Delhi District Court
Cbi vs . M/S Asian Resurfacing Of Road Agency ... on 31 May, 2022
IN THE COURT OF SPECIAL JUDGE (PC ACT) CBI17
ROUSE AVENUE DISTRICT COURTS, NEW DELHI
CC No. 13/12
ID No. 78/19
CNR No. DLCT110003372019
RC No. SI 8/2001/E/0002
IN THE MATTER OF :
CENTRAL BUREAU OF INVESTIGATION
VERSUS
1. M/S ASIAN RESURFACING OF ROAD AGENCY PVT. LTD.
M75, GKI, New Delhi110048.
2. PREM ARORA
S/o Late Sh. Kishan Lal Arora
Director, M/s Asian Resurfacing of Road Agency Pvt. Ltd.
R/o M75, GKI, New Delhi and site address 103 MB Road,
Lal Kuan, New Delhi.
3. RAKESH KUMAR KOLI @ RAKESH KUMAR
S/o Late Sh Hari Ram
R/o G22, Laxmi Nagar, Delhi110092.
Assistant Engineer, MCD, Office of the Executive Engineer
Division Project, South Zone, MCD office Complex
Under Sewa Nagar Flyover Bridge, New Delhi.
4. S.K. SRIVASTAVA
S/o Late Sh Ram Babu
R/o 132/2, Block B4, Safdarjung Enclave, New Delhi110029.
The Executive Engineer, Division Project, South Zone,
MCD office Complex,
Under Sewa Nagar Flyover Bridge, New Delhi.
ID No. 78/19 Page 1 of 107
CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022
5. R.K. RUSTAGI
S/o Late Sh Radhey Shyam Rustagi,
R/o B270, Vivek Vihar, Phase I, Delhi95
JE (Plant), MCD, Office of the Executive Engineer
Division Project, South Zone, MCD office Complex
Under Sewa Nagar Flyover Bridge, New Delhi.
6. RAJU GHUSIA
S/o Sh Kheirati Ram
Executive Engineer, MCD (Project)
South Zone, New Delhi.
Permanent Address: Naya Bash, Alwar, Rajasthan.
Present Address: B2/1, 14, Rajpur Road, Delhi. (since deceased)
7. OM PRAKASH SAROHA
S/o Late Sh Rattan Singh
R/o G7/5, Sector 11, Rohini, Delhi85.
Then Accountant, Div IV, MCD, New Delhi.
Now Assistant Chief Accountant, Accounts Office
Rohini Zone, MCD, Sector5 Delhi.
8. T.D. DUDEJA (TOPEN DAS DUDEJA)
S/o Late Sh. Tilla Ram
Head Clerk/Accounts Clerk, MCD
Permanent Address 3E, 24, Faridabad, Haryana. (since deceased)
Date of presentation of chargesheet : 29.11.2002
Date on which judgment was reserved : 19.05.2022
Date on which judgment was pronounced : 31.05.2022
J U D G M E N T :
1. The genesis of the present case is a written complaint dated 07.10.1999 made by Sh S.K. Jain, Additional Deputy Commissioner ID No. 78/19 Page 2 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 (Engineering), Municipal Corporation of Delhi (in short "MCD") to Deputy Inspector General, CBI, EOW. On the basis of said complaint, a preliminary enquiry bearing No. PE1(E)/99 was registered in EOW1 branch of CBI, New Delhi on 09.11.1999. After conclusion of the preliminary enquiry, an FIR bearing No. RC SI82001E0002 was registered on 07.03.2001 against some MCD officers/officials and directors of M/s Asian Resurfacing of Road Agency Pvt. Ltd., the MCD contractor and the matter was investigated.
2. On conclusion of the investigation, the CBI has filed the present chargesheet against A1 M/s Asian Resurfacing of Road Agency Pvt Ltd., the contractor, A2 Prem Arora, Director of A1 (private person) and A3 Rakesh Kumar Koli, the then Assistant Engineer; A4 S.K. Srivastava, the then Junior Engineer (Site); A5 R.K. Rustagi, the then Junior Engineer (Plant); A6 Raju Ghusia, the then Executive Engineer; A7 O.P. Saroha, the then Divisional Accountant and A8 T.D. Dudeja, the then Head Clerk (Accounts), all officers/officials of Project Division, South Zone, MCD, New Delhi and thus are public servants.
3. It would be relevant to discuss in brief the allegations made in the chargesheet which have put the aforesaid accused persons on trial. It is alleged in the chargesheet that during the year 19971998, the aforesaid MCD ID No. 78/19 Page 3 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 officers/officials i.e. A3 to A8 were posted in MCD Project Division, South Zone, New Delhi and they entered into a criminal conspiracy with A2 Prem Arora, Director of A1 M/s Asian Resurfacing of Road Agency Pvt Ltd., object of which was to cheat the MCD, Delhi by inducing it to release the payment in favour of A1 against the work orders awarded by the MCD to A1 on the basis of forged and fake invoices. In pursuance of said criminal conspiracy, two work order Nos. EE(PR)/SZ/TC/9899/74 and EE(PR)/SZ/TC/9899/75 both dated 09.11.1998 amounting to Rs. 2,76,720/ and Rs. 2,53,660/ respectively were awarded to A1 M/s Asian Resurfacing of Road Agency Pvt Ltd. for dense carpeting work of roads in Delhi.
4. The work Order No. EE(PR)/SZ/TC/9899/74 was awarded to A1 M/s Asian Resurfacing of Road Agency Pvt Ltd., of which A2 is the Director, for strengthening of road from Dargah Wali Gali along with Shop No. 919/7 to Gali along City Shoes, Shop No. 84/8, Ward No. 8, Main Bazaar, Mehrauli, South Zone, New Delhi for estimated amount of Rs. 2,94,800/; and work order No. EE(PR)/SZ/TC/9899/75 was awarded to the said company for strengthening of road starting from Bansal Krishi Store to Kalu Ram Chowk, Main Bazaar, Mehrauli, South Zone, New Delhi for an estimated amount of Rs. 2,70,300/.
5. The investigation has revealed that as per tender conditions related ID No. 78/19 Page 4 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 to said work orders, bitumen required for the work shall be purchased by the contractor directly from approved manufacturer and brought to the site plant and stored properly. The contractor was further required to submit the following documents in proof of having purchased bitumen directly from manufacturing companies: i. Cash receipt indicating the name of work for which the bitumen is being purchased.
ii. Invoice for delivery showing the quantity actually delivered.
6. It is further revealed that the MCD vide office Order No. CE III/41/PA/87/225 dated 09.06.1987 imposed following additional conditions to be incorporated in all future NITs for dense carpeting works that the contractor shall be required to submit the following documents in proof of having purchased Bitumen directly from the manufacturing companies: i. Cash receipts indicating the name of work for which Bitumen is being purchased.
ii. Invoices for delivery showing the quantity actually delivered.
iii. Gate pass of refinery.
iv. Receipts of terminal tax at HaryanaDelhi Border.
7. It is alleged that above said accused public servants in pursuance ID No. 78/19 Page 5 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 of aforesaid criminal conspiracy facilitated A2 Prem Arora in submission of following false/ forged invoices showing purchase of bitumen by him from Indian Oil Corporation Ltd. (in short "IOCL") and Hindustan Petroleum Corporation Ltd. (in short "HPCL"), Mathura: Invoice No. with date and quantity Amount (Rs.) 205775 dated 09.11.1998 for 18.120 Mts. 1,21,486/ 031184 dated 31.10.1998 for 13.600 Mts. 91,181/ 205845 dated 16.11.1998 for 18.100 Mts. 1,21,351/
8. Investigation has revealed that the above said invoices were not issued by IOC/HPCL, Mathura against the above said work orders. Though, Invoice No. 031184 dated 31.10.1998 for 13.600 Mts. amounting to Rs. 91,181/ was found to be issued by the IOC, Mathura in favour of the accused company but not for the work order in question and the same was issued against the delivery order No. AGO/13/321 dated 06.10.1997 obtained by the accused company for work at Ghaziabad in connection with work no. 1750/36/CBGZB/ Circle/97 dated 07.07.1997 issued by Executive Engineer PWD, Bulandshahar, Ghaziabad and prior to awarding of the work in question. The remaining two invoices were actually not issued by HPCL/IOC, Mathura in the name of A1 M/s Asian Resurfacing of Road Agency Pvt Ltd or in the name of anyone else and the same are false invoices amounting to Rs. 2,42,837/ submitted by A2 ID No. 78/19 Page 6 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 Prem Arora being Director of A1 M/s Asian Resurfacing of Road Agency Pvt Ltd.
9. Investigation further revealed that in pursuance of the criminal conspiracy, A4 S.K. Srivastava, the then Junior Engineer (Site) prepared the following running/final bills of works orders mentioned above on the basis of entries recorded in the MBs under his own signatures along with signature of A5 R.K. Rustagi and submitted the same to higher authorities for passing the same for payment, although A2 Prem Arora did not submit the requisite documents as proof of having procured the bitumen as per tender conditions.
Sl. Bill No. and Date Work Order No. Amount (Rs.)
No.
1. 5P dated 29.1.99 EE(Pr)/SZ/TC/9899/74 3,03,213.67 P
dated 9.11.98
2. 6P dated 29.1.99 EE(Pr)/SZ/TC/9899/75 2,77,084.86 P
dated 9.11.98
10. It is alleged that A3 R.K. Koli and A5 R.K. Rustagi in pursuance of the above said conspiracy countersigned the aforesaid running/ final bills prepared by A4 S.K. Srivastava and A7 T.D. Dudeja processed and checked the said bills. He being the Head Clerk (Accounts) neither asked for the requisite documents as per tender conditions nor pointed out the same to his higher authorities. The bills were sent to A6 Raju Ghusia by A7 O.P. Saroha, Divisional Accountant for passing the bills for payments without insisting for ID No. 78/19 Page 7 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 the requisite documents as per tender conditions. A6 Raju Ghusia in pursuance of the said criminal conspiracy finally passed the said bills under his own signatures without checking the source from which the contractor had produced the bitumen for the said work, more particularly when he did not issue any recommendation letter to IOC and HPCL for release of bitumen against the said work orders in favour of A1 M/s Asian Resurfacing of Road Agency Pvt Ltd, New Delhi. This omission resulted in payment of Rs.5,39,492/ to the contractor on the basis of above mentioned forged/false invoices and thus they have cheated the MCD to the tune of Rs. 5,39,492/.
11. It is alleged that the accused persons dishonestly used the forged invoices as genuine despite having knowledge of the same or reasons to believe it to be forged one in order to cheat the MCD and caused wrongful loss to the MCD and corresponding wrongful gain to themselves jointly or severally. It is also alleged that the accused public servants i.e. A3 to A8 committed offence of criminal misconduct by facilitating A2 Prem Arora in submission of forged bills and in getting the payment released in favour of A1 on the basis of forged invoices. Hence, present chargesheet seeks to prosecute all the accused persons for commission of offence punishable under Section 120B IPC r/w Sections 420, 467 and 471 of the IPC and Section 13 (2) r/w Section 13(1) (d) of the PC Act, 1988 and for substantive offences thereunder.
ID No. 78/19 Page 8 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022
12. Sanction orders qua A3 Rakesh Kumar Koli, A4 S.K. Srivastava, A5 R.K. Rustagi, A6 Raju Ghusia, A7 T.D. Dudeja and A8 O.P. Saroha being the public servants were obtained from the Competent Authority and are annexed with the chargesheet.
COGNIZANCE OF OFFENCE :
13. After perusing the chargesheet in the light of supporting documents, Ld Predecessor of this Court took cognizance of offence against all the accused person as per the chargesheet and the accused persons were accordingly summoned.
14. Pursuant to service of summons, all the accused persons appeared before the Court and in compliance with the provisions of Section 207 Cr.P.C., the accused persons were supplied with the copy of chargesheet and documents relied upon by the prosecution.
CHARGE :
15. Ld Predecessor of this court after hearing the Ld. Prosecutor and Ld. Defence Counsels for all the accused persons passed order on the point of charge on 01.02.2007 forming an opinion that prima facie a case for commission of offence punishable u/s 120B/420/471/467 of the Indian Penal Code (in short "IPC") and Section 13 (2) r/w 13 (1)(d) of the Prevention of Corruption Act (in ID No. 78/19 Page 9 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 short "PC Act"), 1988 has been culled out against all the accused persons. The Ld Predecessor had also opined that substantive offence against A1 and A2 under Sections 420, 467 & 471 of the Indian Penal Code and against A3 to A8 under Section 13 (2) r/w Section 13 (1)(d) of the PC Act 1988 was also made out on the basis of material on record.
16. Vide order dated 12.02.2007, requisite charge for the offence punishable under Section 120B of IPC r/w Section 420, 471 r/w 467 of IPC and Section 13(2) r/w 13(1)(d) of the PC Act, 1988 against all the accused persons was framed.
17. Separate charge for substantive offences punishable under Sections 420, 467 & 471 of the IPC was framed against A1 and A2.
18. Separate charge for substantive offence punishable under Section 13 (2) r/w Section 13 (1)(d) of the PC Act, 1988 was framed against A3 to A8, the public servants.
19. The charges framed against all the accused persons were read over to them, to which they pleaded not guilty and claimed trial.
20. It is pertinent to mention here that vide order dated 09.05.2022, when the case was proceeding for final arguments, this Court while exercising powers under Section 216 Cr.P.C. framed additional charge under Section 120B ID No. 78/19 Page 10 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 IPC read with Section 420 IPC against A1, A2, A3 to A5 & A7 and charge under Section 420 IPC against A1 & A2 qua invoice No. 031184 dated 31.10.1998 which was not issued for work in question but was related to some other work at Ghaziabad.
21. The additional charge was read over to the accused persons to which they pleaded not guilty and claimed trial.
ABATEMENT OF PROCEEDINGS QUA A6 RAJU GHUSIA AND A8 T.D. DUDEJA:
22. During pendency of the proceedings, A6 Raju Ghusia and A8 T.D. Dudeja had expired and proceedings qua them were abated. PROSECUTION EVIDENCE :
23. In order to prove its case, the prosecution has examined 24 witnesses. The witnesses so examined by the prosecution can be broadly categorized in 7 categories:
24. The first category of witnesses examined by the prosecution were the MCD officers/officials and comprises: i. PW24 Sh. S.K. Jain, Additional Deputy Commissioner, MCD, the complainant, ii. PW5 Sh. Pradeep Bansal, Executive Engineer, iii. PW6 Sh. Hari Dev Seekri, Chief Engineer, iv. PW8 Sh.K.S. Sandhu, Chief Engineer, v. PW11 Sh. Sant Lal, Chief Engineer, ID No. 78/19 Page 11 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 vi. PW13 Sh. Deepak Mukhopadhyay, Chief Engineer, vii. PW14 Sh. Om Prakash Kumar, UDC in South Project Division,
25. The witnesses of the first category have deposed with regard to the complaint, the procedure with respect to NIT work conditions, agreement, submission of invoices by the contractor, preparation of documents i.e. MB Books and other relevant documents pertaining to execution of work by the concerned engineers of MCD as well as pertaining to the test checks and lab reports, preparation of bills etc, submission of records to the investigating officer during course of the investigation and regarding identification of the signatures of the accused persons on certain documents.
26. Second category of witnesses examined by the prosecution are the officers of Indian Oil Corporation Ltd. (IOCL) as well as of HPCL which comprises : i. PW1 Sh. Sameer Garg, Manager Finance, Indian Oil Corporation (Marketing Division, Mathura Refinery Terminal, Mathura).
ii. PW9 Sh. J.S. Khanuja, Executive Sales Officer,
HPCL.
iii. PW10 Sh. Hira Lal Sith, Deputy Manager,
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Mathura Refinery (HPCL).
iv. PW19 Sh. Vijay Krishna Bhatnagar, Senior
Regional Manager (Direct Sales HPCL).
v. PW20 Sh. Ajay Verma, Senior Divisional
Manager, IOC.
27. The witnesses of this category deposed about the procedure by which bitumen used to be supplied by the IOCL and the HPCL and the procedure regarding issuance of invoices and delivery orders on the basis of which bitumen is released to the contractor or his representative by the terminals, against invoices and regarding submission of records to CBI.
