Delhi District Court
Nalini Mehra vs Government Of Nct Of Delhi And Others, ... on 31 January, 2014
IN THE COURT OF SHRI L.K. GAUR, SPECIAL JUDGE
P.C. ACT (CBI09), CENTRAL DISTRICT,
TIS HAZARI: DELHI
CC No. 19/2011
R.C. No.61(A)/08/CBI/ACB/ND
Case I.D No. 02401R0374942010
Central Bureau of Investigation
Versus
1. Shri Anil Kumar Saini S/o Sh. J.S. Saini
H. No. 9/89, Sector3, Rajinder Nagar,
Sahibabad, U.P.
2. Shri Chandrapal Singh S/o Sh. Nobat Singh
H. No. 22, C7, Sector7,
Rohini, Delhi
3. Shri Amrish Thukral
S/o Shri D.B. Thukral,
H. No. 119 & 120, Pocket E16,
Sector8, Rohini,
Delhi.
Date of Institution : 16.08.2010
Date of reserving Judgment : 08.01.2014
Date of Pronouncement : 31.01.2014
C.C. No. 19/11 1 of 116
JUDGEMENT
The accused persons were sent up for trial for being tried for having committed offence of entering into a criminal conspiracy punishable under Section 120B read with Section 420 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and the substantive offences committed in pursuance thereof, after having sought the permission from the Competent Authority under Section 19 of the Prevention of Corruption Act for the prosecution of the public servants namely accused no.1 Sh. Anil Kumar Saini, Executive Engineer and accused no.2 Sh. Chandrapal Singh, Assistant Engineer both officials of PWD, Delhi.
INTRODUCTION
2. In the year 2007 Accused no.1 Sh. Anil Kumar Saini was posted as Executive Engineer PWD and Accused no.2 Sh. Chanderpal Singh, Assistant Engineer was posted in Division C.C. No. 19/11 2 of 116 M311. Accused no.3 Sh. Amrish Thukral is the proprietor of one M/s Alfa Traders. The allegations against them are that all of them had entered into a criminal conspiracy pursuant thereto work order dated 4.10.2007 for providing and fixing of 168 numbers of spring posts was awarded to the firm of accused no. 3 M/s Alfa Traders with the criminal intention to cause pecuniary loss to the Government and corresponding gain to accused No.3.
FACTS IN DETAIL
3. As per the charge sheet filed in this case , in response to the directions given by the Hon'ble High Court of Delhi vide its order dated 20.7.2007 in Writ Petition (C) No.5239/02Hem Nalini Mehra V/s Government of NCT of Delhi and Others, there was a letter written to the PWD Authorities by Dy. Commissioner of Police, Traffic (Head Quarter), directing therein to make necessary arrangements for replacing and installation of spring posts in certain locations named in the list enclosed. The next date of hearing fixed in the matter was 4.10.2007.
C.C. No. 19/11 3 of 116
4. According to the investigation carried out in order to comply with the said directions of the Hon'ble High Court, the details of measurement was prepared by accused no.2 Sh. Chanderpal Singh, Assistant Engineer on 24.09.2007 for fixing of 168 number of spring posts on lane dividing at right turn of Shalimar Bagh I & II, Ashok Vihar TPoint, GTK Road near Telephone Exchange, Mall Road and Road No.37 Near Chandni Restaurant.
5. The analysis of rates was done on the basis of rates provided in the rate list of M/s Texla Plastics and Metals Pvt. Ltd of a spring post with the brand name Dark Eye model DA 954 of the period January 2006 wherein MRP of this spring post had been shown to be Rs.4400/ (excluding of installation charges and tax). This analysis was done by accused no.2 Sh. Chanderpal Singh, Assistant Engineer. The final rate calculated for fixing one spring post was Rs.5499.45/ which included discount, labour, cost of other raw material required in fixing this spring post, dealer's profit and VAT. The allegation against him C.C. No. 19/11 4 of 116 is that he had done so without checking the reasonability of rates by conducting a market survey as required under the CPWD Manual and he had gone by one old rate list of M/s Muskaan Safety Solutions Pvt. Ltd., the manufacturer of the said spring posts, for benefiting the contractor in monetary terms.
6. The above estimate which came to Rs.9,51,625/ was prepared by Sh. Sukhbir Singh, Junior Engineer, on the basis of the analysis of rates. The estimate was signed by Sukhbir Singh JE ,accused no.2 Sh. Chanderpal Singh, Assistant Engineer, accused no.1 Sh. Anil Kumar Saini, Executive Engineer and Sh. Mahinder Kumar, Draftsman on 24.9.2007. Subsequently the technical sanction for the same was given by Sh. Anil Kumar Saini, Executive Engineer for Rs.8,51,625/.
7. According to the investigation carried out three spot quotations were collected from contractors i.e M/s Alfa Traders proprietor Sh. Amrish Thukral (accused no.3), M/s D.B C.C. No. 19/11 5 of 116 Reflections and Surender Singh who had given their rates for providing and fixing 168 spring posts at Rs.5250/, Rs.5325/ and Rs. 5400/ respectively. It is specifically noted in the charge sheet that all these firms were found to be existing. These spot quotations were opened by accused no.2 Sh. Chanderpal Singh, Assistant Engineer on 25.09.2007. After opening the spot quotations, the justification of rates was prepared on the basis of the 2006 rate list of M/s Muskaan Safety Solutions Pvt. Ltd.. It was noted that the rates quoted by contractor M/s Alfa Traders were 4.54% below the estimated cost. The accused no.1 Sh. Anil Kumar Saini had sent this proposal to the office of th the Chief Engineer, PWD, Civil Maintenance Zone, M3, 5 Floor, MSO Building, New Delhi, along with three quotations, comparative statement and justification. This file also had the rate list of Kendriya Bhandar of the year 2005 in which the rate of spring post had been mentioned to be Rs.6150/. This file was marked to Sh. D.P Gupta Assistant Engineer (Planning) by the Chief Engineer Sh. O.P Gaddyan for processing on 27.09.2007. It is further stated in the charge sheet that Sh. D.P C.C. No. 19/11 6 of 116 Gupta Assistant Engineer (Planning) had mentioned in his note that the rates quoted by the first lowest quotationer i.e M/s Alfa Traders for Rs.8,82,000/ was quite reasonable and well within the justification amount. Thus, Chief Engineer accepted the lowest offer of M/s Alfa Traders of accused no.3 on 01.10.2007. The acceptance was conveyed to accused no.1 Sh. Anil Kumar Saini Executive Engineer on 03.10.2007 and the work order was issued on 04.10.2007. The work was completed on 05.10.2007 and accordingly payment of Rs.8,26,928/ was released to the accused no.1 Sh. Amrish Thukral proprietor of M/s Alfa Traders.
8. It is alleged that as per para 14.1 of the CPWD Manual, normally the tenders were to be called in all cases involving cost of more than Rs.50,000/. In the cases involving urgency, work could be awarded without inviting tenders after approval from competent authority. The Divisional Officer was required to give the reasons as to why the process of inviting the tenders was being dispensed with. It is alleged that in this case under the plea of urgency the accused no.1 Sh. Anil Kumar Saini, C.C. No. 19/11 7 of 116 Executive Engineer and accused no.2 Sh. Chanderpal Singh, Assistant Engineer conspired with the contractor accused no.3 Sh. Amrish Thukral and awarded the work at much higher rates to him.
9. The other allegation against them is that as per the CPWD Manual, Section 5.4.1 even where the spot quotations were to be called involving critical situations, breakdown of an essential service etc., the spot quotations were to be called from "reputed and established agencies" dealing with the work and supply of such materials. However, none of the three firms from whom the spot quotations were collected were reputed firms dealing in supply of spring posts. In continuation it is alleged that though the manufacturers of DA954 spring posts i.e M/s Muskaan Safety Solutions Pvt. Ltd. were having an office in Delhi and also their sales counter but deliberately no quotations had been collected from M/s Muskaan Safety Solutions Pvt. Ltd. just in order to award the work at exorbitant rates to the contractor Sh. Amrish Thukral. As per the investigation carried out though in C.C. No. 19/11 8 of 116 the rate list of 2006 the MRP of spring post DA954 was mentioned to be Rs.4400/ but the said rates were negotiable depending upon the quality of material to be purchased and for the same spring post the Company had been charging Rs. 1000/ to Rs.2000/. During this period M/s Muskaan Safety Solutions Pvt. Ltd. was selling the said spring post between Rs. 1000/ to Rs.2000/. It is alleged that during the investigation it was found that the price of the spring posts were going down each year. In order to establish this fact they had collected the invoices of various companies who had purchased the material from M/s Muskaan Safety Solutions Pvt. Ltd.
10. The contractor in this case had purchased the said spring posts at rates less than Rs.2000/ per spring post and he had supplied the same to PWD @ Ra.5250/ per spring post thus, on an average causing a loss of Rs.3250/ per spring post resulting in a total loss of Rs.5,46,000/ to the Government.
C.C. No. 19/11 9 of 116 FRAMING OF CHARGE
11. On the basis of the allegations and after hearing the Ld. Public Prosecutor for CBI and Ld. Defence Counsels, all the accused were charged for having committed offence under Section 120B read with Section 420 IPC read with Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and in pursuant to the said conspiracy having caused loss to the Government of NCT to the tune of Rs.5,46,000/. Accused no.1 Sh. Anil Kumar Saini, Executive Engineer and accused no.2 Sh. Chanderpal Singh Assistant Engineer were separately charge sheeted for having committed offence under Section 13(d) punishable under Section 13(2) of the Prevention of Corruption Act.
EXAMINATION OF WITNESSES BY PROSECUTION
12. During the course of the trial nineteen witnesses had been examined by the prosecution.
C.C. No. 19/11 10 of 116 PW1
13. Witness PW1 Sh. Chander Shekhar Prasad was the competent authority to accord sanction for the prosecution of the accused no.2 Sh. Chanderpal Singh as the Director General, CPWD. He had deposed that he had accorded sanction for the prosecution of accused no.2 Sh. Chanderpal Singh Ex.PW1/A under Section 19 of the Prevention of Corruption Act, after having gone through all the relevant material i.e documents as well as the statements of witnesses recorded by the CBI and having satisfied himself all these accounts.
PW2
14. Witness PW2 Sh. Raj Kumar Varshneya who was the Under Secretary in the Ministry of Urban Development had deposed that President of India was the competent authority to accord sanction for prosecution of accused no.1 Sh. Anil Kumar C.C. No. 19/11 11 of 116 Saini. Therefore, his sanction was accorded by the Minister of Urban Development and signed by him as the Under Secretary. He had processed the case for the sanction of prosecution and placed the same before the then Minister of Urban Development Sh. Kamal Nath. He had placed before the Minister all the documents received from CBI, recommendations from the CPWD as well as CVC along with his own analysis of facts. The Minister had gone through the same before according the sanction. He had added that Minister had the delegated powers to authenticate the orders on behalf of the President. He had verified the said orders of sanction before putting his signatures Ex.PW2/A with regard to the sanction of the prosecution of the accused no.1 Sh. Anil Kumar Saini.
PW3
15. Witness PW3 Sh. Gurinder Singh Bhandari General Manager of M/s M/s Muskaan Safety Solutions Pvt. Ltd. had deposed that M/s Muskaan Safety Solutions Pvt. Ltd. deals in C.C. No. 19/11 12 of 116 road safety devices such as road studs, delineators, spring posts, reflectors etc. "Dark Eye" was the brand name of M/s Texla Plastics and Metals Pvt. Ltd. which was a sister concern of M/s Muskaan Safety Solutions Pvt. Ltd. M/s Texla Plastics and Metals Pvt. Ltd. used to manufacture bigger products in the semi finished state. Once they were supplied, M/s Muskaan Safety Solutions Pvt. Ltd. used to give it a finishing touch. According to him M/s Texla Plastics and Metals Pvt. Ltd. was not selling the said products i.e safety devices directly but through M/s Muskaan Safety Solutions Pvt. Ltd. as its selling agent. In the market the products with the brand name Dark Eye were being sold in the market by M/s Muskaan Safety Solutions Pvt. Ltd.
16. He had identified the price list of M/s Muskaan Safety Solutions Pvt. Ltd. effective from 1.1.2006 Ex.PW3/A wherein the price of a spring post had been mentioned as Rs.4400/. According to him after 2006 they had not issued any price list and they had been directly submitting the quotations to the C.C. No. 19/11 13 of 116 parties as per the request received. As per his testimony the same price list had remained effective in 200607. In the year 200708 the same product was being sold in the range of Rs. 1000/ to Rs.2000/. He had explained that the reason for this variation was that the final rate of a spring post they used to quote depending upon the size of the order and the terms of the payment.
