Delhi District Court
Cbi vs . Bhupesh Chandra Patel Etc. on 14 May, 2015
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IN THE COURT OF SH. SURESH CHAND RAJAN,
SPECIAL JUDGE- CBI (O3)/PC ACT:
PATIALA HOUSE COURT : NEW DELHI
CC No. 06/14
RC No. 29A/2011/DAI/CBI/ND
Case ID No. 02403R0150922014
Central Bureau of Investigation
Vs.
1. Bhupesh Chandra Patel
S/o Sh. S.P. Patel
R/o H. No. 28, Type-III
Jal Vihar Colony, Lajpat Nagar,
New Delhi
2. Ravinder Singh
S/o Sh. Amir Singh
R/o Flat No. 292, Shree Awas Apartments
Sector-18B, Dwarka,
New Delhi
3. Salim Khan
S/o Suleman Khan
R/o RZ-3206/36, Tughlakabad Extn.
PS Govindpuri,
New Delhi-110 019
Date of Institution: 20.08.2014
Reserved for Order on: 01.05.2015
Order Pronounced on: 14.05.2015.
APPEARANCE
Sh. S.C.Sharma, Ld. Sr.PP for CBI
CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 1 of 93
CBI Vs. Bhupesh Chandra Patel etc.
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Sh. Mohd. Quamar Ali, Advocate and Sh.
Sudarshan Rajan, Advocate for A-1 Bhupesh
Chandra Patel and A-2 Ravinder Singh.
Sh. R.C.Tiwari Advocate for A-3 Salim Khan
JUDGMENT
This case came to be registered on the findings of Preliminary Enquiry No. DAI-2011-A-0011 against A-2 Ravinder Singh, the then Junior Engineer (JE), Delhi Jal Board (DJB), West II Division. It is alleged that South West II Division of DJB awarded Contracts No. CA 08/07-08, 88/08-09, 49/08-09 and 89/08-09 to M/s Kadri Tubewells Private Limited (herein referred to as "Contractor"), of which A-3 Salim Khan is the Contractor for boring/re-boring of tubewells in the area falling under the jurisdiction of South West II Division of DJB; only Contract Agreement No. CA-08/07-08 is the subject matter of the present charge-sheet.
2. It is further alleged that as per the said contract agreement, boring of tube-wells 160 meters deep in rocky strata near chaupal in Mahipalpur Village under Executive Engineer South West II Division was carried out; the said work was undertaken by Sh. Radheyshyam, Executive Engineer, B.C. CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 2 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 3 ::
Patel, Assistant Engineer and Ravinder Singh, Junior Engineer from Delhi Jal Board. As per the terms and conditions of the contract, the Contractor was required to use slotted pipe of Johnson make.
3. It is further alleged that during investigation, for the purpose of checking the actual use of Johnson Pipes, services of Dr. D.V. Reddy, Senior Principal Scientist, National Ground Water Research Institute, Hyderabad examined the tube-wells of borehole camera on 12.09.2013; on the basis of analysis of the said video recording, Dr. D.V. Reddy furnished report dated 29.05.2013; as per the same, Johnson pipe was not seen till the depth of 78.5 meters and also after the depth of 105 meters; from the depth of 78.5 meters to 105 meters, tubewells were not clear, the water being turbid; thus, the inspection revealed that only plain and MS slotted Pipes were used till 78.5 meters. Further, after the depth of 105 meters, no pipe/ casing was observed. Thus, it was reported that no Johnson pipe was used in the said boring.
4. Charge-sheet further mentions that in this CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 3 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 4 ::
particular contract agreement, the Executive Engineer checked 50% of the work; Assistant Engineer checked 100% and the Junior Engineer also checked 100% of the work; work done up to 50% did not include Johnson pipe. Whereas, A-1 B.C. Patel, Assistant Engineer and A-2 Ravinder Singh, Junior Engineer, both had done 100% of the work which included checking of Johnson pipe.
5. Charge-sheet further mentions that investigation revealed that contractor furnished fake bills of purchase of Johnson Pipes from M/s Bharti Water Private Limited; payment was released to the contractor by way of fake and forged bills; A-1 B.C. Patel and A-2 Ravinder Singh of DJB entered into criminal conspiracy with the contractor through its Director, A-3 Salim Khan with the object of facilitating the contractor of obtaining pecuniary advantage and to cheat DJB; A-1 B.C. Patel and A-2 Ravinder Singh, who conducted 100% checking of the work fraudulently and dishonestly made false Entry No. 16363 in the Measurement Book (MB) and showed that required Johnson Pipe as per the strata chart had been used; in furtherance of the said criminal conspiracy, the contractor CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 4 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 5 ::
submitted fake bills showing purported purchase of Johnson Pipes, which were actually not purchased with respect to the execution of this contract; and on the basis of false entries made by A-1 B.C. Patel and A-2 Ravinder Singh in the completion bill, payments were released to the contractor causing wrongful loss to the Government to the tune of Rs. 75,105/- and corresponding gain to the accused persons.
6. Charge-sheet further mentions that in view of the above, A-1 B.C. Patel, A-2 Ravinder Singh and A-3 Salim Khan committed offence punishable under Section 120 B read with Section 420/471 and 477 of IPC and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988. During investigation, sanction was obtained.
7. Pursuant to filing of charge sheet and after perusal of the same in the light of the supporting documents, Ld. Predecessor of this Court took cognizance of the offence and accused persons were accordingly summoned vide order dated 20.10.2014. They put in their appearance on 05.11.2014. In compliance to the provisions of Sec.207 Cr.P.C., accused CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 5 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 6 ::
persons were supplied with the copies of the charge-sheet and documents relied upon by the prosecution.
CHARGE
8. Vide order dated 01.012.2014, all the three accused persons were charged for the commission of offence punishable u/s 120(B) r/w sec.420, 471 r/w sec.468 & 477-A IPC & Sec.
13(2) r/w sec. 13 (1) (d) PC Act 1988. Accused A-1 Bhupesh Chandra Patel and A-2 Ravinder Kumar were separately charged for the offence u/s 477-A IPC and u/s 13(2) r/w sec 13(1) (d) PC Act. A-3 Salim Khan has also been charged u/s 420 IPC and u/s 471 r/w sec.468 IPC to which all the three accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
9. The prosecution (CBI), in order to prove its case, in all has examined as many as 9 witnesses. PW1 Sh Vikas Rathi is the Junior Engineer(C), DJB has deposed that on 12.09.2012 the bore-well situated at L-Block, Gali no.9, Mahipalpur Extension was opened and pumping assembly was CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 6 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 7 ::
taken out with the help of electrical and mechanical staff of DJB and the borehole camera was inserted by Dr.D.V.Reddy and recording was done simultaneously in digital camera attached with the device. The site inspection memo was prepared and the same is Ex.PW1/A. The rough site map was drawn during the bore-well inspection which is Ex.PW1/B. He has further deposed that on 17.08.2012 he handed over the documents in respect of contract agreement no.08-07/08 to Sh Manish Upadhyay, Inspector, CBI alongwith contract agreement mentioned in production memo Ex.PW1/C. The documents are Ex.PW1/D. Bill form, purchase voucher, test check report, completion report are Ex.PW1/E and measurement book bearing no.16363 pages 1 to 100 is Ex.PW1/F. In cross examination, after going through the file, witness stated that only the photocopy of the bills are available on record which are Ex.Pw1/DA, Ex.PW1/DA-1 and Ex.PW1/DA2. It is correct that for payment of bill, strata chart and original bill is must. It is correct that as per rules, the accounts Section releases payment to the contractor only after satisfying itself about the genuineness of the bill. It is correct that on Ex.PW1/DA, the signatures of AE CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 7 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 8 ::
Bhupesh Chandra Patel and JE Ravinder Singh are there and there should be original of the photocopy of bill. He was not shown the camera by Dr. Reddy. It was a normal potable camera with a screen. He was not shown the camera by Dr. Reddy to show that there was no prior video recording. No CD was prepared in his presence regarding inspection of the bore- well. The camera or the memory card was not seized by the IO in his presence at the time of inspection of bore-well. There was no voice recording regarding the availability/non-availability of pipe in the bore-well. It is correct that on the date of inspection, the bore-well was in working condition. It is correct that a bore- well cannot function without a pipe. He does not know whether Johnson make pipe was used in this borewell or not. No departmental enquiry was initiated against Bhupesh Chandra Patel and Ravinder Singh.
10. PW2 Shiv Kumar Bhardwaj is the Superintending Engineer and he has deposed about the procedure of boring and re-boring and the permission of officers taken thereof as well as the authority who is eligible for sanction of budget. He CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 8 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 9 ::
further deposed about inviting of tender and the tender to be given to L-1. He has further deposed about preparation of contract agreement. He has further deposed that material was brought by the contractors at the site. During boring sample of earth are collected and strata of water is also observed. Based on the earth strata and water aquifer/availability, lowering of pipe is taken up. In rocky area boring and lowering is done in two stages. Firstly 200 mm diameter MS (mild streel), plain pipe and slotted pipe/Johnson make pipe is lowered. Thereafter boring with 200 mm diameter bit is carried out and 150 mm diameter MS pipe and slotted pipe/Johnson make pipe is lowered. Thereafter, pea gravels are filled around the pipe and then development of bore is started by compressor till the bore starts giving clean water. He has further deposed that measurement of all the items at site is done by JE. Measurement of work test checked by AE and EE. AS per circular in department dated 28.05.2008, the test check of 100% of cost is to be mandatorily done by JE, test check of 50% of cost of work is mandatory for AE and test check of 10% of the cost of work is to be carried out by EE. Thereafter bill is CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 9 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 10 ::
prepared by the JE and signed by AE and EE. Completion report is prepared by JE and signed by AE and put up to EE. Measurement book, completion report and other documents are put up to Accounts Department for processing of payment. Contractor will submit purchase vouchers of material used in the execution of work, strata chart and details of the Engineer deputed by him for supervision of the work for clearing the bill. The scrutiny of the bill is done by accounts with the check list. Thereafter, payment is released under signatures of EE and Accountant/AO/ACA. In cross examination, he has deposed that the specification Ex.PW2/DA are broadly followed. The Engineer-in-Charge' Means the Engineer officer who shall supervise and be In-charge of the work and who shall sign the contract on behalf of the President. He admitted that the contract is signed by EE. EE satisfies himself on the basis of the report given by JE and AE. Depending upon the quality of water, the deposits may come in the pipe, with the passage of time. It the deposits are there, make of the pipe may not be visible. Life of borewell depend upon the quality and quantity of water and also by the water table. Life of the bore well may vary from 2 CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 10 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 11 ::
years to 10 years and the average life would be around 5 years in South Delhi areas. It is correct that in most of the South Delhi, the water has salinity. It is correct that in case the water is salty, deposition takes place on the inner side of the pipe. It is correct that the holes in the filter also get choked with passage of time. It is possible that the surface of the pipe may not be clearly visible, in case of deposits. He admitted that as per circular Ex.PW2/DD, the contractor is required to furnish the bill in original. There is no technical method, to his knowledge, to find out the nature of pipe used in the bore well after 5 years. He has further deposed that he may have deposed in other courts that finance officer was duty bound to check the original purchase document before clearing the bill. He does not remember whether he stated the life of the tube well to be 3 years and 5-7 years in his statement in two similar cases in different courts. He has already stated that if the deposits are made in the pipe, it may not be possible to find out whether it is a slotted/Johnson make pipe or not. The visibility would get reduced pursuant to deposit. After handing over, the bore well is operated by DJB. As per him, the suspended CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 11 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 12 ::
particles would settle at the bottom and possibility of water being clear at the top and muddy in between and again clear at the bottom, is very remote.
