Indian Kanoon - Search engine for Indian Law

Delhi District Court

Cc No.265/19 Cbi vs . Ravinder Singh & Anrs. Page 1 Of 67 on 18 October, 2019

IN THE COURT OF ANURAG SAIN, SPECIAL JUDGE (P C ACT)
    (C B I)­11, ROUSE AVENUE COURT COMPLEX, DELHI


CC No.: 265/19 (Old CC No.: 8560/16)
FIR No.: RC DAI 2012­A­0020­CBI/ACB/New Delhi dated 29.06.2012
U/s 120­B read with 420,471 read with 468,477­A IPC &
U/s 13(2) read with 13 (1)(d) of PC Act, 1988.
CNR No.: DLCT11­001064­2019

      Central Bureau of Investigation

      Versus

   1. Ravinder Singh (Accused No.1)
      S/o Sh. Ameer Singh
      R/o Flat No.292, Sector­18B,
      Shree Awas Apartment (L&T Flat),
      Dwarka, New Delhi­110074

      Permanent address:­
      H. No.11/89, Nehru Park,
      Tehsil Rohtak Road,
      Bahadur Garh, Haryana

   2. Pawan Kumar Ghera @ P.K. Ghera (Accused No.2)
      S/o Sh. R.K. Ghera
      R/o J­42, Lajpat Nagar Part­II,
      New Delhi

   3. Rajiv Kumar Bansal (Accused No.3)
      Proprietor of M/s Pioneer Drilling Pvt. Ltd.
      S/o Sh. N.K. Bansal
      R/o 228, Sector­4, Vaishali,
      Ghaziabad.

CC No.265/19             CBI Vs. Ravinder Singh & Anrs.   Page 1 of 67
       Office C57A, Pocket J&K,
      Dilshad Garden,
      Delhi.


Date of FIR                      :     29.06.2012
Date of filing of charge­sheet   :     18.12.2015
Arguments concluded on           :     11.09.2019
Date of Judgment                 :     18.10.2019

Appearance
For Prosecution           : Sh. B.K. Singh, Ld. Senior P.P. for CBI.
For accused persons       : Sh.Mohd. Qamar Ali, Ld.Counsel for accused
                          no.1 Ravinder Singh and accused no.2 Pawan
                          Kumar Ghera @ P.K. Ghera and Sh. Rajeev
                          Sharma, Ld.Counsel for accused no.3 Rajiv
                          Kumar Bansal.

JUDGMENT

FACTUAL MATRIX OF THE PROSECUTION CASE IN BRIEF

1. All the accused persons namely Ravinder Singh (A­1) Junior Engineer (JE), Pawan Kumar Ghera @ P.K. Ghera (A­2), the then Zonal Engineer both from Delhi Jal Board (DJB) and Rajiv Kumar Bansal (A­3) Proprietor of M/s Pioneer Drilling Pvt. Ltd. have been charge­sheeted by the CBI for the offences punishable under sections 120­B read with 420,468,471,477­A IPC & under sections 13(2) read with 13 (1)(d) of The Prevention of Corruption Act, CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 2 of 67 1988 on the allegations that :­

(a) A Contract Agreement (CA) No.08/2006­07 vide work order no.15 dated 27.05.2006 was executed between Delhi Jal Board, Delhi Government through its Chief Executive Officer and M/s Pioneer Drilling Pvt. Ltd. for re­boring 3 Nos. of tubewell of 160 meters deep tube­well in rocky strata in Mahipal Pur, Ward No.56, New Delhi under South West­ II and as per the Contract Agreement, Johnson Pipes were required to be used by M/s Pioneer Drilling Pvt. Ltd.

(b)The work regarding re­boring of aforesaid tube­well was looked after by Junior Engineer Ravinder Singh (A­1) and also supervised by Zonal Engineer Pawan Kumar Ghera @ P.K. Ghera (A­2) and Executive Engineer Radhey Shyam respectively.

(c) For re­boring of tube­well located at Mahipal Pur Mata Chowk, Rajiv Kumar Bansal (A­3), Proprietor of M/s Pioneer Drilling Pvt. Ltd. used copy of Invoice no. BW/101/2006­07 dated 21.07.2006 of M/s Bharti Waters Pvt. Ltd. bearing signatures of Ravinder Singh (A­1) and Pawan Kumar Ghera & P.K. Ghera (A­2) and total amount of the aforesaid Contract Agreement was transferred by Delhi Jal Board through EFT No.31 dated 17.10.2006 in the name of M/s Pioneer Drilling Corporation maintained at Bank of Maharashtra whose authorized signatory is Rajiv CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 3 of 67 Kumar Bansal (A­3). However, during investigation, the aforesaid invoice was found to be fictitious as Sh. Kamal Kumar Aggarwal, Director of M/s Bharti Waters Pvt. Ltd. produced the true copy of the invoice which was issued on 20.06.2006 to M/s Borewell, House No. 74, Fatehpur Beri, New Delhi and stated that the aforesaid invoice dated 21.07.2006 was not issued in favour of M/s Pioneer Drilling & Co. and the same is forged one as per ledger account maintained by his company.

(d)As per the strata chart, 40 m Johnson pipe was to start after 100 meters to 140.24 meters in tube­well in question and entry regarding the execution of the work of the aforesaid tube­well was mentioned in Measurement Book (MB) No. 16366 from page no.26 to 28. However, during investigation, the aforesaid tube­well was inspected by Expert from NGRI through Bore­hole Camera who could scan upto 121.6 meters against the recorded depth of 140.24 meters and as per the Expert's Report, top 83.8 m is seen with 200 mm blank pipe followed by MS slotted pipe from 83.8 meters to 90 meters and further about 3 m blank pipe. Further as per the Expert's Report, well diameter reduced from 200 meters to 150 meters seen with some overlap, 150 MM blank pipe is seen from 93.2 to 103 meters (boundary not clear) followed by MS slotted casing up to around 113 meters (boundary not CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 4 of 67 clear) casing details is not clear from 113 to 121.6 meters due to high turbidity and thus, the Report is conclusive regarding non­use of Johnson pipe.

(e) Executive Engineer Radhey Shyam in his checking has done only 10% of the checking which does not include lowering/installation of Johnson Pipes which is subject matter in the present case whereas Zonal Engineer Pawan Kumar Ghera @ P.K. Ghera (A­2) in his checking has done only 50% of the checking which includes lowering/installation of Johnson Pipes and Junior Engineer Ravinder Singh (A­1) has done 100% checking of the work which includes checking of Johnson Pipes and installation of the assembly of the tube­well and hence the culpability lies solely on Junior Engineer Ravinder Singh (A­1) and Zonal Engineer Pawan Kumar Ghera @ P.K. Ghera (A­2).

(f) Junior Engineer Ravinder Singh (A­1) and Zonal Engineer Pawan Kumar Ghera @ P.K. Ghera (A­2) entered into criminal conspiracy with Rajiv Kumar Bansal (A­3) during the year 2006­2007 with the object of facilitating Rajiv Kumar Bansal (A­2) in obtaining the wrongful pecuniary advantage and to cheat Delhi Jal Board. In this particular bore­well, Junior Engineer Ravinder Singh (A­1) and Zonal Engineer Pawan Kumar Ghera @ P.K. Ghera (A­2) conducted 100% and 50% of checking of work at the time of CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 5 of 67 installation of tube­well and fraudulently and dishonestly made false entries in the official records viz Measurement Book, Completion Report, Final Bill etc. and showed that the required Johnson Pipes, as per the strata chart, had been used.

(g)In furtherance of the said criminal conspiracy, Rajiv Kumar Bansal (A­3) submitted fake and forged invoice showing the purported purchase of Johnson Pipes for the release of the payments and Junior Engineer Ravinder Singh (A­1) and Zonal Engineer Pawan Kumar Ghera @ P.K. Ghera (A­2) knowingly falsified the accounts and on the basis of false entries made by them in the official records viz Measurement Book, Completion Report, Final Bill etc., payments were released to the contractor (A­3) causing wrongful loss to the Government to the tune of Rs.96,482/­ approximately and corresponding gain to the accused persons.

2. After completion of the investigation in the present case, charge­ sheet for the offences punishable under sections 120­B read with 420,468,471,477­A IPC & under sections 13(2) read with 13 (1)(d) of The Prevention of Corruption Act, 1988 against all the accused persons was filed before the court and vide order dated 21.04.2016, the court took cognizance of the offences against all the accused persons.

CHARGE CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 6 of 67

3. Vide order dated 21.10.2016, a charge for the offences punishable under sections 120­B read with 420, 471 read with 468,477­A IPC and section 13 (2) read with 13(1)(d) of PC Act against all the accused persons, further for the offences punishable under section 420 IPC against all the accused person, for the offences punishable under section 471 IPC against A­3 Rajiv Kumar Bansal and for the offences punishable under section 477­A IPC and under section 13(1)(d) and under section 13(2) of The Prevention of Corruption Act, 1988 against A­1 Ravinder Singh and A­2 Pawan Kumar Ghera @ P.K. Ghera was framed to which they pleaded not guilty and claimed trial.

PROSECUTION EVIDENCE

4. To connect the arraigned accused persons with the offences charged, the prosecution in total has examined fourteen witnesses viz Sh. Keshav Chandra, Chief Executive Officer, Delhi Jal Board as PW­1, Vikas Rathi, JE (Civil), Vigilance Department as PW­2, M.C. Joshi, Draftman, Delhi Jal Board, EE (Project), Water­I, Jhandewalan, New Delhi as PW­3, Vinay Kumar Tyagi, Sr. Account Officer, Delhi Jal Board, SE (Project), Water­II, Jhandewalan, New Delhi as PW­4, Sh. N. Jyothi Kumar, Sr. Hydrogeologist, Central Ground Water Board, 18/11, Jam Nagar House, Man Singh Road, New Delhi as PW­5, Sh. K.P. Sinha, Chief Manager, Bank of Maharashtra, Greater Noida Branch (Inadvertently the nomenclature of this witness has been mentioned CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 7 of 67 as PW­7 instead of PW­6 which has been changed to PW­6 vide order dated 11.09.2017), Chandan Singh Tanwar as PW­7, Smt. Veer Jyoti, Inspector, ACB, CBI, New Delhi as PW­8, Sh. Kamal Kumar Aggarwal, Director of M/s Bharti Waters Pvt. Ltd. as PW­ 9, Sh. Sanjay Gupta, Joint Director (Vigilance) in Delhi Jal Board (DJB), Karol Bagh, New Delhi as PW­10, Sh. Radhey Shyam, Executive Engineer, South West­II, Delhi Jal Board (DJB) as PW­ 11, Sh. D.V. Reddy, Chief Scientist (Retired), National Geophysical Research Institute, Hyderabad (NGRI) (M.Sc. in Geology and Ph.D in Hydro­Geology) as PW­12, Inspector Shitanshu Sharma, ACB/CBI, New Delhi as PW­13 and Naval Kishore Gupta as PW­14.

