Cbi vs (1) Brij Pal Singh on 22 May, 2012

[Cites 23, Cited by 0]

Delhi District Court

Cbi vs (1) Brij Pal Singh on 22 May, 2012

    IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE & 
    ADDL. SESSIONS JUDGE, I/C (EAST) cum SPECIAL JUDGE 
             (CBI), KARKARDOOMA COURTS, DELHI.



AC No.12/2006
Unique Case ID No.02402R0579012006

FIR No.RC4(A)/05ACUVIII
U/s 120B read with 420, 420/511 IPC and 
Section 15, 13(2) r/w Sec.13(1)(d) of PC Act, 1988.

CBI                 Versus      (1)    Brij Pal Singh
                                       R/o C3/58, Yamuna Vihar, Delhi31.

                               (2)     Anil Kumar
                                       R/o H. No.2645, Gali No7, Bihari
                                       Colony, Shahdara, Delhi32.

                               (3)     P.K.Sharma
                                       R/o 8/184, Sector 3, Rajender Nagar,
                                       Sahibabad, Ghaziabad, UP.

                               (4)     S.S.Arya
                                       R/o H.No. 9/303, Rajender Nagar,U.P.

                               (5)     G.P.Sharma 
                                       R/o 422, Ashirwad Apartments, 
                                       Patparganj, Delhi110092.


AC No.12/2006                    CBI Vs. Brij Pal Singh etc.      Page 1 of 63 
                       (6)    Ramkesh Meena
                             R/o C41, Panchsheel Vihar, Khirki
                             Extension, Delhi110017.

                      (7)    Arun Kumar Sharma
                             R/o D304, Gali No.7, Bhajan Pura, 
                             Delhi110053.

                      (8)    A.K.Jain
                             R/o C2/277, Yamuna Vihar, 
                             Delhi110053.

                      (9)    Deepak Goel
                             R/o 27/109, Gali No.7,Vishwas Nagar
                             Delhi110032.

                      (10)  Subhash Chand, 
                            R/o C50/1, West Jyoti Nagar, 
                            Shahdara, Delhi110092.

                      (11)  Ajay Verma 
                            R/o 1/1984, Ram Nagar, Modern
                            Shahdara, Delhi110032.



Date of Institution          : 06.01.2006
Date of judgment reserved    : 05.05.2012
Date of judgment             : 17.05.2012



AC No.12/2006          CBI Vs. Brij Pal Singh etc.     Page 2 of 63 
 JUDGMENT

Aforementioned 11 accused persons have been sent to face trial by the Anti Corruption Branch of the CBI, for the offences punishable under Sections 120B read with 420, 420/511 IPC and 15, 13(2) r/w Sec.13(1)(d) of PC Act, 1988.

2 At the time of commission of the offence, accused Brij Pal Singh was posted as Executive Engineer, accused Anil Kumar, P.K. Sharma and S.S. Arya were posted as Assistant Engineers whereas accused G.P. Sharma, Ramkesh Meena, Arun Kumar and A.K.Jain were posted as Junior Engineers in MCD Division XXII of Shahdara North Zone. Accused Deepak Goel, proprietor of M/s Darshan Construction, accused Subhash Chand, proprietor of M/s Subhash Brothers and accused Ajay Verma, proprietor of M/s A.S. Constructions are the private contractors. 3 The present case was registered on 1.2.2005 vide FIR Ex.PW18/A. It is alleged that MCD had been installing sign boards on roads and streets to facilitate the smooth movement of pedestrians, motorists and vehicles. Sign boards to be installed were required to be of higher reflectivity so as to make these boards visible in low light condition. The Planning Department of MCD issued a circular AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 3 of 63 dated 16.01.2003 through which approval was accorded for fixing sign boards with retro reflective sheeting of micro prismatic type IX grade as per ASTM 4956 @ Rs.12387.60 per sq. meter. It is alleged that accused MCD officials, entered into criminal conspiracy with private contractors with an object to cheat the Government and in furtherance thereof, they placed orders for sign boards made of type IX sheet @ Rs.12387.60 per sq. meter. Accused contractors in collusion with accused MCD Engineers got fabricated and supplied the sign boards of inferior quality of sheet. It is also alleged that accused MCD Engineers by misusing their official position accepted those inferior quality of sign boards and passed the bill for payment to accused contractors causing wrongful loss to MCD and corresponding gain to themselves. During investigation, it revealed that various types of retro reflective sheets are available in the market. Specification of these sheets recognized by American Society for Testing of Material (ASTM) in accordance with coefficient of retro reflection in it is also followed in India. Type IX sheet (Micro prismatic) is having very high intensity retro reflectivity as per ASTM 495601 and suitable for signage to be installed at shot road distances on highways, airports etc. There is vast difference amongst rates of AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 4 of 63 various types of retro reflective sheets and type IX (micro prismatic sheet) is the costliest sheet available in the market. 4 Investigation revealed that Superintending Engineer (Planning) of MCD issued a circular dated 16.01.2003 for approval of the rate of Rs.12,387.60 per sq. meter for type IX sheet so that the said item would be procured. Executive Engineer R.K.Sharma invited tenders for retro reflective sign boards with a very high intensity retro reflective micro prismatic sheet as per ASTM D495601 type IX at various places in Ward No.94 and issued work Order Nos.172 and 261 in favour of accused Subhash Chand, proprietor of M/s Subhash Brothers. Accused Subhash Chand got fabricated inferior quality of sign boards with only HIG sheet instead of type IX sheet from M/s Super Art. The fabricator also confirmed that in those sheets, he used only HIG sheets and not type IX sheet. Accused Ramkesh Meena, Junior Engineer, made false entries in Measurement Book No.7036. He conducted 100% test check at the spot and appended a false certificate to the effect that the sheets provided and fixed by the contractor were as per conditions of the tender. Accused Anil Kumar, Assistant Engineer, also conducted test check at the spot and certified in Measurement Book that accused AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 5 of 63 contractor executed the work as per NIT conditions. Accused Brij Pal Singh, Executive Engineer, after conducting test check also gave false certificate and thereafter dishonestly and fraudulently passed bills of Rs.1,53,706/ and Rs.1,53,736/ in favour of accused Subhash Chand but no payment was made to the contractor.

5 Similarly tenders for providing type IX sheets was also flouted for Ward Nos.97 and 98 and Work Orders Nos.213, 308 and 309 were awarded to accused Ajay Verma, proprietor of M/s A.S. Construction Company. Accused Ajay Verma also got fabricated inferior quality sign boards and installed the same. Accused A.K. Jain, J.E., made false entries in Measurement Book No.1122 and gave false certificate that accused contractor provided sheets as per NIT condition. Accused S.S. Arya, Assistant Engineer, also falsely certified that accused contractor conducted work as per NIT conditions. Accused Brij Pal Singh after conducting test check also gave false certificate that sign boards installed were as per NIT specifications and fraudulently passed the bill for payment of Rs. 1,11,457/ in favour of accused Ajay Verma in Work Order No.213 but the payment thereof was not made due to nonavailability of funds. Accused Arun Kumar, Junior Engineer, also made false AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 6 of 63 entries in measurement Book No.1807 and gave false certificate that sheets provided by accused contractor were as per specifications. Accused P.K. Sharma, Assistant Engineer, signed the Measurement Book falsely certifying that accused contractor executed the work as per NIT conditions. Accused Brij Pal Singh also gave false test certificate that sign boards were per NIT specifications and fraudulently passed the bill for payment of Rs.1,03,813/ and Rs. 1,05,454/ in respect of Work Order No.308 and 309 respectively in favour of accused Ajay Verma. However, payment was not made. 6 Accused Brij Pal Singh invited tenders for providing type IX sheet in Ward No. 94 and issued Work Order No. 552 in favour of accused Deepak Goel, proprietor of M/s Darshan Constructions. Accused Deepak Goel got fabricated sheets of inferior quality and supplied them to MCD. Accused G.P. Sharma, Jr. Engineer, made false entries in Measurement Book No.1953 and gave false certificate that the sheet provided by the accused contractor were as per NIT conditions. Accused Anil Kumar, Assistant Engineer, who conducted test check at the spot signed the Measurement Book falsely certifying that sheets provided were as per NIT conditions. Accused Brij Pal Singh also gave false test certificate to the effect that the AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 7 of 63 sheets provided were as per specifications and fraudulently passed the bills of Rs.1,41,850/ in favour of accused Deepak Goel which was paid to him vide cheque No.809434 dated 30.08.2004. 7 It is also alleged that accused MCD officials and accused contractor Deepak Goel cheated the MCD to the tune of Rs. 1,41,850/. It is also alleged that accused MCD officials and accused contractor Subhash Chand and Ajay Verma attempted to cheat the MCD for a sum of Rs.6,28,166/.