11. PW3 Kamal Kumar Aggarwal is the Director of M/s Bharti Waters Pvt.Ltd. After seeing Production-cum-Receipt Memo dated 01.02.2013, vide which he had supplied original retail invoice no. BW/91/2007-2008, dated 29.06.2007, alongwith other original retail invoices mentioned therein, of M/s Bharti Waters Pvt. Ltd. to Sh. Mahesh Kumar Upadhyay, Inspector, CBI, ACB, New Delhi. The said Production-cum-
Receipt Memo and is Ex.PW3/A (D-7). The aforesaid retail invoice is Ex.PW3/B (D-9). He has deposed that vide original invoice no. BW/91/2007-2008, dated 29.06.2007, M/s Bharti Waters Pvt. Ltd. sold Johnson make screen pipe to the Sub- Divisional Engineer (W/S & Sanitation), Sub-Division No. I, GWI, Sonepat. He has been shown the photocopy of invoice already Ex.PW1/DA, bearing no. BW/91/2007-2008, dated 21.06.2007, vide which the Johnson make screen pipe was shown to have been sold in favour of M/s Kadri Tubewells Pvt. Ltd., RZ-1909/23, CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 12 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 13 ::
First Floor, Tughlakabad Extension, New Delhi. M/s Bharti Waters Pvt. Ltd. had not sold Johnson make screen pipe to M/s Kadri Tubewells Pvt. Ltd. through this invoice and this invoice had not been issued from our company and is fake invoice. In cross examination, he has deposed that he has not brought any document today to show that he is one of the director of M/s Bharti Waters Pvt. Ltd. He did not supply any other document except original bill no. BW/91/2007-08. M/s Kadri Tube-wells had few transactions with their company. He denied the suggestion that the ledger account of M/s Kadri Tube-wells was withheld by them because the bill/invoice Ex.PW1/DA was reflected in the same. He denied the suggestion that they are maintaining two bill books, i.e. one in which they deal with cash transaction and the other in which the cheque/bank routed transactions are entered. He does not remember as to the nature of dealings they had with M/s Kadri Tube-wells. He cannot admit or deny the suggestion that M/s Kadri tube-wells had only cash dealings with them, as he does not remember. He denied the suggestion that bill/ invoice Ex.PW1/DA was issued by their concern. It is correct that the details in the bill/ invoice Ex.PW3/B were typed CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 13 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 14 ::
on computer. It is correct that they are not maintaining a physical bill book. It is correct that if somebody takes a black and white photocopy of thier bill, it would come accordingly. It is correct that there is no pre-printed bill numbers on the bills/ invoices and the same are typed at the time of issuance of bill/ invoice. In 2007-2008, only M/s Bharti Waters Pvt. Ltd. was in existence and there was no question of existence of any different format used for M/s Bharti Waters. It is wrong to suggest that in order to evade tax, they used the invoices/ bills of M/s Bharti Waters and only for the sales on which the tax was paid, the bill format of M/s Bharti Waters Pvt. Ltd. was used.
He denied the suggestion that that on 21.05.2007, the owner of M/s Kadri Tube-wells, placed an order of 46 mtrs of Johnson make screen pipe of 150 mm and their concern M/s Bharti Waters delivered the same on 21.05.2007 at Mahipalpur and received a payment of Rs.1,20,276/- in cash, which included VAT @ 4%. As the staff keeps changing, he cannot tell, who were the persons, who were signing the bills in the year 2007-2008. It is correct that their staff used to issue the bills on our directions and used to sign the same. He cannot CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 14 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 15 ::
identify the signatures on bill Ex.PW3/B. He cannot identify signatures on Ex.PW1/DA. It denied the suggestion that the bill/ invoice Ex.PW1/DA is theirs and he is not able to identify the signatures as their staff keeps changing. He cannot say whether he appeared as a witness in case RC.No.28A/11/13. But, he had appeared as a witness before the court of Sh. D.K. Sharma, at Saket. He has been shown bills (14 in number) and he stated that he cannot say whether these were the bills which were shown to him during his testimony before the court of Ld. Special Judge, Sh. D.K. Sharma, Saket. But, some bills were shown to him in that case. These bills appear to have been issued by their company. The same are now Ex.PW3/DA (colly.). It is correct that some of these bills are in different colours. The bill colour must have been changed when the new bills were printed after exhaustion of previous bills. Question : I put it to you that you had been even changing the font size of different words used in your company's name on your bills. What do you have to say?
Answer : It is not correct. During the transition period, that is, when our partnership firm M/s Bharti Waters changed to a private limited company M/s Bharti Waters Pvt. Ltd., on the remaining printed stationery/ bills of M/s Bharti Waters, the CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 15 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 16 ::
words "Pvt. Ltd." were added in the earlier bills after the words "M/s Bharti Waters". Subsequently, the fresh bills in the name of M/s Bharti Waters Pvt. Ltd. were got printed. The difference in the font size is due to the said reason.
12. He has further deposed that CBI had not asked for the details of total sales made by their company during the year 2007-2008. He does not remember whether CBI had asked for the date when their partnership firm switched over to private limited company. He does not remember whether he had provided a document to CBI showing change over from partnership firm to a private limited company. The signatures on six bills Mark 'X' (part of Ex.PW3/DA), appear to be of the same person. But, the signatures on these six bills Mark 'X' (part of Ex.PW3/DA) do not match with the signatures at point 'C' on Ex.PW1/DA. He has been shown the copy of statement Ex.PW3/DB(A-3) recorded in CC No. 20/13, titled CBI Vs. Anand Prakash Garg & Ors., before the honourable Court of Sh. Dinesh Kumar, Sharma, learned Special Judge (PC Act), Saket Court. He has also been shown copy of statement Ex.PW3/DC(A-3) recorded in CC No. 87/12 titled CBI Vs. K.N. Dhyani, before the Court of Ms. Swarana Kanta Sharma, learned CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 16 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 17 ::
Special Judge (PC Act), Patiala House Courts. Question: I put it to you that the pattern of bill Ex.PW1/DA is same as that of the bill dated 05.12.2005, part of Mark X. What do you have to say?
Answer: It is not same. Question: I put it to you that bill Ex.PW1/DA was
manipulated and actually was the bill of M/s Bharti Waters Pvt. Ltd. and that the words "Pvt. Ltd." are not seen in the photocopy Ex.PW1/DA. What do you have to say? Answer: It is wrong, because the pattern of the bills is different.
13. He has further deposed that he is not aware whether Delhi Jal Board (DJB) verifies with the vendor about the bill, before releasing the payment. He does not know whether DJB had called up in their office in the year 2007 to confirm the aforesaid bill Ex.PW1/DA and only after the confirmation of the same by their firm, the payment for the same was released by DJB. It is wrong to suggest that under pressure of CBI, I have stated that bill Ex.PW1/DA is the forged bill. It is correct that bill Ex.PW3/B does not bear his signatures. No computer of their firm was seized by CBI.
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14. PW4 Dr.D.V.Reddy has deposed that on 12.09.2012, the bore-well situated at L-Block, Gali no.9 was opened and pumping assembly was taken out. He inserted the bore hole camera into the well and scanned the total available length. He has given the procedure adopted by him during investigation in his report dated 29.05.2013. Strata chart was not available. Different pipe used in the particular well was assessed. As per financial statement, the well was drilled upto 251 meters. During scanning, he observed that total present well depth was 116.5 meters; top 53.5 meters were 200 mm blank pipe followed by 150 mm blank pipe from 53.5 to 69 meters; further from 69 to 75 meters 150 mm MS (mild steel) slotted pipe was seen and further from 75 to 78.5 meters, 150 mm Blank pipe was seen; from 78.5 to 105 meters pipe details were not clear due to high turbidity in the water. However, after 105 meter, water was clear and no pipe was seen. The slotted pipe of Johnson make was not seen in this well. He has further deposed that he carried out video recording on palm top and then transferred onto a CD. He identified the CD prepared by him which is Ex.PW4/A. The IO had prepared the site inspection CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 18 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 19 ::
memo Ex.PW1/A. He has submitted his report no. DVR/CBI/DEL/NGRI/HYD/6/13 dated 29.05.2013 which is Ex.PW4/B(D-11 page 1 to 7). In cross examination, he has stated that the inspection took place on 12.09.2012 upto half an hour. It is correct that first he went to the office of CBI, then to the Delhi Jal Board Office and then to the spot. He cannot say whether the place of the bore-well was the residential area or not. He does not have any civil engineering degree but he is associated with well construction studies. He did not do any thorough study regarding the subject but he has broad idea about strata determination/geology. The metal pipe will be corroded relatively faster than the PVC pipe. If the water is salty, the corrosion would be faster in the iron pipes. He cannot say whether the water of the said area was salty or not because it was not checked by him. It is correct that Johnson pipe is made of metal with special alloy. They have geophysical method to identify the metals buried in the ground. In this case they have not used geophysical method. They did not use the other method also to find out the buried metal pipe CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 19 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 20 ::
in the bore-well. He admitted that if the water is salty, there will be some deposit inside the metal pipe. After such deposit they cannot find out the make of the pipe. He has not given any certificate that his camera was in order at that time. He does not recollect the company name of the camera but it is mentioned in his report. The camera which he had used, the same was not taken from him by the CBI officers at any time including the Palm top and memory card. On 12.09.2012, he had inspected about 4-5 bore-wells and he used the same camera in each and every bore-well including same palm top and memory card. On each and every occasion, the camera create a new file with time so, it is not required to show the camera recording system to anyone that there is no previous recording. He could not explain when he was putting his camera inside the bore-well in the open area to anyone that there was a Johnson pipe buried inside. They have no instruction to edit the format and there was no intention of his to edit the same. The format provided by the company may be edited. He denied the suggestions that he made his CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 20 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 21 ::
report on the instructions of CBI after editing the same. He does not recollect the company name of CD used by him in this case. He did not supply any sealed CD of his report to CBI. It is wrong to suggest that he handed over the unsealed CD to CBI so as the same can be edited later on at the direction of CBI. He prepared his report after thorough examination of videos collected from the bore-well through his camera. He has further deposed that if the ground water is dirty, the visibility of camera used to be low. He admitted that he had mentioned in his report that the depth of the bore-well is about 251 meters but, actually it was 261.47 meters, as there was typing mistake in his report regarding mentioning of depth of bore-well. He denied the suggestion that there are many mistakes in his report, so it cannot be relied upon. He did not take or issue any certificate regarding using the computers/ CDs for making his reports. He prepared his report in the present case on the basis of the report Ex.PW4/B on its particular page no. 5. He denied the suggestion that he used in his report as it is as a financial CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 21 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 22 ::
report, but it is a completion report. He prepared the CD on his own and not in the presence of anyone. After seeing CD played on laptop in the court, he has stated that the CD from 01 meter to 78.5 meters, there is rust and heavy corrosion. It is correct that from 78.5 meters to 105 meters, there was turbid water. He denied the suggestion that after 105 meters, upto where the camera had gone inside the bore-well, there was highly turbid water. He denied the suggestion that his report Ex.PW4/B is wrong in this respect. It is correct that when he went to the spot to inspect the bore-well, it was already told to him that the same was installed in the year 2007. It is also correct that the said bore-well was inspected by him in the year 2012. It is correct that during the period of five years, inside the pipes of bore-well, rust and moss formation develops. It is wrong to suggest that due to timely rust and moss formation in the bore-well, the make and type of the pipe in the bore-well could not be found from the camera used by him. He did not do any chemical test just to find out the pipe, whether it was after 105 meters. He did not use the electro-magnetic system just to find out the pipe after CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 22 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 23 ::
105 meters. It is correct that he had not mentioned in his report regarding rocky strata. He did not prepare any rough notes during the inspection of the bore-well at the spot. It is correct that friction increases as per the depth in the earth. He know the law of sedimentation. He also know the law of gravity.