5. After examining the aforesaid witnesses, on the request of the learned Senior Public Prosecutor for the CBI, the prosecution evidence was closed by the court on 14.09.2018.

STATEMENTS OF ACCUSED PERSONS

6. Thereafter, statements of the accused persons under section 313 Cr.P.C. were recorded wherein all the incriminating evidence on record were put to them to which they pleaded their innocence and stated that they have been falsely implicated in the present case.

DEFENCE EVIDENCE

7. A­1 and A­2 opted not to lead any evidence in their defence whereas A­3 examined two witnesses in his defence namely CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 8 of 67 Naresh Chauhan, Judicial Assistant, Record Room (Sessions), Patiala House Court New Delhi as DW­1 and Anil Kumar, JE, Janakpuri D Block, Bijwasan Constituency Area, Delhi Jal Board, New Delhi as DW­2 and vide order dated 18.04.2019, the court closed defence evidence on behalf of A­3 on the request of his learned counsel.

ARGUMENTS

8. I have heard the arguments as advanced by Sh. B.K. Singh, learned Senior Public Prosecutor for CBI, Sh. Mohd. Qamar Ali, learned counsel for A­1 and A­2 and Sh. Rajeev Sharma, learned counsel for A­3. I have also perused the record including the evidence and also given thoughtful consideration to the rival contentions.

9. Ld. Sr. Public Prosecutor for CBI argued that by documentary evidence and the deposition of the prosecution witnesses, the prosecution has been able to prove its case against all the accused persons. He further argued that A­1 and A­2 were the public servants being Junior Engineer and Zonal Engineer however, since A­2 had retired from the services, therefore, sanction for his prosecution was not required and thus, the same was not obtained. He further argued that valid sanction has been accorded against A­ 1 by competent authority with due application of mind. He further argued that it was the sole responsibility of A­1 and A­2 to check the execution of the work of re­boring of bore­well situated at Mata Chowk, Mahipalpur, Delhi awarded to A­3 but they have failed to CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 9 of 67 discharge their duties and they had made false entries in the official records i.e. Measurement Book and the completion report in conspiracy with A­3 in order to facilitate him to claim the payment on account of using Johnson Pipes whereas no Johnson Pipes have been used by A­3 while executing the work order and this fact has been duly corroborated by the testimony of PW­12 Sh. D.V. Reddy who being Scientific Expert, had physically inspected the work order of bore­well situated at Mata Chowk, Mahipalpur, Delhi by inserting the borehole camera and came to the conclusion that no Johnson Pipes were found installed therein. He further argued that A­1 and A­2 had helped A­3 in procuring forged bill for payment. He further argued that the invoice/bill showing the purchase of the Johnson Pipes by A­3 from M/s Bharti Waters Pvt. Ltd. which was submitted by A­3 with Delhi Jal Board for release of payment of the aforesaid work order, is a forged one and this fact has been proved by the prosecution by examining the witnesses. He further argued that the conduct of A­1 and A­2 has resulted in wrongful gain to them and wrongful loss to the government. On these premise, he argued that the prosecution has been successful in proving its case beyond reasonable doubts and prayed for the conviction of the accused persons as per the charges framed against them.

10.On the other hand, ld.counsels for all the accused persons argued that on the basis of evidence on record, the charge framed against CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 10 of 67 the accused persons is not substantiated by the prosecution even by the degree of preponderance of probability though the prosecution was required to prove its case beyond reasonable doubt.

11.Ld. counsel for A­1 and A­2 argued that PW­1 Keshva Chandra was not competent to accord sanction against A­1 as he was not the appointing authority to JE and ZE in Delhi Jal Board and the sanction was granted mechanically against A­1 without application of mind. He further argued that requisite Johnson Pipes were installed in the borewell as per the contract agreement and Executive Engineer also seen the same lying at the spot but PW­12 Dr. D.V. Reddy has falsely prepared the report Ex. PW12/A after consultation and dictation of CBI as the recording conducted by him was not shown to anyone on the spot and the DVD prepared by him is of no value since as per CFSL, no opinion could be offered as the DVD do not have the required video quality for video examination. He further argued that the entire work was executed as per the contract awarded and the work order and the bill was processed by the officials of DJB, specially the account department, after receiving the completion report Ex. PW11/C which shows that there was a saving of Rs.1,00,140/­ as mentioned in item no.6 of Ex.PW11/C qua Johnson Pipes. He further argued that it was the sole responsibility of the account department of DJB to verify the genuineness of the bill/purchase voucher of Johnson Pipes submitted by contractor A­3 which was forwarded to the CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 11 of 67 accounts department with the completion report and test check report and thus, A­1 and A­2 cannot be held guilty of committing any offence much less the offences for which they have been charged with. On these premise, he prayed that A­1 and A­2 be acquitted in the present case.

12.In addition to the arguments advanced by ld.counsel for A­1 and A­2, ld.counsel for A­3 also supplemented in his arguments that the work has been properly executed as per the work order and Bill of Quantity which was duly checked by A­1 and A­2 and satisfaction thereof was recorded by various officers of Delhi Jal Board. He further argued that A­3 has submitted genuine invoice/bill with respect to the purchase of Johnson Pipes with Delhi Jal Board and the bill was processed by the account department and Executive Engineer who were fully satisfied with the documents as well as the execution of work qua the use of Johnson Pipes in bore­well situated at Mata Chowk, Mahipalpur, Delhi and only thereafter, the payment was released by the account department to A­3. He further argued that the borewell is still functioning and discharging water and this fact has been proved by A­3 vide document Ex. DW2/D­1 by examining DW­2 Sh. Anil Kumar, Junior Engineer, Janakpuri D Block, Bijwasan Constituency Area, Delhi Jal Board, New Delhi. He further argued that there was no complaint from any corner and this fact clearly shows that the work of re­boring of bore­well situated at Mata CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 12 of 67 Chowk, Mahipalpur, Delhi has been done as per the work order and the contract agreement. He further argued that as per the contract agreement, there was a defect liability period for which a security deposit was made and after the expiry of the same, the security deposit was released to A­3 without any complaint and thus, A­3 is not liable to be held guilty and he be acquitted for the charged offences in the present case.

APPRECIATION OF FACTS, EVIDENCE, DOCUMENTS AND ARGUMENTS AND FINDINGS THEREUPON

13.The present case pertains to the re­boring of tube­well situated at Mata Chowk, Mahipalpur, Delhi. Before adverting further, it is pertinent to understand the procedure adopted by Delhi Jal Board for grant of work and subsequently for the release of the payment thereof. On completion of procedural formalities, Bill of Quantity is ascertained and tender is floated. The Bill of Quantity contains requirement of using and providing Johnson Screen Pipes. The work is awarded through contract and the contractor is required to execute the work at the site under the supervision of Junior Engineer, Assistant Engineer and Executive Engineer. The re­ boring of the tube­well involves re­boring on the ground upto the specified depth as provided in Strata Chart in loose soil as well as rocky strata. On completion of re­boring, tube­well pipe assembly CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 13 of 67 is lowered in accordance with the Strata Chart to facilitate the inflow of water from underground to above level of ground water. The pipes of different kinds are joined as per Strata Chart i.e. actual diagram of site. During execution of the work, physical test check is to be done by Junior Engineer, Assistant Engineer/Zonal Engineer and Executive Engineer in proportionate of 100% by Junior Engineer, 50% by Assistant Engineer/Zonal Engineer and 10% by Executive Engineer. The measurements are noted in the Measurement Book signed by A­1, A­2 and Executive Engineer Radhey Shyam and based on the quantity noted therein, the completion report is prepared by the Junior Engineer and signed by Zonal Engineer and Executive Engineer. The contractor is required to submit purchase voucher and also the Strata Chart and certificates etc. and on scrutiny of all the documents including the purchase voucher/bill, the payment is approved.

14.The case of the prosecution is primarily based on two aspects, firstly, whether the work has not been executed as per the work order and Bill of Quantity and requisite Johnson Pipes were not used at the site and secondly, whether the invoice/bill submitted by the contractor A­3, on the basis of which the payment was released to A­3, was a forged one.

15.The core question that needs to be seen is as to whether there is sufficient legal evidence on record for the prosecution to prove its case beyond reasonable doubt against the arraigned accused CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 14 of 67 persons for the charged offences.

16.It is settled law that in a criminal trial the prosecution has to prove its case beyond reasonable doubt and that the story of the prosecution must stand on its own two feet. The onus of proof cannot be shifted on the accused persons.

17.The Hon'ble Supreme Court of India in a case titled as R.K. Dey Vs. State of Orrisa AIR 1977 SC 170 has held that:­ "Three cardinal principle of criminal jurisprudence are well settled namely:

(i) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defense version while proving this case;

(ii) that in the criminal trial the accused must be presumed to be innocent unless he is proved to be guilty; and

(iii) that onus of prosecution never shifts."

18.From the abovesaid case law, it is clear that it is not at all obligatory on the accused persons to produce evidence in support of their defence and that for the purpose of proving their versions, they can rely on the admissions made by the prosecution witnesses or on the documents filed by the prosecution. The prosecution has to stand on its own legs, and if it fails to prove its case beyond reasonable doubt, the entire edifice of the prosecution would crumble down.

19.Before dealing with the aforesaid two aspects, the court shall deal with the contention raised by Ld.counsel for A­1 and A­2 whether CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 15 of 67 PW­1 Keshva Chandra was not competent to accord sanction against A­1 Ravinder Singh as he was not the appointing authority to Junior Engineer in Delhi Jal Board and that whether the sanction for prosecution of A­1 Ravinder Singh has been accorded without application of mind.

20.PW­1 Sh. Keshav Chandra, Chief Executive Officer, Delhi Jal Board was the witness who accorded sanction against A­1 Ravinder Singh for prosecution and he in his deposition before the court deposed that he is administratively managing entire Delhi Jal Board and being competent disciplinary authority, he has given sanction for prosecution of A­1 Ravinder Singh vide sanction order Ex. PW1/A. The said sanction order Ex. PW1/A was sent to the CBI by Joint Director Sh. Sanjay Gupta vide letter dated 23.11.2015, copy of which has been marked as Mark PW1/A. He further deposed that though the disciplinary authority with respect to Junior Engineer is Member Administration but the present case being a composite case in which senior officers were also involved therefore, he being the Chief Executive Officer of Delhi Jal Board, was competent to be the disciplinary authority for all the officers involved in this composite case.