17. He had deposed that in normal circumstances besides the price of a spring post if a spring post was to be installed at a place where there was not too much of traffic, the installation cost could be in the range of Rs.300 to Rs.350 per spring post but if it was to be installed at a road where there is heavy vehicle or traffic, the cost could go high as the same would require extra measures to be taken for the coordining of the working area. This witness had identified his signatures on seizure memo Ex.PW3/B by which he supplied to the CBI attested copies of the documents Ex.PW3/C1 to Ex.PW3/C3 showing that in the year 2007 the spring post had been sold by C.C. No. 19/11 14 of 116 them in the range of Rs.1050/ to Rs.1250/. He also identified another seizure memo Ex.PW3/D by which he had supplied copy of Stock and Sales Statement for the period 01.04.2007 to 31.03.2008 and Statement of Account of the Current Account of M/s Muskaan Safety Solutions Pvt. Ltd. at Jammu and Kashmir Bank of 2007 as Ex.PW3/E and Mark P3/1 respectively. After going through the Stock and Sales Register he had stated that during the period 2007 to 2008 as per the entries in the register he had not sold spring posts to M/s Alfa Traders.
PW4
18. Witness PW4 Sh. Dinesh Thukral is the proprietor of M/s D.B. Reflections had deposed that he was in the business of Road Signs and Installations etc. in September 2007. He had identified quotation Ex.PW4/A submitted by him to the Assistant Engineer, M311, PWD at Badli Road. According to his testimony he was not awarded the work order as his rates were C.C. No. 19/11 15 of 116 not found to be lowest but to M/s Alfa Traders. He had identified his signatures at page no.26 of the Quotation Opening Register where the proceedings with regard to opening of the quotations had been recorded.
PW5
19. Witness PW5 Sh. Satpal Singh is the employee of the Postal Department who had deposed that he was working as Extra Departmental Delivery Agent with the Postal Department and his job involved of delivery of posts in three villages namely Aaya Nagar, Jona Pur and Mandi. He was thoroughly familiar with the entire area as he has been delivering posts in the said villages for a long time. As per his testimony is concerned, he had never received any Dak for being delivered at M/s Cosmic Sales Agencies, Shop No.1, Near Bus Stand, Aaya Nagar, New Delhi. According to him there was no such address in existence in the said village (As per the case of the prosecution the accused no.3 allegedly had shown to have purchased the spring posts from M/S Cosmic Sales Agencies - a non existent firm.).
C.C. No. 19/11 16 of 116 PW6 20. Witness PW6 is Sh. D.P Gupta who was working as
Engineer Officer (E.O) in September 2003 at the office of Chief Engineer, PWD, Zone M3. He had identified the seizure memo Ex.PW6/A by which he had supplied the documents to CBI as mentioned in the memo. He had further identified forwarding letter supplied by him addressed to the Executive Engineer dated 03.10.2007 Ex.PW6/A1 by which he had conveyed to the Executive Engineer (Accused no.1 Sh. Anil Kumar Saini) that the Chief Engineer had accepted the lowest offer of M/s Alfa Traders (Proprietor Sh. Amrish Thukral Accused no.3). He had further identified the note of the Executive Engineer (Accused no.1 Sh. Anil Kumar Saini) submitted to the Chief Engineer's office giving the details of the tenderers who had submitted their quotations giving brief description of the work to be performed and its background Ex.PW6/A2. This note was marked to him by the Chief Engineer and as per his directions, he had processed this note for the purpose of scrutiny of C.C. No. 19/11 17 of 116 quotations etc. He had accordingly prepared the Scrutiny Note Ex.PW6/A3 and then put up the same to the Chief Engineer who had approved his note for awarding work to M/s Alfa Traders and he had further given the directions to him to convey this approval to the Executive Engineer M311 (Accused no.1 Sh. Anil Kumar Saini). Accordingly, he had issued the letter Ex.PW6/A1.
21. This witness had further identified all the documents which are received with the note of Executive Engineer (Accused no.1 Sh. Anil Kumar Saini) Ex.PW6/A2 such as Ex.PW6/A5 (Justification), Ex.PW6/A6 (Analysis of Rates in support of the Justification), EX.PW3/A (Literature relating to the rates of different products of Dark Eye Safety Products), Ex.PW6/A7 (Rate List of Kendriya Bhandar relating to different products interalia of spring posts as well), Ex.PW6/A8 (Technical Sanction of the estimates, running into two pages), Ex.PW6/A9 (Photocopy of the register where the proceedings relating to the opening of the spot quotations were recorded, Ex.PW6/A10 C.C. No. 19/11 18 of 116 (Photocopy of the abstract of the cost original estimates Ex.PW6/A8).
PW7
22. Witness PW7 is Sh. Surender Singh who stated that he was working as Civil Contractor, ClassIV in CPWD. He had submitted a schedule of quotations to PWD, Division M311, Sub Division near Badli Road, Badli, Delhi with regard to the installation of spring posts at Shalimar Bagh I & II, Ashok Vihar TPoint, GT Karnal Road near Telephone Exchange, Mall Road and Road No.37 near Chandni Restaurant. He had identified the same as Ex.PW7/A. According to him he had given the rate of a spring post as Rs.5400/ per piece which included installation charges. This included his profit, Sales Tax and also other deductible taxes like labour cess of 1%, VAT etc. According to him at the time of submitting the quotation he had an idea that in the market spring post would range between Rs.
4000/ to Rs.5000/ per piece. He had made inquiries from C.C. No. 19/11 19 of 116
fellow contractors before reaching at this conclusion. He had further identified his signatures on the Quotation Opening Register Ex.PW4/B. PW8 23 Witness PW8 Sh. Dhiraj Sisodia had deposed that he had been working as Manager with M/s Alfa Traders (Proprietorship firm of accused no.1 Sh. Amrish Thukral) having its address at 203,, G.R Complex, Sector8, Rohini, Delhi. M/s Alfa Traders was a civil contractor and was undertaking work such as laying of bricks, installation of road signages, making drains etc. According to him he had collected the price list of Dark Eye, model DA954 from 3, Masjid Road, Jangpura, the office of Dark Eye which had the name something like M/s Texla Plastics. After collecting the list he had kept the same in his office. At the office of M/s Texla Plastics and Metals Pvt. Ltd., he had met Sh. G.S Bhandari. When he had reached the office he had called one Madam and asked her to hand over the price C.C. No. 19/11 20 of 116 list to him. This price list included the terms and condition as mentioned in the said list.
PW9
24. Witness PW9 Sh. Dev Raj had deposed that he had joined CPWD on 9.1.1979 and had kept working with CPWD till September, 2011. He had been working with CPWD as Executive Engineer (Manual) CSQ (Contract Specification Quality), New Delhi. This witness had given the procedure for inviting spot quotations.
PW10
25. Witness PW10 Sh. Vijender Prasad had deposed that in the year 2009 he was posted in PWD, Division M313 as Junior Engineer. In his examination he had given his duties he was required to perform as Junior Engineer. He had further identified the memo Ex.PW10/A by which he had handed over C.C. No. 19/11 21 of 116 the measurement book Ex.PW10/B to CBI with regard to the measurement which he had undertaken relating to the installation of spring posts at Mall Road Crossing, Delhi. PW11
26. Witness PW11 Sh. Brij Bhushan was working as Junior Engineer in the year 2009 at Division M312, Inderlok, Shehzadabagh Sub Division. This witness has deposed that by seizure memo Ex.PW11/A he had handed over the Measurement Book Ex. PW11/B to CBI with regard to measurements he had taken relating to the spring posts at Road no.37, TPoint, Near Chandni Restaurant, Delhi. PW12
27. Witness PW12 Sh. Jeet Ram Raghuvanshi was posted as Executive Engineer (Planning) in July, 2009 at ZoneM1 and had deposed about the procedure for inviting spot quotations.
C.C. No. 19/11 22 of 116 PW13 28. Witness PW13 Ms. Jaskirat Kaur who was working as Manager Sales Coordinator with M/s Muskaan Safety
Solutions Pvt. Ltd. had deposed that M/s Muskaan Safety Solutions Pvt. Ltd. and M/s Texla Plastics and Metals Pvt. Ltd. were sister concern having same Directors. She had identified her signatures on the price list of Dark Eye safety products wherein the price of spring post DA954 is given as Rs.4400/. As per her testimony the issuance of such price list was discontinued in the year 200506. After 200506 the Sales team usually used to directly deal with the customers and settling the price of the products through quotations.
PW14
29. Witness PW14 Inspector Pankaj Vats had deposed that the preliminary inquiry in this matter was assigned to him and during the course of the said inquiry he came to know about the C.C. No. 19/11 23 of 116 irregularities having been committed in awarding work order involved in this case and primafacie it appeared to him that the offence had been committed under the provisions of the Prevention of Corruption Act and Penal Code. He on the basis of the said inquiry had made a complaint Ex.PW14/A on the basis of which the FIR Ex.PW14/B was registered by the then S.P Sh. Sumit Sharan.
PW15
30. Witness PW15 Sh. O.P Gaddhyan is the Chief Engineer who had ultimately approved the work order in this case. He had deposed about the circumstances in which the spot quotations are invited. He had also explained about what is meant by Technical Sanction and under what circumstances the same is required. As per his testimony the installation of Bollards/spring posts was urgently required to be installed for the segregation of right turning traffic in locations intimated to the Engineer in Chief PWD by Delhi Police. The installations were to be made to comply with the directions of the Hon'ble C.C. No. 19/11 24 of 116 High Court where the case was been monitored. The next date of hearing fixed in the matter was 04.10.2007 and the compliance report was submitted to the Engineer in Chief, PWD by 01.10.2007. This entire matter was scrutinized in his Department by Sh. D.P. Gupta Assistant Engineer (Planning) vide his note Ex.PW6/3. He had examined this matter from the angle of reasonability of rates, technical sanction and justification of the offer and the circumstances under which the spot quotation were invited. The planning unit in his office had checked all the angles involved including the urgency required, in view of the directions of the Hon'ble High Court, the specific reference to which had been made in portion X4 of the note Ex.PW6/A3. Ultimately he had accepted the lowest offer of Rs. 8,82,000/ as noted in the portion X2 of Ex.PW6/A3. After his acceptance the same was communicated to the Executive Engineer (Accused no.1 Sh. Anil Kumar Saini) for the execution of the work. As per the testimony the Executive Engineer Sh. Anil Kumar Saini i.e Accused no.1 had sent all the relevant documents.
C.C. No. 19/11 25 of 116 PW16 31. Witness PW16 Sh. Mahender Singh Verma who was
posted as Junior Engineer (Civil) in the year 2007 with New Delhi Municipal Council had deposed about his duties and also identified the seizure memo Ex.PW16/A by which the file Ex.PW16/B was handed over by him to CBI which related to short notice quotations in respect of providing and fixing spring posts at K.G Marg, Dr. Zakr Hussain Marg and Subramaniam Bharti Marg. According to him the file was processed by Assistant Engineer Sh. Subhash Agarwal after a letter was received from DCP (Traffic) addressed to the Chairman of NDMC as well as the Engineer in Chief. After the proposal of fixing the spring posts was approved by the Chairman of NDMC, short notice quotations were invited. The quoted rate of the spring post in this case was Rs.2281.91.
PW17
32. Witness PW17 Sh. Mukesh Sharma also an Assistant Engineer from NDMC had deposed about the seizure of file C.C. No. 19/11 26 of 116 Ex.PW17/B1 to Ex.PW17/B3 relating to installation of spring posts at various locations on the basis of a letter received from DCP (Traffic) vide seizure memo Ex.PW17/A by inviting tenders.
PW18
33. Witness PW18 Inspector Prem Nath had deposed that on 21.01.2009 he had taken over the investigation from Inspector Karan Arya. He had conducted the inspection of all sites investigation where the spring posts were stated to have been installed along with the independent witness and officials of PWD and prepared Inspection Memo Ex.PW18/A. At the time of inspection he had prepared six site plans of different location where spring posts were installed viz Ex.PW18/A1 to Ex.PW18/A6. He had further deposed about various documents seized by him by different seizure memos during the course of the investigation.
