Delhi District Court
(C.B.I. vs . Vijay Pal Shokeen & Ors.) on 29 May, 2014
Judgement in the matter of:-
CC No.:58 / 11.
(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.)
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Dated : 29 May 2014.
: IN THE COURT OF:
: SH.KANWAL JEET ARORA :
SPECIAL JUDGE, CBI (P.C.ACT), DWARKA COURTS,
NEW DELHI.
In the matter of :
CBI VS. VIJAY PAL SHOKEEN & ORS.
CC NO.: 58/11
Case No.: R.C4(E)/ 2001/EOW1/DLI
Branch SPE/CBI dated 02.03.2001
U/s : 120 B, 420, 468, 471 IPC &
Section 13 (2) read with Section 13(1) (d)
of Prevention of Corruption Act, 1988.
In the matter of:
CENTRAL BUREAU OF
INVESTIGATIONS (C.B.I)
...[Through Sh.Harish Kumar Gupta,
Ld.Special Public Prosecutor for CBI.]
v e r s u s
(i) VIJAY PAL SHOKEEN,
S/o.: Late Sh.Bhim Singh,
R/o.: 255, Mangol Pur Kalan,
Delhi110085.
... [Through Sh.S.P.Aggarwal, Advocate]
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(ii) KARTAR SINGH SHOKEEN,
S/o.: Sh.Pannalal,
R/o.: 59, Rajdhani Enclave,
Pitampura, Delhi34.
... [Through Sh.R.S.Jamuar, Advocate]
(iii) MUNISH GULIANI,
S/o.: Late Sh.B.D.Guliani,
R/o.: NH5/128, Railway Road,
Opp.Banke Bihari Mandir,
Faridabad, Haryana.
... [Through Sh.O.P.Saxena and
Sh.Y.P.Sirohi, Advocates]
(iv) DINESH YADAV,
S/o.: Sh.J.S.Yadav,
R/o.:19C, Vijay Mandal Enclave,
New Delhi - 110016.
... [Through Sh.Hariharan Ld.Senior
Advocate along with Sh.Anil Kumar, Advocate]
(v) S.C.CHELLANI,
S/o.: Late Sh.Roop Chand,
R/o.:74, Munirka Enclave, N.Delhi.
... [Through Sh.Jagjeet Singh, Advocate
along with Sh.H.L.Chopra, Advocate]
(vi) BHUPINDER KUMAR,
S/o.: Sh.Om Prakash Verma,
R/o.: Flat No.226, United Apartments,
Plot No.34, Sector4, Dwarka, N.Delhi.
... [Through Sh.Jagjeet Singh, Advocate
along with Sh.H.L.Chopra, Advocate]
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Dated : 29 May 2014.
(vii) ABHAY KUMAR,
S/o.: Sh.Ram Bahadur Jaiswal,
R/o.: Flat no.: 69 E, PocketK,
Sheikh Sarai, PhaseII, N.Delhi17.
... [Through Sh.Jagjeet Singh, Advocate
along with Sh.H.L.Chopra, Advocate]
(viii) OM PRAKASH SAROHA,
S/o.: Sh.Ratan Singh,
R/o.: ME35, Pitampura, N.Delhi.
... [Through Sh.S.P.Aggarwal, Advocate]
(ix) P.S.CHAUHAN,
S/o.: Late Sh.Nain Singh,
R/o.: Village Riwajpur,PO Khari Kalan
District Faridabad, Haryana.
... [Through Sh.S.P.Aggarwal, Advocate]
... ACCUSED PERSONS.
Date of Institution : 28.11.2002.
Date on which the case was : 15.11.2011.
received on transfer in this court
Date of reserving judgement : 28.04.2014.
Date of pronouncement : 29.05.2014.
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Judgement in the matter of:-
CC No.:58 / 11.
(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.)
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Dated : 29 May 2014.
: J U D G E M E N T :
1. The precursor of the present case is a written
complaint bearing no. Engg./Estt/HO/99/3969 dated 07.10.1999
of Sh.S.K.Jain, Additional Commissioner (Engineering), MCD.
On the basis of this complaint, a preliminary enquiry bearing
number PEI (E)/99EOWI/DLI on 09.11.1999 was registered
with EOWI, Branch of CBI. After conclusion of the
preliminary enquiry, FIR bearing Number
RC4(E)/2001/EOW1/DLI was registered on 02.03.2001 and
investigated.
2. On conclusion of the investigations, CBI had
filed the present charge sheet against accused Vijay Pal
Shokeen, partner of M/s Vijay & Company, on the allegations
that he along with his partner Kartar Singh Shokeen and one
Munish Guliani, had entered into a criminal conspiracy with
S.C.Chellani Assistant Engineer, Bhupinder Kumar - Junior
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Engineer (Plant), Abhay Kumar - Junior Engineer (Site),
Dinesh Yadav - Executive Engineer, Om Prakash Saroha -
Assistant Chief Accountant and P.S.Chauhan - UDC, all
officers and officials respectively of Division XXIV, MCD,
Delhi, the object of which was to cheat MCD by getting the
payment released against the work orders awarded by MCD to
this firm, on the basis of forged and fake invoices by using them
as genuine and valuable securities, knowing or having reasons
to believe them to be forged ones. It is alleged that the public
servants criminally misconducted themselves and as members
of the conspiracy, had facilitated accused Vijay Pal Shokeen
and Kartar Singh Shokeen to submit false and bogus invoices
thereby claiming procurement of bitumen from approved oil
refineries for execution of the work order, thereby inducing
MCD to release payment of Rs.3,60,020/ to the contractor and
thus causing pecuniary advantage to him and corresponding
wrongful loss to MCD.
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3. Before proceeding further, to delve upon the
matter, it is pertinent to have facts interse as emanating from
the charge sheet, which led to registration of FIR and filing of
the charge sheet by CBI in court for trial of the accused
persons. The same are as under:
FACTUAL MATRIX:
4. It is alleged that during the year 199798, the
work of dense carpeting of road from M.B. Road to Jawahar
Park pertaining to Work Order No. EEXXIV/SZ/9899/134
dated 27.07.1998 was awarded to M/s Vijay & Company,
under signatures of the then Executive Engineer Ahmed
Sayeed.
5. It has been alleged that Vijay Pal Shokeen and
Kartar Singh Shokeen being partners of M/s Vijay & Company,
on being awarded these work orders had entered into an
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agreement with MCD, which on behalf of MCD was signed by
Dinesh Yadav, Executive Engineer and Kartar Singh Shokeen,
partner of M/s Vijay & Company, whereby this company had
agreed to carry out the said works in accordance with MCD
specifications and Notice Inviting Tender as well as Work
Order Conditions. It is alleged that as per these conditions, the
contractor was required to procure fresh supply of bulk
bitumen from Bharat Petroleum, Indian Oil Corporation
Limited or Hindustan Petroleum and was required to furnish
original receipts, as a proof for purchase of bitumen.
6. It has further been alleged that the contractor
as per office order no. CEIII(14) EA/87/225 dated 09.06.1987,
Notice Inviting Tenders, Work Order Conditions and
Agreement was required to carry on the work of dense
carpeting of roads and was further required to submit following
documents for claiming payments:
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(i) Cash receipts indicating the name of work
for which bitumen was purchased ;
(ii) Invoices showing delivery of material ;
(iii) Gate Passes of Refinery ;
(iv) Terminal Tax Receipts of UP, Haryana
Border ;
7. It is alleged that accused Vijay Pal Shokeen
and Kartar Singh Shokeen, being partners of M/s Vijay &
Company, had entered into a criminal conspiracy with the
officials of MCD Delhi namely S.C.Chellani Assistant
Engineer, Bhupinder Kumar - Junior Engineer (Plant), Abhay
Kumar - Junior Engineer (Site), Dinesh Yadav - Executive
Engineer, Om Prakash Saroha - Assistant Chief Accountant
and P.S.Chauhan - UDC, all officers and officials posted in
Division XXIV, MCD, Delhi, during the year 1997 - 98, the
object of which was to cheat MCD, by submitting bogus / fake
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invoices purportedly issued by Indian Oil Corporation Limited
Mathura, thereby claiming to have procured bitumen to
complete the work assigned to M/s Vijay Pal & Company, vide
above mentioned work order and to induce MCD to release
payment to the extent of Rs.3,60,020/ and to cause wrongful
loss to it.
8. It is alleged that Hot Mix Plant of the
Contractor was situated in Chhajarsi, and Bhupinder Kumar
being JE (Plant) was posted at plant of the Contractor for
ensuring procurement of fresh bitumen by the contractor from
approved oil agencies and for receiving documents like cash
receipts, invoices, gate passes and terminal tax receipts, as per
Notice Inviting Tender Conditions and also for preparation of
"hot mix", test of different material, dispatch of Hot Mix and
also for maintaining proper records.
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Dated : 29 May 2014.
9. It is alleged that accused Bhupinder Kumar,
Junior Engineer (Plant) had received invoice bearing no.
010246 dated 28.07.1998 in work order no.134 issued in
favor of M/s Vijay Pal and Company. It is alleged that another
invoice bearing no. 010057 submitted by the contractor with
respect to Work Order bearing no.133 was signed by accused
Abhay Kumar JE (Site) and counter signed by accused
S.C.Chellani, Assistant Engineer.
10. It is alleged that during investigations, it was
revealed that both these invoices submitted by accused Kartar
Singh Shokeen to MCD were forged and were not issued by
Indian Oil Corporation, Mathura.
11. It is alleged that during investigations, it was
revealed that against the serial number of these invoices,
actual invoices were issued by Indian Oil Corporation Limited,
to some other agencies and in a particular financial year the
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serial number of invoices never used to be repeated.
12. It is alleged that the Junior Engineers
deliberately accepted the bogus invoices, in conspiracy with
each other as well as the contractor and facilitated accused
Vijay Pal Shokeen & Kartar Singh Shokeen to obtain payment
of Rs.3,60,020/ from Bridge Division XXIV, MCD, Delhi in
favor of the firm M/s Vijay Pal & Company.
13. It is alleged that for release of bitumen from
Indian Oil Corporation, recommendatory letter from Executive
Engineer to IOCL is required. It is alleged that in the present
case, no such letter was issued by Executive Engineer and
being part of the conspiracy, Executive Engineer deliberately
overlooked these violations. It is alleged that the vehicles,
registration numbers of which were mentioned in the invoices,
submitted by accused Vijay Pal Shokeen with MCD, were not
used for transportation of bitumen from Indian Oil Corporation
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Limited Mathura to Hot Mix Plant of contractor at Chhajarsi.
It has further been alleged that contractor was under an
obligation to fulfill other conditions of NIT and was required
to submit gate pass, terminal tax receipts and cash receipts
and these conditions were not adhered to in the present
case.
14. It is alleged that accused Engineers had
prepared Bitumen Issue Registers from the details mentioned
in the invoices which were found to be forged and these entries
were signed by them, contractor as well as other coaccused
S.C.Chellani, Assistant Engineer and Dinesh Yadav, Executive
Engineer. It is alleged that the forged invoices were signed by
Bhupinder Kumar, JE(Plant) & Abhay Kumar, JE (Site)
& countersigned by S.C.Chellani, Assistant Engineer which
were used by Contractor to obtain payments. It is alleged that
accused Abhay Kumar, being JE (Site), had also signed the
Measurement Books, authenticating the receipt of bitumen on
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the basis of bogus invoice being part of the larger conspiracy. It
is alleged that the malafide intentions of the contractor were
there, from the beginning, of not complying with the
conditions of NIT for which he colluded with coaccused
persons, who facilitated him in getting his payment released,
bills of which were prepared by O.P.Saroha Assistant Chief
Accountant and P.S.Chauhan UDC, overlooking the non
fulfillment of NIT Conditions and on the basis of bogus
invoices, knowing the same to be forged ones.
15. It is alleged that the contractor had procured
the bitumen used for execution of work order through
unauthorized channels in conspiracy with one Munish Guliani,
Proprietor of M/s Super Bulk Carriers, Faridabad. It is alleged
that the truck / tankers owned by Munish Guliani were
weighed in proximity of the contractor's Hot Mix plant during
relevant time and date. It is deposed that employees of the
contractor had confirmed that Munish Guliani was paid
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approximately Rs.2.5 lacs for supply of bitumen.
16. It is alleged that accused Vijay Pal Shokeen
claimed payment for the work orders through bills amounting
to Rs.3,60,020/ which were certified by S.C.Chellani, Assistant
Engineer, accused O.P.Saroha, Assistant Chief Accountant and
P.S.Chauhan UDC, checked the bills and forwarded the same
for payment, which were passed by coaccused Dinesh Yadav,
Executive Engineer.
17. It is alleged that all the accused persons in
order to achieve the object of conspiracy, had performed their
respective roles and the public servants misconducted
themselves, so as to cause pecuniary advantage to accused
Vijay Pal Shokeen and Kartar Singh Shokeen, as payment of
Rs.3,60,020/ was released to accused firm through account
payees cheques which were credited in the account of the firm
of the contractor with M/s Nainital Bank Ltd., Pitampura. It is
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alleged that on conclusion of investigations, the report was
submitted to the competent authority for necessary sanction for
prosecution against the public servants, which was granted.
18. It is further alleged that officials of Municipal
Corporation of Delhi being Public servants had criminally
misconducted themselves by abusing their official position as
public servants in order to cause pecuniary advantage to Vijay
Pal Shokeen and Kartar Singh Shokeen being partners of M/s
Vijay and Company.
19. It is alleged that all the accused persons have
committed offences punishable under Section 120B read
with Section 420, 471 read with 468 IPC and 13 (2)
read with 13 (1) (d) of PC Act and also the substantive
offences.
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20. Whereafter, the present charge sheet was filed
in court against all the accused persons for proceeding against
them, as per law.
COGNIZANCE OF OFFENCE:
21. Pursuant to filing of charge sheet and after
perusal of the same in the light of supporting documents,
Ld.Predecessor of this court took cognizance of offence and
accused persons were accordingly summoned.
22. In compliance to the provisions of Section 207
Cr.P.C, the accused persons were supplied with the copies of
charge sheet and documents relied upon by the prosecution.
CHARGE:
23. Ld.Predecessor of this Court after hearing
Ld.Defence Counsels for all the accused persons passed orders
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on the point of charge on 07.03.2008 forming an opinion that
prima facie case for offences punishable under section 120 B
IPC read with section 420, 471 read with 468 IPC and
section 13 (2) read with section 13(1) (d) of Prevention of
Corruption Act have been culled out against all the accused
persons. As per said order Ld.Predecessor of this Court had
further opined that substantive charges for offences u/s 420 /
471 read with 468 IPC are made out against accused no.1, 2
and 3. It is also held that substantive charge for offence under
section 13(2) r/w section 13(1)(d) for Prevention of
Corruption Act was also made out from prima facie point of
view against accused no. 4 to 9, the public servants, on the
basis of material on record.
24. Vide orders dated 25.03.2008, requisite charge
for offence under section 120B IPC r/w section 420, 471
read with 468 IPC and under section 13(2) read with
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section 13 (1) (d) of Prevention of Corruption Act, 1988
against all the accused persons was framed.
25. Separate charge for substantive offence under
section 420, 471 read with section 468 IPC was framed
against accused no. 1 Vijay Pal Shokeen, accused no. 2
Kartar Singh Shokeen and accused no. 3 Munish
Guliani.
26. Separate charges for substantive offence u/s
13(2) r/w section 13(1) (d) of P.C.Act was framed against
accused no.4 to 9, the public servants.
27. The requisite charges framed against all the
accused persons were read over to them, to which they pleaded
not guilty and all of them claimed trial.
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Dated : 29 May 2014.
PROSECUTION EVIDENCE:
28. Prosecution was thereafter called upon to
substantiate its case by examining their witnesses, listed in the
list of witnesses, filed along with the charge sheet. Availing the
given opportunities, CBI had examined 36 witnesses.
29. The witnesses so examined by the prosecution
to substantiate its case can be broadly categorized in Eight
Categories:
30. First Category is of material witnesses which
consists of the witnesses from Municipal Corporation of Delhi
(MCD) who have deposed about the complaint, the procedure
with respect to Notice Inviting Tender, Work Order conditions,
Agreement, submission of invoices by the contractor,
preparation of the documents i.e. MB Book & other relevant
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documents pertaining to execution of work by the concerned
engineers of MCD. The witnesses of this category had deposed
regarding identification of signatures of the accused persons on
the records prepared by them during execution of these work
orders, having worked with them. PW16, who is a witness in
this category proved his letter Ex. PW16/A written to Professor
Vijay Kumar Malhotra, Member of Parliament and in response
thereof, he proved the letter of Professor Vijay Kumar Malhotra
Ex. PW16/B to Engineer in Chief, MCD thereby requesting for
laying down of the road in the concerned area. The witnesses
of this category had further deposed about submission of these
records to the investigating officer during the course of
investigations. This category comprises of :
(i) PW12 Sh. S.K.Jain, Asstt. Commissioner, MCD, the
complainant ;
(ii) PW6 Sh. Hari Dev Sheekri, Chief Engineer, MCD ;
(iii) PW5 Sh. Deepak Mukhopadhya, Engineer in Chief, MCD;
(iv) PW4 Sh. Brahmanand, Technical Officer, MCD ;
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(v) PW14 Sh. M.P.Khatana, UDC, MCD ;
(vi) PW15 Sh. P.K.Khandelwal, Executive Engineer, MCD ;
(vii) PW16 Sh. Anil Kumar Goyal, Municipal Counselor, MCD ;
(viii) PW22 Sh. Devender Singh, JE, Municipal Council, MCD ;
31. Second Category consists of witnesses
examined by the prosecution with respect to the officers of
Indian Oil Corporation Limited (IOCL). This category
comprises of:
(i) PW7 Sh. M.S.Rawat, S & D Division, IOCL, Mathura;
(ii) PW8 Sh. Nitin Bhatnagar, S & D Division, IOCL, Mathura
(iii)PW9 Sh. Khyali Singh Chaudhary, Manager
(Engineering), S & D Division, IOCL, Mathura ;
(iv) PW10 Sh. M.C.Asija, CIP, IOCL ;
(v) PW20 Sh. Ravinder Kumar Batra, Dy. Manager, BPCL,
Mathura ;
(vi) PW21 Smt. S.C.Banerjee, Sr. Consumer Manager,
Marketing Division, IOCL ;
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(vii) PW27 Sh. Kali Prasad, Assistant Manager, IOCL,
Mathura ;
(viii)PW30 Sh. Sameer Garg, Manager Finance, IOCL,
Marketing Division, Mathura ;
32. The witnesses of this category deposed about
the procedure by which bitumen used to be supplied by IOCL
and the procedure regarding issuance of invoices. These
witnesses further deposed after going through the invoices in
question ie. Ex. PW7/A & Ex. PW24/D, that they are forged
ones and were never issued by S & D Division of IOCL.
Further, they deposed regarding the genuine invoices issued by
IOCL vide invoice Ex. PW9/DA & sales summary Ex. PW9/A,
against those very serial numbers. These witnesses further
deposed that signatures on the forged invoices are not their's.
The witnesses of this category further deposed regarding
issuance of the delivery order, on the basis of which bitumen is
released to the contractor or his representative by the terminal
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against invoices. Further, the witnesses of this category
deposed regarding submission of records to CBI during
investigations.
33. Third Category consists of witness examined
by the prosecution from Transport Authority. This category
comprise of :
(i) PW26 Sh. Gyan Chand, Dealing Clerk, Office of MLO,
Headquarter Rajpura Transport Authority ;
34. Fourth Category of witnesses are the
witnesses from the banks where MCD and the contractor were
maintaining their bank accounts. The witnesses under this
category are :
(i) PW1 Sh. Manoj Sharma ;
(ii)PW3 Sh. Om Prakash Dadool ;
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35. The witnesses under this category deposed
regarding the statement of account of M/s Vijay & Company,
deposit of cheque issued by MCD in favour of this firm and
relevant credit entry thereof in the account of accused firm.
The other witness in this category deposed with respect to the
statement of account of MCD Ex. PW3/A and the relevant
debit entry in this statement of account pursuant to cheque Ex.
PW3/B issued by MCD in favour of the accused firm.
36. Fifth Category of witnesses are those who
were joined by the Investigating Officer during investigations
for taking specimen signatures of the accused persons. The
witnesses under this category are :
(i) PW31 Sh. V.D.Mathur ;
(ii) PW34 Sh. Dinesh Pradhan ;
(iii)PW35 Sh. Babu Lal ; &
(iv) PW36 Sh. Kanchid Singh
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37. Sixth Category of witnesses are of
miscellaneous witnesses, who were examined and interrogated
by the Investigating Officer during investigations. The
witnesses under this category comprises of :
(i) PW2 Sh. Chhotey Lal ;
(ii) PW17 Sh. Anil Kumar ;
(iii) PW18 Sh. Raj Kumar Sharma ;
(iv)PW19 Sh. Arihant Kumar Jain ;
(v)PW28 Sh. Om Prakash ;
(vi) PW29 Sh. Amarjeet Singh ;
38. The witnesses under this category are the ones
who were working for the contractor i.e. M/s Vijay & Company.
Apart from that this category include the witnesses examined
from other organizations who have deposed to have received
bitumen from IOCL against invoices Ex. PW2/A & Ex.
PW22/A through the tanker bearing registration no.
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HR29C2675 on 30.07.1998 and through tanker bearing
registration no. UP860195 on 25.07.1998. PW19 deposed to
have received bitumen through tanker bearing no.
HR38DG4625 on 22.07.1998 and through HR142725 on
18.07.1998 & 24.07.1998.
39. Seventh Category of the witnesses examined
by the prosecution were those who had given Sanction for
prosecution of the accused public servants. This category
includes :
(i) PW11 Sh V.S.Sharma; Additional Commissioner, MCD:
who had given sanction for prosecution with respect to
accused P.S.Chauhan, Abhay Kumar, Bhupinder Kumar
and S.C.Chellani Ex. PW11/A to Ex. PW11/D respectively ;
(ii) PW13 Sh. Rakesh Mehta, State Election Commissioner,
MCD, Delhi, who had given sanction for prosecution with
respect to accused O.P.Saroha & Dinesh Yadav Ex.