It is correct that the meaning of law of sedimentation is that the heavy particles settle down faster than the lighter particles. It is wrong to suggest that his report Ex.PW4/B is against the law of sedimentation and law of gravity. He denied the suggestion that high turbidity is on the bottom level and not between the upper and bottom level. There was no provision in his camera to measure the thickness of the pipe. He used the simple camera in this case.
15. PW5 Radhey Shyam is the Executive Engineer who has deposed that he has seen file Ex.PW1/D in which estimate was prepared by JE Ravinder Singh on the note-sheet which is Ex.PW5/A. It was countersigned by B.C.Patel. It was checked by Draftsman, Ms. Manju Malik on page 2N Ex.PW5/B. He approved this estimate vide his noting at page 2N which is CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 23 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 24 ::
Ex.PW5/B. The file was sent to SE South West for re- appropriation of budget. The tender for the work of re-boring of tube-well of 160 meter deep in rocky strata near chaupal in Mahipalpur village was floated and M/s Kadri Tube-wells Pvt. Ltd. had quoted lowest rates @ 24.75% against the amount put to tender and contract was awarded to M/s Kadri Tube-wells Pvt.Ltd. The tender is Ex.PW5/C. The work order is Ex.PW5/D. The contract agreement was executed between Executive Engineer and M/s Kadri Tube-wells which is Ex.Pw5/E. The contractor initiated the work on 25.07.2005 and completed on 01.06.2007. The bill was submitted on 06.06.2007. The bill contains completion report Ex.Pw5/F. Alongwith bill, completion report Ex.PW5/F was submitted. As per completion report Ex.PW5/F, Johnson make pipe measuring 45 meters was shown to have been used. He has been shown measurement book no.16363 already Ex.PW1/F wherein relevant entries have been made with regard to use of 45 meters Johnson pipe.
The payment to the tune of Rs.3,24,322/- was made to the contractor. In cross examination, he has stated that the payment was approved by him after completion of contract. He CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 24 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 25 ::
satisfied himself about the work from the record put up before him. Bill form Ex.PW1/E and completion report Ex.PW5/F bears his signatures. Strata chart Ex.PW5/DA does not bear his signatures. He denied the suggestion that it is mandatory for the accounts section to keep the original purchase voucher on record. Accounts section is supposed to verify the purchase voucher before releasing payment. He admitted that the pay order by the accounts section is prepared only after they are satisfied about the genuineness of the purchase voucher. It is correct that if accounts section has any doubt about the purchase voucher, they would not release the payment to the contractor and would rather, put up the file with the objection. He does not remember whether the file was put up to him with any objection, prior to release of payment to the contractor. No objection was put up to him by the accounts section. Generally, the verification is made by calling up on the phone numbers mentioned on purchase vouchers. He does not remember whether the Finance Officer had obtained the original bill in the instant case. It is correct that the bill is prepared of the items utilized in a particular work. Generally, the verification is made CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 25 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 26 ::
by calling up on the phone numbers mentioned on purchase vouchers. He admitted that he had signed the quantity, which was brought at the site. I had test-checked 45 mts. of Johnson make pipe. Volunteered: The same was done as the said quantity was brought at the site. He cannot say whether 45 mts. of Johnson make pipe was used in the present contract or not. Volunteered: But, the same was brought at site. He admitted his signatures on Certificate Ex.PW1/F, where it is recorded "The work has been done as per WO, no labour dispute in my knowledge. Nothing found valuable during drilling. Nothing has been issued to the contractor from deptt. Necessary recoveries to be made from contractor and ...". WO is work order. It is correct that tube-well water in South Delhi is saline. It is correct that due to salinity, the deposits would get made on the inner side and outer side of the pipe. The moss formation in the pipe may take place after a period. It is possible that filter in the bore-well may get chocked because of corrosion and moss formation, etc. It is correct that corrosion in metal pipes is faster than in plastic pipes. It is correct that Johnson make pipe is a metal pipe. He is not aware about the CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 26 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 27 ::
mechanism which can detect Johnson make pipe, 4 - 5 years after the installation of the borewell. After release of payment to the contractor, the concerned file remains with Accounts Section. He admitted that in in MB, which is Ex.PW1/F, at page no. 61, he has endorsed "checked 50%". There is abadi around the bore-well in question. He does not remember whether any person from abadi area was joined in, in the proceedings recorded in memo Ex.PW1/A. Dr. Reddy had not told at the spot whether Johnson make pipe was used in the said borewell or not. It is correct that entries made by A-2 Ravinder Singh and the test checked by A-1 B. C. Patel in MB, Completion Report, Bill Form, etc. are correct. He admitted that after handing over of the work, the contractor has no control over the particular work. It is correct that the first bore made by the contractor had failed and the bore-well was installed in the second bore. It is correct that in view of the failure of the first bore, extension of time was allowed to A-3 Salim Khan for installation of bore-well. He does not remember how many pieces of Johnson make pipe were there at the site. After making the payment, the contractor cannot see the file in the CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 27 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 28 ::
accounts section nor he can take out or keep any document in the said file. It is correct that he signed the papers after his personal satisfaction, as per the report of his junior engineers, etc. Every work order has its guarantee and specific period and after completion of guarantee period, there is no liability of the contractor against any work order. It is also correct that after completion of the guarantee as well as the specific period, the security of the contractor is used to be released. It is correct that the work of tube-well was carried out by A-3 Salim Khan, as per work order, but the same was not handed over to him.
16. PW6 Arun Gupta is also the Executive Engineer and he has deposed that vide letter dated 31.08.2013, he had forwarded the certified copies of EFT (electronic fund transfer) of CA no.01 in respect of M/s Kadri Constructions Ltd.. The said letter is Ex.PW6/A (D-10, Page 1&2). The certified copy of EFT no.51 dated 4.12.2007 is Ex.PW6/B and certified copy of EFT no.86 is Ex.PW6/C. In cross examination, he has stated that in order to verify the bill submitted for payment by the CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 28 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 29 ::
contractor, the accounts officer can phone the agency, from which the material is procured. Photocopy of bill is retained when the material is purchased by the contractor in bulk. It is correct that if the material pertaining to particular work is purchased vide a bill, the same should be retained in original. As the Assistant Accounts Officer puts his signatures on the pay order, signature of AAO shows that he has verified the bill.
17. PW7 Vijay Kumar has deposed that he was working as Chief Executive Officer, DJB, Government of N.C.T. of Delhi and he was competent to remove the then Assistant Engineer (AE), (A-1) B.C. Patel and the then Junior Engineer (JE) (A-2) Ravinder Singh. He has further deposed that after fully and carefully considering facts and circumstances of the case and after going through the CBI report, copy of NGRI Expert's Report and other material placed before him in respect of the allegations in case RC No. DAI-2011-A-0029, he granted sanction for prosecution as required under Section 19 of P.C. Act, 1988 for the prosecution of the then AE, B.C. Patel and the then JE, Ravinder Singh. The sanctions are Ex.PW7/A and CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 29 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 30 ::
Ex.PW7/B. In cross examination, he has deposed that he did not discuss the matter with the witnesses, before signing the order of sanction. But, he had gone through their statements and record. It is correct that it is the responsibility of the Accounts Officer to examine the documents before releasing payment of any work. Before signing the sanction order, he went through CBI Report, the FIR, CD, other documents including the Report of Expert. He admitted that in FIR, name of A-1 B.C. Patel, the then AE is not there, but the FIR mentioned about involvement of unknown persons. Further, in the subsequent investigation, report, name of A-1 B.C. Patel had come out. He is unable to comment that Executive Engineer test checked the use of 45 meter of Johnson make pipe. He denied the suggestion that he was satisfied about the use of Johnson make pipe from the record/MB and that is why, he has not referred to the same in his sanction order Ex.PW7/A and B. The same finds mentioned at portion X to X-1 in sanction order Ex.PW7/A and B. In the CD of bore-well, there is an audio, which indicates the depth at each stage of bore-well, videographed. He is not able to recollect whether the audio also CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 30 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 31 ::
mentions about usage/ non-usage of Johnson make pipe. He is not aware whether any department enquiry has been initiated against A-1 BC Patel and A-2 Ravinder Singh. He does not remember whether he had mentioned in the sanction orders about watching the CD in the presence of the aforesaid officials. The CD sent by CBI was seen as such he had not consulted any expert to find out whether the said CD had been edited or tampered with. He denied the suggestions that he granted sanction for prosecution mechanically and without application of mind or that he has given the sanction at the instance of CBI.
18. PW8 Mohsin Khan has deposed that Salim Khan is his father who looks after Kadri Tube-wells Pvt.Ltd. The contract no.08/2007-08 Ex.PW5/E bears his signatures at point B. In cross examination, he has admitted that for procuring Johnson make pipe, phone call was made to the company at Azadpur. Nine pipes of standard size of five meters each were received at the site. He admitted that the payment of the said pipes was make in cash at the site. He produced the copy of statement mark A showing entries about purchase of Johnson CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 31 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 32 ::
make pipe vide bill no.BW91/2007-08. The purchase was made from M/s Bharti Waters Pvt.Ltd. The original of bill Ex.PW1/DA was filed with the department. He admitted that the payment was made only after filing of the bill. He was re-examined by the Ld. Sr.PP for CBI wherein he has stated that in the year 2007-08 he was studying law from Lloyds College. Mahipalpur may be at the distance of about 15-17 kms from his residence. It takes about 40-45 minutes to reach Mahipalpur. It is correct that the Sales Tax used to be deposited by the seller and not by the purchaser. The invoice Ex.PW1/DA is shown in mark A at point B. He admitted that they have mentioned the particular invoice no.BW/91/2007-2008 for a sum of Rs.1,20,276/- with VAT. In cross examination, he has stated that it is correct that his father handed over cash payment to employee of Bharti Water Pvt.Ltd.