8 The sanctions for prosecution of accused Brij Pal Singh, Anil Kumar, P.K. Sharma, S.S. Arya, G.P. Sharma, Ramkesh Meena, Arun Kumar and A.K. Jain were accorded by Sh. Ashok Kumar (PW19) the then Commissioner of MCD.

9 After completion of the investigation, the challan was put up in the court where the accused persons were supplied with the copies of the chargesheet and the documents of the CBI. 10 The charge under Section 420 read with 120B IPC was framed against accused Brij Pal Singh, Anil Kumar, G.P.Sharma and Deepak Goel with regard to Work Order No.552. Separate charge under Section 13(2) read with 13(1)(d) of P.C. Act was framed against accused Brij Pal Singh, Anil Kumar and G.P. Sharma with AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 8 of 63 regard to Work Order No.552. Separate charge under Section 15 read with Section 13(1)(d) read with Section 13(2) of P.C. Act was framed against accused Brij Pal Singh, Anil Kumar, S.S. Arya, P.K. Sharma, Ramkesh Meena, A.K. Jain, Arun Kumar and G.P. Sharma with regard to Work Order Nos. 172, 261, 213, 308 and 309. Separate charges under Section 120B IPC with regard to all the six Work Orders and under Section 420/511 IPC read with Section 120B IPC with regard to Work Order Nos.172, 261, 213, 308 and 309 were framed against all the accused persons. Accused persons pleaded not guilty to the charges framed against them and claimed trial. 11 The prosecution has examined 19 witnesses in support of its case. Out of those witnesses, PW1 Gurudas Ramchandani was Executive Engineer (Planning). PW2 Sheelesh Govind was the Assistant Engineer and was working under PW1. PW3 Rakesh Kumar was the Assistant Engineer (Project). PW4 Sandeep Sehgal was the Fabricator of sign boards. PW5 R.K. Sharma was the Executive Engineer in Division No.XXII, Shahdara North Zone and issued tenders for sign boards. PW6 Pradeep Bansal was the Executive Engineer (Project). PW7 Dr. Surinder Mohan is the Scientist of Central Road Research Institute who gave his report with AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 9 of 63 regard to sign boards installed in the present case. PW8 Narender Kumar was the cashier whereas PW9 Om Prakash was Accounts Clerk. PW10 Ashok Kumar Sharma is alleged to have fabricated sign boards for accused contractor. PW11 Vipin Chaudhary and PW12 Dal Chand were the independent public witnesses who associated in the investigation with regard to seizure. PW13 Prem Chand is also witness to panchnamas of sign boards. PW14 C.D. Damodaran was the Accountant. PW16 Shahabuddin Khan is Assistant Engineer who narrated the procedure of inviting tenders and responsibility of MCD engineers in execution of work. PW15 Inspector N.R.Thakur, PW17 D.P. Singh and PW18 Inspector D.S. Chauhan are the Investigating Officers. PW19 Sh. Ashok Kumar, the then Commissioner of MCD accorded sanctions for prosecution of accused MCD Engineers. 12 Statements of accused persons have been recorded under Section 313 Cr.PC. Accused Brij Pal Singh has stated that in the agreement quality of sheet was not mentioned. Report of Scientist(PW7) is false and fabricated. He discharged his duties as per documents produced before him. His responsibility was independent to 10% of randomly checking the boards and he had no joint responsibility with J.E. and A.E. He further stated that NITs AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 10 of 63 were issued before his joining in the Division. All work orders except 552 were awarded prior to his joining. CBI did not intentionally get all the boards checked as out of 44 boards only 18 were got checked by the CBI and 10% of the boards randomly checked by him must have been amongst the left over 26 boards. He has stated that boards checked by him were as per specifications as mentioned in the tender file and agreement executed between MCD and the contractor. He has further stated that MCD has not suffered any loss nor had he gained anything due to discharge of his duty. Bills are produced before EE by the concerned Accountant after due verification and complete satisfaction. He has further stated that PW19 was not competent to accord sanction for his prosecution. 13 Accused Anil Kumar, P.K. Sharma, S.S. Arya in their statements under Section 313 Cr.P.C. have stated that they have done their duty in terms of work assigned to them. They have stated that prior to installation of signboards, no training was imparted to the field staff including them and no testing equipments were provided. Apart from that, there were no testing facility available either in Municipal lab or with the CRRI or any other lab in India. 14 Accused G.P. Sharma, Ramkesh Meena, Arun Kumar AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 11 of 63 Sharma and A.K. Jain in their statements under Section 313 Cr.P.C. have stated that these products were introduced for the first time. No training was imparted as to whether and how diamond grade films can be distinguished by eye examination. Further even the report of CRRI is also not conclusive on properties of Diamond Grade Sheets. Had it been circulated by MCD that it was only M/s 3 M Ltd only manufacturer of this item than only they would have known anything about it. Testing of signboards was stipulated to be done after a specified period of time. No testing at spot of installation could be done by them. Instrument required for any such film was not provided to them by MCD, therefore, they calculated physical measurement of work done and completed his job.

15 Accused Subhash Chand in his statement under Section 313 Cr.P.C. has stated that work order and agreements did not mention type IX sheet to be used in boards. He was not technically qualified. He ordered fabrication of boards with instruction to use best possible available material in the market. He was dependent on others relating to technical knowledge. Defect liability period of work had not expired and MCD had power to ask for change of boards, issue of recovery or to do other things.

AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 12 of 63 16 Accused Deepak Goel has stated that report of PW7 is false and the test could not have been done before three years of installation. Payment was received but not for fixing retro reflective signboards using type IX sheets. He was awarded work order No. 552 but neither NIT nor special conditions were annexed with it. Ordinary retro reflective sign boards were to be installed and use of type IX sheets was not specified. Boards were to be tested after three years of installation. Almost similar statement under Section 313 Cr.P.C. has been made by accused Ajay Verma apart from the fact that he was awarded work order nos.213, 308 and 309. 17 In the nutshell, case of the prosecution is that after issuing Notice Inviting Tenders (NITs) vide files of work orders Ex.PW5/A to Ex.PW5/E and Ex.PW12/A, while execution of work, all the accused persons entered into criminal conspiracy and accused contractors did not use the material as per the schedule of NIT i.e. Type IX sheets in affixing signboards and claimed the payment mentioning therein that work had been done in accordance with schedule to NIT. It is also case of prosecution that NIT was accompanied by work order along with schedule of work order. Schedule to work orders read as under : AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 13 of 63 "Providing and fixing retro reflective sign board with very high intensity retro reflective sheeting as per ASTM D495601 type IX made out of 2 mm thick alu.

sheet posted on M.S. Angle 40x40x4 mm for back support face to face to be covered fully with the blue base very high intensity retro reflective sheeting and subject matter cut out of transport over lay fine board to be mounted on two channels"

18 Accused persons opted to lead evidence in their defence. They have examined five witnesses in their defence witness i.e. DW1 Sh. V.K. Goel, DW2 Shiv Kumar Thapa, DW3 Sh. A.K. Verma, DW4 Sh. Madan Singh Mehra and DW5 Sh. M.S. Rao. 19 I have heard Shri S. Krishna Kumar, learned PP for CBI and as well as Ld. Counsels for accused persons. Written submissions on behalf of accused Brij Pal Singh have also been filed. I have also carefully gone through their submissions and the material available on record.

20 It has been argued by the Ld. PP for CBI that there is sufficient evidence on record that the accused MCD Engineers hatched a criminal conspiracy with accused contractors and caused pecuniary loss to the MCD. He has further argued that accused contractors were awarded work orders to complete the work of AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 14 of 63 installing signboards on different locations, but they did not fulfill the conditions of tender and affixed signboards of inferior quality. He has further argued that accused MCD Engineers gave false certificates in favour of accused contractors to the effect that the work done by accused contractors were as per specifications of tender. He has further argued that accused Brij Pal Singh passed bills in favour of accused contractors despite knowing that the work done by them was not as per specifications and appended his signatures on the false certificates. He has further argued that payment was made in respect of one work order and with regard to other work orders, payment was not made to the accused contractors, but an attempt has been made to cheat the government exchequer. He has further argued that the report of expert of Central Road Research Institute also proves the case of prosecution that the signboards installed by the accused contractors were of inferior quality.

21 On the other hand, it has been argued by the ld.

Counsel for the accused persons that the signboards in question were installed for the first time and the accused MCD Engineers were not having any device to check the genuineness of installed signboards. It has further been argued that there was no testing facility of the AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 15 of 63 signboards in MCD. It has also been argued that accused Brij Pal Singh being Executive Engineer just passed the bills on the certificates given by other accused MCD Engineers and he had no role to play with regard to alleged false certificates. It has further been argued that signboards were checked randomly and that all the installed signboards were not checked, which creates doubt on the case of prosecution. It has further been argued that report of CRRI Expert is of no help to the prosecution as it is not a conclusive report. On behalf of accused contractors, it has been argued that they were not aware of the technical know how of the signboards. It is further argued that there are several defects in prosecution case and there is no evidence against accused persons.

