State vs . 1. Ashok Kumar Gupta on 29 October, 2015

[Cites 52, Cited by 0]

Delhi District Court

State vs . 1. Ashok Kumar Gupta on 29 October, 2015

IN THE COURT OF MS. POONAM CHAUDHRY, SPECIAL JUDGE07 
     (CENTRAL), (POC ACT CASES OF ACB, GNCTD), DELHI


CC.NO.  : 38/12
Unique Case ID : 02401R0463712009


STATE              VS.              1.    Ashok Kumar Gupta
                                          S/o Sh. B.S.Gupta
                                          R/o 26/87, Shakti Nagar,  
                                          New Delhi.
                                    2.    S. N. Goel 
                                          S/o Sh. S.C.Goel
                                          R/o F26/69, Sec7, Rohini,
                                          New Delhi.
                                    3.    Sanjay Kumar Jain
                                          S/o Sh. Darshan Lal Jain
                                          R/o 48/6, MCD Flats,
                                          Bunglow Road, Delhi.
                                    4.    C.B. Singh
                                          S/o Sh. Jhamman Singh
                                          R/o D831A, Gali No.3, 
                                          Ashok Nagar, Delhi110093.


FIR NO.                   :        24/2004


U/S                            :      420, 120B IPC & 13(2) & 13 (1)(d) POC Act 


P.S.                            :     Anti Corruption Branch


C.C. No. 38/12              State Vs. Ashok Kumar Gupta etc.                 Page No.     1 
                     Date of Institution 05.10.2009
                    Judgment reserved on 13.10.2015
                    Judgment delivered on 29.10.2015

 
JUDGMENT

1. The case of the prosecution in brief is that on or before 10.7.1998, accused S.N.Goel, accused Sanjay Kumar Jain and accused C.B.Singh while posted as Junior Engineer (JE), Assistant Engineer (AE) and Executive Engineer (EE) respectively in Division No. XVI, Civil Lines Zone, Municipal Corporation of Delhi (in short MCD), entered into criminal conspiracy with M/s Universal Sanitary Emporium, Delhi, through its proprietor (contractor) coaccused Ashok Kumar Gupta working in Division No. XVI, MCD as a contractor, to cheat MCD by passing the bills and releasing the payment to him and causing pecuniary gain to him to the tune of Rs. 1.75 lacs without any invoices, in pursuance of conspiracy, being public servants in discharge of official duties by corrupt and illegal means or otherwise by abusing their official position despite the fact that the requisite terms and conditions of the C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 2 work orders bearing no. 186 dt. 10.7.1998 for repair of road in FBlock, Shastri Nagar in CLZ, SH: M/P near F1 to F16 and F47 to Nag Mandir Road and Order no. 535 dt. 24.12.1998 for repair of road in Shehzada Bagh in C120/CLZ, SH: Imp by patch repair on Subhdara Colony to Indralok in C120, CLZ, awarded to M/s Universal Sanitary Emporium, Delhi were not fulfilled. As per the terms and conditions of the above work orders accused Ashok Kumar Gupta had to purchase fresh "Bitumin" from any of the authorized oil companies of the Government of India viz. M/s Indian Oil Corporation Ltd. (in short, IOCL), M/s Bharat Petroleum (in short, BP), M/s Hindustan Petroleum (in short, HP) and original receipt was to be submitted to the Department of Municipal Corporation of Delhi as proof of purchase and receipt of no other dealer / stockist etc. was to be accepted. But while executing the said road works, sub standard/unauthorized "Bitumin" was used for the works orders and MCD was cheated by passing bills of Rs.1.75 lacs without invoices from any of the authorized oil companies of the Government of India. The bills were passed and payment C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 3 were released to accused Ashok Kumar Gupta, thereby causing pecuniary gain to him and loss to MCD and thereby all the accused committed offence punishable U/S 120B IPC, Secondly, on the above facts, accused S.K. Jain, S.N. Goel and C.B. Singh committed offence U/S 13 (1)(d) punishable U/S 13(2) of the Prevention of Corruption Act (in short POC Act), 1988 r/w 120B IPC, in conspiracy with accused Ashok Kumar Gupta by abusing their position as public servants in pursuance of the conspiracy to cheat MCD by passing bills and releasing payments to the contractor Ashok Kumar Gupta by causing pecuniary gain to him and loss to MCD in discharge of their official duties by corrupt means. Thirdly, on the above facts, all the accused also cheated MCD by way of submitting bills amounting to Rs.1.75 lacs without any invoices from an authorized oil company of the Government of India and bills were passed and payment released to the contractor accused Ashok Kumar Gupta dishonestly by inducing MCD and causing pecuniary gain to contractor and loss to Government exchequer/MCD, all the accused thereby committed an offence of cheating punishable U/S 420 IPC r/w Section 120B IPC. C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 4

2. After completion of the investigation charge sheet was filed against all the accused. Charges were framed against all the accused u/s. 120B IPC, Section 13 (1)(d) punishable u/s. 13(2) of POC Act r/w Section 120 B IPC and Section 420 IPC r/w Section 120 B IPC, to which all the accused pleaded not guilty and claimed trial.

3. The prosecution examined as many as 22 witnesses in support of its case.

1) PW1 ASI K.L. Meena proved the FIR Ex. PW1/A. He stated that after registration of the case, rukka and copy of FIR were handed over to Inspector S.S. Sandhu.

2) PW2 Shri Tirath Ram, Assistant Director, Vigilance, MCD proved the biodatas of accused S.N. Goel as Ex.

PW2/A, accused S.K. Jain as Ex. PW2/B and accused C.B. Singh as Ex. PW2/C.

3) PW3 ACP Rajender Singh Manku deposed that he was posted as an Inspector in the Anti Corruption Branch (in short, ACB) when information was received from reliable source that M/s. Universal Sanitary Emporium, Delhi had been awarded two work orders amounting to Rs. 2 lakhs in the year 1998 by C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 5 the then Engineers of division no. XVI MCD vide work order no. 186 dated 10.07.98 and work order no. 535 dated 24.12.98. He further stated as per terms and conditions of the work orders the contractor had to purchase fresh Bitumin from any of the authorized oil companies of Government of India viz. IOCL, BP and HP and submit the original receipt to the department of MCD as proof of the purchase of bitumin and no receipt of any other stockist was to be accepted. PW3 further stated that while executing the said work, the engineers of Division No. XVI, MCD entered into a criminal conspiracy with the contractor/accused Ashok Kumar Gupta proprietor of M/s. Universal Sanitary Emporium, Delhi who used sub standard unauthorized bitumin for the above said road works and cheated MCD by submitting bills amounting to Rs. 1.75 lakhs without any documentary proof of the purchase of Bitumin from any of the authorized oil companies of Government of India. He also deposed that accused S.N. Goel, Sanjay Kumar Jain and C.B. Singh the then Engineers in Division No. XVI MCD passed the bills and released payment to Ashok Kumar Gupta by abusing their official position as C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 6 public servants. He also stated that the above named Engineers being public servants caused wrongful gain to the contractor and wrongful loss to MCD. He further testified that as the facts disclosed prima facie commission of offence punishable U/S 120B IPC r/w Section 420 IPC and Section 13(2) r/w Section 13(1)(d) of POC Act against the Engineers of MCD and the contractor Ashok Kumar Gupta, he obtained permission from senior officials of AC Branch and prepared the rukka. PW3 proved the rukka Ex.PW3/A on which FIR Ex.PW1/A was registered. He also stated that after registration of the case further investigation was handed over to Inspector S.S. Sandhu.

4) PW4 Arun Kumar Goel stated that on 16.03.09 he was on duty as a panch witness in AC Branch and had joined investigation. He further stated that IO had made enquiries from Ashok Kumar Gupta in his presence. He also stated that accused Ashok Kumar Gupta gave his specimen handwriting to the IO willingly which were Ex. PW4/A1 to A10. He correctly identified accused Ashok Kumar Gupta.

5) PW5 Rajpal Singh deposed that on 11.06.07, he joined C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 7 investigation as a panch witness and accused Ashok Kumar Gupta was arrested in his presence vide arrest memo Ex. PW5/A.

6) PW6 Sh. Pradeep Sharma stated that in the year 199899, he was posted as a tender clerk in Div. No. XVI, MCD. He further testified that IO has shown to him a photocopy of work order no. 186 dated 10.07.98, tender file and bills. He stated that the tender form and scrutiny proforma were prepared by him. He further stated that above said work order was awarded to M/s. Universal Sanitary Emporium, having its office at 26/87, Shakti Nagar, Delhi of which accused Ashok Kumar Gupta was the proprietor. He also correctly identified accused Ashok Kumar Gupta. He further stated that during the said period, accused S.N. Goel was posted as JE, accused S.K. Jain as AE, accused C.B. Singh as EE in Division No.XVI MCD Civil Line Zone. He correctly identified above named accused (Engineers). He further deposed that work order dated 10.07.98 Ex.PW6/A(colly.) and Ex.PW6/B(colly.) bear the signatures of accused C.B. Singh, EE at point A, S.N. Goel, JE at point B and S.K. Jain AE at point C and his signatures at C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 8 point D and that of the contractor at point E. PW6 also stated that he could identify the signatures of all the accused as he had worked with them in the ordinary course of his duties.

7) PW7 Sh. Narender Kumar Sharma stated that in the year 199899, he was posted as Tender Clerk in Division No.XVI, MCD when the IO had shown him a photocopy of work order no. 535 dt. 24.12.98 tender file as well the bills. He also testified that the tender form, scrutiny proforma were prepared by him. He further stated that the abovesaid work order was awarded to M/s Universal Sanitary Emporium, Delhi, of which Ashok Kumar Gupta was the proprietor. He also correctly identified accused Ashok Kumar Gupta. He further stated that at the relevant time accused S.N. Goel was posted as JE, accused S.K. Jain as AE and accused C.B. Singh as EE in Division XVI, MCD, he correctly identified all the accused and also identified their signatures on work order Ex.PW7/A and Ex.PW7/B (colly.). He also stated that he could identify their signatures as he had worked with the them in the ordinary course of his duties.

8) PW 8 HC Krishna Dasan stated that on 18.08.09 he had C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 9 deposited the exhibits in FSL Rohini. He stated that the exhibits were sealed with the seal of SKS. He further stated that after depositing the same in FSL, Rohini, he handed over the copy of receipt to the IO. He also testified that so long the as case property remained in his possession, it was not tampered with.

9) PW9 Sh. Vinay Kumar Tyagi stated that on 12.3.09 he was posted as LDC in Transport Department, Government of India, MCD Delhi, was on duty as Panch witness in AC Branch and had joined the investigation of this case. He further testified that IO had made enquiries from accused S.N. Goel, C.B. Singh and S.K. Jain in his presence. He also deposed that all the accused voluntarily gave their specimen signatures to IO. He correctly identified accused S.N. Goel, S.K. Jain and C.B. Singh and stated that the specimen signatures of accused S.N. Goel were Ex.PW9/A1 to A10, that of accused S.K. Jain were Ex.PW9/B1 to B10 and accused C.B. Singh were Ex.PW9/C1 to Ex.PW9/C10.

10) PW10 Sh. Loknath Sahu panch witness deposed that on 10.9.98, he was posted as UDC in Directorate of C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 10 Education, Old Secretariat and on that day he was on duty as a panch witness in the AC Branch. He further testified that IO interrogated accused S.N. Goel, S.K. Jain and C.B. Singh, the Engineers of MCD in his presence, PW10 correctly identified all the above named accused and also stated that the accused S.N. Goel was arrested vide arrest memo Ex.PW10/A, accused S.K. Jain vide arrest memo Ex.PW10/B and the arrest memo of accused C.B. Singh was Ex.PW10/C. He further stated that personal search of the accused S.N. Goel, S.K. Jain and C.B. Singh were conducted vide memos Ex.PW10/D, Ex.PW10/E and Ex.PW10/F.