19. PW9 Inspector Manish Kumar Upadhyay has deposed that the case RC-DAI-2011-A-0029 was registered on the basis of Preliminary Enquiry against Ravinder Singh, the then JE, M/s Kadri Tube-wells Constructions Pvt. Ltd. and CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 32 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 33 ::
unknown other persons, and was entrusted to him for investigation. The FIR is now Ex.PW9/A. He has further deposed that he has conducted the site inspection of the various bore-wells in presence of JE Sh. Bhushan Verma and JE Sh. Ravinder Singh and prepared the Site Inspection-cum- Identification Memo which is Ex.PW9/B (D-5, pages 1 to 7). He collected the documents vide production cum seizure memo Ex.PW1/C from Sh. Vikas Rathi, the then JE (Civil), Vigilance Department, Varunalay Phase-II, DJB, Jhandewalan, New Delhi. Vide Production-cum-Seizure Memo dated 01.02.2013, already Ex.PW3/A, he had collected the documents from Sh. Kamal Kumar Aggarwal, Director, Bharti Waters Pvt. Ltd. He has further deposed that on 12.09.2012, the bore-well situated at L-Block, Gali No. 9, Mahipal Pur Extension, installed vide CA No. 08/07-08 and work order no. 14, dated 07.05.2007, was got opened and pumping assembly was taken out. Thereafter, the bore-hole camera was inserted by Dr. D.V. Reddy and recording was made simultaneously by Dr. D.V. Reddy and he prepared Site Inspection Memo already Ex.PW1/A. He had collected details of EFT (Electronic Fund Transfer) in favour of M/s Kadri CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 33 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 34 ::
Constructions Pvt. Ltd. The said letter is already Ex.PW6/A (D-10, pages 1 & 2). He collected the report from Dr. D.V. Reddy, which is Ex.PW4/B. He recorded the statements of witnesses, scrutinized the documents and after obtaining the sanction for prosecution against the accused/public servants from the competent authority, filed the charge-sheet against them in the court. In cross examination, he has deposed that he has not placed on record the Preliminary Enquiry conducted by CBI. He had gone through the said Preliminary Enquiry against the accused persons. He denied the suggestion that nothing incriminating had come in the Preliminary Enquiry against both the accused. He did not investigate from the department of Vigilance of the Jal Board whether they have received some complaint against both the accused in respect of bore-well in question. He prepared the Identification Memo already Ex.PW9/B, at the spot itself. He prepared the one standard memo Ex.PW1/A in my office just to get as per the standard process followed by Dr.D.V. Reddy, who has come to inspect the bore-well. He does not recollect the time when they started inspection of bore-well. The bore-well is situated in the CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 34 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 35 ::
residential colony. No-one actually joined the proceedings when they were busy in the inspection of the bore-well in question. They had already have an independent witness with them, so he did not try to join more public witness at the time of inspection of the bore-well in question. Today, he does not recollect as to how much time consumed by them for taking out the bore-well pumping assembly from the bore-well. But, the same was taken out on the same day of the inspection. No certificate was taken by him regarding proper functioning of the bore-well camera in question from Dr. D.V. Reddy. He did not mention upto how much deep the bore-well camera was inserted, but, it is mentioned in the report of Dr.D.V. Reddy. He has not placed on record any other report except the report prepared by Dr. D.V. Reddy. During the inspection of the borewell which was recorded in the camera the same also simultaneously played on the palmtop. Mr. Reddy did not disclose to him that there was no Johnson pipe in the borewell. When they went to inspection spot of bore-well, at that time the bore-well was in order. He did not ask from the Jal Board officials as well as CBI official regarding receiving any complaint CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 35 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 36 ::
about standard of water of bore-well. He had also checked that as per the measurement book, 50% checking was done by Executive Engineer in this case. He has further deposed that Shri Vikas Rathi is the independent witness in this case. It is correct that Shri Vikas Rathi was also cited witness by him in CC No. 28/2013 titled as "CBI v. A.P. Garg". When the camera was taken out from the bore well, the proceedings were done and simultaneously recorded and displayed. He did not send the camera as well as the palm top for its mechanical inspection. He did not take the possession of both the things i.e. camera as well as the palm top. CD Ex. PW4/A was forwarded by Dr. D.V. Reddy alongwith this report to CBI so there is no need to call again and again the CD from Dr. D.V. Reddy. CD was not sealed but it was signed by Dr. D.V. Reddy. It is wrong to suggest that he did not call the CD in the sealed parcel because later on it may be manipulated by him. It is correct that there is a signature of Shri Radhey Shyam, Executive Engineer of DJB after test check of the Johnsons make pipe at point 'A' on Ex.PW1/F (page no.58). At page no. 61 of the Measurement Book Ex.PW1/F, there is signature of EE at point 'E' regarding CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 36 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 37 ::
checked 50%. It is correct that lowering and installation of tube well assembly in position to the satisfaction of engineer in- charge. The CD was not sent to the CFSL. He had not ever discussion with Sanctioning authority. It is correct that bore well is still working but there is no use of Johnsons make pipe at the time of boring the bore well by the accused persons. He did not record the statement of any officer from the Sub Divisional Engineer (W/S and Sanitation) Sub Division No.1, GW-1, Sonepat. I did not place any work order of Sub Divisional Engineer (W/S and Sanitation) Sub Division No.1, GW-1, Sonepat on record. It is correct that the contract agreement no. 08 for 2007/2008 already Ex. PW5/E bears the signature of Executive Engineer Shri Radhey Shyam on behalf of DJB through its Chief Executive Officer as well as Mohsin Khan, son of A-3 Salim Khan on behalf of M/s. Kadri Tubewell Constructions Pvt. Ltd. All the bills are passed by the EE. It is correct that the bore well was handed over by the contractor to the EE. After going through statement of EE Ex.PW9/DX he has stated that he did not check the lowering of the assembly. It is correct that EE has already disclosed him at the spot the CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 37 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 38 ::
Johnsons make pipe brought on the spot which is mentioned in statement Ex.PW9/DX. It is correct that AE and JE supervised the work on behalf of EE. It is also correct that EE had deputed them to supervise the work in question. It is correct that the MB, Ex.PW1/F it finds mention regarding the test checks performed by them, that is, 100% by JE, 100% by AE and 50% by EE. It is correct that completion report Ex.PW5/F is prepared after completion of the work. It is correct that DJB deduct the security amount for certain period for getting the maintenance of the work done by the contractor. After expiry of that period, the security is refunded to the contractor. It is correct that in the present case the security was retained for six months. It is also correct that the security was refunded to the contractor after expiry of six months from the date of completion of the work. It is also correct that the contractor is bound to submit strata chart, original bill/ invoice of the purchases and the copy of degree of any engineer. It is also correct that bill of the contractor will pass only after compliance of above three things. It is also correct that Sh. S. K. Bhardwaj had stated to him that all finance officers are duty bound to CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 38 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 39 ::
ensure that contractor's bills submitted to them for clearance are duly and properly verified, including the verification of procurement bill in original. It is also correct that he has recorded the statement of Account officials who had verified the bill and its procurement. He did not obtain any memorandum of M/s. Bharti Water Pvt. Ltd. He did not obtained any record regarding the names and addresses of the directors of M/s. Bharti Water Pvt. Ltd. from the office of the Registrar of Companies. He did not obtain any documents from the M/s. Bharti Water Pvt. Ltd. that who has signed the invoices during the period 2007 to 2008. He had not conducted investigation regarding who authorized to sign the invoices in the year 2007-2008 in M/s. Bharti Water Pvt. Ltd. He did not record the statement regarding details of employees in M/s. Bharti Water Pvt. Ltd. He did not record the statement of Sh. Kamal Kumar Aggarwal regarding signatory of the invoice Ex.PW3/B. He did not make any investigation regarding the mode of payment by the Sub- Divisional Engineer (W/S and Sanitation) Sub Division no.1, GW-1 Sonepat. He did not record the statement of any officer from Sub- Divisional Engineer (W/S and Sanitation) Sub CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 39 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 40 ::
Division no.1, GW-1 Sonepat regarding the placement of order and mode of payment. The bill Ex.PW3/B was provided by M/s. Bharti Water Pvt. Ltd. and it was seized vide Production cum Seizure Memo already Ex.PW3/A. He has not seized the other documents from M/s. Bharti Water Pvt. Ltd. in respect of Ex.PW3/A i.e. Ledger account, record maintained in Income Tax and Sales Tax department. He did not obtain any documents regarding Sh. Kamal Kumar Aggarwal, whether he was a director or not of M/s. Bharti Waters Pvt. Ltd. He did not obtained any copy of the resolution from M/s. Bharti Water Pvt. Ltd. regarding representation of Sh. Kamal Kumar Aggarwal to make an appearance and appear in the court. It is wrong to suggest that Sh. Kamal Kumar Aggarwal handed over him the ledger account book of M/s. Kadri Tube-wells Pvt. Ltd. It is wrong to suggest that he knowingly did not place the ledger account of M/s. Kadri Tube-wells Pvt. Ltd. given by Shri Kamal Kumar Aggarwal in which the entry of sale of Ex.PW1/DA was mentioned. The invoices/bills were already printed proforma and one can purchase any items or goods from M/s. Bharti Water Pvt. Ltd. then they used to raise the bill about the CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 40 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 41 ::
amount and specifications of the goods sold by them on the printed proforma through computer. He did not obtained any record regarding how much bill book had been used by M/s. Bharti Water Pvt. Ltd. during the period 2007-2008. It is wrong to suggest that the invoice Ex.PW1/DA is a genuine document or that he has not conducted the investigation on this aspect. Thereafter, the prosecution evidence was closed. STATEMENTS OF ACCUSED U/S 313 CR.P.C
20. Statements of all the three accused persons were recorded u/s 313 Cr.P.C wherein the accused B.C.Patel and Ravinder Singh have stated that they have been falsely implicated in this case. The work has been executed by the contractor as per work order and they have properly and correctly test check the work done by the contractor and found as per the terms of the work order. The Johnson pipe has been inserted in the present bore-well and same was also test checked by Executive Engineer and same is also reflected in the measurement book. The certificate are given by the Executive Engineer in this regard. The report of Dr. D.V.Reddy CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 41 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 42 ::
are manipulated and he has not used proper method to conduct the inspection of borewell. The CD prepared by Dr. D.V.Reddy are manipulated. He has done his work with sincerity and honesty. Even today the bore-well is still functioning.
21. A-3 Salim Khan has also stated that he has been falsely implicated in this case. The work had been executed by him as per work order in the presence of the Executive Engineer (PW5), who was his Engineer In-charge. PW5 had properly and correctly test check the work done by him and found as per the terms of the work order. The Johnson pipe has been inserted in the present bore-well and same was also test checked by AE, JE and Executive Engineer and local MLA. The certificate are given by the Executive Engineer in this regard. The report of Dr. D.V.Reddy is manipulated and he had not used proper method to conduct the inspection of bore-well. The CD prepared by Dr. D.V.Reddy are manipulated. He has done his work with sincerity and honestly. Even today the bore-well is still functioning.
CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 42 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 43 ::
22. All the three accused persons have not opted to lead the defence evidence. Therefore, the case was fixed for final arguments.
