him under Section 178(3) Cr.P.C. and, therefore, I fail to understand as to how the said decision is applicable to the case of the petitioner."
270. Hence, the discussion in above paras leads me to observations that : merely because twice the closure is submitted by IO, the Court can not be precluded to proceed where it is of the view that sufficient incriminating material is placed, sufficient to, prima facie establish, and based thereupon, forms its own opinion, and that closure report is an expression of an opinion of IO and is not binding on the Court.
(II) Is the investigation conducted properly and if not so, what are the consequences and effect?
271. In the backdrop of the aforesaid poser, I now propose to begin the discussion qua the impact of the investigation, having been carried out by the various IOs, who have from time to time submitted similar findings absolving accused persons of any guilt, opining that from the detailed investigation carried out, during the long span the material collected through their attempts did not sufficiency disclose any criminal intent sufficient to charge any of the accused persons.
272. After the first closure report met rejection vide order dated 30.01.2010, the IO was directed to conduct investigation on certain questions formulated by ld. Predecessor, however, the IO tendered second closure report after examination of certain witnesses opining against the veracity of statements of witnesses.
R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 132 of 209273. However, vide order dated 28.11.2015, ld. Sh. G.S. Saini after discussing entire material commented on the quality of investigation and made following observations in his order depicting reasons in discrediting the closure report. The observations are material gist as it also brings forth the fact that IO closed his eye against certain material of providing inputs qua involvement of accused and thus, as it brings forth the nature of investigation, it is imperative that the part of observations are reproduced :
"7. Thereafter, in pursuance of direction of learned Special Judge, further investigation was carried out and during that, PW1 Sh. V. S. Rustogi, Jr. Engineer (Electrical), PW2 Sh. C. L. Jindal, Superintending Engineer, PW3 Sh. Vinod Singh, PW4 Sh. Suraj, Beldar, PW5 Sh. Subhash Chand Arya, Head Assistant, R2 Division, NDMC, PW8 Sh. Sanjay Chhabra, PW12 Sh. Mahender Gupta, Proprietor of M/s. Gupta Trading Company, PW13 Sh. Y.K. Sabarwal, Assistant Engineer PW20 Sh. N. K. Ved, Executive Engineer, PW21 Sh. T.R. Meena, Executive Engineer and PW22 Sh. G. S. Kohli, Executive Engineer were reexamined. Perusal of the same reveals that PW13 Sh. Y.K. Sabherwal, PW21 Sh. T.R. Meena and PW22 Sh. G. S. Gohil.
8. PW1 Sh. V. S. Rustogi stated that he cannot state whether the quotations were genuine or bogus and he did not remember having having been made any comment. However, as per the investigation of CBI, these were found to be bogus earlier.
9. PW2 Sh. C.L. Jindal merely stated that he did not remember anything as on the date and was not in a R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 133 of 209 position to clarify anything.
10. PW4 Sh. Suraj, Beldar could not be examined as he did not appear. It is very surprising that PW4 was working in NDMC and despite that CBI failed to join him in the investigation.
11. PW5 Sh. Subhash Chand Arya stated regarding he did no have any knowledge regarding the work and he did not know whether Sh. Rsihi Kumar, Assistant Engineer was posted as AE (Mechanical & Electrical) in the compost plant for preparation of estimates and justification of tender and also for other works. He further stated that being an old matter, he could remember that S.C. Jain deliberately marked the file to P. Mathur.
12. PW8 Sh. Sanjay Chhabra on the other hand confirmed that letterhead did not belong to him.
13. Therefore, except for the matter that some witnesses have on account of passage of time could not remember, the factual position and the evidence collected significantly has not changed, since the filing of the earlier closure report.
14. PW1 Sh. V. S. Rustogi in his previous statement had stated that the quotations were primafacie bogus and the amount involved in the tender is big and quotations on original letter heads ought to have been obtained from reputed firms. The files were to be checked by Head Draftsmnan, but since there was no Draftsman in the Compost plant, he was not authorized to check the same, the competent authority should have authorized him to check those files.
15. PW13 has categorically stated that Rs. 96000/ R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 134 of 209 were paid for item no. 1 whereas, as per his report, it should have been Rs. 29,248/, for price of item no. 2, Rs. 17,435/ was paid whereas, it should have been Rs. 11,205/, which included the profit of the contractor, Rs. 15,385 was paid for item no.3 whereas, it should have been Rs. 7,707/ and for item no. 4, the price paid was Rs. 15,000/ whereas, for this type of work there is a particular division of Electricity Department in NDMC. The payment paid for this job was very much on higher side. As per the statement of Sh. N. K. Ved, NITs were not received in R1 Division.
16. Therefore, the quotations were found to be bogus and the procedure for obtaining the quotations for such higher amount was not followed. Moreover, the amount quoted and ultimately paid was much higher than the actual amount which was calculated to be paid, which could not be therefore, as per the value of the work. The amount paid is almost more than double the actual value of work. JE, AE being working in the same capacity are well conversant with the market value of the items and, therefore, acceptance of such quotations and issuing the tender of such amount and further not circulating the tender to other division would further show the prima facie connivance and intention to provide undue pecuniary gain to the others.
17. It is also worthwhile to mention that four firms participated in the quotation. Except the firm to which the work was awarded, all the other firms quoted 3½ % to 5 % above the estimated cost. There is difference of 4½ to 6% of cost between the other firms and to whom the work was awarded, which also appears to be on the higher side, as for this kind of work on account of stiff competition, the variation could have been to this extent, which also shows undue favour and connivance and on R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 135 of 209 account of limited publicity of the tender, the undue pecuniary benefit has been given to the person to whom the tender was awarded.
18. As per the statement of PW2 under Section 161 Cr.P.C, Ravi Gupta had shown salary amounting to Rs.38,500/ disbursed to beldar, foreman, menson, fitter, wireman, khalasi, weldor etc. which shows that he has turnover of more than Rs. 5 lacs. However, the certificate submitting by him to Manager (Compost) at the time of purchase of tender documents shows his turnover as less than Rs. 5 lacs which prima facie appears to be bogus. It shows that there was a conspiracy between Ravi Gupta to whom the tender was awarded and other accused persons to cheat the department and he has also dishonestly and fraudulently used the bogus documents as genuine.
19. Therefore, in view of the above discussion and the material on record, I am of the opinion that there are sufficient grounds to proceed against the accused Sh. S.C. Jain, Sh. P.K. Mathur, Sh. Yad Ram Shammy, Sh. Dinesh Chand Sharma and Ravi Gupta. As per the material on record, I take cognizance against accused Sh. S.C.Jain, Sh. P.K. Mathur, Sh. Yad Ram Shammy, Sh. Dinesh Chand Sharma and Ravi Gupta for offences punishable under Sections 13(2) read with Section 13(1)
(d) of Prevention of Corruption Act, 1988, Section 120B IPC read with Sections 420 IPC, 471 IPC. Accordingly, issue summons to accused persons, namely, S.C.Jain, P.K.Mathur, Yad Ram Shammy, Dinesh Chand and Ravi Gupta."
274. From the record of proceedings made above, it is apparently clear that from the time of filing of RC No. 42/(A)/2006 disclosing the R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 136 of 209 allegations of undue profit by Sh.R.K. Shivanna, the investigating officers proceeded to carry out their investigation clearly omitting to focus on the material suggesting, apparently and pointing towards the various acts of omission and commission in awarding tenders in relation to the specific project of Compost Plant. Despite the Court having formulated certain questions and making observations vide order dated 30.01.2010, the subsequent closure was filed without showing any movement on investigation on pointers raised vide aforesaid order. It is worthwhile to observe that in order to elicit a clear statement from the investigation agency which by then had also been supported by prosecution, the ld. predecessor ld. Sh. Gurdeep Singh Saini also issued notice to the complainant. However, the complainant being an exofficial, CBI refrained from making any substantial contribution apparently for the reason that he did not find it fit to own up to an official cause in personal capacity since he demitted the office. In view of the fact that he relinquished the office and was no more reflecting intention to show responsibility to the cause, the ld. Predecessor vide order dated 08.06.2016 proceeded to negate the statement in the larger interest and after due opportunity to both i.e. investigation officer and ld. Sr.PP, vide detailed order dated 28.11.2015, the contentions for acceptance of closure report met with refusal and rejection, leading to issuance of an order of cognizance preceded by summons.
R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 137 of 209275. It is worthwhile to note that against none of the orders mentioned above including that of cognizance and summoning, the investigation agency or the prosecution raised any cause by way of filing any revision petition and in fact proceeded with the trial. In these circumstances, it is shown that the prosecution implicitly agreed reflecting towards a tacit approval qua availability of material prima facie sufficient to proceed against the cause. In fact, it can be construed from the aforesaid that even the investigation agency advanced tacit agreement to the observations and findings of ld. Predecessor vide order dated 30.01.2010, whereby, based on the material pointed out to investigation officer comprising of the statement of witnesses namely Sh. Vinod Singh Rana, Sh. C.L. Jindal etc., it was clearly observed that the investigating officer faltered in conducting the investigation fairly, appropriately and reasonably to bring out the involvement of the accused in unclear terms and has rather gone ahead to ignore the statement of witnesses.
276. The aforementioned being the case, the question now arises is whether the court is bound by the faulty investigation and/or its outcome.
277. While the IO was categorically asked to concentrate on the explicit statements showing/indicating material, the IO in his second attempt only partly examined few witnesses and left out some material witnesses like Sh. Sauraj Babu @ Swaraj who had pointed out that R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 138 of 209 one peon Ashok was used to sign NIT registered. He also casually examined Sh. C.L. Jindal who had given sufficient material in his earlier examination. As the statements of few witnesses were recorded earlier and later attempts were much delayed, his efforts met with lack of interest from few witnesses. However, IO concluded this lack of interest as improvement and suggested to discredit their statements without any sufficient reason though they had already in first instance itself revealed much incriminating material against the accused. It is difficult to make an opinion that how a witness is to be discredited on the aforesaid ground not repeating his earlier stand for reason of lapse of considerable time etc. can cause doubt qua integrity of his earlier statement when IO has failed to collect anything to point hole in the version of witnesses by bring out or showing any contradictory statements or contradictory documentary evidence making the earlier statement unreliable.
278. At this stage, by way of passing reference, it is imperative to observe that neither the investigating officer nor the prosecution has proceeded to examine the complainant Sh. R.K. Shivanna, SP, CBI, who had made the complaint to elicit the material though they have examined PW19 who exhibited the complaint.
279. From the observations made in order dated 30.01.2010 and 08.06.2016 it is reflected sufficiently that the investigating officers surrendered their own cause. It also is suggestive of the fact that R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 139 of 209 despite clear guidelines and questions having been framed by ld. Predecessor vide order dated 30.01.2010, wherein, the investigation officer was held responsible to probe material pertaining to aforementioned question, he decided to ignore, overlook, side step and rather neglect the order and went ahead to conduct the investigation in a manner suiting to his preformulated decision. The investigating officer also silently ignored to collect relevant material from PW3 C.L. Jindal who specifically stated that the documents Ex.PW1/A, Ex.PW1/B and Ex.PW1/C could not have been premised for preparing Ex.PW3/A "estimation" for awarding tender finally, besides detailing other acts of omission and commission and overlooking of procedural rules obligated to be followed. The aforesaid acts of investigation officer one after the other revealed that for unexplained reason the investigation was carried out with intentions to keep a closed eye to the material which was apparently visible and was pointing to the malafide and mischief despite it being pointwise brought to him by the order of rejection of closure dated 30.01.2010.
