Delhi District Court
Cc No. 34/2010 Cbi vs . Davesh Chand & Ors. Page 1 Of 52 on 8 January, 2016
IN THE COURT OF SANJAY GARG-I :
SPECIAL JUDGE-IV, (PC ACT) CBI: DELHI.
CC No. 34/2010
ID No. 02401R0029802010
Central Bureau of Investigation (CBI)
Versus
1. Devesh Chand
s/o late Sh. Padam Prasad Jain
R/o B-3/59, 1st Floor, Sector-16,
Rohini, New Delhi.
2. S. K. Jain
s/o late Sh. Anand Kumar Jain
R/o A-194, Sec. 46, Noida.
3. Anil Malhotra
s/o Sh. Krishan Malhotra
R/o B-248, Lok Vihar, Pitampura,
Delhi.
Date of FIR : 29.12.2008
Date of Institution : 06.8.2010
Date of conclusion of
Final Arguments : 23.12.2015
Date of Judgment : 08.01.2016
JUDGMENT
FACTS CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 1 of 52 1.0. This case was registered on the basis of written complaint dated 29.12.2008 made by SI Pankaj Vats, CBI, ACB, New Delhi, with regard to order no. 54(WO)EE/FPDF-131/07-08/69 dated 28.2.2008 by PWD for providing and fixing 80 spring posts. These spring posts were provided by the contractor at an exorbitant rate of Rs. 4400/- per piece whereas costs of these spring posts during that period was around Rs. 1100 to Rs. 1500/-. The officials of PWD in conspiracy with the contractor caused wrongful loss to the government and wrongful gain to the contractor.
1.1.The investigation revealed that a note relating to providing and fixing of spring posts at Mukarba chowk at G. T. Karnal Road, Outer Ring Road junction, Delhi was put up by Davesh Chand, AE (accused no.1) on 27.02.2008 mentioning that Delhi Traffic Police authorities have visited the site on 26.2.2008 and again on 27.2.2008 and DCP Traffic (North West), Sh. M.I. Haider has desired specifically to provide road safety devices, i.e. spring posts at all four points of rotary and has further proposed that 80 numbers of spring posts are urgently required to be fixed. A-1 had collected three spot quotations on 27.2.2008 from 3 agencies namely M/s Yadav Construction Co., Sh. Zahir Ahmed and Sh. Anil Malhotra (accused no.3), who quoted rates as Rs. 4650/-, Rs. 4600/- and Rs.4400/- per spring post respectively. A-1 also provided a justification statement of the work and as per analysis of rate calculated by him, the estimated cost of spring posts came to Rs. 4855/-. He recommended that A-3 has quoted the lowest rates and accordingly, his rates be approved. At this note, S.K. Jain, EE (accused no.2) has given his note that work is required to be done urgently on Mukarba CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 2 of 52 Chowk in view of the visit of Chief Minister of Delhi on 3.3.2008 and recommending that rates quoted by L-1 may be accepted. A-2 submitted his note to Sh. P. S. Chauhan, Superintendent Engineer and Project Manager Fly Over Project Circle F-13, Mukarba Chowk. Sh. P. S. Chauhan marked the note to AE(P) K.K. Sharma for processing. Sh. K. K. Sharma on 28.2.2008 submitted his note mentioning all the details of visit of Delhi Traffic Police authorities, spot quotations collected by A-1, rates are reasonable and justified as compared with the present market rates. Sh. K. K. Sharma has further mentioned in his note that keeping in view of the urgency of work, lowest quotation of A-3 may be approved. He put up his note to Sh. P. S. Chauhan, who accepted the lowest quotation and the same was conveyed to A-2 vide letter dated 28.2.2008. Accordingly work order of Rs. 3,52,000/- was issued on 28.2.2008 to A-3. It was mentioned in the work order that work to be completed within 5 days.
1.2.According to para 14.1 of CPWD manual, normally tenders should be called for all works costing more than Rs. 50,000/-. In case where the work is to be awarded expeditiously, prescribed period of notice may be reduced. In urgent cases or where it is expedient to do so, the work may be awarded without call of tenders, after approval of competent authority. The precise reasons should be recorded by Division Officer before dispensing with call of tenders for work more than Rs. 50,000/-. Taking the plea of urgency, A-1 and A-2 conspired with A-3 in awarding this work on much higher rates than those prevalent in the market.
1.3.CPWD manual provides for situations under which normal tender process can be dispensed with. Section 5.4.1 of the manual CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 3 of 52 provides with situation for calling spot quotations. As per this section wherever a work is to be taken up or a material is to be procured under critical situations, such as in the case of breakdown of essential services or works which brooks no delay, spot quotations may be collected from reputed and established agencies dealing with the work of supply of material. In this case none of the three firms from which spot quotations were collected are reputed firms dealing in supply of spring posts.
1.4.Investigation revealed that DA 954 spring post is one of the product of the firm M/s Dark Eye TM products. As per price list as on 1.1.2006, the MRP of spring post was Rs. 4,400/-. Sh. Gurvinder Singh, General Manager of M/s Muskan Safety Solution Pvt Ltd. (hereinafter referred to as "M/s Muskan"), during investigation, revealed that rates are negotiable depending upon the quantity being purchased and the rates which are charged by the company with range between Rs. 1,000/- to Rs. 2,000/- per spring post. Price of per spring posts varies depending upon quantity and mode of payment. Huge quantity and fast mode of payment can help in reducing the price. But if quantity is less and payment is delayed, higher rates are charged but not exceeding of Rs. 2,000/- per spring post. During the relevant period spring posts were sold by M/s Muskan at price ranging between Rs. 1,000/- to Rs. 2,000/-.
1.5.During investigation, stock and sales statements as well as various sale receipts/cash memos issued to various parties by M/s Muskan were collected. The rates at which spring posts were sold to various parties during the relevant period is as under:-
CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 4 of 52Sl. Invoice No. & date Item Rate Name of purchaser No. 1 031 dtd. 21.07.07 Spring 1,250/- M/s AJS Scale post International 2 062 dtd. 01.10.07 do 1,100/- M/s Grover Sales Corporation 3 094 dtd. 12.12.07 do 1,050/- M/s KMGS Road Sigh (P) 4 028 dtd. 16.05.08 do 2050/- (Including Executive installation Engineer, Division charges) Solan 5 202 dtd. 16.10.08 do 1533.34 (Including M/s DIMTS Ltd.
installation charges) 1.6During investigation, statement of account of M/s Muskan and A-3 were collected. Bank account statement of the contractor show receipt of payment of Rs. 3,36,984/- in his account. No details of payment 1.4 for purchase of spring posts by A-3 were noticed in the bank statement of M/s Muskan.
1.7Investigation revealed that A-1 did not collect the present market rate of spring post and he relied upon 2006 rate list of M/s Muskan, simply to justify the higher rates. He also relied upon rates on which advertisements were placed in the year 2004. The rates of spring posts during the year 2008 was much cheaper than the year 2004 and 2006. A-1 deliberately in pursuance of criminal conspiracy with A-2 and A-3 put the analysis of rates and comparative statement knowingly that it will cause pecuniary loss to the government. A-2 acting in criminal conspiracy forwarded the rates and note of A-1 to Superintendent Engineer knowing fully well that cost of work order is much higher than market rates and as supervising officer of A-1, it was responsibility of CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 5 of 52 A-2 to do the justification of rates on the basis of present market rates and not on old rates prevalent in the year 2004 and 2006. A-3 in criminal conspiracy managed to get his contract approved and quoted higher rates for providing and fixing of spring post. Thereby causing pecuniary loss to exchequer and corresponding gain of himself and other persons. Accordingly, all the three accused persons were charged for offence punishable under Sections 120-B read with Section 420 IPC and 13(2) read with Section 13(1)(d) of P. C. Act.
Charge 2.0. All the three accused persons were charged under Section 120-B IPC to which they pleaded not guilty and claimed trial.
2.1. A-1 was also charged separately for offences under Section 420 IPC, and 13(1)(d) read with Section 13(2) of P. C. Act to which he pleaded not guilty.
2.2. A-2 was also charged separately for offence under Section 13(1)(d) read with Section 13(2) of P. C. Act and for offence under Section 120-B read with Section 420 IPC to which he pleaded not guilty.
2.3 A-3 was also charged separately for offence under Section 120-B read with Section 13(1)(d) read with Section 13(2) of P. C. Act and for offence under Section 120-B read with Section 420 IPC to which he pleaded not guilty.
Prosecution Evidence.
CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 6 of 523.0.To prove its case, prosecution has examined 19 witnesses.
3.1.PW-1 M. I. Haider was posted as ACP -Traffic (North-West District) in the year 2008. He deposed that he had given necessary suggestions to PWD officials for traffic aid, i.e. to avoid any clash of pedestrian movement and vehicular traffic. He had not expressed any urgency for installation of any traffic aid at the spot. He does not remember having given any suggestion at that time relating to VIP visit.