SUBMISSIONS
23. I have heard final arguments from Ld. Counsels for the accused persons as well as Ld. Sr.PP for CBI. During the course of arguments, Sh. S.C.Sharma, Ld.Sr.PP for the CBI has argued that the prosecution has successfully proved its case against all the three accused persons beyond reasonable doubts. It has been submitted that the contract is admitted and it is not in dispute. The measurement book is admitted which was prepared by JE and AE. Ld. Sr.PP has drawn the attention of the court on contract agreement no.08/2007-2008, Ex.PW5/E and submitted that 160 meter deep re-boring of tube-well was to be done by M/s Kadri Tubewell Construction Pvt.Ltd. He has drawn the attention on Ex.PW5/DB (D-2, page 15) and stated that Johnson make pipe was to be inserted but the contractor has not used the same and instead used the pipe of other make but charged for Johnson make pipe, which as per report of CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 43 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 44 ::
Dr.D.V.Reddy has not been used in the bore-well in question. He has drawn the attention on the report Ex.PW4/B submitted by Dr.D.V.Reddy who carried out the inspection and stated that as per report total depth was found to be 116.5 meter. He has also submitted that as per report of expert, no blank/slotted pipe was observed in the bore-well which clearly indicate that all the accused persons have hand in gloves with each other to cause wrongful loss to DJB and wrongful gain to themselves. Ld. Sr.PP for CBI has drawn the attention of the court on the testimony of each witness, documents exhibited by them during the course of their statements recorded in the court and submitted that the prosecution has proved its case. So, the accused persons may kindly be convicted.
24. Per contra, Sh. R.C.Tiwari, Ld. Counsel for A-3 Salim Khan has argued that the contract was signed by Executive Engineer and therefore A-3 is responsible and answerable to Executive Engineer only. It is submitted that the work in the present case was carried out by A-3 in the year 2007 and the inspection was carried out on 12.09.2012 i.e. CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 44 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 45 ::
after about five years and even till today, the bore-well is giving out clean water. It is argued that DJB watch for six months and release their security only after this period and in the present case the security has already been released and received by A-3 which show that the work was done to the satisfaction of DJB. Ld. Counsel has further submitted that the contractor, A-3 has used Johnson pipe after purchase from Bharti Waters. The bill was verified by the accounts section from the vendor as to whether the material was purchased or not and then only the payment was released to A-3 which clearly indicate that the Johnson pipe was purchased and used at the site. Ld. Counsel has drawn the attention on the testimony of PW5 and stated that this witness has clearly stated that he had seen 45 meters Johnson pipe at the site and therefore it is clear that the said pipe was used in the bore-well. It has been further submitted that the CBI has not conducted any investigation regarding forgery of bill. It is submitted that Ex.PW1/DA is the photocopy only and as per law and terms of the agreement there should have been original bill & original purchase voucher and payment was made after verification of CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 45 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 46 ::
original bill. It is further submitted that the report of Dr.D.V.Reddy has no value in the eyes of law as there are many mistakes in the report. It has argued by the Ld. Counsel that when there was moss formation in the pipe, it was not possible to identify the make of the pipe. Ld. Counsel has further submitted that DJB used to deduct 10% from the payment for security as during the period of six months, if there is any problem in the bore-well, the contractor has to repair it and after six months there is no responsibility of the contractor.
25. Sh. Sudarshan Rajan Advocate and Sh. Mohd. Quamar Ahmad Advocate, on behalf of A-1 B.C.Patel and A-2 Ravinder Singh have argued that the measurement book is important in the present case. It is submitted that the measurement book clearly show that Johnson pipe was used and this fact has also been corroborated by Executive Engineer, PW5 as he has stated that he had seen Johnson pipe at the site.
26. As far as forged bill is concerned, Ld. Counsel submitted that original bill has never been produced by CBI. He CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 46 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 47 ::
has drawn the attention on the statement of PW2 wherein he has stated that original bill is must for payment and that PW8 has stated that A-3 has submitted original bill in this present case. But CBI has not filed the original bill on record for the reason best know to it. Ld. Counsel has further argued that the original bill should have been filed by the buyer A-3 Saleem but in this case bill was produced by seller, so, it is not understood as to how this bill came in his possession and why this bill was produced by Seller, PW3. He has nowhere stated that he signed two bills. Further, PW3 has failed to disclosed as to who all were authorized by him during the year 2007-2008 to sign the bills and that no such person has been examined by CBI. It is further submitted that as per rule, the payment used to be released to contractor only after verification of genuineness of the bill by the department and in the present case, the contractor had already received the payment and hence there is no question of fake/forged bill. Even otherwise, CBI has failed to examine the accounts officer who would have been the best person to state that he verified the bill and then only, the payment was released. Ld. Counsel has argued that in order to save tax, the CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 47 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 48 ::
owner/dealer of companies used to keep two bill books and that is what had happened in the present case. Further, the head of the project i.e. Executive Engineer is not before this court.
27. It has further been submitted that no person from the office of Sub-Divisional Engineer (W/S & Sanitation), Sub- Division No.1 GWI, Sonepat has been produced or examined by CBI in this present case upon whom, as per PW5, the bill in question was raised.
28. Ld. Counsel has drawn the attention on contract and submitted that they should have used 50 meters or even 55 meters pipe but A-1 and A-2 managed with 45 meters only and charged accordingly which show that there is no conspiracy. Had there been any conspiracy, the bill should also have been raised for 50/55 meter pipe.
29. Ld. Counsel has drawn the attention on the testimony of PW4 Dr.D.V.Reddy and stated that he has stated that there was deposit and moss formation in the pipe. It CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 48 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 49 ::
submitted that with the passage of time deposit will come in the pipe and it will not be possible to identify the make of the pipe. It has been submitted that Johnson pipe is used where water is found as it is more durable pipe. It is not the case of the CBI that the pipe was taken out from the bore-well. It has been submitted that PW4 Dr.D.V.Reddy has never stated during inspection proceedings that Johnson pipe has not been used in the bore-well.
30. It is further submitted that proper method to examine the pipe has not been used by PW4 in this present case.
31. Ld. Counsel has further contended that the CD produced by CBI in this present case is inadmissible in evidence as Dr.D.V.Reddy has failed to give any certificate as per section 65B of Evidence Act. They have relied upon a Judgment titled Ankur Chawla Vs. CBI in this respect. It is submitted that recording was done on palmtop and thereafter transferred to laptop and then CD was prepared. It is submitted that PW4 has CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 49 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 50 ::
not supplied a sealed CD to CBI and therefore, there are chances for editing the same.
32. Ld. Counsel has further drawn the attention of the court on Sanction order. It is submitted that name of accused B.C.Patel is not mentioned in FIR. Therefore, the sanctioning authority has not applied his mind while according sanction in this present case. Ld. Counsel has also drawn the attention on the testimony of PW7 Vijay Kumar, Chief Executive Officer, DJB in this respect and submitted that Pw7 has stated that he is not aware whether any department enquiry has been initiated against A-1 B.C.Patel and A-2 Ravinder Singh.
33. It has been submitted that the CBI has not produced any witness who would have deposed about different between Johnson Pipe and other pipes. No one has been examined from Johnson company in this respect.
34. It has been stated that the accused persons may kindly be acquitted as the prosecution has failed to prove its CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 50 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 51 ::
case beyond reasonable doubt.
35. In rebuttal, Sh.S.C.Sharma, Ld.Sr.PP for CBI has argued regarding law of gravity and submitted that if anti- force is applied in a hole then its depth will increase but not decrease. He has argued regarding sec.65B and relied upon case law Anvar P.V Vs. P.K.Basheer & ors. wherein it has been stated that the situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CD used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Sec.65B of the Evidence CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 51 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 52 ::
Act are not satisfied'. Ld. Sr.PP has submitted that the situation in the present case is different and he has drawn the attention of the court on the statement of PW5 Dr. D.V.Reddy who has stated that the video recording of the scanning was carried out by him on palm top and the same was then transferred onto a CD. It is submitted by the Ld.Sr.PP for CBI that since the CD of recording was made simultaneously, there is no need for certificate u/s 65-B of Evidence Act in this case. It is submitted that design and formation of pipe will not change even after long period. Ld. Sr.PP has also taken the court through manual of CPWD, Regular Establishment and Office Procedure wherein the duties of Jr.Engineer, Assistant Engineer and Executive Engineer and submitted that EE is responsible for maintenance of works accounts and implementation of the terms of contract entered into with various parties and he is normally the DDO. He is responsible for 10% check only. It has been argued that therefore, EE has not been made an accused in this case. Ld. Sr.PP for the CBI has further argued that A-3 Salim Khan had taken payment from the department on forged bill of M/s Bharti Waters Pvt.Ltd. He has drawn the attention of the court on the CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 52 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 53 ::
statement of PW3 Kamal Kumar Agarwal and stated that when the bill in question was issued to EE, Sonepat then how the said material was sold to M/s Kadri Tube-wells.
36. I have considered the submissions advanced by the Ld. Sr.PP for CBI and Ld. Counsels for the accused persons and also considered the relevant provisions of law in the light of the precedents relied upon by Ld.Defence Counsels to substantiate their contentions.
CONCLUSION CHARGE FOR CONSPIRACY
37. In the present case in hand, accused persons have been charged u/s 120B r/w sec.420, 471 r/w sec. 468 & 477-A IPC and Sec. 13(2) r/w sec.13(1)(d) PC Act. It has been argued by Ld. Sr.PP for CBI that the accused persons were working in conspiracy to each other. The offence of conspiracy has been defined u/s 120A IPC which reads as under:-
120A- Definition of Criminal Conspiracy -When two or more persons agree to do, or cause to be done-
i). an illegal act, or CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 53 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 54 ::
ii).an act which is not illegal by illegal means, such as agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof'.
38. It is also well settled that criminal conspiracy is often hatched in secrecy and for proving the offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence. However, it cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent evidence. Where the prosecution case rests merely on circumstantial evidence, the facts established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. However, on the basis of evidence led by prosecution, if two views are possible, one pointing to the guilt of the accused and other to his innocence, the one in favour of the accused CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 54 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 55 ::
must be accepted. In this regard, reference can be made to Saju vs. State of Kerala, (2001) 1 SCC 378, Sherimon vs. State of Kerala, (2011)10 SCC 768, P.K. Narayanan vs. State of Kerala, (1995) 1 SCC 142, State of M.P. vs. Sheetla Sahai, 2009 Cr. LJ 4436, Shivaji Saheb Rao Bobde vs. State of Maharashtra, AIR 1973 SC 2622, Harendra Narain Singh vs. State of Bihar, AIR 1991 SC 1842, Baboo Ram, vs. State, 1996 Cri LJ 483 and N.Rajendra Prasad Bhat vs. State, 1996 Cri LJ 258.
39. The essence of conspiracy is unlawful combination and the complicity of the accused has to be decided after considering all the circumstances proved, before, during and after occurrence. Agreement between the conspirators may also be proved by necessary implication. It is not necessary that each member of a conspiracy must know all the details of the conspiracy. Facts established should be consistent only with the hypothesis of guilt of the accused. It does not mean that each and every hypothesis suggested by accused must be excluded by proved facts. In this regard reference can be made CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 55 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 56 ::
to Chaman Lal vs. State of Punjab, AIR 2009 SC 2972, R.K. Dalmia vs. The Delhi Administration, AIR 1962 SC 1821, Muriappan vs. State of Tamil Nadu, AIR 2010 SC 3718 and Firozuddin Basheeruddin vs. State of Kerala, (2001) 7 SCC 596.