PW13/A & Ex. PW13/B respectively;
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40. Eighth Category of witnesses includes those
who remained associated with the investigations of the
present case in one form or the other, including the scientific
expert and the Investigating officers. This category consists
of :
(i) PW23 Sh. B.M.Pandit, Inspector, CBI, Investigating
Officer ;
(ii) PW24 Sh. S.L.Mukhi, Principal Scientific Officer, CFSL,
CBI ;
(iii) PW25 Dr. B.A.Vaid, Assistant Government Examiner,
GEQD ;
(iv)PW32 Sh.S.K.Kashyap, Dy. S.P., CBI, conducted
Preliminary Inquiry .
(v) PW33 Sh. P.K.Khanna, Inspector, CBI, Investigating
Officer.
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41. The detail deposition of the witnesses is not
being adverted to, as the same shall be referred hereinafter
while dealing with the necessary ingredients of the offence,
with which accused have been charged, visavis the rival
contentions advanced by Ld.Special PP for CBI, as well as by
Ld.Defence Counsels for the accused persons.
42. All the prosecution witnesses were cross
examined in detail by Sh.R.S.Jamuar, Sh.S.P.Aggarwal,
Sh.Y.P.Sirohi and Sh.Jagjeet Singh, Advocates,
Ld.Defence Counsels for the accused persons. The cross
examination of the witnesses is not being mentioned for the
sake of brevity, but the same and material portion thereof,
more particularly, the one referred to during the course of
arguments, shall be adverted to hereinafter, while appreciating
the legal and factual issues raised on behalf of the accused,
alongside appreciation of evidence in entirety.
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STATEMENT OF ACCUSED:
43. Separate statements of all the accused persons
were thereafter recorded under section 313 Cr.P.C., wherein
the prosecution evidence against them was put, which they
denied.
44. On being asked, all the accused persons
except accused no.1 Vijay Pal Shokeen, accused no.8
O.P.Saroha and accused no.9 P.S.Chauhan, wished to examine
witnesses in their defence. They were permitted to do so.
DEFENCE EVIDENCE:
45. Availing the given opportunities, accused no.4
to accused no.7 i.e. accused Dinesh Yadav, S.C.Chellani,
Bhupinder Kumar and Abhay Kumar had examined three
witnesses in their defence. Sh.Ram Dass, Ahlmad posted in
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the court of Sh.Rakesh Syal, Special Judge, CBI P.C.Act,
Dwarka Courts was examined as DW1. Sh.Jagdish Dhyani,
Assistant Engineer (Planning) South Delhi MCD Office
appeared in the witness box as DW2. Sh.P.K.Jain, retired
Superintendent Engineer from MCD was examined as DW3.
46. On behalf of accused no. 2 Kartar Singh
Shokeen, one witness namely Sh.A.K.Sharma, Inspector,
CBI, Anti Corruption Branch, appeared in the witness box
as DW4.
47. Accused no.3 Munish Guliani sought
permission to examine himself u/s 315 Cr.P.C, which was
granted to him and he examined himself as DW5.
48. As accused no.1 Vijay Pal Shokeen, accused no.
8 O.P.Saroha and accused no.9 P.S.Chauhan, despite grant of
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opportunity, did not wish to examine any witness in their
defence. Thus, defence evidence qua them was closed.
49. DW1 Sh.Ram Dass, Ahlmad posted in the
court of Sh.Rakesh Syal, Ld.Special Judge, CBI (P.C.Act)
Dwarka Courts, produced a document Mark DX from the file
titled as "CBI vs. Satyapal Gupta" pending in the said Court
bearing CC No.11/12. This witness was not at all cross
examined on behalf of the prosecution.
50. DW2 Sh.Jagdish Dayani, Assistant
Engineer (Planning), SDMC Office, New Delhi. This
witness proved the file titled "JE's Representation Committee"
containing circular dated 24.05.2001 issued by MCD as
Ex.DW.2/A. On being cross examined by Ld.PP for CBI, this
witness stated that the representation of Junior Engineers
addressed to Engineer in Chief dated 23.04.2001 is Ex.DW.
2/PX.
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51. DW3 Sh.P.K.Jain, Retired Superintendent
Engineer, MCD proved that the circular dated 24.05.2001
Ex.DW.2/A bears his signatures. On being cross examined on
behalf of Ld.Prosecutor, this witness admitted that this circular
was issued with prospective effect.
52. Sh.A.K.Sharma, Inspector, Anti
Corruption Branch CBI, was examined as DW4, who
proved the certified copy of FIR no. RC1201201380010 dated
19.06.2013 as Ex.DW.4/A. This witness stated that the said
case was assigned to him for investigations which he is still
carrying on.
53. DW5 Munish Guliani appeared in the
witness box u/s 315 Cr.PC. He deposed that he was made
distributor of IOCL vide letter dated 13.11.1998 Ex. PW21/DY.
He deposed that in the year 199899, he had supplied a tanker
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of bitumen to M/s Vijay & Company under the name of his
distributorship M/s Super Bulk Carrier and received the
payment through cheque. On being cross examined by Ld.PP
for CBI, accused Munish Guliani denied the suggestion that he
had procured the bitumen in an unauthorized manner and
supplied it to M/s Vijay & Company.
ARGUMENTS ON BEHALF OF CBI:
54. It is contended by Ld.Special PP for CBI
relying upon the deposition of the witnesses examined by them
during the course of trial, that prosecution has been able to
establish its case against the accused persons.
55. It is submitted by Ld. Public Prosecutor that
accused public servants had abused their official position and
thus criminally misconducted themselves, so as to cause
pecuniary advantage to the contractor and corresponding
wrongful loss to MCD. He further contended that the accused
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public servants by abusing their official position had entered
into a criminal conspiracy with the contractor and facilitated
him to submit forged invoices as genuine ones, knowing or
having reasons to believe the same to be forged ones. He
contended that all the accused persons be accordingly convicted
under relevant provisions of law.
DEFENCE ARGUMENTS :
56. To defend the accused persons,
Sh.Hariharan, Senior Advocate, Sh.R.S.Jamuar,
Sh.S.P.Aggarwal, Sh. H.L.Chopra and Sh.O.P.Saxena,
Advocates, Ld.Defence Counsels had led threedimensional
attack to the prosecution case.
57. Ld.Defence Counsels opened their arguments
raising certain legal contentions in an attempt to demolish
the prosecution case. Second dimensional attack was based on
mixed questions of law and facts. Whereas, the third
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dimension of their arguments, revolved around the factual
aspects as has come up on record, on the basis of oral and
documentary evidence, during the course of trial.
58. Ld.Defence Counsels had raised following
contentions on LEGAL ISSUES :
(i) Wrong invocation of Section 13(1) (d) of P.C.Act : As
there are no allegations of payment of any illegal gratification
by the contractor to public servants, therefore, the provisions
of Section 13(1) (d) of Prevention of Corruption Act, cannot be
invoked.
(ii) Lack of Jurisdiction of CBI : As Delhi Municipal
Corporation Act 1957 is a complete Code in itself, therefore,
CBI did not have any jurisdiction to investigate the present
case, therefore, the proceedings should be stopped at this stage
itself, and the evidence on record be discarded.
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(iii) Wrong registration of preliminary inquiry : On the
basis of the Initial Complaint of Sh.S.K.Jain, Preliminary
Inquiry could not have been registered by CBI. Registration of
preliminary inquiry, vitiates the whole proceedings.
(iv) Noncompliance of Section 157 Cr.P.C : Provisions of
Section 157 Cr.P.C were not complied with by the investigating
agency, therefore, all the accused persons should be
exonerated.
59. Second dimensional attack of Ld.Defence
Counsels was on mixed questions of "Law and Facts". The
same was with respect to the sanction for prosecution granted
against the public servants. The arguments advanced on this
aspect were twofold ie. :
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(i) Incompetence of Sanctioning Authority: The authority
which had passed the sanction orders qua the public servants
was not competent to pass the same, therefore, the sanction
orders are bad in law.
(ii) Nonapplication of mind : Even if it is assumed that the
sanctioning authority was competent to pass the sanction
orders, the same were passed in a mechanical manner and
without application of mind as it depicts factually incorrect
statements.
60. It is contended that as the sanction orders
were bad in law, therefore, the whole proceedings have become
nonest.
61. Third dimensional attack on the prosecution
case raised by Ld.Defence Counsels was on factual aspects, vis
avis the necessary ingredients of the offences with which
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accused persons were charged.
62. These contentions raised by Ld.Defence
Counsels are divided in 2 categories. The first one being on
behalf of the accused PUBLIC SERVANTS, which are as
under :
(i) No meeting of minds : That, there is no evidence brought
on record by the prosecution depicting any meeting of mind,
amongst the accused public servant on one hand and the
contractor on the other hand, therefore, there is no question of
any conspiracy whatsoever between these two set of accused.
(ii) No overt act on the part of public servants : That, the
accused public servants had not done anything, in order to
achieve the socalled object of conspiracy as they were not party
to any such conspiracy / offence.
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(iii) Official discharge of duties: That, the accused public
servants did, what was their official duty and had prepared the
documents which were required as per CPWD Manual.
(iv) No knowledge about forgery: That, the accused public
servants did not have any knowledge that the invoices so
tendered with them, by the contractor were forged ones. It is
submitted that it was duty of the contractor to submit genuine
invoices.
(v) No mechanism to check the genuineness of invoice:
That, there was no mechanism with the accused public
servants to compare the invoices so submitted by the contractor
with the specimen format, so as to verify about their
genuineness.
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(vi) No duty of the public servants for verification of
invoices: That, even otherwise, it was not the duty of accused
public servants to verify the genuineness of the invoice.
Further, they had no reason to doubt the genuineness of invoice
as the work was being executed by the contractor.
63. Second category of the contentions advanced
by Sh.R.S.Jamuar and Sh.S.P.Aggarwal, Advocates, Ld.Defence
Counsels on factual aspects, were with respect to the contractor
visavis the necessary ingredients of the offences, with which
ACCUSED NO.1 & 2 were charged. The same are as under:
(i) Nonavailability of mechanism : That, as contractor had
no mechanism to check that he is or is not being given genuine
invoices by IOCL, therefore, he cannot be made liable for
submitting them with MCD by imputing that he submitted
them, knowing the same to be forged ones.
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(ii) No wrongful loss caused to MCD: That, as the payment
was to be made to the contractor for the work which was
properly conducted by him as per the specifications, therefore
no wrongful loss was caused to the MCD.
(iii) Filing of invoice was ritual : That, as the payment was
to be made to the contractor for work in any case, and filing of
invoices by him with MCD would not have made any difference
as it was a mere ritual, therefore it cannot be said that
contractor had induced MCD to act to its detriment, so as to
cause any pecuniary advantage to him.
(iv) Unfair Investigations : That, the investigations have not
been conducted by the investigating agency in a fair manner
as neither any expert opinion nor any agency for the stationary
used for the so called forged invoices was obtained. It is
further contended that even the specimen signatures of
authorized signatories of IOCL were not taken by the IO to
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have the same compared with the signatures on the invoices in
question and the accused has been wrongly and falsely
implicated, therefore he be acquitted of the charge.
(v) No ground with contractor to forge the invoices : It is
contended by Sh. R.S.Jamuar, Ld. Defence Counsel that as the
contractor has made payment for the bitumen supplied to him
by Munish Guliani, therefore, there is no reason with the
contractor to forge the invoices. It is contended that the
contractor had submitted the invoices handed over to him by
Munish Guliani to MCD under the bonafide belief that the
same are genuine issued by IOCL.
64. In addition to above, Sh. S.P.Aggarwal,
Advocate, appearing on behalf of Vijay Pal Shokeen, one of the
partners of M/s Vijay & Company, had contended that his
client was sleeping partner and had not committed any overt
act towards commission of any offence. He further contended
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that prosecution has failed to bring on record any cogent or
trustworthy evidence to connect Vijay Pal Shokeen with the
alleged offences, as all the transactions for and on behalf of M/s
Vijay & Company were done by Kartar Singh Shokeen.
65. On behalf of Accused Munish Guliani, Sh.
O.P.Saxena, Advocate, had advanced arguments. Ld. Defence
Counsel contended that prosecution has failed to prove any of
the necessary ingredients of the offence with which his client
has been charged. He contended that there is no evidence on
record to show that the invoices in question were either forged
or were handed over by Munish Guliani to M/s Vijay &
Company. He contended that Munish Guliani never supplied
any bitumen to M/s Vijay & Company before November, 1998.
He contended that as there is no evidence on record against
Munish Guliani, therefore, he be acquitted.
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APPRECIATION OF EVIDENCE & RIVAL CONTENTIONS:
66. Before adverting to appreciate the prosecution
as well as defence evidence which has come up on record visa
vis the charges against the accused persons, as well as the
arguments advanced on the mixed questions of facts and law, I
deem it appropriate to deal with those contentions first which
have been raised by Ld.Defence Counsels, on purely legal
aspects, in their quest to demolish the prosecution case at the
threshold.
67. The opening contention of Ld.Defence Counsels
was that, there is no averment or allegation in the entire
charge sheet of extension of any illegal gratification on the
part of contractor to the accused public servants, therefore by
no stretch of imagination, the provisions of Section 13(1) (d) of
Prevention of Corruption Act, could have been invoked. It is
contended that on this ground itself, the case cannot proceed
and accused persons should be acquitted.
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68. In order to deal with this contention of
Ld.Defence Counsels, it is pertinent to make a mention of the
relevant provisions 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) . . .
(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) . . .
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69. 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.
70. 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
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
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means". 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.
71. Meaning thereby, that in absence of any
allegations by the prosecution on the part of public servant of
demand and acceptance of illegal gratification for showing any
favor to a private individual, the provisions of Prevention of
Corruption Act cannot be invoked, as urged by Ld.Defence
Counsels, to my mind is farfetched and devoid of merits. As
there are allegation of abuse of official position by the public
servants in order to cause pecuniary advantage to their co
accused, this clause of P.C.Act very much comes into play.
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72. In view thereof, the contention advanced by
Ld.Defence Counsels that in the present case there are no
allegations on record that any of the public servants, who are
accused herein had adopted any corrupt or illegal means or
have obtained any pecuniary advantage for themselves, thus
section 13(1) (d) of P.C.Act cannot be invoked, is rejected.
However, the prosecution has to establish the necessary
ingredients of the offences, with which the accused persons
have been charged, on the basis of the evidence which has come
up on record, with which I shall be dealing hereinafter.
73. This has brought me down to the next legal
contention urged by Sh. H.L.Chopra, Advocate, on behalf of
accused S.C.Chellani, Bhupinder Kumar and Abhay Kumar,
that the present case cannot proceed further, as CBI did not
have the jurisdiction to register the present FIR and to
investigate the same, in view of the fact that it lacks the
jurisdiction to try the cases involving violation of the provisions
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of Delhi Municipal Corporation Act, 1957.
74. To substantiate his contention, Ld.Defence
Counsel has relied upon the law laid down by Hon'ble Apex
Court in case titled "CBI vs. State of Rajasthan" reported as
(1996) 9 SCC 735 and in another case titled "R.S.Gahlot vs.
CBI" bearing Crl.M.C.No.3800/11 decided by Hon'ble High
Court of Delhi on 22.11.2013.
75. It is alleged by Ld.Defence Counsel that as per
the allegations levelled against the contractor and the
Engineers and Account Officials of MCD, there have been
violations of the provisions of Delhi Municipal Corporation Act.
It is submitted that Delhi Municipal Corporation is a complete
Code in itself and the Act bars any other agency or Court, from
taking cognizance of violation of its provisions. It is submitted
that CBI can exercise jurisdiction with respect to the offences
notified by Central Government in the official gazette, as per
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Section 3 of Delhi Special Police Establishment Act. It is
submitted that the provisions of Delhi Municipal Corporation
Act, have not been notified by Central Government under
Section 3 of Delhi Special Police Establishment Act, therefore
CBI lacks jurisdiction to investigate the same.
76. I have considered the submissions advanced
and have perused the allegations on the basis of which the
present case was registered, investigated and filed. I have also
gone through the relevant provisions of Law and the precedents
relied upon by Ld.Defence Counsel, in support of their
contentions.
77. It is apparent on perusal of Section 2 of Delhi
Special Police Establishment Act, that it empowers the Central
Government for constitution of Special Police Establishment. It
reads as under:
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SECTION 2 : CONSTITUTION AND POWERS OF SPECIAL
POLICE ESTABLISHMENT -
(1) Notwithstanding anything in the Police Act,
1861 (5 of 1861), the Central Government may
constitute a special police force to be called the
Delhi Special Police Establishment for the
investigation [in any (Union Territory)] of
offences notified under section 3.
(2) Subject to any orders which the Central
Government may make in this behalf,members of
the said police establishment shall have
throughout [Union Territory]] in relation to the
investigation of such offences and arrest of
persons concerned in such offences, all the
powers, duties, privileges and liabilities which
police officers of [that Union territory] have in
connection with the investigation of offences
committed therein.
(3) Any member of the said police establishment
of or above the rank of SubInspector may,
subject to any orders which the Central
Government may make in this behalf, exercise in
[any [Union Territory]] any of the powers of the
officer in charge of a police station in the area in
which he is for the time being and when so
exercising such powers shall, subject to any such
orders as aforesaid, be deemed to be an officer in
charge of a police station discharging the
functions of such an officer within the limits of
his station.
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78. Central Bureau of Investigations (CBI) being
one such establishment which has been constituted in terms of
Section 2 of Delhi Special Police Establishment Act.
79. Further, Section 3 of the Act prescribes the
category of offences, which the Special Police so established,
under section 2 can investigate. The same reads as under:
SECTION 3 : OFFENCES TO BE INVESTIGATED
BY SPECIAL POLICE ESTABLISHMENT
The Central Government may, by
notification in the Official Gazette,
specify the offences or classes of offences
which are to be investigated by the Delhi
Special Police Establishment.
80. In view of the joint reading of both these
sections, it is absolutely clear that CBI which is a creation of
Central Government under this special Statute, can only
investigate the offences, which has been notified by Central
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Government by virtue of the powers granted to it by
Legislature, in terms of Section 3 of the Act. Consequently,
CBI cannot travel beyond that or assume jurisdiction over the
offences, which have not been so notified by Central
Government.
81. I am fortified to arrive at this proposition of
law taking support from the law laid down by Hon'ble Apex
Court in CBI vs. State of Rajasthan's Case (supra), relied
upon by Ld.Defence Counsel.
82. Admittedly, for the offences under Municipal
Corporation of Delhi Act, no notification has been issued by
Central Government under section 3 of Delhi Special Police
Establishment Act, authorizing CBI to investigate any violation
thereof, which discloses violations of Delhi Municipal
Corporation Act.
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83. However to consider the contentions of
Ld.Defence Counsel, it is to be seen as to whether the offences
alleged to have been committed by the accused persons, falls in
the contours of Delhi Municipal Corporation Act. The answer
to my mind is "NO".
84. Perusal of the present complaint makes it clear
that the allegations against the accused persons are for
commission of offences of entering into criminal conspiracy
with each other for the purposes of cheating and forgery, as
well as using forged documents as genuine, besides the offences
under section 13(1) (d) of Prevention of Corruption Act of
"Criminal Misconduct" by the Public Servants (subject offcourse
of proving the same against the accused persons by the prosecution,
which I shall advertto hereinafter). These offences which are
alleged to have been committed by the accused persons does not
fall in the purview and domain of Delhi Municipal Corporation
Act,1957.
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85. The offences under Indian Penal Code as well
as Prevention of Corruption Act, have been duly notified by
Central Government under section 3 of Delhi Special Police
Establishment Act Act, wherein CBI did have the jurisdiction
to investigate.
86. In view thereof, I do not find any merits in
these contentions of Ld.Defence Counsel that the present case
should be rejected at the threshold itself, on the grounds that
CBI lacks jurisdiction to register and investigate the same.
87. The precedent of R.S.Gahlot Vs. CBI (supra)
relied upon by Ld.Defence Counsel in support of his contention,
does not come to the rescue of the accused persons, as facts of
said case differs from the facts of the present case. Hon'ble
High Court of Delhi, in said case had observed on the basis of
its peculiar facts that the same pertains to raising of
unauthorized construction and thus fall within the ambit of
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Delhi Municipal Corporation Act, whereas the facts of the
present case differs as stated by me hereinabove.
88. In view thereof, this contention of Ld.Defence
Counsel that this case should be rejected at the threshold
itself for lack of jurisdiction on the part of CBI, stands
rejected.
89. Another attempt to blow the case of
prosecution at the initial stage itself was made by Sh.
S.P.Aggarwal, Advocate, Ld.Defence Counsel. He contended
relying upon the cross examination conducted by him of PW32
S.K.Kashyap, who conducted the preliminary enquiry as well
as of PW33 P.K. Khanna the investigating officer, that
there was no occasion with CBI to register preliminary
enquiry in this case. His contentions were that on the
complaint of Sh.S.K.Jain, there was no occasion with CBI to
register preliminary enquiry before the registration of FIR.
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He placed reliance on the precedent / law laid down by
Hon'ble Apex Court in case titled "Lalita Kumari vs.
Govt. of UP & Ors." reported as 2014 (1) JCC 1.