280. It is also to be borne in mind that in order to fill up the lacuna ignoring to collect the relevant material the investigation was moduled and formulated in a manner to give it an expanded scope whereby, the real issue and acts were either concealed, covered up or become too trivial a part of entire transaction, rendering them fit for their R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 140 of 209 neglection and final ignorance.
281. The IO proceeded to investigate the entire project, the volume of quantum involved in, which was manifolds higher, while the allegation of Rs.1,22,913/ only qua a specific transaction was in question vying/asking for attention arising from small/petty jobs of repair work of SANDLI, shifting of AC, Pipe of earthing etc. Admittedly, IO did not make any attempt to ensure the investigation of visible allegations but went much beyond to check the Compost Plant itself. Even, here the investigation could not be made as quantity and quantity of earthing which was dug up could not have been checked. This also pointed to the futility of this exercise by IO whereas all rates in the report were obtained from CPWD SR94, which were already available. The factum of forging of quotations Ex.PW1/A, Ex.PW1/B and Ex.PW1/C which was basis of estimation on higher side was also not duly probed and left without conclusion despite assertion of PW8 that the quotation in dispute was not supplied by him and was not authored under his pen.
282. In this attempt, IO collected the statement of those who were not directly at any stage involved in the process and left out direct witness PW20 Sauraj @ Swaraj Kumar and other such material which was more specifically detailing the mode and manner of working pattern adopted by accused to bypass the rules and procedure. IO hence acted as an appellate authority on the order of further R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 141 of 209 investigation by formulating a committee of experts without any direction which gave almost a clean chit after inconclusive inspection was carried out of the project after almost six years of the alleged transaction and collected enormous unnecessary material with intention to take away the attention of the court from the material of guilt. It is apparent that the investigation was misdirected and was conducted with preconceived mind and led to wastage of worthwhile number of years.
283. In the aforementioned background, the next question which is to be raised, is qua the consequences and impact of such investigation.
284. In view of aforesaid I am reminded of dictum of Hon'ble Supreme Court in dealing with such investigation in Karnail Singh vs. State of MP 1995 Cri LJ 4173, wherein the following is mentioned:
".......the court has to be circumspect in evaluating the evidence. It would not be right in acquitting an accused person solely on account of defect, to do so would tantamount to playing in the hands of the investigating officers if the investigation is designedly defective.........."
285. Further in Paras Yadav vs. State of Bihar 1999 Cri.LJ 1122, it is observed "if the lapse and omissions are committed by the investigating agency or because of negligence the prosecution evidence is required to be examined de hors such omissions to find R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 142 of 209 out whether the said evidence is reliable or not. The contaminated conduct of official should not stand in the way of evaluating the evidence by the courts, otherwise, the designed mischief would be perpetuated and justice would be denied to the complainant party".
286. Further, the Hon'ble Supreme Court in Amar Singh vs. Balwinder Singh & Ors. 2003 CriLJ 1282 made observations stating that negligence on the part of IO cannot affect credibility of prosecution version.
287. The observations above, have also been reiterated in Dhannnaj Singh @ Shera and Ors. Vs. State of Punjab AIR 2004 SC 1920, wherein the observation as below is made :
"7. As was observed in Ram Bihari Yadav v. State of Bihar and Ors. : 1998CriLJ2515 if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice. The view as again reiterated in Amar Singh v. Balwinder Singh and Ors., :
2003CriLJ1282 . As noted in Amar Singh's case (supra) it would have been certainly better if the fire arms were sent to the forensic test laboratory for comparison. But the report of the ballistic expert would be in the nature of an expert opinion without any conclusiveness attached to it. When the direct testimony of the eyewitnesses corroborated by the medical evidence fully establishes the prosecution version failure or omission of negligence R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 143 of 209 on part of the IO cannot affect credibility of the prosecution version."
288. The Hon'ble Supreme Court in National Human Rights Commission vs. State of Gujarat (2009) 6 SCC 767 held as under :
"35. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice--often referred to as the duty to vindicate and uphold the 'majesty of the law'. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators."
289. While as discussed above, the evidence specifically points out R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 144 of 209 that despite the glaring material available on record suggestive of acts and omissions pointing towards involvement in acts of malafide and criminal wrong having been committed, IO deliberately ignored them and intended to divert the investigation. In order to cover up, he conducted himself in such manner to collect extraneous material so that the real facts and substance or acts of commission and omission are subsumed, submerged and become invisible.
(III) The effect of expert evidence and the correctness of the statement of forensic expert and its consequence.
AND (IV) If the expert evidence does not meet the touchstone of fairness and neutrality whether it is to be discarded?
290. It is repeatedly argued by ld. Mr. Mir Akhar Hussain that the expert witness PW11 R.S. Rana misconducted himself in examining the material. He pointed out to his detailed crossexamination during which the expert is found faltering in relying upon material not connected to present investigation and referred in other CC No. 41(A)/2006. Also, he without bringing to the knowledge of his department head or the IO, premised his report on specimen of handwriting received in CC NO.41(A)/2006. It is argued that his act demonstrates unprofessional conduct. It is alleged by ld. Counsel that the examiner rather forged the record and made self entries in department's register which was in his custody due to the present case.
R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 145 of 209It is hence stated that such a report is not a reliable piece of evidence and cannot be looked into.
291. From the aforesaid two integral questions that need answers are raised. Firstly, it is requisited to be seen that whether the expert conducted himself in a manner appropriate, thus lending credence to his opinion and the final outcome of his report Ex.PW11/A and if the aforesaid is opposite then whether the report and his oral statements can be treated reliable?
292. In order to ascertain the answers, it is necessary to glance over his statement. During his examinationinchief he exhibited his report as Ex.PW11/A. The relevant portion of his report is reproduced hereinbelow :
"The documents of this case have been carefully and thoroughly examined.
2. The writings in the enclosed portions stamped and marked Q5, Q5/1; S22 to S26 of this case and S27 to S42 of this office case No. CX35/2008 (RC41(A)/2006DLI of SP, CBI, ACB, New Delhi) have all been written by one and the same person.
3. It has not been possible to express my opinion on rest of the documents on the basis of material supplied"
293. The aforementioned report itself showed that he relied upon samples S27 to S42 of other RC i.e. RC No.41(A)/2006/DLI and did R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 146 of 209 not restrict to samples sent by IO in this case, which fact he admitted in his crossexamination.
294. In his further crossexamination, he admitted that Ex.PW1/C is CX35/08 the lab case number and pertains to RC No. 42(A)/2006 and further admitted that he had examined documents pertaining to lab slip number CX35/08 only and that, he had used specimen writing mark S 27 to S42 of CBI case bearing no. RC No.41(A) of 2006 which was sent in lab case no. 34/08 meaning thereby that he admitted again to have referred the sample of RC 41(A)/2006 which were not of this case.
295. He clarified that he had received request from CBI in two cases i.e. 41(A) of 2006 and 42(A) of 2006 and while making the report he used specimen from both the cases. It is relevant to note that the witness had not shown any authority or approval for referring the sample of RC No.41(A)/2006 while he admitted that in the present RC i.e 42(A)/2006/DLI except the document on record i.e. the questioned documents Ex.PW8/A (D2), Ex.PW1/B (D4) and Ex.PW1/C (D3) and specimen S21 to S26 and S27 to S36 only were referred to him and CBI had not referred any other document to him as samples.
296. He then revealed that he had received documents S27 to S42 in RC No. 41(A)/2006/DLI also for examination. He stated that specimen S21 to S26 were of Vinod Singh in RC No.42(A)/DLI and R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 147 of 209 S27 to S42 were also of Vinod Singh in RC. No. 41(1A)/2006/DLI. He then stated that specimen S1 to S21 in RC No. 42(A)/2006/DLI and S32 to S33 of Sh. G.R. Garg in RC No. 42(A)/2006/DLI and S 32 to S36 of Sanjay Chhabra in RC No. 42(A) were received and no other document received in RC No.42(A)/2006/DLI.
297. During his crossexamination by ld. Counsel for A1 to A5 except A4, he admitted that his report Ex.PW11/A is only with respect to Q5/1. He admitted that his opinion was sought with respect to questioned documents Q1 to A11, Q5/1 and Q6A. He admitted that he had not given his opinion in respect of document Q1 to Q4 and Q6 to Q11 and Q6A as material was not sufficient for giving opinion.
298. He admitted that as per his report author of Q5 Ex.PW1/C and Q5/1 (part of Ex.PW1/C) is the same person who was the author of specimen document S22, S26 Ex.PW5/A (specimen handwriting/signatures of Sh. Vinod Singh Rana). Thus, as per his report, Sh. Vinod Singh Rana (PW5) was the author of quotation Ex.PW1/C.
299. He was then confronted with his report Ex.PW11/A wherein he referred to S27 to S42 in file CX35/08 which were documents Ex.PW11/C, PW8/B, PW9/A and PW4/A on which he replied that in his report D16/4 under para 2 due to typographical error CX35/08 is R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 148 of 209 misstyped in place of CX34/08 as CX34/08 is the case file no. of RC41(A) and hence he stated that it is incorrect to suggest that documents Ex.PW11/C, PW8/B, PW9/A and PW4/A were pertaining to RC No. 42(A)/2006 and he also affirmed that S27 to S42 mentioned in his report Ex.PW11/A are not Ex.PW11/C, PW8/B, PW9/A and PW4/A and S27 to S42 pertained to RC No.41(A) of Vinod Singh and not RC No.42(A)/2006, which is this case.
300. He was then asked about his report Ex.PW11/A (D16/4) dated 24.06.2008, wherein the documents mentioned as S27 to S42 were entirely different from the document forming part of judicial file under same number of S27 to S36 which were D8/1 to D8/3 to D11/3 which he affirmed and stated that the two sets of documents are different. He further affirmed that S27 to S42 mentioned in Ex.PW11/A is for RC No. 41(A)/2006 and S27 to S36 in this case for RC No. 42(A)/2006.
301. He admitted that he had not seen S27 to S42 and aforementioned documents/samples were not examined by him, though he claimed that the documents were related to RC No.41(A)/2006.
302. He had not given a separate report with regard to RC No.41(A)/2006 which was examined by some other examiner.
R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 149 of 209303. He replied in negative that documents S27 to S42 of RC No.41(A) were made part of the report which he sent to CBI.
304. He was then asked as to who sent him the documents S27 to S 42 of RC No. 41(A) to which he replied that he had used the documents S27 to S42 for providing his opinion on questioned documents for RC. No.42(A) as both the cases were received in his lab and Vinod Singh was common accused in both RCs i.s. 41(A) and 42(A). He stated that since in both RCs the documents were received by their HoD from CBI, HoD exercised his discretion for one case to study questioned documents for other case. He admitted that in envelope for RC 42(A) specimen S27 to S42 were not sent.
305. On being enquired about how he came in possession of the documents S27 to S42 he replied that it was brought to the notice of HoD that opinion on Q5 and Q5/1 cannot be formed on the basis of specimen writings supplied in RC 42(A) on which HoD directed to use the specimen S27 to S42 of RC 41(A) as they were of same person Vinod Singh. He could not show any specific permission from HoD N.C. Sood who was informed to have been retired.