40. The mere perusal of the provision would make it clear that there has to be some meeting of the minds amongst the accused persons to hold them liable for the act of conspiracy. The word "Conspirator" has been derived from the word "co-respirator", which means that if two persons are so close to each other that they are respiring together, this would mean conspiracy. There has to be some meeting of minds amongst the accused persons. It is correct that in all the cases of conspiracy there might not be direct evidence, since most of the time the conspiracies are hatched in secrecy and darkness but at the same time, the accused persons cannot be held liable for conspiracy merely at the asking of the prosecution. There has to be some concrete material fact available on the record. The preposition of criminal jurisprudence are very well CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 56 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 57 ::
settled. The accused cannot be convicted unless the prosecution has proved its case beyond reasonable doubt. The mere whims and fancies of the accused cannot displace the otherwise credible story of the prosecution. The doubts raised by the accused has to be reasonable doubts. If the doubts are not reasonable, then the same cannot be given any credence. Therefore, the question would be that in the present case whether there is any fact which could prove the conspiracy amongst the accused persons.
41. Ld.Sr.PP for CBI has contended that both the accused A-1 and A-2 have acted in conspiracy with A-2 Salim Khan and made wrong entries in measurement book and produced forged bill. This contention of Ld. Sr.PP for CBI is not acceptable. In the present case, the contract has been signed between A-3 Salim Khan and Executive Engineer for the purpose of installation of bore well. A-1 and A-2 have no role in the same. It is admitted fact that entries in measurement book was made by A-1 and A-2. But it is also admitted fact that these entries were available for check by Executive Engineer. It is CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 57 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 58 ::
submitted that Executive Engineer was responsible for 10% check only. I am not satisfied with this procedure of DJB. This is not a proper procedure. Executive Engineer is the senior most person who awarded the contract. He should have checked the work to his satisfaction. In my opinion, DJB has devised the method of checking percentage just to save the senior officers. Since the entries were available for check by the Executive Engineer, he should have checked the same according to the work done. As far as forged bill is concerned, it is admitted fact that the bill was submitted to the DJB and after due verification by the accounts section, it was passed for payment. A-1 and A-2 have no role in making the payment.
42. In the present case, I find that there is no evidence even worth of name to connect the accused persons with each other. The evidence which has been produced by the prosecution is of such a week nature that it does not have any common thread to connect with each other. I am, therefore of the view that the prosecution has failed to bring any evidence on record with regard to conspiracy hatched by the accused CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 58 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 59 ::
persons.
USE OF JOHNSON PIPE
43. The main gist of the argument of Ld. Sr.PP for CBI is that the contractor was supposed to use Johnson make pipe in the tube well but the contractor has used some other pipe and submitted forged bill for purchase of Johnson pipe. He heavily relied upon the report of Dr. D.V.Reddy, Scientist, National Geo- Physical Research Institute.
44. The prosecution has examined PW4 Dr. D.V.Reddy, Scientist, National Geophysical Research Institute in this respect. They have also examined PW3 Kamal Kumar Aggarwal from where the said pipe is alleged to have been purchased by A-2 Salim Khan. PW4 Dr.D.V.Reddy has stated that on 12.09.2012, he inserted the bore hole camera into the well and scanned the total available length. The report in this respect is Ex.PW4/B. I have perused the said report. It has been observed in the said report that the bore well scanned using the camera indicates present depth as 116.5 m. Up to 53.5m 200 mm diameter blank pipe is used. At 53.5 m well diameter is reduced CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 59 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 60 ::
to 150 mm. From 53.5 m to 69 m 150 mm blank pipe, 69 m to 75 m MS slotted pipe and below for some length blank casing pipe is used. As water table is at 78.5 m depth, till that depth pipe details are very clear. In between 78.5 and 105 m water is highly turbid and pipe details are not clear. Water is again clear after 105 m and no pipe blank/slotted is observed. The report given by PW4 Dr. D.V.reddy indicate that the water was highly turbid in between 78.5 m and 105 m. It is, therefore clear that the make of pipe could not be established from 78.5 m to 105 m i.e. total 26.5m. Reverting back to the cross examination of PW4 he has stated that they have geophysical method to identify the metals buried in the ground. In this case they have not used geophysical method. They did not use the other method also to find out the buried metal pipe in the bore-well.
In the present case, the buried metal pipe was inspected by PW4. But he has not used the geophysical method to establish the make of the pipe. PW4 has failed to show and explain any reason as to why he has not used the proper method for checking the buried metal pipe in this case. CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 60 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 61 ::
45. PW4 has further stated in cross examination that he has not given any certificate that his camera was in order at that time volunteered they used the same for taking pictures at that time. There was no voice recording system available in his camera. He has further stated that he could not explain when he was putting his camera inside the bore-well in the open area to anyone that there was a Johnson pipe buried inside. The above answer of PW4 goes in favour of accused as from the above, it can be inferred that there was Johnson pipe buried inside but PW4 could not explain in open to anyone at the time of putting his camera inside.
46. PW4 has further stated that he did not supply any sealed CD of his report to CBI. He prepared the CD in question on his own and not in the presence of anyone. The case in hand depends on video footage contained in CD Ex.PW4/A in question. During trial, the CD in question was played at the time of recording of evidence. I have watched the video footage. The video footage shows that a person while lowering the graduated cable can be heard declaring the various levels CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 61 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 62 ::
of depths reached, striking of water level, noticing of stones and obstacles. During watching of said video footage, I have not heard any person uttering as to what kind of casing or pipes have been used and upto what particular level. There is also no mention as to where no casing can be seen. It is pertinent to mention that Dr.D.V.Reddy could see the images on the palmtop while this video footage was being prepared. Except the level reached by Dr. D.V.Reddy (PW4), nothing else has been uttered by him. It is not understandable as to why Dr. D.V.Reddy, who was called all the way from Hyderabad for this specific purpose to find out the make of pipe, did not utter a word about non existence of Johnson pipe in the bore-well.
47. PW4 has stated that video recording of the scanning carried out by him on palm top. The same was then transferred onto a CD. As per PW4, the recording of the bore-
well camera was transferred to a palmtop which PW4 was carrying at the site and the data in the palmtop was then transferred to a PC from which the CD seems to have been prepared. Neither the bore-well camera, palmtop as well as the CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 62 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 63 ::
PC on which the data was transferred were seized nor ever produced in the court. The Preparation of CD therefore, seems to be a secondary evidence. Further, PW4 has clearly stated in cross examination that he did not supply any sealed CD of his report to CBI. Thus, the possibility of the CD in question produced in the court, having being tampered with cannot be ruled out.
48. The video footage in the CD is in MP4 format. This fact has been admitted by PW4 Dr. D.V.Reddy. PW4 has also specifically stated that MP4 format may be edited. The prosecution has failed to send the CD in question to CFSL for examination along with the simple camera and palmtop to establish the genuineness of the CD and to rule out possibility of tampering.
49. The Video footage contained in CD Ex.PW4/A is covered under Electronic Evidence under I.T. Act, 2000 and Indian Evidence Act. Sec. 45A and Sec. 65B of the Indian Evidence Act are reproduced hereinunder:
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Section 45A Indian Evidence Act:
'Opinion of Examiner of Electronic Evidence- When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in Sec.79A of the Information Technology Act, 2000 (21 of 2000) is relevant fact. Explanation- for the purpose of this section, an Examiner of Electronic Evidence shall be an expert. Section 65B Indian Evidence Act:
Admissibility of electronic record-
(1)Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in .........
(3) Where over any period .......
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things that is to say-
a. identifying the electronic record containing the statement and describing the manner in which it was produced; b. giving such particulars of any device involved in the production of the electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
c. dealing with any of the matters to which the condition CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 64 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 65 ::
mentioned in sub-section (3) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purpose of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
50. As per the provision of Sec.65B(4) of Indian Evidence Act, a person tendering electronic evidence is required to give a certificate containing certain facts. In the present case there is no such certificate on record.
51. Ld.Sr.PP for CBI has contended that no such certificate is required in this case as PW4 Dr. D.V.Reddy has mentioned in his report that scanning was simultaneously recorded and stored in an outside device. I am not in the agreement with this contention of the Ld. Sr.PP. In Ankur Chawla Vs. CBI, MANU/DE/2923/2014, Hon'ble High Court has made reference to a three Judge Bench decision of Hon'ble Apex Court in Anvar P.V. Vs. P.K.Basheer & Ors.
MANU/SC/0834/2014 wherein it was observed that 'It is further clarified that the person need only to state in the CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 65 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 66 ::
certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer, printout etc. In the above noted case, the date of certificate was not disclosed and hence it was not relied upon. But in the present case, the CBI has failed to place on record any certificate from Dr. D.V. Reddy(PW4). The CD was handed over to IO in unsealed condition. It was not sent to CFSL to rule out editing or tampering or interpolation. The camera, the palm top, the lap top from which the CD has been has not been produced in the court. Nothing has been brought on record to prove as to who had the lawful control over the computer from which the CD had been prepared. In view of the above, the CD Ex.PW4/A could not be proved by the CBI as per law and therefore, it cannot be relied upon.
52. Ld. Counsel for the accused persons have contended that the make of the pipe could not be established by the prosecution. On the other hand, Ld. Sr.PP for CBI has again relied upon the statement of PW4 Dr.D.V.Reddy and stated that PW4 has clearly stated that Johnson pipe was not CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 66 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 67 ::
used in the bore-well. Reverting back to the cross examination of PW4 Dr.D.V.Reddy, he has stated that if the ground water is dirty, the visibility of camera used to be low. He denied the suggestion that in the present case there was Johnson pipe used in the bore-well and hence it is giving out the pure ground water and not dirty water. The CD was played on laptop in the court and after seeing it, he has further stated that it is correct that from 01 meter to 78.5 meters, there is rust and heavy corrosion. It is correct that from 78.5 meters to 105 meters, there was turbid water. He denied the suggestion that after 105 meters, upto where the camera had gone inside the bore-
well, there was highly turbid water. He admitted that the bore- well was installed in the year 2007. The inspection was done in the year 2012. He admitted that during the period of five year, inside the pipes of bore-well, the make and type of the pipe in the bore-well could not be found from the camera used by him. He did not do any chemical test just to find out the pipe, whether it was after 105 meters. He did not use the electromagnetic system just to find out the pipe after 105 meters.
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53. The prosecution was to prove as to whether Johnson pipe was used in the bore-well or not. In the present case, PW4 Dr.D.V.Reddy has clearly stated in his report that from 78.5 meters to 105 meters, there was turbid water. He also admitted that from 1 meter to 78.5 meters there was rust and heavy corrosion. The visibility of camera is stated to be low in dirty water. The bore-well was inspected after about five years and PW4 has admitted that during such period the pipes of bore-well would have rust and moss formation. When there was rust and heavy corrosion in the pipe and water was turbid upto 105 meters, it is emphatically clear that the make of the pipe could not have been ascertained by PW4 Dr.D.V.Reddy.