22 The procedure to procure the signboards, issuance of tenders, test checks to be conducted by the officials of MCD, role of Engineers, preparation of bills etc. has been explained by PW16 Sh. Shahabuddin Khan, Assistant Engineer. He stated that MCD is headed by a Commissioner having 12 Zones each headed by Deputy Commissioner. Works of technical nature are dealt with by Engineering Department. Each Zone is divided into divisions. As per requirement, J.E. of the Division inspects the site and puts the AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 16 of 63 estimate to Assistant Engineer of the Division who puts up matter with the Executive Engineer who is the Incharge of Division. If the work is within the financial/technical power of Executive Engineer, same is finalized at that stage, otherwise file is put up to Superintending Engineer, Chief Engineer, Dy. Commissioner, EngineerinChief, Zonal Ward Committee, Additional Commissioner and then to Corporation. Once work estimate gets sanction, tenders are flouted. After submission of bids, work is awarded to the lowest tenderer and work order is issued to successful bidder. Thereafter, an agreement is entered into by the contractor and Executive Engineer. A file is maintained in this regard. The contractor starts executing the work under the supervision of Junior Engineer on behalf of Executive Engineer of the Division. The work is inspected by the Assistant Engineer. In respect of billing/record of the work, Junior Engineer records the details of work done in Measurement Book which is test checked by Assistant Engineer and by Executive Engineer. The bill is prepared by the Junior Engineer and forwarded by Assistant Engineer and Executive Engineer. Calculations are checked by Account Clerk and Accountant and the bill is passed under the signatures of Executive Engineer and Accountant. After passing of AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 17 of 63 bill, same is sent to MCD Headquarter for releasing payment and after return of file, payment cheque is prepared by the Accountant and then payment is made to the contractor. He stated that it was the joint responsibility of Junior Engineer (100%), Assistant Engineer (50%) and Executive Engineer (10%) to ensure that the work is carried out in accordance with specifications of contract.

23 During cross examination(PW16) stated that he had not dealt with tender or account file of the present case. He admitted that responsibility of contractor starts from the time of execution of agreement. He admitted that individual duty of Executive Engineer is 10% of the work done randomly. He further stated that it is a usual practice in MCD that works are to be test checked by Executive Engineers, Assistant Engineers and Junior Engineers. 24 In the present case, PW1 Gurdas Ramchandani, the then Executive Engineer (Planning) has stated that during the relevant period, he was responsible for checking of rates for works costing above Rs.7,00,000/ (seven lacs) and checking analysis of rates of non Delhi Schedule of Rates (DSR). The rates quoted in DSR are issued by CPWD. He further stated that if any division of MCD proposes to get new work for which items and rates are not available in DSR, AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 18 of 63 analysis based on market rates of material are prepared and forwarded to Planning Department for checking. Analysis for non DSR items is done by Junior Engineer and Assistant Engineer on the basis of prevailing market rates. After getting the approval, items are circulated by Superintending Engineer. He proved the note sheet of the file of the present case as Ex.PW1/A. Vide this note sheet, a proposal was sent for approval of "providing/fixing retro reflective boards made up of diamond grade sheets". During analysis, it was found that diamond grade sheet was more advantageous as its retro reflection was very high/bright. Rate of Rs.16,770/ per sq. meter was recommended for diamond grade sheet.

25 PW2 Sheelesh Govind, Assistant Engineer, has stated that proposal Ex.PW1/A was forwarded by Superintending Engineer to Sh. Gurudas Ramchandani, Executive Engineer (PW1) who marked it to him. He stated that he checked the proposal and analysed the rates after collecting rates from the market. He analysed the rates vide Ex.PW1/B. As per this analysis report Ex.PW1/B, the rates for retro reflective signboards with very high intensity retro reflective sheeting as per ASTMD495601 type IX was Rs. 12,387.60 per sq. meter. PW2 identified the noting of PW1 as AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 19 of 63 Ex.PW1/E which was made by PW1 after analysis by Sheelesh Govind. PW2 also deposed that he put special conditions along with analysis of rates which he proved as Ex.PW1/D. In these special conditions, apart from other conditions, there is clear mention of retro reflective based sheeting according to type IX of ASTMD495601. Both PW1 and PW2 have deposed that on the basis of rates analysis, the then Superintending Engineer (Planning) circulated the rates and technical specifications vide Ex.PW1/C. 26 Ex.PW1/C was the circular dated 16.01.2003 vide which the rates for providing and fixing retro reflective signboards of type IX were approved. It was circulated in all the concerned departments including Executive Engineer so that if necessary the said signboards might be ordered to be fixed as per approved rates and specifications. PW6 Sh. Pradeep Bansal, the then Executive Engineer (Project), has deposed that during relevant period, he was looking after the projects of MCD. During the year 2002, A.E. Rakesh Kumar Kohli prepared an item for providing and fixing retro reflective signboards which was forwarded to Planning Department by him. He proved the said proposal as Ex.PW1/A on the file Ex.PW3/A. He further stated that analysis of rates was done and AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 20 of 63 letter of Birla 3 M dated 1.10.2001 was put up by Rakesh Kumar Kohli. He further deposed that Planning Department processed the matter and circulated the item as per circular. Along with circular, special conditions were also circulated.

27 The abovementioned witnesses deposed about the procedure adopted by MCD for procurement of signboards in question.

28 Out of six work orders, work order no.261 was awarded to accused contractor Subhash Chand, proprietor of M/s Subhash Brothers. The said work order was awarded to him for providing and fixing signboards of type IX sheets. PW5 Sh. R.K. Sharma the then Executive Engineer has stated that he issued tenders for retro reflective signboards and also allotted the work order. He deposed that he issued work order No.261. He proved the file of work order No.261 as Ex.PW5/D. File Ex.PW5/D shows that tenders were issued for providing and fixing retro reflective signboards in Bhajanpura Ward No.94 on 11.09.2003. An agreement between MCD and accused Subhash Chand was entered into for execution of said work. Along with the work order and agreement, there is a schedule which clearly shows that contractor had to provide and fix AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 21 of 63 retro reflective signboards with very high intensity retro reflective sheeting as per ASTMD495601 of type IX grade. 29 The Measurement Book No.7036 of the work order No.261 is Ex.PW14/A which shows that the work awarded to accused Subhash Chand was for providing/fixing retro reflective signboards of very high intensity retro reflective sheeting as per ASTM D495601. On page 96 of this Measurement Book, accused Ramkesh Meena gave certificate to the effect that work was done by the contractor as per NIT conditions of work order No.261 and signed the certificate. The said certificate was also signed by accused Anil Kumar being Assistant Engineer and accused Brij Pal Singh being Executive Engineer certifying that work was done as per NIT conditions. It is also apparent that accused Brij Pal Singh passed the bill of Rs.1,53,736/. Accountant C.D. Damodaran (PW14) has proved original bill of work order No.261 as Ex.PW9/H for a sum of Rs.1,32,404/ after deducting the amount of other heads. He has identified the signatures of accused Subhash Chand, Anil Kumar and Brij Pal Singh. PW9 Om Prakash, Accounts Clerk, has also identified his signatures on the bill as well as signatures of accused persons. 30 The signboards in question apart from other AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 22 of 63 signboards were observed by the Scientist of CRRI Dr. Surender Mohan (PW7) in the presence of independent witnesses Vipin Chaudhary (PW11) and Prem Chand (PW13). Dr. Surender Mohan (PW7) examined the signboards and gave his report Ex.PW7/E. As per his report, signboards examined by him of Shahdara North Zone were made of only engineering grade sheet and of high intensity grade sheet but none of the said signboards were made of micro prismatic grade which was one of the conditions of the tenders of the present case which were awarded in favour of accused contractors. 31 As per file Ex.PW5/D of work order No.261, accused contractor Subhash Chand was awarded work of providing/fixing retro reflective signboards of very high intensity retro reflective sheeting as per ASTMD495601. It is not disputed by the accused contractor that work order No.261 was awarded to him and that he executed the same. There was specific condition in Notice Inviting Tender (NIT) that the successful bidder had to carry out the work as per special conditions which were part of the NIT. schedule to the agreement entered into between accused contractor Subhash Chand and MCD as well as NIT provides for fixing/providing retro reflective signboards of very high intensity retro reflective sheeting as per AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 23 of 63 ASTMD495601. When the work was completed by the accused contractor, accused Ramkesh Meena being Junior Engineer gave false certificate to the effect that work was done by accused contractor Subhash Chand as per conditions of NIT. The said certificate was also given by accused Anil Kumar in the capacity of Assistant Engineer and accused Brij Pal Singh in the capacity of Executive Engineer. It has been established on record that all these three category of Engineers were responsible for conducting test check of the work done by the contractor. As per report Ex. PW7/E of Dr. Surender Mohan (PW7), the installed signboards of work order No. 261 were observed by him and were found to be made of HIG grade sheets. As per his opinion, no sheet of very high intensity grade of type IX as per ASTMD495601 was used by accused contractor in the signboards affixed by him.