3.2.PW 2 Mrs. Jaskeerat Kaur is Manager (Sales & Co-ordination) with M/s Muskan. She deposed that M/s Texla Plastics & Metals Pvt. Ltd. (hereinafter referred to as M/s Texla) is a sister concern of M/s Muskan. M/s Muskan deals with road safety items. The price list of articles had been prepared but the same had been discontinued since 2006. Since 2006, Muskan. used to send quotations to the concerned parties as per requirement. Rates quoted by the company were negotiable at the discretion of the management. The price list of the company is mark P2/A. 3.3.PW-3 Sh. Gurinder Singh Bhandari, General Manager (Sales) with M/s Muskan. He deposed that company deals with manufacturing and sale of road safety devices. M/s Taxela is sister concern of M/s Muskan. M/s Taxela is only concern with the manufacturing of road safety devices. Some of its products are purchased by M/s Muskan for being further sold in the market. DA-954 spring post consists of four or five parts. Main pole of it is manufactured by M/s Texla and then used to assemble by M/s Muskan to sell the product. In the year 2008 sale price of DA 954 was between Rs. 1,000/- to Rs. 2,000/- as sold by M/s Muskan. Earlier, there was price list where MRP was mentioned as Rs. 4400/- for this product. And same continued till 2006. MRP was CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 7 of 52 negotiable. There was no price list issued in the year 2008. Vide seizure memo Ex. PW 3/A, bills in respect of spring posts which are mark P3/X and P3/X-1 were handed over to CBI. PX-1 relating to spring posts DA 954. Ex. PW 3/B is letter signed by Director Sh. D. P. Singh. Seizure memo Ex. PW 3/C bears his signature vide which some bills which are collectively Ex. PW 3/D (1 to 4) were seized.
3.4.PW-4 Rakesh Chand was posted as Jr. Engineer with Division 131 (F-131) from June 2005 to September 2008. He deposed that during 2007-08 A-2 was posted as Executive Engineer in the Division. And A-1 was posted as Asstt. Engineer. The Job of setting up road safety devices at Mukarba Chowk had been assigned to him, after the work had 1.4 been awarded. As per record, spot quotations in this case appears to have been collected by A-1 as per noting Ex. PW 4/1. This noting is in the handwriting of A-1 and also bears his signature. He identified the handwriting of A-1 on document (D-3/1, 2 & 3) and endorsement regarding bearing the same on Ex. PW 4/2, 3 & 4 and Ex. PW 4/2A, 3A & 4/A respectively. He also identified signatures of A-2 on these documents at point "Y". He identified the signatures of Sh. K. K. Sharma, the then AE (Planning) on mark P1/1 at points Ex. PW 4/5 and 5-A. He also identified handwriting and signatures of A-1 on note mark P1/2 as Ex. PW 4/6. He further identified signatures of A-2 on note 2N at point Ex. PW 4/7. He also identified the noting approving the work by Sh. P. S. Chauhan, Project Manager F-13 as Ex. PW 4/8 and 4/8A. He further deposed that measurement in respect of the work was done by him and his note in this regard is Ex. PW 4/9 and same was duly checked at the spot by A-1 vide endorsement Ex. PW 4/9A. He identified signatures of A-1 on first and final bill Ex. PW 4/10 and 4/10A CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 8 of 52 and initials of A-2 at points Ex. PW 4/10B, 4/10A, 4/10C and 4/10D.
3.5.PW 5 J. R. Raghuvanshi was partly examined. He deposed that he never related to the work in question in this case. Thereafter, he was discharged and was never resummoned.
3.6.PW 6 Sh. P. S. Chuahan was posted as Project Manager, Fly Over Project Circle, F-13, Mukarba Chowk from 1.4.2007 to 15.3.2011. He deposed that this flyover came in division F-131 of PWD and both A-1 and A-2 were posted in this division. The project regarding construction of the fly over had been assigned to M/s Afcon Infrastructure Ltd., consisting of main fly over on outer ring road and four slip roads for left turning traffic and four clover leaves for right turning and also ground level road for straight moving traffic on G. T. Karnal road. The project report had been provided by consultant M/s Crapht Consultant (P) Ltd. He further deposed that note Ex. PW 4/8 is in his handwriting and bears his signature and the same had been prepared by him on the basis of note put up by Sh. K. K. Sharma, the then AE(Planning). The initial proposal regarding installation of spring post on the slip roads of fly over had been put up by A-1 and he then marked the proposal for examination to Sh. K. K. Sharma, AE (Planning) and on the basis of recommendation of Sh. Sharma, he had put his note Ex. PW 4/8. He was aware about the urgency of the project and the traffic could be separated only after installing the spring posts on the slip roads to enable construction of main flyover to start. Requirement thereof had been disclosed by traffic police during joint inspection. He has no personal knowledge in respect of the market survey conducted in respect of the spring post or the justification of rates there. In this regard, he has relied upon recommendation of EE & CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 9 of 52 AE(P). The initial note regrading justification of rates and market survey was of A-1. During his cross-examination by Ld. PP, he stated that there was consideration of road safety devices in respect of the project. The project report was seen by him but there was no reference to the spring post therein. No requirement of urgency of installing the spring posts had been expressed in writing by traffic police.
3.7.PW-7 Narender Singh Yadav was working as Government contractor since 1997 having experience in road work. He deposed that about 5-6 years back, he had filled in quotation for installation of spring post at Mukarba Chowk. He had received stationary in this regard from PWD office at Mukarba Chowk. It was during his course of his visit to the concerned Division, he came to know about the work of installation of spring post at Mukarba Chowk. He had filled the quotation of Rs. 4600/- per spring post which included labour, equipments etc. He had checked the rates from the list of Kendriya Bhandar. Ex. D-3/1 is the quotation filled by him. Portion in his handwriting on it is Ex. PW 7/A. He had filled the quotation in the PWD office. Subsequently, he came to know that his quotation was not the lowest and the work was awarded to lowest quotation filler. He does not know to whom the work was awarded. During his cross-examination by Ld. PP, he admitted that stationary for filling the quotation was given by A-1 and he had filled rate of Rs. 4650/- per spring post. He admitted that he was not present at the time of opening of tender and subsequently came to know that lowest quotation of Rs. 4400/- per spring post was of Anil Malhotra (A-3) to whom the contract was given.
3.8.PW-8 Dev Raj was working as Executive Engineer, PWD in the year 2008-09. He has detailed the procedure for calling spot quotations CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 10 of 52 and financial competency of different officers of PWD.
3.9.PW-9 Mukesh Sharma was posted as AE in R-II Division, NDMC, Golf Link Colony. As per him scheduled rate per spring post was Rs. 2281.91ps in the year 2007.
3.10.PW-10 Zaheer Ahmed is a registered government contractor. He had put in quotation regarding installation of spring post at G. T. Karnal Road, Mukarba Chowk. He proved quotation Ex. PW 10/1 signed by him where rate quoted was Rs.4,600/- per spring post.
3.11.PW-11 Chander Prakash was working as UDC in PWD in Fly Over Division F-131 in the year 2008. He was doing the checking of calculation of the records received. He has identified signatures of A-1 and A-2 on first and final bill Ex. PW 4/10C.
3.12.PW-12 Krishan Kumar Sharma was posted as Assistant Engineer (Planning) in PWD Flyover Project Circle F-13 in the year 2008. He proved note (D-5) as Ex. PW 12/1. He also identified his signatures on note dated 28.2.2008 as Ex. PW 4/5A. He proved letter Ex. PW 12/2 issued under directions of Project Manager.
3.13.PW-13 M.S. Verma was posted as JE, NDMC in the year 2007. He proved seizure memo Ex. PW 13/1 bearing his signatures vide which he had handed over this file to CBI officials. He proved photo copy of documents of file D-11 as Ex. PW 13/2 (colly.).
3.14.PW-14 C. S. Prasad was Director General, CPWD. He proved his signatures on sanction for prosecution of A-1 as Ex. PW 14/A. 3.15.PW-15 R. K. Varshney was posted as Under Secretary to Government of India, Ministry of Urban Development. He proved order Ex. PW 15/A vide which he had accorded sanction for prosecution of CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 11 of 52 A-2 on the name of the President. Ex. PW 15/B is the office note dated 27.6.2011 put by him in this regard.
3.16.PW-16 Inspt. Pankaj Vats, ACB, CBI is the complainant in this case. He proved his complaint Ex. PW 16/1.
3.17.PW-17 Kirori Lal Sharma was posted as Assistant Accounts Officer at Mukarba Chowk (F-131). He identified signatures of A-2 on Ex. PW 17/1. He also identified signatures of A-1 on sketch Ex. PW 17/2. He also identified signatures of A-1 and A-2 on the envelopes containing documents D-3/1 to 3 Ex. PW 17/3 to 17/8. He identified signatures of A-1 on document D-4 Ex. PW 17/9.
3.18.PW-18 Inspt. Prem Raj was handed over investigation in this case on 12.2.2009. He proved statements of PW Jaskirat Kaur (Ex. PW 18/1 & 2), PW Dev Raj (Ex. PW 18/3), PW Rakesh Chand (Ex. PW 18/4), PW Mukesh Sharma (Ex. PW 18/5), PW M. I. Haider (Ex. PW 18/6), PW Chander Prakash (Ex. PW 18/7), PW Krishan Kumar Sharma (Ex. PW 18/8), PW Zahir Ahmed (Ex. PW 18/9), PW Kirori Lal Sharma (PW 18/10). He also identified signatures on production-cum-seizure memo Ex. PW 3/A. He also proved copy of FIR Ex. PW 18/11.