306. During further crossexamination, he produced the lab examination report CX34/2008 in RC No. 41(A) which report was then marked as mark 'X' comprising of 16 pages which was based on examination on specimen S27 to S42. He stated that he used the R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 150 of 209 specimen as it contained signature reading of R, a, j, i, v and A, n, i, l executed by Sh. Vinod Singh in addition to extensive specimen handwriting, and though in RC no. 42(A)/2006 the characters Anil and Rajiv did not exist in questioned documents and no specimen handwriting of these two were sent to him, the alphabets A, n, i, l and R, a , j , i, v were there in questioned document of RC 42(A)/2006.
307. He affirmed that no opinion was sought on the authors of Anil and Rajiv in RC No. 42(A)/2006.
308. He admitted that S27 to S42 were sent to him only in RC No. 41(A)/2006.
309. He then admitted that he had examined regarding RC No.41(A)/2006 and his earlier statement that he was not the examiner of RC No.41(A)/2006 was due to the reason that the report was signed only by Dr.B.A. Vaid while he alongwith Dr. B.A. Vaid were joint signatory of Ex.PW11/A, the examination report in RC No. 42(A)/2006.
310. He stated that he did not inform about the typographical error of the report having been mentioned as CX35/2008 in place of report CX34/2008 as both Dr.B.A. Vaid and N.C. Sood had retired and the fact of typographical error came to his knowledge while recording testimony in court on 02.02.2018 and since there is no procedure for informing about the typographical error to superior authority he had R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 151 of 209 made no such report.
311. He stated that he had corrected the typographical error in his record. He further affirmed that the entire record of department regarding RC 42(A)/2006 maintains the record in consonance with Ex.PW11/A. The photocopy of letter dated 24.06.2008 showing the correction to typographical error made by him was then Ex.PW11/D1. He stated that he made the correction after his crossexamination on the same day. He was the custodian of the file and record room was also under him. He had not made any initial against the corrections and no corrigendum was issued in this regard as he did not feel the need. The corrections were not brought to the notice of B.A. Vaid who had since retired.
312. The conduct of expert is writ large from the above statement. The examination clearly shows that expert exceeded himself while preparing report. He relied upon the specimen sent in connection with other case CC No. 41(A)/2006 without any authorisation and used the samples in examination despite knowing that he was not officially entrusted the investigation of RC No.41(A)/2006 which fact was established from his statement that the report in RC No. 41(A)/2006 was sent back under signatures of Sh. B.A. Vaid alone.
313. He further exceeded his jurisdiction in making corrections in relevant registers/record in back date, when the registers were R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 152 of 209 summoned during crossexamination and were in his official custody. The callousness and disregard to official procedure was ignored with impunity. The photocopy of letter dated 24.06.2008 showing the correction to the typographical error made by him then was exhibited as Ex.PW11/D1. His further statement also shows that the correction was carried out after the hearing in the case was over and was not even initialed by him. Probably, it was on the day when his evidence was recorded.
314. He was the custodian of the file. The record room was also under him. The conduct of his proceeding is also visible that he claimed and took over the entire authority and did not feel the need to bring in the notice of his senior authority and no corrigendum of this correction has been issued till the date of his statement, though, he denied that he had committed any tampering or forgery in the official record to protect himself and his statement which he made before the court and claimed authority to carry out corrections despite the fact that the report Ex.PW11/A was coauthored by B.A. Vaid.
315. He could not produce any document to show that he was the custodian of the record. He then elaborated that an entry is made in the register when the records are taken for deposing in the court on receiving summons but till the time the evidence in that case is being recorded every time for court hearing entry is not made and the last entry is made when the evidence is concluded in the case.
R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 153 of 209316. The above statement forces the court to take a dim view of the conduct of the examiner that while collecting the specimen from the material not in reference of the present investigation and/or forwarded in the present RC he did not take any approval of any of his superior and/or prepared any separate note or proceedings and/or wrote a communication to the investigating officer.
317. Without showing any reason for him to assume such authority which clearly did not vest in him, he look upon the material of CC No. 41(A)/2006 which was not entrusted to him for examination. He again conducted himself without jurisdiction when the register was brought during crossexamination as it was treated like a personal property in transporting it from the lab to the court and back and that without its movement having been diarised or permission applied and approved. Similarly, the corrections and cuttings, shows that authority vested and accruing from his position was usurped and consumed in personal reference than in official context. The details of crossexamination hence leave it safe to conclude that his report ExPW11/A cannot be relied upon without doubts and it is possibly an outcome of his overzealous conduct in partially taking over the role of investigating officer upon himself.
318. Now, qua the second league of question as to whether while the first is answered in negative, the report Ex.PW11/A in evidence remained relevant or not and/or is to be treated as admissible, needs R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 154 of 209 discussion. In the background of material examination and report Ex.PW11/A, it is clear that as an expert Sh. R.S. Rana exceeded his authority in relying on samples not received in this case and formulating his report on material not submitted by IO. In this circumstance, it can not be stated to be a safe reliance to the cause of prosecution. The guidelines in this regard are repeatedly laid down and I draw support from the judgment of Amar Singh vs. Balwinder Singh (supra), wherein, while relying upon the judgment of Kernail Singh, Paras Yadav and Ram Bihari Yadav (supra) and on Madan Gopal Kakkar & Ors. vs. Naval Dubey 1992 SCR (2) 921, wherein, the medical opinion was discarded by the Hon'ble Court in view of the glaring omissions made therein.
319. The combined reading of all the aforesaid judgments suggests that the view of an expert is merely an expression of opinion which renders credence to the quantum of corroboration needed, qua a fact, however, a fact selfspeaking cannot be altered by an expression of opinion, hence, the fact capable of proof on its own otherwise, cannot be disregarded as the original evidence, can not be treated unreliable or inadmissible if the same is sufficient to suggest credibility subsequent to the crossexamination.
320. As is suggested from the facts of present RC, the document in question had been authored by PW5 Vinod Singh Rana, Beldar. In his R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 155 of 209 statement he made clear deposition qua this fact before the court, which clearly revealed the factum beyond doubt that the document Ex.PW1/C was written by him and penned under his handwriting. After this statement, which remained uncontroverted for part of any substantial crossexamination on the fact of him being the person behind writing of the Ex.PW1/C, it remained beyond doubt that the document indeed was authored by him. He also stated that even the purported signature as proprietor of M/s Divya Sales Corporation was made by him. In the crossexamination, he was confronted with his statement recorded u/s 161 Cr.P.C. which were exhibited as Ex.PW5/DA, wherein his testimony was challenged to the effect that his act of writing these quotations was not at the instance of accused Yad Ram but was propelled by Sh. S.K. Aggarwal another JE in Compost Plant and Tripan Singh Negi. However, while PW5 remained firm on Ex.PW1/C having been written at the instance of and on asking of accused Yad Ram, he was not subjected to any questioning qua the factum of writing and signing Ex.PW1/C by him, itself. No doubt was raised qua this part of his statement. The fact that indeed he was behind Ex.PW1/C as author and executor of signature was not crossexamined at all, leading no doubt to this part of his evidence.
321. In circumstances where the ocular version of witness is primarily available, the same needs to be taken into account and R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 156 of 209 cannot be rendered incompetent for the want of corroboration of a mere opinion of an expert.
322. It is relevant at this stage to observe that in such like cases, the duty of the court qua circumspection and exercise of discretion in right direction is raised manifolds. How a court is expected to proceed in such circumstance is guided in Dayal Singh vs. State of Uttranchal [Crl. Appeal 529/2010 (DoD 03.08.2012)], wherein, Hon'ble Supreme Court has observed as below :
"28. Where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The Courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the Court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not subserved. For truly attaining this object of a 'fair trial', the Court should leave no stone unturned to do justice and protect the interest of the society as well.
29. This brings us to an ancillary issue as to how the Court would appreciate the evidence in such cases. The R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 157 of 209 possibility of some variations in the exhibits, medical and ocular evidence cannot be ruled out. But it is not that every minor variation or inconsistency would tilt the balance of justice in favour the accused. Of course, where contradictions and variations are of a serious nature, which apparently or impliedly are destructive of the substantive case sought to be proved by the prosecution, they may provide an advantage to the accused. The Courts, normally, look at expert evidence with a greater sense of acceptability, but it is equally true that the courts are not absolutely guided by the report of the experts, especially if such reports are perfunctory, unsustainable and are the result of a deliberate attempt to misdirect the prosecution. In Kamaljit Singh v. State of Punjab [2004 Cri.LJ 28], the Court, while dealing with discrepancies between ocular and medical evidence, held, "It is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out."
(VI) The impact and consequences of the assessment of evidence in establishing the charge qua 420/471 r/w Sec.468 IPC?
AND (VII) Impact and consequences of evidence to suggest and establish culpability of accused in offence under Section 13(2) read with Section 13(1)(d) of PC Act.
323. The prosecution has led evidence in support of charges framed against accused u/s 420/471 r/w Sec. 468 IPC besides other charges R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 158 of 209 framed u/s 13(1)(d) r/w 13(2) of the Prevention of Corruption Act. In the backdrop of allegations, one of the accusations which is integral to the entire factual matrix and gist of other accusation is arising out of Section 420 IPC. Before adverting to the evidence received on record and the challenge made to its assessment by arguments and counter arguments wherein both the prosecution and the defence counsels tried to interpret the evidence and read the statements in light of their understanding and interpretation of the material, it would be beneficial if the necessary ingredients of the relevant provisions are reproduced :
"420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine".
324. How the ingredients of aforementioned provision are treated to have been met is detailed in Archna Rana vs. State of UP [Crl. Appeal No. 167/2021 (DoD 01.03.2021)], the Hon'ble Supreme Court while interpreting above provision guided that no offence u/s 420 IPC can be termed to have been committed, unless, the ingredients of Section 415 are shown to have been satisfied. It is worthwhile to reproduce the relevant part of the judgment as below :
R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 159 of 209"5. Having heard learned counsel appearing on behalf of the appellant and learned counsel appearing on behalf of the respondentState and having gone through the averments in the complaint and the chargesheet, even if the averments made in the complaint are taken on their face, they do not constitute the ingredients necessary for the offence under Sections 419 & 420 IPC. As observed and held by this Court in the case of Prof. R.K. Vijayasarathy (supra), the ingredients to constitute an offence under Section 420 are as follows:
i) a person must commit the offence of cheating under Section 415; and
ii) the person cheated must be dishonestly induced to
a) deliver property to any person; or
b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security. Thus, cheating is an essential ingredient for an act to constitute an offence under Section 420 IPC. Cheating is defined under Section 415 of the IPC. The ingredients to constitute an offence of cheating are as follows:
i) there should be fraudulent or dishonest inducement of a person by deceiving him:
The person who was induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or the person who was induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived.
Thus, a fraudulent or dishonest inducement is an R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 160 of 209 essential ingredient of the offence under Section 415 IPC. A person who dishonestly induced any person to deliver any property is liable for the offence of cheating."