21.PW­10 Sh. Sanjay Gupta, Joint Director (Vigilance) in Delhi Jal Board (DJB), Karol Bagh, New Delhi deposed that in the present case, sanction for prosecution against Ravinder Singh (A­1), the then Junior Engineer, Delhi Jal Board was accorded by the then CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 16 of 67 competent authority Sh. Keshav Chandra, Chief Executive Officer, Delhi Jal Board and the sanction order was forwarded by him to S.P., CBI through forwarding letter dated 23.11.2015, copy thereof Marked as MarkPW1/A has been exhibited as Ex. PW10/A.

22.It has come on record during cross examination of PW­1 Sh. Keshav Chandra, Chief Executive Officer, Delhi Jal Board that in the year 2015, Central Vigilance Commission had issued circular no.07/04/15 with respect to composite cases in which officers of different hierarchy are involved together, in such cases, the highest disciplinary authority for the officers involved becomes the disciplinary authority and the same is also as per CCS (CCA) Rule 18(1). This witness during cross examination has denied the suggestion that he is not competent to remove Junior Engineer and Zonal Engineer from their services.

23.From the deposition of PW­1 Sh. Keshav Chandra, Chief Executive Officer, Delhi Jal Board and the material on record, it is evident that he was the highest disciplinary authority in Delhi Jal Board and could remove A­1 Ravinder Singh being Junior Engineer from his services. Thus, he was the competent authority to accord sanction for prosecution against A­1 Ravinder Singh and hence there is no force in the contention of the ld.counsel for A­1 Ravinder Singh.

24.The next question is whether the sanction for prosecution of A­1 Ravinder Singh has been accorded without application of mind.

25.The law relating to accord of sanction is well settled by the Hon'ble Supreme Court of India in a case titled as State of Maharashtra through CBI Vs. Mahesh G. Jain, 2013 Crl.L.J 3092, wherein it has been held that:­ "13. From the aforesaid authorities the following principles can be culled out:­

(a) It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.

(b) The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution.

(c) The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him.

(d) Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.

(e) The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.

(f) If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction.

(g) The order of sanction is a pre­requisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper­technical approach to test its validity".

26.In the facts of the matter and from the testimony of the sanctioning authority PW­1 Sh. Keshav Chandra, Chief Executive Officer, Delhi Jal Board coupled with the testimony of PW­10 Sh. Sanjay Gupta, Joint Director (Vigilance) in Delhi Jal Board (DJB), Karol Bagh, New Delhi, it is culled out that only after being satisfied that a case for sanction was made out, PW­1 Sh. Keshav Chandra, Chief Executive Officer, Delhi Jal Board has accorded the elicited sanction for prosecution vide sanction order Ex. PW1/A against A­ 1 Ravinder Singh and the same is apparent from the bare reading of the sanction order Ex. PW1/A that the sanctioning authority PW­1 Sh. Keshav Chandra, Chief Executive Officer, Delhi Jal Board has carefully considered the facts and circumstances of the case as well as perused the record by going through the statement of witnesses, documents and other material placed before him.

27.The sanction order, on its face, indicates that all relevant material were placed before the sanctioning authority at the time of according of sanction. It is discernible from the recital of the sanction order that the sanctioning authority had perused all the material and prima facie reached to the conclusion. In terms of the CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 19 of 67 law laid in the case of State of Maharashtra through CBI Vs. Mahesh G. Jain (Supra), it is proved on record that the Sanctioning Authority prima facie reached to the satisfaction that the relevant facts constituted the offences in question. Even otherwise, sanction order is not to be construed either in pedantic manner or by any hyper­technical approach to test its validity. Hence, it is proved on record that the sanction order Ex. PW1/A vide which sanction for prosecution was accorded against A­1 Ravinder Singhl, was valid.

28.Now, the court shall deal with the first aspect i.e. whether the work has not been executed as per the work order as requisite Johnson Pipes were not used at the site. In order to prove that requisite Johnson Pipes were not installed by contractor A­3 at the aforesaid site as per the work order, the prosecution has heavily relied upon the Report of Scientific Expert Dr. D.V. Reddy who has been examined before the court as PW­12.

29.The main objective of PW­12 Dr. D.V. Reddy in the present case was to find out the depth of the bore­well situated at Mata Chowk, Mahipalpur, Delhi and the type of pipes used therein, more particularly whether Johnson Pipes were used or not. PW­12 Dr. D.V. Reddy had inspected the bore­well in question on the direction of Director, National Geophysical Research Institute, Hyderabad (NGRI) to whom CBI had requested as he was an Expert in this field. For ascertaining the same, he has used the CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 20 of 67 bore­hole simple under water camera for the same.

30.Ld.counsels for the accused persons have disputed the very expertise of PW­12 Dr. D.V. Reddy. The profile of this witness as mentioned in his testimony before the court as PW­12 clearly shows that he has retired as Chief Scientist from National Geophysical Research Institute, Hyderabad (NGRI) having degree of M.Sc. in Geology and Ph.D in Hydro­Geology and at the relevant period i.e. in the year 2013­14, he was posted as Sr. Principal Scientist in NGRI. The testimony of this witness further shows that in this case, CBI had written a letter to Director, NGRI to investigate the bore­wells drilled by Delhi Jal Board at different places in Delhi and as this witness had 'expertise' in the said field, the Director, NGRI deputed him for investigation. The facts mentioned in the report Ex. PW12/A also show his expertise. During cross examination of this witness, it has come on record that he has undergone one year's advance training course in hydro­ geology and engineering geology (well construction) in Germany. From the testimony of PW­12 Dr.D.V. Reddy, qualification as well as the expertise, procedure and experiment of PW­12 Dr. D.V. Reddy, as detailed in the report Ex. PW12/A, it is crystal clear that this witness was expert in this field and thus, there is no substance in the arguments of the ld.counsels for the accused persons in this regard.

31.To ascertain whether Johnson Pipes were used in the bore­well CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 21 of 67 situated at Mata Chowk, Mahipalpur, Delhi, PW­12 Dr. D.V. Reddy deposed before the court that he visited the sites of bore­ wells along with CBI Officer as well as officials from Delhi Jal Board. This witness had visited the site in the present case on 20.09.2013 and he was having the material like Strata Chart and related documents with him and the other officials of the inspection team namely PW2 Vikas Rathi, Junior Engineer (Civil), Vigilance Department, Delhi Jal Board, PW­11 Sh. Radhey Shyam, Executive Engineer, Delhi Jal Board and PW­13 Shitanshu Sharma, Investigating officer including scientific expert PW­5 Sh. N. Jyothi Kumar, Sr. Hydrogeologist, Central Ground Water Board, 18/11, Jam Nagar House, Man Singh Road, New Delhi were also present. He further deposed that in this case, he thoroughly inspected the bore­well situated at Mata Chowk, Mahipalpur, Delhi by inserting the bore­hole camera which was lowered in the bore­hole with the help of a cable connected with the camera and the videography was monitored as well as recorded simultaneously in the palmtop for viewing the entire length of the bore­hole. He proved the Site Inspection Memo dated 20.09.2013 and rough site plan (D­9) already exhibited as Ex. PW2/A and Ex. PW2/B respectively bearing his signatures at points C and B.

32.He further deposed that the recorded video from the palmtop was then transferred by him to laptop and after going through the video/pictures, he compared the same with the original strata chart CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 22 of 67 supplied by CBI and thereafter, report was prepared by him and the same was forwarded to CBI and at the instruction of CBI, he also prepared two CDs from the laptop containing the videos of respective boreholes inspected by him. He further deposed that one CD was sealed and other was left open for official purpose; the video recording was not played at the site before inspecting team. He further deposed that IO Inspector Shitanshu Sharma did not seize the palmtop, laptop and hard disk and he did not insist to transfer the recording from palmtop to laptop in the presence of inspecting team at the site. He further deposed that the recording was played by him when he was alone and he had checked the quality of CD before handing it over to the IO and the IO never asked him to bring the laptop on account of CD having poor video quality. He proved copy of his report dated 24.02.2014 as Ex. PW12/A (Colly) along with forwarding letter and certificate under section 65B of Evidence Act. He deposed that the envelope already exhibited as Ex. PW7/B in which the CD already exhibited as Ex. PW7/C was kept in sealed condition, was the same CD in which he had transferred the videography of bore­hole. This witness was cross examined on behalf of the accused persons.

33.In his report, PW­12 Dr. D.V. Reddy has mentioned in tabular form the difference about the casing details between the strata chart supplied to him and his observations thereupon as per the video footage which is as under:­ CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 23 of 67 Casing details as Lengths Casing Depth Video per diagram details Time slot observed 200 mm blank pipe 81.5m 200 mm 0­83.8m 0­6:22 min blank pipe 200 mm slotted 12.2m 200 mm 83.8­90 m 6:22­6:50 pipe MSslot min 200 mm blank pipe 6.0 m 200 mm 90­93.2 m 6:50­7:16 blank min 150 mm blank pipe 2.6 m 150 mm 93.2­103 m 7:16­15:54 blank pipe min 150 mm Johnson's 40.0m 150 mm 103­113 m 15:54­ pipe MS slotted 27:12 min Casing details not clear after 113 m

34.After inspecting the bore­well in question, PW­12 Dr. D.V. Reddy made following observations in the report :­ "The well was scanned using borehole camera on 20.09.2013 and measured the present depth as 121.6 m. bgl. Top 83.8 is seen with 200 mm blank pipe followed by MS slotted from 83.8 to 90 m and further about 3 m blank pipe. Well diameter reduced from 200 to 150 m with some overlap. 150 mm blank pipe is seen from 93.02 to 103 m (boundary not clear) followed by MS slotted casing up to around 113 m (boundary not clear). Casing details not clear from 113 to 121.6 m. due to high turbidity".

35.It is settled law that an expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 24 of 67 to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific expert's evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions.