3.19.PW 19 Dy. SP P. K. Srivastava was assigned investigation of this case at an advance stage. He approached the competent authority for granting of sanction for prosecution of A-1 and A-2.
3.20.On the basis of incriminating evidence against accused persons, their statements were recorded under Section 313 Cr.P.C, wherein they denied all the allegations against them. Accused also led defence evidence and have examined 18 witnesses.
3.21.DW-1 Ashok Kumar Yadav, Assistant Manager, National Co-
CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 12 of 52operative Consumer Federation of India Ltd. proved letter Ex. DW 1/1 bearing signature of Regional Manager Ms. Usha Bhaskar and copy of the rate contract list mark D-1/A. 3.22.DW-2 Vijay Yadav is Divisional Manager, Kendriya Bhandar, Faridabad. He deposed that summoned record could not be traced out by him despite best efforts.
3.23.DW-3 Ram Prakash is Executive Engineer (Purchase), Municipal Corporation, Faridabad. He deposed that the summoned record is not traceable.
3.24.DW-4 Anand Swaroop, Financial Controller, Municipal Corporation, Faridabad also deposed that the summoned record does not relate to his office and he is unable to produce the same.
3.25.DW-5 Inspt. Pearson Shadang, CBI, ACB has deposed that he could not trace out the original handing over/receipt memo dated 2.12.2008.
3.26.DW-6 Sajal Mitra is Executive Engineer PWD M-112. He has deposed that summoned record is no longer available in his office. As per him, summoned record has been seized by CBI from their office vide seizure memo, copies of which are mark D-6/A to C. 3.27.DW-7 Yogender Kumar AE(P), M-312 deposed that concerned record in respect of work order no. 03/EE/PWED CRMD M312 along with connected documents had been seized by CBI. Copy of the seizure memo is mark D-7/A. 3.28.DW-8 Anil Kumar Bhatt is AAO from Division M-111. He deposed that RTI reply is mark D-8/A and perhaps the signatory to reply is Sh. D. V. S. Kansal.
CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 13 of 523.29.DW-9 Prem Raj is AE (Purchase) from Municipal Corporation, Faridabad. He proved the reply to RTI application signed by SE D. C. Sahu. He also proved copy of communication as Ex. DW 9/2.
3.30.DW-10 Vijay Behl is AE (Civil), M-31, PWD. He proved file containing document RTI matter no. 8(38) CRMC M31/327 dated 5.3.2010. Copies of the record produced by him already lying on record were collectively marked as D-10/A. 3.31.DW-11 Yogender Kumar, AE(P) M312, PWD has deposed that he cannot identify the signatures on the letter dated 3.3.2010 mark D-11/A lying on the judicial file.
3.32.DW-12 Lakhan Singh identified signatures of Sh. I. D. Yadav, EE on Ex. DW 12/1.
3.33.DW-13 Mahender Ram, EE M-333, PWD proved letter Ex. PW 13/1 bearing signatures of EE Jagdish Prasad.
3.34.DW-14 Pramod Kumar Tomar is Executive Engineer, M-211, PWD. He proved RTI reply Ex. DW 14/1 bearing signatures of Sh. M. C. Yadav, EE.
3.35.DW-15 M. C. Yadav, EE(P) Northern Zone V, CPWD Jammu identified his signature on RTI reply Ex. DW 14/1. He also identified his signature on information contained in mark D-14/A. He deposed that he prepared corresponding information in tabulated form from record Ex. CW 2/A-1 to A-12.
3.36.DW-16 Jagdish Prasad identified his signature on Ex. DW 13/1 and information provided along with it is mark D-13/A. 3.37.DW-17 D. V. S. Kansal EE(P) North Zone-V, CPWD, Jammu CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 14 of 52 identified his signature on Ex. PW 17/1. (earlier marked as D-8/A).
3.38.DW-18 L. D. Yadav, EE(P), Guwahati, Central Circle-I, Guwhati Assam identified his signature on Ex. DW 12/1.
Argument 4.0 Heard arguments of Sh. Anil Tanwar, Ld. PP for CBI and Sh. H. K. Sharma, Ld. counsel for A-1 & Sh. P. C. Sharma, Ld. counsel for A-2 & A-3. Both the parties have filed written submissions along with copies of judgment relied upon by them.
4.1Ld. PP for CBI has submitted that as per Section 2.2, Chief Engineer is empowered to declare a work as urgent/emergent work keeping in view of the gravity of the situation. It has been stated that Section 2.2 over rides rule 129.2 of GFR which gives power to Executive Engineer to start work by treating it under urgent category. It has been stated that no written permission as required under Section 2.2 of the Manual was taken by A-1 and A-2 in this case. It has been stated that A-1 and A-2 have falsely treated the case as urgent one, by treating the visit of Chief Minister Sheela Dikshit at the spot, as an urgent case but deposition of PW-4 could not establish whether the Chief Minister had ever visited the said site where spring posts were installed. It has been stated that PW-4 has given an evasive reply regarding urgency, as he was the concerned JE, who had initiated the proposal regarding urgency. It has been stated that late entry of the work in the measurement book and its later payment to the contrary also reflect that there was no urgency as per the requirement of Manual. It has been stated that work was allegedly completed on 1.3.2008 but entry was done in measurement book on 28.4.2008. It has been stated that PW-1 DCP M. I. Haider CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 15 of 52 specifically denied that he had not expressed any urgency for installation of traffic aid at the spot. It has been stated that spot quotations could be called only in case urgent/emergent as prescribed under Section 5.4.1 of Manual and word "may be" used herein is mandatory in nature and it was requirement for the official concerned to collect spot quotations from reputed and established agencies dealing with supply of material, i.e. spring post DA 954. PW-7 and PW-8 are the two unsuccessful quotationers. They have not stated that if they were reputed contractor.
4.2 Ld. PP has further submitted that proposal of A-1 is not in the form of proper estimate as desired under Section 4 of the Manual. It has been stated that Section 4.4.2 has provided a format of detailed estimate but it is apparent from the record that there is no technical sanction, no estimate, no justification of rate and no analysis of rate prepared at any point of time because no market rate prevalent at the time of preparation of the comparative statement was tried to find out by the accused persons from the locality or surrounding market. It has been stated that as per Section 16 wide publicity of work should have been given to notice inviting tender but same was not willfully done by A-1 and A-2. It has been stated that no market rate has been obtained or verified in this case and rates at which spring posts were procured was exorbitant. It has been stated that PW-3 G. S. Bhandari, who is General Manager of M/s Muskan has categorically stated that spring post DA 954 was having cost of Rs. 1,000/- to Rs. 2,000/- in the year of 2008 and he further proved that MRP of such product was Rs. 4400/- which was negotiable. It has been stated that PW-8 Mukesh Sharma, AE of NDMC and PW-13 M. S. Verma of NDMC have deposed to have CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 16 of 52 procured the spring post at much less price than the price in this case. Regarding sanction, Ld. PP has submitted that PW-14 C. S. Sharma had granted sanction for prosecution of A-1 being competent authority. It has been stated that PW-15 Sh. R.K. Varshney has proved the sanction for prosecution of A-2. He has deposed that order in respect of prosecution of A-2 have been granted by Hon'ble Urban Development Minister on behalf of President of India and he had signed the sanction order as per notification under authentication rules notified as SO 2011 (E) dated 16.2.2002.
4.3 Sh. H. K. Sharma, Ld. counsel for A-1 has submitted that from the statement of PW-6, it stands established that there was urgency in taking decision for proper movements of pedestrians which surfaced during the meeting of traffic police officials and other officers. It has been stated that as per Ex. PW 4/8 initial note regarding installation was put up by A-2 which was examined by AE(P) Sh. K.K. Sharma. It has been stated that assessment of rates by market survey conducted by A-1 was further scrutinized by AE(P) and work order was within the competency of PW-6. It has been further stated that from the statement of PW-4 it stands established that work of installation of spring post was conducted by him regarding the price of spring post. Ld. Counsel has submitted that PW-2 and PW-3 who are stated to be working for M/s Muskan are unable to prove any document as the documents produced by them are marked and are fraudulent documents. It has been stated that PW-7 and PW-10 are other quotationers and they have admitted to have quoted rates of per spring post at the rate of Rs. 4600/-. It has been sated that PW-9 who is employee of PWD and prosecution witness has admitted that there is CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 17 of 52 different variety of spring posts. Regarding sanction, Ld. Counsel has submitted that sanction Ex. PW 14/A is defective based on extraneous facts and evidence. In support of his submissions, Ld. Counsel has relied upon the judgment in case S. Gopal Reddy Vs. State of Andhra Pradesh [AIR 1996 SC 2184].