28. The third category of witnesses examined by prosecution are from transport authority as well as the transporters, who deposed with respect to the vehicles, registration number of which were mentioned on the invoices in question and comprises : i. PW2 Sh. Mukesh Jain, partner of M/s Jain Sons transporter, ii. PW21 Sh. Arvind Kumar Jain, Assistant Regional Transport Officer, U.P.
29. Fourth category consists of the witnesses are from the bank to prove the account of MCD and of the contractor i.e. A1 and consists of : ID No. 78/19 Page 13 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 i. PW3 Sh. Sudhir Dutt Sharma, Assistant Manager, Vijaya Bank, NIT, Faridabad.
ii. PW4 Sh. Om Prakash, Officer Punjab and Sind Bank, Sahora Kala branch, Pathankot, Punjab.
30. Fifth category of witnesses are the competent authority who have given sanction for prosecution of the accused persons who were the public servants at the relevant time and consists of : i. PW16 Sh. Rakesh Mehta, Commissioner MCD, ii. PW17 Sh. B.S. Sharma, Additional Commissioner Engineering
31. Sixth category of the witnesses includes the witnesses who remained associated with the investigation of the present case in one form or the other including the scientific expert and the investigating officers viz.
i. PW12 Sh. T. Joshi, Assistant Director and
Scientist, Office of CFSL, Chandigarh,
ii. PW15 Sh. S.K. Kashyap, DSP, EOWCBI,
iii. PW22 Sh. S.S. Yadav, Investigating Officer of
the case,
iv. PW23 Sh. Ashok Kumar Saha, DSP EOU, CBI.
32. The seventh category of the witnesses consists of miscellaneous witnesses who joined the investigation at the request of the investigating officer ID No. 78/19 Page 14 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 namely, i. PW 7 Sh. Shamsher Singh, Security Guard in State Bank of Bikaner and Jaipur, Nehru Place, Delhi, ii. PW18 Smt. Hem Lata Sharma.
33. The detailed testimony of these witnesses will be discussed in the later part of the judgment at the appropriate place.
34. All the prosecution witnesses were crossexamined by Ld. Defence Counsels. The crossexamination of witnesses is not being discussed in detail here for the sake of brevity and same shall be referred during the appreciation of the evidence in the later part of the judgment.
35. After completion of the prosecution evidence, statement of accused persons were recorded under Section 313 Cr.P.C. in which entire incriminating evidence against them was put which was denied by them and they pleaded innocence.
36. In his statement under Section 313 Cr.P.C., A2 Prem Arora for himself and as AR of A1 while denying the prosecution evidence incriminating against him stated that this is a false case filed against him and the Investigating Officer without considering the conditions of the agreement executed between A1 and the MCD has filed the chargesheet. He further stated that the original ID No. 78/19 Page 15 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 agreement was not placed before this Court and that he has suffered a lot due to this case.
37. A3 Rakesh Kumar Koli also denied the prosecution evidence incriminating against him and stated that the work was for dense carpeting and not for supply of bitumen and bitumen represents a very small percentage in the entire work. He further stated that the officials were not required to be present at the time of unloading of bitumen as mostly, the bitumen arrived late during night hours and it was not possible to be present during night. He further stated that after the information of procurement of bitumen by the contractor to the staff, the officials used to check the quality and quantity of the material before execution of work and necessary checks used to be carried out. He further stated that after the execution of work, the work was measured and accordingly the bill was prepared and there is no illegality and that he is innocent and has been falsely roped in the present case.
38. Similarly, A4 S.K. Srivastava, A5 R.K. Rustagi & A7 O.P. Saroha denied the incriminating evidence put to them in their respective statement recorded under Section 313 Cr.P.C and stated on similar lines in their defence as stated by A3 in his defence in his statement recorded u/s 313 Cr.P.C. DEFENCE EVIDENCE :
39. A1 & A2 examined Sh. Leeladhar as DW1 and A2 Prem Arora ID No. 78/19 Page 16 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 examined himself as DW2 in their defence.
40. It is pertinent to note here that after closing the defence evidence, when the case was proceeding for final arguments, this Court framed additional charge in exercise of powers under Section 216 Cr.P. C as noted hereinabove and pursuant to framing of additional charge, A1 & A2 recalled PW8 Sh. K.S. Sandhu for crossexamination under Section 217 Cr.P.C. ARGUMENTS MADE ON BEHALF OF THE PARTIES
41. I have heard Sh. Raj Kamal, Ld. Prosecutor, Sh. K.K. Patra, Ld. Counsel for A1 & A2 and Sh. S.P. Aggarwal, Ld. Counsel for A3, A4, A5 & A7 and perused the record.
42. Ld. Public Prosecutor submitted that the MCD had awarded two work orders to A1 M/s Asian Resurfacing of Road Agency Pvt. Ltd. of which A2 Prem Arora is the Director for dense carpeting of road in Delhi and A2 being director of A1 entered into a criminal conspiracy with the accused public servants who were the officers/officials of the MCD to cheat the MCD, Delhi. He submitted that pursuant to said conspiracy, A2 on behalf of A1 submitted three invoices with the MCD showing delivery of bitumen by IOCL, Mathrua, out of which two invoices were found to be forged and one invoice though was issued by IOCL, Mathura but the same was not related to the work orders in question and was in respect of some other work at Ghaziabad. He further ID No. 78/19 Page 17 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 submitted that the accused public servants facilitated A2 to get the payment released in favour of A1 on the basis of said forged invoices. He argued that the prosecution witnesses have been able to prove the case against the accused persons beyond reasonable doubt and thus all the accused persons are liable to be convicted as per charge framed against them.
43. On the other hand, Ld. Counsel for A1 & A2 argued that the work of dense carpeting awarded to A1 vide two work orders has been completed by A1 satisfactorily and payment thereof has also been made to the contractor, therefore there cannot be any element of cheating the MCD by submitting the forged invoices. He submitted that the submission of the invoice by the contractor was not a condition of the contract entered into between the contractor and the MCD and even without submission of the invoices the contractor was entitled for payment. He further submitted that the NIT, work order or the additional conditions are not the part of the contract which was entered into between the contractor and the MCD and, therefore, the same are not binding upon A1 & A2. He further vehemently argued that even the prosecution has not been able to prove that the invoices submitted by A2 Prem Arora are forged. He submitted that even if the case of the prosecution that invoices were found to be forged is admitted, still there is no evidence to suggest that A2 had the knowledge of forgery of invoices or he had any reasons to ID No. 78/19 Page 18 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 believe that the invoices so submitted were forged because A1 had bought the bitumen through a supplier, namely, Sh. B.D. Guliyani and against the supply of bitumen A1 had made the payment to said supplier. He further submitted that no wrongful loss was caused to the MCD and, therefore, ingredients of Section 420 IPC are not attracted in the present case. He submitted that A1 & A2 are liable to be acquitted.
44. Sh. S.P. Aggarwal, Ld. Counsel for A3 to A5 & A7 contended that the accused public servants had no knowledge that the invoices which had been appended with the bills were forged. He submitted that admittedly the work has been executed and the prosecution has no grievance about the quality or quantity of the work carried out by the contractor against which the bills have been prepared, processed and passed by the accused public servants. He further submitted that the MCD officials had no mechanism to check the genuineness and veracity of the bills. He further submitted that the witnesses examined by the prosecution have not deposed anything against accused public servants and there is no evidence to the effect that the accused public servants either entered into a criminal conspiracy with A1 & A2 or they committed offence of criminal misconduct. He further submitted that even the prosecution has not been able to prove that the invoices which were submitted by the contractor were forged. He submitted that the accused public servants are liable to be ID No. 78/19 Page 19 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 acquitted.
REASONING AND APPRECIATION OF EVIDENCE
45. The case of the prosecution is that Office of the Executive Engineer, Division Project, South Zone, MCD, New Delhi had awarded work of dense carpeting of road to A1 M/s Asian Resurfacing of Road Agency Pvt. Ltd. vide two work orders No. 74 & 75 for total contractual amount of Rs. 5,30,380/. As per NIT conditions, the bitumen required for the work was to be purchased by the contractor directly from approved manufacturer. The contractor was further required to submit cash receipt indicating name of work order for which the bitumen is being purchased and the invoice for delivery showing quantity of bitumen actually delivered, in proof of having purchased the bitumen directly from the manufacturing companies. The MCD vide Office Order No. CEIII/41/PA/87/225 dated 09.06.1987 imposed additional conditions which were to be incorporated in all future NITs for dense carpeting work by which the contractor apart from the cash receipt and the invoice was also required to submit gate pass of the refinery and receipts of terminal tax at Delhi Haryana border, as a proof of purchase of bitumen from the approved manufacturers. It is further case of the prosecution that A2 being Director of A1 in criminal conspiracy with accused public servants submitted three invoices out of which invoice bearing No. 031184 dated 31.10.1998 though ID No. 78/19 Page 20 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 found to be genuine but the same was not for the work in question and was in respect of some other work at Ghaziabad, The remaining two invoices bearing Nos. 205775 dated 09.11.1998 & 205845 dated 16.11.1998 were found to be forged which were not issued by HPCL, Mathura Refinery. It is alleged that the accused public servants in criminal conspiracy with A2 accepted the said forged invoices without asking for other requisite documents i.e. cash receipt, gate pass and terminal tax receipt and they recorded entry in the relevant Measurement Books (MBs), prepared the running final bills of contractor on the basis of work recorded in MBs and submitted to the account section on the basis of which payments were released to A1 and thus they all cheated the MCD by submitting and accepting the forged bills.
46. First of all, I shall deal with the allegations levelled against A1 & A2. Both the accused have been tried for offence of criminal conspiracy punishable under Section 120B IPC read with Sections 420/467/471 IPC and for substantive offence punishable under Section 420 IPC for cheating the MCD and causing wrongful loss to the MCD and wrongful gain to A1 on the basis of two forged invoices, under Section 471 read with 467 IPC for dishonestly using the forged invoices as genuine despite knowledge or having reasons to believe it to be forged and under Section 420 IPC for cheating the MCD on the basis of invoice No. 301183 which was not in respect of the work in question. ID No. 78/19 Page 21 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022
47. With regard to allegation of cheating pertaining to invoice bearing No. 031184 dated 31.10.1998 which though was genuine and issued by IOCL, Mathura but the same was not issued for work orders in question and the same was issued in respect of work at Ghaziabad awarded to A1, Ld. Prosecutor submitted that one of the requirements of the agreement executed between the MCD and A1 Asian Resurfacing of Road Agency Pvt. Ltd, the contractor was to obtain the fresh bitumen which was to be used in dense carpeting of road and since in the present case the work was awarded to A1 on 09.11.1998, therefore bitumen supplied vide invoice bearing No. 031184 dated 31.10.1998 could not have been used by the contractor i.e. A1 in execution of work orders in question and the same was the violation of terms of the agreement executed between the MCD and A1. On the other hand, Ld. Counsel for A1 & A2 vehemently submitted that there was no such condition in the contract executed between the MCD and A1 and there was no bar on the contractor in using the bitumen supplied in respect of some other work and no wrongful loss had been caused to the MCD on this count.
48. To establish the charge pertaining to invoice No. 031184 dated 31.10.1998, the prosecution has examined PW1 Sh. Sameer Garg, Senior Manager Finance, Indian Oil Corporation Ltd., Panipat. He has deposed that in the year 2001, he was posted as Manager Finance, Indian Oil Corporation ID No. 78/19 Page 22 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 (Marketing Division), Mathura Refinery, Mathura. He further deposed that during the investigation of this case, he had handed over the original office copy of invoice No. 31184 dated 31.10.1998 to the IO vide production memo dated 11.07.2001 Ex.PW1/A. He has proved the office copy of delivery challan cum invoice no. 31184 dated 31.10.1998 for the sale of bitumen to M/s Asian Resurfacing of Road Agency Pvt. Ltd. as Ex. PW1/B. He has deposed that the delivery challan cum invoice is prepared in six copies and 2 or 3 copies of the delivery challans cum invoice are given to the consignee. He has proved the another copy of invoice Ex.PW1/B which was given to the consignee as Ex. PW1/C.
49. A2 Prem Arora, Director of A1 has not disputed the fact that invoice Ex.PW1/B and copy thereof Ex.PW1/C were issued for sale of bitumen to A1 in respect of work to be carried out at Ghaziabad in his statement recorded under Section 313 Cr.P.C. He even during his crossexamination has admitted that the invoice No. 031184 dated 31.10.1998 Ex. PW1/B & Ex. PW1/C were issued against the delivery order of bitumen issued by IOC for a work of PWD, Ghaziabad which was a big contract and was being executed by A1 M/s Asian Resurfacing of Road Agency Pvt. Ltd from the same hot mixed plant.
50. So, it is not in dispute that Ex. PW1/B & Ex. PW1/C were issued ID No. 78/19 Page 23 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 in the name of A1 M/s Asian Resurfacing of Road Agency Pvt. Ltd. by IOC, Mathura, UP for the delivery of bitumen against the work to be executed at Ghaziabad by A1 and not for the work orders in question.
51. Now, question which arises here is whether the contractor i.e. A1 M/s Asian Resurfacing of Road Agency Pvt. Ltd. by using the bitumen purchased vide Ex. PW1/B & Ex. PW1/C for executing the works in question has breached the terms of the contract, and if it was so, then what loss has been caused to the MCD on account of this act of A1 ?
52. PW8 Sh. K.S. Sandhu who was posted as Chief EngineerI in MCD in the year 2001 has proved the file No. 8/10 (D7) of the MCD pertaining to work of strengthening of road from Bansal Krishi Store to Kalu Ram Chowk, Main Bazar, Mehrauli through M/s Asian Resurfacing of Road Agency Pvt. Ltd. in respect of work order No. 75 as Ex. PW8/A and another file No. 8/12 (D4) of the MCD pertaining to work of strengthening of road from Dargah Wali Gali along shop No. 9197 to Gali along City Shoes Shop No. 84/8, Ward No. 8, New Bazar, Mehrauli through M/s Asian Resurfacing of Road Agency Pvt. Ltd. in respect of work order No. 74 as Ex. PW8/B.
53. Even otherwise, there is no dispute that the contracts Ex.PW8/A and Ex.PW8/B were entered into between the MCD and A1 M/s Asian Resurfacing of Road Agency Pvt. Ltd. for strengthening of roads in Mehrauli ID No. 78/19 Page 24 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 Area, New Delhi. Perusal of the same reveals that there is no such condition by which the contractor was required to purchase fresh bitumen i.e. only after the award of work and the bitumen purchased against the invoice in respect of some other work could not have been used by him in execution of work orders in question as argued by Ld. Prosecutor.
54. Ld. Prosecutor in this regard has referred to testimony of PW6 Sh. Hari Dev Sheekri, who remained posted as Chief Engineer in the MCD since November 1997 and deposed in his examinationinchief that as per agreement condition, the contractor was required to procure the fresh bitumen from the oil refineries. During crossexamination, this witness has categorically stated that the freshness of the bitumen was tested in the laboratory as well as at the site. He further stated that payment for the work is made to the contractor only if all the tests are in order.
55. So, as per this witness, freshness of the bitumen is tested in the laboratory as well as at the site and the payment for the work done is made only when all the tests are in order. In the present case, admittedly the MCD had made the payment to the contractor i.e. A1 for the dense carpeting work. It means there was no issue of freshness of the bitumen. Furthermore, statement of PW8 Sh. K.S. Sandhu is also very relevant in this regard. He has stated in his crossexamination by Ld. Counsel for A1 & A2 that the shelf life of bitumen is ID No. 78/19 Page 25 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 810 months from its manufacturing depending upon the specification under which the same has been manufactured by the company. He admitted that within 810 months of manufacturing of bitumen, the same can be used in dense carpeting of road. He stated that if it is mentioned on the invoice about the manufacturing of bitumen, then 810 months of shelf life is calculated from the date so mentioned on the invoice, however in case there is no specific mention of date of manufacturing of bitumen on the invoice, then the date of manufacturing of bitumen is taken as the date of invoice. He admitted that no date of manufacturing of bitumen is mentioned on invoice dated 31.10.1998 Ex.PW1/B & Ex.PW1/C and, therefore, it shall be taken the date of manufacturing of bitumen as 31.10.1998. He categorically stated that the bitumen manufactured on 31.10.1998 could have been used by the contractor for the dense carpeting work done in the month of November 1998.