36.As per the observation made by Dr. D.V. Reddy in his report Ex. PW12/A, he could measured the depth of present bore­well by scanning it through his bore­hole camera and found its present depth as 121.6 m bgl. on seeing the video images on his palmtop however, this witness did not make any specific observation or comment about the non­use of Johnson Pipes in the borewell in question in the present case in his report Ex.PW12/A for which he was engaged for. Though Ld. Senior Public Prosecutor for Central Bureau of Investigation has pointed out that in the report Ex. PW12/A, it has been mentioned that under present RC 20(A)/2012, Dr. D.V. Reddy had inspected total fourteen wells in two time schedules i.e. between February 2013 and September 2013 and no Johnson type screen was seen in any of the borewells upto the investigated depth however this argument of the Ld. Senior Public Prosecutor for the Central Bureau of Investigation is not tenable for CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 25 of 67 the reason that it appears to be a general observation made by Dr. D.V. Reddy inasmuch as in his report Ex. PW12/A while mentioning in tabular form the difference about the casing details between the strata chart supplied to him and his observations thereupon as per the video footage qua the borewell in question in the present case, Dr. D.V. Reddy did not specifically make any observation that no Johnson Pipe was found in the borewell in question in the present case and the same is completely silent in this regard and also there is no explanation offered for the same. Even at the time of inspection of the borewell in question, Dr. D.V. Reddy did not reveal or discuss his observations to any person accompanying him more particularly with the other scientific expert Sh. N. Jyothi Kumar, Sr. Hydrogeologist, Central Ground Water Board, 18/11, Jam Nagar House, Man Singh Road, New Delhi who had accompanied Dr. D.V. Reddy on the instruction of the then Chairman, Central Ground Water Board (CGWB) and this fact has been admitted by PW­12 Dr. D.V. Reddy during his cross examination by categorically admitting that during recording, he had not mentioned or told anybody that Johnson Pipes were not found in the bore­hole which also finds support from the cross examination of PW­2 Vikas Rathi, Junior Engineer (Civil), Vigilance Department of Delhi Jal Board who deposed that Dr. D.V. Reddy never indicated absence of use of Johnson pipes, PW­ 11 Radhey Shyam who deposed that Dr. Reddy did not disclose CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 26 of 67 during inspection that there was no Johnson Pipes found in the borewell and PW­13 Shitanshu Sharma, Investigating officer of the present case who deposed that Dr. D.V. Reddy had not disclosed anything at the site about the absence of the Johnson Pipes in the borewell in question. Sh. N. Jyothi Kumar has been examined before the court as PW­5 and in his deposition before the court, this witness also deposed that Dr. D.V. Reddy did not discuss anything with him. The cross examination of this witness also shows that Dr. D.V. Reddy did not seek any opinion from this witness either at the time of inspection or after the inspection or even at the time of preparation of report or analyzing the data and also that Dr. D.V. Reddy did not tell that Johnson Pipe was not there. PW12 Dr.D.V. Reddy should have made comments about the existence of pipes or strata or their nature at the spot itself while he was noticing the same but the same is conspicuously missing in the present case. The report Ex. PW12/A and the deposition of Dr. D.V. Reddy before the court as PW­12 reflect that in the Inspection Team, he acted as one man army and took all the decisions of his own without taking any opinion, worth the name, from other technical witnesses namely PW­2 Vikas Rathi, Junior Engineer (Civil), Vigilance Department, Delhi Jal Board who deposed during cross examination that he has technical knowledge regarding installation of bore­well etc. as he had supervised various installations as well in the past and more particularly the other scientific expert PW­5 CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 27 of 67 Sh. N. Jyothi Kumar who was accompanying him at the time of inspection of the bore­well in question thereby defeating the very purpose of including Sh. N. Jyothi Kumar in the Inspection Team and made him not less than a mute spectator.

37.Neither PW­12 Dr. D.V. Reddy nor any of the prosecution witnesses in their respective deposition before the court gave any particular characteristics or specification of Johnson Pipes nor they disclosed how the Johnson Pipes are different from slotted, plain or any other pipes. PW­12 Dr. D.V. Reddy did not anywhere state that he was aware about the characteristics and specifications of Johnson Pipe or that before inspecting the site, he ever tried to know about the same from the Johnson Company and this witness admitted during cross examination that neither he visited Johnson Company nor he met with any of their officials. Some competent officers from Johnson Pipes Company should have been asked by the Investigating Officer to join the inspection team at the time of inspecting the present bore­well to throw light on the characteristics and specifications of Johnson Pipes but no such person was made to join the Inspection Team and this fact has been admitted by Investigating officer PW­13 Shitanshu Sharma during cross examination that he did not call any person from manufacturer of Johnson Pipes during investigation which has been duly supported by the cross examination of PW12 Dr. D.V. Reddy who deposed that nobody from Johnson Pipes was present at the CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 28 of 67 inspection site during inspection conducted by him. The report of PW­12 Dr. D.V. Reddy nowhere clearly spelt out that no Johnson Pipes were used in the present bore­well and in his report, Dr. D.V. Reddy failed to support and substantiate his findings with due reasons. Dr. D.V. Reddy neither in his report nor in his deposition before the court explained how the difference in nature of pipes was visible to him through his bore­hole camera.

38.It is interesting fact that Dr. D.V. Reddy has conducted the inspection after a lapse of more than seven years after the completion of the work order. PW­12 Dr. D.V. Reddy admitted during cross examination that Johnson Pipes are metallic pipes and that the metallic pipes are subject to faster corrosion as compared to PVC Pipes. It has come in the cross examination of this witness that metals buried underground are subject to corrosion due to soil, water and metal and it also depends upon solidity of water, acidity of water and the pollution of the soil but in the present case, he had not tested the quality of water in the area. He admitted during cross examination that he has not done any course in study of metals buried underground and none of his publications are in the field of metals buried underground. Other scientific expert PW­5 Sh. N. Jyothi Kumar during cross examination deposed that after about one year, the pipes are likely to be deposited with rust, dust, corrosion and corresion (chemical reaction), mud etc. on the inner surface and if the quality of the pipes is bad, the corrosion will be CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 29 of 67 faster but if the quality of the pipes is good then it may last longer however, in both the case, the dust etc. would enter through the mesh and get deposited on the pipes due to which it is not possible to ascertain the make of the pipes and that this problem can be overcome by cleaning the sides of the pipes by using compressor but in the present case, as per records, no compressor was used to clean the pipes after removal of assembly. The other witness PW­ 11 Radhey Shyam also deposed during cross examination that he got installed many borewells during his tenure in Delhi Jal Board and further deposed that Johnson Pipe is metallic pipe and the water in South Delhi is hard water. He categorically admitted during cross examination that there is faster moss formation and corrosion in hard water in metallic pipes due to the same including chemical reaction and other deposits etc., the shape and the holes in the Johnson Pipes would also be changed and blocked and after such change, the nature and make of the Johnson Pipe cannot be ascertained. Dr.D.V. Reddy did not state either in his report or in his testimony before the court that due to rust, dust, corrosion or mud etc. he could not ascertain the make of the pipes which were found by him in the bore­well in question during inspection or that there was no equipment to clean the said pipes in order to ascertain their makes. The Investigating Officer PW­13 Shitanshu Sharma also admitted during cross examination that he did not make any endevour to remove the entire pipe to find out the make of the pipe.

Also there is nothing on record in the shape of documentary proof to show what is the minimum and maximum life span of buried underground Johnson Pipes when they got disposed off during the course of time in worse to worse conditions as well as in normal conditions. There is no clause either in the agreement or in the work order to show as to till what time period contractor/A­2 was liable for the work done in the bore­well in question as the agreement and the work order are silent in this regard. In these circumstances, without there being any proof of non­use of Johnson Pipes in the bore­well in question, no liability can be fasten upon the contractor/A­3 who had executed the work order in question more particularly in view of the report and testimony of scientific expert PW­12 Dr. D.V. Reddy which are completely silent about the make of the pipes which were found by him in the bore­well in question during inspection.

39.Though the prosecution witnesses PW­12 Dr. D.V. Reddy, PW­5 Sh. N. Jyothi Kumar and PW­2 Vikas Rathi in their respective deposition before the court have given different versions with respect to the status of the borewell in question when they reached there inasmuch as PW­12 Dr. D.V. Reddy during cross examination did not recollect as to what was the status when they reached the site whether the pumping assembly was being removed by the officials present there or the same was already removed immediately before they reached the spot whereas PW­5 Sh. N. CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 31 of 67 Jyothi Kumar deposed that when they reached the spot, the process of removing the pumping assembly was going on by DJB staff and the cross examination of other witness PW­2 reflects that when they reached at the spot, the pumping assembly was not removed as on the day of inspection, the tubewell was found in running condition, however, perusal of the site inspection memo dated 20.09.2013 Ex. PW2/A shows that at the time of inspection, the bore­well in question was opened and pumping assembly was taken out with the help of E&M staff of Delhi Jal Board and the proceedings were concluded. Thus, it is evident from the site inspection memo Ex. PW2/A that the work of opening and removing the pumping assembly in the borewell in question was started in the presence and after reaching the Inspection Team at the spot.

40.In site inspection memo dated 20.09.2013 Ex. PW2/A, the time of inspection of the borewell in question has been mentioned as 11:30 AM but the space qua the time of conclusion of the proceedings is blank in site inspection memo Ex. PW2/A. PW­12 Dr. D.V. Reddy admitted during cross examination that he had carried out the inspection at 2­3 places on the said day and normally it took them 20­30 minutes at every spot. The cross examinations of other witnesses PW­5 N. Jyothi Kumar and PW­2 Vikas Rathi reflect that on the day of inspection of the borewell in question i.e. 20.09.2013, four/four­five other sites were also inspected by Dr. CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 32 of 67 D.V. Reddy and that the inspection of the bore­well in question took about 30 to 45 minutes. Thus, it is clear from the cross examinations of these witnesses that in any case maximum of about 45 minutes were taken for the inspection of the borewell in question.

41.Dr. D. V. Reddy admitted during cross examination that upon removal of pumping assembly, there is a lot of suspended solids in the water inside the bore­hole and it takes time for suspended solids to settle down. PW11 Radhey Shyam, Executive Engineer, Delhi Jal Board also admitted during cross examination that when the borewell assembly is removed, mud falls into the holes and water inside would get dirty. However, Dr. D.V. Reddy did not specify how much time the suspended solids took to settle down. The cross examination of other scientific expert PW­5 Sh. N. Jyothi Kumar has clarified the picture who admitted that when a borewell's pumping assembly is removed, there is a lot of turbidity in the water inside the bore­well which takes approximately at least six hours for turbidity to settle down. The strata of the borewell in question was alluvial as deposed by this witness during cross examination. In his report Ex. PW12/A, Dr. D.V. Reddy has stated that casing details were not clear from 113 m to 121.6 m due to high turbidity. He admitted during cross examination that if the water is dirty, then the visibility will be low due to which at places, it may not be clear to see the borewell's conditions. The cross CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 33 of 67 examination of PW­12 Dr. D.V. Reddy and his report Ex.PW12/A and the cross examination of PW­5 Sh. N. Jyothi Kumar reflect that there was suspended solids and turbidity inside the bore­well in question and keeping in view that 20­30 minutes were taken by Dr. D. V. Reddy in inspecting the bore­well in question as admitted by him in his cross examination or there was maximum time of 45 minutes as observed by the court, it is quite possible that since the suspended solids inside the bore­well could not be settled down during inspection and also there was turbidity inside the bore­well in question, the same may be the reason that Dr. D.V. Reddy had not mentioned the make of any of the pipes used in the bore­well in question and that is why his report as well as deposition is silent in this regard.