32 It is alleged against accused Subhash Chand that he got fabricated signboards from M/s Super Arts. To prove this fact, prosecution has examined Sh. Sandeep Sehgal(PW4). He deposed that he is doing the work of fabrication of signboards since 1989 under the name and style of M/s Super Arts. He deposed that he had fabricated signboards for M/s Subhash Brothers whose proprietor is AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 24 of 63 accused Subhash Chand. He identified accused Subhash Chand in the Court. He further deposed that it was about 78 years ago, he had used high intensity grade sheet and charged about Rs.4,0004500/ per sq. meter for the boards from M/s Subhash Brothers. He further stated that contractor gave drawings and he fabricated boards as per drawings. He was told by the contractor that they were using high intensity grade sheet. His statement was recorded by the CBI during which he gave paper print and proved the same as Ex.PW4/A. He was cross examined but no suggestion was put to him to the effect that he had not fabricated signboards for accused Subhash Chand. 33 The abovementioned evidence clearly shows that accused contractor Subhash Chand provided and fixed signboards of inferior quality to the MCD and installed them at different places in pursuance of work order No.261 as per which he was awarded work for providing/fixing retro reflective signboards of very high intensity retro reflective sheeting as per ASTMD495601. As per report Ex.PW7/E of scientist of CRRI, the signboards installed by accused Subhash Chand were of inferior quality instead of type IX sheet. The testimony of PW4 Sandeep Sehgal also establishes that accused Subhash Chand got fabricated signboards of inferior quality from the AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 25 of 63 fabricator and then installed the same. From his testimony, it has also been established that accused Subhash Chand got fabricated signboards at the rates much lower than the rates given in the NIT but did not install the signboards as per schedule to NIT. It has also come in evidence that accused Ramkesh Meena, Anil Kumar and Brij Pal Singh gave false certificates in favour of accused contractor Subhash Chand that he installed the signboards and fulfilled all the conditions of NIT, whereas as per report Ex.PW7/E of Expert, the signboards were of inferior quality. This piece of evidence clearly establishes the nexus between accused contractor Subhash and accused MCD Engineers Ramkesh Meena, Anil Kumar and Brij Pal Singh. These accused MCD Engineers hatched a criminal conspiracy, common object of which was to cheat the MCD by fixing signboards of inferior quality and thus causing wrongful loss to the MCD and corresponding gain to themselves as well as to accused Contractor Subhash Chand. In furtherance of common object of the criminal conspiracy, accused MCD Engineers gave false certificates in favour of accused contractor Subhash Chand that he installed signboards as per specifications of NIT with a view to cheat the MCD. It has also been established from the evidence that bill dated 31.3.2004 of Rs. AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 26 of 63 1,53,736/ was passed by the said acts of accused MCD Engineers and the final bill was passed by accused Brij Pal Singh but the payment thereof was not made to the accused contractor. It has also been established that accused MCD Engineers misused their official position by giving false certificates in favour of accused contractor that work executed by him was as per NIT conditions. Thus an attempt has been made by accused Subhash Chand, Ramkesh Meena, Anil Kumar and Brij Pal Singh for cheating the MCD to the tune of Rs.1,53,736/.

34 Similarly, work order no.172 was also awarded to accused Subhash Chand. PW5 Sh. R.K. Sharma proved the file of work order No.172 as Ex.PW5/E. This file shows that tender was issued for providing and fixing retro reflective signboards in Bhajanpura Ward No.94 on 04.08.2003. There is a schedule to the same which clearly shows that contractor had to provide and fix retro reflective signboards with very high intensity retro reflective sheeting as per ASTMD495601 of type IX grade. The Measurement Book No.7036 of the work order No.172 is Ex.PW14/A which shows that the work awarded to accused Subhash Chand was for providing/fixing retro reflective signboards of very high intensity retro reflective AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 27 of 63 sheeting as per ASTMD495601. On page 94 and 95 of this Measurement Book, the details of work order No.172 are mentioned. On page 95, accused Ramkesh Meena gave certificate to the effect that work was executed by the contractor as per NIT conditions of and signed the certificate which was also signed by accused Anil Kumar (AE) and accused Brij Pal Singh (EE) certifying that work was done as per NIT conditions. It is also apparent that accused Brij Pal Singh passed the bill of Rs.1,53,706/. Accountant C.D. Damodaran (PW14) has proved original bill of work order No.172 as Ex.PW9/G for a sum of Rs.1,32,377/ after deducting the amount on other heads. He has identified the signatures of accused Subhash Chand, Anil Kumar and Brij Pal Singh. PW9 Om Prakash, Accounts Clerk, has also identified his signatures on the bill as well as signatures of accused persons.

35 As per file Ex.PW5/E of work order No.172, accused contractor Subhash Chand was awarded work of providing/fixing retro reflective signboards of very high intensity retro reflective sheeting as per ASTMD495601. Schedule to the agreement entered into between accused contractor Subhash Chand and MCD as well as NIT provides for fixing/providing retro reflective signboards AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 28 of 63 of very high intensity retro reflective sheeting as per ASTM D495601. Accused Ramkesh Meena (JE) gave false certificate to the effect that work was done by accused contractor Subhash Chand as per conditions of NIT which was also signed by accused Anil Kumar (AE) and accused Brij Pal Singh (EE). Expert report Ex.PW7/E also shows that accused contractor affixed signboards of engineering grade sheet as well as of HIG grade sheets and no sheet of very high intensity grade of type IX as per ASTMD495601 was used by accused contractor in the signboards affixed by him. 36 The abovementioned evidence clearly shows that accused contractor Subhash Chand provided and fixed signboards of inferior quality to the MCD and installed them at different places in pursuance of work order No.172 as per which he was awarded work for providing/fixing retro reflective signboards of very high intensity retro reflective sheeting as per ASTMD495601. As per report Ex.PW7/E of scientist of CRRI, the signboards installed by accused Subhash Chand were of inferior quality instead of type IX sheet. The evidence of fabricator PW4 Sandeep Sehgal also establishes that the signboards got fabricated by accused Subhash Chand were of inferior quality. It has also come in evidence that accused Ramkesh Meena, AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 29 of 63 Anil Kumar and Brij Pal Singh gave false certificates in favour of accused contractor Subhash Chand that he installed the signboards and fulfilled all the conditions of NIT, whereas as per report Ex.PW7/E of Expert, the signboards were of inferior quality. Accused MCD Engineers hatched a criminal conspiracy with accused Subhash Chand and in furtherance of same, accused MCD Engineers gave false certificates in favour of accused contractor Subhash Chand that he installed signboards as per specifications of NIT with a view to cheat the MCD. It has also been established from the evidence that bill dated 31.3.2004 of Rs.1,53,706/ was passed by the said acts of accused MCD Engineers and the final bill was passed by accused Brij Pal Singh but the payment thereof was not made to the accused contractor. It has also been established that accused MCD Engineers misused their official position by giving false certificates in favour of accused contractor that work executed by him was as per NIT conditions. Thus an attempt has been made by accused Subhash Chand, Ramkesh Meena, Anil Kumar and Brij Pal Singh for cheating the MCD to the tune of Rs.1,53,706/.

37 Similarly, work order No.213 was awarded to accused Ajay Verma, proprietor of M/s A.S. Constructions. File of AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 30 of 63 work order No.213 is Ex.PW5/B. Perusal of this file shows that tender in respect of this work order issued for providing and fixing retro reflective signboards at Karawal Nagar Road from Karawal Nagar Chowk to Shiv Vihar Tiraha in Ward No. 97 on 18.08.2003. Along with the work order and agreement, there is an schedule which clearly shows that contractor had to provide and fix retro reflective signboards with very high intensity retro reflective sheeting as per ASTMD495601 of type IX grade. The Measurement Book No. 1122 of said work order is Ex.PW9/E which also shows that accused A.K. Jain gave certificate to the effect that work had been done as per NIT conditions and specifications which which was also signed by accused S.S. Arya, A.E. and accused Brij Pal Singh. Accused Brij Pal Singh passed the bill of Rs.1,11,457/. Accounts Clerk Om Prakash (PW9) has proved original bill of this work order as Ex.PW9/D which shows that final bill for a sum of Rs.90,860/ was prepared after deducting the amount of other heads. He has identified the signatures of accused A.K.Jain, S.S.Arya and Brij Pal Singh. 38 As per file Ex.PW5/B accused contractor Ajay Verma was awarded work of providing/fixing retro reflective signboards of very high intensity retro reflective sheeting of type IX AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 31 of 63 sheet as per ASTMD495601. When the work was executed by accused contractor, accused A.K.Jain, J.E. gave false certificate to the effect that work was done by accused contractor as per conditions of NIT which was also signed by accused S.S.Arya and accused Brij Pal Singh. As per report Ex. PW7/E of Dr. Surender Mohan(PW7), the signboards were found to be made of engineering grade sheet as well as of HIG grade sheets and not of type IX sheet.