56. In the present case, the work has been executed by the contractor i.e. A1 & A2 in the month of November 1998 which fact is not in dispute and, therefore, as per testimony of PW8 Sh. K.S. Sandhu examined by the prosecution itself, it cannot be said that the contractor had not used the fresh bitumen which was the requirement of NIT as per the case of the prosecution.
57. Further, in view of concluding statement of PW8 where he categorically stated that on account of using the bitumen vide invoice ID No. 78/19 Page 26 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 Ex. PW1/B and Ex. PW1/C by the contractor in the present case, no loss has been caused to the MCD, the charge under Section 420 IPC against A1 & A2 in respect of invoice bearing No. 031184 dated 31.10.1998 is not proved and no case of cheating the MCD by A1 & A2 by submitting the invoice Ex.PW1/B & Ex. PW1/C is made out against them.
58. Now coming to the gravamen of prosecution with regard to remaining two invoices bearing Nos. 205775 dated 09.11.1998 and 205845 dated 16.11.1998 submitted by A2 on behalf of A1 which prosecution has claimed to be forged on the basis of which payment of Rs. 5,39,492/ got released by A2 to the contractor.
59. The first limb of the argument of the Ld. Counsel of A1 & A2 was that the submission of invoice by the contractor for his entitlement for payment was never a condition in the agreement as the agreement was for carrying out the dense carpeting work and not for the purchase of bitumen. He argued that in the absence of any such condition, the contractor was not even obliged to submit the invoice and the payment of the work carried out by the contractor was not dependent upon the submission of the invoice. He further argued that the purpose of invoice was only to ensure the quality and quantity and it was only a superfluous condition in the NIT and work order which is not mentioned in the agreement executed between the MCD and the contractor i.e. ID No. 78/19 Page 27 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 A1 and the same was not signed by the contractor and cannot be binding on him.
60. Per contra, the Ld. Prosecutor has vehemently submitted that the said condition is find mentioned in NIT and the work order pursuant to which the tender was submitted by the contractor, therefore it was deemed acceptance of the condition and further the said condition was also found mentioned in the additional conditions appended to the contract. He further submitted that the contractor cannot take the shelter that since the submission of invoice was not a condition of agreement, he was not bound to submit the same.
61. In view of above rival contentions, it has to be seen whether there was any such condition of submission of invoice by the contractor in the agreement executed between A1 and the MCD.
62. As noted above, through the testimony of PW8, the prosecution has proved the contract for strengthening of the road from Dargah Wali Gali along with Shop No. 919/7 to Gali along City Shoes, Shop No. 84/8, Ward No. 8, Main Bazaar, Mehrauli, South Zone, New Delhi in respect of work order No. 74 as Ex PW8/B and the contract for strengthening of road from Bansal Krishi Store to Kalu Ram Chowk, Main Bazaar, Mehrauli, South Zone, New Delhi in respect of Work Order No. 75 as Ex PW8/A.
63. PW14 Om Prakash Tanwar who was UDC in South Project ID No. 78/19 Page 28 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 Division in MCD in the year 1996 has deposed that he has to look after the work of tender work, order work and complaint while working under the Executive Engineer. He has further deposed that he had seen the accused public servants while writing and signing during office functioning and hence identified the signatures of A3, A4, A5 & A7 on various documents of the MCD including measurement book, cash book, work order etc. During his crossexamination, by Ld. Counsel for A1 & A2, he admitted that the contract was given to a company M/s Asian Resurfacing of Road Agency Pvt. Ltd. in respect of work order No. 74 and 75. He was shown agreement no. 74/ 9899 at page no. 50 (in File D4) and after having seen the same he stated that the terms and conditions of that agreement are at page no. 27 to 35 which were signed by both the parties viz. the MCD and the contractor. He admitted that the contractor was under
obligation to fulfill the conditions which were mentioned in the terms and conditions at pages no. 27 to 35. He admitted that the contractor was under
obligation to fulfill the conditions which were at page no. 27 to 35 only being terms and conditions and none else. Similarly, having seen the terms and conditions in File No. D7 at pages no. 17, 18, 18A, 19, 20, 21, 23 and 24 in respect of order No. 75 (part of Ex.PW8/A), he stated that the same were the only terms and conditions which were to be complied by the contractor and none else.
ID No. 78/19 Page 29 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022
64. PW8 Sh. K.S. Sandhu, Chief Engineer, MCD also admitted in his crossexamination that whatever contract/agreement has been signed by the contractor, the contractor is bound by the terms of that contract only.
65. PW22 Sh. S.S. Yadav who is IO of the case also stated during his crossexamination by Ld. Counsel for A1 & A2 that he had gone through the contract/agreement between the MCD and the contractor Ex. PW8/A and Ex. PW8/B which contains the contract at page no. 17 to 24 and at page no. 27 to 35 respectively were binding on the parties and they were supposed to act upon as per the terms and conditions of the contract. He admitted that the additional condition is not the part of the contract signed by the parties.
66. The aforesaid testimony of prosecution witnesses shows that terms and conditions as mentioned at page no. 17 to 24 of contract Ex.PW8/A and at page no. 27 to 35 of the contract Ex.PW8/B in respect of work order no. 75 & 74 respectively were binding upon the parties. A bare perusal of the same would show that there is no such condition by which the contractor was obliged to submit the invoice as proof of purchase of bitumen to be used for the work of dense carpeting for his entitlement for release of payment.
67. The Ld. Prosecutor has not been able to show me any such condition that submission of invoice by the contractor is enumerated in the agreement which was binding upon the parties. The Ld. Prosecutor has laid ID No. 78/19 Page 30 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 emphasis on the additional conditions appended to the agreement wherein one of the requirements of submission of 'receipt' is mentioned. However, the said additional condition is not signed by the contractor and as also admitted by PW 22 S.S. Yadvav, the IO of the case that the additional condition is not the part of the contract signed by the parties. I am unable to read the said condition as mentioned in the additional conditions as part of the contracts Ex. PW8/A and Ex.PW8/B executed between the contractor i.e. A1 and the MCD.
68. For the similar reasons, the Ld. Prosecutor has not been able to persuade me that the condition of submission of invoice as mentioned in the NIT and the work orders would be binding upon the contractor by virtue of deemed acceptance. In my considered opinion, NIT and the work orders which have been issued by the MCD and not signed by the contractor cannot be said to be part of the contract between the MCD and A1, the contractor; more particularly in view of the statements made by the prosecution witnesses as noted above that the parties shall remain bound by the terms and conditions of the agreement signed by them and beyond that any unilateral condition made by the MCD cannot be said to be part of the contract between the parties.
69. Ld. Counsel for A1 & A2 has assailed the contention of Ld. Prosecutor that submission of invoice is mentioned in the NIT and in the work orders. He contended that in the NIT and the work orders there is no mention of ID No. 78/19 Page 31 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 word "invoice" and in the said documents there is mention of word "receipt"and the receipt and the invoice are two different things.
70. I have perused the NIT and the work orders. In last para of the NIT (part of Ex.PW8/B in D4), it is mentioned that " Fresh supply of bulk bitumen from Bharat Petroleum/IOC/HP as appd. by the EinCharge will be arranged by the contractor and fresh receipt of this in original as proof of purchase from Oil Companies will be submitted as proof by him to the Deptt. No receipt of any dealer/stockist /distributors etc. will be accepted". Similar condition is also mentioned in the work order No. 74 Ex.8/B (part of D4) and in the work Order No. 75 Ex.PW8/A (part of D7).
71. I do not agree with the contention of Ld. Counsel for A1 & A2 that the word "receipt" as mentioned in the NIT and the work orders is something different from invoice because the last para as noted above talks about the fresh receipt in original as proof of purchase of bitumen and it can be invoice only issued by the oil refineries showing purchase of bitumen. Otherwise, what else could be proof of purchase of bitumen from the oil companies. This is corroborated by the word "ICCR" mentioned on the top of the invoice Ex. PW6/DX which PW9 Sh. J.S. Khanuja has clarified that the invoice which was issued where the payment was received more or loss with regard to the bitumen being supplied is called ICCR (Invoice cum Cash ID No. 78/19 Page 32 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 Receipt).
72. Admittedly, A1 the contractor through A2 submitted the invoices with the MCD on the basis of which payments were released to the contractor. Now, if the submission of invoice was not the requirement of the agreement between the parties, the question arises as to what for the contractor i.e. A1 through A2 submitted the invoices to the MCD ?
73. Ld. Counsel for A1 & A2 submitted that the purpose of the invoice was to ensure the quality and quantity of the bitumen supplied. In this regard, he has also referred to the crossexamination of PW8 Sh. K.S. Sandhu where he admitted the suggestion given by him that the invoice indicates quality and quantity of the bitumen supplied. He further admitted the suggestion given by A1 & A2 that requirement of the invoice is only for the purpose of checking quality and quantity of bitumen.
74. PW11 Sh. Sant Lal, another Chief Engineer, MCD also admitted during his crossexamination by A1 & A2 that the purpose of the invoice is to check the quality and quantity of the bitumen. He also admitted the suggestion that for making payment to the contractor by the MCD for the work executed by him, invoice is not required. He volunteered that production of invoice is a part of procedure to ensure the quality of the bitumen.
75. Therefore, if the purpose of submission of invoice was to ensure ID No. 78/19 Page 33 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 the quality and quantity of the bitumen, then it cannot be said that the submission of invoice was not an essential condition or requirement. Even if the submission of invoice was not an essential requirement, the fact of the matter is that the contractor had submitted two invoices to the MCD for the payment of the dense carpeting work which is not in dispute. As per the case of the prosecution, the said invoices are forged. Ld. Prosecutor vehemently argued and rightly so that it could not have also been the condition of the contract to submit the forged documents and the contractor was not supposed to submit the forged invoices. While, Ld. Counsel for A1 & A2 has vehemently submitted that even otherwise the prosecution has miserably failed to prove that the said two invoices are forged. Therefore, next question which arises here as to whether the prosecution has been able to prove that the said two invoices bearing No. 205775 dated 09.11.1998 and 205845 dated 16.11.1998 are forged ?
76. It goes without saying that the onus was upon the prosecution to prove that the said two invoices are forged.
77. In order to prove the same, the prosecution has examined PW9 Sh. J.S. Khanuja who was posted as Executive Sales Officer, Hindustan Petroleum Corporation Ltd. from 1993 to 2003. This witness has talked about the procedure for procurement of the bitumen from the Government Refinery. He deposed that firstly the Government Department requiring bitumen for the ID No. 78/19 Page 34 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 purpose of any road work used to place purchase order with HPCL mentioning the details of the project, quantity required and the name of third party in case the work has been assigned to some third party. On receipt of the purchase order, their office used to issue customer code number on the basis of customer master record form. He further deposed that in case the government department had given the contract to some third party, then the third party approached the HPCL for issuance of bitumen along with copy of work order and then the third party was issued a separate code number. Thereafter, the office of HPCL located at Delhi used to issue delivery order giving the details of customer code number, name of the party to whom the bitumen to be delivered, quantity of bitumen to be delivered and the place where it is to be delivered and the sales tax implication. The delivery order also used to contain the details regarding mode of transportation. Further, in case the payment was made by the party at Delhi office, the delivery order used to mention the cash receipt number and date and in case the payment was made at the refinery then only mode of payment was through demand draft. He further goes on to describe that there were three copies of delivery order being prepared, one for refinery, second copy to the customer and the third copy is kept in the office for records. He further stated that at the time of delivery of bitumen by the refinery, three type of invoice having six digit code was being generated depending upon the mode of ID No. 78/19 Page 35 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 payment. The first invoice used to have six digit code starting with number 3 and it used to be issued in the case where the payment received was equal to the bitumen supplied and it was called as cash memo. The second type of invoice was having a digit code starting with number 2 and it was issued in those cases where payment was received more or loss with regard to the bitumen being supplied and this invoice was called as ICCR. The third kind of invoice used to have six digit code starting with number 1 and it was issued in those case where no payment was received at the refinery and it was called as invoice. He further stated that in case, the payment was taken but no product was delivered then a cash receipt having a six digit code used to start with digit 5. The witness has proved the letter dated 20.11.2001 Ex.PW9/A written by Sh. Vijay Kumar Bhatnagar, Senior Regional Manager to the CBI which was handed over by this witness to the CBI.
78. In his crossexamination by Ld. Counsel for A1 & A2, PW9 Sh. J.S. Khanuja stated that during his tenure as Executive Sales Officer, he was never posted at Mathura and he is not aware about the formalities to be conducted at Mathura while receiving the bitumen from the refinery. He stated that no HPCL customer can buy bitumen directly from the refinery unless authorized by the regional office or having a valid delivery order issued by the regional office. He further stated that he has deposed regarding six digit code on ID No. 78/19 Page 36 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 the invoice on the basis of computer billing programme. He categorically stated that he had not given any billing programme to the IO during investigation. He did not remember whether he had given any sample invoice to the IO during investigation or not. He did not recollect as to how many copies of invoice were being given to the customer. He categorically stated that he has deposed in his chief examination regarding 6 digit code on the basis of his working knowledge and his working knowledge is based on SOP (System Operating Procedure). He did not recollect whether he had given SOP to the IO or not. He admitted that he had informed the IO during investigation that the SOP is the basis of generation of six digit code. He further admitted that IO had never demanded any documents from him personally during investigation. He stated that they used to maintain a record regarding issuance of delivery order from the regional office. He did not recollect whether IO had ever demanded from him the record regarding issuance of delivery order. He admitted that only after seeing the record, he could tell the name of the customer to whom a particular delivery order was issued. He admitted that letter Ex. PW9/A was prepared by Sh. Bhatnagar and he did not have any personal knowledge about contents of Ex. PW9/A.
79. In his crossexamination by Ld. Counsel for A3 to A5 & A7, this witness admitted that his role with regard to Ex. PW9/A was only to hand ID No. 78/19 Page 37 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 over the letter Ex. PW9/A to the CBI office as per the directions of Sh. Bhatnagar. He did not recall whether the said letter was in envelope/sealed condition at that time. He did not remember which were the attachments to that letter and whether the attachments were original documents or photocopies of original documents. He admitted that delivery of bitumen was done by Indian Oil Refinery as per the invoice raised by HPCL. He did not know if bitumen is issued against these invoices, then they are genuine invoices as he was not posted at Mathura. He volunteered that HPCL and IOC were having an arrangement whereby the total quantity of bitumen delivered by IOC on behalf of HPCL on a particular date was tallied with the HPCL sales office. He could not tell whether in the case of disputed invoices, such tallying of the material with invoices was done or not as he was not in Mathura.
80. An analysis of testimony of this witness would show that his role was only to hand over the letter Ex. PW9/A which was prepared and signed by Sh. Bhatnagar to the CBI. Though he has talked about the procedure regarding issuance of three types of invoices having six digit code being generated depending upon the mode of payment and has described in detail that on which type of invoice what digit code was issued, but his said deposition is based on the basis of computer billing programme and the said computer billing programme has not been given by him to the IO nor he has provided any such ID No. 78/19 Page 38 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 invoice to the IO during the investigation to show that the six digit code was generated depending upon the mode of payment. Furthermore, his deposition regarding generation of six digit code is based on his working knowledge and the said working knowledge is based on SOP. Again, the said SOP has not been provided to the IO nor IO demanded any such document from him. As per this witness, the HPCL used to maintain a record regarding issuance of delivery order from the regional office but the said record has never been demanded by the IO. Therefore, the aforesaid statement of the witness would show that his deposition regarding the computer billing programme having six digit code on the invoice depending upon the mode of payment as described by the witness has not been proved. Nothing substantial could be proved from his testimony except the fact that he has delivered the letter Ex. PW9/A to the CBI which was prepared by Sh. Bhatnagar.