325. While detailing the relevance of categorising the ingredients of Section 415 IPC in order to establish a charge u/s 420 IPC in Prof. R.K. Vijyasarathy vs. Sudha Seetharam [SLP (Crl.) NO. 1434/2018 (DoD 15.02.2019)], the following observations are made in para 14 and 15 which are specifically noted below :
"14. Section 415 of the Penal Code reads thus:
"Section 415. Cheating. Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to 6 Section 406. Punishment for criminal breach of trust. Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat"." The ingredients to constitute an offence of cheating are as follows:
i) there should be fraudulent or dishonest inducement of a person by deceiving him;
ii) (a) the person so induced should be intentionally induced to deliver any property to any person or to R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 161 of 209 consent that any person shall retain any property, or
(b) the person so induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived; and
iii) in cases covered by (ii) (b) above, the act or omission should be one which caused or is likely to cause damage or harm to the person induced in body, mind, reputation or property.
A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating.
15. Section 420 of the Penal Code reads thus:
"Section 420. Cheating and dishonestly inducing deliver of property. Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable to being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." The ingredients to constitute an offence under Section 420 are as follows:
i) A person must commit the offence of cheating under Section 415; and
ii) The person cheated must be dishonestly induced to
(a) deliver property to any person; or
(b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security.R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 162 of 209
Cheating is an essential ingredient for an act to constitute an offence under Section 420."
326. After having made the note of provision itself it is beneficial to assess the material in light of interpretation furthered through arguments by all sides, wherein, it is argued by ld. Counsel Mr. Mir Akhtar Hussain that in order to invoke charge u/s 420 IPC, the prosecution must have shown some element of forgery. He claimed that there was no quotation involved and as per the process the departmental officials went to collect from market the estimation before awarding the tender which is wrongly taken as quotation which could only be taken as estimates given by some suppliers and is not capable to be read as final word.
327. At this stage, it is imperative to understanding the meaning and import of the words "estimate" and "quotation" and its credibility of being used in terms of interchange and its overlapping use in general parlance. While in The Law Lexicon (Reprint Edition 1995), "estimate" is defined as under :
"A statement generally in writing specifying the amount of money for which a contracting party will perform certain work, or supply certain goods (as) building estimate. An offer is not less binding for being in the form of an estimate, and headed "estimate". As a verb, to judge and form opinion of, as to amount, number, etc., from imperfect data, comparison or experience; to make an estimate of; to rate; to calculate roughly' to R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 163 of 209 assess."
328. Whereas "quotation" is "statement of market price of one or more commodities; or the price specified to a correspondent".
329. The aforementioned definitions suggest that basic difference in an estimate or quotation is of "precision" of the statement price. While an estimate is rough statement of price, a quotation is a firm or fixated value statement. Both are only indicative of asking rate and by virtue of their nomenclature no dissimilarity other than this is capable to be drawn.
330. In view of above, whether the Exs.PW1/A, PW1/B and PW1/C, which are relied upon and used for making Ex.PW3/A (the estimate) by accused, are mere expression of rough value/asking rate or expression of firm value of asking rate was a fact which only their author was capable of narrating. In the present scenario where no one is presented as author as witnesses namely Sanjay Chabra, Proprietor of M/s Divya Sales Corporation; G.R. Garg, Proprietor of M/s Arcee Trading Corporation; and, Anil Kumar, Proprietor of Ms. Bhawana Electricals have already denied to own these documents as either issued at their end or written by them, this intent could have been stated by person asking for such estimate/quote. Hence, the fact that the above was an "estimate" and not "quotation" was required to be stated either by PW4, PW8, PW13 or by JE/AE i.e. accused Yadram, JE and P.K. Mathur, AE. However, the accused did not lead any R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 164 of 209 evidence to state their intent on record. They did not make any statement even qua the source from where these alleged estimates were procured and its purpose. It is essential to note that in fact this was the contention of accused persons as they wanted the court to interpret that the exhibits were mere estimations, collected by them to make estimate Ex.PW3/A. As per the settled dictum "he who alleges must prove, the duty and onus to prove that these documents were mere estimations i.e. not suggestive of any final asking price and were collected to prepare estimate were requisited essentially to be established as prepared by the accused. Least the person who authored these exhibits accused also refrained from appearing in witness box, which goes to show their intentions.
331. Hence, in such case the only interpretation possible is from the intent which these exhibits were capable of rendering could be through the outcome of the process. It is shown that these exhibits were indeed used for making an estimate Ex.PW3/A, which was based on these quotations which were used as final word to claim the amounts mentioned as the final/or asking rate finally allegedly claimed against the supplies and labour, in which case, it was not to be treated as "estimate". Further, these were final word qua asking price is shown from the intent of "Estimate" drawn by accused themselves as nowhere it is mentioned that estimate Ex.PW3/A is not final outcome of quotations. It is hence shown that the intent of R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 165 of 209 accused was to use these documents as quotations and not estimates.
332. Further, I am also constrained to observe that in the argument of Sh. G.P. Thareja, ld. Amicus Curiae appointed for A4, he himself admitted that his client A4 D.C. Sharma, head draftsman treated the documents PW1/A quotation (of Arcee Trading Corporation), Ex.PW1/B quotation (of Bhawana Electricals) and Ex.PW1/C quotation (of Divya Sales Corporation) and similarly the documents Ex.PW1/E (Photocopy of quotation of Aracee Trading Corporation, Ex.PW1/F (photocopy of quotation of Bhawana Electricals) and Ex.PW1/G (Photocopy of quotation of Divya Sales corporation) as "quotations" while checking the estimates Ex.PW3/A.
333. Not only during the crossexamination of PW3 C.L. Jindal but also during his arguments he relied upon specifically on the word "quotation" and drew strength that since the "quotations" were submitted alongwith Ex.PW3/A, he had no recourse to move beyond the scope made available by accused S.C. Jain, Yad Ram and P.K. Mathur since they all happened to be his superiors. In fact, during the course of arguments, Sh. Thareja, proceeded to read part of the statement of PW18 Sh. Subhash Chand Arya, who had painstakingly detailed the procedure for procuring the estimate and submitted that estimate is prepared on the basis of "quotation". He rather went on to point out that A4 D.C. Sharma checked the estimate which was made R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 166 of 209 on the basis of market rate by A1 S.C. Jain, A2 Yad Ram and were duly signed by him in their official capacity as Manager (Compost Plant) and AE. He also intended to read the statement of PW18 in this context when his arguments were objected to by ld counsel Mr. Mir Akhat Hussain to the use of word "quotation".
334. The fact that the documents Ex.PW1/A, Ex.PW1/B and Ex.PW1/C which were used for preparation of estimate Ex.PW3/A were indeed "quotations", is hence the case of accused themselves as is stated by A4 D.C. Sharma, who checked the estimation, treating these exhibits as "quotations" providing basis to Ex.PW3/A the "estimate" and premised his opinion. It shows that accused acted in furtherance of knowledge of these documents as "quotations" and not "estimates" which is now being claimed.
335. This leads me to discussion whether these quotations were valuable security or were even required to qualify as valuable security as argued while relying upon Sec. 30 IPC by ld. Counsel Mr. Mir Akhtar Hussain. It was contended that since the quotations were merely estimates, they were incapable of any final worth/word and hence cannot be treated as valuable security. It is worthwhile to reproduce part of his written argument as below :
"Hence the quotations are not valuable security within the meaning of Sec. 30 and Sec. 420 of IPC, because : R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 167 of 209 (1) Because the quotation does not create any legal right in favour of the shopkeeper (proposed supplier) or the department.
(2) Because no legal is extended, transferred, restricted, extinguished or released by the quotation.
(3) Because by way of quotation no person acknowledges that he lies under any legal liability or has not a certain legal right. Hence once a quotation is given by a shopkeeper it does not create any legal right or enforceable right in his favour against the person who had asked for a quotation. Similarly no liability is created against the shopkeeper or the supplier if he gives a quotation unless and until the quotation takes form of an agreement or a tender accepted by both the parties. Hence the quotations are not valuable securities within the meaning of Sec.
30 & Sec. 420 of IPC."
336. At the threshold, it needs to be observed that this argument is mispremised and misleading. Nowhere, the prosecution claimed that the "quotations" on their own per se were convertible for some advantage in the sense sought and attempted to be imparted by the accused. The charge in this case is very specifically framed where the accusation is that "quotations" were used for creating false and inflated estimate which then was made basis to impart tender. In this case, there is no claim of prosecution that the "quotations" were capable of monetization or impart right or claim or advantage in favour of shopkeepers. Even otherwise, in view of laid down in R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 168 of 209 Archna Rana vs. State of UP [Crl. Appeal No. 167/2021 (DoD 01.03.2021)] and Prof. R.K. Vijyasarathy vs. Sudha Seetharam [SLP (Crl.) NO. 1434/2018 (DoD 15.02.2019)] the ingredients of Sec. 420 IPC are well defined and I do not find any basis of the submissions made by ld. Defence counsel above.
337. The modus operandi interestingly in this case has come on record through PW13 Anil Kumar, who had been connected with the accused persons for a very long span earlier in capacity of PCM Services and later on as proprietor independently of M/s Bhawana Electricals. It was revealed by PW13 Anil Kumar that while he was employed at PCM Services was doing the business of electrical works, maintenance and supply to NDMC, he came in contact with accused persons and was used to visit Compost Plant to attend to electrical work on the directions of his proprietor. He specified that he came in contact with accused S.C. Jain, Manager; P.K. Mathur, AE; Yad Ram, JE (who all were correctly identified by him in the court during deposition) and also stated that the electric work was got done under the supervision of accused Yad Ram who at that time was heading the electrical department. He revealed that almost all electrical work of Compost Plant was done by him and whenever there was any work requirement he was personally called by Yad Ram and S.K. Aggarwal.
338. He stated about continuation of his association in carrying out R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 169 of 209 the work specified to Compost Plant even after leaving PCM Services. He stated that after having left the services in May, 2000, he started his firm under the trade name of M/s Bhawana Electricals and since he was aware of the entire work of Compost Plant accused Yad Ram started giving him work personally, though, on some occasions the work was received through work order as well.
339. He detailed that against the work for which he was called personally since 1996, accused paid him in cash. Except of the time when the work was given to him on work order when the payment was received in cheque of receipts and the job of Compost Plant were got done through him for which he received the payment in cash from Yad Ram and S.K. Aggarwal who were responsible for supervising and managing the electrical department. He revealed that the practice of his being called personally and being paid in cash continued while he opened his own firm independently under the trade name of M/s Bhawana Electricals and on several occasions again whenever he was called he complied with the instructions for which payment was made in cash.
340. During crossexamination, though efforts were made to shake the credibility of this witness by asking of his maintaining any cash book/ledger or having told the CBI and/or specifying the minimum/maximum payment, however, the essence of his statement and its substance remained corroborated. He detailed that the cash R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 170 of 209 which he used to receive from such jobs and work was distributed to labourers while the articles were provided by NDMC from store. He denied specifically that there was no practice in NDMC to pay any cash.
341. The accused have also been charged for procuring false estimate based on counterfeit, forged and ingenuine quotations for preparing tender quotation on the basis of which the award was made at a higher and exorbitant rates to their benefit.
342. It is an admitted fact that after the estimation was prepared, tender was imparted to A5 who also received the payment against final bill MarkA. It has been specifically put on record that during the period 20042005 accused fraudulently and dishonestly quoted @ 1% (One percent) below the estimated cost of work which was prepared on the basis of false/forged quotation.
Section 471 r/w Section 468 IPC
343. The genesis of the trial, which are also integrated to the charge of Section 420 IPC, are finding source from accusation of bogus quotations having been made in the tender process. In order to substantiate this charge, the most significant witness happens to be PW5 Sh. Vinod Singh Rana, who was Beldar at the relevant time and posted at the Compost Plant in temporary capacity from 20012006.