39 The above mentioned evidence clearly shows that accused contractor Ajay Verma provided and fixed signboards of inferior quality and as per report Ex.PW7/E of Expert, the signboards installed by accused contractor were of inferior quality instead of type IX sheet. It has also come in evidence that accused A.K. Jain, S.S. Arya and Brij Pal Singh gave false certificates in favour of co accused contractor Ajay Verma that he installed the signboards and fulfilled all the conditions of NIT. Accused MCD Engineers hatched a criminal conspiracy with accused Ajay Verma to cheat the MCD by allowing him to fix signboards of inferior quality and in furtherance of same gave false certificates in favour of accused contractor that he installed signboards as per specifications of NIT. It has also been established from the evidence that bill dated 20.9.2004 of Rs. AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 32 of 63 1,11,457/ was passed by the said acts of accused MCD Engineers and the final bill was passed by accused Brij Pal Singh but the payment thereof was not made to the accused contractor. It has also been established that accused MCD Engineers misused their official position by giving false certificates in favour of accused contractor that work executed by him was as per NIT conditions. Thus an attempt has been made by accused Ajay Verma, A.K. Jain, S.S. Arya and Brij Pal Singh for cheating the MCD to the tune of Rs.1,11,457/. 40 Similarly, work orders Nos.308 and 309 were awarded to accused Ajay Verma. The file of work order No.308 is Ex.PW5/C and that of work order No.309 is Ex.PW5/A. Perusal of files Ex.PW5/A and Ex.PW5/C shows that tenders in respect of these work orders were issued for providing and fixing retro reflective signboards at Tukhmir Pur Village and Karawal Nagar Road in Ward No.98 on 26.09.2003. A schedule was attached with NIT to the effet that contractor had to provide and fix retro reflective signboards with very high intensity retro reflective sheeting as per ASTMD495601 of type IX grade. The Measurement Book No.1807 of both these work orders is Ex.PW9/B. On page 36, accused Arun Kumar gave certificate to the effect that work had been carried out as per AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 33 of 63 specifications which was also signed by accused P.K. Sharma, A.E. and accused Brij Pal Singh certifying that work was done as per NIT specifications. Accused Brij Pal Singh passed the bill of Rs. 1,03,813/ in respect of work order No.308 and passed bill of Rs. 1,05,454/ in respect of work order No.309. Accounts Clerk Om Prakash (PW9) has proved original bills of these work order Nos. 308 and 309 as Ex.PW9/C and Ex PW9/A respectively which shows that final bill for a sum of Rs.83,531/ and Rs.85,215/ respectively were prepared after deducting the amount of other heads. He has identified the signatures of accused P.K.Sharma and Brij Pal Singh. 41 As per files Ex.PW5/C and Ex.PW5/A, there was specific condition in Notice Inviting Tender (NIT) that accused Ajay Verma was to provide signboards of type IX sheet as per ASTM D495601. Accused Arun Kumar, J.E. gave false certificate to the effect that work was done by accused contractor as per conditions of NIT which was also signed by accused P.K.Sharma and Brij Pal Singh. As per report Ex.PW7/E, the installed signboards were not of type IX sheet.

42 The above mentioned evidence clearly shows that accused contractor Ajay Verma provided and fixed signboards of AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 34 of 63 inferior quality to the MCD. As per report Ex.PW7/E of Expert, the signboards installed by accused contractor were not of type IX sheet. It has also come in evidence that accused Arun Kumar, P.K.Sharma and Brij Pal Singh gave false certificates in favour of coaccused contractor Ajay Verma that he installed the signboards and fulfilled all the conditions of NIT. It has been established that accused MCD Engineers hatched a criminal conspiracy with accused Ajay Verma and in furtherance of same, gave false certificates that installed signboards were as per specifications of NIT. It has also been established from the evidence that bills against said work orders were passed due to the acts of accused MCD Engineers and the final bills dated 7.1.2005 of Rs.1,03,813/ and Rs.1,05,454/ were passed by accused Brij Pal Singh but the payment thereof was not made to the accused contractor. It has also been established that accused MCD Engineers misused their official position by giving false certificates in favour of accused contractor that work executed by him was as per NIT conditions. Thus, an attempt has been made by accused Ajay Verma, Arun Kumar, P.K. Sharma and Brij Pal Singh for cheating the MCD to the tune of Rs.1,03,813/ and of Rs. 1,05,454/. 43 Similarly, work order no.552 was awarded to AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 35 of 63 accused Deepak Goel, proprietor of M/s Darshan Constructions. Accused Brij Pal Singh issued tender for said work order. File of work order No.552 is Ex.PW12/A which shows that tender was issued for providing and fixing retro reflective signboards at Bhajan Pura in Ward No. 94 on 17.03.2004. Along with the work order and the tender form filled by the accused contractor, there is a schedule in which it is clearly mentioned that the contractor had to provide and fix retro reflective signboards with very high intensity retro reflective sheeting as per ASTMD495601 of type IX grade. The Measurement Book No. 1953 of the work order No.552 is Ex.PW14/B which shows that the said work was examined by the accused G.P.Sharma (J.E.). He gave certificate that work had been carried out as per specifications and NIT conditions which was also signed by accused Anil Kumar (AE) Brij Pal Singh (EE). It is also apparent that accused Brij Pal Singh passed the bill of Rs.1,41,850/. Accounts Clerk Om Prakash (PW9) has proved the first original bill of this work order as Ex.PW9/M which shows that the bill dated for a sum of Rs.1,41,850/ was passed in favour of accused Deepak Goel by accused Brij Pal Singh on 31.03.2004. PW9 also proved second bill of the said work order as Ex.PW9/J which shows that accused AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 36 of 63 Brij Pal Singh passed the bill of Rs.4,000/ in favour of accused contractor on 10.09.2004. It is also established that payment of Rs. 1,41,850/ was released to accused Deepak Goel. The cheque bearing No.809434 Ex.PW18/F dated 30.08.2004 shows that it was issued in the name of firm of accused Deepak Goel for a sum of Rs.1,41,850/. CBI has also filed the statement of account of M/s Darshan Constructions and proved the same as Ex.PW18/DA. Statement dated 5.10.2004 for the period 30.07.2004 to 15.10.2004 shows that the said cheque was got encahsed by accused Deepak Goel by depositing it in the account of his firm.

44 When the work was executed by the accused contractor, accused G.P.Sharma (JE) gave false certificate to the effect that work was done by accused contractor as per conditions of NIT which was also signed by accused Anil Kumar and Brij Pal Singh. As per report Ex. PW7/E of Expert (PW7), the installed signboards of work order No.552 were found to be made of engineering grade sheet as well as of HIG grade sheets instead of type IX sheet.

45 PW8 Narender Kumar, the then Cashier, has proved the cash book for the year 20042005 of MCD as Ex.PW8/A. He AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 37 of 63 deposed that vide voucher No.27B dated 30.08.2004, he made payment of Rs.1,41,850/ to M/s Darshan Constructions against work order No. 552. He further deposed that on receipt of bill for the said work order, bill was sent to Planning Department and when payment was received through cheque No. 809434 Ex.PW18/F, he handed over same to accused contractor. The evidence brought on record establishes that accused contractor Deepak Goel provided and fixed signboards of inferior quality to the MCD and did not use type IX sheet and the said fact has been confirmed from report Ex.PW7/E. It has also come in evidence that accused G.P.Sharma, Aniil Kumar and Brij Pal Singh gave false certificates in favour of coaccused contractor that he installed the signboards and fulfilled all the conditions of NIT. Accused MCD Engineers hatched a criminal conspiracy with accused Deepak Goel and in furtherance of same, they gave false certificates in favour of accused contractor that he installed signboards as per specifications of NIT with a view to cheat the MCD. It has also been established from the evidence that bill dated 31.3.2004 of Rs.1,41,850/ was passed in favour of accused contractor and he got it encashed. From the testimony of PW8 Narender Kumar, it has also been established that cheque Ex.PW18/F AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 38 of 63 for a sum of Rs.1,41,850/ was prepared and handed over to accused Deepak Goel. It has also been established that accused MCD Engineers misused their official position by giving false certificates in favour of accused contractor that work executed by him was as per NIT conditions. Thus accused Deepak Goel, G.P.Sharma, Anil Kumar and Brij Pal Singh cheated the MCD to the tune of Rs. 1,41,850/.