81. Next witness examined by the prosecution is PW10 Sh. Hira Lal Sith who was posted as Deputy Manager in Mathura Refinery (HPCL) during the period 199798. He also explained the process of taking the bitumen from the refinery. He stated that the customer who wants the bitumen approaches the regional office at Connaught Place, Delhi and after fulfilling the required formalities, the regional office issues delivery order to the customer. In this delivery order, they mention the name of the customer, customer code, product ID No. 78/19 Page 39 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 name, product code and type of payment. The customer comes to the refinery to procure the product with the delivery order. He stated that the officials at HPCL, Mathura after getting the delivery order and authority letter, issues the product and to release the product they issue the document having six copies. First copy is for the customer, second copy is a gate pass copy, third copy is for the regional office, fourth copy is excise copy, fifth is transporter's copy and sixth copy is the location copy. While delivering the material, they used to obtain the signature of the authorized representative in all the invoices issued for the particular material. He further stated that as a matter of record, they maintain the record i.e. Sales listing and Sales register. The witness was shown Ex.PW6/DY i.e. invoice bearing no. 205775 (part of D5 at page no. 138) and after seeing the said invoice he stated that the said document has not been issued by his office for the reasons, firstly the customer code mentioned on the invoice is not of the HPCL, secondly the document no. 205775 mentioned in Ex. PW6/DY was not issued by HPCL on that date i.e. 09.11.1998 and thirdly excise duty is mentioned on the invoice Ex. PW6/DY whereas HPCL never used to mention about excise duty in their invoices.
82. Similarly, the witness having seen Ex. PW6/DX i.e. the invoice bearing No. 205845 (part of D8 at page no. 122) stated that the said document has not been issued by his office for the reasons, firstly the customer code ID No. 78/19 Page 40 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 mentioned on the invoice is not of the HPCL, secondly the document no. 205845 mentioned in Ex. PW6/DX was not issued by HPCL on that date i.e. 16.11.1998 and thirdly excise duty is mentioned on the invoice Ex. PW6/DX whereas HPCL never used to mention about excise duty in their invoices. He stated that he had issued the production memo dated 11.07.2001 Ex.PW10/A (Colly) which contained 11 documents. He further stated that he has deposed regarding Ex. PW6/DY and Ex. PW6/DX being forged documents on the basis of Ex. PW10/A (Colly). He further stated that during his tenure, M/s Asian Resurfacing of Road Agency Pvt. Ltd. was not their customer.
83. In his crossexamination by Ld. Counsel for A1 & A2, PW10 Sh. Hira Lal Sith stated that he was the InCharge of Mathura TOP (Top off point) at Mathura Refinery. He stated that the name of the customers who take delivery from their office are maintained in the Sales Register. He did not recollect whether IO had taken from him the invoice dated 09.11.1998 and 16.11.1998 as a sample of any other customer. He did not remember the numbers on all the invoices dated 09.11.1998 and 16.11.1998. He categorically stated that the original sales register having entries of 09.11.1998 and 16.11.1998 was neither asked by the IO nor handed over to the IO. The witness also did not bring the original sales register at the time of recording his evidence in the Court. He did not remember the names of all the customers of 1998. He ID No. 78/19 Page 41 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 volunteered that on the basis of documents Ex. PW10/A and its enclosures, he can state that M/s Asian Resurfacing of Road Agency Pvt. Ltd. was not a customer. He stated that no certificate was issued by him along with the computer printouts (part of Ex. PW10/A Colly). He admitted that complete daily sales register of November 1998 was neither asked by the IO nor handed over to him. He admitted that the photocopy was handed over to him by some official whose name he did not remember. He categorically stated that the invoices were being issued by his junior official and not by him. He admitted that in the invoices issued by HPCL the component of excise duty was being mentioned. He volunteered that in the invoices being issued by HPCL the excise duty was not separately charged and the basic price was inclusive of excise duty and a note was being given in the invoice that excise duty @ 15% was charged whereas in the case of invoices Ex. PW6/DX and Ex. PW6/DY, excise duty was separately charged apart from the basic amount which was not the practice of HPCL. He could not show any office memorandum/ office note to support his deposition that the sale price was inclusive of excise duty.
84. During his further crossexamination by Ld. Counsel for A3 to A5 & A7, this witness stated that he was shown two invoices by the CBI before recording his statement and they were originals and it was white colour paper with printing in blank ink. He was shown his statement recorded under ID No. 78/19 Page 42 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 Section 161 Cr.P.C. wherein he has mentioned that the photostate copies of the invoices have been shown to him. He could not recollect whether the statement shown to him is his statement or recorded by the IO himself. He categorically admitted that he has seen original invoices Ex.PW6/DY and Ex. PW6/DX for the first time in the Court. He stated that he was told by his accounts officer after checking the details about the code number and customer number in the invoice and he has deposed as per discussion with him. He did not remember the name of the accounts officer. He admitted that excise payable to the Excise Department is required to be shown separately on the invoice as it is payable to the excise department every month. He volunteered that the excise chargeable is not shown in the basic price but a separate note is given regarding the exact amount of excise charged. He could not say that excise can never be added to the basic price of the product as per law. He admitted that one copy of the invoice was kept at the gate of IOCL as a gate pass. He did not recollect whether he had checked the register maintained by IOCL regarding keeping of invoice at the time of delivery.
85. A close analysis of testimony of this witness shows that he has deposed about the invoices Ex.PW6/DY and Ex.PW6/DX being forged documents and not issued by their office on three grounds, firstly, that customer code mentioned on the invoice is not of the HPCL; secondly, that the said ID No. 78/19 Page 43 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 document was not issued on that day, and thirdly, excise duty is mentioned on the said two invoices whereas HPCL never used to mention about excise duty in their invoices. However, to substantiate the said facts and grounds on which the witness has deposed that the invoices are forged, it was necessary to have the sample invoice of the same date which would have demonstrated that the customer code is mentioned by the HPCL and the HPCL never used to mention about excise duty on the invoices, but no such sample invoice dated 09.11.1998 and 16.11.1998 have been collected by the IO or brought by the witness at the time of his deposition. The witness though claimed that names of the customers who take delivery from their office are maintained in the sales register, but original sales registers having entries of 09.11.1998 and 16.11.1998 were neither asked by the IO nor handed over to the IO. The witness even did not bring the said original record in the Court at the time of his deposition. Further, he has admitted that in the invoices issued by HPCL, component of excise duty is being mentioned, though he volunteered that in the invoices issued by the HPCL, the excise duty was not separately charged and the basic price was inclusive of excise duty, but he could not substantiate the said statement by showing any official memorandum/note to the effect that sale price was inclusive of excise duty. He also could not deny the fact that the excise duty can never be added to the basic price as per law and admitted that the excise duty payable ID No. 78/19 Page 44 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 to the excise department is to be shown separately on the invoice as it is payable in every month.
86. Further, reasons assigned by this witness for declaring the invoices Ex.PW6/DX and Ex.PW6/DY to be forged and not issued by their office is based on Ex. PW10/A (Colly). Ex.PW10/A (Colly) contains 11 documents which bears the signature of this witness at point A on each page. A perusal of Ex.PW10/A (Colly) would show that part of the documents are the computer printouts of Sales Listing dated 09.11.1998 and 16.11.1998. On the basis of the said Sales Listing dated 09.11.1998 and 16.11.1998, this witness has claimed the invoices in question were not issued by the HPCL, however the said printouts part of Ex.PW10/A (Colly) are not admissible for want of certificate under Section 65B of the Indian Evidence Act. Admittedly, no certificate for the authenticity and genuineness of the computer printouts has been annexed with Ex. PW10/A (Colly).
87. It has been held in Anvar P.V. vs. P.K. Basheer & Ors., (2014) 10 SCC 473 by the Hon'ble Apex Court that, "Any documentary evidence by way of electronic record under the Evidence Act, in view of section 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65 B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, ID No. 78/19 Page 45 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 generated by a computer. It may be noted that section starts with non obstante clause, thus notwithstanding anything contained in the Evidence Act, any information contained in any electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to a document only if the conditions mentioned under sub section 2 are satisfied, without further proof or production of original. The very admissibility of such a document i.e. electronic record which is called a computer output depends upon the satisfaction of four conditions under Section 65B (2)".
88. Under Section 65B (4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to any electronic record, it is permissible provided following conditions are satisfied: i. There must be a certificate which identifies the electronic record containing the statement;
ii. The certificate must describe the manner in which
the electronic record is produced;
iii. The certificate must furnish the particulars of the
device involved in the production of that record;
iv. The certificate must deal with the applicable
conditions mentioned under Section 65B (2) of
the Evidence Act; and
v. The certificate must be signed by a person
ID No. 78/19 Page 46 of 107
CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022
occupying a responsible official position in
relation to the operation of relevant device.
89. Further, PW10/A (Colly) find attached photocopy of Sales Register dated 09.11.1998 and 16.11.1998, cash control register and one sample of used invoice. The originals of these documents have not been produced nor any reasons whatsoever has been advanced for not submitting the original of these photocopies nor secondary evidence has been led to prove these photocopies as required under Section 65 of the Indian Evidence Act. In as much as the photocopies were handed over to this witness by some official whose name he did not remember. The entries made in Daily Sales register are incomplete because admittedly the complete daily register of 1998 was neither asked by the Investigating Officer nor handed over to him. Similarly, original Sales Register having entries of 09.11.1998 and 16.11.1998 was neither asked by the Investigating Officer nor handed over to the Investigating Officer. Even this witness admitted that the entries made in the Daily Sales Register was not done by him and some other official was responsible for making entries in the Daily Sales Register. As such, it can not be said that Ex. PW10/A (Colly) has been proved as per law.
90. Further, this witness though has claimed the invoices to be forged ID No. 78/19 Page 47 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 but he stated that the invoices were being issued by his junior official and not by him. He also stated in his chief examination that during his tenure M/s Asian Resurfacing of Road Agency Pvt. Ltd. was not their customer but the said statement is dented when he stated that he did not remember the name of all the customers of 1998. Thereafter, he also volunteered that on the basis of document Ex. PW10/A and its enclosure he had stated that M/s Asian was not a customer, however Ex. PW10/A (Colly) even did not contain the list of customers of HPCL during the year 1998.
91. The statement of this witness is further falsified when he claimed during crossexamination that he was shown two original invoices by the CBI before recording his statement which were printed on white colour paper in blank ink in contradiction to his previous statement recorded u/s 161 Cr.P.C Ex.PW10/D1 where it was mentioned that he was shown the photocopies of the invoices. Not only this, he categorically admitted during further cross examination that he has seen original invoices Ex. PW6/DY and Ex. PW6/DX for the first time today in the Court (the date of recoding of statement of the witness in the Court). If that was the position, then one wonders how this witness has claimed invoices Ex. PW6/DY and Ex. PW6/DX to be forged documents and not issued by his office when he had seen the original invoices for the first time in the Court and his wavering testimony does not inspire ID No. 78/19 Page 48 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 confidence. Furthermore, in the chief examination though he has stated that the customer code mentioned on invoices were not of HPCL but in the cross examination he stated that he was told about the customer number on the invoice by his accounts officer after checking the details and he has deposed as per discussion with him. It again shows that this witness himself has not seen or verified the details about the customer code number as mentioned on the invoices with the record of the HPCL. Even his claim that he was told about the customer code number on the invoice by his accounts officer did not inspire confidence because he failed to disclose the name of the said accounts officer. PW10 also stated that one copy of the invoice was kept at the gate of IOCL as gate pass but he could not recollect whether he had checked the register maintained by the IOCL regarding keeping of the invoices at the time of the delivery. The entire statement of this witness appears to be hearsay without checking and confirming the records maintained with his office at HPCL and IOCL. Thus, the testimony of this witness is of no help to the prosecution case.
92. Next witness examined by the prosecution is PW19 Sh. Vijay Krishna Bhatnagar who was posted as Senior Regional Manager (Direct Sales) in Hindustan Petroleum Corporation Ltd. in the year 2001. He stated that during this period several queries used to come from CBI office seeking confirmation of invoices and related issues which were responded by him by writing ID No. 78/19 Page 49 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 letters/replies. He was shown letter dated 20.11.2001 Ex.PW9/A (in D10) addressed to Inspector, CBI and he identified his signature on the said letter and stated that he had sent the said letter to the office of CBI through messenger/ officer Sh. J.S. Khanuja. He also stated that attachments were also sent with that letter. In the crossexamination by Ld. Counsel for A1 & A2, he admitted that there was no manufacturing plant of HPCL in Mathura. He admitted that Indian Oil Corporation is manufacturer of bitumen and they have a plant in Mathura and all the companies including HPCL used to supply bitumen to their customer through IOC plant at Mathura. He stated that billing was being done by their supplying office in Mathura. He further stated that exit gate is under the control of IOC refinery and the register maintained for entries making exit is also under the control of IOC refinery. To a specific question whether he had seen and summoned the original record while writing letter Ex. PW9/A, the witness answered that the reply was made on the basis of written confirmation by Sh. Hira Lal Sith, Deputy Manager (Operations) dated 13.11.2001 who was posted at Mathura supply location. He also stated that he had neither summoned the record nor seen it and his letter is based on confirmation given by Sh. Hira Lal Sith. He has not summoned the record to see it after getting confirmation from Sh. Hira Lal Sith and prior to writing of letter Ex.PW9/A and Sh. Hira Lal had sent some photocopies of documents which he had sent as attachment with the ID No. 78/19 Page 50 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 letter Ex. PW9/A.
93. The witness was shown page no. 8, 9 & 10 under the title Deliveries dated 09.11.1988, sales listing and deliveries dated 16.11.1998 and was asked whether he has seen the original thereof, to which the witness replied that he has not seen original of any of the copies at page no. 8, 9 & 10 while writing letter Ex. PW9/A. He admitted that he had not seen the originals of attachments sent with the letter either at the time of writing the letter Ex. PW9/A or prior to writing letter Ex. PW9/A. He volunteered that the originals were at Mathura. He stated that he attested the attachments sent with the letter Ex. PW9/A on the basis of receipt of record from their Deputy Manager (Operations) Sh. Hira Lal Sith through official communication. He was shown page 4 of the attachment to the letter Ex. PW9/A at point A where the date and timings of the fax are mentioned as 110303 14:55. A question was put to the witness that since the date and fax timings are 110303 14:55 on page 4 of the attachment of letter Ex. PW9/A, but letter Ex. PW9/A is of 20.11.2001 then how it was possible to write letter dated 20.11.2001 in respect of fax message of 11.03.2003 14:55 or vice versa. The witness replied that the primary focus of confirmation was based on the invoice number and the customer number only. The printed date and time on the invoice could be possibly due to the setting of sending or receiving fax (it is just my rough idea and I am not sure about it) ID No. 78/19 Page 51 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 (verbatim as stated by the witness). A question was put to him whether the record was received by him by way of fax or otherwise from Sh. Hira Lal Sith to which he replied that he would not be able to say anything about this fact whether it was received by way of fax or otherwise. In reply to another question that would it be difficult without looking to the original register to authenticate the delivery of goods on a particular date by a particular vehicle, the witness answered in affirmative and further stated that Deputy Manager (Operations) had original register. He further stated that he has no personal knowledge about visit of Sh. Yadav of CBI to Mathura office of HPCL on 11.07.2001, but para 2 of letter Ex. PW9/A at page 6 reflects that Mr Yadav of CBI had visited the office of HPCL at Mathura.
94. The attention of the witness was drawn at page 6, last paragraph of attachment with the letter Ex. PW9/A and was asked that when the CBI had already taken the records on 11.07.2001 itself from Mathura office of HPCL, then on what basis the Mathura office provided him authenticated documents on 13.11.2001. He replied that since he has seen the documents and the production cum recovery memo which list first four items of attested computer copies out of them the first two are attested computer generated copies of sales listing. The CBI had asked their office for record and then they wrote to Mathura and consequent there to documents were received on 13.11.2001. He also could not ID No. 78/19 Page 52 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 say whether the documents received by the IO on 11.07.2001 from the Deputy Manager HPCL Mathura by production of memo dated 11.07.2001 and attested by the witness on 20.11.2001 are in the judicial file or not.