4.4 Sh. P. C. Sharma, Ld. Counsel for A-2 and A-3 has submitted that the evidence led by prosecution has no legs to stand upon as the documents which are used in evidence are not proved in accordance with law as provided under Indian Evidence Act. Regarding sanction for prosecution of A-2, Ld. Counsel has submitted that it was illegally granted by competent authority without going through the adequate material. It has been stated that only two documents were seized by investigating agency which are bills of spring post in favour of respective parties. The other documents which found reference in the charge sheet were never collected or taken over by the present IO. It has been stated that sanction for prosecution of A-2 was twice rejected by competent authority. It has been stated that urgency of work in this case was considered by A-2 as per provisions of Section 5.4.1 and Section 14.1. It has been stated that Section 5.4.1 contemplate the situation as critical where work which brooks no delay, in these critical situation spot quotations may be collected from reputed and established agencies. It has been stated that main work of flyover was already going on and the Delhi cabinet had sanctioned Rs.195 crores for the project under different sub head and it was given to M/s AFCON Infra Structure Pvt. Ltd. It has been stated that in case slip roads were not made operational, the main contract of flyover would have been delayed and thereby government exchequer would have been CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 18 of 52 burdened and this was one of the urgency in the present case which was considered by PW-6. It has been stated that PW-6 has categorically stated that there was urgency involved in this work and no wrongful loss was caused to government exchequer. It has been stated that PW-3 who is main prosecution witness to prove the price of spring post has relied upon certain documents but the same being photo copies are not reliable. It has been stated that documents relied upon by PW-3 are not authored by him and to the reasons best known to prosecution author of these documents has not been produced. It has been stated that other witness examined by prosecution to prove rate of spring post have no where stated that if spring post got installed by them were "Dark Eye DA 954".
Appreciation of Evidence 5.0 The various allegations against accused persons are as follows:-
i) A-1 and A-2 in conspiracy with A-3 have awarded this work at much higher rates than the prevalent market rates taking the false plea of urgency.
ii) No market rate has been obtained or verified in this case.
iii) No wide publicity, i.e. required under Section 16 of Manual was done.
iv) A-3 was not a reputed and established agency for spring post DA-954.
5.1 Before proceeding ahead to appreciate the evidence led by prosecution to prove these allegations, CPWD Works Manual 2007 CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 19 of 52 which is a guiding rules book for CPWD/PWD officials needs to be looked into. The various acts of PWD officials are to be analyzed on the touch stone of various provisions of this manual. The procedure for execution of a work (in specific context of spot quotations) is culled out as follows:-
"(i) As per the requirement, the field staff, i.e. AE/JE prepares Detailed Estimate as per the format given in Section 4.2.2.
(ii) As per Section 4.3 (3) if the rates of the particular item are not mentioned in the DSR (Delhi Schedule of Rates), market rates will be considered.
Accordingly Analysis Of Rates is prepared by the field staff which is part of the Detailed Estimate.
(iii) As per Section 2.5.1. after administrative approval and expenditure sanction, detailed estimate are required to be submitted to the competent authority for technical sanction. (Competent Authority has to be decided on the basis of Appendix-I Serial No. 25.).
(iv) Section 14.1 provides that tender should be called for all works costing more than Rs. 50,000/-. In case where the work is to be awarded expeditiously, in urgent cases or where it is more expedient to do so, the works may be awarded without call of tender after approval of Competent Authority (As per Appendix-I). Divisional officer is required to give precise reasons before dispensing with call of tenders. Spot quotations CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 20 of 52 can be collected if the situation so warrants by AE or EE.
(v) As per Section 13.2 Executive Engineer can introduce additional terms and conditions in NIT to suit the exigency of a work and these would override the corresponding standard clauses of the various forms.
(vi) As per Rule 129 (2) of Annexure of Section 1 the Executive Engineer on his own judgment and responsibility, on the grounds of urgency carry out a work or incur a liability under circumstances when the provisions set out under sub rule 1 of Rule 129 cannot be complied. As per Section 2.2 Chief Engineer is empowered to declare work as urgent/emergency work in a judicious manner depending upon the gravity of the situation, which may arise due to a natural calamity, civil disturbances or exigencies that cannot brook any delay.
(vii) As per Section 14.1(4) normally, unless situation warrants otherwise, work order shall be placed only after competitive call of quotations with publicity through web and notice board. As per Section 5.4.1 for the work which brooks no delay, spot quotations may be collected by EE/AE from reputed and established agencies dealing with the work or supply of material and the work awarded or supply order placed immediately. Prior approval of Competent Authority shall be obtained in oral, if not in writing before awarding the work or placing the supply order.
CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 21 of 52(viii) As per Section 19 Scrutiny and justification of tenders (which is also applicable to quotations) is done. As per Section 19.2 after opening of the tender (Quotations), the Executive Engineer will prepared comparative statement and send the same to the office of Superintending Engineer/Chief Engineer (i.e. tender accepting authority concerned) and detailed scrutiny will be done in the office of that accepting authority.
(ix) As per Section 19.4.3 tender accepting authority shall satisfy himself about the reasonability of rates before acceptance of the tenders. Reasonability of rates shall primarily be accessed on the basis of justified rates.
(x) After approval of the tender accepting authority, the file returns to the division office for award of work.
(xi) Executive Engineer issues work order to L-1 (the first lowest). As per Section 29 inspection of work is done and completion certificate is issued. Thereafter payments are released to the contractor.
If A-1 and A-2 in conspiracy with A-3 have awarded this work at much higher rates than the prevalent market rates taking the false plea of urgency.
6.0The first & foremost contention raised by Ld. PP is that there was no urgency for execution of the said work of installment of Spring Post in this case in Division M-111, the letter received from the Office of DCP CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 22 of 52 (Traffic) was used as a tool to create fake emergency by A-2 who was working as Executive Engineer in Road Division M-111 and he without preparing justification of rates considered the cost of Spring Post @ Rs. 4400/- per piece and did not verify the prevalent market rates of Spring Post DA-954, which was available in the market at a much lower price. The allegation against A-1 is that he being Superintending Engineer in Circle M-111 approved the said proposal of A-2 without any justification of rates.
6.1The relevant provisions of CPWD Works Manual- 2007 defining urgent/emergency work and critical situation for calling spot quotations are Section 2.2 and Section 5.4.1. The same are reproduced as follows: -
2.2Works of inescapable nature (Ref. Rule 129 (2) of GFR-2005) The Chief Engineer shall declare works of inescapable urgency as 'urgent/emergency work' in a judicious manner depending upon the gravity of the situation. This may arise due to a natural calamity, civil disturbances, or exigencies that cannot brook any delay. In case of 'urgency' or 'emergency', the work may be executed in absence of any or all of the above -mentioned pre-requisities. On receipt of such written order of the competent authority in each case, the Executive Engineer /Assistant Engineer shall proceed to carry out the necessary work, and shall immediately intimate the AO concerned that he is incurring such a liability, stating therein the approximate amount of liability that he is likely to incur.
The Executive Engineer/Assistant Engineer should obtain the CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 23 of 52 administrative approval and expenditure sanction and accord of technical sanction of the competent authority to regularize the liability as early as possible.
5.4.1Situations for calling spot quotations - competent authority (1)Wherever a work is to be take up, or a material is to be procured under critical situations, such as in the case of a break-down of an essential service or works which brooks no delay, spot quotations may be collected from reputed and established agencies dealing with the work or supply of material, and the work awarded or supply order placed immediately.
(2)In case of a situation where there is a shortage of a critical material that is required to be arranged departmentally for the execution of a work, and its rate is not stable, and there is a wide day-to-day fluctuation in its rate in the market, spot quotations may be collected from reputed and established agencies dealing with the material, and supply order may be placed immediately for such quantities of material that are immediately required, and as are available with the agency. Spot quotations should be collected by EE or AE only.
(3)Prior approval of such authority should be obtained, in oral if not in writing, before awarding the work or placing the supply order. Reference thereof should be mentioned while forwarding the case for obtaining the written approval of this authority, and the same should be sought at the earliest possible opportunity CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 24 of 52 but not later than 10 days.
6.2 The various urgent/emergency situations, which may arose are due to a natural calamity, civil disturbances, or exigencies that cannot brook any delay or breakdown of essential services. The circumstances which can be considered as urgent or emergent are broadly categorized in the CPWD Works Manual and appears to depend upon the subjective satisfaction of the concerned Officer initiating the proposal, who are A-1 and A-2 in this case and his action is required to be duly approved by his Senior Officials.
6.3 Ex. PW 4/6 is the first document which came into assistance in this case. It is dated 27.2.2008 prepared by A-1 and forwarded to A-2 being EE F-131. To appreciate the contents of this letter, same is reproduced as follows:-
"Subject:- N/W:- Construction of Grade separator at Mukarba Chowk at GT Karnal Road Outer Ring Road Junction Delhi.
SH: Providing and fixing Road Safety Devices at Mukarba Chowk.
In connection with the above mentioned project work, the Traffic division is to be done on newly constructed slip roads in all the four quadrants viz.,
(i) Rohini to Karnal Slip Road in MCD Quadrant
(ii) Karnal to I.S.B.T -do- in 4th Quadrant
(iii) I.S.B.T. to Azadpur -do- in Grave Yard Quadrant
(iv) Azadpur to Rohini -do- in D.D.A. Quadrant at all four locations marked (A), (B), (C), & (D) in the Traffic Diversion Plan (copy attached), the Delhi Traffic Police authorities have visited the site jointly with PWD officers/officials & M/s AFCONS.... Engineers. On 26.02.2008 and Again on 27.02.2008. A.C.P. Traffic CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 25 of 52 (North-West) Shri M. I. Hider has desired specifically to provide road safety devices, i.e., Spring Posts at all 4 (four) points of Rotary where, the traffic is merging at least 10 to 12 spring posts on either side to separate the Right Turning Traffic and merging at another point Slip Road.
Thus, at least 10X 2X4 + 80 Nos spring Posts are urgently required to be fixed.