90. I have considered the submissions advanced by
Ld.Defence Counsel and have also gone through the precedent
relied upon by him in support of his contention. I have also
gone through the cross examination of PW32 S.K.Kashyap as
well as that PW33 P.K.Khanna. No doubt, both these
witnesses during the course of their deposition have not given
any specific grounds or illustrations, wherein a preliminary
enquiry can be registered before registration of FIR, but that
ipsofacto is no ground for throwing overboard, the material
which has come up on record during the course of trial, in the
form of documentary and oral evidence through the deposition
of prosecution witnesses. Based on these substantive pieces of
evidence, it is to be seen, as to whether the charges for which
the accused persons have been facing trial, stands proved or
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not. The substantial evidence cannot be discarded or brushed
aside merely because PW32 and PW33 could not give any
specific grounds enabling CBI to register a preliminary inquiry
first, before registration of FIR. Even the precedent relied upon
by Ld.Defence Counsel does not support their case and
contention. Hon'ble Apex Court while laying stress on the
investigating agency regarding mandate of legislature to
register FIR as per Section 154 Cr.P.C has given leeway to CBI
to register a preliminary enquiry in certain cases.
91. It is pertinent to make mention of the
operative part of the precedent relied upon by Ld.Defence
Counsel in Lalita Kumari's Case (Supra), which reads as
under :
(i) Registration of FIR is mandatory under section 154 of
the Code, if the information discloses commission of a
cognizable offence and no preliminary inquiry is
permissible in such a situation.
(ii) If the information received does not disclose a
cognizable offence but indicates the necessity for an
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inquiry, a preliminary inquiry may be conducted only to
ascertain whether cognizable offence is disclosed or not.
(iii) . . .
(iv) . . .
(v) . . .
(vi) As to what type and in which cases preliminary
inquiry is to be conducted will depend on the facts and
circumstances of each case. The category of cases in which
preliminary inquiry may be made are as under :
(a) Matrimonial disputes / family disputes.
(b) Commercial offences.
(c) Medical negligence cases.
(d) Corruption Cases.
(e) Cases where there is abnormal delay /
laches in initiating criminal prosecution, for
example over 3 months delay in reporting the
matter without satisfactorily explaining the
reasons for delay.
...(emphasis supplied)
(vii) . . .
(viii) . . .
92. In Lalita Kumari's Case (supra), Hon'ble
Apex Court while referring to Sections 4(2) and 5 of Code of
Criminal Procedure, visavis powers of CBI, has held that :
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"These special provisions contained in the Delhi
Special Police Establishment Act relating to the
powers of CBI, are protected also by Section 5 of
the Code".
"In view of above specific provisions in the Code,
the powers of CBI under the Delhi Special Police
Establishment Act cannot be equated with the
regular police under the Code."
93. It is further pertinent to make mention that
subject of preliminary enquiry is contained in Chapter 9 of
Crime Manual of CBI. The factum regarding adherence to the
CBI Manual and its basis, was considered by Hon'ble Apex
Court in case titled "Vineet Narayan and Ors. vs. Union of
India & Anr." reported as AIR 1998 SC 889 ; wherein
Hon'ble Apex Court to prevent the erosion of Rule of Law,
issued number of directions to various authorities. The
relevant part of the directions issued to CBI is as under :
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"59(12). The CBI Manual based on statutory
provisions of the CrPC provides essential
guidelines for the CBI's functioning. It is
imperative that the CBI adheres scrupulously to
the provisions in the Manual in relation to its
investigative functions, like raids, seizure and
arrests. Any deviation from the established
procedure should be viewed seriously and severe
disciplinary action taken against the officials
concerned."
"...Thus from the above, it is evident that the CBI
manual, being based on statutory provisions of the
Cr.P.C., provides for guidelines which require
strict compliance".
94. In view of the law laid down by Hon'ble Supreme
Court and considering that CBI is constituted under the specific
provisions of Delhi Special Police Establishment Act, I am of the
opinion that its powers cannot be equated with the regular State
Police acting and working as per Code of Criminal Procedure.
Thus CBI can register a preliminary enquiry before
registration of FIR, more particularly while dealing with
Corruption Cases, as has been held by Hon'ble Apex Court in
above mentioned cases.
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95. In view thereof, I do not find merits in this
contention of Ld.Defence Counsel. The same stands rejected.
96. The next legal contention urged on behalf of
the accused persons by Sh.Hariharan Ld.Senior Adv., and
Sh.O.P.Saxena and Sh. S.P.Aggarwal, Ld.Advocates, was
that the names of accused Dinesh Yadav, Munish Guliani, Om
Prakash Saroha and P.S.Chauhan, does not appear in the
"First Information Report". They contended that the
accused persons have been wrongly and falsely implicated by
CBI. It is submitted that as the accused persons were not
named in FIR, therefore the proceedings qua them should
be dropped, at this stage itself.
97. I do not find any merits in this arguments
advanced by Ld. Defence Counsels in view of the fact that FIR
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by its name suggests that it is the "First Information
Report" received by the investigating agency, who is then
called upon to investigate the allegations levelled therein, so as
to unearth the wrong, if any, falling within the definition of the
term "offence" and if so, to find out as to who has committed the
same.
98. Hon'ble Apex Court in case titled "Kirender
Sarkar and Ors. vs. State of Assam", reported as 2009,
Crl.L.J.3727, has held that :
"6. The law is fairly well settled that FIR is not
supposed to be an encyclopedia of the entire events and
cannot contain the minute details of the events. When
essentially, material facts are disclosed in the FIR, that
is sufficient. FIR is not substantive evidence and
cannot be used for contradicting testimony of the eye
witnesses except that may be used for the purpose of
contradicting maker of the report. Though the
importance of naming the accused persons in the FIR
cannot be ignored, but names of the accused persons
have to be named at the earliest possible opportunity.
The question is whether a person was impleaded by
way of afterthought or not, must be judged having
regard to the entire factual scenario in each case.
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Therefore, non naming of one or few of the
accused persons in the FIR is no reason to
disbelieve the testimony of crucial witnesses ".
(emphasis supplied)
99. In view of the law laid down by Hon'ble Apex
Court, this contention of Ld.Defence Counsels stands rejected.
100. Extending the above mentioned contention of
Sh.Hariharan, Ld. Senior Advocate, Sh.R.S.Jamuar &
Sh.S.P.Aggarwal, Ld. Advocates, contended that provisions
of Section 157 Cr.P.C which are of mandatory nature were
not complied with by the investigating agency, therefore, the
proceedings against the accused persons should be dropped.
101. In support of their contentions, they brought
my attention to the deposition of investigating officer ie. PW33
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P.K.Khanna. It is submitted by Ld.Defence Counsels that
during the course of his deposition, the investigating officer
could not depose anything on this aspect as to when the FIR
was delivered to Ld. Special Judge. Ld.Defence Counsels
relying upon the precedents on this aspect of Hon'ble High
Court titled "Devender @ Kalu vs. State" reported as 2011
(2) JCC 1453 DB (DLI) ; and case titled "Rajesh Kumar vs.
State" reported as 2011 (4) JCC 2522 (DB) DLI ; and that of
Hon'ble Apex Court in case titled "Ratti Ram & Ors. vs.
State of M.P.Tr. Inspector of Police" reported as 2013 [3]
JCC 1572 ; had contended that the proceedings against the
accused persons should be dropped, on this count itself.
102. I have considered the submissions advanced
by Ld.Defence Counsels. I have also perused the relevant
deposition of the investigating officer PW33 on this aspect and
have perused the precedents relied upon.
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103. Code of Criminal Procedure lays down the
procedure which is required to be adopted by the Courts in its
pursuit of "Administration of Criminal Justice System".
It has been held in a catena of judgements by Hon'ble Apex
Court that procedure has to be interpreted in such a manner so
as to augment the substantive justice and not to thwart the
same. Consequently, the procedural lapses, if any on the
part of prosecution should not be made as 'impediments' in
the process of unearthing the truth. The sole question which is
required to be answered is as to whether such procedural lapse
can be a ground to throw overboard the substantive pieces of
evidence, which has come up on record.
104. The answer to this question lies in the
observation made by Hon'ble Apex Court in Ratti Ram & Ors.
Case (supra), relied upon by Ld.Defence Counsel, the relevant
portion of which is reproduced as under:
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We may hasten to add that when there is
delayed despatch of the FIR, it is necessary on
the part of the prosecution to give an
explanation for the delay. We may further
state that the purpose behind sending a copy
of the FIR to the concerned magistrate is to
avoid any kind of suspicion being attached to
the FIR. Such a suspicion may compel the
court to record a finding that there was
possibility of the FIR being antetimed or
antedated. The court may draw adverse
inferences against the prosecution. However,
if the court is convinced as regards to the
truthfulness of the prosecution version and
trustworthiness of the witnesses, the same
may not be regarded as detrimental to the
prosecution case. It would depend on the
facts and circumstances of the case. In the
case at hand, on a detailed scrutiny of the
evidence upon bestowing our anxious
consideration, we find that the evidence
cannot be thrown overboard as the version of
the witnesses deserves credence as analysed
before. Thus, this colossal complaint made by
Mr. Khan pales into insignificance and the
submission is repelled.
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105. In view of this observation of Hon'ble Apex
Court as well as on perusal of the other two judgements of
Hon'ble High Court, it is clear that merely on this ground, the
evidence which has come up on record during the entire trial,
cannot be thrown overboard. Facts of each case has to be
looked into, so as to see whether any miscarriage of justice, has
resulted due to this lapse.
106. Perusal of the deposition of PW33
P.K.Khanna makes it evident that no specific question was
asked from the Investigating officer during his cross
examination on the aspect of sending the FIR to Ld. Special
Judge. Therefore, the Investigating officer had no occasion to
state on his own as to when the FIR was sent.
107. I have perused the records of the present case
which makes it apparent that the present FIR was registered
on 02.03.2001 at 1600 Hrs. and a copy thereof was marked to
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Ld. Special Judge, CBI, Tis Hazari, and there is an
endorsement on this FIR of its receipt in Court on the same day
itself i.e. 02.03.2001 at 4.45 p.m. The envelop in which this FIR
was sent also contains similar endorsement. In view of this
fact, it is apparent that this provision was properly complied
with and FIR was received by Ld. Special Judge, on the same
day of its registration. In view thereof, to my mind, it cannot
be a ground to throttle the entire prosecution case and to throw
overboard the substantive evidence, which has come up on
record.
108. I do agree with Ld.Defence Counsel that this
is an important provision of Law, which the investigating
agency is supposed to religiously follow, but considering the
present facts and circumstances, much material bearing
cannot be attached to the same, so as to make it detrimental to
the prosecution case. In view thereof, this contention of
Ld.Defence Counsel is turned down.
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109. Having dealt with the contentions urged by
Ld.Defence Counsels on behalf of the accused persons on purely
legal grounds, I shall now delve upon to consider the
arguments raised involving mixed question of "Law and
Facts".
110. Leading a twopronged attack on the prosecution case, Sh.Hariharan, Sh.H.L.Chopra and Sh.S.P.Aggarwal, Advocates, Ld.Defence Counsels appearing on behalf of the public servants, contended that the provisions of Section 19 of Prevention of Corruption Act is a mandatory provision and the Court does not have the jurisdiction to take cognizance when the "sanction" under this provision is granted in mechanical manner and without application of mind and that too, by an authority which was not competent to grant the same.
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111. Justifying the attack on sanction at the fag end of the trial, Ld.Defence Counsels relying upon the law laid down by Hon'ble Apex Court in case titled "Prakash Singh Badal & Anr. vs. State of Punjab" reported as (2007) 1 SCC Page 1 ; contended that the question of absence of sanction can be raised at the inception or threshold, whereas in cases, where sanction order exists but its legality and validity is put in question, then such issue can be raised in the course of trial. It is submitted that as the validity of sanction order is assailed on diverse grounds, like incompetence of the sanctioning authority to grant sanction and non application of mind, therefore the same is being raised at this stage.
112. Ld.Defence Counsels contended that the sanction order passed by PW13 Rakesh Mehta against accused O.P.Saroha and Dinesh Yadav Ex.PW.13/A & Ex.PW13/B and by PW11 Sh.V.S.Sharma, Additional C.C.No: 58 / 2011 Page No.71 of 228 Judgement in the matter of:-
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Commissioner with respect to the other accused public servants Ex.PW.11/A to Ex.PW.11/D; are bad in law on two grounds.
Firstly, because neither PW13 Rakesh Mehta, nor PW11 V.S.Sharma were the competent authorities to pass the sanction orders, therefore on that count itself, the matter should not proceed further against the accused public servants.
Ld.Defence Counsels relying upon the law laid down by Hon'ble Apex Court in case titled " CBI vs. Ashok Kumar Aggarwal"
reported as 2014 Crl.L.J.930; had contended that for grant of sanction Commissioner cannot delegate his powers to Additional Commissioner / Deputy Commissioner.
113. Second contention raised by Ld.Defence Counsels assailing the sanction orders passed by the sanctioning authorities, is that the same are invalid and bad in law as the same have been passed in a mechanical manner and without application of mind. It is contended that the sanction orders on the face of it, reveals factually incorrect statements C.C.No: 58 / 2011 Page No.72 of 228 Judgement in the matter of:-
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which leads to the inference of nonapplication of mind, on the part of the sanctioning authorities.
114. I have considered the submissions advanced on this aspect and have considered the relevant provisions of law in the light of the precedents relied upon by Ld.Defence Counsels to substantiate their contentions.
115. 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.
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116. 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 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.
117. 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 C.C.No: 58 / 2011 Page No.74 of 228 Judgement in the matter of:-
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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 for their personal benefits by indulging into corrupt and improper practices.
118. 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.
119. 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 Section19 of Prevention of C.C.No: 58 / 2011 Page No.75 of 228 Judgement in the matter of:-
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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.
120. 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. C.C.No: 58 / 2011 Page No.76 of 228
Judgement in the matter of:-
CC No.:58 / 11.
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121. Before proceeding to advert upon the submissions advanced, it is pertinent to make mention of Section 19 of Prevention of Corruption Act, which is reproduced as under: SECTION 19 : PREVIOUS SANCTION NECESSARY FOR PROSECUTION :
(1) No Court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government ;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government ;
(c) in the case of any other person, of the authority competent to remove him from his office.C.C.No: 58 / 2011 Page No.77 of 228
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(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under subsection (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) :
(a) No finding, sentence or order passed by a Special judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under subsection (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby ;
(b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in failure of justice;
(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.C.C.No: 58 / 2011 Page No.78 of 228
Judgement in the matter of:-
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(4) In determining under subsection (3) whether the absence thereof, or any error, omission or irregularity in, such sanction has occasioned or resulted in failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.
Explanation - For the purposes of this Section,
(a) error includes competency of the authority to grant sanction ;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.
122. The object and character of this provision is evidently emanating from the words used in the Section by the Legislature : "No Court shall take cognizance of such offence, except with the previous sanction". Use of words "No" and "shall" makes it abundantly clear that the bar on the exercise of power of the Court to take cognizance of an offence C.C.No: 58 / 2011 Page No.79 of 228 Judgement in the matter of:-
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is absolute and complete. As per Black's Law Dictionary, the word "cognizance" means jurisdiction or the exercise of jurisdiction. In common parlance, it means "taking notice of".
In view thereof, in absence of the sanction, the court is precluded from even taking notice of the offence or exercising its jurisdiction, in respect of a public servant.
123. Thus, the provision has been imparted a mandatory character and has been held so by various authoritative pronouncements by Hon'ble Apex Court. While holding grant of sanction to be a prerequisite or sinequanon for taking cognizance, regard is to be had to the fact that it can be a shield to discourage vexatious prosecution of innocent public servant, but it should not be permitted to be used as a weapon against the prosecution by the guilty.
124. The protection given by the Legislature is to be extended to the extent provided therein and it cannot and C.C.No: 58 / 2011 Page No.80 of 228 Judgement in the matter of:-
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should not be stretched elastically to cover those, who are not intended by the Legislature to be under the protective umbrella. As to my mind the Legislature by enacting any provision in the Act, which prohibits the taking of cognizance of offence by a Court, unless certain conditions are complied with, did not purport to condone the offence. Thus, such provision is to be construed on the basis of words used therein, without importing the words, which are not there.
125. In the backdrop of above, I shall consider the arguments advanced by Ld.Defence Counsels raised by them to challenge the authenticity of the sanction orders Ex.PW.13/A & Ex.PW.13/B passed by Sh.Rakesh Mehta, the then Commissioner MCD with respect to accused O.P.Saroha and Dinesh Yadav and sanction orders Ex.PW.11/A to Ex.PW.11/D passed by Sh.V.S.Sharma, the then Additional Commissioner, MCD with respect to the other accused public servants. C.C.No: 58 / 2011 Page No.81 of 228
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126. Firstly, I shall consider the arguments advanced on the aspect of "competence of the sanctioning authority" to pass the sanction orders.
127. The first contention urged by Ld.Defence Counsels was that the post of "Executive Engineer" ie. of accused Dinesh Yadav is "Category A" Post, whereas post of other public servants falls under "Category B" and "Category C" posts, wherein the competent authority to grant sanction is the Corporation and Commissioner respectively, therefore the sanction could have been granted by the Corporation or by the Commissioner, but in the present case it has been granted by Commissioner and Additional Commissioner respectively, who were not competent to pass the sanction orders, therefore the sanction orders itself being invalid, would make the proceeding nonest, as no cognizance could have been taken at the first place against the accused C.C.No: 58 / 2011 Page No.82 of 228 Judgement in the matter of:-
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persons.
128. The question of competence of the "appointing / sanctioning authority" came up for consideration before Hon'ble Supreme Court in case titled "Mohd.Iqbal Ahmed Vs. State of Andhra Pradesh", reported as AIR 1979 SC 677, wherein it was held that :
"... The Legislature advisedly conferred power on the Authorities competent to remove the public servant from office to grant sanction for the obvious reason that the said Authority alone would be competent when facts and evidence are placed before him to judge whether a serious offence is committed or the prosecution is either frivolous or speculative. That Authority alone would be competent to judge whether on the facts alleged, there has been abuse or misuse of office held by the public servant. That authority would be in a position to know what are the powers conferred on the office which the public servant holds, how that power could be abused for corrupt motives or whether prima facie it has been so done. That Competent Authority alone would know the nature and functions discharged by the public servant holding the office and whether the same has been abused or misused. It is the vertical hierarchy between the Authority competent to C.C.No: 58 / 2011 Page No.83 of 228 Judgement in the matter of:-
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remove the public servant from that office and nature of the office held by the public servant against whom sanction is sought, which would indicate a hierarchy and which would, therefore, permit inference of knowledge about the functions and duties of office and its misuse or abuse by the public servant. That is why the Legislature clearly provided that the authority which would be competent to grant sanction is the authority which is entitled to remove from service the public servant against whom sanction is sought".
129. It is admitted position on record that the Post of Executive Engineer ie. of accused no. 4 Dinesh Yadav, is a Category 'A' Post, whereas the post of Assistant Engineer, Junior Engineer and the Officers from the Accounts Department ie. the remaining accused public servants, are Category 'B' and Category 'C' Posts.
130. Ld.Defence Counsels relying upon Regulation 7 of Delhi Municipal Corporation Service (Control and Appeal) Regulations, 1959 and the Schedule thereunder, C.C.No: 58 / 2011 Page No.84 of 228 Judgement in the matter of:-
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which was notified had contended that for Category 'A' Post, the competent authority to remove him from services is the Corporation whereas, for Category 'B' & 'C' posts, it is the Commissioner. It is the argument of Ld.Defence Counsels that with respect to Category 'A' Post, instead of Corporation, the sanction order Ex.PW.13/B was passed by the Commissioner, whereas for Category 'B' & 'C' Posts, instead of the Commissioner, the sanction orders Ex.PW.11/A to Ex.PW.11/D were passed by Additional Commissioner.
131. I have perused the relevant Regulation 7 along with the Schedule thereunder, relied upon by Ld.Defence Counsels. It is apparent on perusal of the same that the same was passed, promulgated and notified under the relevant provisions of DMC Act 1957, prior to the year 1993.
With effect from 01.10.1993, DMC Act was amended with respect to the powers of appointment of different officers as well as with respect to the disciplinary authority. In view C.C.No: 58 / 2011 Page No.85 of 228 Judgement in the matter of:-
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thereof, the changes / amendments made in the Statute by Legislature are required to be considered for the purposes of appreciating the arguments advanced by Ld.Defence Counsels in this regard.
132. In terms of Section 19(1) (c) of the Act, the sanction for prosecution has to be granted by an authority competent to remove the person from his office. Article 311(1) of Constitution of India, in no uncertain terms prescribes that the authority competent to remove a person from his office cannot be subordinate in rank, to the appointing authority.
133. In order to find out the appointing authority of the accused public servants, it is pertinent to refer to Rule 2 of CCS CCA Rules, which is reproduced as under : C.C.No: 58 / 2011 Page No.86 of 228 Judgement in the matter of:-
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RULE 2 OF CCS CCA RULES : "Appointing authority", in relation to a Government Servant, means
(i) . . .
(ii) the authority empowered to make appointments to the post which the Government servant for the time being holds ;
(iii) . . .
(iv) . . .
134. In terms of these Rules and to ascertain the appointing authority with respect to the accused public servants, more particularly with respect to the Post of Executive Engineer, a "Category A" Post, I have perused the relevant provisions of Delhi Municipal Corporation Act 1957 as amended in 1993.
135. By virtue of Section 89 of DMC Act 1957 as amended in 1993, the Corporation was made "appointing authority" of certain officers mentioned therein, which is reproduced as under : C.C.No: 58 / 2011 Page No.87 of 228 Judgement in the matter of:-
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SECTION 89 : APPOINTMENT OF CERTAIN
OFFICERS :
(1) A Corporation shall appoint suitable persons to be respectively the Municipal Engineer, the Municipal Health Officer, the Education Officer, the Municipal Chief Accountant, the Municipal Secretary and the Municipal Chief Auditor and may appoint one or more Deputy Commissioners and such other officer or officers of a status equivalent to or higher than the status of any of the officers specified earlier in this subsection as Corporation may deem fit on such monthly salaries and such allowances, if any, as may be fixed by a Corporation.
(2) . . .