95. To a question whether he had attested the documents just they received from the Deputy Manager (Operations) and not about their authenticity, the witness replied that so far authenticity of documents are concerned, it can be only by office of HPCL at Mathura and he had attested those documents which were received from the office of Deputy Manager (Operations) during official communication. He stated that the letter dated 13.11.2001 at page no. 3 as Annexure to letter Ex. PW9/A was attested by him since its original was sent to Mathura office. He again said that he cannot say that the original was sent to Mathura. He further stated that he cannot say whether page no. 3 as annexure to letter Ex.PW9/A is original or a copy. The witness further stated that he did not remember that the said page no. 3 attested by him was from his office or it was received from the Deputy Manager (Operations) along with other papers. He did not remember whether he had given any instructions on telephone to the officials at HPCL, Mathura on or after 13.11.2001 regarding what is to be done in this matter about the queries received from CBI by him. A specific question was put to him that could it be said that before writing confirmation through letter Ex. PW9/A to the CBI, he had verified the record from originals with ID No. 78/19 Page 53 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 HPCL Mathura to which he answered in negative. In reply to a question put to him, the witness stated that the customer master record would be made in Delhi office by the sales department. He was asked whether he had verified and mentioned the customer code before forwarding documents vide letter dated 20.11.2001 Ex. PW9/A, the witness replied that as per record at page no. 2 of the attachment to letter Ex. PW9/A, there is customer code no. 726123 for which verification was requested from Sh. Girish Ghildiyal and he has confirmed vide his email dated 15.11.2001 that the customer code 726123 did not exist. He has not personally verified the customer code which is also not feasible since the same is to be carried through the concerned department and officers. He admitted that he had submitted the documents received from page 4 to 10 as were received by him from their office at HPCL, Mathura and the same were forwarded as it is to the CBI under the cover of his letter dated 20.11.2001 Ex. PW9/A.
96. Evaluation of testimony of this witness shows that this witness has provided the information vide letter dated 20.11.2001 Ex.PW9/A to the CBI through PW9 Sh. J.S. Khanuja. Ex. PW9/A is a letter dated 20.11.2001 signed by this witness and addressed to Inspector, CBI by which the query on the customer no. 726123 in the name of Asian Resurfacing of Road Agency Pvt. Ltd. has been provided. It was stated in the said letter that the said customer ID No. 78/19 Page 54 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 number did not exist in the record of their company and no delivery order can be issued to a customer without a valid customer code. It was also stated that the Deputy Manager (Operations) has confirmed that invoice nos. 205775 dated 09.11.98 and 205845 dated 16.11.1998 have not been issued by them. They have also confirmed that M/s Asian Resurfacing of Road Agency Pvt. Ltd. was never their customer. It was also mentioned in the said letter that their Executive Sales Officer Sh. J.S. Khanuja was deputed to hand over this letter along with 9 attachments. The said attachments which are part of Ex. PW9/A are the email received from Sh. Girish Ghildiyal dated 15.11.2001, the queries sent to Mathura TOP (HLS) on 13.11.2001, two computer generated invoices, the letter sent by Sh. Hira Lal Sith, Deputy Manager addressed to Senior Regional Manager DRODS dated 13.11.2001 containing replies to the queries which were made vide letter dated 13.11.2001, copy of production memo dated 11.07.2001 by which the documents were seized by Sh. S.S. Yadav, Inspector CBI, on 11.07.2001, photocopy of daily Sales Register dated 09.11.1998, photocopy of daily Sales Register dated 16.11.1998, photocopies of cash control register.
97. However, a bare perusal of the crossexamination of this witness would reflect that all these documents were just forwarded by this witness to the CBI vide letter Ex. PW9/A through PW9 J.S. Khanuja and this witness had not seen the said documents nor summoned the original records thereof and the ID No. 78/19 Page 55 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 reply was made on the basis of written confirmation of Sh. Hira Lal Sith, Deputy Manager (Operations) dated 13.11.2001. Even this witness has admitted that he had not seen the original even prior to sending the letter Ex.PW9/A or after sending the same and he categorically admitted that page no. 8, 9 and 10 under title delivery dated 09.11.1998 and sales listing and delivery dated 16.11.1998 which are the photocopies and sent as an attachment with letter Ex. PW9/A and original whereof was not seen by him. He further categorically stated that he has not seen the original of attachments sent with the letter Ex. PW9/A either at the time of writing the letter Ex. PW9/A or prior to writing of letter. So it cannot be said that through testimony of this witness, the computer generated printouts and photocopies as attachments sent with letter Ex. PW9/A stand proved. He has only forwarded the said record as per the confirmation given by Sh. Hira Lal Sith and testimony of Sh. Hira Lal Sith has already been analyzed in the foregoing discussions and has been found unreliable and untrustworthy as same is based on hearsay evidence and he could not substantiate his statement made in chief examination by producing any record and even his testimony was found to be faltering on the material aspects and contradictory to his earlier statement given to the IO. Therefore, the information provided by PW19 through letter Ex. PW9/A which is based on the confirmation given by Sh. Hira Lal Sith cannot be said to be duly proved as per law.
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98. Further, as it is seen that at page 4 of attachments sent with letter Ex. PW9/A at point A, the date and timing of fax through which the said witness has received the information from Sh. Hira Lal Sith has been shown as 11.03.2003 14:55. One wonders that how the letter dated 20.11.2001 Ex. PW9/A could be in respect of fax message dated 11.03.2003 or vice versa and when this witness was asked about the aforesaid mystery of the date and time of fax as 11.03.2003 14:55, he could not give a satisfactory answer and stated that printed date and time on the invoice could be possibility due to setting of sending or receiving fax and he further stated that it was just a rough idea and he was not sure about it. Even PW19 could not confirm whether he has received the information from Sh. Hira Lal Sith by way of fax or otherwise. He also admitted that without looking into the original register, it would be difficult to authenticate the delivery of goods on a particular day by a particular vehicle. Not only this, it is interesting to note that as per page 6 of last paragraph of attachments with the letter Ex. PW9/A, Sh. S.S. Yadav Inspector, CBI had already taken the records on 11.07.2001 from Mathura Office, HPCL and still the Mathura office has provided the documents on 13.11.2001 through PW19 Vijay Kumar Bhatnagar. If the CBI had already seized the documents on 11.07.2001 then how it was possible for Mathura Office to provide authenticated documents on 13.11.2001. PW19 could not give a ID No. 78/19 Page 57 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 satisfactory explanation to this aspect and his answer is totally incomprehensible.
99. The testimony of this witness further falters when he stated that letter dated 13.11.2001 at page no. 3 as Annexture to letter Ex. PW9/A was attested by him since its original was sent to Mathura Office and he again said in the same breathe that he could not say that the original was sent to Mathura. He could not say whether page 3 attachment to letter Ex. PW9/A which is letter dated 13.11.2001 asking to verify the invoices is original or a copy. He even did not remember whether the said page 3 attested by him was from his office or it was received from Deputy Manager (Operations) along with other pages. On a specific question whether before writing confirmation through letter Ex. PW9/A to the CBI, he had verified the record from the original with HPCL Mathura to which he categorically denied. To a specific query as to whether he had verified the customer code before forwarding documents vide letter dated 20.11.2001 Ex. PW9/A to which the witness stated that Sh. Girish Ghidiyal had confirmed vide his email dated 15.11.2001 that the customer code 726213 did not exist. He categorically stated that he has not personally verified the customer code. The aforesaid statement of this witness shows that the fact mentioned in letter Ex. PW9/A that the customer code no. 726213 is not in the name of Asian Resurfacing of Road Agency Pvt. Ltd. is not proved. Sh. Girish Ghidhiyal who ID No. 78/19 Page 58 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 had confirmed the said fact through his email dated 15.11.2001 has not been examined. There is no material on the basis of which Sh. Girish Ghidhiyal vide his email dated 15.11.2001 submitted that customer code 726213 did not exist in their records. As such, testimony of this witness does not support the case of the prosecution that the invoices bearing Nos. 205775 Ex.PW6/DY and 205845 Ex.PW6/DX are forged.
100. Another witness examined by the prosecution is PW20 Sh. Ajay Verma who was posted as Senior Divisional Manager, in Indian Oil Corporation, Agra in the year 2002. He deposed that in the year 2002, the CBI sought certain information from IOC, Agra which was communicated by him vide letter Ex. PW20/A. The said letter also accompanied five documents consisting of 7 pages and fax was also sent to the CBI separately and photocopy of five documents are Mark A/ PW20 (Colly). A perusal of the same would reveal that said documents pertained to work order, delivery challan etc. in respect of work order No. 1750/36/CBGZB/ Circle/97 dated 07.07.1997 and not pertaining to the present case. In his crossexamination by Ld. Counsel for A3 to A5 & A7, the witness also categorically stated that he did not remember whether Sh. Kashyap, the Enquiry Officer, CBI or Sh. S.S. Yadav, IO of the case made any inquiry from him regarding this case. He also did not remember whether any of the CBI officials had written his statement in this regard. ID No. 78/19 Page 59 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022
101. The testimony of this witness is of no help to the case of the prosecution qua the charges made against the accused persons and it only shows that the work order No. 1750/36/CBGZB/ Circle/97 dated 07.07.1997 pursuant to which invoice No. 031184 dated 31.10.1998 was issued was in respect of the work related to Ghaziabad but same is not in dispute.
102. Ld. Prosecutor during course of the arguments has also vehemently submitted that the invoice No. 205845 Ex.PW6/DX bears vehicle Registration No. UAT 1784 and as per the testimony of PW18 and PW21, the said registration number is in respect of a motorcycle belonging to one Sh. Kailash Chand and it suggests that the invoice is forged because the bitumen could not have been supplied on a motorcycle. A perusal of invoice bearing no. 205845 Ex.PW6/DX (in D8) shows that it bears Registration No. UAT 1784 of vehicle truck.
103. Now, it has to be seen as to whether the said registration No. UAT 1784 is of a motorcycle or of a truck.
104. The onus was upon the prosecution to prove that the Registration No. UAT 1784 as mentioned on invoice No. 205845 Ex.PW6/DX is of a motorcycle.
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105. To prove the said fact, the prosecution has examined PW18 Smt. Hem Lata Sharma, wife of late Sh. Kailash Chand. In her chief examination, she stated that the CBI had enquired about a motorcycle belonging to her husband Sh. Kailash Chand. She further stated that the said motorcycle was sold to a covillager and its papers were also given to him. She did not remember whether she had given any paper to CBI in respect of that motor cycle. She was not aware about the registration number of the motor cycle. The witness was shown the letter dated 09.07.2001 Ex. PW18/A addressed to Inspector, CBI along with enclosures (4 pages). She identified her signature on the letter, however she did not know the contents of that letter Ex. PW18/A nor she could read English. The witness was explained the letter in vernacular that it was written in 2001 addressed to Inspector S.S. Yadav of CBI and it was sent by post by narrating that her husband expired on 24.12.2000 in road accident in Mathura and the said letter was accompanying photocopy of death certificate. After explaining the contents of letter Ex.PW18/A, she recollected only that copy of death certificate was sent to police and remaining aspect were not known to her. The witness was further explained the other paragraph that the registration number of motorcycle was UAT 1784 and it was sold to Sh. Leela Singh s/o late Bal on 03.03.1992 against receipt consideration of Rs. 14,500/ to which she stated that she did not recollect the registration number of vehicle was UAT ID No. 78/19 Page 61 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 1784 or consideration amount was Rs.14,500/, however the vehicle was sold to Leela Singh in around 1992. She further stated that the police officer had prepared the letter and she is not exactly recollecting but it was never sent by them to police by post.
106. In her crossexamination, having seen the letter Ex.PW18/A, she stated that it is a typed letter. She did not know who had typed the said letter. She even did not know from which post office it was sent by post. She was not aware of name of S.S. Yadav nor the address where it was to be dispatched. She stated that neither she nor any family member/relative had gone to any place to get the letter Ex. PW18/A typed nor her children were able to go since they were minor. She further stated that it was possible that the police came with the said letter and got it signed from her.
107. From the aforesaid testimony of this witness, it is not proved that the information vide Ex. PW18/A was furnished by PW18 Hem Lata Sharma to the CBI. Rather it shows that the police had got the letter prepared and only her signatures were taken on the said letter and she even did not know the contents thereof. From the testimony of this witness, it cannot be said that the prosecution has been able to prove that vehicle owned by her husband Sh. Kailash Chand was bearing Registration No. UAT 1784 which was a motorcycle. This witness did not know the registration number of the vehicle nor she had given the details ID No. 78/19 Page 62 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 as find mentioned in letter Ex. PW18/A to the CBI. Even the IO had not recorded her statement under Section 161 Cr.P.C and the same was also prejudicial to the accused persons as also contended by Ld. Defence Counsels. No justification has been given by the prosecution for not examining PW18 Smt. Hem Lata Sharma under Section 161 Cr.P.C.
108. PW22 S.S. Yadav, the IO of the case, during his cross examination stated that he did not remember if he had investigated some lady who was wife of owner of the motorcycle who was an employee of IOC Mathura refinery. He did not remember if he had checked the vehicle number of the truck who transported the bitumen at RTO office but he stated that he could tell after seeing the records. The witness was shown the record and thereafter he stated that Ex.PW21/B was sent to RTO seeking details. He did not remember if he had recorded the statement of RTO under Section 161 Cr.P.C. He categorically stated that no other document was taken from RTO except reply which is part of Ex.PW21/B as same was considered to be sufficient.
109. Another witness examined by the prosecution to prove that the invoice no. 205845 Ex. PW6/DX bears vehicle registration no. UAT 1784 which belongs to a motorcycle is PW21 Arvind Kumar Jain who was working as Assistant Regional Transport Officer, UP in the year 2001. He deposed that in 2001, he was posted as Assistant Regional Transport Officer (Administration) at ID No. 78/19 Page 63 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 Mathura. He further deposed that the CBI had sought some information in respect of vehicle no. UAT 1784 vide a letter and after receipt of the letter he called the report from Tax Registration under his endorsement and signature with date at point A and the dealing assistant had given his report from Point B to B and then it was signed by him with date 30.05.2001 at point C. The said letter was Ex. PW21/B. Perusal of letter Ex. PW21/B would show that S.S. Yadav, Inspector of CBI had sought the information from RTO, Mathura, UP in respect of Vehicle No. UAT 1784 regarding registration of the said vehicle with their office, full name, address of the registered owner, name and make of the vehicle. Vide endorsement at point B to B on the letter, report was given that vehicle bearing Registration No. UAT 1784 motorcycle Yezdi was registered in this office on 17.06.89 in the name of owner Sh. K.C. Sharma.
110. However, during his crossexamination by Ld. Counsel for A3 to A5 & A7, PW21 Sh. Arvind Kumar Jain stated that Ex. PW21/B is not bearing any dak receipt number and, therefore, it appears that it was received directly from someone and not by post. He did not remember the name of the person who had brought the letter. He did not remember from which department the said person came with letter. He did not remember whether he has verified the identity of that person who had brought the letter and whether the said person was from the department of CBI or from local police or from municipal ID No. 78/19 Page 64 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 corporation. He did not remember the name of the clerk who had brought the said letter. He also did not remember that at the time of reporting the portion B to B by the clerk, whether the person who had brought the letter was sitting with the clerk or had gone somewhere. He stated that he had verified the contents of report portion B to B with the Tax Register since both the report and Tax Register were brought together before him and then he signed it. He did not remember whether the said person who had brought the letter was sitting with him the moment he had signed the report at point C. During his further cross examination by Ld. Counsel for A1 & A2, he categorically stated that he was not asked the registration and tax register by CBI. He admitted that merely looking at the registration number, it cannot be said to which type of vehicle the registration number belongs. He admitted that one has to see the registration and tax register and to tally it with the registration number to say about the type of vehicle.
111. The aforesaid statement of this witness would show that the report regarding vehicle No. UAT 1784, a motorcycle as registered in RTO Office at point B to B on Ex. PW21/B is based on the Registration and Tax register as this witness has categorically stated that in order to find out the type of vehicle with which the registration number belongs to one has to see the Registration and Tax register and then to tally with the registration number. This witness has claimed ID No. 78/19 Page 65 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 that he has verified the report of portion B to B after seeing the Registration and Tax register, however the said Registration and Tax register has not been produced before this court. Neither the same was asked by the IO nor the same was attached with the report submitted by ARTO vide Ex. PW21/B. Therefore, the record which was basis of preparing the report from point B to B on Ex.PW21/B has not been produced for perusal of this Court, more so, when the Ld. Defence counsel questioned the basis of report made by PW21 and claimed the same to be prepared at the behest of CBI officer and without looking into the Registration and Tax register.