11) PW11 Khazan Singh stated that in the year 199899, he was working as an account clerk/UDC in Division no. XVI, MCD . He further stated that on the above said date IO has shown him a copy of works order no. 186 dated 10.7.98 and work order no. 535 dt. 24.12.98 as well as the complete tender file and bills. He further deposed that as per record, the above said two work orders Ex. PW6/A and Ex. PW6/B, PW7/A and PW7/B were awarded to Ashok Kumar Gupta, proprietor of M/s. Universal Sanitary Emporium, 26/87, Shakti Nagar, C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 11 Delhi. He also stated that both the work orders bear the signatures of accused S.N. Goel the then JE, S.K. Jain the then AE and CB Singh the then EE posted in Div. No. XVI/CLZ/MCD and accused Ashok Kumar Gupta. He correctly identified all the accused and stated that he could recognize their signatures as he had worked with them in the ordinary course of his duties.

12) PW12 Ms. Nirmal Bansal Audit Officer stated that in the year 1998 she was posted as an Accountant in Division No. XVI/MCD. She further stated that on 24.8.2009, the IO had shown her a photocopy of tender file and bills of work order no. 535 dt. 24.12.98 and work order no. 186 dated 10.7.98. She further stated that the tender of work order no. 535 was opened on 6.5.98 and the tender file bears her signatures. She further stated that Sh. R.K. Bhel succeeded her and the bills bear his signatures. She also stated that accused Ashok Kumar Gupta was working as a thekedar/contractor, and accused S.N. Goel, S.K.Jain and C.B. Singh were working as JE, AE and EE respectively at the relevant time in Division No. 16, MCD. She correctly identified all the accused. She C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 12 further stated that the work orders Ex.PW6/A, Ex.PW6/B, Ex.PW7/A and Ex.PW7/B bear the signatures of the all accused and she could identify their signatures as she had worked with them.

13) PW13 Sh. Ramesh Kumar Behl stated that in the year 199899, he was working as an Accountant in Division No. XVI/MCD. He further stated that on the requisition of the IO, he had gone to the office of AC Branch where the IO has shown him the tender file and bills of the work orders No.535 dt. 24.12.98 Ex.PW7/A (colly.) and Ex.PW7/B (colly.) and work order no. 186/98 dt. 10.7.98 Ex.PW6/A (colly.), Ex.PW6/B(colly.). The work orders bears his signatures at point F. The bills also bear his signatures. He further testified that the IO had also shown him the measurement book (in short MB) register Ex.PW13/A(colly.) and MB Book Ex.PW13/B(colly.) which bears his signatures on the passing of bill as an accountant at point F. He also testified that both the work orders were awarded to accused Ashok Kumar Gupta, proprietor of M/s Universal Sanitary Emporium and payment were also made to him. He correctly identified all the C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 13 accused and stated that he had identified their signatures on the above work orders and bills as he had seen them writing and signing during the course of his duties. He also correctly identified all the accused.

14) PW14 Rajni Narula proved the office orders relating to posting of accused S.K.Jain, C.B.Singh as Ex.PW14/A and Ex.PW14/B respectively. She also proved the letter of dealing assistant, Asst. /II, Engg. Deptt., MCD for obtaining posting orders of engineers Pankaj Goel and S.N. Goel as Ex.PW14/C and forwarding letter of MCD to ACB of the above exhibits as Ex.PW14/D.

15) PW15 Anand Singh Chauhan deposed that on 10.9.2009, he was posted as an Administrative Officer in the Engineering Department (HQ), MCD, Town Hall, Delhi. He proved the transfer and posting order of accused S.N.Goel as Ex.PW15/A and Ex.PW15/B and stated they were sent by him to the ACB vide forwarding letter Ex.PW15/C.

16) PW16 Sajjan Kumar, Chief Refinery, Coordinator (in short, CRC) in Mathura Oil Refinery stated that on 24.6.2004, he was posted as CRC in Mathura Refinery Terminal, Mathura C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 14 when letter no.5183/SSS/ACB/15604 Ex.PW16/B was received in his office from Inspector S.S. Sandhu seeking information as to whether M/s Universal Sanitary Emporium had purchased bitumin from their refinery for execution of work orders no. 186 and 535 during the period 10.7.98 to 31.3.99 or otherwise. The details of sales with copies of cash memos, gate passes were sought for. PW16 further stated that he had sent reply to the above letter which is Ex.PW16/A informing that on verification of the record pertaining for period 19.7.98 to 31.3.99 it was found that there was no customer in their customer master (full record) by the said name. Thus as per their record, no supply of "Bitumen" had been made from their refinery to M/s Universal Sanitary Emporium.

17) PW17 Pushkar Raj stated on 3.6.2004, he was posted in the Vigilance Department, MCD as head Clerk. He further stated that he handed over the files of tender and accounts of work orders no. 186/98 and 535/98 Ex.PW6/A, Ex.PW6/B, Ex.PW7/A and Ex.PW7/B to the IO which were seized by him vide seizure memo Ex.PW17/A which bears his signature at C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 15 point A. (18) PW18 Sh. K.S. Mehra stated that he was posted as Commissioner, MCD, Delhi since 20.2.08. He further stated that the request of AC Branch, Delhi for according sanction for prosecution against C.B.Singh EE, S.K.Jain AE and S.N.Goel JE was placed before him along with the official record. He also testified that he had gone through the copy of FIR, Rukka, copies of work orders and statement of witnesses and after going through the documents and applying his mind as well as considering the facts and circumstances of the case, he had granted sanction for prosecution of accused C.B.Singh EE, S.K.Jain AE and S.N.Goel JE as he was competent to remove them from service being Commissioner MCD, Delhi. He proved the sanction orders of C.B.Singh , S.K. Jain and S.N. Goel as Ex.PW18/A to Ex.PW18/C respectively and stated that the same bear his signatures. He further stated that sanction orders were prepared on his dictation and thereafter signed by him.

19) PW19 Sh. Ashok Drabu stated that on 20.7.2004, he was posted as Executive Engineer, Division No. 16, MCD, C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 16 when he received a letter from the IO pursuant to which he sent the original Original MB/register No. 1766 Ex.PW13/A pertaining to FIR No. 23/2004 State Vs. Pankaj Goel and Others and original MB/register No.1769 Ex.PW13/B pertaining to work Order No. 254257 dated 07.08.98, and work orders of the present case / FIR No. 186 dated 10.07.98 as well as 535 dated 24.12.98 vide forwarding letter Ex.PW19/A.

20) PW20 S.S.Sandhu deposed that on 25.5.2004, he was posted as Inspector in the AC Branch when the investigation of this case was marked to him. He further stated that during investigation he sent a letter to MCD, Division No.XVI for supplying documents relating to this case and collected the documents i.e. account file and tender files of work orders from Pushkar Raj, Head Clerk, MCD (Vigilance) which were taken into possession vide seizure memo Ex.PW17/A. He also stated that he sent a letter to General Manager Sales, IOCL, Mathura, Refinery Ex. PW16/DA to furnish the details of purchase of bitumen by M/s Universal Sanitary Emporium between 10.7.98 to 31.3.99. He further stated that reply C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 17 Ex.PW16/A was received from the Chief Refinery Co ordinator, IOCL, stating that there was no customer available in their customer master during the period 19.7.98 to 31.3.99 by the above name. He further stated that a notices u/s 160 Cr.P.C. were issued to accused S.K. Jain and S.N.Goel and they were interrogated. He correctly identified both the accused. He also stated that MB Book Ex. PW13/B pertaining to work orders No.186 and 535 was seized during investigation. Thereafter further investigation was handed over to Inspector K.L. Meena.

21) PW21 SI Kirori Lal Meena stated that the investigation was marked to him on 22.1.2004 and he issued notices to accused S.K. Jain and S.N. Goel and interrogated them. He correctly identified both accused. He also deposed that further investigation was transferred to Inspector Santosh Kumar.

22) PW22 Inspector Santosh Kumar Singh deposed that on 13.12.05 he was posted in AC Branch when he received the case file of this case for further investigation. He further stated that the relevant documents in respect of above C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 18 case were already on record. He stated that as per the terms and conditions of the work orders No.186 and 535 it awarded to M/s Universal Sanitary Emporium through its proprietor Ashok Kumar who had to purchase fresh Bitumen from the above any of the Government refineries and not from any other source and the contractor had to submit the receipt of the purchase of the Bitumen to MCD. He further deposed that as per the report of CRC, Mathura Refinery Shri Sajjan Kumar, there was no customer by the name of Universal Sanitary Emporium in their customer master record during the period 19981999. He further testified that during investigation, he arrested the contractor Ashok Kumar Gupta.

He further stated that he received the posting orders and biodatas of accused S.N.Goel, S.K.Jain, C.B.Singh. He further testified that he had obtained the sanction for prosecution against the accused S.N. Goel, S.K. Jain and C.B. Singh. He further stated that he had arrested accused S.N.Goel, S.K.Jain and C.B.Singh and their personal search was conducted. He further deposed that during investigation he obtained the specimen signatures of all aforesaid accused C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 19 persons. He also stated that the specimen signatures of accused along with questioned documents were sent to FSL. The report obtained from FSL was Ex. PX. He further stated that he had collected all the relevant documents and recorded the statement of the witnesses and after completion of the investigation, filed the chargesheet.

4. The statements of all accused were thereafter recorded U/S 313 Cr.P.C

5. The accused examined 5 witnesses in their defence. Elaborate arguments were thereafter addressed by both sides.

6. The gravamen of the charges against the accused was that they entered into a conspiracy and in pursuance of the conspiracy accused Ashok Kumar Gupta / contractor used sub standard unauthorized bitumin for the execution of the road works No.186 & 535 awarded to him and submitted bills amounting to Rs. 1.75 lakhs to the MCD, without invoices from an authorized oil companies of Government of India. It is also the case of prosecution that accused S.N. Goel, Sanjay Kumar Jain and C.B. Singh passed bills and released payment of Rs. 1.75 lakhs to the accused Ashok Kumar Gupta without C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 20 invoices, and that accused S.N. Goel, Sanjay Kumar Jain C.B. Singh being public servants, in furtherance of conspiracy cheated MCD in discharge of their official duties by corrupt and illegal means by abusing their official position, thereby causing/wrongful gain to Ashok Kumar Gupta and wrongful loss to MCD.

7. In sum and substance, therefore it was for the prosecution to establish that the accused S.N. Goel, the then JE Sanjay Kumar Jain, the then AE and C.B. Singh, the then EE abused their official position and acted in concert with accused Ashok Kumar to cause wrongful gain to accused Ashok Kumar Gupta and wrongful loss to MCD. In a criminal trial, the burden of proving everything essential to establish the charge against the accused lies upon the prosecution and that burden never shifts.

8. The nature and extent the burden cast on the accused is well settled. The accused does not have to prove his innocence beyond reasonable doubt. The accused can establish his defence by preponderance of probability. Findings on Charge of conspiracy C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 21

9. The main circumstance being pressed into service by prosecution to prove the collusion and conspiracy between the accused was that as per terms of the conditions of the work order no.186 Ex.PW6/A and Ex.PW6/B(colly.) and no. 535 Ex.PW7/A and Ex.PW7/B(colly.) awarded to M/s. Universal Sanitary Emporium, through its proprietor accused Ashok Kumar Gupta fresh Bitumin was to be purchased by the contractor from any of the government refineries and the original receipt of the purchase of Bitumin was to be submitted to MCD. The prosecution examined PW16 to prove that the contractor / accused Ashok Kumar Gupta did not purchase bitumin from IOCL Mathura Refinery, as alleged by him. As per deposition of PW16 Sajjan Kumar, the CRC Mathura Refinery, a letter Ex.PW16/B was received from ACB inquiring whether there was any customer in their record by the name of M/s. Universal Sanitary Emporium during 10.07.98 to 31.03.99. If so the details of sales alongwith photocopies of cash memos, gate passes be supplied which were required for investigation. PW16 also stated that pursuant to the letter Ex.PW16/B he sent reply Ex.PW16/A C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 22 informing that on verification of their records it was found that during the period 19.07.98 to 31.03.99 there was no customer by the name of Universal Sanitary Emporium in their customer list/record.