Spot Quotations for the same have been collected and opened by the undersigned on 27/02/2008.
Sh. Anil Malhotra, has quoted his lowest rates as compared with other quotationers (Comparative Statement & 3 Nos Quotations are placed below please).
Submitted for approval of the Competent Authority.
Sd/EE F-131"
6.4 Ex. PW 4/7 is the note prepared by A-2 and the same was forwarded to Project Manager F-13. The said note is reproduced as follows:-
"The work is urgently required to open the traffic on slip roads for which it is proposed to opened by Honrable C.M. On 3.3.08. The requirement of the work was given by ACP (Traffic). Rates of Ist lowest are reasonable market rates. So it is proposed to approve the rates of Ist lowest to issue the W.O. Sd/-S. K. Jain PM/F-13 Urgent/AE(P) Pl process & put up sd/- sd/- PM/F-13"
6.5 Ex. PW 4/6 talks about joint visit of Delhi Traffic Police authority, CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 26 of 52 PWD officials and M/s Afcons Engineers on 26.2.2008 and directions given by sh. M. I. Haider (PW-1) ACP Traffic (North-West) to provide road safety devices at 4 points of Rotary. Ex. PW 4/7 note of A-2 further talks about the visit of Hon'ble Chief Minister on 3.3.2008. He has also reported requirement of the work by ACP(Traffic).
6.6 PW-1 Sh. M. I. Haider, who was ACP Traffic, (North-West) at that time has deposed that at the time Flyover was being constructed at Mukarba Chowk and he being ACP visited the said place in his official capacity. He had given necessary suggestions to PWD officials for traffic aid, i.e. to avoid any clash of pedestrian movement and vehicular traffic. He had not expressed any urgency for installation of any traffic aid at the spot. He has testified that as far as he remember no fatal accidents were taking place at the spot in question at that time and no written suggestion had been issued to PWD officials for installation of any traffic aid. He denied the suggestion that joint survey at Mukarba Chowk was in pursuance to the directions in case of Hem Nalini Vs. Govt. of NCT of Delhi (WP(C) No.5239/02).
6.7 PW-6 Sh. P.S. Chuahan was posted as Project Manager, Fly Over Project Circle, F-13, Mukarba Chowk. As per him, construction of the fly over had been assigned to M/s Afcon Infrastructure Ltd., consisting of main fly over on outer ring road and four slip roads for left turning traffic and four clover leaves for right turning No requirement regarding urgency of instillation of spring post had been expressed in writing by traffic police. During his cross-examination, he admitted that he had also visited the spot for preparation of slip roads. Spring post was not under consideration when the project was considered at initial stage. He admitted that he is aware Hem Nalini's case which was then CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 27 of 52 pending before Hon'ble High Court and directions given therein. He further admitted that for installation of spring post at Mukarba Chowk was also considered in the said matter. He also admitted that PWD officials had been asked by traffic police for installation of Spring Post at the slip roads. He agreed with the suggestion that installation of spring post was urgently required. He was satisfied that further construction of Flyover could not be done until and unless spring posts were installed on the slip roads. In case he would not have been satisfied with any proposal of AE or EE, he could very well have rejected the same.
6.8 The contention raised by prosecution is that to create emergency false ground regarding visit of Chief Minister of Delhi was created and even as per PW-1 he had not expressed any urgency for installation of any traffic aid. The total estimated amount of this work was Rs. 3,52,000/-. As per annexure-I serial No. 17 of the Manual it was within the financial competency of Superintendent Engineer, i.e. PW-6 P. S. Chauhan, who was working as Project Manager for this project. PW-6 being the Project Manager and supervising officer of A-1 and A-2 was the appropriate person to take a call if the work was required to be considered as urgent or not. He has specifically stated that in view of the directions of High Court and the visit of Chief Manager at the spot on 3.3.2008, he agreed with the recommendations for installation of spring post at the spot was urgently required.
6.9 In view of the aforesaid reasons if A-2 and A-2 who were working in the road division and was also associated with the Flyover Project at Mukarba Chowk, considered this situation as urgent and the same was approved by supervising officer PW-6 P. S.Chauhan, Project Manager.
CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 28 of 52No imputation can be attributed to them that they did so in conspiracy to cause wrongful gain to A-3.
6.10 The other point vehemently urged by prosecution is that to declare a work emergent/emergency work was within the sole domain of Chief Engineer but no such sanction was taken in this case which further raise doubt on the working of A-1 and A-2 in getting this work through without following the laid down procedure. On the other hand, Ld. counsel for A-1 and A-2 has contended that Rule 129(2) of GFR provided under Section 1 of the Manual gives the concerned Executive Engineer power on the ground of urgency or otherwise and if it becomes necessary to carry out the work or incur a liability.
6.11 For better appreciation of facts, the relevant provision, i.e.2.2 and Rule 129(2) GFR provided under Section 1 are produced as follows:-
"129(2) On ground of urgency or otherwise, if it becomes necessary to carry out a work or incur a liability under circumstances when the provisions set out under sub rule 1 of rule 129 cannot be complied with, the concerned executive officer may do so on his own judgment and responsibility. Simultaneously, he should initiate action to obtain approval from the competent authority and also to intimate the concerned Account Officer."
"2.2 Works of inescapable nature (Ref. Rule 129 (2) of GFR-2005) The Chief Engineer shall declare works of inescapable urgency as 'urgent/emergency work' in a judicious manner depending upon the gravity of the situation. This may arise due to a natural calamity, civil disturbances, or exigencies that cannot brook any delay. In case of 'urgency' or 'emergency', the work may be executed in absence of any or all of the above -CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 29 of 52
mentioned pre-requisities. On receipt of such written order of the competent authority in each case, the Executive Engineer /Assistant Engineer shall proceed to carry out the necessary work, and shall immediately intimate the AO concerned that he is incurring such a liability, stating therein the approximate amount of liability that he is likely to incur. The Executive Engineer/Assistant Engineer should obtain the administrative approval and expenditure sanction and accord of technical sanction of the competent authority to regularize the liability as early as possible."
6.12 Rule 2.2. gave exclusive power to Chief Engineer to declare the work of inescapable urgency as urgent/emergency work and he is required to work in a judicious manner for doing so. But as per Rule 129(2), the Executive Engineer can carryout a work or incur a liability on the ground of urgency. It further provide that simultaneously he is required to initiate action seeking approval of competent authority. The perusal of heading of Section 2.2 reveals that this section is in reference to Rule 129(2) of GFR 2005. It appears as if both these rules are applicable in different situations but it is not possible to decipher what those situations can be. From the words in which Section 2.2 has been worded and placed in the Manual, it appears that Section 2.2 has overriding effect to Rule 129(2).
6.13 Ex. PW 12/1 is the note prepared by PW-12 Sh. Kinshasha Kumar Sharma AE(P) F-13 on the basis of proposal received from A-2 being EE of F-131. Ex. PW 4/8 is the note of acceptance given by PW-6 being Project Manager F-13. From the perusal of this note, it is clear that Chief Engineer was not at all involved in this proposal. From this it appears that even PW-6 gave his approval to the proposal sent by A-2 without verifying the sanction of Chief Engineer for treating this CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 30 of 52 work urgent/emergency work. Pertinent point to be considered if it was mere irregularity on the part of A-2 and cannot be termed as abuse of his position as public servant for obtaining pecuniary advantage as defined under Section 13(1)(d) P. C. Act.
6.14 Ld. counsel for A-2 has contended that law is settled that it is for the prosecution to establish that accused has abused his position by acting dishonestly or with corrupt motive. But in this case no such evidence has come to this effect. To support his submission, Ld. counsel has relied upon S.P. Srinagar & Ar. Vs. The State of Maharashtra [AIR 1979 SC 826]. In this case Apex Court has observed that abuse of position in order to come within the mischief of Section 5(1)(d) (of Old Act) which is Peri apsis to Section 13(1)(d) P.C. Act 1988 under which this case is considered) must necessarily be dishonest so that it may be proved that accused caused deliberate loss to the department. It is for the prosecution to prove affirmatively that the accused by corrupt or illegal means or by abusing his position obtained any pecuniary advantage for some other person.
6.15 Evidence led by prosecution on other allegations further being appreciated and let us see whether prosecution has been able to prove any dishonest intention or deliberately causing loss to the department on the part of accused.
6.16 Predominantly one of the main allegation against accused persons is that they have awarded this work at much higher rates then the prevailing market rates. This contention has been strongly rebutted by the accused persons and to prove their defence A-1 and A-2 have examined 18 witnesses in their defence.
CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 31 of 526.17 To prove its case, prosecution has examined 17 witness. PW-3 G.S. Bhandari was working as General Manager (Sales) of Ms Muskan. As per him M/s Texla is sister concern of M/s Muskan as some of the directors of two companies are common. M/s Muskan has one of its products DA-954. He has testified that in the year 2008 sale price of DA-954 was between Rs. 1000 to Rs. 2000/-. Earlier thereto there was a price list where MRP was mentioned as Rs.4400/- for this product and MRP was negotiable. The same continued till 2005-06. There was no price list issued in the year 2008. Vide Ex. PW 3/A he had handed over the bills Ex. PW 3/D (1 to 4) to CBI which are in respect of the spring post DA-954.