42.Moreover, for the inspection of the borewell in question, PW­12 Dr. D.V. Reddy has used the bore­hole simple under water camera. The camera of PW­12 Dr. D.V. Reddy does not have the capacity to measure the thickness and dia of the pipe inside the borewell as has been admitted by him during cross examination. Other scientific expert PW­5 Sh. N. Jyothi Kumar during cross examination deposed that it is only on the basis of pattern of the inner portions of the pipes that the type of the pipe can be ascertain. PW­12 Dr. D.V. Reddy during cross examination admitted that Johnson Pipe is a metallic pipe and there are many methods of identifying metals buried underground like geo­ CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 34 of 67 physical methods which includes ground penetrating radar method, electro­magnetic conductivity etc. but in the present case, none of the above methods were used by him. There is also nothing on record to shows which method was more appropriate than that which has been adopted in the present case by Dr. D.V. Reddy.

43.As per the deposition of PW­12 Dr. D.V. Reddy, after lowering the bore­hole camera in the bore­well in question, videography was monitored as well as recorded simultaneously in the palmtop in order to view the entire length of the bore­hole and thereafter the video was transferred by him to his laptop and from laptop, he prepared two video CDs of the respective boreholes inspected by him. The video CD has been exhibited as Ex. PW7/C which has been accompanied with certificate under section 65B of Indian Evidence Act.

44.Ld.counsel for the accused persons raised objection with respect to the non­compliance of the requirement in the certificate under section 65B of Indian Evidence Act issued by PW­12 Dr. D.V. Reddy and cross examined him in this regard. During cross examination, this witness admitted that his signatures on certificate under section 65B of Indian Evidence Act are different from his normal signatures on all the pages and that the same are not his official signatures. He voluntarily deposed that he had not signed the certificate under section 65B of Indian Evidence Act but the name appearing above the stamps is in his handwriting. He further CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 35 of 67 deposed that on certificate under section 65B of Indian Evidence Act his stamp is used as it is not in his letter head. This witness denied the suggestion that the said certificate was not issued by him. Though there is dispute with respect to the signature of PW­ 12 Dr. D.V. Reddy on the certificate under section 65B of Indian Evidence Act however, looking into the overall language of the certificate and more particularly once the witness appeared before the court in person and has categorically deposed in his cross examination that his name on the same is in his handwriting which also bearing his stamp and further denied the suggestion of the ld.counsel for the accused persons that the said certificate was not issued by him, the court is of the opinion that the requirement of certificate under section 65 of Indian Evidence Act stands complied with. Thus, the contention of the ld.counsels for the accused persons is without any base and the same does not hold water.

45.Perusal of the record shows that during investigation, the CBI has sent CD Ex. PW7/C to Computer Forensic Division, Central Forensic Science Laboratory, Central Bureau of Investigation, CGO Complex, Lodhi Road, New Delhi for video CD examination regarding whether the CD has been tampered with or not however, as per report no. CFSL­2015/G­345 dated 30.12.2015 regarding result of examination, the opinion could not be offered by Scientific Expert as the DVD do not have the required video CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 36 of 67 quality for video examination in the existing system available with the laboratory at that time. Since Dr. D.V. Reddy did not make any specific observation or comment in his report Ex. PW12/A about non­use of Johnson Pipes in the bore­well in question and the make of the other pipes used therein, the DVD was the best evidence before the court which could have rendered some help to facilitate the court to view as to what was the nature of pipes installed in the bore­hole in question but even the CFSL was not able to offer any opinion in this regard, for the reasons stated above. The conduct of the Investigating Officer clearly reflects his lackadaisical and callous approach in investigating the present matter which is apparent from the deposition of PW­12 Dr. D.V. Reddy who deposed that at the spot, the investigating officer did not insist him to transfer the recording from palmtop to laptop in the presence of inspecting team and also the video recording was not played before the inspecting team nor the DVD was prepared at the spot nor IO asked him to bring the laptop as the CD was of poor video quality. During cross examination also, he deposed that he did not replay the recording to show that the same was properly recorded at the spot. PW­2 Vikas Rathi, Junior Engineer (Civil), Vigilance Department, Delhi Jal Board who was the member of the Inspecting Team also admitted during cross examination that after inspection, the recording was not replayed to show that the recording had been properly saved. The cross examination of PW­ CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 37 of 67 12 Dr. D.V. Reddy reflects that he saved the files in Mp4 format and was aware that the name of the file can be changed. Despite the same, he prepared the CD in his office at NGRI, Hyderabad and not at the spot. The bore­well in question was inspected by Dr. D.V. Reddy on 20.09.2013 however, he prepared his report Ex. PW12/A on 24.02.2014. There is no explanation offered by Dr. D.V. Reddy why he took such a long time in preparing the report. Even the Investigating Officer did not bother for six months to enquire about the report from Dr. D.V. Reddy in this regard. The conduct of PW­12 Dr.D.V. Reddy shows that he conducted the inspection of the bore­well in question and prepared his report in a very casual manner. Thus, the DVD has failed to connect the accused persons in the commission of the alleged offences.

46.Ld. Senior Public Prosecutor for the CBI though argued that even the Sanctioning Authority has gone through the DVD supplied to them and after going through the same, the Sanctioning Authority was also of the opinion that the depth of the borewell in question was 121.6 meters and thus, it stands proved on record that Dr. D.V. Reddy has correctly measured the depth of the borewell in question in his report Ex. PW12/A. This argument of the ld. Senior Public Prosecutor for the CBI is also of no help to the case of the prosecution inasmuch as it was the duty of the prosecution to prove on record before the court by playing the DVD that Dr. D.V. Reddy has correctly and exactly measured the depth of the CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 38 of 67 borewell in question which the prosecution has failed and also in terms of the law laid down in a case titled as State of Maharashtra through CBI Vs. Mahesh G. Jain (Supra), the Sanctioning Authority has prima facie reached to the conclusion that the relevant facts constituted the offences in question after perusing all the material. However, before the court, it was the duty of the prosecution to prove the charged offences against the accused person beyond shadow of all reasonable doubts.

47.The palmtop, laptop and hard disk were also not seized by the Investigating Officer and this fact has been admitted by PW­12 Dr. D.V. Reddy in his deposition before the court. PW­2 Vikas Rathi, Junior Engineer (Civil), Vigilance Department, Delhi Jal Board, member of the Inspecting Team also admitted during cross examination that Investigating Officer had not seized the camera, palmtop or any other equipment or recording device after the inspection. Dr. D.V. Reddy ought to have kept the recording in his palmtop for a considerable period of time as the palmtop was the original source but he erased the same from his palmtop after allegedly transferring the recording from it to the laptop and this fact has been admitted by him during cross examination. Thus, the testimony of PW­12 Dr. D.V. Reddy regarding non­use of Johnson Pipes in the bore­well in question does not find support from his own equipments which he used at the time of inspection of the bore­well in question and also from the testimony of any other CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 39 of 67 prosecution witnesses who were accompanying him at the time of inspection of the bore­well in question. Moreover, since the original source i.e. palmtop was not seized by the Investigating officer coupled with the fact that now the palmtop does not have the recording of the bore­well in question, the report made on the basis of it as well as the DVD prepared thereof on which no opinion could be offered by CFSL, do not have any sanctity in the eyes of law as the same have lost their significance without their contents available in the original source. All necessary precautions were neither taken at the end of the investigating officer nor made vivid in his deposition in the court thereby bringing the authenticity/genuineness/accuracy of the contents of the data recorded by Dr. D.V. Reddy in his palmtop under the cloud of doubt. In this fact of the case, the tainted video recording in the palmtop which was subsequently allegedly transferred to laptop and from laptop, DVDs were prepared, cannot be looked into.

48.Moreover, in the report Ex. PW12/A, PW­12 Dr. D.V. Reddy has given the depth of the borewell in question in meters. The said report was prepared by him by seeing the video as admitted by him during cross cross­examination. This witness also admitted during cross examination that he had recorded his voice in respect of the depth in feet but in his report, the depth is given in meters as when he prepared the report, everything was converted to meters as a standard format. Whether Dr. D.V. Reddy had correctly and CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 40 of 67 exactly converted the depth of the borewell in question from feet to meter could have been ascertained by the court by listening the voice of Dr. D.V. Reddy qua depth of the borewell in question as recorded in the DVD but no such DVD was played before the court in the present case and as discussed above, even the said DVD was of poor video quality and therefore the CFSL was not able to offer any opinion on the same. Dr.D.V. Reddy did not explain as to what was the need for him to convert the depth of the borewell in question from feet to meter and why he did not mention the depth of the borewell in question in feet.

49.Ld. Senior Public Prosecutor for the CBI though argued that there is no cross examination of PW­12 Dr. D.V. Reddy or any of the other prosecution witnesses who were accompanying him at the time of inspection qua the depth of the borewell in question and also there is no cross examination of PW­12 Dr. D.V. Reddy that he had prepared wrong document i.e. report Ex. PW12/A dated 24.02.2014 qua the depth of the borewell in question and thus, in these circumstances, Dr. D.V. Reddy has correctly measured the depth of the borewell in question as 121.6 meters in his report Ex. PW12/A. However, these arguments of Ld. Senior Public Prosecutor for the CBI holds no water in view of my findings as aforesaid and more particularly considering the conduct of Dr. D.V. Reddy as discussed above, in preparing the report in the present matter.

50.Cumulative effect of elicited aforesaid facts bring into fore that the procedure adopted by PW­12 Dr. D.V. Reddy during inspection of the bore­well in question and his findings on it, cannot be terms as conclusive and clinching evidence. Thus, it would not be safe to absolutely rely upon his report.

51.It is pertinent to mention that work of the bore­well in question was completed on 02.08.2006 as per the Strata Chart and the completion report. The inspection of the bore­well in question was got carried out during investigation through Scientific Expert Dr.D.V. Reddy on 20.09.2013. In between, there was a considerable gap of more than seven years. PW­11 Sh. Radhey Shyam, Executive Engineer from Delhi Jal Board who was also having responsibility of 10% in checking the proper execution of work order in the present case admitted during cross examination that after the installation of bore­well in complete and the bore­ well is functional, the site is handed over to the E&M (Electrical and Mechanical) Wing of Delhi Jal Board and once the bore­well is handed over to the E&M Wing, the Zonal Engineer and the Junior Engineer do not have any control over the bore­well. During cross examination, he further deposed that he does not know if any repair was carried out by the E&M Department including replacement of pipes in the bore­well after handing over the same to the E&M department. He further admitted during cross examination that it is the responsibility of E&M department for day to day maintenance CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 42 of 67 and repairs of the bore­well. The other witness from Delhi Jal Board PW2 Vikas Rathi, Junior Engineer (Civil) in Vigilance Department also admitted that after the completion of the bore­well work, the site is handed over to the E&M department of Delhi Jal Board and remained in their custody and maintained by them. The cross examinations of these witnesses who are responsible persons of Delhi Jal Board clearly show that it was E&M department who was looking after the day to day maintenance and repair of the borewell in question during that period of more than seven years. However, witness from E&M department of Delhi Jal Board has neither been cited nor produced nor examined by the prosecution and also no record has been produced before this court to show that after handing over the bore­well in question to E&M Department, no maintenance or repair work was carried out by E&M Department in the bore­well in question. PW­2 Vikas Rathi, Junior Engineer (Civil), Vigilance Branch, Delhi Jal Board admitted during cross examination that investigating officer had not recorded the statement of any person from E&M Department in regard to whether any tampering was done/repairing was done in the said bore­well after the installation of the same and before its inspection in the present case. There is no investigation in this regard. The investigating officer PW­13 Shitanshu Sharma admitted during cross examination that he had not made any investigation as to whether any repair had taken place in the bore­ CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 43 of 67 well between 2008 and the date of inspection i.e. 20.09.2013 or if any part of the bore­well was replaced or not. The witness from E&M Department of Delhi Jal Board could have facilitated the court in adjudicating the matter in this regard. It is not the case of the prosecution that witness from E&M Department was not traceable or could not be find out. By not citing, producing and examining the witness from E&M Department, the prosecution has left out some very material evidence which may have been of some help to the prosecution in this case against the accused persons.