10. Section 120 A of the India Penal Code which defines 'Criminal Conspiracy' is as follows :

"When two or more persons agree to do, or cause to be done, (1) an illegal act, (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 the ultimate object of such agreement, or is merely incidental to that object."

11. Section 120B provides punishment for criminal conspiracy and provides as under :

C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 23

"Whoever is a party to a criminal conspiracy to commit an offence punishable with death, (imprisonment for life) or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in the code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence."

12. "Criminal conspiracy" is not easy to prove. The conspirators invariably deliberate, plan and act in secret over a period of time. It is not necessary that each one of them must have actively participated in the commission of the offence or was involved in it from the start to finish. What is important is that they were involved in the conspiracy. Conspiracy requires actus reus and accompanying mens rea. To convict a person for conspiracy, the prosecution must show that all accused agreed with each others to accomplish the unlawful object of conspiracy. The Court has to be satisfied that there is a reasonable ground to believe the existence of the conspiracy and that is a matter for judicial inference from proved facts and circumstances.

C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 24

13. As regards the concept of criminal conspiracy, it has been held in (2009) 15 Supreme Court Cases 643 Mir Nagvi Askari Vs. Central Bureau of Investigation as under:

"A. Penal Code, 1860 - Ss. 120A and 120B - Criminal conspiracy - Concept

- Evidence for proving - Illegal advance credits by bank officials - Held, criminal conspiracy involves meeting of minds of two or more persons for doing or causing to be done an illegal act or an act which may not be illegal but by illegal means - The offence takes place with the meeting of minds even if nothing further is done - It is an offence independent of other offences and is punishable separately - Criminal conspiracy is generally hatched in secrecy - Direct evidence is therefore difficult to obtain or access - The offence can be proved by adducing circumstantial evidence and/or by necessary implication."

14. It is the case of prosecution that all the accused in furtherance of the conspiracy manipulated entries of supply of bitumin in the measurement book at Ex.PW11/DA, Mark DA C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 25 in Ex.PW13/B to cheat and defraud MCD. The work orders/agreements interalia stated that fresh supply of bitumin would be obtained by the contractor from any of the government refineries and the original receipt would be submitted to the MCD as proof of purchase. Thus, the duty of the accused S.N. Goel, Sanjay Jain and C.B. Singh was to ensure that purchase of 'bitumen' was from an authorized government refineries by the contractor / coaccused Ashok Kumar Gupta.

15. In order to bring home the charge of conspiracy and for the purpose of drawing inferences U/s 10 of the Evidence Act, the prosecution had to establish beyond reasonable doubt that accused acted in concert, either through overt or covert acts in furtherance of the common objective. Section 10 of the Indian Evidence Act introduces the doctrine of agency and if the conditions laid down there are satisfied, the act done by one is admissible against the coconspirators. Section 10 of the Indian Evidence Act is as under :

"Things said or done by conspirator in reference to common design. Where there is reasonable ground to believe C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 26 that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."

(1) Thus, there should be prima facie evidence disclosing reasonable grounds for court to believe that two or more persons were members of a conspiracy., (2) Anything said, done or written by anyone of them in reference to the common intention would be evidence against the other., (3) Anything said, done or written by anyone of them should have been said, done written by them after the intention was formed by anyone of them. The prosecution thus had to prove by chain of events which could lead to strong inference of conspiracy. Conspiracy can be inferred either on the basis of direct or C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 27 circumstantial evidence. Though direct evidence of conspiracy is difficult in most cases, the circumstances proved should reasonably point to existence of prior concert of mind.

16. The contention of Ld. counsel for accused Ashok Kumar Gupta was that suspicion however grave could not take the place of proof and that accused could not be held guilty merely on suspicion and in this regard placed reliance on AIR 1979 Supreme Court 1537= 1979 Cri. L.J. 962, J.A. Naidu Etc. Vs. State of Maharashtra.

17. It was further contended on behalf of accused Ashok Kumar Gupta that to substantiate a charge of conspiracy the law requires specific proof against each of the conspirators participating in a particular design to do a particular criminal thing and in this regard placed reliance on AIR 1954 Calcutta 373 (Vol.41, C.N. 126) Sailendra Nath Mitra Vs. The State. Ld. counsel for accused Ashok Kumar Gupta also submitted that when there is no clinching evidence of conspiracy accused is entitled to benefit of doubt and in this regard placed reliance on AIR 1996 SC 3390, C. Chenga Reddy and others Vs. State of Andhra Pradesh C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 28 "(B) Prevention of Corruption Act ( 2of 1947), S.5 (1) (d), (2) - Charge against some government officers and contractors that they conspired to commit offences under S. 420/34, 377A/34 IPC and under S. 5 (1) (d) of the Act - Case based purely on circumstantial evidence - Certain illegalities found to have been committed in allotting work - However, no evidence of clinching nature proved

- Chain of evidence not leading to irresistible conclusion as to guilt of accused persons - They are entitled to benefit of reasonable doubt and acquittal.

Scope - Anticorruption case -

Supreme Court setting aside acquittal of accused persons (public servants) by giving them benefit of doubt - Their acts and omissions, however, resulting in administrative lapses and violations of departmental circulars and instructions thus making them vulnerable to departmental inquiry thereby - In exercise of powers under S. 142 the Supreme Court directed that no C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 29 departmental enquiry be held, the accused be reinstated with continuity inn service but will not be entitled to back wages or other monetary benefits.

18. Ld. Counsel for the accused Ashok Kumar Gupta also placed reliance on 2008 [3] JCC [Narcotics] 135 titled as Noor Aga Vs State of Punjab & Anr. in support of his contentions that adverse inference was liable to be drawn against the prosecution for not seizing and placing on record the invoice submitted by accused Ashok Kumar Gupta to MCD. It was also contended that in a criminal trial, the burden of proving the case rests on the prosecution, and every man is presumed to be innocent until proven guilty and that Criminality is never to be presumed subject to statutory exception. The relevant extracts of the Judgment are reproduced below: "141. Physical evidence of a case of this nature being the property of the court should have been treated to be sacrosanct. Nonproduction thereof would warrant drawing of a negative inference within the meaning of Section 114 (g) of the Evidence Act. While there are such a large number of C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 30 discrepancies, if a cumulative effect thereto is taken into consideration on the basis whereof the permissive inference would be that serious doubts are created with respect of the prosecution's endeavour to prove the fact of possession of contraband from the appellant.

19. Ld. counsel for accused S.N. Goel and S.K. Jain submitted that the charge of conspiracy against them had not been proved by cogent evidence and in this regard placed reliance on (1995) 1 SC Cases 142 titled as P.K. Narayanan Vs State of Kerala "A Penal Code, 1860 Ss. 120A and 120B Criminal conspiracy -

Ingredients and Proof of - Motive and preparation by themselves to not constitute conspiracy - Criminal conspiracy can be proved by direct or circumstantial evidence -

Circumstances must establish that the offence was committed in pursuance of an agreement between parties to the alleged conspiracy - Such circumstances must be incapable of any C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 31 other explanation - Mere suspicious and surmises or inferences unsupported by cogent evidence not sufficient"

20. Reliance was also placed on (2000) 8 Supreme Court Cases 203 titled as State of Kerala Vs P. Sugathan and Anr.

"A. Penal Code, 1860 Ss. 120A, 120 B and 302 - Criminal conspiracy - Proof of - Held, can be established on the basis of circumstantial evidence - Circumstances should give rise to a conclusive inference of an agreement between two or more persons to commit an offence - Circumstances should be prior in time than actual commission of offence - Conspiracy is a continuing offence and any act committed by any of the conspirators during subsistence of the conspiracy would attract S.120B

- Where charge was of causing death of erstwhile paramour of concubine in conspiracy with her, held on facts, circumstances relied on by the prosecution did not establish beyond reasonable doubt involvement of A2 in commission of the crime - Hence A2 entitled to be acquitted on benefit of doubt.

C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 32

21. Ld. Counsel for accused S.N. Goel and S.K. Jain also placed reliance on C. Chenga Reddy (Supra) and Noor Aga (Supra). Ld. Counsel for all accused contended that invoice was of no significance and in support of the said contention had examined DW3 J.B. Bhatia, a retired EE, MCD who deposed in his examination in chief that invoice was a document submitted by the contractor in lieu of his claim for storing bitumin at the site. The MCD official had to act independently and check the quantity and quality of the material at the site. After independent examination entries were to be recorded in the MB/register and in the event of variation in the entries of invoice and MB/register, the entries of the MB/register would prevail, for preparation of bill and payment. Thus invoice was of no significance. DW3 also stated that the custodian of the account file was the account clerk in the account division. Ld. Counsel for accused submitted that the account clerk was not examined to enquire regarding the invoice in question and in this regard IO/PW20 stated in his crossexamination that he did not record the statement of accountant or any other witness. Neither PW20 C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 33 verified if the payments made were in respect of bitumin or entire work order. However, I am of the view that this contention of the accused was contrary to the terms and conditions of the work orders, according to which receipt of purchase of bitumin was to be submitted by the contractor and was thus without merits.

22. It was submitted on behalf of accused C.B. Singh that prosecution failed to prove that there was any meeting of mind between accused C.B. Singh and coaccused Ashok Kumar. It was further submitted that from the evidence adduced it has been revealed that the role of C.B. Singh was of supervisory nature. It was also contended that prosecution also failed to prove that any wrongful gain accrued to accused C.B. Singh. It was also stated that payment was disbursed according to practice/procedure.

23. It was further submitted that clean chit was given to Sh. V.K. Gupta EE for work order no. 535. As regards the contention of clean chit being given to Sh. V.K. Gupta EE it is relevant to note PW22/IO had deposed in his cross examination that Sh. V.K. Gupta EE was examined during C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 34 investigation, his specimen signatures were obtained. PW22/IO further stated that Sh. V.K. Gupta, EE had worked during the leave period of the then EE and had passed the first running bill of work order no. 535 in file No. 7B. PW22 also stated that there was no role of Sh. V.K. Gupta, EE in the conspiracy. PW22 denied that the evidence against Sh. V.K. Gupta EE and C.B. Singh was on the same footing. Thus, I am of the view that had V.K. Gupta EE been a coconspirator with accused persons he would also have been chargesheeted. Thus, I find no merits in this contention.

24. Ld. counsels for the accused (Engineers) stated that the CPWD manual Ex.DW3/DA and Ex.DW3/DB relate to the duties of Engineers which was restricted to the inspection of work at the site and in this regard examined DW3 (retired) EE MCD J.B. Bhatia stated in his examination in chief that vide statement/report of Chief Engineers MCD Ex.PW22/DA, Sh. Sant Lal, it was the contractor who was responsible for the genuineness of the documents submitted by him, and there was no mechanism by which the Engineers could verify the genuineness of the documents submitted by the contractor. It C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 35 was also submitted that DW3 denied in his crossexamination that it was duty of JE/AE/EE to verify the genuineness of the invoice of bitumin.

25. Para No. 6 of the work order and conditions no. 8 & 14 of the agreement which go to the root of controversy are as follows :

"6. Fresh supply of bulk bitumin from Bharat Petroleum / Indian Oil / Hindustan Petroleum as appd. by EinC will be arranged by the contractor."

The English translation of Condition No. 8 & 14 of the agreement are as under:

Condition No. 8

"The contractor has to submit one bill every month for the whole work executed in the last month on or before the date fixed given by the Executive Engineer and before the elapse of ten days after submitting the bill, the Executive Engineer will test either by himself or from others for the purpose of verification and as far as possible he will adjust the claim. If the contractor fails to submit the bill within the limits of prescribed date, the Executive Engineer in the presence of the contractor will C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 36 make counter sign and will depute his subordinate to take the measurement of the executed work and further Executive Engineer will prepare the bill on such away which would bind the contractor".