R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 171 of 209344. He narrated that at the relevant time he was posted under A1 Yad Ram, JE (Electrical) and S.K. Aggarwal, JE (Electrical).
345. He narrated that he was used to write the quotations on being asked by accused Yad Ram and Tripan Singh Negi. He also identified accused Yad Ram during the court testimony correctly. He stated that since he was 11th class pass and was able to copy the written material in English he was used to prepare quotations by Tripan Singh Negi and Yad Ram. He took the name of accused Yad Ram specifically in context of one quotation which was exhibited on record as Ex.PW1/C. This quotation allegedly belonged to one M/s Divya Sales Corporation. PW5 admitted that Ex.PW1/C which is stated to be a quotation of M/s Divya Sales Corporation was prepared by him and was in his handwriting which he had reproduced from similar material on instruction of accused Yad Ram who gave him a blank letterhead of M/s Divya Sales Corporation and asked him to copy the matter on the blank letterhead given by him. He also stated to have signed as proprietor of M/s Divya Sales Corporation at point A on Ex.PW1/C on asking of accused Yad Ram.
346. He narrated that the reason for his complying with such demands by Yad Ram was due to job compulsion else he being a temporary Beldar was running the risk of loosing the employment since accused Yad Ram was his superior holding the capacity to remove him.
R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 172 of 209347. He admitted that during the course of investigation his specimen signatures and writings were taken which he collectively exhibited as Ex.PW5/A.
348. The photocopy of quotation, which was Ex.PW1/G was used on the tender file Ex.PW1/D which fact was also corroborated from record.
349. In his crossexamination, no material/detail etc. to shake the credibility of his statement made in examinationinchief was brought forth. Though the attempts were made to confront him with his statement recorded during investigation u/s 161 Cr.P.C., nothing substantial could be culled out therefrom. While he was confronted with his statement dated 30.01.2008 (u/s 161 Cr.P.C.) which was then exhibited as Ex.PW5/D1, no contradictory material sufficient to establish that he was making an improved statement and that no part of his statement in substance to suggest any major contradiction was pointed out.
350. It is also worthwhile to observe that while most of his examination was recorded in his statement in essence dated 30.01.2008, he was still confronted with statement Ex.PW5/D1 in order to make an effort coupled with intention to discredit his version, where in fact no contradiction existed in first place as is shown and is discussed herein. While PW5 Sh. Vinod Singh Rana stated in his R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 173 of 209 examinationinchief that he made the statement that he wrote the quotation on asking of Yad Ram which, he was confronted with Ex.PW5/D1, where this part of statement was found recorded that the quotations were written on the instructions of Yad Ram. Similarly, he was confronted that he had not disclosed all the facts of his being 11 th class pass and that he was used to copy the written material in English whereas as on being confronted with statement recorded on 30.01.2008 (Ex.PW5/D1) it was found recorded that his qualification was 11th class pass and he was able to copy written material on given blank letterhead. Similarly, though, it was not recorded in Ex.PW5/D1 that he had signed at pt. A in capacity as proprietor of M/s Divya Sales Corporation it was written specifically that quotation was written by him on instruction of Yad Ram, JE.
351. As the aforesaid attempt to discredit his version did not yield satisfactory result, he was then confronted with his second statement dated 19.04.2015 (Ex.PW5/D2), wherein, the facts that he was used to write quotations on asking of Yad Ram and Tripan Singh Negi and part of the statement that he was 11th class pass and used to copy the written material in English and that, he was provided with blank letterhead of M/s Divya Sales Corporation by Yad Ram, who asked him to copy the matter of blank letterhead and Yad Ram being his superior, were not found recorded. However, it remained unexplained that when the witness, in the very first instance during his first R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 174 of 209 statement u/s 161 Cr.P.C. had already stated about facts, how his confrontation with subsequent statement could have been beneficial to materially alter the corroboration, since he also stood firm during his examination in chief. At the best the effect of subsequent statement u/s 161 Cr.P.C. must be read in continuation to what he had stated already and not as a negation or a fresh or de novo disclosure. It is also to be noted that the investigation was in continuation and not a fresh take as the RC, as the facts already showed. Further PW5 who admitted to have written all documents in his writing as well as the identity of accused who instructed him to do so, could not be faltered based on a subsequent statement u/s 161 Cr.P.C. which had been recorded by another IO after lapse of about 7 to 8 years. It is not expected of a witness to make a statement in a "parrot like" manner. It is also not expected of a witness to make a taperecorded version representing 'word by word', 'sentence by sentence' of his earlier statement.
352. It is relevant to note that PW5 remained clear, cogent and firm about the fact of him being the author of Ex.PW1/C, qua which no dispute is raised during cross examination as the questions are directed only to shake his statement qua the identity of person instructing him to write the quotations. In this scenario while he has repeated in his examination and crossexamination and clarified in answer to the court question that the document to copy and the computer generated print out were given by accused Yad Ram, no R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 175 of 209 contrary view on veracity of his statement can be drawn.
353. Another integral evidence received on record pertaining to these quotations being ingenuine is received from PW4 Sanjay Chabra, who happened to be the proprietor of M/s Divya Sales Corporation whose quotation Ex.PW1/C was written by PW5 Vinod Singh Rana. While deposing PW4 Sh. Sanjay Chabra clearly stated that he had not written Ex.PW1/C as he could not write in English. He also stated that in the hour of need whenever there was any requirement for a letter being written in English he depended on his immediate aids and assistants. He specified that even the letterhead used for writing Ex.PW1/C (quotation in question) does not belong to his firm. On being asked in crossexamination to produce the letterhead, he brought the letterhead, which was entirely different from the one used in Ex.PW1/C. Though, the address of his premises from where he was carrying out the business remained the same, he did not own the contents of the letter, the handwriting, signatures and/or the letterhead to his firm. The signatures at point A of purported proprietor were denied specifically. He stated that none of the articles mentioned in Ex.PW1/C were dealt with by his firm as he did not stock any such material and/or dealt in its trading. He specifically refused to have given any quotation to any government department and/or having supplied goods to government department and stated that he only does "counter sale". He never had any contact R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 176 of 209 with any NDMC department or officer. He was partly crossexamined by ld. Sr.PP as in his statement u/s 161 Cr.P.C. dated 08.02.2007 which was Ex.PW4/B, wherein he had stated that the rates mentioned in Ex.PW1/C were on "higher side" which information he passed on to the IO. He admitted having made the statement and detailed that the item the cost of which should not have been more than Rs.200 per unit was exorbitantly charged @ Rs.8000/ per unit.
354. During his crossexamination, he produced the letterhead which he was asked and was then exhibited as Ex.PW4/DA. He denied specifically that Ex.PW1/C was written by him and/or any of his employee and given to the Manager, Compost Plant.
355. Similarly, PW8 Sh. Raghunandan Kumar Gupta proprietor of M/s United Electrical and Mechanical Works deposed that though, the letterhead under the quotation dated 27.12.2004 Ex.PW8/A appears to be of his firm, the contents were neither in his hand nor given by him and similarly, he had not signed the same under his hand and/or was signed by anyone from his firm. The signatures at point A were denied, whereafter, the quotation was exhibited as Ex.PW8/A. He admitted that his specimen signatures were taken by CBI against Ex.PW8/B. In crossexamination, despite being confronted with his statement recorded u/s 161 Cr.P.C. wherein, it was recorded that "this letterhead is of his firm only", he clarified that he had told the IO that R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 177 of 209 letterhead appears to be of his firm and he had not admitted that the letterhead used for quotation Ex.PW8/A was of his firm. He again denied having done any job with Manager (Compost Plant). He further denied that he had an employee Sh. Y.P. Taneja and that he had given any authority to Sh. Y.P. Taneja to deal on behalf of his firm.
356. Though, an attempt has been made to introduce an element of doubt during crossexamination by pointing to the fact that apart from the witness Sh. Raghunandan Gupta one Sh. Y.P. Taneja was also participating in the functioning of the firm and the statement of the witness was challenged to the extent that even if he had not written the contents of quotation Ex.PW8/A, it may still be presumed of his firm since his letterhead was admitted and that apart from him some other person was equally holding competence to execute such document. However, except of giving suggestion to above fact accused did not make any effort to establish this fact. No material that the exhibited quotation was written by Sh.Y.P. Taneja was brought through any evidence to contradict the statement of PW8. In absence of above the accused could not discredit the statement of PW8 who denied any link to Ex.PW8/A.
357. Apart from PW8 Sh. Raghunandan Kumar Gupta, Proprietor of M/s United Electrical & Mechanicals Works; PW4 Sh.Sanjay R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 178 of 209 Chabra, proprietor of M/s Divya Sales Corporation; and, PW9 Sh.Govind Ram Garg partner of M/s Arcee Trading Corporation also stated that Ex.PW1/A was not issued by his firm M/s Arcee Trading Corporation of which he was a partner, though the firm was carrying on the business with NDMC since 1993. He doubted Ex.PW1/A by pointing anomalies suggesting that the document was not having any date or signatures and was made by photocopy of letterhead of his firm M/s Arcee Trading Corporation. It did not contain his handwriting and/or of any person known to him and/or any of his employee and furthered that he had not submitted letterhead or quotation to Manager (Compost Plant). He further admitted his specimen signatures were collected during investigation as Ex.PW9/A. In crossexamination, though he admitted that he had two employees Sh. Sanjay Gupta and Sh.Pawan Aggarwal and their hand writing was taken by CBI, Ex.PW1/A was still not of his firm as most of the quotations to NDMC were written only by him.
358. The statements of aforementioned witnesses were strengthened by the testimony of PW13 Anil Kumar, Proprietor of M/s Bhawana Electricals to whom Ex.PW1/B was attributed on record by the accused persons. He denied having written Ex.PW1/B the purported letter/quotation with impression of M/s Bhawana Electricals. He denied the hand writing as well as the letterhead and went on to state that signatures at point A were forged. He denied any knowledge as to R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 179 of 209 how the aforementioned document reached NDMC's file as he had never given any such quotation to Manager (Compost Plant).
359. He admitted that his specimen handwriting and signatures were obtained during investigation which he exhibited as Ex.PW11/C. In crossexamination, he admitted that the nature of work mentioned in Ex.PW1/B was carried out by him in Compost Plant and the documents revealed that the author knew about what kind of job he was having expertise and was doing for NDMC.
360. It is imperative to note that all the above witnesses admitted their signatures and handwriting having been taken as a specimen during investigation and exhibited it as Ex.PW4/A (PW4 Sanjay Chabra) Ex.PW8/B (PW8 Raghunandan Kumar Gupta), Ex.PW9/A (PW9 Govind Garg) Ex.PW11/C (PW13 Anil Kumar) none of the witnesses were challenged with above admitted handwritings and signatures during crossexamination.