52.On the other hand, A­3 Rajiv Kumar Bansal has examined Sh. Anil Kumar, Junior Engineer, Janakpuri, D Block, Bijwasan Constituency Area, Delhi Jal Board, New Delhi as DW­2 who is working as Junior Engineer (E&M) in Delhi Jal Board. This witness has brought the summoned records and deposed that as per the records, letter bearing no.DJB/EE (E&M)/WS­SW/2018/1336 dated 11.06.2018 exhibited as Ex. DW2/D­1 was issued by their office. Perusal of Ex. DW2/D­1 shows that vide this document, Delhi Jal Board, office of the Executive Engineer (E&M) WS­SW, O.H.T. D­Block, Janakpuri, New Delhi has provided the information sought under Right to Information Act, 2005 whereby it has been informed that the tube­well in question in the present case is in operation. The further deposition of this witness also reflects that after the issuance of Ex. DW2/D­1, the bore­well in question was inspected at various times in a routine manner and CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 44 of 67 lastly, it was inspected on 16.04.2019 by him and found operational.

53.In these circumstances, since the bore­well in question was under

the care of E&M Department of Delhi Jal Board for such a huge period of time and also there is nothing on record to show that no repair or maintenance work was done in the bore­well in question except the inspection so carried out till 16.04.2019 as per the deposition of DW­2, therefore, no responsibility can be fastened upon Ravinder Singh A­1 and Pawan Kumar Ghera @ P.K. Ghera A­2 and it cannot be said that Johnson Pipes were not used in the bore­well in question at the time of execution of work order in the present case. Hence, the prosecution has failed to prove on record beyond reasonable doubt that Johnson Pipes were not used in the bore­well in question.

54.Now coming to the second aspect whether invoice/bill marked as Mark PW9/X submitted by the contractor A­3, on the basis of which the payment was released to A­3, was a forged one.

55.In order to prove forgery, the prosecution has examined PW­9 Sh. Kamal Kumar Aggarwal, Director of M/s Bharti Waters Pvt. Ltd. who deposed that during the year 2006­09, this firm used to deal in Johnson Pipes and when the Johnson Pipe was sold to any purchaser, invoice used to be prepared in triplicate i.e. one copy was given to purchaser, other was given to transporter and another used to be kept in their record. He further deposed that through CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 45 of 67 production­cum­receipt memo dated 31.08.2012 Ex. PW9/A, he had handed over to the CBI the invoice bearing no. BW/101/2006­ 07 dated 26.06.2006 exhibited as Ex. PW7/1 of M/s Bharti Waters Pvt. Ltd. vide which items mentioned in Ex. PW7/1 were sold to M/s M.S. Bore­well. He further deposed that vide production­cum­ receipt memo dated 07.02.2012 already exhibited as Ex. PW8/3 (D­7), he had handed over statement of account Ex. PW9/D pertaining to Pioneer Drilling Co. Pvt. Limited to the CBI. This witness further deposed that vide letter dated 07.04.2015 Ex.PW9/E (D­8), he had provided ledger accounts pertaining to M/s Gurnam Singh & Company and M/s M.S. Borewell, New Delhi collectively exhibited as Ex. PW9/F to the CBI. He further deposed that the invoice bearing number BW/101/2006­2007 marked as Mark PW9/X in the name of M/s Bharti Water Pvt. Ltd. placed in the file of Delhi Jal Board already exhibited as Ex. PW2/F (D­3 page­2) was not issued by his firm and is forged. This witness was cross examined on behalf of the accused persons.

56.The prosecution also examined Sh. Chandan Singh Tanwar who used to look after the affairs of M/s M.S.Borewell, a proprietorship concern as PW­7. He deposed that vide invoice no. BW/101/2006­ 07 dated 26.06.2006 Ex. PW7/1, he had purchased strainer filter pipe form LCG Water Well Screen make Johnson for a sum of Rs.87,268/­ and he did not give the copy of this bill to anyone for any use except to CBI. He further deposed that vide production­ CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 46 of 67 cum­seizure memo dated 10.02.2015 Ex. PW7/2 (D­12), he had given photocopy of production­cum­receipt memo dated 07.05.2012 Ex.PW7/3 (D­12) to Inspector Kailash Sahu of CBI. He was cross examined on behalf of the accused persons.

57.Before this court, the issue is whether invoice/bill marked as Mark PW9/X submitted by the contractor/A­3 is a forged and fabricated document. Perusal of alleged original bill Ex.PW7/1 and the alleged forged bill marked as Mark PW9/X show that they bear the same invoice number, TIN, description etc. If the bill marked as Mark PW9/X submitted by contractor/A­3 is assumed to be a fake bill, the question arises how it contains the same Invoice number, TIN, description etc. of the original/genuine bill. Putting of same invoice number, TIN, description etc. is not possible unless inside information is available as to how and in what manner the invoice number, TIN, description etc. are generated by the vendor and put on the bill/invoice issued by the company. There is no explanation given as to how contractor/A­3 could put the same invoice number which is unique number, TIN, description etc. on the forged bill as that of the alleged original/genuine bill Ex. PW7/1. PW9 Sh. Kamal Kumar Aggarwal, Director of M/s Bharti Waters Pvt. Ltd. in his deposition before the court deposed that Ex. PW7/1 is the genuine/original bill but during cross examination, he failed to identify the signatures of the person who had signed it. This witness has not explained as to how the invoice number, TIN, CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 47 of 67 description etc. are generated and put on the invoice, whether it is done in sequence chronologically or randomly. The bill book from where Ex.PW7/1 was issued, has not been produced for the scrutiny of the court to show the manner and consistency of putting unique number.

58.Perusal of invoice Ex. PW7/1 dated 26.06.2006 shows that the said invoice had been signed by the Authorized Signatory for Bharti Waters Pvt. Ltd. However, PW­9 Director Sh. Kamal Kumar Aggarwal of Bharti Waters Pvt. Ltd. during cross examination though admitted that at the bottom of invoice Ex. PW7/1 Bharti Water Pvt. Ltd., words 'Authorized Signatory' is mentioned but he could not identify the signatures of the person who had signed bill Ex.PW7/1. Even in his cross examination, this witness went to the extent by admitting that during the year 2006­2007, there was no authorized signatory for signing the invoices. The conduct of PW­9 Kamal Kumar Aggarwal shows that he has made two inconsistent statements in his evidence before the court in this regard and thus, considering his conduct, no much reliance in this regard can be placed on his testimony which is not worthy of credence.

59.It has come in the cross examination of PW­9 Sh. Kamal Kumar Aggarwal that Bharti Waters Pvt. Ltd. was incorporated as a Private Limited Company in September 2004 and prior to the same, it existed in the name of Bharti Waters. PW­9 Sh. Kamal Kumar Aggarwal during cross examination also admitted that they CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 48 of 67 have used the existing stationary of Bharti Waters for the private limited company after adding the words 'Private Limited" in the invoices for sometime. Perusal of the alleged forged bill marked as Mark PW9/X shows that the said invoice is in the name of Bharti Waters. The base on which PW­9 Kamal Kumar Aggarwal has stated that invoice marked as Mark PW9/X is a forged document, has been elicited from the mouth of this witness during cross examination wherein he has deposed that his basis of saying that invoice marked as Mark PW9/X is forged/fake, is that the format of this invoice and the invoice Ex. PW7/1 (which is their genuine invoice), are different and secondly at the time when the invoice in question i.e. Mark PW9/X was issued, Bharti Waters was running under the name of Bharti Waters Pvt. Limited. During cross examination, PW­9 Sh. Kamal Kumar Aggarwal could not say whether Mark PW9/X belongs to Bharti Waters (Partnership firm) or not. He has not specified till what time period they used the stationary of Bharti Waters for Bharti Waters Pvt. Ltd. in the invoices. The prosecution in order to prove that invoice marked as Mark PW9/X is forged one, ought to have produced before the court in evidence any such invoice/bill of Bharti Waters which have been used by Bharti Waters Pvt. Ltd. and then only comparison could have been made between the invoice marked as Mark PW9/X and such invoice/bill of Bharti Waters Pvt. Ltd. but no such invoice has been produced before the court for CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 49 of 67 comparison. Even no such invoice has been seized by the investigating officer during investigation. It is not the case of the prosecution that the format of the invoices of Bharti Waters were not in possession of PW­9 Kamal Kumar Aggarwal or that he could not produce the same before the court. When it is admitted case of PW­9 Kamal Kumar Aggarwal that the invoices of Bharti Waters were being used by Bharti Waters Pvt. Ltd. even after its incorporation then the format of the invoices of Bharti Waters ought to have been in possession of PW­9 Kamal Kumar Aggarwal. In these circumstances, instead of oral testimony of PW­ 9 Kamal Kumar Aggarwal, the base of saying that invoice marked as Mark PW9/X is forged/fake one could have been substantiated by this witness by showing to the court the documentary evidence i.e. format of the invoice of Bharti Waters which was used by Bharti Waters Pvt. Ltd. after its incorporation but he has failed to produce the same before the court. It is a cardinal rule of evidence that where documentary evidence exists, the same shall be produced as being the best evidence and the oral proof/testimony cannot be substituted for the documentary evidence. Moreover, the source of making forged invoice marked as Mark PW9/X not found out by the Investigating Officer nor any effort has been made to seize any incriminating material by conducting search in the office of A­3 or by subjecting accused A­3 to interrogation. The CBI has not bothered to record the statement of any employee of CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 50 of 67 M/s Bharti Waters Pvt. Ltd. to ascertain as to whether the alleged forged invoice marked as Mark PW9/X has been issued from an old bill book or not. In these circumstances, the possibility of the invoice/bill marked as Mark PW9/X being used from the old bill book of M/s Bharti Waters cannot be ruled out, more particularly when the invoices/bills Ex. PW7/1 and Mark PW9/X produced before the court were not verified by the CBI and also the CBI has not verified the fact regarding M/s Bharti Waters Pvt. Ltd. being earlier run as M/s Bharti Waters.