46 In view of above mentioned discussion, it has been established that accused MCD Engineers hatched a criminal conspiracy with accused contractors with a view to cheat the Government and in furtherance thereof accused MCD Engineers by misusing their official positions gave false certificates to the effect that work executed by the accused contractors was as per specifications of the NIT. It has also been established that after giving false certificates by accused MCD Engineers, accused Brij Pal Singh passed bills in favour of accused contractors. It has also been established that cheating to the Government Exchequer has been made in respect of work order No. 552 whereas an attempt has been made to cheat the Government in respect of work order Nos. 172, 261, 213, 308 and 309.

AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 39 of 63 Defence 47 To prove their defence, accused persons have examined DW1 Sh. V.K. Goel, Deputy Law Officer, Vigilance Department of MCD has brought the original file and RC 2(A)/2005 ACIVIII u/s 19(A)(C) of P.C. Act. He proved the letter dated 4.8.2006 as Ex.DW1/A written by the Director (Vigilance) to DIG CBI. He also proved the letter dated 4.9.2006 as Ex.DW1/B written by the CBI to the Chief Vigilance Officer of MCD. DW2 Shiv Kumar Thapa, UDC in Commissioner's office of MCD has proved the office order dated 9.3.2005 as Ex.DW2/A. DW3 Sh. A.K. Verma has stated that summoned record was not in his possession. DW4 Sh. Madan Singh Mehra, Ahlmad has produced the file from the Court of Sh. Rajiv Mehra, Special Judge (CBI) and proved the same as Ex.DW4/A pertaining to modification in the item of retro reflective signboards. DW5 Sh. M.S. Rao, UDC, Vigilance Department, MCD has produced the file from the Vigilance Department and proved relevant documents as Ex.DW5/A. 48 The main defence which has been taken by all the accused persons is that there was no method to take the measurement of work done by contractors. It is further argued that there was no AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 40 of 63 instrument or equipment to check the signboards. 49 There is no force in this contention of accused persons inasmuch as in the NIT, signboards of type IX sheets were to be provided. It was the condition which was to be fulfilled by the accused contractors and it was the duty and responsibility of accused MCD Engineers to ensure that signboards installed fulfilled the conditions of NIT. When certificates have been given by accused MCD Engineers that signboards affixed by accused contractors were as per specifications of the NIT, they were supposed to test check those signboards before appending such certificates which they failed to do. Therefore, now they can not be allowed to take such a defence. Therefore, contention raised by the accused persons is without any merit.

50 Second defence taken by the accused persons are highlighting the role of individual. Apparently, the allegations levelled by the CBI are that in furtherance of criminal conspiracy, while executing the work, type IX sheets were not used by the accused contractors and payments were claimed accordingly. It is a settled law that conspiracies are hatched in the pitch dark secrecy and security planned and direct evidence of those are hardly available. AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 41 of 63 The Hon'ble Supreme Court in case titled K.R. Purushothaman vs. State of Kerala, AIR 2006 SC 35 has held that to constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by an illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every details of the conspiracy. The agreement amongst the conspirators can be inferred by necessary implications. 51 In another case titled Shivnarayan Laxminarayan Joshi Versus State of Maharashtra (1980 SCC (Cri.) 493), the Hon'ble Supreme has observed that it is manifest that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from the inferences drawn from acts or illegal omission committed by the conspirators in pursuance of a common design which has been amply proved by the prosecution as found as a fact by the High Court. In the present case, as discussed above, the prosecution has placed enough material on record that accused MCD Engineers criminally conspired with accused contractors who did not use type IX sheets in signboards and accused MCD Engineers appended false certificate to the effect that work done was as per NIT specifications. AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 42 of 63 52 Accused contractors have taken the defence that there was no schedule to NIT to the effect that they had to provide signboards of very high intensity grade of type IX as per ASTM D495601. They have also taken the defence that they were not having any technical knowledge of installing of such signboards, therefore, no criminal liability can be fastened on them on this count. 53 Perusal of files of work orders shows that there are schedules with every NIT/work order which specifically provides for installing signboards of very high intensity grade of type IX sheet as per ASTMD495601. Accused contractors agreed to the terms and conditions of the tenders. Therefore, now they can not take the vague defence that they were technically sound to install such signboards. 54 Ld. Counsel for accused Brij Pal Singh has argued that report of Ex.PW7/E was procured by the CBI. He has further argued that PW7 who proved the report is not the signatory to the said report. He has further argued that inspection of signboards was carried out in day time which were meant to be used in darkness. He has further argued that out of total 44 installed boards, only 23 boards were tested and that the responsibility of accused was only 10%. he has submitted that it may be that the signboards checked by the AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 43 of 63 accused were those which were left out to be checked by the CBI. In support of his contention, he has relied upon judgment in case of LIC of India and another vs. Ram Pal Singh Bisen 2010 (2) CCC 315 (SC) in which it was observed that contents of documents should be proved either by primary or second evidence. Admission of a document amounts to admission of contents but not its truth. 55 The contention of ld. Defence counsel that report of CRRI Ex.PW7/E can not be read in evidence is without any basis as it is duly covered under section 293 of Cr.P.C. Section 293 Cr.P.C. provides that reports of Government Scientific Experts can be used as evidence in trial without calling such expert in the Court. It is not in dispute that Central Road Research Institute is a part of Council of Scientific and Industrial Research which has been formed by the Central Government. So the report Ex.PW7/E is admissible in evidence as per clause(g) of sub section (4) of section 293 of Cr.P.C. 56 Next contention of ld. Counsel for accused that accused Brij Pal Singh was responsible only for 10% of the work, is also without any basis inasmuch as report Ex.PW7/E shows that the signboards, in respect of which certificates were appended by accused MCD Engineers, were inspected and found to have been fabricated of AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 44 of 63 inferior quality sheet and not as per type IX sheet which was one of the condition of the tender. Therefore, by appending false certificates with regard to signboards which were examined by Expert, accused MCD Engineers can not take the defence that they were having limited responsibility.

57 Ld. Defence counsel has further argued that there was no testing facility of signboards with the MCD. Even the signboards were installed for a testing period of 35 years and before that they could not have been checked to find any fault in it. He has further argued that MCD has suffered no loss the boards are still available at the sites and accused Brij Pal Singh had not received any monetary benefits. He has further argued that no criminality can be imputed to accused as there was no dishonest intention on his part as no certificate was given by him.

58 In support of his arguments, he has relied upon judgment in case of V. Venkata Subbarao vs. State 2007 Cri.L.J. 754 in which it was held that in the absence of proof of demand, raising of presumption under section 20 of the P.C.Act does not arise. He has further relied upon judgment in case of Anil Kohli vs. State 2002 (1) JCC 288 in which it was observed that if the payment has not been AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 45 of 63 made, that will not tantamount to deception. Next judgment is in case of Ajay Mitra vs. State of M.P. and others 2003 (1) RCR (Criminal) 674 in which it was observed that the accused committed offence of cheating with regard to business agreement and associated other persons in the deal. The Hon'ble Apex Court held that the person who were not in picture at the time of original deal were not guilty of offence of cheating. Next judgment relied upon is in case of V.Y. Jose and another vs. State of Gujarat and another 2009 (1) RCR (Criminal) 869 in which it was observed that an offence of cheating can not said to have been made out unless fraudulent or dishonest inducement to deliver any property is proved. 59 The contention of ld. Defence counsel that the signboards could not have been checked as they were installed for test period of 35 years, is of no help to him. In the present case, deficiency in the signboards was detected and signboards were got checked from the Expert from Central Road Research Institute who found that the signboards installed were of inferior quality. During investigation, it revealed that accused MCD Engineers gave false certificates in favour of accused contractors that they installed signboards as per specifications of NIT. Another contention of ld. AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 46 of 63 Defence counsel that accused Brij Pal Singh had no dishonest intention as he had not given any certificate and he had not received any monetary benefit, is also of no consequence inasmuch as it has been established on the record that false certificates were given by accused Junior Engineers which were countersigned/forwarded by accused Assistant Engineers and by accused Brij Pal Singh in the capacity of Executive Engineer. It has also been established on the record that Executive Engineer was also responsible for conducting test check of the work done. Even it is admitted case of accused Brij Pal Singh himself that his responsibility was 10% that means, he admits that he was also responsible for conducting physical test check of signboards. There is sufficient evidence on record that accused Brij Pal Singh not even appended the false certificates but passed bills in favour of accused contractors.

60 Contentions of ld. Defence counsel that signboards are still at the spot and no payment has been made to the contractors is also of no consequence inasmuch as it has been established that with regard to five work orders, an attempt to cheat MCD has been made by accused MCD Engineers whereas with regard to work order No.552, payment was released to accused contractor thereby causing AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 47 of 63 pecuniary loss to MCD. Evidence brought on record clearly establishes the guilt of accused MCD Engineers that they were having dishonest intention in appending false certificates in favour of accused contractors. Therefore, the authorities relied upon by ld. Defence counsels are distinguishable to the facts of the present case. The accused persons have led their defence evidence, but failed to probabilise their defence as discussed above.