112. The Ld. Prosecutor though has submitted that even if the Registration and Tax register was not attached with the report Ex. PW21/B or not produced by the CBI, still the report of ARTO on letter Ex. PW21/B from point B to B cannot be discarded because any official act performed during the ordinary course cannot be challenged and there is presumption of the same having been done in the normal course. Of course, Section 114 of Indian Evidence Act provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case and as per illustration (e) appended to Section 114, the Court may presume that the judicial and official acts have been ID No. 78/19 Page 66 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 regularly performed. However, in the present case, with the aid of section 114 of the Indian Evidence Act, it cannot be said that the prosecution has been able to prove the report/noting from Point B to B on Ex. PW21/B. The prosecution was required to produce the primary evidence which was available in the form of Registration and Tax Register on the basis of which the report/noting at point B to B was made on letter Ex. PW21/B. The entry made in the Registration and Tax register would have been presumed to be done during course of the official business and was presumed to be correct as per Section 114 of the Indian Evidence Act but the same has not been produced before this Court. The noting at point B to B on Ex.PW21/B would not be covered under the presumption attached to Section 114 of the Indian Evidence Act by way of illustration (e) as discussed herein above because endorsement from Point B to B is based on Registration and Tax register which contained the relevant entries.
113. In view of aforesaid discussions, the prosecution has not been able to prove that vehicle bearing Registration No. UAT 1784 as mentioned in invoice Ex.PW6/DX belongs to a motorcycle.
114. There is yet another aspect of the matter. Even if it is assumed that registration No. UAT 1784 mentioned on Ex.PW6/DX belongs to a motorcycle, still there is no evidence led by the prosecution to suggest that the bitumen supplied vide invoice Ex.PW6/DX was on the motorcycle.
ID No. 78/19 Page 67 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022
115. PW10 Sh. Hira Lal Sith, Deputy Manager, Mathura Refinery (HPCL) during his crossexamination admitted that one copy of the invoice was kept at the gate of IOCL as a gate pass. He could not recollect the fact whether he had checked the register maintained by IOCL regarding keeping of invoice at the time of delivery.
116. PW22 S.S. Yadav, IO of the case feigned ignorance in this regard and stated that he did not remember whether he had seized the register of entry/exit gate maintained at IOC Mathura.
117. Admittedly, the IO has not seized the register of entry/exit gate maintained by the IOCL Mathura. Had that been seized, it would have shown that on which vehicle the bitumen was supplied vide invoices Ex.PW6/DX and Ex.PW6/DY or whether the copy of said invoices were kept at the gate of IOCL as a gate pass. But nothing sort of that has been done by the IO for the reasons best known to him.
118. As per PW15 S.K. Kashyap who was posted as Deputy Superintendent of Police/Addl. Superintendent of Police in EOW1 Branch of CBI 19992001 and conducted a preliminary enquiry before registration of FIR, he got verified about the motorcycle bearing registration No. UAT 1784 during preliminary enquiry on which he claimed that bitumen was carried in bulk quantity, however during crossexamination by Ld. Counsel for A1 & A2, he ID No. 78/19 Page 68 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 stated that he had visited transport authority during preliminary enquiry of all the cases other than the present case. He further stated that he had not personally visited the transport authority but he had deputed his subordinate to do so. He did not remember whether he had recorded statement of his subordinate who had visited the transport authority Mathura.. He did not remember whether he had collected any documentary record or registration certificate that the registration carrying alphabet 'UAT, that 'T' stands for 'truck' and not for motorcycle. He stated that according to him, 'T' did not stand for truck in the alphabet 'UAT'. He did not know 'T' stands for what vehicle in the 'UAT'. He did not know in whose name the said motorcycle was registered under registration No. UAT 1784. He did not remember whether he had seen the register of registrations of motorcycle with the transport authority.
119. The aforesaid testimony of PW15 S.K. Kashyap who had conducted the preliminary enquity before registration of FIR by the CBI, does not support the case of the prosecution that the registration No. UAT 1784 belongs to the motorcycle.
120. PW15 Sh. S.K. Kashyap was also put a question that whether he can tell about enquiring the stationery used for invoices generated by HPCL and whether it was genuine or not to which he replied that he had made enquiries in the office of HPCL, Mathura and recorded statement of one Sh. Hira Lal, ID No. 78/19 Page 69 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 Deputy Manager, who after checking the record told him that these invoices bear stationery number which are different from their record. This witness further stated that Sh. Hira Lal Sith further informed him that these invoices are fake and forged since the logo which it contain is different in dimensions and signature of officers have been forged on these two invoices. However, this part of his statement is not corroborated by PW10 Sh. Hira Lal Sith, the Deputy Manager (Operations) who during his testimony has not made even a single whisper that the invoices bear stationery number which are different from their record or that the logo which the invoices in question contain is different in dimensions and signatures of the officers have been forged.
121. PW15 Sh. S.K. Kashyap was put another question that whether HPCL used to make entry of delivery in the register whenever it used to deliver bitumen to which he replied that HPCL used to make entry in their record. He did not remember whether he had seen that record of delivery of bitumen with HPCL. He was again put a question whether he had seen any record of delivery of bitumen by HPCL to which he replied that he did not remember. It shows that enquiry officer PW15 had not seen the entry register of the HPCL where the record of delivery of bitumen was maintained. A question was put to this witness that the invoices bear the sale tax paid, excise duty paid, payment made and stationery being genuine and the delivery done on the basis of same, then ID No. 78/19 Page 70 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 how they can be forged. The witness replied that he found two invoices fake and forged which was corroborated by oral as well as documentary evidence so he did not think it necessary to find out whether any excise duty was paid, payment was made and this all was to be done at the time of open investigation. He did not remember whether he had visited the site where the work was done. He also did not remember whether he had visited the hot mix plant of the contractor. He also did not remember whether he had met MLA or councilor of the area to confirm about the execution of the work. He volunteered that the scope of preliminary enquiry was very limited and it was to be completed expeditiously just to ascertain whether a prima facie case is made out. He stated that he took about 8 months to conclude the preliminary enquiry from 09.11.1999 to August 2000. He stated that he had not made any enquiry from the point of view whether stationery of HPCL was stolen at any point of time, since it was to be conducted expeditiously and to see existence of prima facie case although it was within the scope of preliminary enquiry to see whether the stationery was stolen.
122. The aforesaid testimony of PW15 who had carried the preliminary enquiry before registering the regular case would show that he had not conducted the basic enquiry. Though he took 8 months to conclude the preliminary enquiry and he still claimed that the purpose of preliminary enquiry was limited and it had to be completed expeditiously. One fails to understand ID No. 78/19 Page 71 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 that if the enquiry officer had taken 8 months time to conclude the preliminary enquiry, still he did not enquire vital aspects of the case, then what for the enquiry was conducted by him as also argued by Ld. Defence Counsels. Though in this case, preliminary enquiry was being conducted to find out a prima facie case, but the FIR was registered even before concluding the preliminary enquiry and submission of the preliminary enquiry report by PW15.
123. In this regard, PW15 admitted in his crossexamination that FIR was already registered on 09.04.2001. He further stated that the FIR was registered without the documents collected by him during preliminary enquiry and before handing over them to the IO. If that was the case, then it is not understandable as to why at all the futile exercise of conducting of preliminary enquiry was carried when the FIR was registered even without the documents collected from the enquiry officer.
124. In view of the aforesaid discussions, the prosecution has failed to prove its case that the invoices submitted by A2 Prem Arora on behalf of his company A1 M/s Asian Resurfacing of Road Agency Pvt. Ltd. bearing Nos. 205775 dated 09.11.1998 Ex.PW6/DY and 205845 dated 16.11.1998 Ex.PW/6X are forged invoices.
125. On the other hand, A1 & A2 in order to prove their defence that they had purchased the bitumen from government refinery through transporter ID No. 78/19 Page 72 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 Sh. B.D. Guliyani and invoices were handed over by Sh. B.D. Guliyani against the payment have examined Sh. Leeladhar as DW1 who was working as supervisor in the hot mix plant of M/s Asian Resurfacing of Road Agency Pvt. Ltd. at Chharjarsi, Noida, Gautam Budh Nagar in the year 1998. He deposed that as a supervisor his duty was to maintain the record of material i.e. bitumen, dust and stone grit. The bitumen used to be supplied from the IOCL Mathura Refinery to transporter in the tankers. Normally the transporter was Sh. Mukesh Jain. He was told by the company in the month of October/ November 1998 that three tankers of bitumen will be supplied by Sh. Mukesh Jain but he had supplied only one tanker of bitumen. He was then told by the company that the remaining two takers of bitumen shall be supplied by one Sh. B.D. Guliyani. He further deposed that after one week of supply of bitumen by Sh. Mukesh Jain, one tanker of bitumen was supplied by Sh. B.D. Guliyani and he had made the payment of Rs.1.25 lakhs approximately to the driver of the tanker of the quantity of the net weight of the bitumen. The bitumen used to be supplied in the night and therefore the envelope was handed over to him by the driver of the tanker in the night used to be handed over to JE (Plant) in the morning. He further deposed that the third tanker was received after a week of delivery of second tanker i.e. in the second week of November 1998 and the same process of measuring the bitumen, payment of bitumen and handing over of the ID No. 78/19 Page 73 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 documents was adopted.
126. During his crossexamination by Ld. Prosecutor nothing material could be extracted to impeach his version. DW1 stated that he has not brought any record to show that he had made payment of Rs. 1.25 lakhs approximately to the driver of the tanker or any acknowledgement of receipt. He could not tell the registration number of so called tankers through which bitumen was allegedly received by him. He denied the suggestion that out of last two tankers, one was motorcycle and not tanker through which the bitumen was allegedly supplied. He denied the suggestion that the bitumen was not supplied by Mathura refinery. He denied the suggestion that he has been deposing falsely being employee of A1.
127. The aforesaid crossexamination would show that the Ld. Prosecutor did not dispute the supply of bitumen but claims that out of last two tankers one was motorcycle and not the tanker. However, this suggestion that the bitumen was supplied through the motorcycle is contrary to the argument made by Ld. Prosecutor that the invoice bearing no. 205845 Ex.PW6/DX which carries registration of vehicle as UAT 1784 is forged because the bitumen could not have been supplied on a motorcycle. Therefore, both the contentions made by Ld. Prosecutor are irreconcilable.
128. This witness was also crossexamination by the Ld. Counsel for ID No. 78/19 Page 74 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 accused public servants i.e. A3 to A5 & A7 during which he categorically stated that he was not taking any receipt from the driver after making payment of the bitumen. He stated that it used to take 23 hours to heat the bitumen before delivery. The device to heat the bitumen was in the tanker itself. He had not seen the documents personally as it used to be in closed envelope. He used to inform his company about receipt of bitumen. He stated that different JEs were coming to the plant from different departments. He was informed by his office as to what rate the payment is to be made to the driver against supply of bitumen. He was not tallying the rate of the bitumen from any document and used to make payment as per his calculation after weighing the tanker and calculating net weight. The tanker at the plant had a capacity of 30 Mts . The tanker at the plant was almost empty when the tankers were received on last two dates.
129. The testimony of this witness is consistent and spontaneous and did not suffer from any flaw. He has been able to prove that two tankers of bitumen were supplied by Sh. B.D. Guliyani and he used to take delivery of the bitumen in the night. The testimony of DW1 is corroborated by A2 Prem Arora who has examined himself under Section 315 Cr.P.C. as DW2 and he has deposed about the award of two work orders to A1 company of which he is the director. He deposed that in the year 1998, A1 company was awarded two ID No. 78/19 Page 75 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 dense carpeting works vide two different work orders by the MCD (South Zone Project). He stated that approximately three tankers of bitumen were needed for the above two works for which he placed an order with Sh. Mukesh Jain (Jainsons India) who was their authorized transporter with IOCL Mathura for three tankers of bitumen. Sh. Mukesh Jain supplied one tanker and then he informed that he was unable to supply the balance two tankers. As the work could not be started and it was urgent, therefore he requested him to suggest another bitumen transporter to which Mukesh Jain suggested the name of Sh. B.D. Guliyani. DW2 contacted B.D. Guliyani who agreed to supply two tankers subject to the condition that cash payment of bitumen will have to be made as he was dealing with him for the first time. Looking at the urgency, DW2 agreed. On 09.11.1998, first tanker was sent and the rate of bitumen @ Rs. 7125/ per metric ton was settled. Accordingly, DW2 informed his supervisor Leeladhar about the same and sent him the required money for payment against delivery. Next day morning on 10.11.1998 Leeladhar informed him about the receipt of bitumen and payment against it made by him. He was also informed by Leeladhar that R.K. Rustagi, JE (Plant) had come to the plant, checked the bitumen and the envelope given by the driver of the tanker had been handed over to him. He further deposed that on 16.11.1998, B.D. Guliyani sent the another tanker of bitumen and same procedure was adopted as regards the ID No. 78/19 Page 76 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 first tanker. He deposed that both the works were completed by him as per specification and tender conditions of the work order. He further deposed that the MCD prepared the first and final bill of both the work order which was duly accepted by him and the payment was also received. He further deposed that after 23 years of completion of above works, in the year 2001 he was informed by the CBI that FIR has been registered against him and officials of MCD for submitting two forged invoices. He had informed the IO S.S. Yadav that from whom he had procured the bitumen and entire correct facts. He also told him that he had made the payment in cash to Sh. B.D. Guliyani against which the company had maintained the records. He also told him that he was seeing the invoices for the first time because his employee had handed over the said documents to JE (Plant). He had given the cash book, ledger etc. to the IO showing the payment of bitumen against the supply but the CBI did not consider the said record and same were returned to him after filing of chargesheet being unrelied document. The cash book Ex PW22/DX2 was returned to him.
130. In the crossexamination done by Ld. Prosecutor, nothing material to impeach his aforesaid version could be extracted. He was put that invoice No. 031184 dated 31.10.1998 Ex. PW1/B and Ex. PW1/C was issued against some other work and not for the work order in question which the witness admitted and the same was also not in dispute. The other question put to him was that out ID No. 78/19 Page 77 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 of the last two tankers through which bitumen was supplied, one of the tankers had a registration number of a motorcycle and not of the tanker to which he replied that he could not say about the registration number of motorcycle but bitumen was supplied in two tankers. He was suggested that bitumen was not supplied by IOCL Mathura vide last two tankers which he denied. He stated that they used to make the payment of bitumen without seeing the invoice because the payment was made of the quantity of the bitumen.
131. As such, statement of DW2 regarding the fact that he had procured two tankers of bitumen from Sh. B.D. Guliyani or that he had made the payment of Rs. 1.25 lakhs in cash to Sh. B.D. Guliyani @ Rs. 7125/ per metric ton and that the same had also been shown in the cash book have gone unrebutted. There is no crossexamination at all on these assertions made by DW2. The cash book Ex. PW22/DX2 has not been disputed by the Ld. Prosecutor. A perusal of cash book Ex. PW22/DX2 shows that there is an entry of Rs.1,29,105/ being the amount paid for bitumen purchased of quantity 18.120 MT at plant. There is another entry of Rs. 1,28,962/ being the amount paid for purchase of bitumen of quantity 18.100 MT at plant.
132. The fact that this cash book Ex. PW22/DX2 was given by A2 to the IO during course of the investigation is not in dispute as PW22 S.S. Yadav, the IO of the case has admitted during his crossexamination that Inspector ID No. 78/19 Page 78 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 Anand Swaroop vide letter dated 11.07.2003 submitted the unrelied documents which includes the cash book for the period 01.04.1998 to 31.03.1999 of A1. As such, the said cash book was given by A2 to Insp. Anand Swaroop during course of the investigation and the same was not relied upon by the prosecution in the chargesheet and the same being unrelied document was got released by A2 through court order.
133. PW22 S.S. Yadav has also admitted in his crossexamination that vide Ex.PW14/A (D6) receipt of bitumen from IOC Mathura vide invoice No. 0204243 dated 31.10.1998 and invoice no. 205775 dated 09.11.1998 for quantity 13.600 MT and 18.120 MT is mentioned. There is another entry of invoice No. 205845 dated 16.11.1998 vide which 18.100 MT has been shown received in MB.
134. As such, there is no reason to dispute the genuineness of the cash book Ex.PW22/DX2. Thus, A2 Prem Arora has proved that he had purchased two tankers of bitumen from Sh. B.D. Guliyani against the payment as reflected in the cash book Ex.PW22/DX2.
135. It is also pertinent to note here that A2 Prem Arora during course of investigation had informed Sh. Devender Singh, the then DSP who had recorded the statement of A2 on 11.07.2001 that he has purchased the bitumen from the transporter Sh. B.D. Guliyani. The statement of DW2 recorded by ID No. 78/19 Page 79 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 Sh. Devender Singh, the then DSP Ex. PW22/DX1 substantiates the fact that A2 had brought to the notice of the then DSP regarding the supply of bitumen through two tankers by Sh. B.D. Guliyani.