136. Further, the Commissioner was empowered to make appointment with respect to Municipal Officers by virtue of Section 92 of DMC Act, 1957 with effect from 01.10.1993. The same reads as under : C.C.No: 58 / 2011 Page No.88 of 228 Judgement in the matter of:-
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SECTION 92 : POWER TO MAKE
APPOINTMENTS :
(1) Subject to the provisions of section 89, the power of the appointing municipal officers and other municipal employees whether temporary or permanent shall vest in the Commissioner :
(2) . . .
137. Bare perusal of Section 92 makes it apparent that the same is subject to the provision of Section 89 of the Act. Section 89 empowers the Corporation to appoint Municipal Engineer and other officers and also, Deputy Commissioner and also such other officers of a status equivalent to, or higher than that status. Whereas, as per the Section 92, a Commissioner is empowered to appoint Municipal Officers and other municipal employees. Both Municipal Engineer, Deputy Commissioner and other officers equivalent to the rank of Deputy Commissioner, whose appointing authority is the Corporation by virtue of Section 89 C.C.No: 58 / 2011 Page No.89 of 228 Judgement in the matter of:-
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of the Act, and Municipal Officer whose appointing authority as per section 92, is the Commissioner are "Category A" post as per the Schedule of Establishment of the Corporation.
Meaning thereby that after the amendment of 1993, the appointing authority with respect to different posts in Category A, were different ie. for Deputy Commissioner and Municipal Engineer which as per the Schedule of Establishment is EngineerinChief, was the Corporation and for Municipal Officers which includes the post of Executive Engineer, the appointing authority, is the Commissioner.
138. Further, Section 59 of DMC Act 1957, more particularly subclause (d) thereof, which has been inserted by way of the amendment act w.e.f 01.10.1993, makes the Commissioner disciplinary authority in relation to the municipal officers. The same reads as under : C.C.No: 58 / 2011 Page No.90 of 228 Judgement in the matter of:-
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SECTION 59 :
FUNCTIONS OF THE COMMISSIONER Save as otherwise provided in this Act, entire executive power for the purpose of carrying out the provisions of this Act and of any other Act for the time being in force which confers, any power or imposes any duty on a Corporation shall vest in the Commissioner who shall also
(a) exercise all the powers and perform all the duties specifically conferred or imposed upon him by this Act or by any other law for the time being in force;
(b) . . .
(c) . . .
(d) Subject to any regulation that may be made in this behalf, be the disciplinary authority in relation to all municipal officers and other municipal employees.
(emphasis supplied)
139. It is apparent on bare perusal of Section 59 (d) that Commissioner has been made disciplinary authority, with respect to all Municipal Officers. This section when is read along with Section 92, makes it apparent that Legislature has made the Commissioner disciplinary authority with respect to the Municipal Officers, of which he has been made the C.C.No: 58 / 2011 Page No.91 of 228 Judgement in the matter of:-
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appointing authority.
140. It is clear on joint reading of the provisions of Section 89, Section 92 and Section 59(d), that after the amendment in the Act w.e.f 01.10.1993, the appointing authority with respect to the officers of the rank of Deputy Commissioner and above, as well as Municipal Engineer which is Chief Engineer, is the Corporation, whereas appointing authority with respect to Municipal Officers which includes Executive Engineer is the Commissioner. That being the situation, Legislature has made Commissioner disciplinary authority with respect to Municipal Officers by virtue of Section 59 (d) inserted in the Act with effect from 01.10.1993. Legislature has deliberately used the words "Municipal Officers" in section 59 (d) and not "Municipal Engineers" in view of the fact that for Municipal Engineer, Corporation was made the appointing authority by virtue of C.C.No: 58 / 2011 Page No.92 of 228 Judgement in the matter of:-
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Section 89 of the Delhi Municipal Corporation Act.
141. It is contended by Ld.Defence Counsels that Section 59 (d) is subject to Regulation 7 of Delhi Municipal Corporation Service (Control and Appeal) Regulations, 1959. I do not find any merits in this contention of Ld.Defence Counsels, in view of the clear wordings of Section 59 (d). The same states "subject to any regulation that may be made in this behalf" (emphasis supplied). The words used ie. "may be made" makes it explicit that the Legislature intends to give it a prospective effect. By no stretch of imagination, these words can be interpreted to make this power given to the Commissioner, subject to any previous regulation.
142. Having regards to these facts and circumstances and considering the fact that no regulation in this regard has been made after 01.10.1993 ; I am of the C.C.No: 58 / 2011 Page No.93 of 228 Judgement in the matter of:-
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considered opinion that the Commissioner being the "appointing authority" with respect to the Executive Engineer, is also the disciplinary authority and thus, was competent to grant sanction.
143. Second facet of this argument was with respect to Category 'B' and 'C' Post. It was contended by Ld.Defence Counsels that with respect to these two categories, the competent authority was the commissioner, therefore the additional commissioner could not have passed the sanction order as the powers cannot be delegated to him.
144. Section 491 of DMC Act 1957 which reads as under, empowers the commissioner to delegate his powers: SECTION 491 : POWER TO DELEGATE FUNCTIONS OF COMMISSIONER : The Commissioner may by order direct that any power conferred or any duty imposed on him by or under this Act shall, C.C.No: 58 / 2011 Page No.94 of 228 Judgement in the matter of:-
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in such circumstances and under such conditions, if any, as may be specified in the order, be exercised and performed also by any municipal officer or other municipal employee specified in the order.
145. Exercising his powers under section 491 of DMC Act, the then Commissioner MCD vide office order no. F. 14(3)/CED(II)/86/193/22769840 dated 16.11.1992 ; relied upon by Ld.Public Prosecutor, had delegated his powers on Sh.V.S.Sharma. The same reads as under : "In exercise of the powers vested in me under Section 491 of DMC Act, I hereby direct that all the powers conferred on me under various sections of the said Act, shall, subject to my over all supervision, control and review, be also exercised by Sh.V.S.Sharma, Deputy Commissioner, Municipal Corporation of Delhi w.e.f. 01.11.1992."C.C.No: 58 / 2011 Page No.95 of 228
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146. In view thereof, Sh.V.S.Sharma, empowered by virtue of this office order passed under section 491 of DMC Act, became competent to grant the sanction orders Ex.PW.11/A to Ex.PW.11/D.
147. Consequently, the argument advanced by Ld.Defence Counsel that he was not empowered to grant the sanction order or the powers could not have been delegated to him, stands rejected.
148. The precedent relied upon by Ld.Defence Counsels in "CBI Vs. Ashok Kumar Aggarwal" (supra), does not come to their rescue, as the facts of said case were materially different from the present case. In the said case, the competent authority was Hon'ble Minister and the matter which was before Hon'ble Apex Court was that whether Hon'ble Minister on the basis of satisfaction of some other authority for grant of sanction, could grant sanction or not. Further, in the C.C.No: 58 / 2011 Page No.96 of 228 Judgement in the matter of:-
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said case it was conceded before Hon'ble Apex Court that CBI, had only sent the SP's Report along with "list of witnesses" and "list of evidence" without the complete records.
149. Whereas, in the present case, the powers were delegated to Sh.V.S.Sharma, by the then Commissioner, by virtue of a Statutory Provision, under section 491 of DMC Act and it was he, who on the basis of the documents submitted to him along with report of CBI, had passed the sanction order after applying his own mind and not on the basis of satisfaction of any other authority subordinate to him.
150. Having turned down the first contentions of Ld.Defence Counsels regarding noncompetence of the Sanctioning Authority as claimed by them, I shall now advert to decide the second facet of their contention,challenging the sanction order, which as per them was passed without application of mind.C.C.No: 58 / 2011 Page No.97 of 228
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151. It is contended by Ld.Defence Counsels appearing on behalf of the public servants that the sanctioning authorities ie. PW11 V.S.Sharma and PW13 Rakesh Mehta, had got the draft sanction orders typed and signed the same which in itself shows nonapplication of mind. It is contended by Sh.Hariharan, Ld. Senior Advocate, Sh.H.L.Chopra and Sh.S.P.Aggarwal, Ld.Advocates that the orders passed by both the sanctioning authorities, as well as the draft sanction orders are, verbetim word by word. It is contended by Ld.Defence Counsels that there was no material available with the sanctioning authority, to state the facts which have been stated in the sanction order as during the course of their cross examination on being asked about the documents submitted to them and referred by them, they gave evasive replies.
152. It is submitted by Ld.Defence Counsels that, had the sanctioning authority perused and considered the statements of PW5 Deepak Mukhopadhyay and PW6 C.C.No: 58 / 2011 Page No.98 of 228 Judgement in the matter of:-
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H.D.Seekri, recorded by Investigating Officer under section 161 Cr.P.C, then they would not have passed the sanction order. It is contended that despite this, the sanction orders were passed which in itself reveals nonapplication of mind. It is contended that the sanction order be held as "bad in law" and the proceedings be dropped. To substantiate their contentions, Ld.Defence Counsels had relied upon the judgement of Hon'ble Apex Court in Ashok Kumar Aggarwal's Case (supra).
153. I have given my thoughtful consideration to the rival contentions advanced and have perused the relevant provisions of law, in the light of the interpretations given to it by Hon'ble Superior Courts.
154. There is no doubt that this provision has been brought on the Statute Book, by the legislature to protect the honest public servants from any vexatious prosecution.
However, this protection by no stretch of imagination can be C.C.No: 58 / 2011 Page No.99 of 228 Judgement in the matter of:-
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regarded as a shield for those who indulge in illegal activities.
155. It has been held by Hon'ble Apex Court time and again that the Court where the question of validity of sanction is raised, has to see as to whether the sanctioning authority did consider all the evidence collected by the investigating agency ie. oral as well as documentary.
156. Hon'ble Apex Court in a recent case titled "State of Maharashtra Vs. Mahesh G.Jain" reported as Criminal Appeal no.2345 of 2009 decided on 28.05.2013 had aptly summed up the principles and guidelines which are required to be followed to decide the question which inundates the Trial Court, challenging the sanction order.
157. Hon'ble Apex Court in this judgement had considered all the previous laws laid down by it, including the cases referred to and relied upon by Ld.Defence Counsel C.C.No: 58 / 2011 Page No.100 of 228 Judgement in the matter of:-
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mentioned hereinabove.
158. Hon'ble Apex Court after appreciating the earlier precedents on the subject, had culled out the guiding principles in Para 13 of its Judgement, which are reproduced as under :
(a) It is incumbent on the prosecution to prove that valid sanction has been granted by Sanctioning Authority after being satisfied that a case for sanction has been made out.
(b) The Sanction Order may expressly show that the sanctioning authority has perused the material placed before him and after consideration of the circumstances, has granted sanction for prosecution.
(c) The prosecution may prove by adducing the evidence that the material was placed before the Sanctioning Authority and his satisfaction was arrived at, upon perusal of the material placed before him.
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(d) Grant of Sanction is only an
administrative function and the
sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
(e) The adequacy of material placed before the Sanctioning Authority cannot be gone into, by the Court, as it does not sit in Appeal over the Sanction order.
(f) If the sanctioning authority has perused all the material placed before him and some of them have not been proved, that would not vitiate the order of sanction.
(g) The order of sanction is a pre requisite, as it is intended to provide a safeguard to the public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper technical approach to test its validity.
..... (emphasis supplied).
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159. In view of these guiding principles, more particularly the principle mentioned at Point (d) (e) (f) and
(g) above, the adequacy of the material placed before the Sanctioning authority is not required to be gone into, as this Court is not sitting in appeal over the sanction order.
160. The discretion whether to grant or not to grant the sanction order lies with the sanctioning authority and it is the subjective opinion of the said administrative authority, which it has to arrive, on the basis of material placed before it.
161. The sanctioning authority was under an obligation to see the material placed before it by CBI, collected during the course of investigations and to arrive at a conclusion as to whether the same is sufficient and requires grant of sanction for prosecution of accused persons or not.C.C.No: 58 / 2011 Page No.103 of 228
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162. In view thereof, it is to be seen as to whether the complete record of the investigations, including oral and documentary evidence collected was or was not placed before the sanctioning authority.
163. It is apparent on bare perusal of the examination in chief of PW11 as well as PW13 that the complete record was placed before them which included the oral and documentary evidence collected during the course of investigations. Merely, because these witnesses during the course of their cross examination had stated that they do not remember to have seen and perused the documents, including the statement of witnesses or had called for the records from MCD (Vigilance Branch) regarding accused persons before passing the sanction orders, cannot lead to any such inference that these documents were never produced before them or were not seen by them. Noone is expected to remember all the documents gone through by him after lapse of a decade's time.C.C.No: 58 / 2011 Page No.104 of 228
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164. The precedent relied upon by Ld.Defence Counsel in Ashok Kumar Aggarwal's Case (supra), does not come to their rescue, as in said case, the sanctioning authority by way of an affidavit, had stated that only the SP's Report along with list of documents and list of witnesses was submitted before it. That is not the situation in the case in hand, where the sanctioning authorities in their deposition have categorically stated to have perused all the material collected by the investigating agency which was put up before them.
165. So far as wording of sanction order is concerned, as per the settled propositions of law, laid down by Hon'ble Apex Court in a catena of decisions and reiterated in above referred decision of Mahesh G.Jain (supra), that there is no prescribed format or language for the sanctioning authority to pass the sanction order. It solely is the discretion of the sanctioning authority how to word the sanction order.C.C.No: 58 / 2011 Page No.105 of 228
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Submission of draft sanction order by the investigating agency with the competent authority was never held as "improper". It is only for the sanctioning authority first to apply its mind and if satisfied for granting the sanction, it can take help and assistance from the draft sanction order.
166. Even otherwise, it has been held by Hon'ble High Court of Bombay in case titled "Bhagwan Jathya Bhoir Vs. State of Maharashtra" reported as 1992 Cr.L.J. 1144(Bombay), that the procedure adopted by the investigating agency in forwarding a draft sanction order to the sanctioning authority after summarising all evidence and requesting him to examine the record and to accord sanction if satisfied, is not improper.
167. Further, in another case titled "K.Nachimuthu Vs. State" reported as 1994 Cr.L.J 2760, Hon'ble High Court of Madras had held that a sanction order C.C.No: 58 / 2011 Page No.106 of 228 Judgement in the matter of:-
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cannot be assailed for nonapplication of mind when the sanctioning authority had adopted the draft sent to them by the investigating agency, only after through scrutiny of the facts constituting the offence and then signing it.
168. The other contention of Ld.Defence Counsels that had the sanctioning authority considered statements of PW5 and PW6 recorded by the investigating agency under section 161 Cr.P.C, then it would not have granted the sanction, to my mind is also devoid of any merits. As the sanctioning authority is not supposed to judge and adjudicate the entire evidence on the touchstone of its evidentiary values and other aspects of law. The sanctioning authority on the basis of available material before it, is required to satisfy itself for grant or refusal of sanction for prosecution, which in this case the sanctioning authority did, exercise and after satisfying itself opined that material is sufficient for grant of sanction for prosecution. Hence the sanction orders.C.C.No: 58 / 2011 Page No.107 of 228
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169. Sh. Hariharan, Ld. Senior Advocate, assailing the sanction order Ex. PW13/B qua Dinesh Yadav contended that the sanctioning authority had mentioned work order no. 133 in the sanction order apart from work order no.
134 which was the actual work order in question in the present case. That in itself shows non application of mind on the part of sanctioning authority as the work order no. 133 has nothing to do with the present case. I do not find any merits in this contention of Ld. Defence Counsel in view of the fact that after investigations, the investigating agency finding that part of bitumen allegedly procured by the contractor against work order no. 133 vide forged invoice Ex. PW24/D was used in execution of the present work mentioned the same in its report.
In view thereof, it is apparent that the sanctioning authority had considered this aspect as well, while passing the sanction order and that is why work order no. 133 finds mention in Ex. PW13/B. Rather, mentioning of this work order in Ex. PW13/B augurs in favour of the validity of the sanction order. C.C.No: 58 / 2011 Page No.108 of 228
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170. Another contention of Ld. Defence Counsel was that the sanctioning authority failed to look into the joining of Dinesh Yadav in this Division before passing the sanction order. This contention of Ld. Defence Counsel to my mind is also devoid of any merits so far as validity of the sanction order Ex. PW13/B is concerned as the deposition of PW13 reveals that he had considered all the documents submitted by the Investigating agency. For arrival of the subjective satisfaction of the sanctioning authority the aspect of non examination of the personal records of the accused cannot be put in question.
As in view of Mahesh G Jain's Case (Supra), this court is not sitting in appeal over the subjective satisfaction of the sanctioning authority.
171. Even otherwise, the Legislature in order to stop unjustified claims raised on behalf of public servants to derive undue advantage of requirement of sanction have incorporated Section 19(3) of Prevention of Corruption C.C.No: 58 / 2011 Page No.109 of 228 Judgement in the matter of:-
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Act which if read with section 465 of Cr.P.C, makes it clear that any error, omission or irregularity in the grant of sanction will not affect any finding, sentence or order passed by a competent Court, unless in the opinion of the Court, a failure of justice has been occasioned.
172. Hon'ble Apex Court in a recent case titled "State of Bihar & Ors. vs. Rajmangal Ram" in Criminal Appeal No.708 of 2014, arising out of SLP (Crl.) No.8013 of 2012, decided on 31.03.2014 ; has held that the Sanction Order cannot be held to be invalid and proceedings cannot be interdicted without giving any finding to the effect that a failure of justice as a result thereof, has occasioned.
173. Merely because any error or irregularity has occurred in the sanction order, the same is not to be considered fatal, unless it results in failure of justice. C.C.No: 58 / 2011 Page No.110 of 228
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174. In the present case, as we are at the fagend of the trial and accused public servants have already undergone the trial, further I have not found any error or omission in the sanction orders passed qua them by the sanctioning authorities resulting in any failure of justice.
175. Thus, I do not find any merits in the contentions advanced by Ld. Defence Counsels to challenge the authenticity of the sanction orders ie. Ex.PW.11/A to Ex.PW.11/D and Ex.PW.13/A & Ex.PW.13/B, which to my mind have been passed by the sanctioning authority with due & proper application of mind.
176. Having held that the sanction for prosecution granted against the public servants was valid, I shall now delve upon the contentions of Ld.Defence Counsels on factual aspects, visavis the necessary ingredients of the offences, with C.C.No: 58 / 2011 Page No.111 of 228 Judgement in the matter of:-
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which the accused persons were charged.
177. This has brought me to the most pivotal part of the prosecution case ie. Conspiracy, which is the primary charge against the accused persons, being axis around which revolves the other charges. As per the case of prosecution, the officers of MCD being public servants, had entered into a criminal conspiracy with the Contractor, object of which was to cheat MCD. It is contended by Ld.Prosecutor that the public servants knowing or having reasons to believe the invoices to be forged ones, have facilitated the submission of same by the contractor to them, on the basis of which they made relevant entries in their records, which ultimately led to release of payment by MCD to the contractor and thus they have caused pecuniary advantage to him and corresponding wrongful loss to MCD.
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178. Ld.Special Public Prosecutor made an endeavour to invoke Section 10 of Indian Evidence Act. He, in order to buttress his arguments that all the conspirators are to be made constructively liable for the substantive offences committed, pursuant to the conspiracy on the basis of the "Principle of Agency". He contended that all the public servants had entered into a conspiracy with the contractor, therefore the acts done by the contractor, pursuant to the agreement is in contemplation of law, committed by each one of them, therefore all of them should be held responsible and liable for the same.
179. I have considered the submissions advanced by Ld.Public Prosecutor. In order to appreciate the same, it is pertinent to make mention of Section 10 of Indian Evidence Act, which reads as under : C.C.No: 58 / 2011 Page No.113 of 228 Judgement in the matter of:-
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SECTION 10 THINGS SAID OR DONE BY CONSPIRATOR IN REFERENCE TO COMMON DESIGN - Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.
180. Bare perusal of this Section makes it evident that there is no such deeming provision in it, as has been contended by Ld.Prosecutor. No doubt, Section 10 rests on the 'Principle of Agency', but it lays down only a rule of relevancy. As per the provisions of this Section, anything done or said by one of the conspirators in reference to the common intention becomes "relevant fact" as against each of the conspirators, to prove two things :
(i) Existence of the conspiracy ; and
(ii) That, they were party to this conspiracy. C.C.No: 58 / 2011 Page No.114 of 228
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181. This has been held so by Privy Counsel in case titled "Mirza Akbar vs. King Emperor" reported as AIR 1940 PC 176. This interpretation has been followed by Hon'ble Apex Court in catena of decisions.
182. Hon'ble Mr.Justice Jagannath Shetty had analyzed this Section in case titled "Kehar Singh & Ors. v/s State (Delhi Administration)" reported as 1988 (3) SCC 609, as under : "From an analysis of the section, it will be seen that Section 10 will come into play only when the court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence. There should be, in other words, a prima facie evidence that the person was a party to the conspiracy before his acts can be used against his coconspirator. One such prima facie evidence exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was first entertained, is relevant against the others. It C.C.No: 58 / 2011 Page No.115 of 228 Judgement in the matter of:-
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is relevant not only for the purpose of proving the existence of conspiracy, but also for proving that the other person was a party to it."
183. In view thereof, distinction was made between the conspiracy and offence committed, pursuant to the conspiracy. It is only in order to prove the existence of conspiracy and parties to the conspiracy that this rule of evidence, can be put in service.
"Conspiracy to commit a crime itself is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence to which individual offenders are liable to punishment, independent of the conspiracy."
184. In view thereof, I do not find any merits in the contentions advanced by Ld.Public Prosecutor as the "Theory of Agency" cannot be extended thus far, that is to say, to hold all the conspirators guilty of actual offence committed in C.C.No: 58 / 2011 Page No.116 of 228 Judgement in the matter of:-
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execution of common design, if such offence were committed by one of them, without participation of others.
185. Whether or not, conspirators will be liable for substantive offence other than the conspiracy and if so to what extent, has to be proved on record by the prosecution on the basis of evidence which, I shall be adverting to hereinafter.