6.18 During cross-examination PW-3 has stated that he had not prepared the bills Ex. PW 3/D-1 to 4 in his handwriting. He has further admitted that vide seizure memo Ex. PW 3/A, he had handed over only copies of 2 bills to CBI. Regarding A-3, he has stated that A-3 was known to him and A-3 used to make inquiries from them in respect of road safety equipments and it may be possible that A-3 was their authorized dealer. He cannot say as to how many times, A-3 purchased DA-954 from them and in which years. He admitted that he had stated before IO that A-3 had not purchased DA-954 from them during 2007-08. He further stated that he cannot say if A-3 had purchased 185, DA 954 from M/s Muskan prior to 2007 and he cannot say if 80 spring posts used in this case were from the purchase made prior to 2007.
6.19 PW-2 Ms Jaskeerat Kaur was posted as Manager (Sales & Co-ordination) with M/s Muskan. She deposed that a price list of articles sold by M/s Muskan had been prepared but the same has been CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 32 of 52 discontinued since 2006 and there is no price list thereafter. Since 2006 M/s Muskan used to send quotations to the concerned party as per requirements and rates quoted by the company are negotiable at the discretion of the management.
6.20 During the examination of A-2 at the request of Ld. PP, price list of M/s Texla filed in RC No. 64(A) of 2008 pending before this court was allowed to be placed on record in this case. The said price list is mark P-2/A and on comparison with D-6 of the present case, both are found to be same. During cross-examination he has stated that he does not remember if she has told the IO that MRP of spring post remained the same during the year 2007-08, i.e. Rs. 4400/- per unit. Witness was confronted with her statement mark P-2/DA and DA-1 where this fact is mentioned. She admitted to have told the IO that MRP of DA 954 spring post was Rs. 4400/- in 2007-08.
6.21 Mark P-3/X and P-3/X-1 are two copies of invoices handed over by PW-3 to the IO seized vide seizure memo Ex. PW 3/A. Ex. PW 3/D(1-4) are also stated to have been handed over by PW-3 to IO. Out of these 2 sets of invoices, document marked P-3/X and Ex. P-3/D-4 are copies of the same invoice. Though there is no seizure memo pertaining to invoices Ex. PW 3/D-1 to D-4 but even if version of PW-3 is accepted that these invoices were also handed by him to IO, there are total 5 invoices, all photo copies stated to have been handed over by PW-3 to the IO during investigation. Perusal of these invoices revealed the description of goods mentioned as spring post on each invoice but brand and make is not mentioned. Prosecution has only brought photo copies of these invoices. To properly prove these invoices, carbon copies kept with M/s Muskan was required to be CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 33 of 52 produced but the same was ot done. Even as per PW-3, he is not aware that he is author of these invoices.
6.22 Mark P-2/A is the price list of M/s Muskan admitted by PW-2 bearing imprint of her signature along with stamp of the company. As per mark P-2/A, the price list is effective from 2006. Item no. 8 of this price list is spring post DA-954 and its price as mentioned as Rs. 4400/-. As per the last page of this price lsit, the prices mentioned are exclusive of all Excise Duty, packing, forwarding and freight charges. Prices are subject to VAT @ 12.5%, affixing and installation charges will be extra.
6.23 Both PW-2 and PW-3 have stated that price of spring post DA-954 was negotiable but they failed to file any invoice proving the extent to which price of DA 954 was negotiable by the management of M/s Muskan with any customer. From these circumstances, the statements of PW-2 and PW-3 are found in contradiction to the price list of M/s Muskan, i.e. mark P-2/A. Photo copies of the various invoices, even if admitted in evidence, are not regarding spring post DA-954. It is, therefore, not possible to conclude from statement of PW-2 and PW-3 that price of spring post DA 954 at the relevant time was around Rs. 1,000/- to Rs.2,000/-. Rather it stands established from the price list mark P-2/A that at the relevant time price of spring post DA 954 was Rs.4400/- + VAT+ installation charges etc. 6.24 To prove price list of spring post, prosecution has examined PW-9 and PW-13, who are officials working with NDMC, New Delhi. PW-9 Mukesh Sharma was working as AE in R-II Division, NDMC, Golf Link Colony New Delhi since 2007. As per him, he is aware about the spring post which is installed on the roads as lane dividers regulating CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 34 of 52 the traffic movement. He deposed that presently he cannot tell rate at which spring posts were installed on roads in the year 2007-08. During cross-examination by Ld. PP CBI, he admitted that he had stated to CBI officers that scheduled rate per spring post was Rs.2281.91 in the year 2007 and providing and fixing of spring post had costed the contractor Rs.1406 per spring post. During cross-examination by accused, he has stated that he cannot say if the nomenclature of the spring post got installed by NDMC in the year 2007 was disclosed by him to CBI. He admitted that there is different variety of spring post.
6.25PW-13 M. S. Verma was posted as AE R-1 Division of NDMC, New Delhi in the year 2008. As per him on 22.9.2009 the file of his division was seized by CBI vide memo Ex. PW 13/1. He proved memo Ex. PW 13/1 vide which one file of division R-1, NDMC pertaining to work of providing and fixing of spring post at Kasturba Gandhi Marg, Dr. Zakir Hussain Marg and Subhramanium Bharti Marg containing spot quotations etc. was seized. Ex. PW 13/2 (colly.) is the copy of the file. Description and rate of spring posts are mentioned in the schedule of quantity of Ex. PW 13/2. As per this document on the price of Rs. 3924/- for each spring post after discount of Rs. 1602.85, each spring post was procured at Rs.2281.91. Perusal of this document reveals that it is no where mentioned if spring post was of DA-954 Dark Eye make. PW-19 Dy. SP P. K. Srivastava, who is IO of the case has admitted during his cross-examination that he had come to know during investigation that there were different types of spring posts, i.e. DA-954, DA-960, DA-961 etc. 6.26Statements of PW-9 and PW-13 are of no help to the prosecution as on the documents proved by these witnesses, it is no where CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 35 of 52 mentioned if these pertain to DA-954. It stands proved that spring posts of various qualities were having different prices.
6.27To prove that the prevailing market price of spring post DA-954 was similar or more than the price at which same spring posts were installed in this case accused have examined various witnesses in this regard.
6.28 Ld. PP for CBI has objected to the record produced by various witnesses examined by accused in defence stating that various witnesses examined have just proved the reply given by them to the applications moved under RTI, they are not the author of the documents and they simply supplied copies of the various records to the applicants under RTI. It has been stated that to prove this record, the concerned officer who had dealt with and has signed the relevant record should have been summoned. On the other hand, Ld. counsel for A-1 and A-2 has submitted that the record exhibited by these witnesses examined in defence by the accused persons is public record and prepared by the witnesses, who are government servants in routine discharge of their duties, hence, there is no reason that why these documents cannot be considered in evidence.
6.29As per section 61 of Indian Evidence Act, proof of contents of documents may be proved either by primary or secondary evidence. As per Section 62 primary evidence means the document itself produced for inspection of the court. Section 74 defines public documents and documents of official bodies are public documents. Moreover, perusal of statements of defence witnesses reveals that while exhibiting the documents attached with RTI reply, originals have been produced CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 36 of 52 before the court by the concerned officers of PWD and other departments. I, thereby, do not agree with the contention raised by Ld. PP CBI that these documents remained unproved and cannot be considered in evidence.
6.30 The accused have examined 18 witnesses, to establish their defense that at the relevant time spring post DA 954 were installed in various divisions by calling quotation, or tenders or indents at the comparable or higher price. The documents proved by these witnesses are discussed below in tabulated form.
Sl. DW No. Exhibit Tender/ Period of Price Procured
No. No. Quotation purchase from
/Indent Kendriya
Bhandar/
NCCF/
Other
Agency.
1 DW1 Ashok Mark 5500/ *Photo copy
Kumar Panda, D1/A of rate list
Asstt. Manager
NCCF
2 DW 8 Anil Mark Indent April to Rs.4400/ NCCF
Kumar Bhatt, D8/A and tender July 2008
AAO Division
M111 (CRMD)
PWD.
3 DW9 Prem Raj Ex. Indent 22.11.2005 Rs.5925/ Other
AE (Purchase) DW +12.5% VAT Agency
Municipal 9/1 & (M/s
Corporation, 9/2 Muskan)
Faridabad reply to
RTI
CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 37 of 52
with
mark
D9A
4 DW10 Vijay Mark Quotation 1.7.2007 to Rs. 5410 to Other
Behan AE(Civil) D10/A 31.12.2008 5500/ Agency
M31 PWD
5 DW11 Mark Quotation 31.5.2008 Rs. 5410 to Other
Yogender D11/A to 5500/ Agency
Kumar AE(P) 19.7.2008
M312
6 DW12 Lakhan Ex. Quotation 6.2.2007 Rs.5500/ Other
Singh, EE PWD DW Agency
Maintenance 12/1
Division M113. and
Mark
D12/A
7 DW13 Ex. Indent 25.6.2008 Rs.5400/ + Kendriya
Mahender Ram, DW VAT @ Bhandar
EE M333, PWD 13/1 12.50%.
and
Mark
D13/A
8 DW14 Pramod Ex. Quotation 9.5.2007 5500/ @ Other
Kumar, EE DW 1.11 below Agency
M211, PWD 14/1
and Supply 21.6.2006 Rs.4500/ @ Other
mark Order to 4.8.2006 3% above Agency
D14/A
Indent 3.10.2007 5500/ + NCCF
to 12.50% Tax
5.11.2007
Tendering 6.1.2006 to 3388.55 to Other
31.12.2007 6650.05 Agency
CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 38 of 52
9 DW15 M. C. Ex. Relating Relating Relating to Relating to
Yadav DW to same to same same same
14/1 document documents documents as documents
and s as above as above above as above
mark
D14/A
(Ex.