C.C. No. 19/11 27 of 116 PW19
34. Witness PW19 Sh. Raj Singh is also an Investigating Officer in this case who had finally submitted the charge sheet in the Court. According to him by the time he got the investigation of this case practically the investigation was over. The only thing which remained was to get the Sanction for the prosecution of the accused persons namely Sh. Anil Kumar Saini and Sh. Chanderpal Singh. A letter for seeking sanction had already been written to the Department of the accused persons. He had filed the charge sheet in the Court awaiting the sanction for prosecution of the accused persons. He had also identified the seizure memos Ex.PW16/A by which he had seized certain documents from Sh. Mahender Singh Verma, and Sh. Mukesh Sharma and NDMC with regard to certain work orders being awarded relating to the installation of spring posts in the other connected case i.e R.C 63(A)/08/DLI.
C.C. No. 19/11 28 of 116 STATEMENT UNDER SECTION313 CR.P.C.
35. All the incriminating evidence which had come on record was put to the accused persons under Section 313 Cr.P.C and their statements were recorded.
DEFENCE EVIDENCE
36. The defence evidence was led in this case by the accused no.1 and 2. They had examining eight witnesses in defence. DW1
37. Witness DW1 Sh. Hari Singh had deposed that in the year 2010 he was posted as Executive Engineer, PWD, Division M112, Delhi and he was also APIO of his Department. He had identified one letter Ex.DW1/A written by him to Sh. Anil Kumar Saini accused no.1 supplying the information to him along with the annexures under Right to Information Act. As per his C.C. No. 19/11 29 of 116 testimony he had supplied this information on the basis of the records available which included cash vouchers by which the payment was made to NCCF @ Rs.5500/ per spring post DA954 inclusive of installation cost but excluding Sales Tax cost Ex.DW1/B1; Cash voucher dated 06.11.2007 by which the payment was made to Kendriya Bhandar @ Rs.6150/ per spring post DA954 inclusive of installation cost but excluding Sales Tax Ex.DW1/B2; Cash voucher dated 11.7.2007 by which the payment was made to Kendriya Bhandar @ Rs.6150 per spring post DA954 inclusive of installation cost but excluding Sales Tax Ex.DW1/B3 and Cash voucher dated 24.10.2007 by which the payment was made to Kendriya Bhandar @ Rs.6150/ per spring post DA954 inclusive of installation cost but excluding Sales Tax Ex.DW1/B4.
DW2
38. Witness DW2 Sh. K.S Gaur had identified the reply dated 2.2.2010 supplied by Smt. Sadhna Baul under Right to C.C. No. 19/11 30 of 116 Information Act to Sh. Rakesh Mittal (accused in connected case) along with the extract of the Duties of the Officers of CPWD Departmental Code Ex.DW2/A. He had also identified one office copy of the reply dated 7.1.2010 also supplied to Sh. R.K. Mittal bearing the signatures of Smt. Sadhna Baul along with office Memorandum dated 17.1.2003 as Ex.DW2/B collectively. As per his testimony Smt. Sadhna Baul was working as PIO of the System Development Unit. He had identified her signatures as she had been working under him. DW3
39. DW3 Sh. Tejender Singh who was posted as Superintending Engineer, PWD, in the year 2006 to 2009 had identified one Extra Item Statement no.4 dated 30.3.2007 Ex.DW3/A bearing his signatures according to which spring post DA 954 size 710X200 were to be installed at Mathura Road. The cost of one spring post DA 954 which was approved was Rs.5490/ inclusive of cost of installation including epoxy and C.C. No. 19/11 31 of 116 Sales Tax. He had identified one proposal submitted by the Executive Engineer to the Superintending Engineer relating to the Extra Item Statement No.II prepared by one Giani Ram Executive Engineer with letter dated 16.3.2007. As per the letter and the proposal collectively Ex.DW3/B. The cost of one spring post DA954 size 710X200MM. was given to be Rs. 5903.50 as proposed. He had approved Rs.5500/ as rate of one spring post. He had identified the said document as Ex.DW3/C. He in his testimony had also identified still one another Extra Item Statement no.1 Ex.PW3/D wherein the cost of installation of one spring post DA954 size 710X200 mm. Inclusive of cost and tax had been given as Rs.5500/. DW4
40. Witness Dw4 Sh. Pramod Kumar was working as Executive Engineer with PWD M212 and also working as PIO had identified the reply Ex.DW4/A with regard to the information which was supplied to Sh. Anil Kumar Saini. In this reply the C.C. No. 19/11 32 of 116 rates of spring posts at which the same were procured from NCCF and Kendriya Bhandar were mentioned.
DW5
41. Witness DW5 Sh. Mohan Lal who was working as PIO at Division F122 had identified the information Ex.DW5/A supplied to Sh. Anil Kumar Saini along with the documents mentioned therein. He had identified the documents which were supplied to Sh. Anil Kumar Saini as Ex.DW5/A1 to Ex.DW5/A11 which included various indents and final bills. As per the indents at Sr. No.1 to 9 i.e Ex.DW5/A1 to A9 the price of one spring post was given to be Rs.5,000/ exclusive of VAT. As per the document at Sr. No.10 i.e final bill related to one Agreement No. 64/EE/PWD213/0708 the price of one spring post given was Rs.5500/ inclusive of taxes and installation charges. As per the document at Sr. No.11 i.e Ex.DW5/A11 i.e final bill relating to Agreement No.43/EE/PWD213/0708 the price of one spring post given was Rs.5000/ inclusive of tax and installation charges.
C.C. No. 19/11 33 of 116 DW6
42. Witness DW6 Sh. Chander Prakash who was working as UDC with PWD, Govt. of NCT, Division F132 had produced the file of one Agreement No.12/EE/EPDF132/200809 of Work Construction of Grade Separators at Mangol Puri Chowk, Delhi. He had identified the documents relating to the said agreement as DW6/A1 to A4. As per his testimony according to the agreement the spring posts were to be installed of Dark Eye DA954 make and the price of one such spring post was Rs. 5420/ inclusive of tax and installation charges. DW7
43. Witness DW7 Sh. Mahesh Singhal Executive Engineer National Highway Division, H.P, PWD, Solan, Himachal Pradesh had appeared in the Court and informed that there was one application filed under Right to Information Act by Sh. Anil Kumar Saini asking for information with regard to one invoice C.C. No. 19/11 34 of 116 bearing no.028 dated 16.5.2008 of M/s Muskaan Safety Solutions Pvt. Ltd. By which some spring posts and road studs were stated to have been purchased by Executive Engineer, NH Division, HP PWD, Solan, H.P. In his capacity as PIO of Solan, NH Division, HP, PWD he had checked all the records and supplied the information stating interali that NH Division, Solan, HP, PWD had not purchased any item against the said invoice. He had placed on record a copy of the application as well as the information he has supplied Ex.DW7/A and Ex.DW7/B respectively.
DW8
44. Witness DW8 Sh. M.C Yadav working as Executive Engineer (Planning) in the office of Chief Engineer, Northern Zone5, CPWD, Jammu had deposed that in December 2009 and January 2010 he was posted as Executive Engineer, PWD, Division M211 and was also PIO of the said Division. After having seen the relevant record he had stated that he had C.C. No. 19/11 35 of 116 supplied the necessary information Ex.DW8/A along with the copies of the record to Sh. Anil Kumar Saini. As per his testimony the annexures attached with the reply would show that the cost of one spring post Dark Eye model DA954 was Rs.5500/ except for two instances where the rates were given as Rs.5378.40 and Rs.6650.05. He had also identified four cash vouchers Ex.DW8/B1 to B4 relating to the payments made in respect of the installation of said spring posts. ARGUMENTS
45. I have heard Ld Defence Counsels and Ld Prosecutor for CBI. I have gone through record of the case as well written submissions.
Calling for spot quotations
46. One of the allegation against the accused no. 1 and 2 in particular is that there was no occasion to call spot quotations in C.C. No. 19/11 36 of 116 this case as there was no urgency to call for the spot quotations and in any case the spot quotations could not have invited because the amount involved was more then Rs.50,000/. Question of urgency:
47. It has been pleaded that there was no urgency involved in this matter but the reading of the chargesheet itself would show that there was actually an urgency to install the spring post. Before proceeding further I would like to point that it is a question which is to decided from the point of view that if there was a reasonable ground to believe for the officers concerned that there was an urgency it would not matter if some other officer in their place would have treated this matter as not urgent in the same facts and circumstances.
48. It is stated in the chargesheet itself :
C.C. No. 19/11 37 of 116 "Investigation has revealed that in response to direction of Hon'ble High Court of Delhi Vide its order dated 20.07.2007 in WP(C) No. 5239/02 Ham Nalini Mehra vs. Government of NCT of Delhi and others, a letter dated 10.09.2007 was sent to PWD authroities from Dy. Commissioner of Police, Traffic (Header Quarter), Delhi requesting therein to make necessary provisions for replacement and installation of Spring Post in certain locations named in the enclosed list. The next date in the matter for hearing in the High Court was 04.10.2007.
Investigation has further revealed that in order to comply with the said order of Hon'ble High Court, details of measurement was prepared by Chandra Pal Singh, AE on 24.09.2007 for fixing of 168 numbers of Spring posts on lane dividing at right turn of Shalimar Bagh 1 & II, Ashok Vihar T. Point, GKT Road near Telephone Exchange, Mall Road and Road No. 37, Near Chandi Restaurant."
49. There is not a single witness examined to prove that the matter did not involve an element of urgency. In the cross examination two of the material witness of the prosecution who C.C. No. 19/11 38 of 116 were involved in the process of awarding of contract one of them being the Chief Engineer himself Shri O.P. Gaddhyan PW15 at whose oral directions the process of inviting spot quotation was initiated and who had ultimately awarded the work order and the other is PW 6 Sh. D P Gupta posted as Engineer officer with the office of Chief Engineer who had examined the proposal submitted by the Accused No. 1 Sh. A K Saini and after scrutiny had submitted note to the chief Engineer who had finally approved the same.
50. PW 6 D P Gupta had admitted that in his note Ex PW6/A2 it was mentioned that the work was to be awarded in view of the direction of the Hon'ble High Court and there was urgency involved in the matter. The relevant part of his note read as under:
"This work is being monitored by the Hon'ble Delhi High Court. After directions of Hon'ble High Court, D.C.P. (Traffic) has identified some locations where bollards are urgently required C.C. No. 19/11 39 of 116 for segregation of Right turning traffic. These locations were intimated to the EinC (PWD) for taking necessary urgent action. Due to urgency of the work and in compliance of direction of Hon'ble Delhi High Court spot quotation were collected after verbal approval of competent authority."
51. PW 15 Sh. O P Gaddhaian had deposed:
"It related to installation of Bollards which is also called Spring Posts, which were urgently required to be installed for segregation of right turning traffic in locations as intimated to Engineer in Chief, PWD by the Delhi Police . This was required to comply the direction of Hon'ble High Court where the case was being mentioned. The next date of hearing on which the case was fixed was given as 04.10.2007 and compliance report was to be given to engineer in Chief, PWD by 01.10.2007. These documents were scrutinised in my office by Planning Unit i.e. Shri D.P. Gupta, AE (Planning) for road works and his staff working under him. The said scrutiny note is already Ex. PW6/A3. This note was put up before me. He had examined this matter from the angle of the reasonability of rates, technical sanction and justification of the offer and the circumstances under which the C.C. No. 19/11 40 of 116 spot quotations were collected. He had noted that the justification worked out by EEM311 is 1% above the estimated cost i.e. Rs. 9,23,908/. The justified amount, which was worked was Rs. 9,33,156/ and this was found in order after checking in Planning Unit. In conclusion, he had stated that the offer given by M/s Alfa Traders for the execution of the work as Rs. 8,82,000/ were below by 4.54% of the justified amount. He had taken into account all factors including the urgency required in the light of the directions of the Hon'ble Delhi High Court. It is noted in the portion of X4 of Ex. PW6/A3."1 2
52. The expression used in para 5.4.1 and also 2.2 of the 1 5.4.1 Situations for calling spot quotations - competent authority (1) Wherever a work is to be taken up, or a material is to be procured under critical situations, such as in the case of a breakdown 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 sup ply 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 daytoday 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 but not later than 10 days. 2 2.2 Works of inescapable nature (Ref. Rule 129 (2) of GFR2005) 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 C.C. No. 19/11 41 of 116 CPWD manual "brooks no delay" in the context that where there are circumstances which do not "brook delay" spot quotation can be invited which is same as "urgency" an expression used 1 in para 14.1 which does not seem to be as stringent as the reading of 5.4.1 or 2.2 would show. It reads "In urgent cases, or when the interest of work so demands, or where it is more expedient to do so, works maybe awarded without call or tenders". As has already been submitted that this question is to 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 prerequisites. 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 regularise the liability as early as possible.