186. Further, before going that far, I would hasten to add that prosecution has first to establish that all the accused persons facing trial were in fact party to the alleged conspiracy with which they have been charged.
187. In an attempt to demolish the prosecution case, Sh.Hariharan Ld.Senior Advocate, Sh.S.P.Aggarwal, Sh.R.S.Jamuar, Sh.H.L.Chopra and Sh.O.P.Saxena, Advocates, Ld.Defence Counsels vociferously C.C.No: 58 / 2011 Page No.117 of 228 Judgement in the matter of:-
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contended during the course of arguments, that there is nothing on record brought by the prosecution during the course of evidence, from which it can be inferred that there was any meeting of mind between the public servants and the contractor. It is further submitted by Ld.Defence Counsels of all the accused persons that as the conspiracy can only be established on the basis of circumstantial evidence. Further, the circumstances proved, must form a chain of events leading to a irrepressible conclusion about guilt of the accused.
188. In support of their contentions, Ld.Defence Counsels had relied upon the law laid down in cases titled as under : (i )"Kehar Singh & Ors. vs. State" (supra) ;
(ii) "K.R.Purushotnaman vs. State of Kerala"
reported as 2005 (3) JCC (SC) 1847 ;
(iii) "Baldev Singh vs. State of Punjab";
reported as 2009 (3) SCC (CRI.) 66.
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189. I have considered the submissions advanced and have perused the law laid down by Hon'ble Apex Court in the precedents relied upon by Ld.Defence Counsels. There is no denying the fact that Hon'ble Apex Court while holding that the offence of conspiracy is committed in secrecy and can be proved only by circumstantial evidence has held that these circumstances should be proved, beyond reasonable doubt, leading to the guilt of the accused.
190. Section 120A IPC defines "criminal conspiracy". Accordingly to this section when two or more persons agree to do, or cause to be done (i) an illegal act, or (ii) an act which is not illegal, by illegal means such an agreement is designated as "criminal conspiracy".
191. In view of this definition, the gist of the offence is "an agreement to break the law". Parties to such an C.C.No: 58 / 2011 Page No.119 of 228 Judgement in the matter of:-
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agreement are guilty of criminal conspiracy, though the illegal act agreed upon by them to be done, has not or could not be done. It is not necessary that all the parties to such an agreement should agree to do a single illegal act. It may comprise of commission of a number of acts. It is not necessary that all the conspirators must know each and every detail of the conspiracy.
192. Conspiracy is seldom an open affair. Its existence and objects can only be deduced from circumstances of the case and conduct of the accused, who are party to such conspiracy.
193. As Conspiracy has to be and can only be inferred from the physical manifestation of conduct of the conspirators / accused. Thus, to deduce actual meeting of minds amongst the accused person to find out transmission of thoughts, the actual words used by them during C.C.No: 58 / 2011 Page No.120 of 228 Judgement in the matter of:-
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communication, are to be considered.
194. The conduct of the conspirators / accused are to be deciphered not only from the actual words spoken by them but also from their body language, mannerism and behaviour by which they intervene in the conversation taking place between the complainant and coaccused, as their state of mind has to be inferred on the basis of their conduct.
195. Hon'ble Apex Court in case titled "V.C.Shukla vs. State" reported as 1980 (2) SCC ; had held that in most cases it will be difficult to get direct evidence of the crime, but conspiracy can be inferred even from circumstances giving rise to a conclusive or irrepressible inference of an agreement between two or more persons, committing an offence.
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196. Hon'ble Apex Court in case titled "Noor Mohd. Yusuf Momin vs. State of Maharashtra" reported as AIR 1971 SC 885, has held : "...in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts.
Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material."
197. For the purposes of considering the conduct of the accused persons so as to deduce about his complicity with the conspiracy, a "rule of caution" has been laid down by Privy Counsel in case reported as AIR 1954 PC 140 that : "In a joint trial care must be taken to separate the admissible evidence against each accused and the judicial mind should not be allowed to be influenced by evidence admissible only against others".
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198. In case titled "Alvin Krumlewitch v. United States of America" reported as (93 L.Ed. 790) ; it has been held by Justice Jackson that : "codefendant in a conspiracy trial occupies an uneasy seat" and "it is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together."
199. These words of caution were reiterated by Hon'ble Apex Court speaking through Hon'ble Mr.Justice D.P.Wadhwa in case titled "State vs. Nalini" reported as 1999 (5) SCC 253 ; that : "There is a need to guard against prejudice being caused to the accused on account of the joint trial with other conspirators. The learned Judge observed that "there is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy". C.C.No: 58 / 2011 Page No.123 of 228
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"It has been further held that criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy".
200. Hon'ble Apex Court in case titled "Esher Singh Vs. State of A.P." reported as 2004 (11) SCC 585 has held as under;
"A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy. The circumstances before, during and after the occurrence can be proved to decide about the complicity of the accused".
201. Being aware of the fact that for the purposes of appreciating the evidence on record with respect to the allegations of conspiracy, the circumstances in which the accused acted, their actions and mannerism are required to be considered, which I shall look into, mindful of the words of C.C.No: 58 / 2011 Page No.124 of 228 Judgement in the matter of:-
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caution laid down by Hon'ble Apex Court in above referred precedents.
202. However, before adverting to the evidence on record and considering that the accused public servants are also charged with "criminal misconduct" under section 13(1) (d) of Prevention of Corruption Act, I am of the opinion that the evidence cannot be appreciated in isolation qua the charge of conspiracy. As the alleged allegations of "criminal misconduct"
is flowing out of inextricably woven in the allegations of conspiracy, I deem it appropriate to consider this contention raised on behalf of prosecution and defence, alongside the arguments with respect to conspiracy.
203. It is contended by Ld.Public Prosecutor that the actions and inactions on the part of public servants in accepting the invoices from the contractor, knowing the same to be forged one and making their records, pursuant to those C.C.No: 58 / 2011 Page No.125 of 228 Judgement in the matter of:-
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invoices goes on to establish that the same amounts to "criminal misconduct". This contention of Ld.Public Prosecutor was sought to be countered by Ld.Defence Counsels stating that public servants acted in discharge of their official duties as they were supposed to receive the invoice only for the purposes of checking the quality and quantity of bitumen brought by the contractor at the plant and it was neither their duty to verify the genuineness of the invoice nor they had any means to verify the same, therefore by no stretch of imagination their conduct can be termed as "criminal misconduct".
204. I have considered the submissions advanced on this aspect of Ld.Public Prosecutor as well as Ld.Defence Counsels.
205. The word "misconduct" has been defined in Black's Law Dictionary, which reads as under: C.C.No: 58 / 2011 Page No.126 of 228 Judgement in the matter of:-
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"The transgression of some established rule of action, dereliction from duty, unlawful behaviour, improper or wrong behaviour".
206. The term "misconduct" implies wrong intention and not a mere error of judgement. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or Statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action.
207. Section 13(1) (d) of the Prevention of Corruption Act, does not make any negligence or a plain and simple misconduct on the part of any public servant, a punishable offence. Hon'ble Apex Court in a catena of C.C.No: 58 / 2011 Page No.127 of 228 Judgement in the matter of:-
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judgement while interpreting the provisions of this Act has laid down that a blatant carelessness or gross negligence on the part of any public servant, does not ipsofacto, comes within the domain of this Section. The alleged misconduct on the part of public servant has to be actuated with criminal intent. The abuse of his position as a public servant in order to come within the mischief of the section must necessarily be dishonest intention on the part of said officer qua the alleged act.
208. The burden to prove affirmatively that accused by abusing his official position had obtained any pecuniary advantage either for himself or for any other person, lies on the prosecution. The prosecution on the basis of evidence led by it on record, has to satisfy the principal that all inculpatory facts, established on record must be inconsistent with the innocence of the accused and incapable of explanation of any other hypothesis than that of his guilt.
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209. In the backdrop of above, the evidence led on record by the prosecution during the course of trial is required to be analyzed so as to find out as to whether the officers of MCD, the public servants, had conspired or entered into any agreement with the private person ie. accused contractor Kartar Singh Shokeen, for doing an illegal act or doing an act which though is legal by illegal means and if so, whether this act, conduct, action or inaction on the part of public servants was such, which can be termed as "misconduct" and whether the same traverse in the contours of "criminal misconduct" as defined in the Prevention of Corruption Act.
210. In order to ascertain the same, it is pertinent to have a grasp on the duties, which these public servants, being Junior Engineers (Plant) and Junior Engineers (Site), Assistant Engineers, Executive Engineers, Accounts Clerk and Accountant, were required to fulfil and whether they had performed their duties, as was expected from them or whether C.C.No: 58 / 2011 Page No.129 of 228 Judgement in the matter of:-
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the actions and omissions of theirs were laden with any dishonest intention, in order to cause any pecuniary advantage to their coaccused.
211. PW5 Deepak Mukhopadhyay, Retired as Engineer - in - chief from MCD and thus a responsible officer, during the course of his deposition had deposed that the Engineers on the basis of invoices submitted with them by the contractor, were supposed to make entry with respect to the quantum of bitumen brought. He deposed that as bitumen used to arrive at odd hours, therefore it was not the duty of any Municipal Staff to receive bitumen at Plant. During the course of his cross examination, this witness went on to state that Engineers of MCD had no role in obtaining bitumen against the invoice. He further deposed that on the basis of the invoices delivered to engineers on the following day, JE (Plant) used to make entries with respect to quantum of bitumen brought. C.C.No: 58 / 2011 Page No.130 of 228
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212. PW5 deposed that contractor or his representative at the time of offloading the bitumen during night hours, used to hand over the invoice to whosoever is present at the plant and JE (Plant) on the following morning was supposed to check the material. He went on to state that it is the duty of the contractor to procure genuine product against the genuine invoice.
213. PW6 Sh.Hari Dev Sikri also deposed that JE (Plant) with respect to dense carpeting, is responsible for quality of material and mix produced at plant. He deposed that he maintains the records pertaining to materials received at the plant during the production of mix. He also deposed that bitumen tankers generally arrive during the night hours and JE (Plant) on his visit to the plant on the following day, was required to check the quantity and make entries of the quantities received. He deposed that JE (Site) was responsible to lay the mix received by him from the plant. PW6 further C.C.No: 58 / 2011 Page No.131 of 228 Judgement in the matter of:-
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deposed that the Engineers of MCD were required to conduct Tests Checks and were also required to maintain bitumen register, Lab Test Register and Tonnage Register etc.
214. This deposition of prosecution witnesses regarding the duties of public servants ie. the officers of MCD involved with dense carpeting of roads is not challenged or disputed on behalf of the accused persons. It is pertinent to mention here that this deposition of prosecution witnesses, is also in consonance to the duties of the Engineering Staff mentioned in CPWD Manual, more particularly, under the head Execution of Works in Clause 5.11.1 of CPWD Manual which reads as under : CLAUSE 5.11.1 It is incumbent upon various officers concerned with the work, i.e., Senior Architect / Architect, Ses/EEs (Civil and Elec.), AE and JE to inspect the works frequently to ensure that the works are being executed in general according to design and specifications laid down for the purpose. Primarily an Officer who records / testchecks the measurements for an item of work will be responsible for the quality, quantity and dimensional accuracy of the work he has measured / test - checked.
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215. Further under clause 7.33.2 of CPWD Manual, the duties and responsibilities of the Engineering Staff is laid as under : CLAUSE 7.33.2 Test-check of the Executive Engineers shall also include atleast 10% test - check of the measurements of RCC items so as to ensure structural safety of building.
RESPONSIBILITY OF OFFICERS RECORDING / TEST - CHECKING MEASUREMENTS The officer who records / test - checks the measurements for an item of work will be responsible for the Quality, Quantity and Dimensional accuracy of the work he has measured / testchecked.
216. In the light of prosecution and defence evidence on record in the form of PW1, PW7, PW10 and DW1 and DW2, it is established that :
(a) Contractor is required to execute the work as per NIT Conditions and Work Order specifications ; C.C.No: 58 / 2011 Page No.133 of 228
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(b) Contractor is required to procure bitumen from approval oil companies and to produce the invoices as a proof thereof.
(c) JEs (Plant) on the basis of invoices so delivered by the contractor are supposed to make relevant entries in their records, measurement books etc.
(d) JEs (Plant) are required to conduct the test checks with respect to the mix prepared at the plant by contractor and only after finding it to be as per specifications, to let it go to the site.
(e) JEs (Site) are responsible for the quality, quantity and dimensional accuracy of the work to be executed at site by the contractor and to make necessary test checks and record entries in their registers.
(f) JE(s) then on the basis of recorded entries prepare the bills alongwith the supporting documents.
(g) Assistant Engineers make the overall supervision of work and the entries so recorded by the Junior Engineers.
(h) Bill is then sent to the Accounts Branch for processing along with the invoices and supporting documents.C.C.No: 58 / 2011 Page No.134 of 228
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(i) It is prepared and processed in the Accounts Branch whereafter it is put up before Executive Engineer, who passes the same.
(j) Only thereafter, the payment is released to the contractor.
217. On the basis of deposition of PW15 P.K.Khandelwal and PW14 M.P.Khatana, it has come up on record that for the work order Ex. PW15/B awarded by MCD to contractor M/s Vijay & Company, accused Kartar Singh Shokeen had submitted 02 invoices i.e. Ex.PW.7/A and Ex.PW. 24/D which were forged ones (as held by me hereinafter in para 296 (infra).
218. That, the public servants as an acknowledgment of receipt of these invoices, more particularly, Junior Engineers Bhupinder Kumar and Abhay Kumar and Assistant Engineer S.C.Chellani ; had signed on these invoices C.C.No: 58 / 2011 Page No.135 of 228 Judgement in the matter of:-
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and had made relevant entries in the Measurement Book and other registers namely Tonnage Registers, Tack Coat Register, Bitumen Register etc. Apart from these accused persons, entries made in these documents were also got signed by accused Dinesh Yadav, Executive Engineer.
219. That, thereafter the first running bill with respect to this work order Ex.PW.15/D was prepared and processed by these engineers and by accused O.P.Saroha and accused P.S.Chauhan, MCD and was passed by Dinesh Yadav, Executive Engineer on the basis of which payment of Rs.3,60,020/ was released in favour of M/s Vijay & Company through cheque Ex. PW3/B.
220. The sole question which requires consideration is, as to whether the public servants had accepted these invoices with the knowledge that the same are forged ones or they did accept the same unaware of its genuineness. Further, C.C.No: 58 / 2011 Page No.136 of 228 Judgement in the matter of:-
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they made their records influenced by any motive or they did it in plain and simple discharge of their duties.
221. Before proceeding further, to find out answer to this question, it is pertinent to mention here that although during the course of evidence and cross examination of prosecution witnesses, the signatures of these accused persons were not disputed by Ld.Defence Counsels. However, from the deposition of the investigating officer coupled with the statement of independent witnesses ie. PW31 V.D.Mathur, PW34 Dinesh Pradhan, PW35 Babu Lal and PW36 Kanchid Singh, it is apparent that during the course of investigations, the specimen signatures of the accused persons taken by the Investigating Officer, were sent for comparison to CFSL with the questioned documents.
222. Prosecution through the deposition of PW24 Sh.S.L.Mukhi and PW25 Dr.B.A.Vaid and their reports C.C.No: 58 / 2011 Page No.137 of 228 Judgement in the matter of:-
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Ex.PW.24/E & Ex.PW25/G has also proved on record that the questioned documents ie. Measurement Book, the registers as well as the running bills were signed by the accused public persons.
223. Sh.H.L.Chopra & Sh.S.P.Aggarwal & Sh.R.S.Jamuar, Advocates, Ld. Defence Counsels, during the course of arguments had raised objection that the specimen signatures of these accused persons could not have been taken as per Law and the prescribed procedure, as no permission from the Court was taken by the IO, therefore, the report received from CFSL should not be relied upon. Ld.Defence Counsels in support of their contentions had relied upon the law laid down in case titled "Sapan Haldar & Ors. Vs. State", decided by Hon'ble High Court of Delhi bearing Criminal Appeal no. 804/01 on 25.05.2012. C.C.No: 58 / 2011 Page No.138 of 228
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224. I have considered the the arguments advanced on behalf of the accused public servants and have perused the precedent relied upon by Ld.Defence Counsel. In my considered opinion, the same does not apply to the facts of the present case in view of the judgement of Hon'ble Apex Court in case titled "Rabindra Kumar Pal @ Dara Singh Vs. Republic of India" , reported as 2011 (2) SCC 490.
225. Further, the signatures as well as the entries in these registers were not disputed during the course of cross examination of prosecution witnesses, rather the stand taken on behalf of accused persons in their defence was that all these entries were made by the public servants in discharge of their official duties.
226. In view of above, it is apparent that the entries in the relevant documents and registers, as well as bills were C.C.No: 58 / 2011 Page No.139 of 228 Judgement in the matter of:-
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made by the public servants on the basis of the invoices submitted by the contractor with them purportedly issued from the oil companies which were forged ones. It is required to be seen as to whether the public servants had received these invoices in furtherance of any conspiracy, knowing or having reasons to believe the same to be forged ones or they had accepted the same as part of their duties with no reasons to doubt about the genuineness of the same. As it has been held by Hon'ble Apex Court in AIR 96 SC 1744, that to establish the charge of conspiracy, "knowledge" about indulgence in either an illegal act or legal act by illegal means is necessary.
227. In view of above, everything has boiled down to the knowledge on the part of public servants regarding the invoice in question. It is to be seen as to whether prosecution on the basis of evidence adduced during the course of trial, has been able to establish that the public servants did have the C.C.No: 58 / 2011 Page No.140 of 228 Judgement in the matter of:-
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requisite knowledge that the invoices in question were forged ones and despite having this knowledge, they went on to make requisite entries in their records, so as to ultimately facilitate the release of payment to their coaccused Vijay Pal Shokeen and Kartar Singh Shokeen.
228. To bring home the aspect of knowledge on the part of public servants, it has been contended by Ld.PP that JE (Plant) who is supposed to remain present at the plant of contractor, could have very well ascertained about these forged invoices, as the registration number of the vehicle ie. tanker mentioned on these forged invoices were of such vehicles which were incapable of transportation of the bitumen or were never engaged for transportation of the bitumen.
229. Second contention urged by Ld.Public Prosecutor was that as per the NIT conditions and work order conditions, contractor was supposed to submit cash receipts, C.C.No: 58 / 2011 Page No.141 of 228 Judgement in the matter of:-
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terminal tax receipts, gate passes and invoices with MCD.
However the public servants for reasons best known to them, did not press for submission of cash receipts, gate passes and terminal tax receipts and only on the basis of the invoices which were forged ones, had made the relevant entries and facilitated the contractor to have his payment released, thereby causing wrongful loss to Municipal Corporation of Delhi (MCD).
230. Third contention raised by Ld.Public Prosecutor was that no work was executed at the site, but public servants in furtherance of the conspiracy had made the entries in their documents, which facilitated the release of payment.
231. Last contention urged by Ld.Public Prosecutor regarding knowledge of the public servants was that the invoices, so submitted with them by the contractor were C.C.No: 58 / 2011 Page No.142 of 228 Judgement in the matter of:-
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forged ones and that the public servants on the basis of their experience with the department could have very well distinguished between a genuine invoice and the forged ones, but they failed to do so, for obvious reasons.
232. All these contentions of Ld.Public Prosecutor were countered by Ld.Defence Counsels ie. Sh.Hariharan Ld.Senior Advocate along with his associate Sh.Anil Kumar, Advocate, Sh.S.P.Aggarwal, Sh.R.S.Jamuar, Sh.Jagjeet Singh along with Sh.H.L.Chopra and Sh.O.P.Saxena and Sh.Y.P.Sirohi, Advocates.
233. I will deal with these contentions on the basis of evidence which has come up on record. The first contention of Ld.PP to impute the knowledge on the part of public servants regarding the invoices that the same were forged ones, was that JE (Plant) at the time of arrival of bitumen, could have very well checked from the registration number of the tankers C.C.No: 58 / 2011 Page No.143 of 228 Judgement in the matter of:-
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of bitumen, if any, brought by the contractor at plant and comparing it with the registration number mentioned on the invoices, in question.
234. Prosecution in order to prove that the vehicles, registration number of which were mentioned on these forged invoices were never engaged in transportation of bitumen from Mathura to the plant of the contractor, had examined PW26 Gyan Chand, dealing clerk from transport authority and PW33, the IO P.K.Khanna on this aspect.
235. I have perused the invoice in question i.e. Ex. PW7/A submitted by accused Kartar Singh Shokeen which depicts that the bitumen was delivered through tanker bearing registration no. DL1GA0946. I have considered the deposition of PW26 Gyan Chand on this aspect.
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236. It is apparent from deposition of PW26 that the vehicle bearing registration no. DL1GA0946 owned by one Makhan Lal was an open body truck as per the documents of its registration Ex. PW26/A. Further as per the registration certificate, this vehicle can carry load upto 10 MT, as its laden weight is 16200 kg and unladen 6600 kg.
237. It is clear on bare perusal of the records pertaining to this vehicle that the same cannot carry bitumen being an open body truck. Further as per the registration records of this vehicle it was not capable of carrying 16 MT of weight as its carrying capacity as per records was 10 MT. Meaning thereby that the bitumen weight of which as per invoice Ex. PW7/A was 16 MT approximately could not have been transported on this vehicle, more particularly when it was an open body truck.
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238. No doubt, during his cross examination PW26 stated that it might be possible that after registration in the year 2002 the type of body of this vehicle was changed from open body to tanker, but that does not take away the version of this witnesses which has come up during his examination - in - chief supported by documents of registration. Had the body of this vehicle being changed as claimed on behalf of accused contractor, then it was for him to establish by bringing on record evidence to that effect, as after discharge of the initial onus on the prosecution, it was on accused contractor under section 106 of Evidence Act who was claiming something contrary to prove the same. But that was not to be.