60.PW­9 Sh. Kamal Kumar Aggarwal, Director of M/s Bharti Waters Pvt. Ltd. in his cross examination before the court admitted that Ex. PW9/D i.e. Ledger Account of Pioneer Drilling Co. (P) Ltd. Delhi and Ex. PW9/E i.e. document vide which Ledger Account of M/s M.S. Borewell Ex. PW9/F (colly) was provided to the Investigating Officer, were generated through computer by his staff but he could not tell the name of the employee who generated Ex. PW9/D. During cross examination, he did not even exactly remember as to how many persons used to work in his firm during the relevant period but stated that they had four­five employees including the Peon. Investigating officer PW­13 Shitanshu Sharma admitted during cross examination that he did not take any list of employees working in Bharti Waters from Kamal Kumar Aggarwal. Ledger Accounts Ex. PW9/D and Ex. PW9/F (colly) though both bear the signatures of Kamal Kumar Aggarwal at point CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 51 of 67 A but the same do not bear the name and designation of the employee who had generated them. The same are also not signed by the said employee nor the said employee has been produced in the witness box by the prosecution. The CBI has also not bothered to record the statement of any employee of M/s Bharti Waters Pvt. Ltd. to ascertain as to who had signed the alleged genuine invoice Ex. PW7/1. Ledger Accounts Ex. PW9/D and Ex. PW9/F (colly) are computer print out but no relevant certificate under section 65 B of Indian Evidence Act has been filed in support thereof. Thus, Ledger Accounts Ex. PW9/D and Ex. PW9/F (colly) cannot be relied upon as the same are not admissible in evidence.

61.Invoice No.BW/101/2006­2007 dated 26.06.2006 Ex. PW7/1 for a sum of Rs. 87,268/­ was alleged to have been issued by M/s Bharti Waters Pvt. Ltd. in favour of M/s M.S. Borewell. Perusal of invoice Ex. PW7/1 shows that this document is silent about the mode of payment alleged to have been made by M/s M.S. Borewell to M/s Bharti Waters Pvt. Ltd. Nothing is mentioned in Ex. PW7/1 whether the mode of payment was in cash, cheque, draft, online etc. or there was any other manner. Witness PW­7 Chandan Singh Tanwar who was looking after the affairs of M/s M.S. Borewell, the alleged purchaser of goods through invoice Ex. PW7/1, has categorically admitted during cross examination that nothing is mentioned on Ex. PW7/1 to the effect that amount was paid through cheque or cash. Perusal of document Ex.PW9/F (colly) i.e. CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 52 of 67 the ledger account of M/s M.S. Borewell maintained by M/s Bharti Waters Pvt. Ltd., for which the court has already observed that the said document is not admissible in evidence, reflects that on 01.07.2006 M/s Bharti Waters Pvt. Ltd. has received a total payment of Rs.2,60,304/­ from M/s M.S. Borewell through cheque no. 806603 dated 01.07.2006 drawn on Syndicate Bank towards Vch. No. 77, 78 and 101 for a sum of Rs. 86,768/­ each. It is pertinent to mention that invoice no. BW/101/2006­2007 Ex. PW7/1 alleged to have been issued by M/s Bharti Waters Pvt. Ltd. in favour of M/s M.S. Borewell on 26.06.2006 was for a sum of Rs.87,268/­ but even if the document Ex.PW9/F (colly) i.e. the ledger account of M/s M.S. Borewell maintained by M/s Bharti Waters Pvt. Ltd. is looked into, it reflects that against the said invoice Ex. PW7/1, M/s Bharti Waters Pvt. Ltd. has received the only payment of Rs.86,768/­ instead of Rs.87,268/­ for which Ex. PW7/1 was allegedly issued for. There is no explanation why M/s Bharti Waters Pvt. Ltd. accepted only a payment of Rs. 86,768/­ from M/s M.S. Borewell when invoice Ex. PW7/1 was for a sum of Rs.87,268/­. There is nothing on record in the shape of documentary evidence to show or prove whether the remaining payment was made by M/s M.S. Borewell to M/s Bharti Waters Pvt. Ltd. or not or that if the same was made, what was the mode and the manner thereof. It is apparent from the bare perusal of Ex. PW7/1 and Ex. PW9/F (colly) that they are in clear contradiction CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 53 of 67 with each other and not tallying with each other which is must. This clearly shows that the prosecution, who has rested its case on Ex. PW7/1 as original bill in order to prove that Mark PW9/X is a forged bill, has failed to prove on record that Ex. PW7/1 per se is a genuine document. The genuineness of invoice Ex. PW7/1 has not been proved on record by the prosecution and thus, Ex. PW7/1 cannot be looked into even the purposes of comparison. Ledger Account maintained by M/s M.S. Borewell has also not been seized by the CBI during investigation. If the same was seized by the CBI, the court could have opportunity to make comparison of the same with the Ledger Account Ex. PW9/F (Colly) maintained by M/s Bharti Waters Pvt. Ltd. of M/s M.S. Borewell but the same is conspicuously missing in the present case. Thus, the prosecution has failed to prove on record that alleged payment of Rs.86,768/­ allegedly received by M/s Bharti Waters Pvt. Ltd. from M/s M.S. Borewell was towards the alleged invoice Ex. PW7/1.

62.The entire case of the prosecution is based on invoice/bill Ex. PW7/1 as the same was alleged to have been forged by contractor/A­3. The deposition of PW­9 Kamal Kumar Aggarwal reflects that they use to prepare the invoice in triplicate with carbon copies, one for purchaser, other for transporter and another to be kept by them in their record. It is usual practice in the business that original invoice/bill is always given to the purchaser. It is pertinent CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 54 of 67 to mention that in this case the original copy of the invoice which was supplied to purchaser M/s M.S. Borewell by Bharti Waters Pvt. Ltd. has not been placed on record by the Investigating Officer. It is not the case of the prosecution that the original copy of the invoice which was supplied to purchaser M/s M.S. Borewell by Bharti Waters Pvt. Ltd. was not provided by purchaser M/s M.S. Borewell to the CBI during investigation. The testimony of PW­7 Sh. Chandan Singh Tanwar who is looking after the affairs of M/s M.S. Borewell reflects that vide document Ex. PW7/3 (D­12) i.e. photocopy of production­cum­receipt memo dated 07.05.2012, this witness had provided the original copy of invoice no. BW/101/06­ 07 dated 26.06.2006 to Inspector Kailash Sahu of CBI which also finds support from his statement under section 161 Cr.P.C. recorded during investigation of the present case on 10.02.2015. However, the conduct of the Investigating officer shows that for the reasons best known to him, he did not place on record the original copy of the invoice of purchaser and also there is no explanation in this regard. Though during cross examination, PW­7 Chandan Singh Tanwar deposed that he had provided Ex. PW7/1 to the CBI but the testimony of PW­9 Kamal Kumar Aggarwal reflects that he was the person who had handed Ex. PW7/1 vide production­cum­receipt memo Ex. PW9/A to the CBI and this fact has been duly corroborated by Investigating Officer PW­13 Inspector Shitanshu Sharma who categorically admitted during CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 55 of 67 cross examination that Kamal Kumar Aggarwal had handed over the original invoice no. BW/101/06­07 to him through Ex. PW9/A. The depositions of PW­9 Kamal Kumar Aggarwal and Investigating Officer PW­13 Inspector Shitanshu Sharma proved that Ex. PW7/1 was provided to the CBI by PW­9 Kamal Kumar Aggarwal. The original purchaser copy of the invoice was the best documentary evidence which could have been produced before the court so that the comparison of the same could have been done by the court with Ex. PW7/1 i.e. the alleged original invoice copy kept by the seller in the present case but the same has been withheld by the Investigating Officer and withholding of the said document has given fatal blow to the case of the prosecution.

63.Ld.Senior Public Prosecutor for the CBI contended that the onus is upon A­3 to satisfy the court that he had purchased Johnson Pipes from M/s Bharti Waters Pvt. Ltd. as the said fact was within the special knowledge of A­3.

64.Section 106 of Indian Evidence Act provides as under :­ "106. Burden of proving fact especially within knowledge - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

65.However, section 106 Indian Evidence Act comes into play only after the prosecution has been able to prove prima facie case which the prosecution has failed in the present case.

66.Ld.counsels for the accused persons argued that in order to evade CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 56 of 67 sales tax M/s Bharti Waters Private Limited does not reflect the cash dealings. During cross examination, PW­9 Kamal Kumar Aggarwal, Director of Bharti Waters Private Limited deposed that he is aware that there are two kinds of invoices i.e. tax invoice and retail invoice and voluntarily deposed that they use only tax invoices but in his further cross examination, he admitted that in the present case, they issued only retail invoice and not tax invoice. He further admitted that they do business through bank but in case any customer has no reference and is purchasing through cash, the same is also done but the same in not usual practice. From the cross examination of this witness, it is apparent that Bharti Waters Private Limited used to issue retail invoice as well as tax invoice and besides the transaction through bank, they also used to do business through cash as well. The fact that M/s Bharti Waters Pvt. Ltd. used to do business in cash too, also stands proved from the cross examination of PW­7 Chandan Singh Tanwar who was looking after the affairs of M/s M.S. Borewell in whose favour the alleged original invoice Ex.PW7/1 was stated to have been issued by M/s Bharti Waters Pvt. Ltd., who deposed that his firm used to purchase pipes from Bharti Waters and also from Bharti Waters Pvt. Ltd. besides other firms and his firm used to purchase Johnson Pipes in cash as well as in the form of cheque. It is admitted by PW­9 Kamal Kumar Aggarwal in his cross examination that they used to maintain accounts book including stock register, cash book, CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 57 of 67 ledger account, journal account, purchase book etc. as per the requirement of law but CBI had not checked the stock, stock register, purchase register, sale register, cash book or any other accounts. He also admitted in his cross examination that whenever invoice is prepared, the details of the same is save in computer's hard disk after taking the printout and that the CBI had never raided his godown nor they ever seized his firms' computer hard disk etc. as well as Form­C of invoice Ex. PW7/1. Perusal of the record also shows that no such records have been seized by the investigating officer during investigation nor the same were produced before this court during the deposition of this witness. The Investigating officer PW­13 Shitanshu Sharma also admitted during cross examination that he had not seized any sale, purchase register, purchase book, cash book, general account of Bharti Waters Pvt. Ltd. and also not seized any computer or hard disc of M/s Bharti Water Pvt. Ltd. The said record ought to have been seized and produced before the court in order to help the court to find out the truth but the same is conspicuously missing in the present case.