1 14.1 Procedure (1) Normally tenders should be called for all works costing more than Rs.50,000/. In case there 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 AppendixI. (2) Te precise reasons should be recorded by the Divisional Officer before dispensing with call of tenders for works costing more than Rs.50,000/. (3) The work awarded after calling for 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 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.
C.C. No. 19/11 42 of 116 be examined from the point of officer concerned as to whether he had the reasonable grounds to so believe, if he had such ground to believe then it is immaterial what others may have thought of it. To illustrate one may refer to the testimony witness PW 16 and Witness 17. Witness PW 16 had deposed about the work order for the fixing of spring post at K G Marg Dr Zakir Hussain Marg NDMC Division R 1 and Witness PW 17 deposed about the fixing of spring post at T Point of Max Muller Marg Lodhi Road and T Point Arvindo Marg Lodhi Road NDMC Division R II . Both the cases started on the basis of letters written by the DCP traffic (like in the present case ) for the implementation of directions of Hon'ble High Court in Hem Nalni Case but in the former case of R1 Division NDMC " Spot Quotations" were invited whereas in the later of R II Division tenders were invited.
53. In the above given circumstances in my view the Accused no. 1 Sh. Anil Kumar Saini EE , Accused no.2 Sh. CP. Singh AE and other officer cannot be faulted, if they thought that there C.C. No. 19/11 43 of 116 was an urgency involved in this case for installation of Spring Posts firstly because it was a device meant to be used for the safety of road users and also because it was being done in light of the direction of the Hon'ble High Court which was required to be complied with by a particular date. I would accordingly conclude that on this ground the decision to call for the spot quotations cannot be faulted.
Question of competence Spot quotation to be called in all cases where costing Rs. 50,000/ is involved.
54. This is another issue which has been raised both in the arguments from the side of CBI and also in the chargesheet. It is alleged in the chargesheet:
"According to Para 14.1 of CPWD manual, normally tenders should be called for all works costing more than Rs. 50,0000/. In case where the work is to be awarded expeditiously, the prescribed period of notice may be reduced. In urgent cases, or when the situation so demands, C.C. No. 19/11 44 of 116 or where it is more expedient to do so, work may be awarded without inviting tenders after approval of the competent authority. The precise reasons should be recorded by the Divisional officer before dispensing with call of tenders for works costing more than Rs. 50,000/. In the instant work order, taking the plea of urgency A.K. Saini, EE and Chandra Pal Singh, AE in conspiracy with the contractor Amrish Thakural awarded the instant work order at much higher rates."
55. The relevant part of Para 14.1 reads as under:
14.1(1)Normally tenders should be called for all 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 work so demands, or where it is more expedient to do so, works maybe awarded without call or tenders after approval of the competent authority as per powers delegated in AnnexureI. C.C. No. 19/11 45 of 116
56. It is clear that para 14.1 cannot be read in isolation and must be read with Annexure 1 referred therein. The case of the accused is that the cost of this work was though close to Rs. 1,00,000/ but not less then Rs. 10,000/ and as per Annexure I the competent authority who could accord approval for inviting spot quotations was Chief Engineer ( PW15). It was not necessary that he should have given written direction about. The oral instruction from him were good enough to start the process as per 5.4.1(3)1.
57. There has been no witness examined by the prosecution to prove that since the cost of the work involved was more then Rs.50,000/ no spot quotation could have invited in this case.
58. The Appendix 1 with regard to financial powers delegated to CPWD officers would show that the Chief Engineer was 1 5.4.1.(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 but not not later than 10 days.
C.C. No. 19/11 46 of 116 competent to award work without call of tenders to the extent of Rs. 10 lacs. The relevant portion of the said Appendix reads as under: S. NO. Nature of power Designation of the Extent of Remarks / Officer power Reference (in Rupees)
17. Award of work AE/AEE 20,000 DGW/MAN/129 without call of dt. 30.12.05 (Sr. tenders No. 5) EE 1.25 lacs SE 4.5 lacs Under his own CE 10 lacs authority.
With prior CE 45 lacs
approval of ADG
With prior CE 90 lacs
approval of DGW
With prior CE Full powers
approval of C.W.
Board
59. It is also clearly evident from Ex PW6/A2 the note of the Accused No. 1 Sh. A K Saini the spot quotations in this case were invited with the prior approval of the Chief Engineer where C.C. No. 19/11 47 of 116 it is noted " Spot quotations were collected after verbal approval of competent authority". There is no word in the testimony of PW 15 Sh. O P Gaddiyan that he had not accorded any such approval for calling the spot quotations. It may also added that it is not even the case set up by the prosecution that before inviting the spot quotations the verbal approval of the competent authority I.e PW 15 Sh. O P Gaddiyan had not be taken.
60. Thus there is absolutely no reason to say that since the cost of the work was more than Rs.50000/ no work could not have been awarded without inviting tenders.
61. At the same time it may also be noted here that spot quotations were invited after getting the approval of the competent authority.
62. One may here ask if the spot quotations were invited with the verbal approval of the competent authority after disclosing C.C. No. 19/11 48 of 116 all the facts as is permitted under the manual para 5.4.1 (3) can the Accused No.1 Sh. A K Saini EE and Sh. C P Singh AE held responsible for calling the spot quotations?
63. I would accordingly conclude that as far as the calling of spot quotations is concerned it cannot be faulted either on the ground that there was no urgency involved nor that because of the cost of the work involved the spot quotations could not have been invited.
Work awarded for the installation at exorbitant rates without any market survey
64. It is alleged in the charge sheet "The analysis of the rate has been done on the basis of rate list of Dark Eye of the period January, 2006. In the said list, MRP of Spring Post has been shown as Rs.4400/. The analysis was done by C.P. Singh, AE. The final rate was calculated Rs.5499.45 per Spring Post by C.P. Singh, AE after including discount, C.C. No. 19/11 49 of 116 labour, cost of other raw material, dealer's profit and VAT. As per CPWD manual before making estimate/analysis of rates, the reasonability of rates should be checked by conducting a market survey. For this purpose rates should have been collected from reputed firms. In the instant case Sh. C.P. Singh, AE committed criminal misconduct by abusing his official position as a Public Servant since he did not conduct the market survey and made the analysis of rates on the basis of an old rate list of M/s Muskaan Safety Solution Pvt. Ltd. In order to increase the cost of work order to benefit the contractor in monetary terms."
65. It was further alleged that during the investigation it was discovered that the cost of the spring posts to be installed i.e spring post DA954 of brand name 'Dark Eye' with specifications bottom dia 210 mm., upper dia 80 mm. And length 710 mm., were in the range of Rs.1000 to Rs.2000, though the MRP of the same in the price list of one M/s Muskan Safety Solutions Pvt. Ltd. as on 1.1.06 was given to be Rs.4400/ as the said C.C. No. 19/11 50 of 116 rates were negotiable. The allegation in the charge sheet reads as under :
"Investigation has further revealed that as per price list of M/s Muskan Safety Solution Pvt. Ltd. As on 01.01.06, the MRP of Spring Post DA954 was Rs.4400/. During investigation, Shri Gurvinder Singh Bhandari, General Manager of Muskan Safety Solution disclosed that the rates are negotiable depending upon the quantity of material to be purchased. The rates being charged by the company are ranging between Rs.1000/ to Rs.2000/ per Spring Post. The price of per Spring Post varies and depends upon the quantity and mode of payment. Huge quantity and fast mode of payment can help in reducing the price of the Spring Post but if the quantity is less and payment is delayed then the higher rates are charged but not exceeding of rs.2000/ per Spring Post. It has also come on record that during the relevant period, the Spring Posts were sold by M/s Muskan Safety Solution ranging between Rs.10002000/. It has been further revealed that the item Spring Post is of such a nature that its price are going down each year as compared to the previous year.
C.C. No. 19/11 51 of 116 During investigation the stock and sales statement as well as various sales receipt/ cash memo issued to various parties by M/s Muskan Safety Solution Pvt. Ltd. were collected. The rates at which Spring Post were sold to various parties during the relevant period are as under: Sr. Invoice No. and Item Rate Name of the purchaser No. Date
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 Signs (P)
4. 028 dtd. 16.05.08 do 2,050 Executive Engineer NH (Including Division Solan installation charges)
5. 202 dtd. 16.10.08 do 1533.34 M/s DIMTS Ltd.
(Including installation charges)
66. As per the case of the prosecution the spot quotation of the accused no.3 i.e proprietor of M/s Alfa Traders was accepted in wherein the rates of one spring post had been given to be Rs.5250/ inclusive of installation material and charges and also Value Added Tax which was 4.54% below the C.C. No. 19/11 52 of 116 estimate arrived at by the Department i.e by the accused no.2 Sh. C.P. Singh i.e. 5554.50 wherein the cost of one spring post was taken to be Rs.4440/ as per the rate list of M/s Muskan Safety Solutions Pvt. Ltd.
67. The evidence which has been led by the prosecution to prove this allegation is in terms of the oral testimonies of witnesses as well as the documents collected during the course of the investigation. The defence has challenged those documents firstly being not reliable because of a number of discrepancies therein and secondly on the ground that in none of those documents there is reference to Spring Post DA954 Dark Eye with the specifications, which is the subject matter of the present case. There is also evidence led on behalf of the defence firstly questioning the genuineness of one of the documents by leading direct evidence with regard to the supplies having been made of the said spring posts to Executive Engineer, NH Division, Solan and also placing on record other records of PWD itself wherein the same spring posts had been C.C. No. 19/11 53 of 116 procured by PWD itself from other agencies around the price at which the spring posts were got installed in this case or higher.
68. I would like to first of all examine the documents which had been produced from the side of prosecution to establish this allegation one by one.
Invoice No.062 dated 01.10.07 issued by M/s Muskan Safety Solutions Pvt. Ltd. in favour of M/s Grover Sales Corporation.
69. As per this invoice there were 25 pieces of spring posts sold to M/s Grover Sales Corporation giving the price of one spring post as Rs.1100/. In this document though the word "
spring post" has been mentioned but there is no reference to it being DA 954 and also there is no reference to any specification. I have seen the price list Ex PW3/A submitted by the prosecution itself wherein there are spring posts of different sizes mentioned with different rates. For example price of Spring Post small DA 960 is given to be Rs.2800/ and that of Spring C.C. No. 19/11 54 of 116 Post DA 961 medium has been given to be Rs3700/. Thus it would be difficult to say if the spring post referred to in the said invoice was DA 954 the spring post in question, or some other spring post. I am of the view on the basis of this document it would be difficult to say what was sold by the said invoice at the rate of Rs.1100/ was the spring post DA 954.
Invoice No. 031 dated 21/07/07 issued by M/s Muskan Safety Solutions Pvt. Ltd. in favour of M/s AJS Scale Solutions Pvt. Ltd.
70. As per this invoice 12 spring posts were sold at the rate of Rs.1250/ per piece. Again here as well there is no description of the spring post sold as to whether it was DA 954 or not. Therefore, this also cannot be relied upon to say that the value of the spring post DA 954 was Rs1250/
71. On the file of this case there is photocopy of the invoice Ex PW3/C2. The original of the same and the carbon copy of the same are available on the file of the connected case CC 6/11.
C.C. No. 19/11 55 of 116 Photocopy filed herein is the photocopy of carbon copy of this document EX PW3/ BX1 in the said case. The said carbon copy and also its original PW3/B had been shown to the witness in this case as well . Though in terms of the content there is no difference between the original and the carbon copy but their comparison would show number of differences between the two in terms of writing the date, writing of words and spacing of words. The original Ex. PW3/B (in the other case) is stated to be the carbon copy of the same Ex. PW3/BX1 (in other case) appears to have been written not by the same person.
72. The witness PW 3 Sh. G S Bhandari had admitted such differences. He had deposed " It is correct that Ex PW3/B is the original of Ex PW3/C2. After examination of the two, I find that there is some difference in terms of space at points X1 to X3 and also there is a difference in the style of writing Rs.15000/ at point X4." He had, however, explained "
I would like to explain this difference by saying that sometimes on the request of the party i.e. buyer a fresh bill C.C. No. 19/11 56 of 116 is issued in case the party has lost the invoice which had been supplied to him at the time of actual sale because the buyer is required to submit original with the sales tax department. It is possible,therefore, that in this case the photocopy may have been taken from any other original relating to the same transaction."
73. I find this explanation hard to accept. First of all I find it hard to understand that how could another original be issued from the same book number with the same invoice number and should it be necessary to do so a copy of the office of copy would be have been sufficient for this. It would be also mean that there can be no sanctity attached to a document as this, as this could be created at will by the witness. Thus there is serious question even as to the integrity of this document and consequently its reliability.
