Delhi District Court
Central Bureau Of vs . (1) Suresh Kumar Aggarwal on 16 July, 2015
1
IN THE COURT OF GURDEEP SINGH, SPECIAL JUDGE (PC ACT),
CBI 05, NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
CC No. 08/14
Unique Case ID No. 02403R024 2922014
Central Bureau of Vs. (1) Suresh Kumar Aggarwal
Investigation S/o Late Sh. Ram Kishan
R/o House No.C4/22, 1st Floor
Safdarjung Development Area
New Delhi110016
(2) Salim Khan
S/o Sh. Suleman Khan
R/o RZ3206/36, Tughlakabad Extn.
PS Govindpuri, New Delhi.
(3) M/s Kadri Tubewells Pvt. Ltd.
Through its Director
R/o RZ3206/36, Tughlakabad Extn.
PS Govindpuri, New Delhi.
A N D
CC No. 09/14
Unique Case ID No. 02403R0243032014
Central Bureau of Vs. (1) Pradeep Kumar
Investigation S/o Charan Singh
R/o 330, Church Gali, Fateh Puri Beri,
New Delhi110076
(2) Salim Khan
S/o Sh. Suleman Khan
R/o RZ3206/36, Tughlakabad Extn.
PS Govindpuri, New Delhi.
CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 1 of 73
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(3) M/s Kadri Tubewells Pvt. Ltd.
Through its Director
R/o RZ3206/36, Tughlakabad Extn.
PS Govindpuri, New Delhi.
A N D
CC No. 10/14
Unique Case ID No. 02403R0243122014
Central Bureau of Vs. (1) V. K. Gupta
Investigation S/o Late Sh. Ram Kishore
R/o B142, Sec.52
NOIDA, U.P.
(2) Salim Khan
S/o Sh. Suleman Khan
R/o RZ3206/36, Tughlakabad Extn.
PS Govindpuri, New Delhi.
(3) M/s Kadri Tubewells Pvt. Ltd.
Through its Director
R/o RZ3206/36, Tughlakabad Extn.
PS Govindpuri, New Delhi.
...........................................................................................................................
RC No. : DAI2012A021/CBI/ACB/New Delhi
U/s : 120B r/w Sec. 420/471/ 477A IPC and
Sec. 13(2) r/w 13(1) (d) of PC Act, 1988 and
substantive offence thereof.
Date of Institution : 18.12.2014
Arguments concluded on : 13.07.2015
Date of Decision : 16.07.2015
Appearances:
Sh. K. P. Singh for CBI
Sh. Sudharshan Rajan and Mohd. Qamar Ali, Ld. counsels for A1
Sh. RC Tiwari, Ld. counsel for A2 & A3
CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 2 of 73
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JUDGMENT
1) Vide this common judgment, I shall decided CC Nos. 08/14, 09/14, and 10/14 titled as CBI v. Suresh Kumar Aggarwal & Ors., CBI v. Pradeep Kumar & Ors., and CBI v. V. K. Gupta & Ors. respectively. All these three cases have arisen from the common RC No. RCDAI2012A021, ACB, New Delhi dated 29.06.2012. In aforementioned CC Numbers, the CBI has made accused Suresh Kumar Aggarwal, JE; accused Pradeep Kumar, JE; and accused V. K. Gupta, JE separately and in all three matters accused Salim Khan and accused M/s Kadri Tubewells Pvt. Ltd. through its Director Salim Khan are common. Above named accused persons were sent up to stand trial for offences punishable under S. 120B r/w Sec. 420/471/ 477A IPC and Sec. 13(2) r/w 13(1) (d) of PC Act, 1988 and alongwith substantive offences thereof.
2) The facts common to all the three cases are that Delhi Jal Board, (hereinafter referred to as "DJB") South Division1 during 2008 to 2009 installed tubewells for catering potable water needs in the area through different contract agreements. The procedures for boring tubewells is by way of Notice Inviting Tender (NIT) by Executive Engineer, issuance of work order after receipts of tender and execution of work and thereafter test checking, physical verification/measurement book, completion report and thereafter payment to the contractor.
CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 3 of 734
3) The boring of tubewell involves inter alia lowering of Jhonson (Slotted/Strainer) Pipe welded with MS Steel Pipe into the borehole. The investigation did not find any procedural irregularities in the tendering process. The Executive Engineer (XEN) and Assistant Engineer (AE) in DJB are required to supervise work and remain present at the site for limited period on account of their other responsibilities. The XEN is the over all Incharge of the project/works under the division and has financial power to approve the expenditure submitted by Junior Engineer (JE) and Assistant Engineer (AE) upto Rs.10/ lacs and at the time of execution of work, XEN is responsible for 10% checking of the work and being in charge of whole project normally checks the quality of material being procured at the site. He also checks the entries in the "Measurement Book" and prepares the Test Check Report based on the checking in respective MB for the items costing up to 10% of the total work. The XEN supervises many projects at a given time, hence, he conducts only sample checking. At the time of execution of work, AE is responsible for 50% checking of the work and he also checks the entries in the "Measurement Book" (MB) and prepares Test Check Report based on the checking made by him in the respective MB. Junior Engineer (JE) remains as EngineerinCharge of site and makes entries in the Measurement Book (MB) as the progress of work takes place as per Bill of Quantities (BOQ) and is responsible for 100% checking of the work. CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 4 of 73 5
4) In this case total four contract agreements i.e. CA No. 73/200809, 82/20089, 92/200809 and 120/200809 were awarded to M/s Kadri Tubewells Pvt. Ltd. and physical site inspection of the work orders pertaining to these contract agreements were carried out, after which one tubewell in CA No.73/200809 was found abandoned. Sh. Suresh Kumar Aggarwal, Sh. V. K. Gupta and Sh. Pradeep Kumar were the three JEs who were assigned the job to get the work executed as per contact agreements through M/s Kadri Tubewells Pvt. Ltd.
5) In respect of CC No. 08/14, which is with reference to Contact Agreement No.82/200809 and work order no.161 dated 21.07.2008 issued in favour of M/s Kadri Tubewells Pvt. Ltd. for installation/reboring of tubewells at three places, 04 tubewells were installed and in respect of tubewells nos. 1 to 3 either no irregularity was found or report was inconclusive and therefore prosecution was not preferred. The prosecution was with reference to tubewells at Near A18, Durga Vihar, Bandh Road, Devli. As per MB entries, total 105 meters pipe make 'Johnson' was shown to have been used which is signed by Suresh Kumar Aggarwal, JE and K N Dhyani, AE whereas Anil Sharma, EE, has not signed in the MB. In respect of reboring near Durga Vihar, accused Suresh KumarAggarwal, JE had made the entry that contractor had used the 55 meters 'Johnson' Pipe in the MB whereas the expert from NGRI, Hyderabad after inspection had opined and reported that 'Johnson' Pipe has not been used. CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 5 of 73 6
6) Further, investigation has revealed that the Contractor Sh. Salim Khan, Director of M/s Kadri Tubewells Pvt. Ltd. has submitted photocopy of bills/invoices shown to have been issued from M/s Bharti Waters Pvt. Ltd. for claiming the payment and the said invoices/bills were two photocopies of retail Invoice No. BW/200/200809 dated 15.07.2008 for Rs.143020/ for 60 mtrs and BW/396/200809 dated 12.12.2008 for Rs.118184/ for 50 mtrs. The said invoices were not verified by the officials of DJB. The said invoices were found to be forged and it was found that one the bill/invoice No. BW/200/200809 was issued by M/s Bharti Waters Pvt. Ltd. in favour of M/s Nisha Engineers, F82, Gama1, Greater Noida, U.P. As regards the Invoice No. BW/396/200809, it was not issued at all by M/s Bharti Waters Pvt. Ltd. to anyone as the number of last bill issued in financial year 200809 was BW/244/200809 dated 30.03.2009. On the basis of those bills, payments were made.
7) It was also revealed that M/s Bharti Waters Pvt. Ltd. is the sole authorised distributor of strainer filter pipe from LCG Water Well Screen : manufactured by Johnson Filtration System India Ltd. Ahmadabad.
8) The CC No.09/2014 with respect to CA No. 91/08, the work order no.