239. In view of above, it is established that the bitumen was not supplied to the contractor M/s Vijay & Company through vehicle bearing registration no. DL1GA0946 as is mentioned on the invoice Ex. PW7/A submitted with MCD by accused Kartar Singh purportedly C.C.No: 58 / 2011 Page No.146 of 228 Judgement in the matter of:-
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issued in favour of his firm from IOCL.
240. Meaning thereby that anyone who has received the bitumen at the plant along with the invoices, barely on checking the registration number of the vehicle mentioned in the invoices and comparing it with the vehicle, can ascertain regarding the genuineness of the invoice.
241. It is submitted by Ld.Public Prosecutor that JE (Plant) is supposed to remain present at plant of contractor to receive bitumen and he on bare comparison of the registration number of vehicles mentioned on the invoices with the ones by which bitumen if any brought by the contractor would have known that invoices are not genuine. But he failed to do so.
242. To appreciate this contention of Ld.Public Prosecutor, it is required to be seen from the material on record, as to whether the bitumen was or was not received at C.C.No: 58 / 2011 Page No.147 of 228 Judgement in the matter of:-
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the plant, in presence of JE (Plant).
243. To ascertain the same, it is required to peruse the deposition of prosecution witnesses. It is apparent from the deposition of PW6 H.D.Sikri and PW5 Deepak Mukhopadhyay ; both of whom were the prominent witnesses of MCD, that they have categorically deposed during the course of their examination in chief as well as cross examination that bitumen used to arrive at the plant of the contractor during "night hours" and JE (Plant) is not supposed to remain present at the plant during odd hours. Both these witnesses have categorically deposed that JE (Plant) on receipt of invoice, which used to be handed over to him on the following morning by representative of the contractor at the plant, used to check the quantity of the bitumen brought.
244. These prosecution witnesses on the aspect of this deposition of theirs that JE (Plant) is not supposed to be C.C.No: 58 / 2011 Page No.148 of 228 Judgement in the matter of:-
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present at plant in night hours and bitumen generally arrives at the plant during odd hours, were not cross examined by Ld.Public Prosecutor. Rather their version was endorsed by PW33 P.K.Khanna, the IO, that bitumen used to arrive at the plant during night hours.
245. None of these witnesses have stated that the vehicle cannot be off loaded at the plant till arrival of JE (Plant). Further, the investigating officer PW33 P.K.Khanna, during the course of his deposition had failed to bring on record any circular, rule, notification or office order during the year 199798, vide which it was mandatory that bitumen brought to the mixing plant of the contractor, was to be offloaded only in presence of JE (Plant). IO proved on record the circulars Ex. PW15/E to Ex. PW15/I which were taken into possession by him from PW15 P.K.Khandelwal. However, in none of these circulars while depicting the duties of JE (Site), it is required or made mandatory for JE (Plant) to remain present at the plant C.C.No: 58 / 2011 Page No.149 of 228 Judgement in the matter of:-
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of contractor during night hours.
246. In view of this prosecution evidence on record, it is apparent that it was not the duty of JE (Plant) to remain present during night hours when bitumen used to arrive. Therefore this contention of Ld.PP that on bare comparison of the vehicle which has allegedly brought the bitumen at the plant and the number of vehicle mentioned on the invoice, it could have been ascertained by JE (Plant) that the invoices are forged ones, does not hold any merits.
247. Prosecution evidence falls short of proving the fact that bitumen against the invoices Ex.PW.7/A and Ex.PW. 24/D arrived at the plant, in presence of any of the accused persons. Therefore, no knowledge of these invoices being forged ones, can be imputed on the public servants on this count.
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248. This has led me to the second argument advanced by Ld.Public Prosecutor, for inferring the "knowledge" on the part of public servants that the invoices were forged ones. This contention being that as per the work order and NIT Conditions, the accused public servants failed to insist the contractor to file cash receipts, gate passes and terminal tax receipts and went on to make entries in their records to facilitate the release of payment.
249. In the present case, prosecution through the deposition of PW15 P.K.Khandelwal Executive Engineer, MCD has established on record that pursuant to NIT Ex.PW.15/A, Work order no. 134 Ex.PW.15/B was awarded in favor of M/s Vijay & Company. On the basis of which an agreement Ex. PW15/C was executed between MCD and accused Kartar Singh Shokeen. On bare perusal of these NIT Conditions and Work Orders itself, it is apparent that the same prescribes that a contractor is required to file Cash Receipts, Terminal Tax C.C.No: 58 / 2011 Page No.151 of 228 Judgement in the matter of:-
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Receipts,Gate Passes and Invoices.
250. However, PW6 H.D.Sikri and PW5 Deepak Mukhopadhyay, during the course of their examination in chief itself, categorically deposed that the cash receipts gate passes and terminal tax receipts were not being filed by the Contractors with MCD. It has been deposed by these witnesses about the reasons of not filing of these documents. They went on to depose that cash receipts were not being issued by the Oil Companies as a consolidated payment used to be deposited with the oil companies, against which they used to release the bitumen and for every release, neither the separate payment used to be made nor any receipts used to be issued, therefore the same was not being filed by the contractor. These witnesses further stated that Gate Passes were not being handed over by the oil companies to the Contractor or his representative as they used to take back the same, at their gate itself. Further, the contractor was not submitting gate C.C.No: 58 / 2011 Page No.152 of 228 Judgement in the matter of:-
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passes with MCD. So far as terminal tax receipts are concerned, all these witnesses stated during the course of their deposition that Terminal Tax was abolished, therefore there was no reason or occasion with the contractor to file terminal tax receipts.
251. This deposition of both these witnesses, was also endorsed by the Investigating Officer during the course of his deposition. Therefore, no evidence whatsoever has been brought on record by the prosecution, through deposition of any witness or by producing the record of any other work order to prove that all these four conditions or anyone apart from submission of invoices, was being fulfilled.
252. In absence of any such evidence on record, I do not find any merits in the contentions urged by Ld.Public Prosecutor that public servants had failed to ask the C.C.No: 58 / 2011 Page No.153 of 228 Judgement in the matter of:-
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(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
contractor for filing of cash receipts, gate passes and terminal tax receipts ; for the purposes of inferring that they were party to the conspiracy with the contractor.
253. Their having not insisted the contractor to file cash receipt, gate passes and terminal tax receipts, is and cannot be inferred as a deviation from normal / established practice with MCD. Rather, noninsistence of theirs to have these documents being filed by the contractor is in consonance to the regular practice prevalent with MCD as has been deposed by the witnesses of the prosecution themselves.
254. Thus, on this aspect as well, neither any knowledge that the invoices submitted to them by contractor were fake can be imputed on public servants, nor from their conduct any criminality or dishonest intention can be inferred.
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255. This has brought me to the next contention urged by Ld.Public Prosecutor. It is contended that no work was executed by the contractor but the public servants made false entries in the Measurement Books, Test Checks Registers as well as in the Running Bills, for facilitating the release of payment in favor of the contractor.
256. This contention of Ld.Public Prosecutor to my mind, does not find support from the prosecution evidence which has come up on record. It has been deposed by the prosecution witnesses namely PW6 H.D.Sikri ; PW5 Deepak Mukhopadhyay ; PW12 S.K.Jain ; PW13 Rakesh Mehta ; PW32 S.K.Kashyap and PW33 IO P.K.Khanna ; that no complaint regarding execution of work was received from any quarter. Further from the cross examination of PW5 and PW6, who deposed about the preparation of job mix and ready mix, it is apparent that the work was done. PW32 S.K.Kashyap also stated that they had examined the witnesses C.C.No: 58 / 2011 Page No.155 of 228 Judgement in the matter of:-
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regarding transportation of mix from plant to site which has also been corroborated by PW33, the investigating officer.
257. Further, it has come up on record through deposition of prosecution witness himself that samples of job mix were received at the laboratory. PW4 Brahmanand, Technical officer of MCD proved the report of Lab Test Ex. PW4/A pertaining to the present work order of M/s Vijay & Company. This deposition of prosecution witness demolishes the contention raised by Ld. Public Prosecutor that no work was executed.
258. In view of this deposition on record and also considering the fact that no where in the charge sheet, prosecution has raised this fact that work was never executed, I do not find any merits in this contention of Ld.Prosecutor, which to my mind has been raised just as an afterthought. Further, it is apparent from the record that there is no evidence C.C.No: 58 / 2011 Page No.156 of 228 Judgement in the matter of:-
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to the effect that this work was either retendered by MCD or any action was taken against the contractor. Secondly, this contention of Ld.PP is not supported by any cogent & convincing evidence, for me to infer any knowledge on the part of public servants about their complicity with the contractor.
259. Ld.Public Prosecutor in order to impute complicity on the part of the public servants with the contractor had contended that for getting delivery of bitumen from approved oil agencies, the contractor requires a recommendatory letter from Executive Engineer. He contended that it is on the basis of this letter that a delivery order is issued by the Divisional Office of IOCL. He submitted that as no such recommendatory letter was issued in this case, which fact was in the knowledge of public servants, therefore, arrival of bitumen at the plant would have the effect of ringing bells on public servants and they should have checked the genuineness of invoices which they failed to do. C.C.No: 58 / 2011 Page No.157 of 228
Judgement in the matter of:-
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260. This contention of Ld.Public Prosecutor is countered by Ld.Defence Counsels in view of the cross examination of PW21 Ms.S.C.Banerjee. It is urged by them that in view of her deposition, recommendatory letter is not a prerequisite for getting the bitumen from IOCL, as the same can be released on the basis of work order itself.
261. I have considered the rival contentions in the light of deposition of PW21 Ms.S.C.Banerjee. This witness was examined by the prosecution to prove on record the procedure by which Divisional Office of IOCL issues a delivery order, pursuant to which the bitumen is released from the terminals ie. Mathura or Panipat. Perusal of cross examination of this witness makes it evidently clear that a recommendatory letter, from Executive Engineer though is required for issuance of delivery order, but the same is not sine quanon as the delivery order can be issued on the basis of C.C.No: 58 / 2011 Page No.158 of 228 Judgement in the matter of:-
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work order, in favor of the person who approaches the Divisional Office of IOCL for getting the delivery order for supply of bitumen.
262. Having regards to this deposition of the witness of the prosecution, against which no other evidence either in oral or documentary form has been produced on record by the prosecution, to establish that without recommendatory letter, bitumen could not be released by approved oil agencies. Consequently, the argument advanced by Ld.Public Prosecutor to impute knowledge on the public servants that the invoices being submitted with them by the contractor were not genuine, does not hold ground.
263. This has brought me down to the last contention urged by Ld.Public Prosecutor to bring home the "factum of knowledge" on the part of public servants regarding their being coconspirators and having the C.C.No: 58 / 2011 Page No.159 of 228 Judgement in the matter of:-
CC No.:58 / 11.
(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
knowledge that the invoices submitted by the contractor were forged ones. It is contended that the public servants on the basis of their experience with the department could have distinguished between the genuine invoice and the forged ones.
264. This contention of Ld.PP has been vociferously countered by Ld.Defence Counsels who submitted that the public servants neither had any experience, nor any mechanism to distinguish between the forged invoices and the genuine ones. It is further contended that apart from that, it was not the duty of the public servants to verify regarding genuineness of the invoice and it is contended that it was for the contractor to procure genuine bitumen, against genuine invoice from the approved oil companies.
265. I have considered the submissions advanced in the light of evidence which has come up on record. It is apparent on perusal of deposition of the witnesses from Indian C.C.No: 58 / 2011 Page No.160 of 228 Judgement in the matter of:-
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Oil Corporation Limited (IOCL), Mathura ie. PW8 Nitin Bhatnagar ; PW7 M.S.Rawat ; PW9 Khyali Singh and PW27 Kali Prasad ; that they were the ones, who were actually dealing with the invoices and issuance thereof being posted with S&D Division of IOCL Mathura. Even these witnesses during the course of their deposition had stated that it is difficult for any layman to distinguish between the forged invoice and the genuine invoice. It is deposed by them that they can distinguish between the forged invoices Ex.PW.7/A and Ex.PW.24/D only after comparing them with the original invoices Ex.PW.9/DA and sales summary Ex.PW.9/A.
266. These witnesses during the course of their deposition had stated that Indian Oil Corporation Limited (IOCL) had never sent any specimen format of the invoices or the specimen signatures of the authorized signatories to Municipal Corporation of Delhi nor these specimen were published anywhere. Even the prosecution witnesses produced C.C.No: 58 / 2011 Page No.161 of 228 Judgement in the matter of:-
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from MCD ie PW5 ; PW6 and PW15 have deposed that there was no mechanism for the accused public servants to compare the invoices so submitted with them by the Contractor with the original ones or with the specimen formats to find out and verify its genuineness. The prosecution witnesses from MCD during the course of their deposition had also deposed that no training of any sort was imparted to the public servants ie. the Engineering Staff or the Accounts people for enabling them to verify regarding genuineness of the invoice.
267. The investigating officer ie PW33 P.K.Khanna, during the course of his cross examination had stated that he had not investigated regarding the experience of the accused persons in their having dealt with such sort of invoices, prior to the present case.
268. Having regards to this evidence on record on the part of prosecution, I am of the considered opinion that the C.C.No: 58 / 2011 Page No.162 of 228 Judgement in the matter of:-
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accused public servants did not have the requisite or any expertise or mechanism available with them, to verify about the genuineness of the invoices. Further, prosecution has failed to bring on record any evidence regarding the experience of the accused public servants in dealing with such sorts of invoices which would have enabled them to distinguish between the genuine and forged invoices. More particularly, in view of the deposition of prosecution witnesses from IOCL that at first glance it is not possible to know about the genuineness of invoices and for a layman it is difficult to ascertain without comparing it with the original or specimen format.
269. Apart from above, to my mind submission of the invoices by the contractor to the public servants, coupled with the fact that the work was performed, did not give rise any reason, for these public servants to doubt regarding genuineness of the invoice.
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270. Further, to my mind, prosecution has failed to bring on record through any documentary or oral evidence that it was part of the duty of these public servants which have been arrayed as accused persons, to verify regarding genuineness of invoice. In absence of such an evidence regarding duty and responsibility of the public servants, to ascertain genuineness of invoices, to my mind imposition of any criminal liability on them for their having failed to do something which they were not obliged in discharge of their duties, would be asking for too much from them.
271. Thus, as per the evidence which has come up on record, the accused public servants had collected the invoices so submitted by the contractor without having any reasons to doubt about its genuineness and without knowing the same to be forged ones, they went ahead to perform their part of official obligations and did the prescribed test check and made entries in their records.
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272. There is no evidence on record to show that these public servants have committed any forgery of the documents or the record which could have been used as a valuable security. No evidence has been brought on record to show that accused public servants had the knowledge that the invoice so submitted with them by the contractor were forged ones, therefore to my mind, no dishonest or criminal intent in accepting the same can be imputed on these public servants.
273. To arrive at this conclusion, I am fortified by the observations made by Hon'ble Apex Court in the case titled "L.Chandriah vs. State of A.P." reported as (2003) 42 SCC 670 , relevant portion of which is reproduced as under : So far as the evidence relating to the offence under Section 467 IPC is concerned, there is no evidence to show that the appellants before us forged the documents which purported to be a valuable security. The evidence is only to the effect that they had C.C.No: 58 / 2011 Page No.165 of 228 Judgement in the matter of:-
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negligently put their signatures on those vouchers while passing the vouchers for payment. There is no evidence to show that the appellants had knowledge of the fact that the vouchers were forged vouchers. The trial court has found in clear terms that A1, A2 and A3 were not acting pursuant to a conspiracy and,therefore, acquitted them of that charge. Such being the position, before recording a conviction, the court should have insisted on evidence which would have proved that A1 to A3 passed the vouchers with the knowledge that the vouchers were forged and fabricated. It appears that no such evidence is available on record. So far as the offence under Section 409 IPC is concerned, it must be proved that a person entrusted with property or with any dominion over property in his capacity as public servant commits criminal breach of trust in respect of such property, as defined in Section 405 IPC, meaning thereby that he dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do. The crucial word used in Section 405 IPC is "dishonestly" and, therefore, it implies the C.C.No: 58 / 2011 Page No.166 of 228 Judgement in the matter of:-
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existence of mens rea, that is to say, a guilty mind. If there is no evidence to show that the appellants had knowledge that the vouchers were fabricated by A3, it cannot be said that they acted with a criminal intent.
274. Apart from that, Hon'ble High Court of Delhi was seized off a similar situation, in case titled "Rita Handa v/s CBI" reported as 2008 (105) DRI 331, the relevant portion of which is reproduced as under : The petitioner is being put in the dock on the ground that the impossibly of delivery to far off places in Tamil Nadu within a span of two days should have raised her suspicion. In my considered view, this is stretching the duty of care on the part of the petitioner too far. If the converse was to be taken as true, even then the statement of PW 70 clarifies that coordination with the consignees did not mean independent verification of receipt of materials by them against the supply contracts for the reason that there were about 500 consignees in this case. Individual verification therefore would have been substantial work. If this was to be intended, it would have been included in the items under logistic support of JPO (Joint procedure Order). The JPO did not lay down independent verification of receipts by the consignees as one of the items. Be that as it may the same by no stretch C.C.No: 58 / 2011 Page No.167 of 228 Judgement in the matter of:-
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of imagination can be equated with the petitioner having a dishonest intention / mens rea. The prosecution has failed to bring on record any evidence so as to prove the same as also that the petitioner in abuse of her official capacity as a public servant got any pecuniary advantage for herself or the supplier. I find myself in full agreement with the view taken in Anil Bose's case (Supra) wherein it can be said that there has been an administrative lapse (if at all) on the part of the petitioner in performance of her duty. The worst that can be imputed to the petitioner is an error of judgment and that cannot give rise to a criminal liability. Thus even after painting the worst scenario as set up by the respondent for the petitioner, there is no criminal culpability made out.
275. In the backdrop of the observations of Hon'ble Apex Court in L.Chandriah's Case (supra) and of Hon'ble High Court in Rita Handa's Case (supra), coupled with the prosecution and defence evidence which has come up on record, I am of the considered opinion that prosecution has failed to bring on record any evidence to prove that it was either the duty of the accused public servants to verify the invoices or C.C.No: 58 / 2011 Page No.168 of 228 Judgement in the matter of:-
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they had the requisite mechanism or expertise to distinguish between genuine and forged invoices.
276. The evidence on record falls short of proving or even inferring any knowledge on the part of public servants that the invoices in question were forged ones. Neither from the acts, actions or conduct of the public servants nor from any physical manifestations, it can be inferred that their was any meeting of minds between them on one hand and contractor on the other. Prosecution has failed to establish that the public servants accepted the invoices, pursuant to any nexus between them and the contractor so as to bind them under any conspiracy.
277. As per the evidence which has come up on record, the accused public servants had accepted the invoices, so submitted with them by the contractor, believing the same to be genuine ones and they proceeded on this assumption and C.C.No: 58 / 2011 Page No.169 of 228 Judgement in the matter of:-
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carried on the rest of their duties which they were supposed to perform as per CPWD Manual.
278. In view thereof, no conduct on the part of public servants was such, as per evidence on record which can bind them with nexus of any sort with contractor so as to fall within the four corners of the definition of "criminal misconduct" under section 13(1) (d) of Prevention of Corruption Act 1988, with which they were charged.
279. Having held so, that there was no meeting of minds between the contractor and the public servants as well as, that the public servants have not abused their official position, so as to cause any pecuniary advantage to any one, has brought me down to deal with the case of prosecution qua accused no.1 Vijay Pal Shokeen, accused no. 2 Kartar Singh Shokeen, the partners of M/s Vijay & Company and accused no. 3 Munish Guliani.
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280. Before proceeding further, it is pertinent to mention that accused no. 1, 2 & 3 were also charged along with coaccused persons for offence under section 120 B IPC, ie.
conspiracy. However having held by me, hereinabove that, as prosecution has failed to bring home any evidence of meeting of minds between accused no.1, 2 & 3 on one hand and public servants on the other, so as to establish on record the offence of criminal conspiracy with which all accused were charged, I would straightaway delve upon the substantive charges qua accused Contractor and accused Munish Guliani.
281. Opening their line of defence, it is submitted by Sh.R.S.Jamuar and Sh. S.P.Aggarwal, Advocates, Ld. Defence Counsels for accused Kartar Singh & Vijay Pal Shokeen that the bitumen can be brought from Mathura Refinery of IOCL either by contractor himself or through his representative. They contended that contractor is not required to go there personally.
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282. I do find merits in this contention of Ld. Defence Counsels, in view of the evidence which has come up on record. The witnesses from IOCL i.e. PW7, PW8, PW9. PW21 & PW27 had deposed that for delivery of bitumen personal presence of contractor is not required. This fact is also endorsed by IO during his deposition.
283. However, this ipso facto does not absolve the contractor of his obligation to procure genuine bitumen against genuine invoice and to submit the same with MCD as is required, being one of essential conditions of work order.
284. This has led me to next contention urged by Sh.R.S.Jamuar, Ld. Defence Counsel, that although the invoices Ex. PW7/A & Ex. PW24/D were submitted with MCD by accused Kartar Singh Shokeen, but he had no reasons to believe the same to be forged ones. It is submitted by Ld. Defence Counsel that accused had procured the bitumen as was C.C.No: 58 / 2011 Page No.172 of 228 Judgement in the matter of:-
CC No.:58 / 11.
(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
required as per the NIT conditions from approved oil agencies and these invoices were given to him by IOCL itself at the time of delivery of bitumen, therefore, he had no reason to doubt about the genuineness of the same. He further submitted that there was no mechanism with the contractor to check the genuineness of the invoice.
285. He relying upon the deposition of PW7, PW8, PW9 & PW27 contended that these witnesses, who were posted with S & D Division of Indian Oil Corporation, were the ones, who day in and day out were dealing with the issuance of the invoices and even they did state during the course of their deposition, that a lay man cannot distinguish between the forged and genuine invoices. He further contended that these witnesses also could decipher between the forged and genuine invoices only after having the forged ones compared with the genuine ones. He contended that as no specimen format was publicized or put up on the notice board of IOCL, therefore, C.C.No: 58 / 2011 Page No.173 of 228 Judgement in the matter of:-
CC No.:58 / 11.