Invoice No. 031 dated 21/07/07 issued by M/s Muskan Safety Solutions Pvt. Ltd. in favour of M/s KMGS Road Signs Pvt. Ltd.
C.C. No. 19/11 57 of 116
74. Though this entire document cannot be clearly read but it seems that as per this document the price of one spring post was Rs.1050. Again here as well there is no description of the spring post sold as to whether it was DA 954 or not. Therefore, this also cannot be relied upon to say that the value of the spring post DA 954 was Rs1050/.
Testimonies of Witnesses PW 16 and PW 17:
75. Prosecution had also examined witnesses PW16 Sh. Mahender Singh Verma working as junior engineer (civil) New Delhi Municipal Committee in the year 2007 and posted at C II Flats Service Centre Tilak Lane, New Delh and also Mukesh Sharma working as Assistant Engineer posted at Golf Link Service Centre Road, Golf Link Colony, New Delhi to prove again that the price of a spring post was in the range of Rs. 1000/ and Rs 2000/ .
C.C. No. 19/11 58 of 116
76. Witness PW16 Sh. Mahender Singh Verma had referred to different documents in his testimony with regard to awarding of work order in fixing of spring post at KG Marg, Dr. Zakir Hussain Marg and Subramanium Bharti Marg. One of the most important document is at page no. 14 of the set of documents forming part of Ex. PW14/A which is Analysis of Rates. It was on the basis of this document the remaining process of calling for spot quotations etc. was carried out. It is in this document for the first time the market rate of spring post was mentioned. Without going into the question that this witness was not involved at any stage in the awarding of this work order and he had merely identified the signatures of Shri Subhash Gupta, AE and that Shri Subhash Gupta was still in service and could be summoned as a witness, I have gone through this document to examine if the rates mentioned therein can be made as the reference point to come to the conclusion that the rate of spring post taken by the accused persons was exorbitant. The rates mentioned therein were not based on any independent inquiry but were taken from another work carried out by NDMC itself of C.C. No. 19/11 59 of 116 installation of bollards on Wellington Crescent Road to 11 Murti. After initially giving the market rate of spring post as Rs. 3924/ and from it deducting the rebate and contractor's abatement finally the market rate of the spring post was mentioned to be Rs. 2281.91. It is not clear from any of the document forming part Ex. PW14/A that this spring post was Dark Eye DA954 which is the subject of this case. In none of the document in fact the word "Dark Eye DA 954" appears in reference to the Spring Post. On this document at page no. 12, analysis of rates, at the end of the page in one corner the word "M/s Dark Eye" is mentioned and below it there is a telephone number given. It is difficult to understand in what context the words "Dark Eye"
have been noted here. The question, however, still remains whether the spring post referred herein can be said to be "Dark Eye DA 954". I find that the specifications given herein and the language used herein is the same as is given in the rate list of M/s Texla Plastics and Metals Pvt. Ltd Ex. PW3/A as that of spring post DA 954 except that I find here in the rate list of Texla Plastics and Metals Pvt. Ltd. the bottom dia of spring post is C.C. No. 19/11 60 of 116 given to be 210mm whereas in this document Ex PW3/A ( page
14) the bottom dia is given to be 200 mm and also in the rate list the weight of the spring post DA954 has not been given whereas the weight of the spring post given in this document as 1.450 Kg. From one of the brochure of Dark Eye products available on the record Ex. PW3/DX2/C. I could find that weight of the Spring Post DA 954 is 1770 gm.
77. Thus it appears to me clearly that the spring post referred to herein is not spring post Dark Eye DA 954 and the rates mentioned herein cannot be a reference point for determining the rates of Dark Eye DA954.
78. I have seen the testimony of the witness PW17 Shri Mukesh Sharma. In his testimony too he had referred to various documents with regard to filing of Spring Post at Max Muller Marg Lodhi Road and at T point Aurbindo Marg, New Delhi. I find that the analysis of rates arrived at in relation to this work is exactly the same as the analysis of rates referred to in C.C. No. 19/11 61 of 116 the testimony of PW16. The description of the Spring Post is also the same as is given in the documents Ex. PW16/A. Thus on the same logic the rates given in the documents Ex. PW17/A of a spring post can also not be a reference point to determining the rate of a spring post DA954.
79. In conclusion, the deposition of the witness PW16 and PW17 and the documents proved by them cannot of any use for determining as to whether the price of a spring post DA954 was in the range of Rs. 10002000 as alleged by the prosecution or that the price of spring post given in the work order in question in this case was exorbitant.
Documents put to the Witness PW3:
80. Though on the one hand witness PW3 Sh. G S Bhandari had claimed that the cost of one Spring Post DA 954 was between the range of Rs. 1050 to Rs.1250 in the year 2007 but he had admitted various documents of the same period which C.C. No. 19/11 62 of 116 would show M/s Muskan Safety Solutions Pvt Ltd and M/s Texla Plastics & Metals Pvt. Ltd. had themselves submitted quotations giving the price a spring post in the range of Rs. 4400/ to 5000/ that too without the installation charges and VAT.
81. The documents are:
Ex Pw3/Dx6 - quotation dated 22/12/2006 signed by PW3 himself on behalf M/s Texla Plastics & Metals Pvt. Ltd as its General Manager sales submitted to the Executive Engineer Project Division IV PWD Okhla Industrial Area giving unit price of spring post DA 954 (of the same specification as in this case) as Rs 4400/ with separate installation charges as Rs. 500/ per piece and VAT @ 12.5%.
Ex PW 3/ DX 7 quotation signed by PW3 himself on behalf M/s Texla Plastics & Metals Pvt. Ltd as its General Manager sales submitted to the Executive Engineer CW 122 C.C. No. 19/11 63 of 116 PWD New Delhi giving unit price of spring post DA 954 (of the same specification as in this case) as Rs 4200/ with separate installation charges as Rs. 150/ per piece and VAT @ 12.5% with the addition of Rs 50 per piece for epoxy.
Ex PW 3/ DX 8 Abstract cost prepared relating providing and fixing road safety equipment on Geeta Colony & Shantivan Side which is also signed on behalf of M/s M/s Texla Plastics & Metals Pvt. Ltd where in rate of one Spring Post DA 954 has been given as Rs 5500 it is inclusive of installation charges and epoxy.
Ex PW3 /DX 9 quotation signed by PW3 himself on behalf M/s Texla Plastics & Metals Pvt. Ltd as its General Manager sales submitted to the Executive Engineer CRM Division PWD ( M312) Sanik Vihar Delhi giving unit price of spring post DA 954 (of the same specification as in this case) as Rs 4500/ with separate installation charges as Rs. 500/ per piece and VAT @ 12.5%.
C.C. No. 19/11 64 of 116 Documents submitted in defence:
82. The accused no. 1 Sh. A. K. Saini and accused no. 2 Sh.
C. P. Singh had examined witnesses in defence to not only establish that the price of a spring post DA954 was not in the range of Rs. 1000/ to 2000/ as claimed by the prosecution but in the range of Rs. 4400/ and above.
83. The witness DW1 Sh. Hari Singh working as Director (Works) with the office of Addl. DG, CPWD, Chandigarh who was posted as Executive Engineer, PWD, Division M112, Delhi and also APIO of the department at that time had proved the following documents :
Ex. DW1/B1 Cash Voucher dated 24/10/07 for making payment to NCCF. As per this voucher payment was made to NCCF @ Rs. 5500/ per spring post DA954 inclusive of installation charges but excluding sales tax.
C.C. No. 19/11 65 of 116 Ex. DW1/B2 Cash Voucher dated 06/11/07 for making
payment to Kendriya Bhandar. As per this voucher payment was made to Kendriya Bhandar @ Rs. 6150/ per spring post DA954 inclusive of installation charges but excluding sales tax.
Ex. DW1/B3 Cash Voucher dated 11/07/07 for making payment to Kendriya Bhandar. As per this voucher payment was made to Kendriya Bhandar @ Rs. 6150/ per spring post DA954 inclusive of installation charges but excluding sales tax.
Ex. DW1/B4 Cash Voucher dated 24/10/07 for making payment to Kendriya Bhandar. As per this voucher payment was made to Kendriya Bhandar @ Rs. 6150/ per spring post DA954 inclusive of installation charges but excluding sales tax.
84. The authenticity of the above said documents has not been disputed. There is nothing in the cross examination of the witness to discredit his testimony.
C.C. No. 19/11 66 of 116
85. The witness DW3 Sh. Tejender Singh who was working as Superintending Engineer, PWD, Govt. of NCT of Delhi during the period 200809 had proved following documents :
Ex. DW3/A Extra item statement no. 4 dated 30/03/07.
As per this statement, the cost of a spring post DA954 which was approved was Rs. 5490/ inclusive of cost of installation including epoxy and sales tax.
Ex. DW3/B Extra item statement no. 4 dated 16/03/07.
As per this statement, the cost of a spring post DA954 which was approved was Rs. 5903.50/ inclusive of cost of installation and sales tax.
Ex. DW3/C Extra item statement no. 4 dated 22/03/07. As per this statement, the cost of a spring post DA954 which was approved was Rs. 5500/ inclusive of cost of installation and sales tax.
C.C. No. 19/11 67 of 116 Ex. DW3/D Extra item statement no. 4 dated 15/10/07. As per this statement, the cost of a spring post DA954 which was approved was Rs. 5500/ inclusive of cost of installation and sales tax.
86. The authenticity of the above said documents has not been disputed. There is nothing in the cross examination of the witness to discredit his testimony.
87. The witness DW5 Sh. Mohan Lal, Executive Engineer, PWD, Govt. of NCT of Delhi had proved the following documents :
Ex. DW5/A1 Indent no. 244683/AE1 dated 23.06.08. As per this document the price of a spring post exclusive of VAT has been given to be Rs. 5000/.
Ex. DW5/A2 Indent no. 798423/AE2 dated 31.03.08. As per this document the price of a spring post exclusive of VAT C.C. No. 19/11 68 of 116 has been given to be Rs. 5000/.
Ex. DW5/A3 Indent no. 798424/AE2 dated 12.06.08. As per this document the price of a spring post exclusive of VAT has been given to be Rs. 5000/.
Ex. DW5/A4 Indent no. 9307/AE3 dated 12.02.08. As per this document the price of a spring post exclusive of VAT has been given to be Rs. 5000/.
Ex. DW5/A5 Indent no. 9310/AE3 dated 25.05.08. As per this document the price of a spring post exclusive of VAT has been given to be Rs. 5000/.
Ex. DW5/A6 Indent no. 9311/AE3 dated 18.06.08. As per this document the price of a spring post exclusive of VAT has been given to be Rs. 5000/.
C.C. No. 19/11 69 of 116 Ex. DW5/A7 Indent no. 009274/AE4 dated 27.05.08. As per this document the price of a spring post exclusive of VAT has been given to be Rs. 5000/.
Ex. DW5/A8 Indent no. 009275/AE4 dated 10.06.08. As per this document the price of a spring post exclusive of VAT has been given to be Rs. 5000/.
Ex. DW5/A9 Indent no. 009276/AE4 dated 10.06.08. As per this document the price of a spring post exclusive of VAT has been given to be Rs. 5000/.
Ex. DW5/A10 Final bill related to Agreement no.
64/EE/PWD213/0708. As per this document the price of a spring post inclusive of taxes and installation charges has been given to be Rs. 5500/.
Ex. DW5/A11 Final bill related to Agreement no.
43/EE/PWD213/0708. As per this document the price of a C.C. No. 19/11 70 of 116 spring post inclusive of taxes and installation charges has been given to be Rs. 5000/.
88. The authenticity of the above said documents has not been disputed. There is nothing in the cross examination of the witness to discredit his testimony.
89. The witness DW6 Sh. Chander Prakash working as UDC with PWD, Govt. of NCT, Delhi had proved the documents related to awarding of contract by inviting tenders for the installation of grade separators and fixing of road safety devices at Mangol Puri Chowk, Delhi. As per the agreement awarded Ex. DW6/A1, the contractor was to install spring post DA954 @ Rs. 5420/ inclusive of tax and installation charges.
90. The authenticity of the above said document has not been disputed. There is nothing in the cross examination of the witness to discredit his testimony.
C.C. No. 19/11 71 of 116
91. The witness DW8 Sh. M. C. Yadav who was working as Executive Engineer, PWD Division M211 in the year 200910 had proved the following documents :
Ex. DW8/B1 Cash Voucher dated 21/05/08 for making payment to NCCF. As per this voucher payment was made to NCCF @ Rs. 5500/ per spring post DA954 Exclusive of installation charges and taxes.