Condition No. 14

"If the Executive Engineer or his subordinate have been assigned to execute any work and if it is felt that any execution of work is faulty, unskilled work, executed with substandard material or any provided material is faulty for the execution of the work or substandard and not as per the agreement or contract or otherwise not favourable to the contract or agreement, then the contractor on the written demand/direction of the Executive Engineer will execute or repair or remove or reconstruct completely or partially as per the specified and required conditions on the required charges or expenses. If the contractor fails to execute the above work within the time limits given by the Executive Engineer he would be liable for the penalty of one percent for the estimated cost not exceeding to ten years. In case of the condition of failure by the contractor the risk and cost will be lied on him and the Executive Engineer will got repaired or removed or C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 37 reconstruct or can remove the material or can replace on the cost and risk of the contractor".

26. Ld. Addl. PP contended that in view of above conditions it was incumbent on the accused to have complied with the terms of the work orders and agreement. It was further contended that the work orders were primary evidence of document and oral or documentary evidence could not be led to contradicts its terms.

27. Section 61 & 62 of the Indian Evidence Act, 1872, which relates to proof of contents of documents and primary evidence are as under:

"61. Proof of contents of documents - The contents of documents may be proved either by primary or secondary evidence. "62. Primary evidence - Primary evidence means the documents itself produced for the inspection of the Court".

Accused did not challenge the testimony of PW6 and PW7 who proved the agreements/work orders. Thus the contents of work order and the signatures of all accused therein stood admitted.

28. Section 91 of the Indian Evidence Act relates to evidence C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 38 of terms of contract reduced to form of a document by tendering the document or by secondary evidence when admissible

29. Section 92 of the Indian Evidence Act provides that no evidence de hors the terms of the agreement whether documentary or oral can be led by parties to get out of the express terms thereof except in cases covered under the proviso to Section 92 of the Act. Section 92 of the Act is as follows:

"Exclusion of evidence of oral agreement. When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms :

Proviso (1). Any fact may be proved C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 39 which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting partly, [want or failure] of consideration, or mistake in fact or law:

Proviso (2). The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document:

Proviso (3). The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved:

Proviso (4). The existence of any distinct subsequent oral agreement to rescind or modify any such contract, C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 40 grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents:

Proviso (5). Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved : Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract:Proviso (6). Any fact may be proved which shows in what manner the language of a document is related to existing facts."

Thus in view of Section 92 of the Indian Evidence Act, no evidence could be led to contradict or vary the terms of the work orders in question, except in cases covered under the proviso thereto. It was not the case of accused that their case fell under the proviso to Section 92. Thus, I reject the C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 41 contention of the accused that CPWD manual restricted the duty of Engineers only to the supervision of work at site and the duties of Engineers was not to verify the genuineness of the documents submitted to him by the contractor.

30. Ld. Counsels for all accused further submitted that the charge of using substandard material was not substantiated as PW22/IO had stated in his crossexamination that he had not lifted the sample from the sites in question neither he got it tested from MCD Lab, and also stated that he did not visit the road in question as such there was no proper investigation regarding the charge of sub standard material used in the road works in question. I do not find any force in the said contention of Ld. Counsels for accused as PW22 on being questioned in this regard stated that he had not lifted the samples from the road in question and sent it for testing to MCD laboratory because the roads in question were constructed in 199899 and he took up investigation in the year 2005, meaning thereby that during the said period road in question may have been repaired once or more than once. Thus, I reject the contentions of accused that as samples were C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 42 not lifted from the site investigation was tainted.

31. Ld. Counsel for all accused further contended that laboratory test in respect of the road works in question carried out in 1999 revealed that it was in conformity with the quality and quantity and in support of the said contention examined DW. It was also contended that the enquiry and investigation conducted by PW3 was only record based as in this regard, he stated in his crossexamination that he did not know whether lab tests were conducted or not, thus, there was no proper investigation. DW1 Dy. Director (Technical Quality Control Dept., NDMC) proved the laboratory test report DW1/D1 to DW1/D6 in respect of the work orders in question. DW1 stated that the tests were conducted to ascertain the quality of material used in the execution of works and whether material was in conformity with the technical requirements or not. However, in his crossexamination DW1 stated that the samples from the sites in question were not lifted in his presence neither the tests were conducted in his presence. DW1 also stated that he did not know who wrote the contents of DW1/1 to DW1/6 and the same were not written in his C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 43 presence and the contents of the same were already filled in when he signed DW1/1 to DW1/6. He also stated that the test reports DW1/1 to DW1/6 did not mention the minimum range of material required to qualify the test. Ld. Addl. PP contended that report were prepared from the entries made in the registers but the registers were not produced in court as deposed by DW6. I find force in the contention of Ld. Addl. PP that no weightage could be given to the testimony of DW1. I accordingly hold that the authenticity of the reports was not proved as the registers from which entries were recorded were not produced in court.

32. Ld. Counsels for all the accused further contended that IO also did not verify whether the roads in respect of which the contract was given were laid and in this regard PW3 had stated in his crossexamination that he did not conduct physical verification regarding the fact whether the road in respect of which the contract was given were laid. However, I do not find any merits in the this contention as the charge against accused was for using substandard material and passing of bills without invoices and not that road in question C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 44 were not laid.

33. It was next contended by Ld. Counsel for all accused that it was incumbent on the prosecution to verity the invoice at Mark DA Ex.PW11/DA but prosecution failed to do so and IO also did not conduct proper investigation regarding the procedure for passing of bills. It was further contended on behalf of all accused that IO/PW20 stated in his cross examination in this regard that he had not recorded the statement of the witness of Account Section or the Accountant who passed the bill in respect of work orders in question and also did not investigate whether the payments were in respect of bitumin or entire contract. PW20 also stated that he could not recollect if he investigated regarding mark DA on Ex.PW11/DA in Ex.PW13/B neither he examined any witness from the IOCL. It was also contended that PW20 also stated that he did not mention in the letter Ex.PW16/DA whether M/s Universal Sanitary Emporium was a proprietorship concern or partnership or a company as such IOCL, Mathura could not verify the invoice mark DA Ex.PW11/DA in Ex.PW13/B. However, Ld. Addl. PP submitted PW20 denied in his cross C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 45 examination that he had deliberately not mentioned the name of Ashok Kumar Gupta in Ex.PW16/DA as he knew that bitumin was purchased by him (Ashok Kumar Gupta) in his name. It was further contended by all accused that when two views were possible on the evidence adduced one pointing to the guilt of accused and the other to his innocence, the view favourable to the accused had to be accepted. On the other hand, it was submitted by Ld. Addl. PP that the contract was in the name of M/s Universal Sanitary Emporium as such inquiry was made by the PW20 in the name of above firm. It was also contended by Ld. Addl. PP that PW20 denied in his cross examination that he had deliberately not seized the invoice / receipt by which bitumin was purchased from the Accounts Branch where it was available, as it would have exonerated the accused. It was contended by Ld. Addl. PP that no invoice as alleged was available in the records of MCD and PW20 denied that he deliberately did not examine the officials from the Accounts Section as they would have exonerated the accused Ashok Kumar Gupta from liability Ld. Addl. PP also contended that IO/PW22 had deposed in his examination in C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 46 chief that no invoice of purchase of bitumin from authorized government refinery was found on record and the entries in the MB register in this regard were manipulated.

34. Ld. Addl. PP further submitted that the entries in measurement book at point DA on Ex.PW11/DA was manipulated by all accused to cause wrongful gain to accused Ashok Kumar and wrongly loss to MCD. It was also contended that accused Ashok Kumar Gupta did not place on record any document to show that he placed an order for supply of bitumin with IOCL, Mathura.

35. It is pertinent to note that it wass not the case of Ashok Kumar Gupta that oral order was placed on IOCL, Mathura Refinary for supply of bitumin. Thus, it was for accused Ashok Kumar Gupta, to prove his defence on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt, by summoning the record of the invoice Mark DA Ex.PW11/DA from IOCL Mathura Refineries as it was his defence (accused Ashok Kumar Gupta) that he purchased bitumin in his name. It was not the case of accused Ashok Kumar Gupta that the requirement of bitumin C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 47 was so urgent that it was not possible to follow "usual procedure" of placing the order / processing it. Thus, I am of view that it is difficult to accept version of the accused Ashok Kumar Gupta that he purchased bitumin from IOCL, Mathura in his name. In a case such as this, it cannot be presumed that supply of bitumin would be made on oral /verbal order given by a person. The supply is made by government refineries pursuant to written supply order. Thus from the depositions of of PWs 3, 16, 20 and 21, it has been proved that no bitumin was supplied by IOCL, Mathura to M/s Universal Sanitary Emporium and entry of Ex.PW11/DA at Mark DA was manipulated.

36. Section 101 of the Indian Evidence Act relates to burden of proof and is as under :

"101. Burden of proof. Whoever desires any Court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 48 the burden of proof lies on that person."

37. Section 106 of the Indian Evidence Act is an exception to Section 101 of the Indian Evidence Act, which are reproduced under:

"106. Burden of proof - Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person".

Illustration (b) which is relevant is as follows:

"A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him"

38. In view of Section 106 of the Evidence Act, the burden of proving a fact especially within the knowledge of any person is upon him.

39. Thus Section 106 of the Indian Evidence Act would apply when the facts are especially within the knowledge of a person and it would not be possible or difficult for the prosecution to establish such facts "especially within the C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 49 knowledge of accused."

40. Onus of proof means duty of establishing the case, which is on the prosecution and it never shifts. However, after the prosecution has discharged its initial burden and accused takes plea of a fact within his knowledge, he must prove it. The standard of proof of such plea is not so high as in the case of prosecution. Section 106 of the Indian Evidence Act shifts the burden on the accused under the circumstances mentioned therein. Thus when a fact is especially within the knowledge of any person the burden of proving that fact is upon him. In this regard it has been held by Honble Supreme Court in Criminal Appeal No. 357 of 2005 State of Rajasthan Vs. Thakur Singh decided on June 30, 2014 as under :

"The law therefore, is quite well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 50 if he does not do so, then it is strong circumstance pointing to his guilt based on those facts."

41. Accused Ashok Kumar Gupta in his statement U/S 313 Cr.P.C stated that he had purchased bitumin in his individual name from IOCL Mathura Refinery. Thus the fact that bitumin was purchased by Ashok Kumar Gupta in his individual name was known to him. The question that arises consideration is whether explanation given by accused can be said to have been established. It is well settled that accused is not required to establish his defence beyond reasonable doubt but only by preponderance of probability. As soon as accused succeeds in doing so, the burden shifts on prosecution which still has to discharge the onus of establishing the case. The accused could proved his defence by direct evidence or by any other mode. Direct evidence is not the only mode envisaged in the Indian Evidence Act as regards the mode of proof. Thus what was required to be proved by accused Ashok Kumar Gupta was to bring on record such evidence oral or documentary on the basis of which court could reasonably reach a conclusion that a C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 51 fact exist. In reaching the conclusion, the court can use the process of inferences to be drawn from proved facts. The court has absolute discretion U/s 114 of the Indian Evidence Act to presume the existence of any fact which it thinks likely to have happened having regard to common course of natural events, human conduct vis - a - vis a particular fact. It is significant to note that not only accused Ashok Kumar Gupta took up defence of having purchased bitumin in his individual name but accused S.N. Goel, S.K. Jain had put a question in the crossexamination of IO/PW20 as to whether it was mentioned in Ex.PW16/DA to the effect that M/s Universal Sanitary Emporium was a proprietorship concern. A suggestion was also given by accused S.N. Goel and S.K. Jain to (PW20) that he did not deliberately mention the name of Ashok Kumar Gupta in Ex.PW16/DA as he knew that accused Ashok Kumar Gupta had purchased bitumin in his name. Thus accused S.N. Goel, Sanjay Kumar Jain had also taken the same defence as accused Ashok Kumar Gupta that bitumin was purchased by contractor in his individual name. However, all the accused failed to discharge the burden of proving their C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 52 defence by preponderance of probability.

42. It was also contended by Ld. Addl. PP that the original receipt and documents connected with it had to be submitted to the accounts Section of MCD where those papers had to be duly scrutinized and audited.