170 dated 30.7.2008 regarding tubewells which were located Near Baljeet House (A124), Chhattarpur Enclave and Near Shiv Shakti CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 6 of 73 7 Mandir, Chhattarpur Enclave. The entry in respect of reboring and use of 'Johnson' Pipe has been made by Sh. Pradeep Kumar, JE in MB and total 115 meters 'Johnson' make Pipe has been shown to have been used by the contractor which is also signed by AP Garg, AE for 60 meters 'Johnson' Pipe whereas Anil Sharma, EE has not signed and lowering/installation of the assembly has not been signed either by AE or EE. The Expert from NGRI had opined and reported that 'Johnson' Pipe has not been used. The Contractor has submitted one photocopy of bill/invoice dated 15.07.2008 for 60 meters 'Johnson' pipe shown to have been issued by M/s Bharti Waters Pvt. Ltd. for claiming payment, which was not verified by officials of DJB. The same is also found to be forged. The Bill/Invoice No. BW/200/200809, in fact, was issued to M/s Nisha Engineers. This is the same bill/invoice which was presented for claiming payment in CC No. 08/2014 also.
9) In respect of CC No.10/14 which involves contract agreement no.
120/200809 and work order no. 240 dated 30.08.2008 for installation of tubewell near West End Marg ( Near temple) Saidulajab Village. As per MB No.15445, entries made by accused V. K. Gupta, JE, 45 meters 'Johnson' Pipe has been shown used by the contractor and concerned AE and EE has not signed for the 'Johnson' pipe. The expert also opined that no 'Johnson' pipe has been used. The contract Salim Khan has submitted photocopy of invoice/bill no.BW/410/200809 dated 22.12.2008 for 60 meters shown issued by CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 7 of 73 8 M/s Bharti Waters Pvt. Ltd. for claiming the payment. The bill is however, not verified by the official of DJB and the said bill is forged as same has not been issued at all by M/s Bharti Waters Pvt. Ltd.
10) On the above allegations, after completion of investigation, accused persons were chargesheeted by the CBI for the offences punishable U/s120B IPC r/w 420, 741 & 477A of IPC & Sec. 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and substantive offences thereof was filed in the court.
11) My Learned Predecessor, after taking cognizance, summoned the accused persons vide order 20.12.2014 and copies were supplied in compliance of 207 Cr.PC.
12) After finding prima facie case, vide common Order On Charge dated 20.02.2015, my Learned Predecessor charged all accused persons for offences punishable under S. 120B r/w Section 420/471 and 477A IPC and Sec. 13(2) r/w 13(1)(d)(iii) PC Act and accused A1 for an offence punishable under S. 13(2) r/w 13(1)(d)(iii) PC Act 1988 and Sec. 477 A IPC and Section 120 B IPC and accused A2 and A3 for offences punishable under S. 420/471 IPC and substantive offence under S. 120 B IPC. Accordingly, charges were framed separately in all three respective matters, to which accused persons pleaded not guilty and claimed trial.
CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 8 of 73 9 PROSECUTION EVIDENCE
13) My Ld. Predecessor vide order dated 20.02.2012 observed and directed that all the three charge sheets have arisen from common RC No.DAI2012A021/2012 dated 29.06.2012 and offences are same and only public servant i.e. the JEs at the respective time are different, and in all the three cases witnesses are also common, therefore, directed that for sake of brevity and in order to avoid multiplicity in recording of evidence and to avoid any contradiction in the judgment, all the three cases were directed to be tried together and directed that Criminal Case no. 08/14 shall be treated as main case and all the proceedings and evidence shall be recorded in the same.
14) Prosecution in support of their case examined as many as 14 witnesses, which can be categorized as follows: A. Formal Witnesses to prove the sanction to prosecute public servants, incorporation of the accused company and its bank statement.
B. Expert witnesses with respect to site inspection and conducting test regarding user of 'Johnson' make pipe in borewells and witness from CFSL who examined CDs.
C. Witnesses to prove standard procedure adopted in Delhi Jal Board and witnesses who were dealing with the matter at the relevant time CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 9 of 73 10 D. Independent public witnesses regarding issuance of bill/invoices E. Witnesses who joined the Investigating and conducted the investigation and Investigating Officer (IO) A. Formal Witnesses to prove the sanction to prosecute public servants, incorporation of the accused company and its bank statement: The prosecution examined following witnesses :
(i) PW1 Dr. Jayadev Sarangi, IAS, Member (Administration), Delhi Jal Board proved sanction for prosecution of accused Suresh Aggarwal, JE; accused Pradeep Kumar, JE; and accused V. K. Gupta, JE as Ex.PW1/A, Ex.PW1/C and Ex.PW1/D respectively and its forwarding letter as Ex.PW1/B.