(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
contractor or his representative have no mechanism to check that the invoice so given to them against the supply of bitumen were not genuine.
286. I have perused the evidence which has come up on record. Admittedly PW7, PW8, PW9 & PW27 were the authorized persons from the organization of IOCL, who appeared in the witness box. All these witnesses during the course of their cross examination had admitted that it is difficult for a lay man to distinguish between the forged invoice and genuine invoice. PW8 during the course of his cross examination admitted the similarity of the colour combination in the two invoices. It has further been stated by PW8, PW9 as well as PW7 that no specimen format of the invoice or the specimen signatures of the authorized signatories used to be publicized or used to be put up on the notice board. However, on the basis of this deposition of the prosecution witnesses, which has come up on record, by no stretch of imagination, it C.C.No: 58 / 2011 Page No.174 of 228 Judgement in the matter of:-
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(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
can be inferred that these invoices which have been found to be forged ones, were given by IOCL either to accused or to his representative against the genuine supply of bitumen.
287. The witnesses from IOCL during the course of their deposition have categorically deposed that the invoices Ex.PW.7/A and Ex.PW.24/D were never issued in favor of M/s Vijay & Company from S&D Division of IOCL. These witnesses further deposed that against these very serial numbers, genuine invoices Ex.PW.9/DA and the one mentioned in sale summary Ex.PW.9/A were issued by IOCL to other organizations. They further deposed that no bitumen was supplied by IOCL to anyone against these invoices which are forged ones. It further emanated from their deposition that on the genuine invoices the words "Indian Oil Corporation Limited" used to be printed whereas, on these invoices it is computer typed. Further, logo of the oil company is also not there, which used to be preprinted on the genuine C.C.No: 58 / 2011 Page No.175 of 228 Judgement in the matter of:-
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invoices.
288. There is no reason with me to doubt this deposition of PW7, PW8, PW9 and PW27, as they were the ones who being posted with IOCL at relevant point of time were issuing the invoices and thus, were the material witnesses. In view of their deposition coupled with my observation made while dealing with deposition of PW26, that the bitumen against these invoices was not transported through the vehicle mentioned therein, I am of the considered opinion that these invoices are forged ones, being not issued from IOCL. More particularly, when PW8 & PW27 categorically denied their signatures on Ex. PW7/A and Ex. PW24/D, as issuing officers.
289. Further, as per the deposition of PW21 Smt. S.C.Banerjee, who had deposed about the procedure of supply of bitumen, it is evident that an advance amount in the form of C.C.No: 58 / 2011 Page No.176 of 228 Judgement in the matter of:-
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Demand Draft or Pay Order is required to be submitted by a person desirous of purchasing bitumen from IOCL, on the basis of work orders issued in his favour by MCD, therefore, by no stretch of imagination, it can be inferred that bitumen used to be supplied by IOCL against cash payment to anyone. Had that been the situation, then cash receipt should have been issued by IOCL. But that was not to be. As there is no evidence on record to that effect. That being the situation there was no occasion with any of the official of IOCL to have supplied bitumen either to accused contractor or to any of his representative against the forged invoices as claimed by him.
290. If a person is purchasing bitumen from the authorized sources i.e. Oil companies, then he is not required to be aware of the specimen format, being used by IOCL for issuance of invoice. If one has purchased bitumen from authorized source, he is supposed to get genuine invoice against the same, more particularly when there is no evidence to this C.C.No: 58 / 2011 Page No.177 of 228 Judgement in the matter of:-
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(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
effect that bitumen could have been supplied by way of pilferage by the officials of IOCL, against cash payment.
291. It is contended on behalf of contractor that the payment was deposited with IOCL through demand draft and the contractor had sent his representative to get delivery of the bitumen. I do not find any force in this contention, as no evidence to that effect to substantiate this contention was brought on record by M/s Vijay & Company through its partners.
292. Even if, it is assumed that these demand drafts were made in favour of IOCL and also deposited with them on behalf of this firm, then in that situation by no stretch of imagination, it can be inferred that the invoices in question as claimed by the accused, which have been found to be forged ones would have been issued by IOCL against genuine supply of bitumen. As in that eventuality, there would have been no C.C.No: 58 / 2011 Page No.178 of 228 Judgement in the matter of:-
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reason for officials of IOCL to give forged invoices, there being no person gain of theirs. In view thereof, I do not find any merits in this contention of Ld. Defence Counsel. The same stands rejected.
293. Further as has been observed by me here in above that the vehicle number which was mentioned on this forged invoice submitted by accused Kartar Singh Shokeen with MCD, were never engaged for transportation of bitumen from Mathura to his plant, that goes on to establish on record that accused who had submitted these invoices with MCD, knew that the same are forged ones.
294. Ld. Defence Counsels in their attempt to have accused contractor exonerated, has tried to dent the prosecution case contending that no qualitative investigations were carried out by the investigating agency as the stationary of the genuine and forged invoices were not got C.C.No: 58 / 2011 Page No.179 of 228 Judgement in the matter of:-
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(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
compared from any scientific expert. He contended that even the complaint of Sh.S.K.Jain states that the stationary used for the forged invoices, was genuine.
295. To my mind, the same was not required, as through the deposition of PW7, PW8, PW9 & PW27, who were the concerned persons at the relevant point of time posted with IOCL for issuance of invoice, have categorically deposed that the signatures on these invoices are not their's and against the serial numbers of these forged invoices, genuine invoices Ex. PW9/DA and vide sale summary Ex. PW9/A, were issued by IOCL in favour of other organizations.
296. Having regards to these facts and circumstances, it has been established on record that the invoices Ex. PW7/A & Ex. PW24/D were forged invoices as the same were never issued by IOCL in favour of M/s Vijay & Company.
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Judgement in the matter of:-
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297. Admittedly, these invoices were used and submitted by accused Kartar Singh Shokeen with MCD, as the same bears his signatures and he had submitted the same claiming them to be genuine, knowing or having reasons to believe the same to be forged ones.
298. This has brought me down to the next contention raised by Ld. Defence Counsel, who stated that as the work was properly executed by the contractor and the payment was to be made to the contractor for the work done and not for bitumen, therefore, no wrongful loss was caused to MCD.
299. It is contended by Ld.Defence Counsel relying upon the deposition of the prosecution witnesses, that it is not the case of the prosecution that work for which work orders were awarded to the contractor, was not executed. He contended that the prosecution witnesses during the course of their deposition, C.C.No: 58 / 2011 Page No.181 of 228 Judgement in the matter of:-
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(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
had categorically stated that the payment was to be made by MCD to the contractor for the work and not for the raw material required for execution of work. He contended that as the work was duly executed and it was on the basis of work that bills were prepared and processed by the concerned Engineers as well as by the Accounts Department and was ultimately passed by the Executive Engineer on the basis of which the amount was released in favor of M/s Vijay & Company, therefore by no stretch of imagination, it can be stated that "wrongful loss" was caused to MCD. He contended that for release of payment, filing of invoice by the contractor was not necessary and that was a mere ritual. He in support of his contention had relied upon the law laid down by Hon'ble Supreme Court in case titled "Dr.Vimla vs. Delhi Administration" reported as AIR 1963 SC 1572.
300. I have considered the submissions advanced on this aspect and have also gone through the precedent relied upon by Ld.Defence Counsel.
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301. No doubt, the prosecution witnesses ie. PW5, PW6, PW15, PW12, the complainant as well as IO deposed that payment was to be made to the contractor for the work done. But that deposition of prosecution witnesses is not to be considered in isolation. These witnesses went on to depose that contractor was supposed to execute the work as per specifications and if not executed, then wrongful loss has resulted to MCD.
302. As per the evidence on record and as per NIT Conditions and agreement, it was duty of contractor to procure fresh bitumen from approved oil agencies and to file invoices as proof of the same.
303. Meaning thereby that after executing the work, for getting the payment released, invoices of purchase of bitumen were necessary documents.
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Judgement in the matter of:-
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304. Had it been the work only which would have made the contractor entitle for release of payment, then he would not have been under any obligation to submit the invoices, which he did.
305. It is thus required to be looked into as to what forced the contractor to submit the invoices, if only "execution of work" was the criterion for release of the payment. Further, as to whether the invoices which were found to be forged ones, were fraudulently submitted by the contractor with dishonest intention so as to induce the officers of MCD, to act thereon for releasing the payment.
306. The word "Dishonestly" has been defined by Section 4 of the Penal Code as under: "Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to other person, is said to do that thing dishonestly"
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307. The word "Fraudulently" is defined in Section 25 of the Penal Code as under: "A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise".
308. Hon'ble Apex Court in the said judgment of Dr.Vimla's Case (supra) had aptly summarized the expression "defraud" as well as the "intent to defraud" in following words: To summarize : the expression "defraud"
involves two elements, namely deceit and injury to the person deceived. Injury is something other than economic loss that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, m ind, reputation or such others. In short, it is a noneconomic or nonpecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to C.C.No: 58 / 2011 Page No.185 of 228 Judgement in the matter of:-
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the deceived. Even in those rare cases, where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied.
"The expression, "intent to defraud" implies conduct coupled with intention to deceive and thereby to injure ; in other words, "defraud" involves two conceptions, namely deceit and injury to the person deceived, that is, infringement of some legal right possessed by him, but not necessarily deprivation of property".
309. However, the observations made by Hon'ble Supreme Court and the ratio of said case does not support the case of accused contractor, as the facts of the said case were distinctly different to the facts of the case in hand as it has been observed in the case of Dr.Vimla (supra) by Hon'ble Apex Court that in the said case, the entire transaction was made by Dr.Vimla herself but in the name of her minor daughter, which in the ultimate eventuality would not have made any difference to the Insurance Company, as Insurance C.C.No: 58 / 2011 Page No.186 of 228 Judgement in the matter of:-
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Company has not incurred loss in any sense of the term.
However, in the present case, it is to be seen as to whether without filing of the invoice, which as per evidence on record were forged ones, was MCD under any contractual obligation to release the payment in favor of the contractor or whether contractor had induced the Corporation to release the payment.
310. As per the evidence on record, it was one of the terms of NIT as well as the agreement entered into between MCD and the Contractor that for execution of work, fresh bitumen was required to be purchased from the approved oil refineries and contractor was required to submit invoice as a proof thereof, with the MCD.
311. Merely because of the test checks which were done at plant level as well as at the site by the concerned engineers and no complaint against the quality and quantity of the bitumen used for preparation of mix and laying of road was C.C.No: 58 / 2011 Page No.187 of 228 Judgement in the matter of:-
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(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
required either from the lab tests or from any other quarter, does not, to my mind absolves the contractor of his duties to fulfill his obligations. As per the NIT conditions and the agreement entered into by contractor with MCD, he was under
a contractual obligation to procure fresh bitumen from approved oil agencies. He was further required to submit invoices as proof thereof. Meaning thereby that filing of invoices was mandatory on the part of contractor as he has come up through deposition of prosecution witnesses.
312. Had that been a mere ritual, as has been contended by Ld.Defence Counsel, then the said ritual also to my mind should have been performed by the contractor, in a sacrosanct and sacred manner. But that was not to be. By no stretch of imagination, it can be said that contractor can be permitted to furnish on record forged and fabricated invoices in the name of ritual. As per the evidence on record, the bills of the contractor were processed only when the other C.C.No: 58 / 2011 Page No.188 of 228 Judgement in the matter of:-
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(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
documentary evidence regarding execution of work was duly supported with the invoices. Meaning thereby that for preparation of these bills and its processing, the invoices were an essential and integral part of the documents, which the contractor was required to place on record to get his payment released. Consequently, by placing on record these forged invoices, contractor had induced the Engineers as well as the officials working in the Accounts Department and also the Executive Engineer to prepare, process and pass the bills on the basis of which the amount was released to him. The amount of Rs.3,60,020/ was credited in the account of contractor through cheque Ex. PW3/B, as per deposition of PW1 Manoj Sharma and PW3 Om Prakash Dadool, witnesses from the banks of accused contractor and MCD.
313. Had he not placed on record these invoices, then the officials of MCD would not have prepared, processed and passed the bill. Thus, it is apparent from the material on C.C.No: 58 / 2011 Page No.189 of 228 Judgement in the matter of:-
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(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
record that these invoices were submitted by the contractor with an intent to defraud and induce the officials of MCD to release payments in his favor, which was ultimately released on such misrepresentation and inducement and that has resulted in causing a wrongful loss to MCD and corresponding wrongful advantage / gain to the contractor.
314. Next contention urged by Sh. R.S.Jamuar, Ld. Defence Counsel on behalf of accused contractor, was that bitumen as per deposition of the prosecution witnesses was only one of the ingredients for the work of dense carpeting of road. Ld.Defence Counsel contended that the investigating and prosecuting agency have failed to take this aspect into account and prosecuted the accused for causing wrongful loss to MCD to the extent of whole of the contractual amount for which work was awarded. He contended that on this count itself, accused should be acquitted, as wrongful loss to that extent was not caused to MCD.
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315. I do find some force, in this contention of Ld.Defence Counsel that bitumen was not the only but one of the ingredients of the mix. Admittedly, in the light of evidence which has come up on record through deposition of prosecution witnesses bitumen was one of the ingredients of the "mix", required for dense carpeting of road. Further, considering the fact that contractor has procured other raw material and also got the work executed, thereby incurring expense thereon. Meaning thereby, he by no stretch of imagination could have caused wrongful loss to MCD for the whole contractual value of the work orders.
316. No doubt, the investigating officer did not investigate to verify and calculate the exact amount for which wrongful loss was caused to MCD by the contractor by not procuring bitumen from approved oil companies against genuine invoices. But that in itself is no ground to exonerate C.C.No: 58 / 2011 Page No.191 of 228 Judgement in the matter of:-
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accused contractor of his criminal liability, of having filed forged invoices with intent to cheat MCD knowing them to be forged ones.
317. Section 420 of IPC makes cheating as defined in Section 415 IPC as punishable offence.
1.Section 415 IPC reads as under : SECTION 415 CHEATING - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Explanation - A dishonest concealment of facts is a deception within the meaning of this section.
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318. Bare perusal of the definition of cheating reveals that offence stands established even when the person so deceived, suffers any damage or harm in body, mind, reputation or property. Meaning thereby that even if the person so deceived suffers any intangible loss or the loss which cannot be quantified in terms of money, due to any inducement on the part of offender, the offence stands established.
319. In view thereof, it was not necessary for the investigating agency to have the exact amount of bitumen separated from the total contractual value of the work orders before filing of the charge sheet, or by the prosecuting agency during trial.
320. Consequently, this contention of Ld.Defence Counsel is also turned down being devoid of merits.C.C.No: 58 / 2011 Page No.193 of 228
Judgement in the matter of:-
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321. This has brought me to the last limb of the arguments advanced by Ld.Public Prosecutor and by Ld.Defence Counsel appearing on behalf of contractor.
Sh.R.S.Jamuar, Ld. Advocate, contended that although his client was also charged with the offence under section 468 IPC, however, nothing has been brought on record by the prosecution either by oral or documentary evidence to show that it was his client, who had forged the invoices.
322. Countering these contentions, it is submitted by Ld.Public Prosecutor that as it was accused Kartar Singh Shokeen who had submitted these forged invoices with MCD, so as to induce it for having his payment released, thus, he being the beneficiary must have forged the same himself, therefore he be convicted on this count as well. C.C.No: 58 / 2011 Page No.194 of 228
Judgement in the matter of:-
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323. I do not find any merits in the contentions of Ld.Public Prosecutor. The onus to prove the necessary ingredients of the offence with which accused is charged, always rests on the prosecution. This onus has to be discharged on the basis of substantial evidence and not on the basis of any assumptions or presumptions.
324. It is evident on perusal of cross examination of PW33 P.K.Khanna that no investigations were conducted on the aspect of the forgery so as to find out who had forged these 02 invoices Ex.PW.7/A and Ex.PW.24/D. As nothing was collected on this aspect by IO during the course of investigations, therefore nothing propped up to propel the contentions of Ld.Public Prosecutor during the course of prosecution evidence, to prove the charge under section 468 IPC against Kartar Singh Shokeen, Vijay Pal Shokeen or Munish Guliani.
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Judgement in the matter of:-
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325. This has left me with the last contention urged on behalf of accused contractor by Sh.R.S.Jamuar, Advocate Ld.Defence Counsel contended that as the payment was made by the contractor Kartar Singh Shokeen to accused Munish Guliani for the bitumen purchased through him for execution of the work order, then why the contractor would forge the invoices as alleged by the prosecution. It is contended that the contractor had simplicitor forwarded the invoices handed over to him or his representative by accused Munish Guliani on the bonafide belief that the same are genuine. It is contended that in view thereof, the contractor cannot be made liable for commission of any offence, which if any was committed by co accused Munish Guliani.
326. I would deal with this contention raised by Ld.Defence Counsel for the contractor after considering the case of prosecution qua accused Munish Guliani.C.C.No: 58 / 2011 Page No.196 of 228
Judgement in the matter of:-
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Prosecution Case qua accused Munish Guliani:
327. It is the case of the prosecution as alleged in the charge sheet on the basis of which charges were framed against accused Munish Guliani that he, in furtherance of the conspiracy which he had with the contractor, had procured bitumen from unauthorized sources and supplied the same to the contractor against the invoices Ex.PW.7/A and Ex.PW.
24/D ; which in turn were handed over by the contractor to the officers of MCD. It is the case of the prosecution that these invoices which were purportedly issued from IOCL in favor of M/s Vijay & Company ; were found to be forged ones.
328. Prosecution in order to connect accused Munish Guliani with the forged invoices Ex.PW.7/A, Ex.PW. 24/D had urged in the charge sheet that at the relevant point of time and date, the trucks and tankers owned by accused Munish Guliani were weighed at a weighment bridge ie. at M/s Mahalaxmi Dharam Kanta situated within the vicinity of the C.C.No: 58 / 2011 Page No.197 of 228 Judgement in the matter of:-
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hot mix plant of the contractor M/s Vijay and Co., therefore it can be presumed that it was Munish Guliani who had supplied this bitumen to M/s Vijay & Company.
329. To support this contention, prosecution had examined PW18 Raj Kumar Sharma, who proved the Dharam Kanta Receipts. Prosecution had further examined PW17 Anil Kumar, Chowkidar posted at hot mix plant of the contractor to prove his signatures at the back of the Dharam Kanta receipt Ex.PW.17/A at the time of receiving thereof, which he gave to the driver of the tanker and other copy of it, to the owner of the firm.
330. Apart from these two witnesses, prosecution in order to connect accused Munish Guliani with the supply of bitumen as well as invoices, had examined PW28 Om Prakash, and PW29 Amarjeet Singh, employees of contractor M/s Vijay & Company.
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331. Sh.O.P.Saxena, Advocate, Ld.Defence Counsel appearing on behalf of accused Munish Guliani, had contended that in the Dharam Kanta Receipts, placed and proved on record by the prosecution, name of accused was inserted subsequently just to connect him with the same. He further contended that no payment whatsoever as alleged by PW29 was made to him. He further stated that this payment alleged to have been given to him as claimed by PW29 are not connected with the delivery of the invoices in question or the bitumen in question. Ld.Defence Counsel submitted that the tanker number which is mentioned on the Dharam Kanta Receipt Ex.PW.18/B Ex.PW.18/B2, ie. UP860195 was also wrongly depicted as this tanker of his, was engaged for delivery / supply of bitumen on said date at Mohali, as has been deposed so by prosecution witness PW22. C.C.No: 58 / 2011 Page No.199 of 228
Judgement in the matter of:-
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332. I have considered the rival contentions and have perused the prosecution evidence on record. Needless to say that the onus to prove its case always rests on the prosecution and this onus has to be discharged on the basis of cogent, consistent and trustworthy evidence and not on any assumptions and presumptions.
333. Before proceeding further, to deal with the contentions on the basis of evidence on record, I would like to observe that an outrageous assumption has been made by the investigating agency, as seasoned as CBI is. CBI had mentioned in the charge sheet in their quest to connect accused Munish Guliani with supply of bitumen at the hot mix plant of the contractor M/s Vijay & Company that as the tankers owned by Munish Guliani were weighed at a weighment bridge situated in the vicinity of the Hot Mix Plant of the contractor, therefore it is assumed that it was accused Munish Guliani, who had supplied the bitumen to the contractor. C.C.No: 58 / 2011 Page No.200 of 228
Judgement in the matter of:-
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334. The prosecuting agency had tried to support this contention of theirs, through the deposition of PW17, PW18, PW28 & PW29.
335. Raj Kumar Sharma, who claimed himself to be the person responsible for operation of said weighment bridge i.e. Mahalaxmi Dharam Kanta appeared in the witness box as PW18. Although, this witness i.e. PW18 had exhibited these Dharam Kanta Receipts as Ex.PW.18/A1, Ex.PW.18/A2, Ex.PW.18/B1, Ex.PW.18/B2, Ex.PW.18/C1, Ex.PW.18/C2, Ex.PW.17/A & Ex.PW.18/D, however, he during his cross examination had stated that the same were not prepared in his presence and are in the handwriting of one Yogesh. The said Yogesh was not examined by the prosecution.
336. PW17 Anil Kumar, Chowkidar of M/s Vijay & Company and PW28 Om Prakash claimed themselves to be employees of this firm. Both these witnesses h ave proved their C.C.No: 58 / 2011 Page No.201 of 228 Judgement in the matter of:-
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signatures on Ex. PW17/A, Ex. PW18/B1 & Ex. PW18/C1.
PW28 during the course of his deposition had stated that whenever the driver of tanker used to bring bitumen, he used to get the same weighed at the weighment bridge situated nearby i.e. Mahalaxmi Dharam Kanta and after signing one receipt he used to give it back to the driver & other receipt he used to give it to his owner i.e. Kartar Singh Shokeen.