43. It is pertinent to note that entry at point DA on Ex.PW11/DA was in the hands of accused S.N. Goel, the said entry was not disputed by accused. Thus prosecution established that authorship of the said entry. The question then is whether the entry at Ex.PW11/DA Mark DA in Ex.PW13/B was manipulated by all accused in furtherance of the conspiracy to cheat MCD. Ld. Counsels for all accused next contended that the entries in the MB/register were checked and tallied by accounts clerk PW11 and the accountant PW13 before the payments were released. It was also contended that from the testimony of PW11 it was evident that accounting procedure was followed. It was further contended that had anything contrary to the rules and procedure been discovered the accounts department would not have passed the bills and the sinister object of accused persons would have been C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 53 discovered at once. However, I am of the view that PW11 had acted on the entry of invoice in the MB/register presuming that they were genuine. I also find force in the contention of Ld. Addl. PP that no question put in the crossexamination of PW11 and PW13 and that invoices checked by them were of bitumin and not of other material. Moreover, as it was the defence of all accused that invoice of purchase of bitumin from IOCL was submitted to MCD by accused Ashok Kumar Gupta, thus a photocopy of the invoice could have been produced or its record could have been summoned by accused from IOCL to discharge the onus of proof placed on them U/S 106 of the Indian Evidence Act but it was not done. Thus, I find no substance in the above said contention of accused that the invoice of bitumin was checked by the accounts department of MCD.

44. Ld. Counsel for all accused further contended that PW22/IO did not conduct enquiry from the officials posted in the sales department of IOCL, Mathura which also shows that the investigation was tainted. However, Ld. Addl. PP contended that IO/PW22 had deposed in his cross examination C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 54 that he had conducted an enquiry as regards process of sale of bitumin by IOCL and further stated that in case requisition was received from any government agency relating to construction work specifying requirement of bitumin by a contractor then bitumin was provided to the said contractor.

45. Ld. Counsels for accused S.N. Goel, S.K. Jain and C.B. Singh next submitted that prosecution failed to prove that there was a conspiracy between them and the contractor/accused Ashok Kumar Gupta in the passing of bills. It was submitted that the Engineers had no role in the passing of bills and releasing of payment which was the job of the accounts department, hence a conspiracy could not be hatched by the Engineers without the connivance of the officials of the accounts department.

46. It was also submitted on behalf of all accused that the account clerk had to examine the bill/record and he then refer it to the accountant who had to also examine the bills before passing it. It was further alleged that no evidence had been led by the prosecution to show that it was the responsibility of the Engineers to pass the bills and release the payment. It was C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 55 submitted on behalf of all accused that PW11 stated in his crossexamination that bill in question was given to him for checking by the JE. He further stated that entry at Mark DA at Ex.PW11/DA in the MB book related the number of the invoice by which bitumin was received from Indian Oil Corporation and was in the handwriting of JE S.N. Goel. He also stated that the entry Ex.PW11/DA was checked and tallied by him with the invoice. PW13 also stated in his cross examination that the invoice number was reflected in the MB/register Ex.PW13/B at Mark DA Ex.PW11/DA bearing receipt no.0167348 dt. 5.10.98 of IOCL. He further stated that the bills were checked after comparing them with measurement book and invoices. Thus there was no role of Engineers in passing of bills and release of payment. It was further contended by all the accused that PW18 stated in this regard in his crossexamination in this regard that unless bill/invoice were passed by the Accountant, payment was not released as a general practice. It was further contended that PW18 also deposed that Ex.PW11/DA mark DA reflected the invoice number of IOCL. However, I am of the view that the C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 56 deposition of above PW11, PW13 and PW18 were regarding general practice being followed while passing of the bills I do not agree with the contention of Ld. Counsel for accused that from deposition of PW11, PW13 & PW18 it had been established that invoice of bitumin was submitted by the accused Ashok Kumar Gupta to the MCD and it was verified by the accounts department and thereafter payment was released to him as accused failed to discharge the burden placed on them U/S 106 of the Evidence Act.

47. Ld. Addl. PP further submitted that after the bills were scrutinized by the Accounts Clerk and the Accountant, the Executive Engineer had to verify the same and make endorsement for payment. It is significant to note that as per the terms and conditions of the agreement/work orders, and in particular condition No. 8 & 14 hereinabove referred to the contractor had to submit the bill to the EE. The EE had to verify the claim. If the execution of work was found sub standard or faulty the contractor on the direction of EE had to repair/remove or reconstruct completely or partially as per the terms of contract. In case, the contractor failed to do so, he was C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 57 liable to pay penalty. Thus, I do not find any substance in the contentions of Ld. Counsels for accused (Engineers) that they had no role in the passing of bills.

48. Ld. Counsel for accused S.N. Goel, Sanjay Kumar Jain and C.B. Singh further stated that the role of the engineers was only to examine the execution of work at site and in this regard, placed reliance a circular Mark PW18/A dated 24.05.01. It was submitted that Mark PW18/A was a circular issued by MCD for the general guidance of its officials and was binding on the department. It was also contended that as regards Mark PW18/A PW18 stated in his cross examination that it appeared to have been issued by their department. It was averred that PW20 gave an evasive reply regarding the above circular in his cross examination and stated that he could not remember if the circular Mark 18/DA came in his knowledge during investigation. Thus from the evasive reply inference arises that PW20 was aware of the circular and deliberately withheld it as it would have exonerated the accused. It was also contended that vide above circular contractor was responsible for the correctness and genuineness of all the C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 58 documents submitted by him.

49. It was further submitted by Ld. Counsel for all the accused that the circular Mark PW18/A was withheld by the prosecution, though it was the duty of the prosecution to bring on record all the documents to ensure that trial was fair, thus investigation being tainted the benefit of the same is to be given to the accused.

50. It was further contended on behalf of accused S.N. Goel, S.K. Jain and C.B. Singh that there was no dishonest intention on their part. It was also contended that their acts were bonafide and contractor/accused Ashok Kumar Gupta was liable for the correctness and genuineness of documents submitted by him.

51. It was further contended by Ld. counsel for all the accused that the invoice Mark DA in Ex.PW11/DA was not disputed by the prosecution thus it was for the prosecution to have verified the same but prosecution failed to do so, it failed to bring home the guilt of accused beyond reasonable doubt. However, in view of my findings that accused failed to discharge the burden cast on them U/S 106 of the Indian C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 59 Evidence Act to prove a fact especially within their knowledge, as such there were strong circumstances pointing to their guilt. I do not find any merit in the said contention. Moreover, the circular Mark PW18/A was dt. 24.5.2001 but the work orders are dt. 10.7.98 and 24.12.98, thus the circular could not have retrospective operation. Further as already held that the parties were bound by the terms and conditions of the work orders which clearly stipulated that original receipt of bitumin was to be summoned by the contractor to MCD. Thus, in view of Section 61, 62, 91 & 92 of the Evidence Act, no oral or documentary evidence could be led to contradict the terms of the work orders except in cases covered under the proviso to Section 92 of the Act.

52. It was next contended on behalf of all the accused that the prosecution failed to bring home the guilt of accused beyond reasonable doubt as it failed to examine the custodian of account file, with regard to the missing of the invoice in question. It was further submitted that the onus of proving the entry of invoice Ex.PW11/DA was on the prosecution. However, as already held hereinabove the burden of proving a C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 60 fact especially within the knowledge of a person was on that person who alleges knowledge of the same. Thus accused had to discharge the said burden in view of Section 106 of the Indian Evidence Act. But they did not do so, as such, I do not find substance in the said contention of accused.

53. Accused did not challenge the testimony of PW22 as regards the FSL report Ex.PX. The accused also did not dispute their signatures in the work orders Ex.PW6/A and Ex.PW7/A. Accused S.N. Goel also did not dispute that entry mark DA in Ex.PW11/DA was not in his handwriting. Thus the prosecution evidence on this crucial aspect went unchallenged.

54. The next contention of Ld. Counsel for accused was that the registration of FIR, investigation and prosecution were wholly malafide as the CBI had not found incriminating evidence to register a case against them. It was also contended that in the statement/report of the Chief Engineer Sh. Sant Lal addressed to IO/PW20, which was part of Mark 18A (Colly) it was stated that the files of the work orders in question were referred to CBI and detailed enquiry was conducted. The CBI, C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 61 however, did not find any discrepancy on part of Engineers of MCD and returned the files to MCD to deal with the same departmentally. However, I do not find any merits in said contention as in such a case it was open to the accused to have availed the remedy against the registration of FIR and their prosecution but they did not do so.

55. It was next urged that the case was registered on the basis of a source information as deposed by PW3 but the source of the said information was not disclosed. Neither the informer was examined as a witness and in this regard PW3 stated in his cross examination that he had conducted a secret inquiry but the inquiry report was not filed in the court. It was further contended that PW3 also stated that he had submitted detailed report to his seniors and with the approval of his senior officers a criminal case was got registered. But the approval of senior officers was not placed on record and PW3 admitted this fact in his cross examination. Thus, there was no proper investigation. However, I am of the view that a secret and preliminary enquiry was conducted before registration of FIR and after being satisfied that the accused were guilty of C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 62 serious misdemeanor a case was registered against them. The non disclosure of the source of secret information was not fatal to the case of prosecution as prosecution is not bound to disclose the source of its information. The purpose of secret enquiry was to find out whether criminal proceedings are to be resorted to and to save honest public servants from vexatious prosecution. Thus when a public servant is charged with acts of dishonesty which amounts to serious misdemeanor before a preliminary enquiry into the allegations before the lodging of a FIR are meant to save him from incalculable harm to his reputation in case the allegations are false. However, as soon as it becomes clear to the enquiry officer that the public servant appeared to be guilty of serious misconduct it was his duty to lodge FIR and proceed further according to the provisions of Cr.P.C. Thus, I do not find any substance in the contentions of Ld. Counsel for accused that investigation was tainted.

56. Thus, I am of the view that from the evidence adduced by the prosecution it has been proved, the acts of accused S.N. Goel, S.K. Jain and C.B. Singh were the outcome of a C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 63 conspiracy between them and accused Ashok Kumar Gupta / the contractor with the intention to cause wrongful loss to the MCD by the and wrongful gain to Ashok Kumar Gupta. An understanding was arrived at between the all accused and the circumstance hereinabove indicates that there was a prior understanding between all the accused to cause wrongful loss to MCD and wrongful gain to accused Ashok Kumar Gupta. Accused S.N. Goel, S.K. Jain and C.B. Singh played key role in getting the bills of accused Ashok Kumar Gupta passed without invoices. Thus there is no doubt that the actions of accused were actuated by ill motive and they took the tainted steps to achieve the unlawful object of the conspiracy.

57. I hold accordingly that prosecution succeeded in proving by cogent evidence that there was a meeting of minds of all accused to manipulate the entry Ex.PW11/DA Mark DA in Ex.PW13/B to cause wrongful loss to MCD and wrongful gain to accused Ashok Kumar Gupta. All accused are thus guilty for the offence U/S 120 B IPC C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 64 Findings on Cheating and Conspiracy Section 420 r/w Section 120 B IPC.

58. The offence of cheating is defined in Section 415 of the Indian Penal Code follows: "415. Cheating.Whoever, by deceiving any person, fradulently or dishonestly induces the person so deceived to 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 damage or harm to that person in body, mind, reputation or property, is said to "cheat".

59. The ingredients which require to constitute the offence of cheating under Section 415 are as under:

"(i) There should be fraudulent or dishonest inducement of a person by deceiving him:

(ii) (a) The person so deceived should be induced to deliver any property to any C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 65 person, or to consent that any person shall retain any property; or

(b) The person so deceived should be intentionally induced to do or 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) the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property."

60. 'Deceit' is one of the essential elements of offence of cheating. Mere deception does not constitute an offence of cheating. There must be evidence to show that pursuant to the deception a person was induced to deliver property or omitted to commit acts detrimental to his interest.

61. 'Dishonesty' has been defined in Section 24 of the Indian Penal Code as under: "Whoever does anything with the intention for causing wrongful gain to any person or wrongful loss to another person is said to do that thing dishonestly".