PW4 has also not performed chemical test to find out the make of the pipe. He has also not used the electro-magnetic system just to find out the pipe after 105 meters.
54. PW2 Shiv Kumar Bhardwaj, Superintending Engineer has stated in cross examination that depending upon the quality of water, the deposit may come in the pipe with the CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 68 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 69 ::
passage of time and if the deposits are there, make of the pipe may not be visible. He has further stated that there is no method to his knowledge to find out the nature of the pipe used in the bore-well after five years. Pw5 Radhey Shyam has admitted that he had signed the quantity which was brought at the site. He test checked 45 meters Johnson pipe. Pw5 is the Executive Engineer who is alleged to have 10% responsibility. However, in this case, as per IO, he test checked 50%. He has clearly stated that 45 meters Johnson pipe was brought at the site. He also admitted that the work of tube-well was carried out by A-3 Salim Khan, as per work order, but the same was not handed over to him. Even as per admission of PW5, the work was carried out as per work order and he has also seen 45 meter Johnson pipe at the site. There is also no evidence on record that the Johnson pipe seen at the site by PW5 was ever taken back from the site. So, there is no question of deviation from the terms of contract. Further, PW5 has test checked 50% in this case. But he has not been made an accused in this case for the reasons best know to CBI. In case Soma Chakravarty Vs. State (Through CBI), AIR 2007 SC 2149, certain CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 69 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 70 ::
officials were not put on trial as they were exonerated in the departmental proceedings. The Hon'ble Apex Court observed that 'in a case of this nature, the special judge also should have considered the question having regard to the 'doctrine of parity', in mind. An accused similarly situated has not be proceeded against only because the departmental proceedings ended in his favour. Whether an accused before him although stands on a similar footing despite he having not been departmentally proceeded against or had not been completely exonerated also required to be considered'. Similarly in the case in hand, CBI chose not to proceed against the Executive Engineer though he was equally responsible for the lapse if any, and more particularly the Executive Engineer. The CBI seems to have adopted pick and choose theory in this respect.
55. PW9 Insp. Manish Kumar Upadhyay, in cross examination has stated that Mr. Reddy did not disclose to him that there was no pipe of Johnson make in the bore-well. He admitted that the bore-well is still working. It is correct that Executive Engineer has already disclosed to him at the spot CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 70 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 71 ::
that Johnson make pipe was brought at the spot. But there is no evidence brought on record by the CBI that the said Johnson pipe was not inserted in the bore-well.
56. During the process of watching CD, I could not see the joints of pipes or the place from where make of the pipe could be established. From the evidence on record, it can be inferred that pipes were inserted in the bore-well but the make of the pipe could not be established due to turbid water, rust and moss formation. In my view the CBI was at liberty to take out the entire pipe from the bore-well and then it would have been clear as to which make of pipe was used in the bore-well. But CBI has failed to do so.
57. As per statement of PW4 Dr.D.V.Reddy after 105 meters, water was clear and no pipe was seen. PW1 Vikas Rathi, JE, in cross examination has stated that it is correct that bore-well cannot function without pipe. As per report furnished by Dr. D.V.Reddy Ex.PW4/B, the depth of bore-well is mentioned as 251 meters though as per statement before the court, he CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 71 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 72 ::
himself has admitted it as 261.47 meters. So, as per report there was no pipe from 105 meters to 261.47 meters while as per statement of PW1 Vikas Rathi, JE, the bore-well cannot function without pipe. But as per the report of Dr. D.V.Reddy, the bore-well was giving clear water even on the day of inspection. Therefore, it cannot be said that there was no pipe in the bore-well after 105 meters.
58. The bore-well, in this case was installed in the year 2007 and inspection had taken place in the year 2012 i.e. after about five years, the bore-well was still giving out water and during the said period formation of moss and impurities cannot be ruled out. Admittedly, the only difference between the MS Slotted pipes and Johnson Slotted pipes is of the mesh. The mesh of the Johnson pipes is very thin and fine and in case of Moss formation or corrosion, it would not be possible for camera to find out the nature of pipe or even the fact whether there is any pipe or not. The movements of the camera was fast and jerky. In my opinion, if the difference between the MS Slotted Pipes, blank pipes and Johnson slotted pipes was to be CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 72 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 73 ::
found out, the inspection should have been carried out with that specific purpose in mind. It was the duty of the Investigating Officer to have ensure that the expert should have focused the camera at important places, such as joints etc. to find out the exact nature of the pipes used.
59. In consideration of the above evidence, I am of the view that CBI has failed to prove on record that Johnson pipe was not used in the bore-well.
PREPARATION OF FALSE/FORGED BILL
60. Another aspect of the case is that A-3 Salim Khan had not installed Johnson pipe at all and in order to stake its claim regarding installation of Johnson Screen, it fabricated and forged one bill no.BW/91/2007-2008 dated 21.05.2007 Ex.PW1/DA.
61. The Statement of PW3 Kamal Kumar Aggarwal is significant in this respect. He is the Director of M/s Bharti Waters Pvt.Ltd. He has stated that he had supplied original CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 73 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 74 ::
retail invoice no. BW/91/2007-08 dated 29.06.2007 to IO of this case. He sold Johnson pipe to Sub Divisional Engineer (W/S & Sanitation), Sub-Division NO.1, GWI, Sonepat. He has further stated that M/s Bharti Waters Pvt.Ltd. had not sold Johnson make screen pipe to M/s Kadri Tubewells Pvt.Ltd. through this invoice and it is a fake invoice. From cross examination of this witness, it has come out that the income tax return and sales tax return for the year 2007-2008 have not been filed on record.
62. PW3 has alleged to have issued the alleged bill to Sub -Divisional Engineer (W/S & Sanitation), Sub Division no.1, GWI,Sonepat. However, CBI has failed to conduct any investigation in this respect. No person/officer from the Sub Divisional Engineer Office, Sonepat has been called and examined in this case to specifically establish that the bill in question was issued to them. Further, PW3 who is the owner of the company M/s Bharti Waters Pvt. Ltd has failed to place on record any return of income tax/sales tax or any ledger book to show that the said bill was issued to Sub-Divisional Engineer. CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 74 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 75 ::
However, it has come in the cross examination of PW5 Radhey Shyam, EE that 45 meter Johnson pipe had been brought at the site and he test checked it. It is not understandable as to how the said pipe was brought at the site when as per statement of PW3, it was not purchased from him while PW3 is stated to be sole distributor of Johnson pipe in Delhi.
63. As per statement of PW3 Kamal Kumar Agarwal, he supplied original invoice no.BW/91/2007-08 to CBI. However, in the present case the CBI has failed to produce the original invoice on record. Only a photocopy of the same has been placed on record. Further, it is not understandable as to how the original invoice came in possession of PW3 for supply to CBI as original is always given to the client/customer.
64. PW3 Kamal Kumar Agarwal has denied the suggestion that they are maintaining two bill books i.e. one in which they deal with cash transaction and the other in which the cheque/bank routed transactions are entered. He has further stated that he does not remember as to the nature of CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 75 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 76 ::
dealings (that is, in cash or in cheque etc), they had with Kadri Tubewells. He cannot admit or deny that Kadri Tube-well had only cash dealings with them as he does not remember. PW3 is the Director of M/s Bharti Waters Pvt.Ltd. He was produced in the court to stated about bill issued to M/s Kadri Tubewells. But considering his above version, it seems that he does not know about the dealings between Bharti Water and Kadri Tubewells.
65. PW3 has further stated that initially, their company was a partnership by the name Bharti Waters and subsequently it was changed to Pvt.Ltd. Company. In the year 2007-08 only M/s Bharti Waters Pvt.Ltd. was in existence and there was no question of existence of any different format used for Bharti Waters. He denied that in order to evade tax they used the bills of Bharti Waters and only for the sales on which the tax was paid, the bill format of M/s Bharti Waters Pvt.Ltd was used. He cannot tell who were the persons, who were signing the bills in the year 2007-08. He admitted that their staff used to issue the bills on their directions and used to sign the same. He cannot identify the signatures on Ex.PW3/B because the staff used to CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 76 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 77 ::
change from time to time. It is correct that date of order on Ex.PW3/B is 21.05.2007 and date of invoice is 29.06.2007. He cannot identify the signatures at point C on Ex.Pw1/DA. He admitted bills Ex.PW3/DA (Colly.) to have been issued by their company. I have perused the bills Ex.PW3/DA (Colly.). The same are admitted by Pw3 to have been issued by his company. Some of the bills are printed one in Bharti Waters name but the time of preparing of bill word "Pvt.Ltd" has been added with computer and some bills are pre-printed bills with complete name Bharti Waters Pvt.Ltd. It is, therefore clear that the company of PW3 was using different kinds of bills. PW3 also could not state as to who has signed the alleged bill in question. It was incumbent upon prosecution to produce original bill Ex.PW1/DA but CBI has failed to do so. Further, in order to prove the alleged bill to be forged one, it was also incumbent upon CBI to take the handwriting of accused A-3 Salim Khan and send it with bill in question to CFSL in order to establish as to who has signed the said bill. But this circumstances also remained unproved.
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66. PW3 has further stated that he does not know whether DJB verifies with the vendor about the bill before release of payment. He does not know whether DJB had called up in their office in the year 2007 to confirm the bill. As far as making of payment of alleged bill is concerned, it has been stated by PW1 that for release of payment, original bill and strata chart is must. He admitted that accounts section release payment to the contractor only after satisfying itself about the genuineness of the bill. PW5 Radhey Shyam who is Executive Engineer has also stated in cross examination that accounts verify the purchase voucher before releasing the payment. He admitted that payment by the accounts section is prepared only after they are satisfied about the genuineness of purchase voucher. He also admitted that if accounts section has any doubt about the purchase voucher, they would not release the payment to the contractor and would rather, put up the file with objection. He does not remember whether the file was put up to him with any objection, prior to release of payment to the contractor. He has stated that no such objection was put up before him. He has further stated that the verification is made CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 78 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 79 ::
by calling up on the phone numbers mentioned on purchase voucher. PW6 Arun Gupta, Executive Engineer, has forwarded certified copy of Electronic Fund Transfer in respect M/s Kadri. In cross examination he has stated that accounts officer can phone the agency regarding bill. He has further stated that as the AAO puts his signature on the pay order, signature by AAO shows that he has verified the bill.
67. The statement of above PWS, i.e. PW1 Vikas Rathi, JE, PW5 Radhey Shyam who is Executive Engineer clearly demonstrate that before release of payment to the contractor, accounts used to check the genuineness of the bill and if there is any doubt, the account can raise objection and return the file. But in the present case, CBI has failed to bring on record that any such objection has ever been raised by the accounts section before release of payment. Instead the payment was released. The security deposit of A-3 was also released to him after expiry of six months period which indicate that DJB was satisfied with the work of A-3.
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68. It has come in the statement of PW9 Insp.Manish Kumar Upadhyay that contract was signed by Executive Engineer and Mohsin s/o A-3 Salim Khan. Mohsin has been made prosecution witness in this case and examined by CBI as PW8. When Mohsin had signed the contract on behalf of M/s Kadri Tubewells with Executive Engineer, it is clear that Mohsin was the main person of M/s Kadri Tubewells and he should have been impleaded as accused in this case. But CBI has adopted pick and choose theory. There is no explanation as to why A-2 Salim Khan has been impleaded as accused and why Mohsin has not been made an accused in this present case.