67.From the aforesaid discussion, the court is of the considered opinion that the prosecution has failed to prove on record by convincing and cogent evidence that invoice marked as Mark PW9/X is a forged bill/invoice.

68.The prosecution has alleged conspiracy between A­1 and A­2 in CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 58 of 67 showing favour to A­3 in the installation of Johnson pipes in the bore­well in question as well as in submission of the forged invoice marked as Mark PW9/X. To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither is it necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implication. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. Criminal conspiracy is an independent offence in the Penal Code. The unlawful agreement is sine qua non for constituting offence under the Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express or partly implied. Even Section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the act done by one is admissible against the co­ conspirators.

69.The Hon'ble Supreme Court of India in a case titled as K.R. CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 59 of 67 Purushothaman Vs. State of Kerala, 2005 (4) Crimes 191 (SC) has held that:­ "To constitute a conspiracy, meeting of mind of two or more persons for doing an illegal act or an act by illegal means was primary condition and mere knowledge, even discussion, of plan by an accused would not per­se constitute conspiracy. It was also held that although, the agreement among the conspirators can be inferred by necessary implication, the inference can only be drawn on the parameters in the manner of proved facts, in the nature of circumstantial evidence and whatever be the incriminating circumstance, it must be clearly established by reliable evidence and they must form the full chain whereby a conclusion about the guilt of the accused can be safely drawn.

70.As regards the alleged conspiracy in the installation of the Johnson Pipes in the bore­well in question, the court has already discussed above that the prosecution has failed to prove on record that Johnson Pipes had not been installed in the bore­well in question.

71.As far as the alleged conspiracy qua the forged invoice marked as Mark PW9/X, the said invoice marked as Mark PW9/X bears the signatures of accused Ravinder Singh, Junior Engineer (A­1) at point A and accused Pawan Kumar Ghera @ P.K. Ghera, Zonal Engineer (A­2) at point B but the main responsibility lies with the contractor/A­3 to submit the same. PW­11 Sh. Radhey Shyam, Executive Engineer in his cross examination before the court admitted that it is not the duty of the Zonal Engineer/Assistant Engineer, Executive Engineer and Junior Engineer to check the CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 60 of 67 genuineness of the purchase vouchers. This witness further admitted during cross examination that it is the duty of the accounts department to check the genuineness of the purchase voucher and if any discrepancy is found by the account department in the file, final bill with annexures, the accounts department sent the same with objection to him but in the present case, the account department put the file before him without any objection. He further admitted that the accounts department used to verify the purchase vouchers from its vendors telephonically and in case the telephone number is not mentioned in the purchase voucher, the accounts department can verify the same by sending a person to the vendor and thereafter only, the payment to be made to the contractor and that there is no role of the Junior Engineer and the Zonal Engineer in release of the payments. The Chief Executive Officer of Delhi Jal Board PW­1 Sh. Keshav Chandra also admitted during cross examination that the account officer is liable to verify the amount mentioned in the purchase voucher and whether the voucher has been raised by the same agency against which the supply order or work order has been placed. PW­4 Vinay Kumar Tyagi, Assistant Account Officer from Delhi Jal Board also admitted during cross examination that only after the accounts department finds that everything is all right as per the instructions applicable to the accounts department, the file is sent to the concerned person for further payment etc. and in the present case, CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 61 of 67 no objections were raised by the accounts department before recommending the process of payment and also the file was not sent back to the Executive Engineer as there was no objection. He further admitted during cross examination that the Junior Engineer and the Zonal Engineer have no role in the release of payment to the contractor. From the cross examination of the aforesaid witnesses, it is clear that Ravinder Singh A­1 and Pawan Kumar Ghera @ P.K. Ghera A­2 who were Junior Engineer and the Zonal Engineer at the relevant time, were not required to personally verify the correctness and genuineness of the bill submitted by A­ 3/contractor. There is no material evidence on record to suggest that A­1 and A­2 contributed to the submission of forged bill or they verified or certified the same as genuine in pursuance of criminal conspiracy. Therefore, for the submission of the bill marked as Mark PW9/X, no liability can be fastened upon Junior Engineer Ravinder Singh A­1 and Zonal Engineer Pawan Kumar Ghera @ P.K. Ghera A­2 unless they have certified the same as genuine. Moreover, PW­11 Radhey Shyam, Executive Engineer admitted during cross examination that there is instructional order dated 06.09.2000 Ex. PW1/DA issued by Binay Kumar Jha, Director (F&A) and the same is applicable to the accounts department. PW­1 Keshva Chandra, Chief Executive Officer, Delhi Jal Board also admitted during cross examination that as per the instructional order dated 06.09.2000 Ex. PW1/DA, the accounts CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 62 of 67 department is duty bound to verify the bill submitted by the contractor. The other witness of Delhi Jal Board PW­2 Vikas Rathi, Junior Engineer (Civil) Vigilance Department has also admitted in his cross examination that as per the instructional order Ex. PW1/DA, it is the duty of the accounts department to verify the genuineness of the original purchase vouchers and the verification process involves calling the vendors over the phone and verifying the genuineness of the purchase vouchers. The cross examination of Investigating Officer PW­13 Shitanshu Sharma also reflects that the fact of there being an instructional order Ex. PW1/DA, has come into his knowledge during investigation at the time of recording of statement under section 161 Cr.P.C. of PW­11 Sh. Radhey Shyam but despite the same, he did not inquire about Ex. PW1/DA from any other officials of Delhi Jal Board and this fact has been admitted by him during cross examination. He also admitted during cross examination that he also did not inquire from the Account Department of Delhi Jal Board whether they have verified the purchase voucher from its vendor before releasing the payment to the contractor. Perusal of Ex. PW1/DA shows that vide this instructional order, it was imperative for Finance Officers to ensure that Contractor's bills submitted to them for clearance are duly and properly verified, including the verification of procurement bills regarding material such as pipes, cement, steel and valves etc., in original and field books and no contractor's bills CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 63 of 67 shall be passed or payments made without the necessary compliance. In the present case, payment was released to contractor/A­3 and the Finance Officers of Delhi Jal Board were bound to follow the instructions contained in the above instructional order but the same have not been followed in the present case.

72.Moreover, PW­11 Sh. Radhey Shyam, Executive Engineer witness from Delhi Jal Board who has also signed, checked and cross checked the documents admitted during cross examination that the certificate from point A to A was issued in respect of present case which is at page no.32 of measurement book Ex. PW2/E bearing his signature at point X wherein it has been mentioned that 'The work has been done as per work order". He further admitted during cross examination that he had seen the records including the measurement book, strata chart, completion report final bill along with its annexures and admitted that entries in these documents correctly record the work which as actually done and even in the completion report Ex.PW11/C, there is saving in respect of Johnson Pipes which were not used to the extent of Rs.1,00,140/­. Perusal of completion report Ex. PW11/C shows that there is saving of Rs.1,00,140/­ shown therein towards the non­use of Johnson Pipe and this fact has also been admitted by other witness PW­3 Sh.M.C. Joshi, Draftsman, Delhi Jal Board during his cross examination who has checked Ex.PW11/C. CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 64 of 67

73.From the aforesaid discussion, the court is of the opinion that since it was the duty of the Finance Department of Delhi Jal Board to verify the genuineness of invoice marked as Mark PW9/X, A­1 Ravinder Kumar, Junior Engineer and A­2 Pawan Kumar Ghera @ P.K. Ghera, Zonal Engineer who have personally supervised the material and work as well as issued the satisfaction certificate qua installation of Johnson Pipes in the bore­well in question which has also been signed, checked and cross checked by the officers of Delhi Jal Board, cannot be held criminally liable for the commission of alleged act of criminal conspiracy in the present case.

74.Investigation in the present matter has not been up to the mark. From every act of investigating agency what the Court expects is the fairness. Fairness of investigation in this case is not apparent from the face of record. It was all the more necessary for the investigating officer to observe all necessary care, caution and collect all possible material pieces of evidence including scientific evidence to nail the arraigned accused persons for the charged offences. Of course, officers of CBI, the premier investigating agency, at the outset, cannot be said to be untrustworthy but when in a serious case of alleged misconduct by the public servants, what is expected by the court from the officers of the investigating agency is to collect the best possible incriminating evidence at the first instance against such suspects/accused persons to lead CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 65 of 67 credence and to avoid criticism. In the present case, the Investigation as carried out by the Investigating Officer, as discussed above, shows his lackadaisical and casual approach in investigating the present matter.

75.From the aforesaid discussion, the court is of the considered opinion that the prosecution has failed to prove beyond reasonable doubt the charge of forgery as well as conspiracy against all the accused persons.

76.There is no fact proved by legally admissible evidence, oral or documentary, direct or circumstantial in nature, independent of sources which are likely to be tainted, of the arraigned accused persons having any meeting of minds for doing any illegal act or an act by illegal means or any amongst them having taken any active part in the commission of any conspiratorial acts in the present case. The report of Dr.D.V. Reddy is not conclusive piece of evidence and the same cannot be used as corroborative piece of evidence, as per discussion above.

77.In view of my discussion hereinabove, it is apparent that no substantive evidence has come on the record to show that the accused persons have committed the charged offences. Thus, the court holds that the prosecution has not been able to prove its case against all the accused persons beyond shadows of all reasonable doubts.

I accordingly, acquit all the accused persons for the offences CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 66 of 67 punishable under sections 120­B read with 420, 471 read with 468, 477­A IPC and section 13 (2) read with 13(1)(d) of PC Act.

I also accordingly acquit all the accused persons for the offence punishable under section 420 IPC.

I also accordingly, acquit A­3 Rajiv Kumar Bansal for the offence punishable under section 471 IPC.

I also accordingly, acquit A­1 Ravinder Singh and A­2 Pawan Kumar Ghera @ P.K. Ghera for the offences punishable under section 477­A IPC and under section 13(1)(d) and under section 13(2) of The Prevention of Corruption Act, 1988.

78.In compliance of the provisions of section 437A Cr.P.C. and on the direction of this court, all the accused persons have submitted their respective personal bond and surety bond for the sum of Rs.35,000/­ which have been accepted.

79.Ahlmad/Junior Judicial Assistant is directed to page and book­ mark the file so as to enable digitization of the entire record.

80.File be consigned to record room after necessary compliance. (Announced in the open court today i.e. 18.10.2019) (ANURAG SAIN) Special Judge (PC Act) (CBI)­11, Rouse Avenue Court Complex, Delhi CC No.265/19 CBI Vs. Ravinder Singh & Anrs. Page 67 of 67