136. PW22 S.S. Yadav, IO of the case has categorically admitted that during investigation it has come to his knowledge that bitumen was transported through Sh. B.D. Guliyani. He categorically stated that Sh. B.D. Guliyani was not examined by him. The IO did not examine Sh. B.D. Guliyani to ascertain the fact regarding supply of two tankers of bitumen by him when this fact was disclosed by A2 at the initial stage of the investigation for the reasons best known to him. There is no explanation or justification for non examination of Sh. B.D. Guliyani by the IO. Had Sh. B.D. Guliyani been examined by the IO, he may have disclosed the true facts whether the bitumen was transported by him through two tankers to A1 or not.
137. Ld. Prosecutor has argued that the onus was upon the accused to examine Sh. B.D. Guliyani in his defence as the onus shifted upon him. But I am afraid to accede to this contention of the Ld. Prosecutor. The prosecution was required to prove its case against the accused and once the said fact has been disclosed by the accused, then it was for the IO to investigate the same and it could not have been left for the accused to prove in his defence.
138. Even PW2 Sh. Mukesh Jain who is one of the partner of M/s Jain ID No. 78/19 Page 80 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 Sons India which is engaged in the business of transportation of petroleum products from the refineries of Indian Oil Corporation etc. including bitumen to the buyers, examined by the prosecution also corroborates the testimony of DW1 and DW2 regarding the fact that in the year 1998, A2 had placed orders for transportation of three tankers of bitumen from IOC Mathura. He deposed that he had supplied one tanker of bitumen to A2 Prem Arora from the Refinery of Indian Oil Corporation at Mathura. He further deposed that since there was shortage of bitumen at that time he could not supply remaining two tankers of bitumen and he advised A2 to contact other suppliers of bitumen available at that time in the market and one of them was Sh. B.D. Guliyani of Faridabad.
139. As such, A1 & A2 have been able to prove that A1 had placed the order for three tankers of bitumen with Sh. Mukesh Jain of M/s Jain Sons India who had supplied one tanker of bitumen but was unable to supply remaining two tankers and thereafter on the suggestion of Sh. Mukesh Jain, A2 contacted Sh. B.D. Guliyani to supply remaining two tankers of bitumen and Sh. B.D. Guliyani agreed to supply the bitumen against receipt of cash payment because it was their first dealing. Thereafter, on two occasions Sh. B.D. Guliyani supplied two tankers of bitumen against which A1 made the payment as shown in the cash book Ex.PW22/DX2 and the quantity of bitumen against which payment was made also stands reflected in the Measurement Book. ID No. 78/19 Page 81 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022
140. There is yet another aspect of the matter. A1 & A2 have been charged for cheating the MCD by submitting two forged invoices in lieu of purchase of bitumen in support of their claim towards two work orders and thereby inducing the MCD to part with Rs. 5,39,492/ as on the basis of said two invoices the final bills were raised by the accused public servants and ultimately payment was made.
141. In order to establish the charge of cheating punishable under Section 420 IPC, one of the ingredients required to be fulfilled by the persecution was that pursuant to the inducement given by A1 & A2 by submitting two alleged forged invoices, any wrongful loss was caused to the MCD and corresponding wrongful gain to the contractor.
142. In this regard, as noted above, PW6 Sh. Hari Dev Sheekri, Chief Engineer, MCD stated that the MCD makes payment to the contractor for the work done at the site and not for the bitumen. He further stated that final bill is passed only when all the terms and conditions are complied with. He further stated that the payment for the work is made to the contractor only if all the tests are in order. He further stated that the physical delivery of bitumen at the plant indicate purchase of the same from the refinery. He further stated that no payment is made to the contractor without executing the work. The payment to the contractor is made after testing the sample at the lab of MCD and after ID No. 78/19 Page 82 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 receiving the test report.
143. PW8 K.S. Sandhu, Chief Engineer, MCD stated that if the work is executed by the contractor as per specification of MCD, the MCD is under an obligation to make payment to the contractor. Before making payment to the contractor, it is ensured by the MCD official that the work has been executed to the satisfaction of MCD as per specification and conditions of NIT. He admitted that if final payment is made to the contractor, it is presumed that all the formalities have been complied with by the contractor. He also admitted that the payment is made for the work executed by the contractor as per the entry in the Measurement book.
144. PW11 Sh. Sant Lal, Chief Engineer has also stated that the bill is proceeded for making payment to the contractor after it is certified by the official of the MCD that the work has been done as per specification of the work mentioned in the work order.
145. PW13 Deepak Mukopadhyay who was Chief EngineerII in the MCD also admitted that when the payment is tendered, no question of quality remained and accordingly bitumen used was as per specification.
146. PW14 Om Prakash Tanwar, UDC stated that the contractor has performed the task of contract properly and satisfactorily and also as per obligation of contract. He further stated that in his knowledge no complaints ID No. 78/19 Page 83 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 were ever received in respect of quality and quantity of work executed by the contractor and verified by the officials in respect of strengthening of road from Dargah wali gali along with Shop No. 909/7 to Gali along with City Shoes shop No. 84/A., Ward No. 8 Main Bazar, Mehrauli, South Zone and other work i.e. strengthening of road from Bansal Kirshi Store to Kalu Ram Chowk, Main Bazar, Mehrauli. He further admitted that the contractor did both the work under work order Nos. 74 & 75 to the satisfaction of the officials and there was no problem in execution of the work.
147. The aforesaid statements of witnesses examined by the prosecution itself who are senior oficials of the MCD at the rank of Chief Engineer show that in the present case the work has been carried out by the contractor i.e. A1 & A2 as per the specification of the work orders and after satisfaction regarding quality and quantity of the work as per the contract, the payment has been released to the contractor by the MCD. Therefore, it cannot be said that the contractor i.e. A1 M/s Asian Resurfacing of Road Agency Pvt. Ltd. has breached any terms of the contract or that by fraudulently inducing the MCD, the contractor got released the payment in its favour. There is no evidence to show that any wrongful loss has been caused to the MCD and corresponding wrongful gain to the contractor. Rather prosecution witnesses deposed that the work was carried out by A1 as per the specification of work orders as noted ID No. 78/19 Page 84 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 above.
148. In view of the same, charge under Section 420 IPC against A1 & A2 in respect of two invoices bearing Nos. 205775 dated 09.11.1998 Ex.PW6/DY and 205845 dated 16.11.1998 Ex.PW6/X also fails.
149. A1 & A2 have also been charged for the offence punishable under Section 471 IPC. The essential ingredients of Section 471 IPC are that the accused fraudulently or dishonestly used a forged document or electronic record as genuine, secondly that the accused knew or had reasons to believe that the document or electronic record was forged one.
150. Though the prosecution has not been able to prove that the invoices bearing Nos. 205775 dated 09.11.1998 Ex.PW6/DY and 205845 dated 16.11.1998 Ex.PW6/X are forged, but even if for the sake of arguments, it is presumed that the same are forged, still question arises whether A2 Prem Arora had knowledge that the said two invoices are forged or had reasons to believe the same to be forged while submitting the same.
151. Admittedly, it is not the case of the prosecution that A2 has forged the documents. In order to prove the charge under Section 471 IPC, the prosecution was required to prove that either A2 Prem Arora had the knowledge about the invoices to be forged or he had reasons to believe it to be ID No. 78/19 Page 85 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 forged one. None of the prosecution witness has deposed that A2 Prem Arora had knowledge that the said two invoices are forged.
152. Ld. Prosecutor has vehemently submitted that even if there is no evidence to suggest that A2 had knowledge about the two invoices to be forged one, still he had reasons to believe it to be forged and the same can be inferred by the fact that it was A2 Prem Arora who had submitted the said two invoices to the MCD for processing the payment. I am not in agreement with the Ld. Prosecutor that A2 had reasons to believe that the said two invoices are forged or any such inference can be drawn only by the fact that he had submitted the two invoices.
153. From the defence evidence led by A1 & A2, it has come on record that DW1 Leeladhar was supervisor at hot mix plant of A1 and he used to receive the bitumen from the transporter. The driver of the truck carrying the bitumen used to hand over the documents in an envelope in the night as the tanker used to come in the night and thereafter DW1 Leeladhar used to hand over the said close envelope to the JE (Plant) who used to visit during the day time. DW2 also stated that he had no knowledge about the documents as his supervisor Leeladhar used to hand over the envelope containing papers to the JE (Plant) in the morning.
154. PW13 during his crossexamination by A1 & A2 admitted that ID No. 78/19 Page 86 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 driver of the vehicle carrying bitumen used to carry with him the invoice and invoice used to be handed over at the place of hot mix plant along with off loading of bitumen. He admitted that there was no reason to disbelieve the invoice when the invoice brought at the hot mix plant and it was handed over to the concerned person. It has already been established by A1 & A2 that two tankers of bitumen were supplied by Sh. B.D. Guliyani. Therefore, there was no occasion for A2 Prem Arora to have reasons to believe that the said invoices were forged. Furthermore, it has been proved that A1 had purchased the bitumen from Sh. B.D. Guliayani against payment as reflected in cash book Ex.PW22/DX2. If A2 had knowledge or reasons to believe that the invoices are forged, then it is not understandable that why he would make payment to the supplier of bitumen against purchase of bitumen. It is not expected from a common man of a normal prudence that he will accept the forged invoice and will also make the complete payment of the product. Had A2 not been able to prove that he had made the payment to Sh. B.D. Guliyani against purchase of bitumen, then the things would have been different because in that eventuality it could have been inferred that he had knowledge or reasons to believe that the invoices are forged because he had not purchased the bitumen against payment. But the same is not the case here.
155. In view of above, in my considered opinion, even if the case of the ID No. 78/19 Page 87 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 prosecution that the said two invoices are forged is accepted, though not proved, still the prosecution has miserably failed to prove that A1 and A2 had knowledge about forgery of invoices or they had reasons to believe it to be forged documents. Therefore, no case is made out against A1 & A2 for the offence punishable under Section 471 IPC.
156. Now, coming to the allegations made against accused public servants i.e. A3 to A5 & A7.
157. At the outset, it is to be noted that since A3 to A5 & A7 are the public servants, therefore to prosecute them sanction under Section 19 of the PC Act, 1988 was required to be taken by the prosecution from the competent authority. The prosecution has obtained the sanction under Section 19 of the PC Act for prosecution of A3 to A5 & A7 and has examined PW16 Sh. Rakesh Mehta who was posted as Commissioner, MCD in the year 2002 and he had accorded sanction for prosecution of A6 Raju Gusia (since deceased) and of A 7 Om Prakash Saroha as he was the appointing authority and competent to remove them from the services. He has proved the sanction order as Ex. PW16/A.
158. The prosecution has also examined Sh. B.S. Sharma as PW17, who was posted as Additional Commissioner Engineering in the year 2002 and he had accorded sanction in respect of A3 Rakesh Kumar Koli, A4 S.K. ID No. 78/19 Page 88 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 Srivastava, A5 R.K. Rustagi and A8 T.D. Dudeja (since deceased) vide sanction orders Ex. PW17/A to Ex. PW17/D respectively as he was disciplinary authority and competent to remove them from the post of JE and Head Clerk.
159. Both the witnesses stated that the material submitted by the CBI in the form of statement of witnesses, CBI report alongwith documents were gone through before according the sanction and after applying the mind, the sanction was granted.
160. Though Ld. Counsel for accused public servants crossexamined both the witnesses at length to assail their authority and competence to grant the sanction and on the ground of non application of mind while granting sanction for want of complete records, however during course of the arguments Sh. S.P. Aggarwal, Ld. Counsel for accused public servants did not contest the grant of sanction by PW16 Sh. Rakesh Mehta & PW17 Sh. B.S. Sharma and did not make any submission in view of the findings in case titled as "CBI vs. Zile Singh & Ors." CC No. 45/11 which had also arisen out of the complaint made by PW24 Sh. S.K. Jain in which the Court of Sh. Kanwaljeet Arora, the then Ld. Special Judge, PC Act vide judgment dated 29.05.2014 held that Commissioner and Additional Commissioner were competent to grant sanctions in respect of accused persons who also faced the trial in the said case. In view of ID No. 78/19 Page 89 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 the same, PW16 Sh. Rakesh Mehta who was the Commissioner, MCD at the relevant time and accorded sanction in respect of A6 Raju Gusia (since deceased) and A7 O.P. Saroha being the appointing authority was competent to grant the sanction for prosecution of said accused persons. Similarly, PW17 Sh .B.S. Sharma who was Additional Commissioner in MCD was competent to grant sanction in respect of A3, A4, A5 & A8 being the disciplinary authority to remove them from the post of JE, AE and Head Clerk.
161. Now, I proceed to deal with the accusations against accused public servants.
162. A3 to A5 & A7 have been charged for the criminal conspiracy with A1 & A2 by which they had accepted the forged invoices and passed the two bills without ascertaining the genuineness of two forged invoices.
163. In view of my findings whereby it has been held that the prosecution has not been able to prove that two invoices submitted by A1 & A2 are forged and the charge under Section 420 IPC and under Section 471 IPC having not been proved against A1 & A2, the charge of criminal conspiracy under Section 120B IPC qua accused public servants i.e. A3 to A5 & A7 cannot be sustained.
164. The accused public servants have also been charged for the offence of criminal misconduct under Section 13 (1) (d) read with Section 13 (2) of the ID No. 78/19 Page 90 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 PC Act, 1988. The word misconduct has been defined in black law dictionary as : "The transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, willful in character, improper for wrong behaviour". The term 'misconduct' implies wrong intention and not a mere error of judgment. The word 'misconduct' is relative term and has to be construed with reference to the subject matter and the context wherein the term occurs having regard to the scope of the Act or Statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action.
165. Section 13 (1) (d) of the prevention of Corruption Act did not make any negligence or a plain or simple misconduct on the part of any public servant a punishable offence. The Hon'ble Apex Court in number of judgments while interpreting the provisions of this Act has held that a blatant carelessness or gross negligence on the part of any public servant did not ipso facto come within the domain of this section. The alleged misconduct on the part of public servant has to be actuated with criminal intent. The abuse of his position as a public servant in order to come within the mischief of the section must necessarily be dishonest intention on the part of said officer qua the alleged act.
166. The burden to prove affirmatively that the accused by abusing his ID No. 78/19 Page 91 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 official position has obtained any pecuniary advantage either for himself or for any other person lies on the prosecution. The prosecution on the basis of evidence led by it on record has to satisfy the principle that all inculpatory facts, established on record must be inconsistent with the innocence of the accused and incapable of explanation of any other hypothesis that of his guilt.
167. To find out whether the action or inaction on the part of public servants was such which can be termed as misconduct and whether the same traverse in the context of criminal misconduct as defined under the PC Act, the allegations made against the accused public servants and the evidence led by the prosecution are required to be analyzed
168. Allegations against the accused public servants are that they accepted the forged invoices submitted by A2 Prem Aroa on behalf of A1 M/s Asian Resurfacing of Road Agency Pvt. Ltd. for payment against the work of dense carpeting done by A1. It is further alleged that A1 and A2 were also required to submit other documents viz cash receipt, gate pass and terminal tax receipt along with the invoice as a proof of purchase of bitumen, but the accused public servants despite not fulfilling the above said requirements by A1 & A2 prepared the final bill against the work order on the basis of entries recorded in the MBs and passed the bill in question for payment and the said omission on the part of accused public servants resulted in payment of Rs. 5,39,492/ to the ID No. 78/19 Page 92 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 contractor i.e. A1 on the basis of forged invoices.
169. In order to ascertain the said allegations, it is important to look at the duties which the accused public servants i.e. A3 Raj Kumar Koli, A4 S.K. Srivastava, A5 R.J. Rustagi & A7 O.P. Saroha being JE (Plant), JE (Site), Assistant Engineer and Accountant were required to perform and whether they had performed their duties as was expected from them or whether the actions and omissions on their part were laced with any dishonest intention in order to cause any pecuniary advantage in favour of A1 & A2 to bring their conduct within the domain of criminal misconduct.