69. The prosecution was to prove that the alleged bill was forged one and it has to be proved as per law. Perusal of bills Ex.PW3/DA (Colly.), admitted by PW3 Kamal Agarwal indicate that the partnership firm was functioning under the name and style of Bharti Waters which later on started functioning as Bharti Waters Pvt.Ltd. The bills of Bharti Waters has admitted been used for Bharti Waters Pvt.Ltd by putting words "Pvt.Ltd" with computer typing on the bills. Therefore, CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 80 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 81 ::
the possibility of the bill being issued from the old stock of printed bills cannot be ruled out, more so, since the ledger of accounts and the bills produced before the Court were not verified by the CBI. CBI has also failed to verify the fact about running of partnership firm and Pvt. Ltd. Company. It was incumbent upon CBI to verify the signatures on the alleged forged bill with the signatures of accused A-3 but it has also not been done. No specimen signatures of any of the accused were taken at any point of time and sent to CFSL for matching with the signatures available on bill. The stock position as on the date of issuance of bill has not been taken, produced and verified. The accounts books have not been seized and produced in the court. No statement of any of the employee of M/s Bharti Waters Pvt.Ltd has been recorded to ascertain as to who had signed the alleged genuine bills and as to whether the alleged forged bill had been issued from the old stock of printed bill or not. The bill in question cannot be said to have been issued by non-existent company.
70. Therefore, I am of the considered opinion that the CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 81 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 82 ::
CBI has not been able to prove that alleged bill in question allegedly forged had been forged by the accused persons or that there was any conspiracy amongst the accused persons for producing a forged bill and payment being released on strength thereof.
71. For administration of Criminal Justice System, an onerous duty is cast on the Courts, to effectively tackle and control the endemic of offences, so as to prevent the society from drifting towards savage society. A balanced approach is required to be adopted by the courts giving strict interpretation to the Clauses of the Penal Provisions and simultaneously being mindful of the inviolable Constitutional Rights granted to the accused, so as to ensure fair trial.
72. Subjecting any individual to undergo "criminal trial"
is an encroachment / restriction on his fundamental right to "life and liberty". As per the constitutional mandate enshrined in Article 21 of Constitution of CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 82 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 83 ::
India, granted to each and every citizen of the country, no one can be deprived of his right to life and liberty, except by the due "process of law". Thus, if anyone accused of any offence, is to be subjected to criminal trial, then the same has to be in conformity to the procedures established by law. As whenever a particular procedure is prescribed by law, then all other procedures to do the same are proscribed.
73. Public servants in whatever capacities they are holding their offices, are supposed to give effect to the objects for which their organization is functioning, so that the benefits arising out of their actions, should benefit their country in general and their organization in particular. To achieve the object, for which the policies and plans of the organization are put in place, all the public servants are expected to discharge their functions with utmost propriety and all fairness. Experience however has revealed that many public servants, instead of using their good offices for the public good, misuse the same CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 83 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 84 ::
for their personal benefits by indulging into corrupt and improper practices.
74. Legislature in its wisdom in order to curb such corrupt and improper practices had brought "Prevention of Corruption Act, 1988" on the Statute Book for not only, punishing those who had violated the very oath of honesty and sincerity with which they had assumed their office and indulged in 'corrupt practices', but also to deter the others from treading the path of dishonesty.
75. Being aware of the fact that some of the honest public servants may be dragged into vexatious and uncalled for prosecution, the Legislature had in Section 19 of Prevention of Corruption Act, incorporated a "saviour clause" so as to protect them and to encourage them to continue with the good work. But for this clause, the government process would become 'static' as public servants would hesitate to take even the most honest, bonafide and genuine decisions fearing harassment from frivolous and uncalled for allegations. CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 84 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 85 ::
76. To balance these two conflicting interests, one of which is to give effect to the very object for which Prevention of Corruption Act was brought on the Statute Book to deal with the guilty sternly and on the other hand, to give effect to the shield provided by the Legislature to protect honest and diligent public servants from vexatious and uncalled for prosecution, the onerous duty has been placed on the Courts, which are an important cog in the wheels of Administration of Justice. The courts are obligated to strike balance between these two conflicting interests in such a manner, so that majesty of "Rule of Law" is neither undermined nor defeated.
77. It is pertinent to make mention of Section 13 (1) (d) of Prevention of Corruption Act. The same is as follows :-
Section 13: Criminal misconduct by a public servant :-
(1) A public servant is said to commit the offence of criminal misconduct, -
(a) . . .
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(b) . . .
(c) . . .
(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 positioning 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 pecuniary advantage without any public interest ; or
(e) . . .
78. The phrases namely "corrupt , illegal means"
and "by abusing his position as public servants" are different categories of corrupt practices, which are conjuncted by the words "or" and not by the conjunction "and".
This in itself indicates that these three different categories are alternate misconduct on the part of public servant and either of these three practices, if done by public servant then the same can constitute an offence under this Section.
79. The phraseology "By abusing his official position as Public Servant" covers the acts done by the public servant otherwise than by corrupt or illegal means. The gist of CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 86 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 87 ::
the offence under this clause is, that a public officer abusing his position as "public servant" obtains for himself or for other person, any valuable thing. The word "abuse" used by the Legislature means "misuse", ie. using his position for something which is not intended. That abuse of the position may be by corrupt or illegal means or otherwise than those means".
80. In view thereof, the Legislature never intended that there has to be an express evidence of illegal gratification before invocation of this section. In case, there are instances and allegations that a person has abused his position as a public servant, in order to cause advantage to anyone, that in itself is sufficient for invocation of this Section.
81. It is pertinent to refer to Sec. 3 of the Indian Evidence Act, 1872 (hereinafter called as 'IEA') which defines the term 'proved' and 'disproved' as under :-
" 'Proved'- A fact is said to be proved when, after considering the matters beforeit, the court either believes it to exist, or CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 87 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 88 ::
considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists".
" 'Disproved'- A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non- existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist."
82. It is well settled that the word 'proof' means anything which serves,either immediately or mediately to convince the mind of the truth or falsehood of a fact or proposition; and the proofs of matters of fact in general are our senses,the testimony of witnesses, documents and the like.
"Proof" does not mean proof to rigid mathematical demonstration, because that is impossible; it means such evidence as would induce a reason able man to come to the conclusion [vide Emperor vs. Shafi Ahmed, (1925) 31 Bom. LR 515]. Further, Sec. 134 of IEA stipulates that no particular number of witnesses shall in any case be required for the proof of any fact.
83. In human affairs, everything cannot be proved with mathematical certainty and the law does not require it. Legal CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 88 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 89 ::
proof is something different from moral certainty about the guilt of an accused person. Suspicion, however, great, cannot take the place of legal proof. A moral conviction, however strong or genuine, cannot amount to a legal conviction supportable in law. The well known rule of criminal justice is that "fouler the crime, higher the proof." [vide Sharad Birdhichand vs. State of Maharashtra, AIR 1984 SC 1622].
84. In criminal matters, the prosecution is required to prove its case beyond a reasonable doubt. A benefit of doubt is the condition of the mind which exists where the judges cannot say that they feel an abiding condition, a moral certainty of the truth of the charge. It must not be a mere doubt of a vacillating mind that has not the moral courage to decide upon a difficult and complicated question and therefore, takes shelter in an idle scepticism (vide 1977 CrLJ 59).
85. It is well settled that the burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 89 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 90 ::
basis of acceptable evidence. However, the rule in section 106 of the Act would apply when the facts are 'especially within the knowledge of the accused' and it would be impossible or at any rate disproportionately difficult for the prosecution to establish such facts which are 'especially within the knowledge of the accused'. The prosecution is not required to eliminate all possible defences or circumstances which may exonerate him. If certain facts are in the knowledge of the accused then he has to prove them. Of course the prosecution has to prove prima facie case in the first instance. In this regard reference can be made to Murlidhar vs. State of Rajasthan, AIR 2005 SC 2345, State of Punjab vs. Karnail Singh, (2003) 11 SCC 271, Trimukh Maroti Kirkan vs. State of Maharashtra, 2007 Cr LJ 20 (SC), Santosh Kumar Singh vs. State, (2010) 9 SCC 747 and Ram Singh vs. State, 2011 Cr LJ 618 (Raj.), AIR 1959 SC 1390, AIR 1937 Rang 83, 1968 Cri LJ 848, AIR 1967 Mys 79 and 1964 (1) Cri LJ 688.
86. In earlier paras of Judgment, I have already expressed my opinion that the CBI has failed to prove that CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 90 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 91 ::
accused persons have conspired with each other to cause wrongful loss to DJB; CBI has also not been able to prove as to whether Johnson Pipes was used in the bore-well or not.
87. In view of my above discussions, I am of the opinion that the CBI has failed to prove its case beyond reasonable doubt against against any of the accused persons u/s 120(B) r/w sec. 420, 471 r/w sec.468 & 477-A and Sec.13(2) r/w sec. 13(1)(d) PC Act.
88. I, accordingly, acquit all the three accused persons of the charges framed against them u/s 120(B) r/w sec. 420, 471 r/w sec.468 & 477-A and Sec.13(2) r/w sec.13(1)(d) PC Act.
89. The prosecution has also not been able to prove that accused A-1 Bhupesh Chandra Patel and A-2 Ravinder Singh have made false entries in the measurement book and completion report. I, accordingly acquit accused A-1 Bhupesh Chandra Patel and accused A-2 Ravinder Singh of the CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 91 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 92 ::
charges u/s 477-A IPC.
90. The prosecution has also failed to prove that accused A-1 Bhupesh Chandra Patel and A-2 Ravinder Singh have ever committed criminal misconduct by corrupt or illegal means by facilitating contractor A-3 Salim Khan in obtaining pecuniary advantage. I, accordingly acquit accused A-1 Bhupesh Chandra Patel and A-2 Ravinder Singh from the charges u/s 13(2) r/w S. 13 (1) (d) P. C. Act.
91. The prosecution has further failed to prove that A-3 Salim Khan has fraudulently and dishonestly used copy of invoice no. BW/91/2007-2008 as genuine which A-3 knew that it was forged invoice or that he cheated DJB by inducing to make payment on false and forged bill. I accordingly, acquit accused A-3 Salim Khan of the charges u/Sec. 471 r/w Sec. 468 IPC and u/s 420 IPC.
92. All the three accused persons are directed to furnish fresh bail bonds in a sum of Rs.30,000/- each CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 92 of 93 CBI Vs. Bhupesh Chandra Patel etc. :: 93 ::
with one surety in the like amount each as per the provisions contained u/s 437-A Cr.P.C.
File be consigned to record room.
Announced in the open Court on 14.05.2015.
(SURESH CHAND RAJAN) Special Judge (PC Act)/ CBI-03/ PHC/ND CC No. 06/14 : RC No. 29A/2011/DAI/ACB/ND Page No. 93 of 93 CBI Vs. Bhupesh Chandra Patel etc.