C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 66

62. Thus, guilty intention is an essential ingredient of the offence of cheating. In other words, mens rea on part of accused must be established before he can be convicted for the offence of cheating. Intention to cheat has to be gathered from the facts and circumstances of the case. In view of my findings on the charge of conspiracy, I am of the view that there is sufficient evidence adduced by prosecution to bring home the charge punishable U/S 420 IPC r/w Section 120B IPC cheating in pursuance of the conspiracy as accused manipulated entries in Ex.PW11/DA at point DA in the MB/register Ex.PW13/A with the dishonest intention to cheat MCD as it led to passing of the bills and release of payment to the contractor/accused Ashok Kumar Gupta. For a person to be convicted U/S 420 IPC it has to be established not only that he had cheated someone but also that by doing so he dishonestly induced the person cheated to deliver any property etc. A person can be said to have done a thing dishonestly if he does so with the intention of causing wrongful gain to one person or wrongful loss to another person. Wrongful loss is the loss by unlawful means of property etc. to a person who is C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 67 entitled to it. While wrongful gain means gain by unlawful means of property to which the person gaining was not entitled. Thus, I hold that all accused by practicing deception with dishonest intention accused C.B. Singh, S.N. Goel and S.K. Jain inter alia induced the account section of MCD to release payment to contractor / Ashok Kumar Gupta without invoices of bitumin of an authorized Government Oil Refinery, thereby causing wrongful gain to the accused Ashok Kumar Gupta / contractor and wrongful loss to MCD. The offence of cheating is complete after delivery of property/money because of deception practiced. The burden of proving the falsity of the representation made by the accused never shift from the prosecution but if an explanation is given by the accused, the court will have to take that into consideration. However, in the present case the explanation given by the accused was not satisfactory as accused did not discharge the onus of proof placed on them under Section 106 of the Evidence Act to prove a fact especially within their knowledge that the bitumin was purchased by the contractor Ashok Kumar Gupta in his individual name from IOCL, Mathura. I accordingly hold all C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 68 the accused guilty U/S 420 IPC r/w Section 120 IPC. Finding on Section 13(1)(d) of the POC Act & Conspiracy

63. To establish the offence under Section 13(1)(d) of the POC Act, all that the prosecution had to establish was that accused S.N. Goel, C.B. Singh and S.K. Jain being public servants abused their position to obtain for themselves or any other person any valuable thing or pecuniary advantage. The question whether favour or disfavour was within the power and ambit of accused is irrelevant, if the accused abused their official position the requirement of law is satisfied.

64. Section 13 (1)(d) of POC Act which is relevant is as under: "Criminal misconduct by a public servant - (1) A public servant is said to commit the offence of criminal misconduct,

(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or

(b) if he habitually accepts or obtains or C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 69 agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or

(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person to do so; or

(d) if he

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 70 pecuniary advantage without any public interest; or (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.

65. Section 21 of Indian Penal Code defines: "21" Public Servant - The words "public servant" denote a person falling under any of the description hereinafter falling namely: Twelfth Every person(a) in the service or pay of the government or remuneration by fees or commission for the performance of any public duty by the Government;

(b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government Company as defined in Sec. 617 of the Companies Act, 1956".

66. It was contended by accused S.N. Goel, S.K. Jain and C.B. Singh that prosecution failed to prove that they had abused their official position to obtain for themselves or for C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 71 any other person pecuniary advantage or any valuable thing. Rather from Mark PW18/A it was evident that it was the contractor who was liable for the documents submitted by him. It was also contended that as per Mark PW18/A the duty of engineers was only to verify the work at site. It was further contended that the Engineers also did not have any role in the passing of bills. It was reiterated that PW11 and PW13 had stated that they had verified the invoices with the entries in the MB/register. Thus prosecution failed to prove that there was manipulation of entry Mark DA on Ex.PW11/DA in Ex.PW13/B. It was also contended that prosecution also failed to prove dishonest intention or mens rea on part of accused to cheat MCD in conspiracy with accused Ashok Kuamar Gupta, by cogent evidence.

67. As regards mens rea not being an essential ingredient to constitute an offence U/S 13 (1)(d) of the POC Act, it has been held in Runu Ghosh & Others CBI Crl. A. 482/2002, No. 509/2002 and No. 536/2002 decided by Hon'ble High Court of Delhi on 21.12.2011 as follows:

C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 72

"Interpretation of Section 13(1)(d)(ii) (iii) This question lies at the core of the reference to this Division Bench. The material portion of the reference, while adverting to Section 13 (1)(d) and then dealing with the phraseology of Section 13 (1)(d)(iii) and other preceding subclauses, reads thus:

"Whether the absence of adverbs like "willfully", "fraudulently", "dishonestly", "corrupt or illegal means" to qualify the very "obtains" in this clause would mean that a public servant commits criminal misconduct if he while holding such office obtains for any person (and not for himself) any pecuniary advantage which is "without any public interest"?. The statute appears to offer no guidance as to what can be said to be a decision or act that is "without public interest".

"There is no doubt that Section 13 (1) (d)

(iii) differs from other parts of the Act, not only in structure, but also in substance. The use of terms such as "habitually accepts"

"agrees to accept" "attempts"

"consideration which he knows to be inadequate" "dishonestly or fraudulently C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 73 misappropriates." (property "entrusted" to him or "allows any other person so to do"); "corrupt or illegal" "abusing his position"

are clear pointers to Parliamentary intention that mens rea is essential to be proved in relation to the offences provided for under section 13 (1) (a) to (d) (i) and

(ii). Section 13 (1) (d) (iii) contains no such words, which point to criminal intent."

Having regard to the previous history of the statute, the amendments to the 1947 Act, its avowed objects and the distinctive structure which Parliament adopted consciously, under the 1988 Act, despite being aware of the preexisting law, as well as the decisions of the Courtthe conclusion which this Court draws is that mens rea is inessential to convict an accused for the offence under Section 13 (1) (d) (iii) It would be sufficient if the prosecution proves that the public servant "obtains" by his act, pecuniary advantage or valuable thing, to another, without public interest. The inclusion of public interest, in the opinion of the Court, tips the scale in favour of a construction which does not require proof of mens rea. There can be C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 74 many acts of a public servant, which result in pecuniary advantage or obtaining of a valuable thing to someone else; typically these may relate to payment of royalty, grant of license or concessions, issuance of permits, authorizations etc. Yet, such grants, concessions, or other forms of advantages to third parties would not criminalize the public servant's actions, so long as they have an element of public interest. They (acts of the public servant) are outlawed, and become punishable, if they are "without public interest".

68. As regards the expression without 'public interest' it has been held in Runu Ghosh (supra), as under: "Having now settled the true interpretation of whether the offence under Section 13 (1) (d) (iii) requires proof of mens rea, it would now be vital to settle what really the prosecution would have to establish to say that the public servant's actions or decisions, which result in a third party obtaining a pecuniary advantage or valuable thing, without public interest.

"It would be profitable to emphasize that public servants are an entirely C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 75 different class, and the level of trust reposed in them by the society is reflected in the high standards of behaviour and rectitude expected of them, both in the discharge of their duties, and otherwise".

"The court, as a consequence has to determine the objective criteria by which acts (of public servants) "without public interest", are to be judged, if mens rea (to obtain pecuniary advantage or valuable thing to another) is not a necessary ingredient. This exercise is essential because in the absence of mens rea (which has been ruled out) the court has to say what "acts" resulting in someone obtaining pecuniary advantage or valuable thing are "without public interest".

"Therefore, when a public servant's decision exhibits complete and manifest disregard to public interest with the corresponding result of a third party obtaining pecuniary advantage or valuable thing, he is fastened with responsibility for "criminal misconduct" under Section 13 (1) (d)

(iii).

C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 76

This offenceunder section 13 (1) (d)

(iii) advisedly does not require proof of intent, or mens rea, because what Parliament intended was to punish public servants for acts which were without public interest. This kind of offence is similar to those intended to deal with other social evils, such as food and any adulteration (offences under Prevention of Food Adulteration Act, Drugs and Cosmetics Act, Essential Commodities Act. Section 25 of the Arms Act. It is not every act which result in loss of public interest or that is contrary to public interest thus is prosecutable. However, it is only those cases done with complete disregard to norms and manifestly injurious to public interest, which are avoidable, but for the public servant disregarding precautions which resulted in pecuniary advantage to another that are prosecutable U/S 13 (1) d(iii) of the PC Act. In other words, if the public servant is able to show that he followed all the safeguards, and exercised all reasonable precautions having regard to the circumstances, despite which there C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 77 was loss of public interest, he would not be guilty of the offence. Failure to observe those reasonable safeguards against detriment to the public interest, which having regard to all circumstances, it was his or her duty to have adopted. To put it differently, the public servant acts without public interest, if his action or decision, is by manifestly failing to exercise reasonable precautions to guard against injury to public interest, which he was bound, at all times to do, resulting in injury to public interest. The application of this test has to necessarily be based on the facts of each case' the standard however, is objective.

69. The crucial question thus is whether the accused S.N. Goel, S.K. Jain and C.B. Singh had abused their official position by corrupt or illegal means to 'obtain' for themselves any other persons pecuniary advantage 'without public interest'. As long as there was no ulterior motive, the courts will not question the decision of the public servant. However, when the act of public servant was without public interest, in C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 78 utter disregard of the consequences and such act caused loss to the Government Exchequer and resulted in third party obtaining pecuniary advantage it would amount to be without public interest. The public servant indulging in such act had to take responsibility of the consequences. It is now to be seen whether accused S.N. Goel, S.K. Jain, C.B. Singh acted in concert, without public interest, with accused Ashok Kumar Gupta, by abusing their official position.

70. It was reiterated by Ld. Counsels for accused that as invoice number was not given to IOCL, Mathura for verification, neither it was disclosed whether M/s Universal Sanitary Emporium was a proprietorship concern or the partnership concern or a company, as such the invoice Mark DA on Ex. PW11/DA could not be verified. It was further contended that bitumen was purchased by accused Ashok Kumar Gupta in his name. However, this contention was already rejected while deciding the charge of conspiracy and cheating, as accused failed to discharge the onus placed on them U/S 106 of the Indian Evidence Act.

71. Ld. Counsels for the accused also reiterated their C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 79 contention that IO PW22 Inspector Santosh Kumar Singh did not verify the customer register of IOCL nor seized it and in this regard had stated in his crossexamination that he had not verified the customer register maintained by IOC, Mathura, which was a serious lacuna in the case of prosecution. However, Ld. Addl. PP countered the said contention and reiterated that IO did not verify the same as a report was already received from the CRC IOCL Mathura Refinery which was Ex.PW16/A that there was no customer by the name of M/s Universal Sanitary Emporium in their customer record. It was further contended by all accused that it was incumbent upon the prosecution to prove its case beyond reasonable doubt. Ld. Addl. PP further submitted that PW22/IO had testified in his examination in chief that no invoice was found in the record of IOCL in the name of M/s Universal Sanitary Emporium and the entries in the measurement book were manipulated by accused by abusing their official position to obtain pecuniary benefit for accused Ashok Kumar Gupta without public interest. I am of the view as work orders Ex.PW6/A and Ex. PW6/B, Ex.PW7/A and Ex.PW7/B were C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 80 admitted by accused it was incumbent on accused to have complied with the terms and conditions thereof. But the accused (Engineers) in gross violation of the terms and conditions conspired with the contractor who did not furnish proof of purchase of bitumin from an authorized government refinery. Accused S.N. Goel, S.K. Jain and C.B. Singh manipulated entry Mark DA in Ex.PW11/DA in Ex.PW13/B in conspiracy with the accused Ashok Kumar Gupta to cause wrongful loss to MCD and wrongful gain to him (Ashok Kumar Gupta). The accused (Engineers) who were discharging functions on behalf of MCD were expected to act in public interest and fairly and every public servant who acts on behalf of public body or State is accountable for his acts. All powers vested in a public servant are meant to be exercised for promoting public interest. Thus, when an act of public servants exhibits manifest disregard of public good as a result of which a third party obtains pecuniary advantage he is fastened with misconduct U/S 13 (1)(d)(iii) of POC Act. In view of my findings on conspiracy and cheating, I am of the view that prosecution succeeded in proving the offence U/s C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 81 13(1)(d) punishable U/S 13(2) of the POC Act r/w Section 120B IPC against accused S.N. Goel, S.K. Jain and C.B. Singh for manipulation of entry Ex.PW11/DA in Ex.PW13/B in conspiracy with accused Ashok Kumar Gupta, as a result of which accused Ashok Kumar Gupta obtained pecuniary advantage and wrongful loss was caused to MCD.