Ex. DW8/B2 Cash Voucher dated 02/07/08 for making payment to NCCF. As per this voucher payment was made to NCCF @ Rs. 5500/ per spring post DA954 Exclusive of installation charges and taxes.
Ex. DW8/B3 Cash Voucher dated 09/06/08 for making payment to NCCF. As per this voucher payment was made to NCCF @ Rs. 5500/ per spring post DA954 Exclusive of installation charges and taxes.
C.C. No. 19/11 72 of 116 Ex. DW8/B4 Cash Voucher dated 26/05/08 for making
payment to NCCF. As per this voucher payment was made to NCCF @ Rs. 5500/ per spring post DA954 Exclusive of installation charges and taxes.
92. The authenticity of the above said documents has not been disputed. There is nothing in the cross examination of the witness to discredit his testimony.
Supplying of Spring Post to Executive Engineer, NH Division, HP, PWD, Solan, Himachal Pradesh :
93. In the chargesheet it is alleged that by invoice no. 028 dated 16/05/08, the spring post were sold to Executive Engineer, NH Division, HP, PWD, Solan, Himachal Pradesh @ Rs. 2050/. The prosecution, however, has not placed any document on the record of this case to prove this fact. Nevertheless the accused no. 1 Sh. A. K. Saini and accused no. 2 Sh. C. P. Singh had examined DW7 Sh. Mahesh Singhal, C.C. No. 19/11 73 of 116 Executive Engineer, NH Division, HP, PWD, Solan, Himachal Pradesh who had deposed in the court that there was an application filed under RTI Act by accused no. 1 asking for the information with regard to the invoice bearing no. 028 dated 16/05/08 of M/s. Muskaan Safetly Solutions Pvt. Ltd. by which some spring posts and road studs were stated to have been supplied to Executive Engineer, NH Division, HP, PWD, Solan, Himachal Pradesh. Since he was also the PIO he had supplied the information Ex. DW7/B to the accused no. 1 Sh. A. K. Saini stating interalia that against the said invoice his division had not purchased any material from M/s Muskaan Safety Solutions Pvt. Ltd. In the cross examination by the Ld. PP for CBI he had stated that he had himself personally checked all the records that is monthly accounts vouchers relating to the payments made in the year 2008 after collecting the said documents from the Superintendent (Accounts) and had found that no payment had been made against the said invoice. He had added that there was also no order placed for supply of any such material.
C.C. No. 19/11 74 of 116
94. There is nothing in the cross examination of this witness which may discredit the testimony of this witness. On the basis of his testimony it can be said that the defence has been able to prove that the assertion made in the chargesheet with regard to having sold spring posts to Executive Engineer, NH Division, HP, PWD, Solan, Himachal Pradesh @ Rs. 2050/ is not only not correct but also without any basis.
Oral testimony of Ms. Jaskeerat Kaur PW13:
95. Although the witness PW3 Sh. G. S. Bhandari, General Manager, M/s Muskaan Safety Solutions Pvt. Ltd. in his oral testimony had claimed that the price of a spring post in the year 200708 were in the range of Rs. 1000/ to 2000/ but his testimony stands contradicted by the testimony of Manager Sales Coordinator PW13 Ms. Jaskeerat Kaur. She had in her testimony not only identified her signatures on the price list Ex. PW3/A where in the price of the spring post DA954 had been given as Rs. 4400/ but had also admitted that in her statement C.C. No. 19/11 75 of 116 Ex. PW13/DA recorded under section 161 Cr.P.C she had stated "On being asked I further state that MRP of spring post remains(sic) same during 200708. It is Rs. 4400/ per unit." Conclusion:
96. Thus on the basis of the above discussion what can be said is that the documents submitted by the prosecution are not reliable to claim that price of spring post varied from Rs.1000/ to 2000/ as alleged. On the contrary on the documents produced and admitted by the witness PW3 Sh. G S Bhandari, documents proved in the defence as well as the oral testimony of Ms Jaskeerat Kaur an employee of M/s Muskan Safety Solution Pvt. Ltd it can be said that the Price of a spring post ranged between Rs.4400/ to Rs.5000/. In other words Price taken while preparing the estimate was not exorbitant as alleged by the prosecution.
C.C. No. 19/11 76 of 116 Responsibility of Market No market survey
97. One of the allegations in this case is that as per the CPWD manual before making the estimate/analysis of rates the reasonability of rates should have been checked by conducting a market survey. It is alleged that in the instant case the accused no.2 Sh. Chanderpal Singh Assistant Engineer committed criminal misconduct by abusing his official position as a public servant since he did not conduct the market survey and made the analysis of rates on the basis of an old rate list of M/s Muskaan Safety Solutions Pvt. Ltd in order to increase the cost of work order to benefit the contractor in monetary terms.
98. It has been further alleged that as per the investigation carried out the estimate of Rs. 9,51,665/ was prepared by Sh. Sukhbir Singh Junior Engineer under the verbal directions of the accused no.2 Sh. Chanderpal Singh, Assistant Engineer. This estimate of Rs.9,51,665/ was prepared by Sh. Sukhbir Singh J.E on the basis of analysis of rates. The estimate was signed C.C. No. 19/11 77 of 116 by Sh. Sukhbir Singh, J.E, Sh. Chanderpal Singh, A.E accused no.2, Sh. Anil Kumar Saini, Executive Engineer, accused no.1 and one Sh. Mahender Kumar Draftsman on 24.9.2007.
99. According to the accused persons first of all the primary responsibility of preparing the estimates was not of Assistant Engineer I.e accused no.2 or that of the Executive Engineer accused no.1 but that of Junior Engineer himself I.e Sh. Sukhbir Singh and secondly the rates were fixed on the basis of the market survey which were independently checked in the office of the Executive Engineer and thereafter in the office of the Chief Engineer by a separate Division meant only to check the reasonability of rates and they too had found the rates to be justified / reasonable.
100. One would find from the complaint Ex. PW14/A ( D1) that this complaint was not only directed against the Accused No. 1 A. K. Saini AE and Accused No. 2 Sh. C P Singh but also against Sh. Sukhbir Singh JE. His name also appears in the C.C. No. 19/11 78 of 116 FIR. He has,however, been not arrayed as an accused in this case. If he has not been arrayed as an accused on the ground that he had prepared the estimates under the verbal directions of the Accused No. 2 Sh. C P Singh AE, as alleged in the chargesheet, then he was the vital witness for the prosecution because it was he only who could have deposed he had prepared estimates not on any market survey but on the verbal directions of Accused No. 2 C P Singh, instead proving this fact in a circuitous way that the prevalent market was not Rs.4400/ per piece but in the range Rs.1000/ to Rs. 2000/ had there been any market survey it could have been easily discovered. For no explicable reason Sukhbir Singh JE has not even been cited as witness in this. In the absence of this witness I am of the view that the prosecution cannot prove the allegations that the estimate was prepared by Sh. Sukhbir Singh on the " verbal directions" of the Accused No. 2 Sh. C P Singh.
101. It was submitted by the Ld Defence Counsel that the market survey if any was the job of the Junior Engineer while C.C. No. 19/11 79 of 116 preparing the estimates and not of the Accused No. 2 Sh. C P Singh or Accused No.1 Sh. A K Saini. Besides it the rates were not to be blindly accepted but there reasonablity was required to independently assessed in the office of the Accused No. 1 Sh A K Saini, draftsman and also in the office of the Chief Engineer by AE Planning.
102. I have not been able to find any specific evidence to prove that preparation of estimates was the exclusive job of the Junior Engineer or not by conducting a market survey. This,however, seems to be correct that it was job of the J.E. to prepare the estimates by conducting market survey, considering what has been stated in the chargesheet. It is stated therein "
Investigation has reveled that as per the directions of C P Singh, AE, the estimate was prepared by Shukhbir Singh JE on the basis of the analysis of rates." Thus the responsibility of market survey could also be his.
C.C. No. 19/11 80 of 116
103. One also gather it from the testimony of expert witness Sh.
Des Raj, a witness examined as an expert on procedure by the prosecution. He had stated in the crossexamination on behalf of the Accused No. 2 Sh. C P Singh " Normally it is the junior engineer who prepares the estimates of the maintenance work."
104. There is also another connected issue as to how and to what extent, in practice, this market survey is required to be conducted. In the crossexamination the PW9 Sh Des Raj examined as an expert on procedure and deposed:
" Q.: Is it not correct that in case there is a work which relates to nonschedule items then in that case as a matter of practice if there are rates available of such items in reference to any work of similar nature which may have been awarded earlier, is adopted?
A.: Though there is nothing specific laid down in he Manual in this regard, but as a matter of practice it is so done.
C.C. No. 19/11 81 of 116
Q.: Is there any procedure whereby in a case
where the tender are invited by the other
government departments such as DDA or NDMC or MCD, such departments are required to send the details of the contracts awarded relating to the said tenders to PWD?
A.: There is no such procedure."
105. Thus when it comes to so called market survey in practice it generally remains confined to earlier such contracts being awarded by the department itself. To illustrate when may also refer to the testimony witness PW 16 and 17 once again. It has already been noted above that market value was determined for preparing the "Analysis of Rates" by taking the rates form the previous work of NDMC itself of installation of rates at "Willingdon Crescent to 11 Murty".
106. The superior officers i.e. Accused No.1 Sh. A K Saini and the Accused No.2 Sh. C P Singh could only be saddled with the responsibility of checking the reasonability of rates and nothing C.C. No. 19/11 82 of 116 more. If the prosecution wanted to establish that the it was the responsibility of the Accused No.1 and Accused No.2 to conduct market survey in the sense of going around the market to find the market rate of spring post then it was for the prosecution to so prove but there is no evidence lead to prove this fact.
107. As far as the crosschecking the resaonability of rates is concerned. It has already come on record that they reasonablity of rates had been checked and the estimated rates were found to be not unreasonable.
108. Witness PW 6 Sh. D P Gupta who was posted as Engineering Officer ( EO) with the Chief Engineer PWD ( who was the authority to accept or reject the quotation) and whom job was look into the aspects of urgency and also reasonability of rates had deposed :
"Q.: Would it be correct to say that while preparing the Scrutiny Report you had not only gone through the note submitted by the C.C. No. 19/11 83 of 116 Executive Engineer along with other documents but had also independently verified the rates of the spring posts referred to by him in his note by way of examining the similar contracts awarded in the part by PWD?
A.: It is correct. I had examined the contracts which had been awarded by the PWD in the surrounding areas which were already in progress relating to the rates of the spring posts."
109. He had further stated in the crossexamination on behalf of the accused Sh. C.P.Singh :
"Q.: Is it correct that in your Scrutiny Note Ex.PW6/A3 at point X4 you had noted that you had found the rates of the spring posts to be quite reasonable?
A.; It is correct."
110. There was one witness namely Sh. Jeet Ram Raghuvanshi PW12 examined as an expert witness on the C.C. No. 19/11 84 of 116 procedural aspect of inviting spot quotations and subsequently issuing work orders. This witness was posted as Executive Engineer with PWD Division M123. In the crossexamination this witness had emphasized that the reasonability of rates are required to be checked by the office of the competent authority (In this case Executive Engineer). In case the rates are found on the higher side or the justification is found to be not proper or there is no urgency involved, the competent authority is within its powers to not to issue the work order. He had deposed in the crossexamination on behalf of accused no.1 Sh. A.K. Saini :
"It is correct that the rates are checked by the competent authority in his office. (Vol.) In fact it is his duty to check it. In case it is found that the rates are on the higher side or the justification is not proper or it was a case not involving any urgency making out the case for inviting spot quotations, the competent authority is within its powers to not to issue the work order."
C.C. No. 19/11 85 of 116
111. There are there are two inferences which can be drawn from the above statement first the competent authority was not misled into accepting the proposal with regard to the awarding of work order forwarded by Accused No.1 Sh. A K Saini and Accused No. 2 Sh. C P Singh and second that the even on independent verification the rates of spring post were not found to be exorbitant as alleged in this case.
Not Reputed Firm :
112. As per the manual spot quotations are to be invited from "Reputed and Established" agencies. It is stated in para 5.4.1 (2) of the Manual :
"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 daytoday fluctuation in its rate in the market, spot quotations may be collected from reputed and established agencies dealing with C.C. No. 19/11 86 of 116 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."
113. It is alleged in charge sheet :
"None of the three firms from which spot quotations were called are reputed firms dealing in supply of spring posts."
114. It is a question very difficult to answer. There are no parametres laid down anywhere on the basis of which an authority may reach a conclusion that a particular firm is "reputed and established". Some times there are clear indicators available to reach such a conclusion and sometimes they are not. The question of "reputed and established" is also relatable to the nature of work involved and its scale. It is quite possible that a very reputed and established firm may show no inclination to undertake jobs which are at a low scale. In the C.C. No. 19/11 87 of 116 negative terms it can also mean a firm not carrying a good reputation for the reason that it may have been black listed by one Department or the other.