CW
2/A1&
A2)
10 DW 16 Jagdish Ex. Relating Relating Relating to Relating to
Prasad, EE DW to same to same same same
office of 13/1 document documents documents as documents
Director and s as above as above above as above
General, CPWD mark
DD13/
A
11 DW 17 D. v. S. DW Spot April to Rs.4400/ NCCF
Kansal, EE(P) 17/1 Quotation July 2008
earlier in M11 (earlier / Indent Rs.6150/ Kendriya
PWD marked and tender Bhandar
D8/A)
& CW
5/A
12 DW18 I. D. DW Quotation 6.2.2007 Rs.5500/ Other
Yadav, EE(P), 12/1 Agency
and
mark
DW
12/A
6.31 All the witnesses examined by accused persons in their defence were cross-examined by Ld. PP but nothing has come on record to CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 39 of 52 discredit them. In the present case lowest quotation of A-3, i.e. Rs. 4400/- was accepted and work order Ex. PW 17/1 was issued on this price for installation of spring posts. From the statement of various defence witnesses and the documents proved by them which are mentioned in the table above, it stands proved that in the various divisions of PWD, at the relevant time, spring posts make DA-954 or other make, were procured at the comparable or even at higher price.
6.32 In view of the aforesaid reasons, it is held that prosecution has miserably failed to establish one of its main allegations against the accused persons that under conspiracy spring posts were procured and installed at a much higher price than the prevailing market price.
No market rate has been obtained or verified & Wide Publicity (as required under Section 16 of Manual) was not done.
7.0 Section 14 deals with award of work without calling of tenders and Section 16 talks about publicity of tenders. For better appreciation of facts relevant Sections 14.1 and 16.1 are reproduced as follows:-
"14.1 Procedure (1) Normally tenders should be called for ll works costing more than Rs.50,000. In case where the work is to be awarded expeditiously, the prescribed period of notice may be reduced. In urgent cases, or when the interest of the work so demands, or where it is more expedient to do so, works may be awarded without call of tenders after approval of the competent authority as per powers delegated in Appendix-I. (2) The precise reasons should be recorded by the CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 40 of 52 Divisional Officer before dispensing with call of tenders for works costing more than Rs.50,000.
(3) The work awarded after calling of quotations shall be construed to have been awarded without call of tenders. (4) Normally, unless situation warrants otherwise, work orders shall be placed only after competitive call of quotations with publicity through web and notice board. (5) The period of notice for call of quotations may be decided by work order accepting authority depending upon the urgency. Spot quotations can be collected if the situation so warrants. Spot quotations should be collected if the situation so warrants. Spot quotations should be collected by AE or EE. Para 5.4.1 of this Manual may be referred to for award of works by obtaining spot quotations in critical situations."
"16.1 Wide Publicity.
(1) Wide publicity should be given to the Notice Inviting Tenders (From CPWD 6). Tenders must be invited in the most open and public manner possible, by advertisement in the website/press, and by notice in English/Hindi and the written language of the district. A copy of the notice should be sent to the Central PWD Divisions, Zonal Office, Circle Office, operating at the station of the work and head quarters of the Divisional Office. The notice may also be sent to the Local Municipality, Collector's office, and the State PWD Divisions for works in place where there are not enough CPWD registered contractors.
(2) Notices for all the works, irrespective of their value, shall be posted in the CPWD website. Proof thereof in the form of a printout of NIT details and the Tender ID no. from the web page shall be kept on record. In view of this requirement, sending of NIT's/NIQ's to the Contractors' Associations is dispensed with. (3) In respect of work estimated to cost more than Rs. 5 lakhs, a brief advertisement inviting tenders should invariably be inserted in the press in the classified category.CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 41 of 52
(4) Advertisement for Notice Inviting Tenders should be sent to the Directorate of Advertising and Visual Publicity, Ministry of Information and Broadcasting for insertion in the press. Sometimes, tenders may have to be invited for different works by the same Division at the same time, or at short intervals of one or two days. In such cases, it is not desirable to send separate press advertisements for each work, and as far as possible composite advertisements in the prescribed format should be sent to avoid unnecessary expenditure on advertisement.
(5) In urgent cases, the authority competent to approve NIT may, for recorded reasons, decide to send the advertisement of tenders directly to Press. In such cases the newspaper bills shall also be settled by the CPWD.
(6)Draft specimen of Press Notice to be issued as a combined Advertisement is given in Appendix 19."
7.1 Ex. PW 4/1 is the comparative statement prepared by A-1 and submitted by him to A-2. The note given by A-1 on comparative statement is as follows:-
"The spot quotations for the above mentioned work were collected by the undersigned on 27/02/2008. Three Nos spot quotations were received and opened on the same day. Accordingly, the comparative statement is prepared. Sh. Anil Malhotra, has quoted his lowest rates @ Rs.4400/- each inclusive of all Taxes, cartage etc. The rates are reasonable and justified as compared with the present Market Rates/Local Market. Hence, Recommended for approval of the competent authority please.
EE/F-131 sd/-27/02/2008
AE/F-1311"
7.2Ex. PW 4/2, PW 4/3 and PW 4/4 are the endorsements made by CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 42 of 52 A-1 on the three quotations received mentioning that spot quotations collected and opened by him on 27.2.2008. Ex. PW 4/2A, 4/3A and 4/4A are the notes given by A-1 on these three quotations mentioning that he has compared the same. Ex. PW 7/A is the quotation submitted by PW-7 Narender Singh Yadav quoting rate as Rs,.4650/- per spring post . The second quotation is submitted by PW-10 Zahir Ahmed quoting rate of Rs. 4600/- and third quotation is of A-3 wherein he quoted the rate as Rs.4400/-. As already discussed, Ex. PW 41/ is the comparative statement prepared by A-1 and submitted to A-2 for consideration. Ex. PW 17/9 is the analysis of rates prepared by A-1 calculating cost of each spring post after adding VAT and other charges as Rs. 4855.37ps.
7.3 PW-12 Krishan Kumar Sharma was posted as AE(P) Flyover Circle F-13. As per him after calling of the spot quotations by divisional office file had been put up before him for approval. He prepared his note Ex. PW 12/1 on 28.2.2008 and submitted the same for approval to Project Manager Sh. P. S. Chauhan (PW-6). PW-6 made note Ex PW 4/8 on it mentioning that considering urgency of work as explained by EE, F-131 and reasonability of rates certified by EE, & checked in his office, lowest quotation of Sh. Anil Malhotra of Rs. 3,52,000/- is accepted and please convey the acceptance to EE. During his cross-examination PW-12 has admitted that he has perused list dated 1.1.2006 issued by M/s Texla. He had only checked the item in question in the said list and its price. The said list is mark P-12/DA. He had analyzed the rate quoted by A-3 and the rate mentioned in mark P-12/DA. The rate quoted by A-3 was less than rates mentioned in mark P-12/DA. PW-6 who was the project manager during his CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 43 of 52 cross-examination by Ld. PP has stated that AE(P) was required to check and analyze the report of AE,EE and documents. From the statement of PW-12 it stands established that he has checked the proposal received from the divisional office and has also checked and analyzed all the documents received with the proposal.
7.4From the evidence discussed above, the allegation made by prosecution that no market rate has been obtained or verified gets falsified.
7.5The other contention raised by prosecution is that as per Section 16.1 wide publicity is required to be given to the notice inviting quotations by advertising as provided in the Manual. Section 16.1 provides that wide publicity should be given to notice inviting tenders. Section 14.1(4) provides that normally when situation warrants otherwise, work orders shall be placed only after competitive call of quotations with publicity through web and notice board. Spot quotations shall be collected if the situation so warrants by AE/EE. Section 5.4.1 provides spot quotations can be collected from the reputed and established agencies dealing with the supply of work or supply of material. From conjoint reading of Section 14.1 and 5.4.1, the inference is that in case of spot quotations provision of wide publicity should not be adhered to. To safe guard the interest of the department, it is provided under Section 5.4.1 that spot quotations may be collected from the reputed and established agencies dealing with the material.
A-3 was not a reputed and established agency for spring post DA-954.CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 44 of 52
8.0The other contention raised by the prosecution is that quotations were not called from reputed and established agencies dealing with the material and A-3 was not a reputed and established agency for spring post DA-954.