72. It was next contended by Ld. Counsel for all accused that work was done in the year 199899 but case was registered in 2004 after a delay of about 6 years for which no explanation was forthcoming. However, in this regard, PW3 stated after he got information in 2004 he conducted an enquiry, prior to registration of FIR. Thus, I am of the view that was no inordinate delay in lodging of FIR.

73. It was next contended on behalf of accused S.K. Jain & S.N. Goel that the charge against the accused was for cheating / misappropriation of an amount of Rs.1.75 lakhs but the bill amount of the work orders comes to Rs.1.77 lakhs approximately. Thus, there was a fundamental infirmity resulting in serious prejudice to the accused as it occasioned in failure of justice and in this regard reliance was placed upon C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 82 92(2001) DLT 613 Tirath Prakash (Deceased) through his widow Smt. Mithlesh Sharma, where it has been held:

"Admittedly, the figure of Rs.140/ mentioned as illegal gratification, is incorrect and is a fundamental infirmity, resulting in a serious prejudice to the appellant. I feel that this infirmity is not saved either by Section 215 or 464 of the Code, as it has occasioned a failure of justice. Thus, this serious lacuna in the charge also vitiates the trial."

74. However, I am of the view that the above Judgment is distinguishable as in the case relied upon, the appellant/accused was apprehended redhanded taking illegal gratification of Rs.200/. The appellant had assailed his conviction on the ground that sanction order was illegal in as much as it proceeded on the basis that the appellant/accused had demanded and accepted illegal gratification of Rs.140/ whereas as per the record, appellant accepted an illegal gratification of Rs.200/ including Rs. 60/ as custom duty, C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 83 meaning thereby that illegal gratification was Rs. 140/. The same allegations were repeated verbatim in the sanction order. The competent authority thus granted sanction for prosecution of appellant for accepting illegal gratification of Rs. 140/ as mentioned in the charge sheet whereas the admitted case of prosecution as reflected in the seizure memo was that the amount of illegal gratification was Rs. 138/. The sanctioning authority on being cross examined on this controversy admitted that the amount of illegal gratification was Rs. 138/. The contradiction was not explained. Thus, it was held that the above infirmity in the sanction order could not be saved by taking recourse to U/S 465 Cr.P.C which provides that findings of the sentence shall not be reversed or altered on account of any error / omission / in appeal unless it had resulted in failure of justice. It was further held that Sanctioning Authority was required to first ascertain the correct fact / correct amount of illegal gratification but the Authority failed to apply its mind to ascertain the correct amount of illegal gratification and failure to do so was not mere error or irregularity but an omission amounting to C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 84 illegality effecting the validity of sanction of order.

75. However, in the present case accused did not put any question in the crossexamination of PW18 the sanctioning authority that the amount of the invoices was Rs. 1.77 lakhs but they were charged for passing bills to the tune of Rs.1.75 lakhs. Thus, in my view there was irregularity in the framing of charge which caused prejudice to the accused.

76. The Ld. Counsel on behalf of accused S.N. Goel and S.K. Jain contended that holding of preliminary enquiry prior to the registration of the case was mandatory and in this regard placed reliance upon AIR 1971 Supreme Court 520, P. Sirajuddin Vs. State of Madras, wherein, it is held as under:

"Prevention of Corruption Act (1947), Ss. 5 and 5A - Criminal P.C. (1898), Ss. 160, 161, 162, 163 and 164 - Public servant charged for serious misdemeanor - Preliminary enquiry necessary for lodging FIR - Duty of enquiring officer.

Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount serious misdemeanour and a first C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 85 information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially one who occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general.

When the enquiry is to be held for the purpose of finding out whethr criminal proceedings are to be resorted to the scope thereof must be limited to the examination of persons who have knowledge of the affairs of the delinquent officer and documents bearing on the same to find out whether there is prima facie evidence of guilt of the officer. (Para 17) "19. All the above provisions of the Code are aimed at securing a fair investigation into the facts and circumstances of the criminal case:

however incriminating the circumstances may be against a person supposed to be guilty of a crime the Code of Criminal Procedure aims at C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 86 securing a conviction if it can be had by the use of utmost fairness on the part of the officers investigating into the crime before the lodging of a charge sheet. Clearly the idea is that no one should be put to the harassment of a criminal trial unless there are good and substantial reasons for holding it."

77. Ld. Counsel for accused also placed reliance upon AIR 2011 Supreme Court 1363, Ashok Tshering Bhutia Vs. State of Sikkim, wherein, it is held:

"The FIR had been lodged in flagrant violation of statutory requirements."

"No preliminary enquiry had been conducted against the appellant, as required by various judicial pronouncements of this Court. The documents very heavily relied upon by the prosecution had never been proved in spite of remand the case for that purpose."

"6. This Court in P. Sirajuddin etc. v. The State of Madras etc., AIR 1971 SC 520; and State of Haryana & Ors. v. Ch. Bhajan Lal & Ors. AIR 1992 SC C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 87 604 has categorically held that before a public servant is charged with an act of dishonesty which amounts to serious misdemeanour and an FIR is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. Such a course has not been adopted by the prosecution though the law declared by this Court is binding on everyone in view of the provisions of Article 14 of the Constitution, which would by all means override the statutory provisions of the Cr.P.C and such an irregularity is not curable nor does it fall within the ambit of Section 465 Cr.P.C. However, as the issue is being raised first time before this Court, it is not worth further consideration. Moreso, the aforesaid observations do not lay down law of universal application."

78. The purpose of holding of a preliminary inquiry is to find out whether criminal proceedings are to be resorted to. But as held in Ashok Tshering Bhutia (supra), the said rule is not universal application meaning thereby that there is no mandate under the Law to hold a preliminary inquiry. C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 88 However, there is no merit in the said contention as PW3 stated that he had conducted a secret inquiry prior to lodging of FIR.

SANCTION

79. Section 19 of the POC Act, 1988 relates to previous sanction necessary for prosecution and is as follows: "19 Previous sanction necessary for prosecution.(1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction [save as otherwise provided in the Lokpal and lokayuktas Act, 2013 (1 of 2014)]

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

(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with sanction of the C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 89 State Government, of that Government;

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

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

(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under subsection (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 90 thereby;

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

(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.

(4) In determining under subsection (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.

Explanation.For the purposes of this section,

(a) error includes competency of the authority to grant sanction;(b) a sanction required for prosecution includes reference to any requirement C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 91 that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature."

80. "Section 465 of Cr.P.C, which relates to the effect of any error, omission or irregularity in the grant of sanction for prosecution is as under:

"465. Finding or sentence when reversible by reason of error, omission or irregularity. (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.

C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 92

(2) In determining whether any error, omission or irregularity in any sanction for the prosecution has occasioned a failure of justice, the court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings." (emphasis supplied) "6. In a situation where under both the enactments any error, omission or irregularity in the sanction, does not vitiate the eventual conclusion in the trial including the conviction and sentence, unless of course a failure of justice has occurred."

81. The object behind the requirement of grant of sanction to prosecute a public servant under the POC Act and Cr.PC are designed as a check on frivolous and unscrupulous attempts to prosecute honest public servant for acts arising out of due discharge of their duties. Section 19(1) of the POC Act are mandatory and forbid courts from taking cognizance of any offence punishable U/S 7,10,11,13 & 15 of the POC Act against public servants except with the previous sanction of the competent authority. Ld. Counsel for accused placed reliance C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 93 on the Judgment of Hon'ble Supreme Court in case titled Nanjappa Vs. State of Karnataka, Crl. Appeal No. 1867/12 decided on 24.7.2015 wherein it has been held that "If trial court proceeds, despite invalidity attached to the sanction order, the trial shall be deemed to be nonest in the eyes of Law. The relevant extract is as under :

VI (2015) SLT 223 SC Nanjappa vs. State of Karnataka Prevention of Corruption Act, 1988 - Sections 7, 13 r/w Sections 13(2), 19 Illegal Gratification - Sanction for Prosecution - Statute forbids taking of cognizance by Court against a public servant except with previous sanction of an authority competent to grant such sanction absence of a valid sanction affects competence of Court to try and punish accused - Competence of Court trying accused so much depends upon existence of a valid sanction - In case sanction is found to be invalid Court can discharge accused relegating parties to a stage where competent authority may grant fresh sanction for prosecution in accordance with law - If trial Court proceeds despite invalidity C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 94 attached to sanction order, same shall be deemed to be non est in eyes of law and shall not forbid second trial for same offences upon grant of valid sanction for such prosecution.

(ii) Prevention of Corruption Act, 1988

- Sections 7, 13 r/w Sections 13(2), 19 Criminal Procedure Code, 1973 -

Section 465 - Illegal Gratification -

Sanction for prosecution - If trial has proceeded to conclusion and resulted in a finding or sentence, same should not be lightly interfered with by Appellate or Revisional Court simply because there was some omission, error or irregularity in order sanctioning prosecution under Section 19(1) - Failure of justice is what Appellate or Revisional Court would in such cases look for.

82. As regards the of sanction for prosecution being granted by incompetent authority, it was contended by Ld. Counsel for C.B. Singh that he (accused C.B. Singh) being class A employee, his sanction for prosecution could have been granted by the Corporation and not by the Commissioner MCD. The sanction for prosecution of accused C.B. Singh was proved by PW18 C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 95 Commissioner MCD as Ex.PW18/A. PW18 stated in his cross examination that in the capacity of Commissioner, he was competent to remove C.B. Singh from service and therefore competent to accord sanction for his prosecution.PW18 denied that without the permission of the MCD house, he was not competent to accord sanction for prosecution of accused C.B. Singh. Accused C.B. Singh in support of his contention examined DW2 Ram Niwas, LDC Maintenance NDMC who stated that as per the bill register pertaining to the year 2004 to 2007 C.B. Singh the then Executive Engineer was a category A employee, drawing salary of Rs. 10,000/ 15,000/ in the year (20042005) and was drawing the same scale in (20052006) and (20062007). He proved copies of the entries of above said bill register as Ex.DW2/A1, Ex.DW2/A2 and Ex.DW2/A3. In his cross examination DW2 stated that it was not mentioned in Ex. DW2/A1 to DW2/A3 that C.B. Singh was working as a category A employee during the period 20052007. He also stated that the complete name of C.B. Singh was not mentioned in Ex. DW2/A1 to DW2/A3. Accused C.B. Singh also examined DW4 & DW5 in support of his contention that he was category A employee. Accused C.B. Singh in support of his contentions that as sanction was not granted by C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 96 the competent authority it was not in accordance with Section 19 of the POC Act placed reliance "G.S. Matharoo Vs. CBI 2012 II AD Delhi 186" wherein it has been held as follows:

"Delhi Municipal Corporation Act, 1957 - Sec. 480 Competency of authority - Held, Section 59 (d) of DMC Act could not be construed to mean that it repealed the existing Regulations and was only subject to Regulations which would be made after amendment Act - plain reading of provisions of Act and Regulations show that Corporation is competent authority to remove petitioner from service and not, Commissioner MCD - Further, contention of the learned counsel for CBI that effect of omission of Section 509 by amendment Act of 1993 is that schedule to Regulation get automatically repealed - It may be noted that in Schedule as reproduced above only part 'A' relates to officers appointed under Section 509 whereas Petitioner is Group 'A' employee in Part 'B' - It may be noted Section 509 related only to first appointment to post of General Manger (Electricity/) and C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 97 any municipal employee to be made by Central Government whose term was not to exceed three years - only conclusion that can be drawn in present case is that authority competent to remove Petitioner is Corporation as notified in schedule to Regulations on 15th December, 1976 which regulations have neither been rescinded nor amended till date - Thus, Corporation is competent authority to grant sanction under Section 19 of the P.C. Act and not Commissioner is case of Petitioner, who is Group 'A' employee - Since Trial Court has taken cognizance on sanction granted by incompetent authority, order taking cognizance is illegal and set aside Petition disposed off."