337. Meaning thereby that the receipts of Dharam Kanta Ex.PW.17/A, Ex.PW.18/B1 and Ex.PW.18/C1 must have been given by them to the respective drivers who had brought the material which is alleged to be bitumen. In view thereof, these receipts i.e. Ex.PW17/A, Ex. PW18/B1 & Ex. PW18/C1 by no stretch of imagination could have been handed over by PW17 and PW28 to their owner i.e. accused Kartar Singh Shokeen.
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Judgement in the matter of:-
CC No.:58 / 11.
(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
338. Prosecution case, as has come up on record through the deposition of its witnesses, is otherwise. IO PW33 P.K.Khanna during the course of his deposition had stated that during investigations he had recovered all the Dharam Kanta receipts including Ex. PW17/A, Ex. PW18/B1 & Ex. PW18/C1 from possession of Kartar Singh Shokeen vide seizure memo Ex. PW33/G. This raises a serious doubt either on the deposition of PW17 and PW28 or possession of these receipts with Kartar Singh Shokeen from whom, IO claimed to have recovered them.
339. Further, from deposition of PW30 Sameer Garg of IOCL and PW33 IO P.K.Khanna, it is clear that information vide letter Ex. PW33/K was provided to IO from IOCL stating that bitumen was released from IOCL against invoice number, date and vehicle number with name of consignee as under : C.C.No: 58 / 2011 Page No.203 of 228 Judgement in the matter of:-
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(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
Sl. No. Invoice Date TT No. Quantity Consignee Number
1. 18787 25.07.1998 UP86 0195 10.770 MT Municipal Council, SAS Nagar, Mohali
2. 19532 30.07.1998 HR29C 2675 10.360 MT Narnaul PD PWD CASHDELEXE Engg
3. 18306 22.07.1998 HR38BG4625 9.820 MT HSAMB, Sirsa
4. 4021 28.07.1998 UP85A 9479 8.800 MT BPCL, Mathura
340. It is apparent on perusal of the above information from IOCL vide Ex. PW33/K that the vehicle numbers mentioned therein are the same which finds mention on the Dharam Kanta Receipts exhibited as Ex.PW.18/A1, Ex.PW.18/A2, Ex.PW.18/B1, Ex.PW.18/B2, Ex.PW.18/C1, Ex.PW.18/C2, Ex.PW.17/A & Ex.PW.18/D.
341. Prosecution through deposition of PW2 Chottey Lal, PW19 Arihant Kumar Jain, PW20 Ravinder Kumar Batra and PW22 Devender Singh has proved on record that bitumen were supplied to their organizations at Narnaul, C.C.No: 58 / 2011 Page No.204 of 228 Judgement in the matter of:-
CC No.:58 / 11.
(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
Sirsa, Hissar and Mohali through the tanker / vehicle numbers mentioned in Ex. PW33/K against the invoices issued by IOCL.
342. In view of their deposition which finds support through records of IOCL supplied to CBI vide Ex. PW33/K and deposed so by IO, it is clearly evident that when material through these tankers on the dates mentioned, were supplied to the Government organizations, then by no stretch of imagination it can be inferred that those tankers on the said dates would have supplied bitumen at plant of M/s Vijay and Company against the said Dharam Kanta receipts as has been deposed, so by PW17 & PW28.
343. That clearly goes to show that neither deposition of PW17, nor PW28 and nor the Dharam Kanta receipts are reliable pieces of evidence through which prosecution has sought to connect Munish Guliani. PW17 & C.C.No: 58 / 2011 Page No.205 of 228 Judgement in the matter of:-
CC No.:58 / 11.
(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
PW28 failed to place on record any documentary evidence of their employment with M/s Vijay & Company. Further, prosecution has failed to produce any evidence to show that Munish Guliani was owner of the vehicles mentioned on these receipts.
344. On bare perusal of the Dharam Kanta Receipts exhibited on record as Ex.PW.18/A1, Ex.PW.18/A2, Ex.PW. 18/B1, Ex.PW.18/B2, Ex.PW.18/C1, Ex.PW.18/C2, Ex.PW. 17/A & Ex.PW.18/D, it is apparently evident that name "Manish", has been subsequently entered on these receipts. The mode and manner in which the word "Manish" in English on some of the receipts & in Hindi on the others appear, makes it clear that the same are in different ink and handwriting from the other words and figures on these receipts.
345. The reasons for inserting this name are obvious. These receipts does not inspire confidence to be relied C.C.No: 58 / 2011 Page No.206 of 228 Judgement in the matter of:-
CC No.:58 / 11.
(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
upon.
346. Further, these Dharam Kanta Receipts on which prosecution is relying upon, to connect the accused with the invoices in question does not support their case as on perusal of the invoices Ex.PW.7/A and Ex.PW.24/B, it is apparent that the weight of bitumen mentioned in these invoices does not match with the weight mentioned on these Dharam Kanta Receipts. It is apparent on perusal of these two invoices that the vehicle number with which the bitumen against these invoices purportedly were transported does not match with the vehicle numbers mentioned in any of these Dharam Kanta Receipts.
347. Rather, on perusal of other prosecution evidence, which has come up on record in the form of PW22 Devender Singh JE (Site) posted with Municipal Council C.C.No: 58 / 2011 Page No.207 of 228 Judgement in the matter of:-
CC No.:58 / 11.
(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
Mohali, it is apparent that bitumen to them was supplied vide invoices Ex.PW.22/A through the vehicle bearing number UP860195 and this bitumen was supplied at Mohali, Chandigarh at the time and date, which is mentioned in the Dharam Kanta Receipts Ex.PW.18/B1 and Ex.PW.18/B2 ie.
26.07.1998, the date on which the same were issued mentioning the registration number of this vehicle. The Dharam Kanta as per deposition of PW18 is situated at Sector53 Noida, whereas the said tanker as per PW22 at that time was at Mohali.
348. This in itself shows that these Dharam Kanta Receipts are not trustworthy to be relied upon to connect accused Munish Guliani either with the bitumen which arrived at the plant of M/s Vijay and Company or with the invoices in question. As, none of the prosecution witnesses examined during the course of trial, had contended that it was accused Munish Guliani who had handed over the invoices Ex.PW.7/A C.C.No: 58 / 2011 Page No.208 of 228 Judgement in the matter of:-
CC No.:58 / 11.
(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
and Ex.PW.24/D to the contractor.
349. Composite reading of the deposition of PW17, PW18, PW28 on one hand and PW30 & PW33 on the other, makes it clear that the same are contrary to such an extent that they cannot be reconciled on the aspect of the position of the vehicles mentioned in the Dharamkanta receipts, vizaviz. Ex.PW.33/K.
350. So far as PW29 is concerned, he has stated that payment of Rs.2,53,000/ or Rs.2,54,000/ was made by accused Kartar Singh Shokeen to Munish Guliani for the bitumen supplied by him. However, no where in his deposition he has stated that this payment was made to Munish Guliani with respect to the bitumen supplied to the contractor with respect to the work order number 133 and 134, or with respect to the invoices Ex.PW.7/A and Ex.PW.24/D. C.C.No: 58 / 2011 Page No.209 of 228 Judgement in the matter of:-
CC No.:58 / 11.
(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
351. Having regards to these facts and circumstances, I am of the considered opinion that prosecution evidence which has come up on record, falls short of connecting accused Munish Guliani with the offence with which he has been charged.
352. Having dealt with case qua accused Munish Guliani, I will revert back to the last contention raised on behalf of the contractor by Sh.R.S.Jamuar, Advocate which I had left open.
353. It was contended by Ld.Defence Counsel that as the contractor had made payment for the bitumen used by him for execution of the work order to Munish Guliani, then there was no reason with him to have forged the invoices and he had simplicitor forwarded the invoices Ex.PW.7/A and Ex.PW.24/D handed over to him by Munish Guliani to MCD, C.C.No: 58 / 2011 Page No.210 of 228 Judgement in the matter of:-
CC No.:58 / 11.
(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
thinking and believing the same to be genuine ones.
354. In view of my observations made hereinabove on the basis of prosecution evidence on record, that there is neither any oral nor documentary evidence which is clear, cogent and trustworthy to prove that it was Munish Guliani who had handed over the invoices Ex.PW.7/A and Ex.PW.24/D to the contractor or the payment was made by the contractor against this bitumen qua the invoices in question, therefore, I do not find any merits in the arguments advanced by Ld.Defence Counsel for contractor Kartar Singh Shokeen. The same is turned down accordingly.
Prosecution case qua accused Vijay Pal Shokeen :
355. Raising separate line of defence for accused Vijay Pal Shokeen, Sh.S.P.Aggarwal, Advocate contended that this accused has been wrongly and falsely charge sheeted by the prosecution for no fault of his. He contended that there C.C.No: 58 / 2011 Page No.211 of 228 Judgement in the matter of:-
CC No.:58 / 11.
(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
is nothing on record proved by the prosecution, to connect him with the alleged offence of cheating or conspiracy or submission of any forged invoices, knowing or having reasons to believe the same to be forged ones. It is contended that the only aspect which has been proved on record by the prosecution with respect to this accused is that he was one of the partners of M/s Vijay and Co., who was awarded work order number EEXXIV / SZ / 98 - 99 / 134. He contended that Vijay Pal Shokeen was sleeping partner of this firm and has not done anything either in furtherance of the conspiracy or for commission of substantive offences.
356. Countering these contentions, it is submitted by Ld.Public Prosecutor that accused Vijay Pal Shokeen being one of the partners of M/s Vijay and Company, had enjoyed the fruits of wrongful gain caused to this firm by cheating MCD and getting the payment of Rs.3,60,020/. C.C.No: 58 / 2011 Page No.212 of 228
Judgement in the matter of:-
CC No.:58 / 11.
(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
357. I have considered the rival contentions advanced and have perused the evidence which has come up on record.
358. Administration of Criminal Justice System rests on the sound & established principles of Criminal Jurisprudence. The foremost rule being that a person is presumed to be innocent till he is proved guilty. To prove his guilt, the onus, is on the prosecution. Prosecution has to discharge this onus beyond reasonable doubt so as to bring on record, such evidence which is incapable of discerning any hypothesis, except the guilt of the accused.
359. Mensrea being the necessary ingredient of the offence with which accused has been charged, prosecution is under an obligation to prove the guilty mind or guilty intention on the part of accused to bring home the charge. The concept of vicarious liability is foreign / alien to the criminal liability C.C.No: 58 / 2011 Page No.213 of 228 Judgement in the matter of:-
CC No.:58 / 11.
(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
unless and until it is specifically incorporated in the Statute Book by the Legislature.
360. Whenever any offence is alleged to have been committed by any company or a partnership firm, then the prosecution has to establish on record that all the directors or partners, as the case may be, had the guilty intention or had done any overt act in commission of the offence, for the purposes of imposition of criminal liability on them. If any act is done by one of the directors or one of the partners, then the others cannot be made vicariously liable for the criminal offences, unless and until there is a specific statutory provision to that effect.
361. Legislature in its wisdom has specifically incorporated such a provision in Negotiable Instruments Act 1881 as well as in Companies Act 1956 (as amended in 2013), and also in Securities Exchange Board of India Act, C.C.No: 58 / 2011 Page No.214 of 228 Judgement in the matter of:-
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(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
1992, wherein also a proviso has been incorporated to safeguard the interest of those who are rendered liable to be roped in, which states that : "Nothing in this provision shall render any such person liable for punishment, if he proves any contravention took place without his knowledge".
362. However, no such provision has been incorporated by the Legislature, so far as the offences under Indian Penal Code are concerned.
363. Meaning thereby, that prosecution in order to establish its case has to prove the overt acts leading to commission of offence on the part of all the partners of the partnership firm.
364. In the present case, the onus was on the prosecution to prove the over acts leading to the commission of the offence of cheating and filing of forged invoices, knowing or C.C.No: 58 / 2011 Page No.215 of 228 Judgement in the matter of:-
CC No.:58 / 11.
(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
having reasons to believe the same to be forged ones on both the partners of the firm M/s Vijay and Company.
365. However, in the present case, on the basis of prosecution evidence which has come up on record, it is apparent that in the tender file Ex.PW.32/B, the bid against the NIT was submitted on behalf of the firm by accused Kartar Singh Shokeen. Even the negotiation note Ex.PW. 32/E bears signatures of accused Kartar Singh Shokeen. The agreement Ex. PW15/C entered into with MCD also bears signatures of accused Kartar Singh Shokeen. Apart from that, the invoices which were found to be forged ones Ex.PW.7/A ; Ex.PW.24/D, were also submitted with MCD by accused Kartar Singh Shokeen under his signatures. All these documents proved on record by the prosecution, proves overt acts for and on behalf of M/s Vijay & Company of accused Kartar Singh Shokeen.
C.C.No: 58 / 2011 Page No.216 of 228
Judgement in the matter of:-
CC No.:58 / 11.
(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
366. The only document which have been produced and proved on record by the prosecution qua accused Vijay Pal Shokeen is the account opening form of M/s Vijay & Company, marked as Mark PA1, however it only proves accused Vijay Pal Shokeen, to be one of the partners of this firm. The said account opening form was submitted on behalf of firm with the bank for opening of bank account and it had nothing to do with the execution of the work order in question, or with submission of the forged invoices Ex.PW.7/A and Ex.PW.24/D.
367. Apart from above, PW17 Anil Kumar Chowkidar with M/s Vijay & Co., had also deposed that he was employed by Kartar Singh Shokeen. PW29 Amarjeet also deposed that he used to do all the work relating to bank of Kartar Singh Shokeen that he got the cheque Ex.PW.29/A encashed from the bank for purposes of making payment. Another employee of M/s Vijay & Company examined by the C.C.No: 58 / 2011 Page No.217 of 228 Judgement in the matter of:-
CC No.:58 / 11.
(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
prosecution ie. PW28 Om Prakash also deposed to have known Kartar Singh Shokeen before joining M/s Vijay and Co. Though they stated that Vijay Pal Shokeen was also a partner of this firm however they did not utter anything relating to daytoday affairs of this work, attributable to him.
368. Deposition of these witnesses also reveals that the work of M/s Vijay and Company, was being managed only by accused Kartar Singh Shokeen.
369. Having regards to this documentary evidence and no oral evidence to the effect that for submission of these documents with MCD on behalf of the firm, there was any consent or intention of accused Vijay Pal Shokeen as well, I am of the considered opinion that prosecution has not been able to discharge this onus qua accused Vijay Pal Shokeen towards the commission of any overt act leading to the completion of offence, for which he was charged.
C.C.No: 58 / 2011 Page No.218 of 228
Judgement in the matter of:-
CC No.:58 / 11.
(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
370. In view thereof, this contention of Ld.Public Prosecutor that accused Vijay Pal Shokeen be also made criminally liable for the acts of the partnership firm M/s Vijay & Company, though done by partner Kartar Singh Shokeen, is turned down.
371. Summary culled out from the evidence adduced on record, had deduced following propositions which stands proved that : i. That, Work order Ex. PW15/B ; were awarded by MCD in favor of M/s Vijay & Company, for which agreement Ex. PW15/C ; was executed and signed by accused no.2 Kartar Singh Shokeen.
C.C.No: 58 / 2011 Page No.219 of 228
Judgement in the matter of:-
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(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
ii. That, as per these agreements, Kartar Singh Shokeen was required to procure fresh bitumen from approved oil agencies and was required to submit invoices as a proof thereof.
iii. That, accused Kartar Singh Shokeen had submitted invoices Ex.PW7/A & Ex. PW24/D, with MCD, thereby claiming to have purchased bitumen from IOCL against these invoices.
iv. That, the invoices so submitted by Kartar Singh Shokeen with MCD were found to be forged ones , as genuine invoices Ex.PW9/DA and as per sales summary Ex. PW9/A against those very serial numbers were issued by IOCL in favor of other organizations.C.C.No: 58 / 2011 Page No.220 of 228
Judgement in the matter of:-
CC No.:58 / 11.
(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
v. That, the vehicle, registration number of which were mentioned on these invoices, were either not capable of transportation of bitumen or were never engaged for transportation of the same from IOCL to the plant of the contractor.
vi. That, the accused "public servants" in discharge of their official duties had accepted the invoices so submitted with them without any reason to doubt the genuineness of the same.
vii. That, even otherwise the accused "public servants" who came across these invoices did not have any mechanism to check the authenticity and genuineness of the invoices in question, which even otherwise, they were not duty bound.C.C.No: 58 / 2011 Page No.221 of 228
Judgement in the matter of:-
CC No.:58 / 11.
(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
viii. That, the accused "Public Servants" did not have any meeting of mind or any agreement of any sort, with accused no.2 Kartar Singh Shokeen, to do any illegal act or a legal act by illegal means.
ix. That, the accused "Public Servants" prepared their records on the basis of invoices in question, submitted by accused no. 2, believing the same to be genuine and also on the basis of other works conducted at plant and site, in execution of the work orders and in preparation, processing & passing of the bills, as was required from them in discharge of their official functions.C.C.No: 58 / 2011 Page No.222 of 228
Judgement in the matter of:-
CC No.:58 / 11.
(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
x. That, the conduct of the accused "Public Servants" as per evidence on record, did not fall in the contours of "criminal misconduct" as per Section 13(1) (d) of Prevention of Corruption Act,1988.
xi. That, prosecution has failed to establish that it was accused Munish Guliani who had supplied either the bitumen or the invoices Ex.
PW7/A and Ex. PW24/D to accused Kartar Singh Shokeen.
xii. That, accused no.2 Kartar Singh Shokeen had submitted these forged invoices, as genuine with MCD, knowing or having reasons to believe the same to be forged ones.C.C.No: 58 / 2011 Page No.223 of 228
Judgement in the matter of:-
CC No.:58 / 11.
(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
xiii. That, accused no.2 Kartar Singh Shokeen had thus induced MCD through the accused "Public Servants" to act on these forged invoices and cheated MCD.
xiv. That, MCD through the the accused "Public Servants" on misrepresentation and inducement of accused no.2 Kartar Singh Shokeen and believing the invoices in question to be genuine ones, prepared, processed & passed the bills against the work orders, which resulted in release of payment in favor of the contractor, to the extent of Rs.3,60,020/.
xv. That, the same resulted in causing wrongful loss to MCD and corresponding wrongful gain to the contractor.C.C.No: 58 / 2011 Page No.224 of 228
Judgement in the matter of:-
CC No.:58 / 11.
(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
372. The cumulative effect of these facts established on record by the prosecution, are inconsistent with the innocence of accused Kartar Singh Shokeen and are incapable of any explanation on any hypothesis other than the guilt of accused no.2 Kartar Singh Shokeen, so far as offences of cheating and submission of forged invoices as genuine knowing or having reasons to believe the same to be forged ones, with MCD are concerned. The defence witnesses examined in this case, also failed to put forth any explanation to contradict the inevitable conclusion where prosecution evidence on record, has led me to, with respect to offences under section 420 and 471 IPC qua this accused.
373. Prosecution however has failed to establish on record the necessary ingredients of offences under section 120B IPC r/w section 420, 471 read with section 468 IPC and section 13(2) read with section 13 (1) (d) of Prevention of C.C.No: 58 / 2011 Page No.225 of 228 Judgement in the matter of:-
CC No.:58 / 11.
(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
Corruption Act, 1988 ; against all the accused persons including accused no.2 Kartar Singh Shokeen.
374. Prosecution has further failed to establish on record the necessary ingredients of substantive offence under section 468 IPC against accused no.2 Kartar Singh Shokeen.
375. Prosecution has failed to prove on record necessary ingredients of substantive offence under section 420, 471, 468 IPC against accused no. 1 Vijay Pal Shokeen and accused no. 3 Munish Guliani.
376. Prosecution has also failed to establish on record the necessary ingredients of substantive offence under section 13 (1) (d) read with 13 (2) of Prevention of Corruption Act, against Accused no.4 Dinesh Yadav ; Accused no.5 S.C.Chellani, Accused no.6 Bhupinder Kumar ; Accused no.7 Abhay Kumar ; Accused no.8 O.P.Saroha ; and Accused no.9 C.C.No: 58 / 2011 Page No.226 of 228 Judgement in the matter of:-
CC No.:58 / 11.
(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
P.S.Chauhan.
FINAL VERDICT:
377. Having regards to the facts and circumstances and the discussions as delineated hereinabove :
(a) All the accused persons are acquitted of the charge under section 120B IPC r/w section 420, 471 read with section 468 IPC and section 13(2) read with section 13 (1) (d) of Prevention of Corruption Act, 1988
(b) Accused no.2 Kartar Singh Shokeen is acquitted of the charge for substantive offence under section 468 IPC.
(c) Accused no.4 Dinesh Yadav ; Accused no.5 S.C.Chellani, Accused no.6 Bhupinder Kumar ; Accused no.7 Abhay Kumar ; Accused no.8 O.P.Saroha ; and Accused no.9 P.S.Chauhan; are acquitted of the charge for substantive offences under section 13(1) (d) read with section 13(2) of Prevention of Corruption Act, 1988.
C.C.No: 58 / 2011 Page No.227 of 228
Judgement in the matter of:-
CC No.:58 / 11.
(C.B.I. Vs. VIJAY PAL SHOKEEN & Ors.) th Dated : 29 May 2014.
(d) Accused no.1 Vijay Pal Shokeen and accused no.3 Munish Guliani are acquitted of the charge for substantive offences under section 420, 471 read with 468 IPC.
(e) Accused no.2 Kartar Singh Shokeen is convicted for the substantive offences under section 420 and 471 IPC.
378. Let convict Kartar Singh Shokeen be heard on point of sentence.
Announced in the Open Court th On the 29 Day of May, 2014.
(KANWALJEET ARORA) SPECIAL JUDGE : C.B.I. (P.C.ACT) DWARKA COURTS, NEW DELHI.
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