8.1PW-7 and PW-10 are two contractors who had also submitted their quotations. PW-7 Narender Singh Yadav has deposed that he is a government contractor since 1997 and had experience in road work. He had filled in quotation for installation of spring post at Mukarba Chowk. He had received the stationary in that regard from PWD office at Mukarba Chowk. It was during the course of his visit to concerned division that he had come to know about the work of installation of spring post at Mukarba Chowk. As per D-3/1, he has filled quotation at the rate of Rs. 4600/- per spring post which include labour, equipments etc. He checked the rates from Kendriya Bhandar which he had with him. He identified his handwriting on quotation (D-3/1) as Ex. PW 7/A. 8.2PW-10 Zaheer Ahmed has deposed that he is working as contractor for past about 20-22 years. He undertakes contract work under CPWD etc. He is a reputed contractor. During cross by Ld. PP for CBI, he admitted that he had put in tender regarding installation of spring post at G.T. Karnal Road, Mukarba Chowk and A-1 had given him stationary for filling the quotation. He had quoted the rate of Rs.4600/- in the quotation which is Ex. PW 10/1.
8.3Both PW-7 and PW-10 had been working as government contractor since long and PW-10 is the registered government contractor. What is the yard stick to measure that who is reputed and established agency is no where elaborated in the Manual. Both PW-7 and PW-10 being working as contractor for the last so many years and undertaking CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 45 of 52 CPWD contract work, can certainly be termed as reputed and established agents. I find no reason that why PW-7 and PW-10 cannot be considered as reputed and established agents.
8.4 As discussed above, there being no yard stick to measure who is reputed and established agency and same being not defined anywhere in the Manual, prosecution has failed to prove that A-3 was not a reputed and established agent for spring post DA-954.
Procedure was flouted.
9.0Ld. PP has also submitted that proper procedure for sending proposal to the competent authority by division office was also not followed. The contention raised by Ld. PP is that mandatory prescribed procedure was not followed by A-1 and A-2 with the sole motive to favour A-3 in getting this contract under criminal conspiracy. On the other hand, Ld. counsel for A-1 and A-2 have submitted that the prescribed procedure was duly followed by both A-1 and A-2 in processing this proposal and sending the same to competent authority for approval.
9.1Rule 129(1) of Annexure of Section 2 provides that no such work shall be commenced or liability will incur in connection with it until Estimate containing specifications and quantities of various items have been provided on the basis of schedule of rates maintained by CPWD. Section 4 deals with preparation of Estimate. Section 4.2.2 provides that detailed Estimate shall consists of report in the form CPWD-I in appendix-6 of the Manual. The estimate should be comprehensive, supported by complete details and based on drawings and design CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 46 of 52 calculations, where necessary. The report of the Estimate should be prepared in a lucid form understandable by non-technical officers of the administrative Ministry/Department or the client, particularly how the rates have been arrived at, giving reference to the relevant standard schedule of rates or market rates.
9.2 As per record of this case with the proposal Ex. PW 4/6 the three quotations and Analysis of Rate Ex. PW 17/9 was sent to the office of Project Manager F-13(PW-6). Therefore various requirements of Section 4.2.2, preparing the detailed Estimate were not complied with.
Technical Sanction 10.0As per Section 2.5.1, technical sanction should be accorded by the competent authority before a work is taken in hand. As per Section 2.5 Technical Sanction amounts to a guarantee that the proposals are technically sound and that the estimates are accurately prepared and based on adequate data. It further provides that before an estimate is technically sanctioned the detailed architectural drawing and specification etc. is required. No estimate should be technically sanctioned unless the performa at Appendix 2 is submitted along with the estimate to enable the competent authority to see that the detailed estimate prepared takes into account all aspects of planning and that no point has escaped notice.
10.1 As per Appendix-I (Sl. No. 25), keeping in view the amount involved, A-2 was competent to give technical sanction to the estimate but no technical sanction was given by him in this case.
10.2 The deficiency in preparation of estimate and no technical CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 47 of 52 sanction being given to the proposal goes to establish that procedure was not adhered to by the field staff, i.e. A-1 and A-2. Even Project Manager F-13 (PW-6) approved the same without pointing out any deficiency in the proposal received in his office.
10.3 The pertinent point to be considered if it was a mere irregularity on the part of A-1 and A-1 or abuse of their position as public servant as defined under Section 13(1)(d) P. C. Act. As already discussed, allegations of prosecution that work order in this case was awarded on false ground of urgency and at much higher rate than the prevailing market rate remained unproved. Therefore by no stretch of imagination it can be termed as abuse of position on the part of A-1 and A-2 as far as their role is concerned in processing this work order.
Sanction 11.0PW-14 C. S. Prasad has proved the sanction order Ex. PW 14/A given for prosecution of A-1. As per him, he had gone through the FIR, list of witnesses, list of documents along with documents and statement of witnesses from CBI before according sanction. During his cross-examination by Ld. counsel for accused, he has stated that Sh. Nikilesh Jha was the CVO in his office on 8.8.2011. He and CVO had examined this case and their examination resulted in passing of the sanction order. He denied the suggestion that he has not applied his independent mind in this case.
11.1PW-15 R. K. Varshney was posted as under Secretary to Government of India, Ministry of Urban Development. He proved order dated 14.7.2011 as Ex. PW 15/A. He deposed that vide this order sanction had been accorded for prosecution of A-1 on the name of CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 48 of 52 President of India. Office note dated 27.6.2011 was put by him in this regard is Ex. 15/B and bears signature of Sh. Kamal Nath, Urban Development Minister. Along with note Ex. PW 15/B documents received from CBI, i.e. statement of witnesses, copy of FIR , documents collected during investigation by CBI and other documents had also been sent to Hon'ble Minster for his consideration. During cross-examination, he has stated that he does not remember if CVO /DG, CPWD had ever recommended refusal of sanction in this case. He admitted that out of the six cases registered, CVO and DG had recommended for grant of sanction only in respect of one case and in other five cases including the present case, there was recommendation of only regular departmental action. He further stated that Vigilance of Urban Development Ministry had sought opinion of CVO regarding all the six cases and as per opinion received sanction had been accorded in all the six cases. He admitted that the draft sanction had been received in their office of CPWD on their asking for the same. He admitted that he has not applied his independent mind in respect of according or non-according the sanction. He stated that he had only put up the facts for consideration of the Hon'ble Union Minister and had not given any personal opinion in this regard.
11.2 The contention raised by Ld. Counsels for A-1 and A-2 is that both PW-14 and PW-15 have not applied their mind while according sanction for prosecution of the accused persons. It has been stated that draft sanction order was prepared by CBI and the same was signed by both these witnesses.
11.3 PW-14 had specifically deposed that he had gone through the FIR, list of witnesses and the documents before according sanction. PW-15 CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 49 of 52 has only proved the order Ex. PW 15/1 vide which Hon'ble Minister has accorded sanction for prosecution of A-2. As per Ld. PP PW-15 has signed the said order as per notification under Authentication Rules Notified as SO 2011(E) dated 16.2.2002.
11.4 Regarding preparation of draft sanction order by CBI, the same was considered by our Hon'ble High Court in Hawa Singh Vs. CBI [2010(130) DRJ 124]. Here the High Court has observed that requirement of law is satisfied if from the record the prosecution is able to show that the sanction was accorded by competent authority in respect of the allegations forming subject matter of the charge sheet filed against the accused, after applying mind to the facts and material submitted to him to satisfy himself to grant or refuse the sanction. The court has further ordered that it would be incorrect to conclude that simply because sanction order is verbatim reproduction of the draft sanction letter, the same would be deemed to have been passed without application of mind.
11.5 In view of these reasons, I find no fault in the order granting sanction for prosecution of A-1 and A-2.
Conclusion 12.0 In view of the aforesaid discussion, it stands established that both A-1 and A-2 had failed to comply with the following requirements of the Manual-
(a) As per Section 2.2 for declaring the work as urgent/emergent sanction of Chief Engineer was not taken;
(b) The various requirements of Section 4.2.2 regarding preparation of detailed Estimate were not complied with by A-1 and CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 50 of 52 A-2. (c) A-2 did not give Technical Sanction to estimate as required under Section 2.5.1.
12.1Both A-1 and A-2 while processing this proposal were working in their official capacity and they were required to comply with the requirement of CPWD Works Manual strictly which they have failed to do so as mentioned above.
12.2 The pertinent point to be considered is as if any element of dishonesty or abusing the position as required under Section 13(1)(d) P. C. Act was also attached to these above mentioned irregularities committed by both A-1 and A-2. In above paras, this court has already concluded that declaration this work as urgent/emergent was the right decision taken by A-1 and A-2, considering the prevailing situation. In addition to that it also stands concluded that the price at which spring posts were procured was not exorbitant.
12.3 As already discussed, in S. P. Bhatnagar & Anr. Vs. The State of Maharashtra [AIR 1979 SC 826] , Apex court has observed that the abuse of position in order to come within the mischief of Section 5(1)(d) (of Old P. C. Act 1947) must necessarily be dishonest so that it may be proved that the accused caused deliberate loss to the department.
12.4 In view of the aforesaid reasons, it is held that the prosecution has failed to prove that A-1 and A-2 acting under conspiracy declared this work as urgent/emergency work and without following the procedure as prescribed in the CPWD Manual procured the spring posts from A-3 at exorbitant price. Accordingly, prosecution has failed to prove its case beyond reasonable doubt against accused persons. All the three CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 51 of 52 accused persons are hereby acquitted from the offences with which they are charged.
Announced in the open court (SANJAY GARG-I)
on 8th January, 2016 SPECIAL JUDGE-IV, CBI (PC ACT)
TIS HAZARI COURTS, DELHI
CC No. 34/2010 CBI Vs. Davesh Chand & ors. Page 52 of 52