361. From the examination/crossexamination of aforementioned witnesses who have remained firm and uniform in their statements, it is shown that document Ex.PW1/A (quotation of Arcee Trading Corporation), Ex.PW1/B (quotation of Bhawana Electricals) and Ex.PW1/C (quotation of Divya Sales Corporation) and Ex.PW1/E (Photocopy of quotation of Aracee Trading Corporation, Ex.PW1/F (photocopy of quotation of Bhawana Electricals) and Ex.PW1/G R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 180 of 209 (Photocopy of quotation of Divya Sales Corporation) were ingenuine and had not been issued/written/signed or prepared by those whose letterheads and signatures were claimed to have been mentioned thereupon. The fact that such quotations were forged came to be averred specifically/clearly/cogently and without any doubt that the letterheads which were either photocopies or computer generated of these firms PW4 Sh. Sanjay Chabra, PW8 Sh. Ranghunandan Kumar Gupta, PW9 Sh. Govind Ram Garg and PW13 Sh.Anil Kumar were handed over by accused Yad Ram to PW5 Sh. Vinod Singh Rana with the material to be copied thereupon. For the fact of fear of loosing job and under threat, the compliance was expected which was then used on record for preparing of estimate.
362. From the aforesaid statements, it is revealed on record that while ingenuine quotations were made and estimate Ex.PW3/A was prepared thereupon.
Section 13 (1)(d) r/w Section 13 (2) P.C. Act
363. In reference to the above discussions, it is relevant to note the conduct of accused A1 to A4 being public servants, "the practice of malafide is so writ large" as they omitted to follow the procedure outlined and requisited and deviated to facilitate the dubious practices enumerated and detailed above.
364. PW1 V.S. Rustagi, Retd. Engineer, NDMC has been brought R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 181 of 209 by prosecution as witness to detail the procedure required to be followed. He deposed that for awarding any tender for any amount, sanction by Planning Department by separate division was required to be taken which work was then to be sent for execution to other division. In the present case, this very policy of check and balance was ignored. While the estimate was drawn by accused P.K. Mathur, AE, sanction by separate Planning Department/Division was not obtained. In turn the sanction was awarded by accused S.C. Jain, Manager (Compost Plant) himself. While the estimate is drawn and approved by the Manager (who held the competence of SE). The NIT was not properly published in the newspapers as was requisited to be published in newspapers and in various divisions of NDMC before ten days of opening of tender, which is evident from the statement of PW6 Sh. J.S. Kohli, Retd. Executive Engineer, NDMC, who showed that NIT (NCP)AB/1068/D dated 31.01.2005 was not received by BMII division of NDMC. In crossexamination, an attempt was made by the accused persons to suggest and introduce a new facet by claiming that the practice of publishing of NIT was initiated only after the CBI raid in this case. However, despite taking a plea of above nature, no such material was brought on record either by way of circular or internal order etc. to support this defence. Moreover, in crossexamination, this fact was clearly denied by aforementioned witness that the diarisation of tender notice started only after CBI contacted the persons in Compost Plant in 2006. He stated R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 182 of 209 specifically that every communication received in any division of NDMC would be first diarized and then action would be taken. Despite his being confronted with his statement Ex.PW6/DA1 and Ex.PW6/DA he remained firm upon his stand and clearly stated that every form received in division is diarized, thus, making it clear that NIT (NCP)AB/1068/D dated 31.01.2005 was not received in the division.
365. Similarly, PW7 Sh.B.K.Sandill, Retd. Executive Engineer (C), NDMC, who exhibited his report Exs.PW7/A1 to PW7/A3, stated that NIT No. M(CP) AB/1068/D dated 31.01.2005 had not been received in his department, which fact he had verified himself alongwith his staff from the dispatch register maintained in the division. There was no effective crossexamination of this witness to discredit his version.
366. PW10 Sh. Ashok Mehta, Retd. Superintendent Engineer exhibited his report dated 15.02.2008 as Ex.PW10/A under his own signatures and one Jai Bhagwal and stated that NIT No. M(CP) AB/1068/D dated 31.01.2005 was not received in store division. In crossexamination he affirmed that report Ex.PW10/A was prepared by his coassistant on his direction and contents were verified by him personally from dak register. He denied that the procedure of getting NIT received from different divisions started only after CBI raid in R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 183 of 209 this case dispelling the defence and corroborating the statements of other witnesses that deviation is made in publishing and publisizing of NIT as requisited to avoid transparency qua proposed tender and to deal with it clandestinely.
367. PW15 Sh. T.R. Meena, Executive Engineer deposed that he was posted in RIV division and reports dated 09.02.2008 and 26.02.2008 regarding receipt of NIT No. M(CP) AB/1068/D dated 31.01.2005 were prepared by him which were already exhibited as Ex.PW6/DA and PW6/DA1 and his report at D17/23 was exhibited by him as Ex.PW15/B. He stated specifically that receipt of aforementioned NIT dated 31.01.2005 was not shown in RIII and R IV divisions. Thus, firming the statements of PW7 and PW10 made above.
368. In reference to the fact that record pertaining to dairy and dispatch of NIT was ingenuine, prosecution produced PW20 Sh.Sauraj Babu @ Swaraj, Beldar who was posted in Compost Plant in the year 2007. He specifically stated that while his posting at Compost Plant, he eyewitnessed the deviation/irregularities and unscrupulous activities being carried out by the accused persons who extracted the services of one Sh. Ashok, peon who had been signing and receiving copies of NIT during the tenure of S.C. Jain. In cross examination, he reiterated that peon Ashok was assigned duty of distributing dak and diarising the same in dak register, though, he did R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 184 of 209 not know what NIT refers to. He affirmed that he told the IO in his statement Ex.PW20/D1 that Sh.Ashok was distributing the dak and singing on several documents but what were those documents he did not know. He admitted that he did not tell that Sh.Ashok was signing on tender documents. However, this piece of his crossexamination could not sufficiently shake the credence of his examination, wherein, he had pointed that Sh.Ashok was seen by him receiving copies of NIT. While in crossexamination, an attempt is made to suggest that witness is unaware of the nature of document though it could not be shown sufficiently that the practice of entering dak, receiving the same and making dispatch entries were not being done by Ashok only, who was appointed as a Peon and was not to entrust for above jobs. It was not denied that at the relevant time the said job was not being performed in the manner as detailed by the witness under the tenure of accused S.C. Jain and or the diary / dispatch work was part of profile of Ashok and / or some other official was carrying out the job of diary/dispatch. It is interesting to note that PW20 even pointed to informal proximity of peon with senior officials in his statement which part of his statement was not controverted.
369. Thus, it was shown that the practice of publishing NIT and its publication had not been followed.
370. Deviations in the established process were also made evident from the fact that despite the established procedure for taking the rates R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 185 of 209 for specified items recognised by CPWD Manual/SR94 Ex.PW3/B, the accused without any reason or justification made an estimate on the rates which as per their defence were obtained from market. As discussed above, it is apparent that even these rates which were taken by way of quotation under the garb of market rates were much inflated and the manipulation in the rate is also evident from the statement of witnesses.
371. The prosecution through PW3 Sh. C.L. Jindal detailed the flaws in the estimate. PW3 C.L. Jindal who was retired Chief Engineer (Electrical) in the first instance stated that Ex.PW1/D showed that work which has been clubbed should not have been clubbed for its description and its nature. He also stated that rates were at much higher side than approved CPWD SR94 rates. He exhibited CPWD SR94 as Ex.PW3/B and the estimate was exhibited as Ex.PW3/A. PW3 C.L. Jindal and specifically identified the signatures of accused P.K. Mathur who was the author of the Estimate.
372. It was reflected that he was immediate officer of S.C. Jain (A1) from the year 2004 till the date of his own retirement.
373. He was examined on specific items which were part of tender and was enquired about the cost of shifting of split AC. He reiterated that cost of split AC shifting in any circumstance should not exceed R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 186 of 209 more than Rs.3,000/.
374. He also clarified that in his initial statement he had not told CBI that cost of shifting AC would not have exceeded Rs.3000/ as he was not asked the same and had stated specifically that rates are on higher sides. He also stated to the IO that price of single earthing point according to him was on higher side and the estimate is taken on 'lumpsum' basis. He also stated that the job in question could not have been got done on tender basis and should have only been done by BII division which was created for such specific works and therefore, the work should not have been done through the tender.
375. In response to the cost incurred pertaining to earthing item, he stated that earthing item is complete as a whole and it also includes excavation, which he specifically mentioned at page 46 of Ex.PW3/B. He denied that excavation is not covered at point X at Ex.PW3/B. He again affirmed the answer from ChapterV Earthing from CPWD Manual mark PW3/DX2 but affirmed the answer that excavation is covered in earthing unit. He denied that there was any requirement for seeing method of pipe earthing mark PW3/DX3 for giving rate of earthing unit.
376. There was no specific material made available on record during crossexamination to suggest that the witness was making statement contrary to established procedure. He was not confronted with any R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 187 of 209 manual or internal circular or rules etc. to point out that there were flaws in his statement of assessment regarding the price having been taken on higher side and clubbing of work which by nature should not have been clubbed in order to increase the cost of tender. Further, the fact that despite specific unit BII available for carrying out aforementioned job which was exclusively put on tender, the mode of utilisation of BII division/branch should have been used to avoid expense to public exchequer. It also could not be denied that CPWD Manual SR94 specifically relied upon by PW3, was not applicable and/or its use was not mandated in order to assess cost of items and even the tender prices should not have been indicative of what was mentioned in CPWD Manual SR94 and the provision of raising the estimate on market price was not available in the present case, specifically in relation to the items mentioned in CPWD SR94 Manual.
377. At this stage, it is pertinent to make observation regarding written arguments tendered on record by ld. Counsel Mr. Mir Akhtar Hussain, whereby, the rates taken by PW3 and PW16 have been challenged. It is specifically stated by accused that the rate analysis given by PW16 is imaginary, illusionary, wishful and the basis of method to harm A1 S.C. Jain at the instance of PW3 C.L.Jindal, it is averred that the work was awarded in the year 2005 and the DSR quoted by PW16 of the year 1994 i.e. there is a gap of 11 years R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 188 of 209 between the DSR 1994 and the work allotted. He claimed that though PW16 has used the word cost index @70% but has taken the Whole Sale Price Index into consideration while preparing the rate analysis. It is averred that while discussing the earthing, expenses for excavation is not taken into consideration which is not provided in DSR and hence, it is a separate item. It is averred that the drawing being part and parcel of agreement, the contractor was bound to make hole of 30 cms diameter and 4.75 meter deep holes and then to fill it with salt and charcoal properly for maintaining moisture inside the bore but PW16 has not calculated the cost of this of this process, labour of workers and the craftsman and the items used in the process. It is also claimed that PW16 has not given rate of length of GI Strip used at the site but has only given the rate per meter and has arrived at the calculation in vague manner. It is claimed that as per Indian Electricity rules, it is mandatory to maintain a distance of 1.5 meter between the body of the building and in this case the body of the pillar and hence, the length of GI Strip would be anywhere between 3 to 4 meters whereas, in this case only 3 meters have been calculated. It is further alleged that PW16 has not added "incentive for working in hazardous conditions" for which 25% additional incentive is provided in DSR.
378. However, all the aforesaid submissions have been met "point by point" by the witness. PW3 C.L.Jindal in his crossexamination as R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 189 of 209 he specifically was put the questions regarding shifting of AC, to which, he stated that cost in no circumstance can exceed Rs.3,000/. While it was claimed that the additional expenses were mounted due to preparation of cage to safeguard the AC as it was fixed in open and/or quality of wire being that of L&T brand and thus, no material was tendered by accused persons to suggest fixation of cage, use of wire make L&T, its length etc. to this witness. Even, in the tender there was no such item quoted specifically. Having regard to his expertise and years of experience his statement could not be discredited where PW3 remained firm in stating that under no circumstance the cost could be more than Rs.3,000/. It is to be observed that after this examination, crossexamination where the accused could not receive any benefit, it became incumbent upon them, especially upon accused Ravi Gupta (who allegedly carried out the aforementioned work) to produce record by way of receipts/ledger etc. suggesting to have incurred expenses beyond what is alleged to by PW3 C.L. Jindal. No departmental record was also summoned to suggest consumption of any such articles, by accused.