61 On behalf of accused Brij Pal Singh, it has been argued that he was was working as Executive Engineer and was of category 'A' employee and he could have been removed by Corporation through Standing Committee and the Commissioner was not competent to accord sanction for his prosecution. It is further argued that the sanction order shows nonapplication of mind as witness (PW19) showed ignorance about CRRI report. During pendency of trial, he moved an application and reply to the same was filed by CBI and on the request of accused, question of sanctin has been taken up along with main judgment. In support of his argument, he has relied upon judgment in case of G.S. Matharoo vs. CBI (Crl.M.A. 13999/2010 decided by Hon'ble Delhi High Court on 25.01.2012). In this judgment, it was held that Commissioner of AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 48 of 63 MCD is not competent authority to grant sanction in case of group 'A' employees rather Corporation is competent to accord sanction. He has also relied upon judgment in case of Ram Krishan Prajapati vs. State of U.P. 2000 SCC(Cri.) 687 in which it was observed that sanction issued by District Magistrate was not a sanction in the eye of law as the Commissioner appointed the appellant who was higher authority than the District Magistrate.

62 To prove the sanction accorded for prosecution of accused MCD officials, the prosecution has examined Sh. Ashok Kumar, the then Commissioner of MCD(PW19) who deposed that he was the Appointing Authority as well as competent to remove officers of the rank of Executive Engineers, Assistant Engineers and Junior Engineers posted in MCD. He proved the sanction order of accused Brij Pal Singh as Ex.PW19/A, of accused Anil Kumar as Ex.PW19/B, of accused P.K.Sharma as Ex.PW19/C, of accused S.S.Arya Ex.PW19/D, of accused G.P. Sharma as Ex.PW19/E, of accused Ramkesh Meena ExPW19/F, of accused Arun Kumar as Ex.PW19/G and of accused A.K.Jain as Ex.PW19/H. He also deposed that request for sanction came from CBI. He perused all the relevant documents and applied his independent mind before granting AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 49 of 63 sanctions. During cross examination, PW19 was given a question to the effect that Competent Authority to accord sanction for group 'A' employees is not the Commissioner but the Corporation. Witness has stated that Commissioner was competent authority to take action. He denied that the draft sanction proforma and brief history of case was received through Vigilance Department. He admitted that accused Brij Pal Singh was of category 'A' employee.

63 The perusal of sanction order Ex.PW19/A to Ex.PW19/H shows that the sanctioning authority (PW19) after carefully examining the statements of witnesses recorded during investigation and the documents collected during investigation, granted sanction for prosecution of accused persons. 64 So far as nonapplication of mind by PW19 in according sanction is concerned, perusal of record shows that a letter dated 4.8.2006 Ex.DW1/A was sent to CBI. Vide this letter, Commissioner of MCD i.e. PW19 sought certain clarifications prior to according sanctions. Those clarifications were given by the CBI to MCD vide letter dated 4.9.2006 Ex.DW1/B. So, in view of this position of the matter that certain clarifications were sought by PW19 before according sanction against accused persons, he appears to have AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 50 of 63 applied his mind before according sanction. The contention of ld. Defence counsel that PW19 just accorded sanction on the sanction draft sent by CBI, is without any basis. Had it been so, there was no occasion with the Commissioner to seek clarifications from the CBI. 65 Contention of ld. Defence counsel for accused Brij Pal Singh that accused is liable to be discharged is also without any basis inasmuch as accused Brij Pal Singh was a regular employee of MCD and was promoted to the post of Executive Engineer, as submitted by Ld. PP for CBI during the course of arguments. Ld. PP for the CBI has also submitted that accused Brij Pal Singh was promoted to the post of Executive Engineer from lower post and he was not directly appointed or joined MCD as Executive Engineer on deputation basis. There appears to be force in the contention of Ld. PP for the CBI. Even as per section 59(d) of DMC Act, 1957, Commissioner of MCD is disciplinary authority to all municipal officers and employees. Therefore, he was competent to accord sanction for the prosecution of accused persons. The ld. Defence counsel cannot get any help from the judgment of Matharoo's case (supra) as facts of the present case are distinguishable from the facts of the said case. Even ld. defence counsel can not derive any help AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 51 of 63 from the judgment in Ram Krishan Prajapati's case (supra) as it is not the case of accused that the sanction issued by the Officer was below the rank of authority which appointed him. In the present case, accused was appointed by the Commissioner of MCD and sanction for his prosecution was accorded by him.

66 Consequently, in view of the above mentioned discussion, it is held that the sanctioning authority PW19 Sh. Ashok Kumar was competent to accord the sanction for the prosecution of the accused. It has been demonstrated from his testimony and sanction order that material was produced before him which was made basis for passing sanction order. Though, accused has challenged nonapplication of mind by sanctioning Authority to pass sanction order but has not produced any material or evidence to show that the sanction orders were passed mechanically. 67 Consequently, I am of the considered opinion sanctions accorded for prosecution of accused persons is proper, valid and have been passed after due application of mind and PW19 Sh. Ashok Kumar was competent to accord sanction.

Conclusion 68 In view of foregoing discussion, it has been AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 52 of 63 established that accused Subhash Chand was awarded two work orders Nos.172 and 261 for providing and fixing signboards of type IX sheet at various places in ward No.94. From the testimony of PW4 Sandeep Sehgal, it has been established that accused Subhash Chand got fabricated signboards of inferior quality and then affixed the same on different locations. It has also been established that much lesser amount from the fabricator but charged amount at higher rate i.e. Rs.12,387.60 per sq. meter from the MCD. It has also been established that accused Ramkesh Meena J.E., accused Anil Kumar A.E. and accused Brij Pal SinghE.E. were responsible for test checking of the work done by the accused contractor Subhash Chand. From the perusal of Measurement Book, it has been established that accused Ramkesh Meena gave false certificate to the effect that the work done by accused Subhash Chand was as per NIT conditions. On the other hand, it has been established from the report Ex.PW7/E of Expert that the signboards installed by accused Subhash Chand were not made of type IX sheet which was the requirement of NIT which was also signed by accused Anil Kumar and Brij Pal Singh being A.E. and E.E. respectively. It has also been established that accused Brij Pal Singh dishonestly and fraudulently passed bills of Rs.1,53,706/ AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 53 of 63 and Rs.1,53,736/ in favour of accused contractor Subhash Chand. Thus, it has been established that accused MCD Engineers Brij Pal Singh, Anil Kumar and Ramkesh Meena criminally conspired with accused contractor Subhash Chand and in furtherance of conspiracy, accused MCD Engineers gave false certificate to the effect that signboards installed by accused Subhash Chand were as per specifications of NIT. Thus, accused MCD Engineers by misusing their official position showed favour to accused Subhash Chand and an attempt has been made by them to cheat the Government Exchequer.

69 It has also been established that accused Ajay Verma, proprietor of M/s A.S. Construction Company was awarded three work orders Nos.213, 308 and 309 for providing and fixing signboards of type IX sheet at various places in ward No.97 and 98. It has been established that accused Ajay Verma installed signboards of inferior quality at different locations and charged much higher rate for the same from the MCD. The signboards installed by him were not of type IX sheets as stipulated in the NIT. It has also been established that accused A.K. Jain and Arun KumarJunior Engineers, accused S.S. Arya and P.K. SharmaAssistant Engineers and accused AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 54 of 63 Brij Pal SinghExecutive Engineer were responsible for test checking of the work done by the accused contractor Ajay Verma. From the perusal of Measurement Books, it has been established that accused Junior Engineers A.K. Jain and Arun Kumar gave false certificates to the effect that the work done by accused Ajay Verma was as per NIT conditions. On the other hand, it has been established from the report Ex.PW7/E of Expert that the signboards installed by accused Ajay Verma were not made of type IX sheet which was the requirement of NIT which was also signed by accused Assistant Engineers S.S. Arya and P.K. Sharma and also by accused Brij Pal Singh being E.E. It has also been established that accused Brij Pal Singh dishonestly and fraudulently passed bills of Rs.1,11,457/, Rs. 1,03,813 and Rs.1,05,454/ in favour of accused contractor Ajay Verma in respect of work orders Nos.213, 308 and 309 respectively. Thus, it has been established that accused MCD Engineers Brij Pal Singh, S.S. Arya, P.K. Sharma, A.K.Jain and Arun Kumar criminally conspired with accused contractor Ajay Verma and in furtherance of conspiracy, accused MCD Engineers gave false certificates to the effect that signboards installed by accused contractor were as per specifications of NIT. Thus, accused MCD Engineer by misusing AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 55 of 63 their official position showed favour to accused Ajay Verma and an attempt has been made by them to cheat the Government Exchequer. 70 It has also been established that accused Deepak Goel, proprietor of M/s Darshan Constructions was awarded work order No.552 for providing and fixing signboards of type IX sheet at various places at Bhajanpura in Ward No.94. It has also been established that accused G.P.Sharma J.E., accused Anil KumarA.E. And accused Brij Pal SinghE.E. were responsible for test checking of the work done by the accused contractor Deepak Goel. From the perusal of Measurement Book, it has been established that accused G.P. Sharma gave false certificate to the effect that the work done by accused Deepak Goel was as per NIT conditions whereas report Ex.PW7/E of CRRI Expert shows that the signboards installed by accused Deepak Goel were not made of type IX sheet which was the requirement of NIT which was also signed by accused Anil Kumar and Brij Pal Singh being A.E. and E.E. It has also been established that accused Brij Pal Singh dishonestly and fraudulently passed bill of Rs.1,41,850/ in favour of accused contractor Deepak Goel and payment thereof was made to him. The statement of bank account of accused of accused Deepak Goel also proves that he got the cheque AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 56 of 63 encashed thereby receiving payment from MCD against work order No.552. Thus, it has been established that accused MCD Engineers Brij Pal Singh, Anil Kumar and G.P. Sharma criminally conspired with accused contractor Deepak Goel and in furtherance of conspiracy, accused MCD Engineers gave false certificate to the effect that signboards installed by accused Deepak Goel were as per specifications of NIT. Thus, accused MCD Engineers by misusing their official position showed favour to accused Deepak Goel and cheated the Government Exchequer for a sum of Rs.1,41,850/. 71 Consequently, accused Brij Pal Singh, Anil Kumar, P.K. Sharma, S.S. Arya, G.P. Sharma, Ramkesh Meena, Arun Kumar and A.K. Jain are hereby held guilty for commission of offence punishable under Section 15 read with Section 13(1)(d) read with Section 13(2) of the P.C. Act as they misused their official position in showing favour to accused Subhash Chand and Ajay Verma in respect of work order Nos.172, 261, 213, 308 and 309.