115. Thus, in my opinion in cases like this, the question of "reputation" is a question of fact which the prosecution was required to establish by leading some evidence. There is absolutely no evidence led by the prosecution on this aspect that as to why the prosecution thought that the firms who had submitted the quotations were not "reputed".
116. The Ld. Defence Counsel from the side of the accused no. 2 Sh. C.P. Singh had put one question to the witness PW15, the Chief Engineer Sh. O.P Gadyan as to whether a contractor enlisted with CPWD would qualify as a reputed contractor or not. The answer of the witness was noncommittal. The question and the answer read as under :
"Q.: Would it be correct to say that a contractor who is enlisted with CPWD can be described as "Reputed Contractor"?
C.C. No. 19/11 88 of 116
A.: I have no comments to make on the
issue."
117. In any case as noted above that burden to prove that none of the firms who had submitted the quotations, were not "reputed" was on the prosecution. Incidentally one may note that the charge sheet nowhere alleges that these firms were not established firms. The only allegation is that they were non reputed firms dealing in supply of spring posts. No witness has been examined to prove this fact that the three firms who had submitted the quotations were not "reputed" firms. I would like to add that neither the testimony of witness Inspector Prem Nath PW18 nor testimony of the witness PW19 Inspector Raj Singh reveal that they had even conducted the investigation from this angle.
Calling of Spot Quotations without notice being posted on the Notice Board :
118. One of the submissions made by Ld. PP for CBI is "there C.C. No. 19/11 89 of 116 is no note or document in the PWD files to show that the accused had even put any noting in the file or put the "notice" on the Notice Board with regard to inviting the spot quotations concerning the work order in question."
119. This is a case for the first time setup by the prosecution during the course of the arguments. There is neither any such allegation in the charge sheet nor there is anything stated in this regard by any of the witnesses including the Investigating Officers. It may be true that in the files produced before this Court there is no document reflecting that there was any written notice put up on the Notice Board or on the web inviting spot quotations. First of all it may be noted that it is not uncommon for CBI to collect a large number of documents during the course of the investigation and may place before the Court only those documents it may rely upon. Thus, mere absence of such record in the files produced before the Court by itself is not sufficient to jump to such a conclusion. Secondly, more than anything else, the accused cannot be taken by surprise at this C.C. No. 19/11 90 of 116 stage without first setting up such a case against them. If such a case is allowed to be setup at this stage, the accused persons would have no opportunity to defend themselves.
Purchase of Spring Post from nonexisting firm :
120. It is not the case of the prosecution that the spring posts were not installed of the description and brand for which the work order was given, but it is being alleged that the contractor accused no.3 Sh. Amrish Thukral proprietor of M/s Alfa Traders had purchased the "spring posts" from a "nonexisting firm".
121. I would like to point out at the outset that as far as the accused no.1 Sh. A.K. Saini EE and accused no.2 Sh. C.P. Singh AE I.e the public servants were concerned, it was not in their domain to make further inquiries as to from where the contractor was procuring the spring posts. In any case I have examined this angle further. As per the case of the prosecution accused no.3 Sh. Amrish Thukral had purchased the spring C.C. No. 19/11 91 of 116 posts to be installed from one firm by the name of "M/s Cosmic Sales Agency" Shop No.1, Near Bus Stand, Aaya Nagar, New Delhi. By examining the witness PW5 Sh. Satpal Singh, a postman of the area, the prosecution has tried to show that there was no such address in Aaya Nagar. There is, however, no document placed on record in terms of any receipt or agreement between accused no.3 Sh. Amrish Thukral proprietor of M/s Alfa Traders and M/s Cosmic Sales Agency showing that this indeed was the address of M/s Cosmic Sales Agency. I am sure if the Investigating Officer had collected the said receipt and placed it on record, it would have shown the Sales Tax number etc of M/s Cosmic Sales Agency which would have given a definite idea if such a firm was "nonexistant firm". I would like to also add that the Investigating Officer had collected one Statement of Account of M/s Alfa Traders showing payments being made by cheque to M/s Cosmic Sales Agency.
I find it difficult to understand why the Investigating Officer could not have tracked the account of M/s Cosmic Sales Agency in whose favour the accused no.3 had issued the cheque for C.C. No. 19/11 92 of 116 payment. It would have also revealed not only its address but the documents submitted in support of the said address. There is, however, no such effort made in this direction. I am of the view that a mere statement of a postman that a particular address was not in existence according to him cannot be a clinching evidence to claim that "M/s Cosmic Sales Agency" was nonexistent firm.
122. As has been noted above, that the work had actually been carried out by accused no.3 Sh. Amrish Thukral proprietor of M/s Alfa Traders, it was confirmed by PW10 Sh. Vijender Prasad, JE and PW11 Sh. Brij Mohan JE who had taken the measurements of the work carried out and noted the same in the Measurement Book Ex.PW10/A and Ex.PW10/B respectively soon after the work was completed and the payment was released I.e on 8.10.2007. Not only that the said spring posts were found to be installed even after almost two years when Inspector Prem Nath, Investigating Officer, had conducted the inspection of the spots where the spring posts C.C. No. 19/11 93 of 116 were installed and prepared the inspection report Ex.PW18/A with annexures PW18/A1 to A6 on 7.7.2009.
123. It is apparent that these spring posts could not have been installed without being purchased from somewhere. The question that spring posts were purchased from a non existent/fake entity would have assumed significance if the case of the prosecution had been that no spring post had been installed at all at any point of time and such completion of work was shown only on paper.
Copy of the stock register
124. In his testimony PW3 Shri G.S. Bhandari had referred to a computerized print out of a stock/sales statement w.e.f. 01.04.2007 to 31.03.2008 Ex. PW3/E. In order to show that during the said period of 01.04.2007 to 31.03.2008 they had not sold any spring post to M/s Alpha Traders during the period 200708 as per the entries in the said register. In his testimony it C.C. No. 19/11 94 of 116 was stated by Shri G.S. Bhandari PW3 that stock/sales statement is a computer generated statement which had been signed by him and handed over to the Investigating Officer. He had described it to be a computerized statement meaning thereby the stock/sales record was being maintained in the computer system of M/s Muskan Safey Solutions Pvt. Ltd. If it was so, then it was necessary that this statement should have 1 been accompanied by a certificate as referred U/s 65B of the 1 Section 65 B - Admissibility of electronic records. (1) xxxx (2) The conditions referred to in subsection (1) in respect of a computer output shall be the following, namely :
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
xxxxxxxxx (4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in subsection (2)
C.C. No. 19/11 95 of 116
Indian Evidence Act which provides that any information contained in an electronic record which is printed on a paper shall be admissible in evidence only if it is accompanied by a certificate by a person referred to therein.
125. It is not the case of the prosecution that the Investigating Officer had taken any certificate in support of the said computerized statement. The said document was exhibited subject to any just objection of the defense. Since, computerized statement is not accompanied by a certificate under section 65B of the Indian Evidence Act it is not admissible in evidence.
126. In any case it is not the case of the prosecution that the Accused no. 3 i.e. the Proprietor of M/s Alfa Traders could not have procured the spring post manufactured by M/s Muskan relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
C.C. No. 19/11 96 of 116 Safety Solutions Pvt. Ltd. from any other source it is also not the case of the prosecution that such spring post were not available in the market and could have only been purchased from M/s Muskan Safety Solutions Pvt. Ltd. I also consider this to be a matter of not much of concern as it is not the case of the prosecution that said spring post DA 954 had not been installed by Accused no. 3 in fact they were found to be installed in a joint inspection carried out by the Investigating Officer of which PW3 Shri G.S. Bhandari was also a part, as already stated above
127. In my opinion first of all the said stock/sales statement is not admissible in evidence and secondly even if it were so it would have been of no consequence.
Dinesh Thukral one of the party submitting spot quotations is the real brother of accused no.3 Sh. Amrish Thukral proprietor of M/s Alfa Traders.
128. One of the allegations leveled in the submissions made by Ld. PP for CBI is that the testimony of the witness PW4 would C.C. No. 19/11 97 of 116 show that he had submitted spot quotations and it would also reveal that he is the brother of accused no.3 Sh. Amrish Thukral. According to him it is a clear indication that there had been manipulation of rates of spring posts in this case as at the time of submitting the quotation accused no.3 would have known as to what rates had been quoted by PW4 Sh. Dinesh Thukral as both of them are real brothers. The precise submission made by him reads as under :
"The testimony of the witness Shri Dinesh Thukral would show the element of conspiracy involved in this matter in awarding of the work order. Shri Dinesh Thukral is none other than the brother of the accused Shri Amrish Thukral, Prop. of M/s Alfa Traders. Both the brothers had submitted quotations. From the addresses given by them it would have been clear to the other accused persons that in the real sense they are not competitors and the quotations were manipulated by them in away that the work could be awarded to the accused Shri Amrish Thukral."
129. Let me put it again here that this also is the case put up by the prosecution for the first time. In fact this angle was C.C. No. 19/11 98 of 116 discovered for the first time at the time when the statement of accused no.3 Sh. Amrish Thukral was being recorded under Section 313 Cr.P.C after noticing that the name of the father of Sh. Dinesh Thukral PW4 and the name of the father of accused no.3 Sh. Amrish Thukral is the same and their residential address is also the same. The fact remains that the charge sheet is completely silent about it. This angle was neither touched in the statement of PW4 Sh. Dinesh Thukral recorded under Section 161 Cr.P.C nor explored in his examination in the Court. In fact his testimony is broadly to show that the market value of spring post was Rs.2500/. There is another way of looking at it that if Sh. Dinesh Thukral was the coconspirator, he should have been an accused in this case and not witness. His testimony under Section 161 Cr.P.C reads as under :
"I am as above. On being asked I state that I am working as Contractor since last 23 years. I came to know from word of mouth about the work relating to installation of spring post in lane dividing at right turn at Shalimar Bagh I & II, Ashok Vihar (T Point), GT Karnal Road, Near Telephone Exchange, Mall C.C. No. 19/11 99 of 116 Road & Road No. 37, near Chandini Restaurant. I went to CRM Division M311, Road No. 43, Sainik Vihar, New Kaishav Mahavidyalaya, Delhi34. On enquiring, Srhi C.P. Singh, Asstt. Engineer, M311 gave me the stationary for filling the quotation and accordingly I fill the rate of Rs. 4,325/ per spring post and drop the quotation in a box meant for the purpose.
Today, I have been shown the quotation for providing and fixing of spring posts in which I have quoted the rat as Rs. 5,325/ per spring post. I state that the rate in this quotation has been filled by me and the same was also signed and I identify my handwriting and signature.
On being asked, I state that I fill the rate after making a market survey.
As per market survey, rate per piece of spring post was about Rs. 2,500/ which was excluding fixing, transportation, generator, epoxy, nut bolts, tax, etc. I state that I have to make provision for any mishappening which may occur to any labour int he work place as some compensation has to be paid to the labour in that case, therefore, I quoted a rate of Rs. 5,325/ after making provisions for the above said heads / expenditure.
C.C. No. 19/11 100 of 116 I state that, at the time of opening of tender, I was present and sealed envelopes containing quotations were opened by Shri C.P.Singh, Asstt. Engineer and the lowest quotations were of M/s Alpha Traders, which quoted the lowest rate at Rs. 5,250/ per spring post and the contract for fixing the spring post was given to M/s Alpha Traders. "
130. Further his entire statement in the Court reads as under :
"At present I have a trading business of stocks and shares. I have an office at Shop No. 2, Plot no.284, Pocket E16, Sector8, Rohini, Delhi.
In September, 2007 I was working as a Contractor and had a business by the name of M/s D.B Reflections. I was in the business of Road Signs Installations etc. (At this stage document part of D4 is shown to the witness.) I can identify this document. It is a quotation which was submitted by me to Assistant Engineer, M311, PWD at Badli Road. It bears my signature at point A. The rates mentioned in this quotation at point X is in my hand writing. The document is now Ex.PW4/A. C.C. No. 19/11 101 of 116 I was not awarded the tender as my rates were not found to be lowest. The Contract was awarded to M/s Alpha Traders. The rates quoted by M/s Alpha Traders were lower than my rates. At the time of opening of the quotations, I was present.
(At this stage document D6 page no.26 is shown to the witness.) I can identify my signatures appearing on this page at point X. The proceedings at page no.26 are now Ex.PW4/B. XXXX by Sh. Yogesh Verma Counsel for accused Sh. A.K Saini.