170. In this regard, PW6 Hari Dev Sheekri who was posted as Chief Engineer, MCD since 1997 has deposed that the contractor was required to procure bitumen directly from the refinery as it is not produced anywhere else and to ensure this the contractor was required to submit invoice issued by the refinery. During his crossexamination by Ld. Counsel for accused public servants, this witness admitted that hot mix plant is owned by contractor and the entire staff of the hot mix plant is of the contractor. He stated that entire material at the hot mix plaint also belongs to the contractor including bitumen. He admitted that it was practically not possible for the JE to remain present for all the 24 hours at the plant. He admitted that JE used to check the bitumen arrived in the night on next visit with respect to the left over bitumen of the previous ID No. 78/19 Page 93 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 day. He further admitted that JE used to check the quantity by taking level in the bitumen tank. He admitted that contractor used to inform the JE plant about the arrival of the bitumen at the plant. He further admitted that the documents accompanying the bitumen tanker were used to be delivered during night to the staff available at the plant belonging to the contractor as there were no staff of MCD at the plaint at that time. He admitted that any bitumen left after completing the work of dense carpeting belongs to the contractor and contractor can use it the way he desires and MCD has no control over it. He admitted that it was not possible for any person including JE plant except persons qualified for the purpose to say whether a particular document is genuine or forged. He also admitted that it is the responsibility of the contractor to bring bitumen on the plant for the dense carpeting work.
171. In his crossexamination by Ld. Counsel for A1 & A2, he admitted that the contractor is responsible for complying of terms and conditions in the contract documents signed by him. He stated that during the year 1998 bitumen was to be procured from the IOC refineries only as the distributorship stood abolished. He admitted that there was no private manufacturer of bitumen.
172. PW8 Sh. K.S. Sandhu who was posted as Chief EngineerI in the MCD in the year 2001 has deposed that as per the condition of contract, the contractor who was awarded the contract for road resurfacing was required to ID No. 78/19 Page 94 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 purchase the same from the Government Refinery as Government Refinery was the only manufacturer of bitumen. He stated that on the basis of the work order, the contractor or his authorized representative used to purchase bitumen from the Government Refinery and thereafter used to store the same at the hot mix plant installed by the contractor. In case the bitumen used to arrive at the hot mix plant in the night, then the watchman used to receive the same and if the bitumen used to arrive in the morning, then the same used to be received by JE (Plant). The JE (Plant) had the powers to inspect the bitumen for the purpose of ensuring the quality and quantity. He further stated that the transporter who used to bring the bitumen at the hot mix plant used to hand over the invoice issued by the Government Refinery and the invoice used to contain the details regarding the quantity of bitumen and the quality of bitumen supplied. He categorically stated that the MCD had no mechanism to crosscheck the invoice and the contractor was solely responsible for the contents of the invoice.
173. In his crossexamination by Ld. Counsel for 3 to 5 & 7, he stated that he cannot say whether there was any complaint in respect of the quality and quantity of work in the present case as he was not involved in these works. He stated that whatever documents are brought by the contractor at the plant along with the bitumen are considered to be correct as it is the responsibility of the contractor and not the JE at plant or site or any other official of the MCD. He ID No. 78/19 Page 95 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 admitted that in the year 1998, neither cash receipt nor gate pass nor terminal tax was issued, hence the same was not required to be produced. He further admitted that refineries have never sent any sample of invoice etc. to the MCD for verification purposes.
174. PW11 Sh. Sant Lal who was posted as Chief EngineerV in the MCD in the year 2001 has deposed that the agreement used to contain the conditions for procurement of bitumen. The primary condition for procurement of bitumen used to be that it should be purchased from the original/approved manufacturer. He further stated that it was also mentioned in the agreement that the contractor/bidder has to provide proof of procurement of bitumen from the original manufacturer by producing the invoice, gate pass, mode of payment, receipt of terminal tax etc. He stated that the conditions were put in the agreement to ensure quantity, quality and the genuineness of the supplier.
175. In his crossexamination by Ld. Counsel for A1 & A2, PW11 stated that he cannot tell that in the year 199899, the system of issuance of gate pass and cash receipt were stopped. He was confronted with his statement recorded under Section 161 Cr.P.C. Ex.PW11/D1 wherein he has stated that in respect of cash receipt indicating name of work for which the bitumen is being purchased, the oil companies do not issue the same. He stated that originally the refineries used to issue gate pass to the transporter who are carrying bitumen ID No. 78/19 Page 96 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 from the refinery to the hot mix plants of the contractors. Later on, refineries discontinued this procedure and used to give additional copy of the invoice to the transporters who used to deliver this additional copy of invoice while moving out of the refinery. He further stated that in the mid 1990's, under instructions from Central Government, terminal tax was abolished. As such, the practice of receipt of terminal tax was no longer in vogue.
176. In his crossexamination by Ld. Counsel for 3 to 5 & 7, this witness admitted that none of the refineries had sent any sample document to MCD for comparing with the documents accompanying the bitumen. He stated that the final duty of submitting the invoice was of the contractor or his authorized nominee.
177. PW13 Sh. Deepak Mukhopadhyay who was working as Chief EngineerII in the Engineering Department of MCD in the year 199798 has deposed that in 1987, a circular was issued stating that four conditions were required to be fulfilled by the contractor who is bringing the bitumen from the government approved refineries and these conditions were: (1) cash receipt issued by the refinery, (2) invoice issued by the refinery, (3) Gate pass issued by the refinery and (4) receipt of toll tax. He stated that out of the above four, refineries were not issuing cash receipts, gate pass and toll tax was abolished sometimes after 1993 and as such the contractors used to bring only the invoice ID No. 78/19 Page 97 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 issued by the refineries (condition no. 2 above). He categorically stated that there is no mechanism available with the MCD staff to see from the appearance of the invoice if it is forged or genuine.
178. In his crossexamination by Ld. Counsel for A1 & A2, this witness in reply to a question put to him that can it be said that the MCD realized in the year 2000 that the aforesaid four conditions are superfluous, he categorically stated that out of the four conditions except the invoice, the other three were superfluous. He further stated that the fourth condition was submitting the original invoice and the same was modified and its photocopy duly attested by the contractor/authorized represented was to be filed in place of original invoice. He was again put a question whether he will be able to tell by looking the invoice Ex.PW1/B (D92) by naked eyes as to whether this invoice is genuine or false to which he replied that he has never seen this invoice earlier and it is not possible for him to say whether by looking from its appearance a person can identify if it is genuine or forged. Similar was his reply in respect of invoice Ex.PW6/DY(D5) and Ex. PW6/DX (D8). He admitted that by the naked eyes, it is not possible to ascertain if the specifications of the bitumen as per the contract conditions. He stated that the person who has received the bitumen at the hot mix plant from the authorized transporter has no reason to disbelieve the genuineness of the invoice.
ID No. 78/19 Page 98 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022
179. In his crossexamination by Ld. Counsel for A3 to A5 & A7, PW13 stated that he had already told CBI officials at the time of giving his statement that these three conditions, cash receipt, gate pass and the toll tax receipt were not possible to be fulfilled and it is also correct that none of the contractors were fulfilling these conditions. He admitted that it was not part of duty of JE to stay at hot mix plant during night, if there is no work being done during night. He admitted that most of time, bitumen used to come at the plaint during night. He stated that from the overall appearance of the invoice, it was not possible for the JE, AE and Accountant and Executive Engineer to identify if the said invoice is genuine or forged. He admitted that when invoice is accompanied with bitumen mentioned in it, the authenticity of the invoice stands established. He volunteered that invoice is always accompanied with bitumen.
180. In the light of testimony of above prosecution witnesses, it has emerged that :
(a) The contractor is required to execute the work as per agreement;
(b) The contractor is required to procure bitumen from approved oil companies and to produce the invoice as a proof thereof;
(c) Out of four conditions i.e. to submit the cash
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receipt, invoice, gate pass and terminal tax receipt, only invoice was required to be submitted by the contractor and remaining three conditions were superfluous and not being complied with;
(d) JE (Plant) on the basis of invoices so delivered by the contractor are supposed to make relevant entries in their records, Measurement Books etc.;
(e) There was no mechanism available to the MCD officials to ascertain the genuineness and authenticity of the invoices;
(f) If the bitumen was accompanied with the invoice, then invoice was presumed to be genuine;
(g) JE (Plant) are required to conduct the test check with respect to the mix prepared at the plant by the contractor and only after finding it to as per specification to let it go to the site ;
(h) JE (Site) are responsible for the quality, quantity and dimensional accuracy of the work to be executed at the site by the contractor and to make necessary test check and record entries in their register;
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(i) JE then on the basis of recorded entries prepares
the bill along with the supporting document;
(j) Assistant Engineer makes the overall supervision
of the work and the entires so recorded by the Junior
Engineer;
(k) Bill is then sent to the Accounts Branch for
processing along with the invoices and supporting
documents;
(l) It is checked and processed in the Accounts
Branch whereafter it is put up before Executive Engineer who passes the same and thereafter payment is released to the contractor;
(m) If the payment was released to the contractor then it implied that the work was done as per specification of the contract and there was no issue of the quality and quantity of the work.
181. During course of the arguments, Ld. Prosecutor has vehemently argued that the entries in the relevant documents and registers as well as bills were made by the accused public servants on the basis of the invoices submitted by the contractor. He submitted that as per the NIT conditions and work order, ID No. 78/19 Page 101 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 the contractor was supposed to submit cash receipt, terminal tax receipt, gate pass and invoices with the MCD. He would argue that the accused public servants for the reasons best known to them did not press for submission of cash receipt, gate pass and terminal tax receipt and only on the basis of invoices which were forged made the relevant entries and facilitated the contractor to have his payment released.
182. On the other hand, the Ld. Counsel for A3 to A5 & A7 contended that it was not part of duties of the JE to verify the authenticity and genuineness of the invoices and even the prosecution has failed to prove that the invoices were forged. The Ld. Defence Counsel submitted that the JE (Plant) was not supposed to remain present at the plant in the night and the bitumen used to arrive in the night, therefore he could not have verified the fact whether the invoices were forged and there was no condition of submission of cash receipt, gate pass and terminal tax receipt.
183. It may be noted that in the foregoing discussions, it has been held that the prosecution has miserably failed to prove that the invoices Ex.PW6/DX and Ex.PW6/DY are forged. Now, so far as the contention of Ld. Prosecutor that the accused public servants failed to take the relevant documents apart from the invoices which were the conditions of the agreement and thus facilitated the release of payment to the contractor without complying the terms and conditions ID No. 78/19 Page 102 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 of the contract, is concerned, as per PW8 Sh. K.S. Sandhu, in the year 1998 neither cash receipt, nor gate pass nor terminal tax was issued and hence the same was not required to be produced. Similarly, another witness examined by the prosecution PW13 Sh. Deepak Mukhopadhyay has even stated that except the submission of invoice the other conditions of contract are superfluous.
184. Therefore, in view of the aforesaid testimony of the prosecution witnesses itself who are none but the senior level MCD officials, contention of the Ld. Prosecutor that the accused public servants failed to comply the terms and conditions of the contract by not insisting to submit the cash receipt, gate pass and terminal tax which has facilitated the contractor to get the payment released in its favour is not tenable.
185. So far as the another contention of Ld. Prosecutor that it was the duty of the MCD officials to check the genuineness of the invoices is concerned, at the first instance, as noted above, the prosecution has not been able to prove that the invoices are forged. Moreover, as per PW8 Sh. K.S. Sandhu, the MCD had no mechanism to crosscheck the invoice and the contractor was solely responsible for the contents of the invoice. PW13 Sh. Sh. Deepak Mukhopadhyay also admitted that in general there is no mechanism available with the MCD staff to see from the appearance of the invoice if it is forged or genuine. He also admitted that there is no reason to disbelieve the invoice when ID No. 78/19 Page 103 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 the invoice is brought in the mix plant and it is handed over to the concerned person.
186. Even PW9 Sh. J.S. Khanuja, Executive Sales Officer, HPCL has stated during his crossexamination that there was no practice of sending sample invoices to the MCD to show genuine invoices when compared with fake invoices. Likewise, PW10 Hira Lal Sith, Deputy Manager, Mathura Refinery, HPCL stated that HPCL has never issued any copy of the invoice to the MCD, PWD or CPWD showing colour or design of the invoice. He admitted that no such sample was sent to MCD, PWD or CPWD the officials of such department would not know the colour or design of the invoices.
187. The aforesaid testimony of prosecution witnesses would show that cash receipt, gate pass and terminal tax receipt were being not filed by the contractor with the MCD. The reasons for not filling these documents have been explained by prosecution witnesses as discussed herein above. The prosecution witness even has gone to the extent that out of four conditions, remaining three conditions were superfluous. Furthermore, no evidence whatsoever has been adduced by the prosecution through deposition of any witness or by producing the record of any other work order to prove that all these four conditions or any one of them apart from submission of invoice was being fulfilled. In the absence of any such evidence, I do not find any merit in ID No. 78/19 Page 104 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 the contention of by Ld. Prosecutor that the accused public servants had failed to check the submission of cash receipt, gate pass and terminal tax receipt along with the invoice and consequently to draw an inference that the said conduct for not insisting the said documents was a deviation from the established practice with MCD and to impute any criminality or dishonest intention. Rather non insistence of these documents is in consonance with regular practice prevalent with the MCD as deposed by prosecution witnesses themselves.
188. In view of aforesaid discussions, in my considered opinion, the accused public servants did not have any expertise or mechanism available with them to verify the genuineness of the invoice which would enable them to distinguish between a genuine and a forged invoice. It has come on record that the contractor had carried out the work as per the specification of the agreement and there was no complaint whatsoever in respect of quality and quantity of the bitumen used in the dense carpeting work. Therefore, the accused public servants had no reasons to doubt about the genuineness of the invoices. The prosecution has miserably failed to prove by any oral or documentary evidence that it was part of duty of the public servant to verify the genuineness of the invoices. In the absence of any evidence regarding duty and responsibility of the public servant to ascertain the genuineness of the invoice, criminal liability cannot be imposed upon them and no criminal intent or misconduct can be ID No. 78/19 Page 105 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 attributed to them in accepting the invoices which even the prosecution has not been able to prove as forged invoices. Furthermore, there is no evidence that due to lapse on the part of the accused public servants, any wrongful gain has been caused to the contractor to bring their conduct within the ambit of the definition of criminal misconduct as provided under Section 13 (1) (d) of PC Act with which they were charged.
189. In the light of the aforesaid discussions, I have no hesitation to hold that the prosecution has miserably failed to prove charge against the accused persons, namely, A1 M/s Asian Resurfacing of Road Agency Pvt Ltd., A2 Prem Arora, Director of A1, A3 Rakesh Kumar Koli, A4 S.K. Srivastava, A5 R.K. Rustagi, & A7 O.P. Saroha of criminal conspiracy that A2 Prem Arora being Director of A1 entered into a criminal conspiracy with MCD officers/officials i.e A3 to A5 & A7 in order to cheat the MCD and in pursuance of the same, A2 submitted two forged invoices for payment against the work of dense carpeting work awarded by the MCD to A1 and the accused public servants checked, accepted and passed the said forged invoices without insisting the other requisite documents and facilitated the release of payment in favour of A1. The prosecution has also failed to establish the necessary ingredients of Sections 420 & 471 against A1 and A2 and Section 13 (1) (d) ID No. 78/19 Page 106 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022 read with section 13 (2) of the PC Act against A3 to A5 & A7.
190. Consequently, all the accused persons viz. A1, A2, A3 to A5 & A7 are hereby acquitted of the offence punishable under Section 120B, 471 read with Section 467 of the IPC and Section 13 (1) (2) read with Section 13 (1) (d) of the PC Act, 1988.
191. A1 & A2 are also acquitted of the substantive offence punishable under Section 420, 467 & 471 IPC and A3 to A5 & & A7 are acquitted of the substantive offence punishable under Section 13 (2) read with Section 13 (1) (d) of the PC Act, 1988.
192. Bail bonds furnished by the said accused persons under Section 439 Cr.P.C. stand cancelled and their sureties are discharged.
193. Fresh bail bonds furnished by accused persons in compliance of Section 437A Cr.P.C in the sum of Rs.50,000/ each. The same are accepted and shall remain in force for a period of six months from today.
194. File be consigned to Record Room after necessary compliance. Announced in the open Court on 31st May, 2022 (Balwant Rai Bansal) Special Judge (PC Act), CBI17, Rouse Avenue District Courts, New Delhi ID No. 78/19 Page 107 of 107 CBI vs. M/s Asian Resurfacing of Road Agency Pvt. Ltd. & Ors Judgment dt. 31.05.2022