72 Accused Brij Pal Singh, Anil Kumar, P.K. Sharma, S.S. Arya, G.P. Sharma, Ramkesh Meena, Arun Kumar, A.K. Jain, Subhash Chand and Ajay Verma are hereby held guilty for commission of offence punishable under Section 120B IPC and under AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 57 of 63 Section 420/511 of IPC in respect of work order Nos.172, 261, 213, 308 and 309.

73 Accused Brij Pal Singh, Anil Kumar and G.P. Sharma are also held guilty for commission of offence punishable under Section 13(2) read with Section 13(1)(d) of P.C. Act as they showed undue favour to accused Deepak Goel respect of work order No.552. Accused Brij Pal Singh, Anil Kumar, G.P. Sharma and Deepak Goel are also held guilty for the offence punishable under Section 420 read with Section 120B IPC as they criminally conspired with one another and caused pecuniary loss of Rs.1,41,850/ to MCD and corresponding gains to themselves.

Announced in the open Court                                              ( P.S. TEJI )
Dated: 17.05.2012                                            District Judge & ASJ, I/C (East)
                                                                    Special Judge (CBI)
                                                              Karkardooma Courts : Delhi




AC No.12/2006                      CBI Vs. Brij Pal Singh etc.               Page 58 of 63 
     IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE &

ADDL. SESSIONS JUDGE, I/C (EAST) cum SPECIAL JUDGE (CBI), KARKARDOOMA COURTS, DELHI.

AC No.12/2006 Unique Case ID No.02402R0579012006 FIR No.RC4(A)/05ACUVIII U/s 120B read with 420, 420/511 IPC and Section 15, 13(2) r/w Sec.13(1)(d) of PC Act, 1988.

CBI                 Versus             Brij Pal Singh etc.

ORDER ON SENTENCE

I have heard ld. Counsel for the convicts as well as learned PP for the CBI on the quantum of sentence.

2 On behalf of convict Brij Pal Singh, it has been submitted that he is not a previous convict. He is having wife and three unmarried sons along with old aged mother of 80 years. Entire family is dependent upon him. It is further submitted that convict is suffering from chronic lung problem. He is having clean service record. On behalf of convicts Anil Kumar, S.S. Arya and P.K. Sharma, it is submitted that they are not the previous convicts. They are having school going children and old aged parents. They are AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 59 of 63 having unblemished service record. On behalf of accused G.P. Sharma, it is submitted that he is having problem of slip disc. He is having two school going children. Due to imprisonment, education of his children would suffer. On behalf of convict Ramkesh Meena, it is submitted that he is having two school going children studying in class 8th and 10th. He is suffering from hyper tension and also having old aged parents to look after. On behalf of convict Arun Kumar, it is submitted that he is suffering from Blood Pressure since 2000 and is on daily dose of medicines. He is having two school going children studying in class 5th and 7th. He is also having old aged parents. 3 On behalf of convict A.K. Jain, it is submitted that he is having one daughter and old aged ailing mother. There is no previous conviction of convict in any other case. On behalf of convicts Deepak Goel, Ajay Verma and Subhash, it is submitted that it was their first contract and was in technical in nature. There is no previous criminal background of convicts and they were doing their business honestly. It is further submitted that convicts are the sole bread earners of their family and their family is fully dependent on them. It is further submitted that if custodial sentence is awarded to convicts, it would play havoc in their life. It is prayed that a lenient AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 60 of 63 view may be taken while awarding sentence to them. 4 The learned PP for the CBI has submitted that the convicts MCD Engineers misused their official positions and showed favour to convict contractors. Criminal conspiracy between convicts has duly been established and in furtherance thereof, convicts cheated the MCD as well as an attempt has been made by them to cheat the government exchequer. It is further argued that the acts committed by the convicts have potential to infect the entire society. He has further submitted that the convicts may be awarded the maximum punishment prescribed under the law.

5 It is important to note that corruption by public servants has become a gigantic problem. It has spread everywhere and no facet of public activity has been left unaffected by the sting of corruption. It has deep and pervasive impact on the functioning of the entire country and large scale corruption retards the national building activities and everyone has to suffer on that count. Corruption is corroding our country like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service and demoralizing the honest officers. The efficiency in public service would improve only when the public servant devotes AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 61 of 63 his sincere attention and does his duty diligently, truthfully, honestly and devotes himself assiduously to the performance of his duty to the post.

6 Considering the circumstances under which the offence was committed, convicts are sentenced as under:

(i)Convicts Brij Pal Singh, Anil Kumar, G.P. Sharma and Deepak Goel are awarded sentence of three years rigorous imprisonment with fine of Rs.25,000/ each for the offence punishable under Section 420 IPC. In default of payment of fine, convicts shall further undergo simple imprisonment for six months.

(ii)Convicts Brij Pal Singh, Anil Kumar and G.P. Sharma are awarded sentence of two years rigorous imprisonment with fine of Rs.25,000/ each for the offence punishable under Section 13(2) read with Section 13(1)(d) of P.C. Act. In default of payment of fine, convicts shall further undergo simple imprisonment for six months.

(iii)Convicts Brij Pal Singh, Anil Kumar, P.K. Sharma, S.S. Arya, G.P. Sharma, Ramkesh Meena, Arun Kumar, A.K. Jain, Subhash Chand and Ajay Verma are awarded sentence of three years rigorous imprisonment with fine of Rs. 25,000/ each for the offence punishable under Section 420/511 IPC. In default of payment of fine, convicts shall further undergo simple imprisonment for six months. AC No.12/2006 CBI Vs. Brij Pal Singh etc. Page 62 of 63

(iv)Convicts Brij Pal Singh, Anil Kumar, P.K. Sharma, S.S. Arya, G.P. Sharma, Ramkesh Meena, Arun Kumar, A.K. Jain, Subhash Chand and Ajay Verma are awarded sentence of two years rigorous imprisonment with fine of Rs.25,000/ each for the offence punishable under Section 15 r/w Sec. 13(1)(d) r/w Sec. 13(2) of P.C. Act. In default of payment of fine, convicts shall further undergo simple imprisonment for six months.

(v)Convicts Brij Pal Singh, Anil Kumar, P.K. Sharma, S.S. Arya, G.P. Sharma, Ramkesh Meena, Arun Kumar, A.K. Jain, Subhash Chand, Ajay Verma and Deepak Goel are awarded sentence of three years rigorous imprisonment with fine of Rs.25,000/ each for the offence punishable under Section 120B IPC. In default of payment of fine, convicts shall further undergo simple imprisonment for six months. 7 All the sentences shall run concurrently. The convicts shall be entitled for the benefit of the provisions of Section 428 Cr.PC. Copy of the judgment and order on sentence be given free of cost to the convicts.

File be consigned to record room.

Announced in the open Court                                              ( P.S. TEJI )
Dated: 22.05.2012                                            District Judge & ASJ, I/C (East)
                                                                    Special Judge (CBI)
                                                              Karkardooma Courts : Delhi

AC No.12/2006                      CBI Vs. Brij Pal Singh etc.               Page 63 of 63

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