It is correct that I had submitted the quotations after confirming the market rates of the Spring Posts referred to in the quotation I had submitted.
XXXX by Sh. Manish Kumar Counsel for accused Sh. C.P. Singh.
I had submitted a number of quotations in the year 200708. I was, however, not awarded any tender. I know Sh. G.S Bhandari who had a C.C. No. 19/11 102 of 116 firm by the name of M/s Texla Plastics. He also has a firm by the name of M/s Muskan Safety Solutions.
I had received a telephone call from the CBI office and thereafter I had visited the CBI office. I do not remember the date or the month, but it was perhaps in the year 2009 when I had received a call from CBI. I had not received any written notice from CBI. I had not carried any document with me.
XXXX by Sh. R.L Goel Counsel for accused Sh. Amrish Thukral.
Nil. (opp. Given)."
131. What has been submitted by the Ld. Prosecutor may be true that since PW4 Sh. Dinesh Thukral and accused no.3 Sh. Amrish Thukral are real brothers, in all likelihood they would have submitted the spot quotations in consultation with each other and suitably manipulating the rates so that accused no.3 Sh. Amrish Thukral may get the work order. It was, however, required to be so stated precisely in the chargesheet and also C.C. No. 19/11 103 of 116 by the witnesses examined in the Court so that the accused no. 3 would have got opportunity to meet this allegation.
132. There is another aspect to it which is of more importance in this case and that is as to whether accused no.1 Sh. A.K. Saini EE and accused no.2 Sh. C.P. Singh AE, the public servants, knew it that the accused no.3 and witness PW4 are real brothers or had any method of knowing it at the time the spot quotations were submitted by them or at the time they were opened so as to reach the conclusion that they were part of the conspiracy which may have been entered into between accused no.3 Sh. Amrish Thukral and witness PW4 Sh. Dinesh Thukral before submitting the spot quotations. I have examined the spot quotations submitted by the witness PW4, Ex.PW4/A, and also the spot quotation submitted by the accused no.3 Sh. Amrish Thukral. I find that Sh. Dinesh Thukral PW4 had submitted the spot quotation Ex.PW4/A in the name of M/s DB Reflections with the address E16/284, Shop No.2, Sector8, Rohini, Delhi85 signed as 'Dinesh'. The spot quotation submitted on C.C. No. 19/11 104 of 116 behalf of accused no.3 Sh. Amrish Thukral is in the name of M/s Alfa Traders with the address 203, SF, RG Complex, Sector8, Rohini Delhi110085 signed by him as "A.Thukral". I am of the view that on the basis of the above information it could not have possible to find out if Sh. Dinesh Thukral PW4 was the brother of the accused no.3 Sh. Amrish Thukral.
133. In any case, it has already been noted above, in the absence of any specific allegation in this regard or any evidence being led from this angle just on the basis of discovery being made at the end of the trial it would not be appropriate to infer that accused no.1 Sh. A.K. Saini and accused no.2 Sh. C.P. Singh were part of any conspiracy which may have been entered between the accused no.3 Sh. Amrish Thukral or PW4 Sh. Dinesh Thukral. If there was any conspiracy between them without the knowledge of accused no.1 Sh. A.K. Saini and accused no.2 Sh. C.P then they would be more in the position of victims than colaborators. And also if it was so it could have been a matter of separate trial against accused no3 Sh. Amrish Thukral and PW4 Sh. Dinesh Thukral.
C.C. No. 19/11 105 of 116
134. In the above given circumstances, I feel that it would be unjustified to infer anything against the accused persons on the basis of the above discovery of fact.
Sanction:
135. There is a submission made on behalf of the defence that the sanction in this case had been granted by the Competent Authority i.e. PW1 Sh. C. S. Prasad, DG, CPWD in respect of the accused no. 2 Sh. C. P Singh, AE and by the Govt. of India in respect of the accused no. 1 Sh. A. K. Saini, EE under the pressure of CBI. It was submitted that the competent authority and the vigilance department of CPWD had been consistently of the view that no criminal case was made out against the accused persons. In fact the permission to prosecute the accused persons had been declined twice but still it was continued to be pressurize by CBI to accord sanction for their prosecution and ultimately the competent authority succumb to the pressure of CBI.
C.C. No. 19/11 106 of 116
136. I have seen the cross examination of the witness PW1 Sh. C. S. Prasad being conducted by the defence on these lines. The questions put to the witness who had given the sanction of the prosecution of accused no. 2 Sh. C. P. singh and the answers given by him are being reproduced as under :
Q. Would it be correct to say that this incident relates to the year 2007 and for the first time in this case the file was put up for seeking sanction for prosecution in the year 2010 and it was declined on 06.05.2010?
Ans. First of all I would like to clarify that I was not in picture on 06.05.2010. I had taken over from 01.01.2011 as the DirectorGeneral, CPWD. However, the fact on the record exists that as per report dated 06.05.2010, the then DG had proposed to the Ministry of Urban Development with copy to CVC that the Disciplinary Authority may not consider prosecution sanction, however, RDA was proposed against him for procedural lapses.
I have today with me the copy of said order dated 06.05.2010. (Ld. Defence counsel C.C. No. 19/11 107 of 116 submits that this copy may be taken on record.). The copy is accordingly taken on record and exhibited as Ex. PW1/DX1 (Original brought by an official from Vigilance Unit of CPWD, summoned for today, seen and returned.) Q. Would it be correct to say that the file was put up before you on 06.01.2011 and this time again you had declined to accord sanction for the prosecution of Shri C.P. Singh? (The witness may go through the record, which has been summoned today to answer the question.) Ans. As per the facts on record the file was put up by CVO on 06.01.2011, which had been seen by me on 14.01.2011 and then a DO letter was sent under my signatures to Shri R.C. Mishra, AS & CVO of Ministry of Urban Development enclosing a report dated 06.01.2011 from CVO. The recommendations in the report had been that there is no case of prosecution sanction against these officials including Shri C.P. Singh except that officials involved in RC0064 dated 26.11.2009, which is not this case, so far as this case is concerned recommendations was that RDA may be initiated. Based on this input from the CVO in my above letter written to AS & CVO, Ministry of Urban Development. (At this stage C.C. No. 19/11 108 of 116 the copies of the relevant record summoned for today, are taken on record of this case i.e. the letter of the witness written to AS & CVO as well as the report of the CVO, CPWD.) The same are now exhibited as Ex. PW1/DX2A and DX/2B.
Q. Can you tell the Court if during the period from 06.01.2011 when the above matter was placed before you and till finally on 08.8.2011 the sanction for prosecution was accorded was there any written material relating to the facts of this case, brought to your notice other than what had already been placed before you on 06.01.2011?
Ans. A reference was already continuing between CPWD and CBI for additional information and a letter dated 08.09.2010 was sent to DIG, CBI to send all evidences and a further reminder dated 30.09.2010 was sent to DIG Mr. S.K. Palsania for documents giving details. Even the CVC wrote to CVO, CPWD on 27.10.2010 to expedite report. The DIG, CBI, replied vide letter dated 11.11.2010 that as per Chapter 7 para 2.3 of Vigilance Manual of CVC sanctioning authority is required to only see whether prima facie case is made out or not.
Sanctioning Authority was not to act like a C.C. No. 19/11 109 of 116 Judge but only to see whether prima facie on the basis of the material placed before him any case is made out or not. It also referred some judgment of Hon'ble Supreme Court and Punjab & Haryana High Court. This letter also conveyed that according of sanction is only an executive function and not judicial function. In reply to letter dated 17.01.2011 the Ministry of Urban Development sent a letter dated 18.05.2011 to DG, CPWD forwarding a copy of OM dated 01.04.2011 of CVC where CVC agreed to give prosecution sanction as required by CBI. Thereafter the prosecution sanction was accorded on 27.07.2011 and the sanction order was issued on 08.08.2011. (Copies of the above correspondence are taken on record from the files summoned.) The same are now exhibited as Ex. PW1/DX3A and DX3B. There was no new evidence which was placed before me besides the material, which had already been placed by CVO, which I have referred above.
The letter dated 08.08.2011 i.e. sanction order was based on final outcome of overall factual as well as legal provisions guiding the executive function of the sanctioning authority.
C.C. No. 19/11 110 of 116
137. I have examined the report of the Chief Vigilance Officer of the CPWD of 06/01/2011 Ex Pw2/ X3 ( Ex PW1/DX 2B) . The report is fairly in detail and there is a specific view expressed therein that though there had been a case of initiating some departmental enquiry against the accused no. 1 and 2 herein but certainly they cannot be said to have committed a criminal offence including the offences under the Prevention of Corruption Act.
138. It may be so that there had been serious differences between the CBI and the department of accused no. 1 and 2 as to whether there was a case made out for according sanction of the prosecution under section 19 of Prevention of Corruption Act and it is also possible that this difference of opinion may have lasted for a long time but what is material is that as to whether finally the view taken by the competent authority was taken by it independently. In the process of taking administrative decisions it is quite possible that an authority may change its views, even take a U turn, accepting the point of view of the other. That by C.C. No. 19/11 111 of 116 itself is not sufficient to conclude that the administrative authority was not working independently or permitting its discretion to be fettered by others. I have seen the further cross examination of the witness PW1, it only shows that he accommodated the views of CVC and CBI in this matter and not necessarily abdicating its discretion. The same reads as under :
"Q. Would it be correct to say that although you were not inclined to accord sanction in this case but ultimately you had accorded the sanction on the basis of directions you had received from the Ministry of Urban Development and CVC?
Ans. I would like to say that the sanction order was passed in the overall circumstances including taking into account the fact that the DG was to take only a prima facie view, the consideration also included the letter received from the Ministry, which I have referred above. "
139. Thus in my view the sanction for the prosecution of accused no. 2 Sh. C. P. Singh according vide sanction order Ex.
C.C. No. 19/11 112 of 116 PW1/A cannot be faulted. Similarly the sanction Ex. PW2/A conveyed b PW2 Sh. Raj Kumar Varshney, Under Secretary, Ministry of Urban Development, can also not be faulted. He had deposed in the examination in chief as under :
"We had placed before the Minister all the documents etc. which were received from CBI, the recommendations from CPWD as well as CVC and our own analysis of facts. The Minister had gone through the same before according the sanction. The sanction order was signed by me after the Minister had accorded the sanction for the prosecution of Shri Anil Kumar Saini under the provisions of Prevention of Corruption Act. The Minister had the delegated powers of the President of India to accord sanction. I had the delegated powers to authenticate the orders on behalf of the President."
140. There is a lot of emphasis made by the defence in this case that draft sanction had been sent by the CBI. I am of the view that a draft sanction order need not necessarily be viewed C.C. No. 19/11 113 of 116 with suspicion. Had it been a case that the draft sanction order was alone sent by CBI and it was signed on dotted lines by the competent authority the situation would have been different. If the competent authority states that it had also received the material alongwith the draft sanction order that it can be expected that the competent authority would not get swayed by the draft sanction order but would go through the material supplied with the draft sanction order. It is not in dispute in this case that the CBI had supplied the material to the competent authority to accord sanction though as it may appear at one stage the competent authority was of the view that the material supplied was not sufficient to accord sanction . It is not just this even the CVC was in picture and it had made the recommendation for according sanction. Thus it cannot be the case that since there was a draft sanction order also supplied to the competent authority the competent authority had according the sanction without going through the other material supplied i.e. the material collected during the investigation.
C.C. No. 19/11 114 of 116
141. In view of the forgoing discussions I conclude that it cannot be said that the sanction accorded for the prosecution of either accused no. 1 or accused no. 2 was without the application of mind.
Order:
142. In view of the forgoing discussion and the facts and circumstances of the case, I conclude that the prosecution has not been able to prove the offences punishable under section 120B read with Section 420 IPC read with Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 against all the accused. The prosecution has also not been able to prove that the Accused No. 1 Shri A.K. Saini and Accused No. 2 Shri C.P. Singh have committed the offence under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 as charged.
C.C. No. 19/11 115 of 116
143. In view of above, I am acquitting all the accused persons as charged. Their bail bonds are cancelled. Sureties are discharged. Their bail bonds furnished under section 437A Cr.P.C. still remain in force for a period of six months subject to any order which may be passed by the appellate Court in case of an appeal being preferred by CBI against the judgment of this Court.
File be consigned to Record Room.
Announced in the Open Court ( L. K. GAUR )
on 31st day of January, 2014 Special Judge, P.C. Act
(CBI09), Central District,
Delhi.
C.C. No. 19/11 116 of 116