379. There was no controversion to the statement that the job in question must have been got done with the help of BII division since BII division is an exclusive unit and the work should have not been done through tender.
380. PW3 C.L. Jindal specifically pointed out from page46 of R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 190 of 209 CPWD SR94 which he exhibited as Ex.PW3/B that the job of earthing item is complete as a whole and inclusive of excavation. Similar statement was made by PW16 Y.K. Sabarwal. Even, the suggestion that excavation is not covered was denied in which case the burden was upon the accused persons to establish that excavation work was separate from the earthing and was chargeable in addition. No circular/order or SoP etc. was produced by accused persons to suggest the aforementioned claim or the statement shown as page 46 of CPWD SR94 which was stressed by PW3.
381. PW3 C.L. Jindal further stated specifically that standard pipe earthing drawing followed by Elecctrical Division is a single item and it is not a mixed design involving mechanical, civil and electrical work and is shown as tender in CPWDSR94 as single item.
382. At this stage, it is imperative to take note of crossexamination of PW16 Y.K. Sabarwal, who carried out inspection during the investigation and tendered report Ex.PW12/B, wherein, he stated that the rates of item no. 2101 i.e. earthing with G.I. Pipe (EARGIPIP) in SR 94 were exclusive of digging the bore prescribed in the drawing supplied with the schedule of quantity and stated that it is complete work. He was then asked to support his answer with some documentary evidence, to which he replied that it is scheduled rate items. CPWD schedule is the document in question. As is shown from the demeanor recorded by ld. Predecessor, he referred to R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 191 of 209 schedule of rates for electrical work (part1 internal 1994) and submitted that the description of item 2101 at internal page 46 at 2101 is self explanatory and reads as "Earthing with G.I. earth pipe 4.5 mm long x 40 mm dia including accessories, and providing masonry enclosure with cover plate having locking arrangement and watering pipe etc. (but without charcoal or coke and salt) complete as required". His reply was same regarding the excavation would have been specifically mentioned therein. He was then confronted with CPWD, Delhi Analysis of Rates (Electrical) 2012 then exhibited as Ex.PW16/D1 (03 pages) and asked to go through the same and explain as to whether the excavation and refilling part is included in this earthing without charcoal/coke and salt. After going through the same he replied that the excavation and refilling part is included in the labour rates given in the analysis of rates. The contrary suggestion was denied. He admitted that there are separate rate analysis for earthing with charcoal/code and salt and earthing without charcoal/coke and salt. However, this part of crossexamination could not be utilized to benefit by accused as no final work done statement to show construction of charcoal and salt and the quantity and its price and expense chart or final payment receipts were produced on record or confronted with the witness to establish the correctness of the estimate Ex.PW3/A.
383. PW16 was again subjected to confrontation with chapterV R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 192 of 209 earthing "providing and fixing 25 mm x 5 mm G.I. strip in 40 mm dia G.I. Pipe from earth electrode.... as required", which he had given, the document was then exhibited as Ex.PW16/D2. He admitted that Ex.PW16/D2 is also a rate analysis of scheduled item and further stated that despite being scheduled item the excavation and refilling part is specifically mentioned at point A to A1. He was then shown Delhi Schedule of Rate (E&M) 2014 Chaptervii, page 347 titled as M.V. Cable Laying, on which he stated that the item is a scheduled item and was then exhibited as Ex.PW16/D3. He admitted as correct that the rates analysis has been done after taking into consideration excavation, sand cushioning, protective covering and refilling the trench etc. He was then shown chapterVII titled as M.V. Cable laying from Delhi Analysis of Rates (Electrical) 2012, page 26, on which he admitted that item mentioned as 7.1 is a scheduled item, which was then exhibited as Ex.PW16/D4. He admitted that the rate analysis has been done after taking into consideration excavation, sand cushioning, protective covering and refilling the trench etc. are required is specifically mentioned.
384. However, despite this, it could not be shown that schedule rates of CPWD SR94 Manual were not applicable to the work in question and/or even if the rate analysis was separately taken in terms of Delhi Analysis of Rates (Electrical) 2012, the rate is taken in estimate Ex.PW3/A, were in comparison and competitive to above and/or were R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 193 of 209 the premise on which the estimate was based.
385. Rather, this contention establishes the opposite point to prove that under any of the circumstances recourse to market rate could not have been taken, which fact was again stressed by PW16 in support of testimony of PW3 that the basis of him arriving at the estimate in his report, he relied upon CPWD SR94 Manual, which again established that recourse to collecting quotations and/or estimates as the accused pleaded was not available and they ignored all the procedurally established rules in making estimate Ex.PW3/A on the basis of alleged market rate. Moreover, the accused who denied applicability of CPWD SR94 Manual and discredited the version of PW3 and PW16 were obligated to prove the grounds and reasons of their resorting to market rate in preparing estimate Ex.PW3/A. However, no material suggesting that estimate was correctly made on market rate was shown or brought on record.
386. In view of the aforesaid, nothing has been brought on record to suggest that the contention of prosecution through PW3 and PW16 specifically that the rates were inflated many times is mispremised. It is apparent that item no.1 (earthing with GI pipe), cost of which should not have been Rs.29,248/ was inflated to the cost of Rs.96,000/; item no.1 (repairing of Hand Tower ladder (SANDLY) , the price of which was paid @ Rs.17,435/ should have been @ Rs.11,205/, which also included the profit of contractor. The amount R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 194 of 209 of Rs.15,385/ which was paid for item no.3 (fixing and commissioning power contractor ML6 of 110 ampere capacity) should have been Rs.7,707/; and, for item no.4 (dismantling exhaust fan of split type AC) price paid was Rs.15,000/, whereas, for this type of work, there is a specific division of Electricity Division in NDMC.
387. The aforementioned facts clearly suggest that after having generated false quotations, an estimate was falsely prepared thereupon in order to facilitate the ingenuine tender process which was contrary to available procedure and in deviation of the applicable rules, which itself is indicative of malafide intentions held behind the entire process.
388. The factual matrix further reveal that subsequent to the quotations Ex.PW1/A, Ex.PW1/B, and Ex.PW1/C and Ex.PW1/E, Ex.PW1/F and Ex.PW1/G having been procured/created/forged and used by accused Yad Ram and endorsed by P.K. Mathur, AE in preparing estimate Ex.PW3/A, the justification for the aforementioned were checked by A4 D.C. Sharma. It has been claimed all through during proceedings that A4 D.C. Sharma was not a regular draftsman/accountant and/or was not authorized to participate in the justification for aforementioned estimate during tendering process. While it remains admitted by accused D.C. Sharma that he was not posted at Compost Plant and this fact had been reiterated during examination/crossexamination of all the witnesses, R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 195 of 209 it has been claimed that he had been summoned by Manager (Compost Plant) for the purposes of checking estimates and since he had been summoned by superior officer he could not have refused him. However, there is no material as such to suggest that as per procedure checking of estimate was mandated or should have been performed by him and/or was part of his duty where he was under any mandate to carry out the work directed as such. PW3 C.L. Jindal, who in fact was immediate superior before retirement of A1 S.C. Jain, Manager (Compost Plant), specifically stated that in the electrical division estimates are not checked by draftsman and same are checked by Electric Accountant and in some cases the estimates are checked from Planning Division/Department. While it remained admitted that the position of draftsman is not attached to electrical division and was indeed attached to the Civil division, how the services of head draftsman from Civil division posted at CVI Division, NDCC, Phase II, Jai Singh Road, New Delhi could be availed by A1 S.C. Jain, A2 Yad Ram and A3 P.K. Mathur and rendered by A4 D.C. Sharma for checking the estimation of electrical work, it itself is sufficient to raise doubt.
389. It is intriguing to note that there is no noting or exchange of communication in writing asking for services of A4 D.C. Sharma and/or its approval by the immediate superior of A4 to avail his services for above work specifically. It is necessary that accused D.C. R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 196 of 209 Sharma who was posted at Jai Singh Road, New Delhi, must have been governed by departmental procedural rules. He could not have 'impromptu' on being called telephonically extended his services to a department with which he was not officially attached. The services of accused D.C. Sharma could only have been received either on request to his superior with his permission in writing or through due process/course orally which must have then reduced as part of noting or record. In absence of any such noting, selection only of accused D.C. Sharma despite his having no background of electric work or any previous experience to his credit to check any such estimate becomes doubtful. There is no procedure shown which suggest that services of an official, outside of Compost Plant could have been obtained on mere phone call and the official too, merely on receiving phone call would have jumped into action to participate in such vital proceedings without showing due application of rules and having maintained any record of movement.
390. It is worthwhile to observe that even if it is considered that Compost Plant is a separate unit created for specific work and at the relevant time was attached with Civil Department, Electric Department, Medical Officer and even Secretary, NDMC, the requisite for calling an official from outside the Compost Plant without any noting of movement or authorisation of his superior officer does not satisfy the criteria of official conduct. Even R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 197 of 209 otherwise, portion of crossexamination suggest that the estimate in Electric Division is prepared by technical staff and initiated by JE (Electricals) or calculation officer such as Superintendent(Technical) and that JE (Electrical) and Supdt. (Electrical) were one and the same post. In view of the aforementioned, it is specifically shown that estimate is needed to be drawn by a person fully aware of the electric field having knowledge of the requisite material and its cost etc., which must duly be justified through the technical as well as departmental knowledge of electrical field coupled with the knowledge of internal procedures and rules. It is intriguing in such case that estimate prepared by JE who has a technical knowledge clubbed with the domain based experience of electrical field and is occupying a responsible position of JE or Supdt. (Technical) could be checked by a person having no domain knowledge, market information or the subject knowledge of the technical filed of which he is expected to check the estimate. It is unexplained how a draftsman belonging to Civil filed having no knowledge of electrical filed acquired the competence to look into the estimation and that itself suggests that accused ignored with impunity the requisite justification to avoid the process in order to indulge in acts which could not be qualified as authorised, just or legal.
391. In this background, the second allegation made by prosecution that accused D.C. Sharma overlooked the flaws of estimation is rather R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 198 of 209 pleaded as defence, as accused D.C. Sharma admitted that he merely checked the calculation and tried to take refuge under the notings at Point A to A Ex.PW1/D (pg.1). His defence is contradicted again by witnesses, especially PW3 C.L. Jindal, who have specifically stated that firstly the availability of job of draftsman in such circumstances is doubtful, and, secondly, if at all his services are used he is not expected to merely check the calculation but is also expected to apply his mind to its authenticity, genuineness, rules and source from where it has been collected and raise objection if they are not out of the expected domain and/or are made frivolously. PW3 C.L. Jindal has gone on to state that in certain cases, the draftsman is expected even to visit the site and check the measurement to see that the estimation is made duly. Through this aforesaid response ld. amicus curiae claimed vindication of his stand to suggest that the job of draftsman is a field job, he omitted to see that the benefit of this statement can be availed only within the domain to which accused was attached to. Hence, even if he had a field job, it was restricted to check the civil work and not the work carried outside his department to which he was neither responsible nor an expert. Even otherwise, this crossexamination suggests that even if it is presumed as correct that the draftsman has a field duty/obligation, accused D.C. Sharma failed to show the use of that authority and admittedly, has only sat in the office to merely do the job of computation and not seek verification of estimation which admittedly was requisited. The fact that there has been glaring R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 199 of 209 omissions on part of accused D.C. Sharma is again pointed specifically by PW3 C.L. Jindal, who on being shown Ex.PW1/D (page 1 i.e. estimate Ex.PW3/A) on which he had written on the basic of market rates quotation and checked for Rs.1,31,655/ and submitted for "NA please", the witness replied that the official should have satisfied himself within market rate quotation the basis of rate taking and estimation, while checking.