83. It is pertinent to note that the testimony of PW2 who proved the biodata of accsued C.B. Singh as Ex. PW2/C went unchallenged, according to Ex. PW2/C the appointing and disciplinary authority of accused C.B. Singh was the Commissioner.

84. I am of the view that the incompetency of the authority C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 98 to grant sanction is no ground to declare the sanction order illegal unless it has resulted in failure of justice. Thus, I am of the view that Judgment of 2012 II AD (Delhi) 188 G.S. Matharoo Vs. CBI is distinguishable as accused C.B. Singh failed to show that any failure of justice had occasioned by the grant of sanction. As regards failure of justice having been occasioned by error, omission or irregularity in grant of sanction, it has been held in State of Bihar & Ors. Vs. Rajmangal Ram, (2014) 11 Supreme Court Cases 388 as follows: "A. Prevention of Corruption Act, 1988

- S.19(3) - Previous sanction for prosecution of public servant - Error, omission or irregularity in sanction order including error of jurisdiction of grant of sanction - Court's power to interdict a criminal proceeding mid course on ground of - Availability"

"4. The object behind the requirement of grant of sanction to prosecute a public servant need not detain the court save and except to reiterate that the provisions in this regard either under C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 99 the Code of Criminal Procedure or the Prevention of Corruption Act, 1988 are designed as a check on frivolous mischievous and unscrupulous attempts to prosecute an honest public servant for acts arising out of due discharge of duty and also to enable him to efficiently perform the wide range of duties cast on him by virtue of his office. The test, therefore, always is -

whether the act complained of has a reasonable connection with the discharge of official duties by the government or the public servant. If such connection exists and the discharge or exercise of the governmental function is, prima facie, founded on the bona fide judgment of the public servant, the requirement of sanction will be insisted upon so as a filter to keep at bay any motivated, ill founded and frivolous prosecution against the public servant. However, realising that the dividing line between an act in the discharge of official duty and an act that is not, may, at times, get blurred thereby enabling certain unjustified claims to be raised also on C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 100 behalf of the public servant so as to derive undue advantage of the requirement of sanction, specific provisions have been incorporated in Section 19(3) of the Prevention of Corruption Act as well as in Section 465 of the Code of Criminal Procedure which, interalia, make it clear that any error, omission or irregularity in the grant of sanction will not affect any finding, sentence or order passed by a competent court unless in the opinion of the court a failure of justice has been occasioned. This is how the balance is sought to be struck."

85. Thus I am of the view that accused C.B. Singh failed to show the failure of justice occasioned by the grant of sanction by PW18.

86. As regards the grant of sanction by Additional Commissioner (Engineering) for prosecution of accused S.K. Jain, S.N. Goel, it is pertinent to note that accused S.K. Jain and S.N. Goel did not challenge the testimony of PW2 who proved their biodatas, according to which their appointing and C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 101 disciplinary authority was the Addl. Commissioner (Engineering).

87. Accused S.N. Goel and S.K. Jain also did not challenge the competency of PW18 to grant sanction against them as no question was put in the crossexamination of PW18 regarding his incompetency to grant sanction against them. However, it was contended on behalf of accused S.N. Goel & S.K. Jainthat the sanction granted by PW18 was invalid as PW18 was not competent to accord sanction for their prosecution. Section 19(4) of the POC Act provides that in order to see whether the sanction has resulted in failure of justice the court should have regard to the fact whether an objection could and should have been raised at any earlier stage of the proceedings. It is significant neither PW2 was not cross examined nor PW18 was cross examined regarding his incompetency to accord sanction against them. Thus, I do not find merits in the contentions of accused S.N. Goel and S.K. Jain. Moreover, the Judgment of Nanjappa (supra) relied upon by accused S.N. Goel and S.K. Jain is distinguishable as it relates to the effect of the subsections (3) & (4) of Section 19 POC Act. The C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 102 relevant extract is as under :

"that a cojoint reading of subSection (3) and subSection (4) show that said provisions envisage a challenge to the validity of the order of sanction or validity of proceeding including finding, sentence or order passed by Special Judge in Appeal or Revision before a higher court and not before the Special Judge."

The Judgment of Rajmangal Ram (supra) was not distinguished in Nanjappa (supra).

88. It was next contended by accused C.B. Singh, S.N. Goel and S.K. Jain that sanction order was passed mechanically. It was contended that sanction was granted mechanically without considering the entire documents and evidence and was no application of mind by the sanctioning authority.

89. In support of their contention, Ld. Counsel for accused S.N. Goel and S.K. Jain placed reliance on (2001) DLT 613 Tirath Prakash (Deceased) through his widow Smt. Mithilesh Sharma Vs. State wherein, it has been held "The law obligates the Competent Authority to apply its mind to the facts C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 103 and circumstances of the case before granting sanction. Before granting sanction the Sanctioning Authority is required to first ascertain the correct facts, like in the present case the correct amount of illegal gratification, and then decide whether the sanction was to be given or not. But in the instant case, as noticed above the Authority, failed to apply his mind to ascertain the correct amount of illegal gratification to decide the question of sanction and failure on his part to ascertain this material fact is not a mere error or irregularity but is a serious "omission" on his part, amounting to illegality, affecting the validity of the sanction order. The term "illegality" cannot be synonymous with the term "irregularity". This illegality in my view, did occasion the failure of justice within the meaning of Section 465 of the Code. The decision of the Apex Court in Panda's case (supra), heavily relied on by learned counsel for the State, is clearly distinguishable on facts. In that case apart from the fact that the nature of infirmity in the sanction, alleged by the convict, is not C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 104 indicated in the judgment, but the Court has not only recorded a finding that there is nothing on record from which it can be said that the error or irregularity in the sanction had occasioned any failure of justice, it has also noticed that objection regarding the validity of sanction was not raised before the Trial Court, which, as noted above, is not the case here. Thus, Section 465 of the Code does not come to the rescue of the prosecution.

90. However, Ld. Addl. PP contended that PW18 stated in his examination in chief that he had accorded sanction after considering documents and applying his mind to the facts and circumstances of the case. PW18 denied in his cross examination that he had granted sanction in a mechanical manner without application of mind.

91. It was further contended on behalf of accused S.K. Jain, S.N. Goel and C.B. Singh that PW18 stated in his cross examination that he could not recollect whether Ex.PW11/DA was placed before him by the IO at the time when he accorded sanction. He also stated that Ex.PW11/DA reflected the C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 105 invoice number issued by the Indian Oil Corporation Ltd. at Mark DA. It was also contended that had all the facts been placed before PW18 he would not have accorded sanction against them. It was further contended that PW18 also stated in his crossexamination he was aware that MB/register reflects the measurement of work done. He further stated that the sanction order did not reflect whether the work had been completed or not. It was also contended that PW18 also stated that the sanction order did not reflect whether he had gone through the statement of accountant. PW18 also stated that the payment were not released as a general practise untill the bill/invoice was passed by the accountant. PW18 also stated that circular Mark PW18/A appeared to have been issued by their department and was binding on the department. It was contended that in view of Mark PW18/A it was the contractor who was responsible for the correctness and genuineness of documents submitted by him.

92. However, as already held the said contention were without merits as Mark PW18/A was dated 24.05.2001, whereas the work order no. 186 and work order no. 535 dated C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 106 10.7.98 & 24.12.98, thus the above circular could not have retrospective operation. Moreover, the clinching evidence against accused C.B. Singh, S.N. Goel and S.K. Jain was the deposition of PW18 that the copies of work orders and other documents were put up before him and perused by him.

93. As regards application of mind by the Sanctioning Authority, it has been held in 2013 (8) SCC 119 State of Maharastra through CBI Vs. Mahesh Jain as follows:

"The inadequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order. An order of sanction cannot be construed in a pendantic waiver and there showed when there is an order of sanction by the competent authority indicating application of mind, the same not be lighty dealt with. The primary technicalities cannot be allowed to become tools in the hands of an accused"

94. Thus as against the contentions of accused (Engineers) there was the cogent testimony of PW18 that he had gone C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 107 through the FIR, rukka, copy of work orders, statements of witnesses before according sanction.

95. Thus, in view of the Judgment State of Maharastra through CBI Vs. Mahesh Jain (supra) the adequacy of material placed before the sanctioning authority cannot be gone into by court as it does not sit in appeal over the sanction order. Thus, I am of the view prosecution succeeded in proving that sanction had been granted by PW18 after being satisfied that a case for sanction had been made out.

96. Ld. Counsels for accused next contended that date of grant of sanction was not mentioned in the sanction orders which renders them invalid. However, in this regard it is significant to note that PW18 had stated that he had gone through the relevant documents before according sanction, thus nonmentioning of the date was thus not material. The contention of Ld. Counsel for accused C.B. Singh, S.N. Goel and S.K. Jain that sanction order Ex. PW18/A to PW18/C being verbatim also reflects non application of mind is also rejected as the accusations against all the accused were the same and thus there was no illegality in the same. C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 108

97. As regards, sanction for prosecution U/S 420 & 120 IPC, Section 197 of Cr. P.C. relates to prosecution of Judges and public servants and is as follows: "197. Prosecution of Judges and public servants - (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction.

98. Section 190 of Criminal Procedure Code empowers the Magistrate specified therein to take cognizance of any offence in the manner indicated in that section. Section 197 of the Code embodies an exception to Section 190. The object of the section is to prevent the commencement of vexatious proceedings against public servants and to secure the well considered opinion of a superior authority before a prosecution C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 109 is launched against them. The language in Section 197 of the Code, however makes it clear that it is only a qualified protection and does not apply to all public servants and to all offences. Before the Section could be invoked, two conditions must be satisfied.

(1) That the accused must be a public servant. (2) The offence must be committed by the accused while acting or purporting to act in the discharge of his official duty.

99. "A public servant can only be said to act or to purport to act in the discharge of his official duty if his act is such as to lie within the scope of his official duty.

100. Thus, whether sanction is required under Section 197 (1) will depend upon the facts of each case. If the acts complained of was so integrally connected with the duties attached to the office of public servant as to be inseparable from them, then sanction under Section 197 (1) would be necessary; but if there was no necessary connection between them and the performance of those duties, then no sanction would be required.

101. As regards the offence u/s. 420 IPC the sanction required C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 110 is u/s. 197 Cr.P.C which provides that no court shall take cognizance of an offence against a public servant except with the previous sanction. However, the protection u/s. 197 Cr.PC is available to a public servant only when the alleged act alone by a public servant is reasonably connected with the discharge of his official duty. Thus, sanction is not necessary when the offence complained of has nothing to do with the discharge of his public duty. In view of my findings on the charges of conspiracy and cheating, I am of the view, no sanction was required for prosecution of the accused C.B. Singh, S.N. Goel & S.K. Jain u/s. 420 IPC r/w Section 120B IPC as entering into conspiracy and manipulation of entries in the MB/register to cheat MCD was not part of duty of a public servants while discharging their official duties. In this regard, my view is fortified by the Judgment of Hon'ble Supreme Court in (2006) 1 Supreme Court Cases 294, Romesh Lal Jain Vs. Naginder Singh Rana & others wherein it has been held as follows : "order of sanction in terms of Section 197 Cr.P.C is required to be obtained C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 111 when the offence complained of against the public servant is attributable to the discharge of his public duty or has a direct nexus therewith, but the same would not be necessary when the offence complained of has nothing to do with the same."

102. For the foregoing reasons, I hold all the accused guilty U/S 120B IPC, 420 r/w Section 120B IPC and accused S.N. Goel, S.K. Jain and C.B. Singh guilty U/S 13(1)(d) punishable U/S 13(2) POC Act r/w Section 120 IPC.

Announced in the open court on this 29th day of October, 2015 (Poonam Chaudhry) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC, Delhi C.C. No. 38/12 State Vs. Ashok Kumar Gupta etc. Page No. 112

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Delhi District Court

State vs . 1. Ashok Kumar Gupta on 29 October, 2015