392. In response to a specific question where PW3 C.L. Jindal was asked to explain the hierarchy in electrical division, he while being in crossexamination stated specifically "the hierarchy in electric division is that it is headed by Executive Engineer and then followed by SubDivisional Officers called AEs and JEs". It is not shown that while the head draftsman who is admittedly placed under the jurisdiction of Civil Department and is not part of hierarchy of Electrical Department as is explained by PW3, could be penalised for an act of insubordination for refusing to attend the matter which does not fall within his own domain and/or of where he is not even shown subordinate to the accused.
393. Interestingly, in crossexamination, the witness is also asked that educational qualification of a draftsman are always inferior in comparison to educational qualification of JE and AE. The question suggests and indicates towards the contrary preposition where a junior official cannot be asked to sit in authority over a decision qua estimate R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 200 of 209 by an official superior to him and where estimate made on technical knowledge outside the domain of the draftsman.
394. It is pertinent to observe that in response to questions put during crossexamination, he pointed out that estimate Ex.PW3/A was checked on photocopy quotations and despite it having been sanctioned and approved whether the justification of quotations on market rate were must have been checked from CPWD SR94,he denied that CWPD SR94 Manual was applicable to electric department alone and stated that for the job work mentioned it should have been consulted for correct use of rate agreement. He stated further that CPWD SSR94 was in public domain and was easily available. Ld. amicus curiae rather by pointing at point C to C on Ex.PW3/A admitted that accused D.C. Sharma did not check the justification of market rate or applied the mandatory rate(s) available in CPWD SR94 Manual nor pointed out to the fact of photocopy quotation and only performed a frivolous job of computations.
395. It be observed that accused through his own evidence admitted the fact that he was not authorized to act in checking the estimate as his witness DW1 Mohd. Shamim Khan, Addl. Chief Engineer (Civil), NDMC, who served upon him a memo calling explanation and received his reply, in his noting dated 17.02.2008 made a note in para 3 as under " he was not authorized officially to check the estimates, justification etc. prepared by engineer of NMDC, Compost Plant and R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 201 of 209 to give his recommendation, comments in the respective file related to Civil, Elctrical, mechanical in nature".
396. All the aforementioned questions clearly suggest that nothing contrary could be elucidated from the assessment of evidence that there was any athorisation in his favour for participating, intervening and/or extending his services for the purpose of estimate checking and that the said act on his part was in furtherance of any approval or knowledge of his superiors.
(V) What material is placed on record to support the charge framed against the accused persons u/s 120B IPC i.e. conspiracy and is admissibility?
397. The accused persons have also been charged for participating in act of conspiracy u/s 120B IPC. For understanding the applicability of Section 120B IPC, the necessary provision of understanding its definition is Section 120A IPC, wherein, the following is detailed :
"120A. Definition of criminal conspiracy.--When two or more persons agree to do, or cause to be done --
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation.--It is immaterial whether the illegal act is R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 202 of 209 the ultimate object of such agreement, or is merely incidental to that object.]"
398. While discussing the ingredients of conspiracy in Sushil Suri vs. CBI AIR 2011 SC 1713 it is held "The essential ingredient of the offence of "criminal conspiracy", defined in Section 120A IPC, is the agreement to commit an offence. Mere proof of such an agreement is sufficient to establish criminal conspiracy.
399. In Pratapbhai Hamirbhai Solanki Vs. State of Gujarat 2012 (10) JT 286, the necessary requirement and mode of proof of criminal conspiracy is detailed as under :
"...............the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused........."
400. The material revealed on record suggests that all the accused persons in furtherance of their illegal designs colluded with each other with intention to defraud NDMC for their personal/private gains. The evidence suggests clearly that the rules and procedure were thrown out of caution as the services of PW5 Vinod Singh Rana, Beldar were utilized for forging quotations and he admitted having written R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 203 of 209 Ex.PW1/C specifically. These quotations were then used by accused Yad Ram, who caused preparation of quotations through Sh.Vinod Singh Rana by handing over to him the photocopies of the letterheads and the proposed written material for finally drawing estimate by his own hand which is Ex.PW3/A, which is made basis for inviting the tendering process, file of which is Ex.PW1/D. The estimate is much inflated as is stated by the witnesses, especially by PW16 Y.K. Sabarwal itemwise who stated in report Ex.PW11/A. The estimate was then got checked unauthorizedly from accused D.C. Sharma who was neither posted in Compost Plant nor was having any technical knowledge of expert domain thus, did not have any competence to make any correction or checking thereupon There was no material shown that services of accused D.C. Sharma were used through due process by getting him released through his superior. The plea of accused D.C. Sharma that he was under belief that his act of refusal would tantamount to insubordination is also not established since he did not fall in the hierarchy of the division to clearly show is subordination, in first place, to any of the accused namely S.C. Jain, Yad Ram and P.K. Mathur. After having made the estimation, accused S.C. Jain imparted sanction. The procedure stated by PW1 was flouted and the process of NIT publication was avoided by making peon Ashok deal with dispatch work which fact is stated by PW20 Beldar Sauraj@ Swaraj. Further NITs were not duly published is also stated by PW6, PW7 and PW10. It is also shown on record that final R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 204 of 209 payment against bill MarkA was passed onto the accused Ravi Gupta who signed on report/final bill.
401. The aforesaid acts clearly suggest active participation again by revealing that how all accused persons were hand in gloves with each other. By aforesaid documents only on which accused Ravi Gupta has succeeded being the lowest bidder and the payment vide bills also made to him showing a clear advantage of wrongful gain in their favour and culmination of successful series of acts in due discharge of the conspiracy.
402. Now, at this stage, I must also deal with the remaining arguments of ld. Counsel Mr. Mir Akhtar Hussain as he pleaded that the accused persons are framed due to personal rivalry of accused S.C.Jain and PW3 C.L.Jindal. However, aforementioned only remained an allegation as no material to substantiate the same has been furthered. There is no reflection through any documentary or oral evidence in the first place of existence of any personal rivalry between the two senior officials. No material such as any complaint, memo or noting etc. is pointed which may indicate any reason for such grudge by PW3 C.L. Jindal against accused S.C. Jain. Secondly, there is no material to point out that it is for this reason, that led to filing of FIR in the instant case. There is no crossexamination of PW19 who proved the FIR to establish any viciousness in origin of complaint. Moreover, there is no enmity cited amongst the rest of the accused R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 205 of 209 persons and PW3 C.L. Jindal to ignite the complaint against them. Hence, no such background is available to reach on any conclusion of malafide and maleficence to say that the complaint has been motivated at the hands of PW3 C.L. Jindal.
(VIII) Whether any sanction is required against any of the accused persons and if so, the impact of its absence?
403. The prosecution of accused persons in this case is also based on charges arising out of Prevention of Corruption Act as all accused persons except A5 Ravi Gupta are public servants.
404. Though, none of the accused have challenged the question pertaining to sanction, in order to record finding of the present case under special provisions, mandate of Sec.19 P.C. Act cannot be bypassed. It is also necessary to observe from the perspective of Sec.197 Cr.P.C. as to note its extension and application or lack of it as the case may be. It is apparent and undisputed that on the date of cognizance all accused persons demitted their public office and had reached superannuation.
405. In Habibulla Khan vs. Statet of Orissa & Anr. (1995) 2 SCC 437, the Hon'ble Supreme Court observed as below :
".......We would however, like to make it abundantly clear that if the two decisions purport to lay down that even if a public servant has ceased to hold that office as public servant which he is alleged to have abused or R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 206 of 209 misused for corrupt motives, but on the date of taking cognizance of an offence alleged to have been committed by him as a public servant which he ceased to be and holds an entirely different public office which he is neither alleged to have misused or abused for corrupt motives, yet the sanction of authority competent to remove him from such latter office would be necessary before taking cognizance of the offence alleged to have been committed by the public servant while holding an office which he is alleged to have abused or misused and which he has ceased to hold, the decisions in our opinion, do not lay down the correct law and cannot be accepted as making a correct interpretation of Section
6........"
406. In State of Kerala vs. V. Padmanbhan Nair (19999) 5 SCC 690, Hon'ble Supreme Court observed as below :
"6. The correct legal position, therefore, is that an accused facing prosecution for offences under the PC Act cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the court took cognizance of the said offences. So the High Court was at any rate wrong in quashing the prosecution proceedings insofar as they related to offences under the PC Act.
7. That apart, the contention of the respondent that for offences under Sections 406 and 409 read with Section 120B of IPC sanction under Section 197 of the Code is a condition precedent for launching the prosecution is equally fallacious. This Court has stated the correct legal position in Shreekantiah Ramayya Munnipalli v. State of Bombay [AIR 1955 SC 287 : 57 Bom LR 632] and also Amrik Singh v. State of Pepsu R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 207 of 209 [AIR 1955 SC 309] that it is not every offence committed by a public servant which requires sanction for prosecution under Section 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties. Following the above legal position it was held in Harihar Prasad [(1972) 3 SCC 89 : 1972 SCC (Cri) 409] as follows:
"As far as the offence of criminal conspiracy punishable under Section 120B, read with Section 409, Penal Code, 1860 is concerned and also Section 5(2) of the Prevention of Corruption Act is concerned, they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar.
407. From the foregoing paras, the necessary apparent conclusion is that where a public servant has seized to be in public office, no sanction for his prosecution is mandated by Section 19 P.C. Act. This legal preposition is apparently admitted by accused themselves who have not raised any challenge to their prosecution and conduct of present trial. It is not denied that Section 19 P.C. Act is not attracted in the present case. Further, the provisions of Section 197 Cr.P.C., which may have been requisited to be complied are also not shown applicable for the reasons that the accused public servant have not claimed that any part of their act brought in to accusations against R/CC No. 174/2019 CBI vs. S.C. Jain & Ors. Page 208 of 209 them was covered and/or was part of duty. The discussions on their involvement in foregoing paras which is not reproduced for the sake of brevity, sufficiently shows that the acts for which they are charged were not part of their official duties and cannot be claimed to avoid penal action against them.
408. From the discussion above, I find all accused persons are guilty of offences under Sections 120B IPC; accused Ravi Gupta under Section 420 IPC; accused S.C. Jain, accused Yad Ram, accused P.K. Mathur and accused D.C. Sharma under Sections 420/471 IPC r/w Sections 468 IPC and under Section 13(1)(d) r/w Section 13(2) of P.C. Act.
Announced in the open Court (Nirja Bhatia)
on 26th day of August, 2021 Spl. Judge (PC Act) CBI03
Rouse Avenue District Courts,
New Delhi
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