(ii) PW4 Sh. Krishan Kumar Gahlawat, Sr. Manager (Credit), Corporation Bank proved the statement of accounts of M/s Kadri Tubewells Pvt. Ltd. from 03.01.2008 to 26.12.2009 as Ex.PW4/C (Colly), Certificate u/s 2A of Bankers Book Evidence as Ex.PW4/B and and its seizure memo as Ex.PW4/A. Photocopies of the same set of documents, are also proved in case titled as CBI v. Pradeep Kumar etc. as Ex.PW4/F (Colly), Ex.PW4/E and Ex.PW4/D respectively and in case titled as CBI v. V. K. Gupta etc. as Ex.PW4/J (Colly), Ex.PW4/H and Ex.PW4/G respectively. CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 10 of 73 11
(iii) PW5 Sh. P. Rajenderan, Assistant General Manager, Corporation Bank proved account no. 0100004 belongs to M/s Kadri Tubewells Pvt. Ltd. and operated by A2 Salim Khan and proved account opening form as Ex.PW5/B and letter to CBI as Ex.PW5/A in case titled as CBI v. Suresh Kumar etc, and also proved the same documents in case titled as CBI v. Pradeep Kumar etc. as Ex.PW5/D and Ex.PW5/C respectively and in case titled as CBI v. V. K. Gupta etc. as Ex.PW5/F and Ex.PW5/E.
(iv) PW10 Sh. P. L. Malik, the then Deputy Registrar of Companies, NCT of Delhi and Haryana, proved documents in respect of incorporation of company as Ex.PW10/B (Colly), Ex.PW10/D (Colly) and Ex.PW10/F respectively running into 2 to 39 pages and also proved letter regarding handing over of these documents to CBI as Ex.PW10/A, Ex.PW10/C and Ex.PW10/E respectively.
B. Expert witnesses with respect to site inspection and conducting test regarding user of 'Johnson' make pipe in borewells and witness from CFSL who examined CDs :
(i) PW2 Sh. Jyothi Kumar, Sr. HydroGeologist, Central Ground Water Board is witness of site inspection of borewell videography by Dr. Reddy of NGRI, Hydrabad conducted on CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 11 of 73 12 various dates. He proved site inspection memos (03 in numbers) dated 23.09.2013, 02.3.2013 as Ex.PW2/A, Ex.PW2/B and Ex.PW2/C respectively in case titled as CBI v. Suresh Kumar Aggarwal etc. He also proved site inspection memo dated 02.3.2013 in case titled as CBI v. Pradeep Kumar etc. and in case titled as CBI v. V. K. Gupta etc as Ex.PW2/D and Ex.PW2/E respectively. He also identified his signatures on the above mentioned site inspection memos.
(ii) PW13 Dr. D. V. Reddy, Senior Principal Scientist, National GeoPhysical Research Institution, Hydrabad is witness who examined the borewells in South Delhi in particular to identify casing in the borewells drilled by DJB at the request of CBI. He proved report no.6/13 dated 29.5.2013 and report No. DVR, CBI/DEL/NGRI/HYD./15/13 dated 18.11.2013 as Ex.PW13/A and Ex.PW13/B respectively, CD Ex.PW6/P2 and envelop as Ex.PW6/F and Certificate u/s 65B of Indian Evidence Act as Ex.PW13/D (Collectively) and its forwarding letter to CBI as Ex.PW13/C in case titled as CBI v. Suresh Kumar Aggarwal etc. He also proved the copies of the said documents in case titled as CBI v. Pradeep Kumar Singh etc. as proved site inspection memo dated 02.3.2013 as Ex.PW2/D and his reports as Ex.PW13/E Collectively and Ex.PW13/F collectively and letter dated 24.02.2014 as Ex.PW13/G and CD as Ex.PW6/P1 CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 12 of 73 13 and envelops as Ex.PW6/D and Ex.PW6/E. He also proved the same set of documents in case titled as CBI v. V. K. Gupta etc. such as copy of report as Ex.PW13/H respectively and certificate as Ex.PW13/K and forwarding letter PW13/J.
(iii) PW6 Sh. Rakesh Bisht, Senior Scientific Officer, GradeI, Photo and Scientific Aid Division, CFSL, CBI, New Delhi is witness who examined two CDs to ascertain whether the CDs have been tampered with or not, and opined that no opinion could be offered on examination of two CDs as these two video CDs do not have the required video quality for video examination and given detailed examination report dated 28.07.2014 and proved the said report in case file bearing CC No.08/14 as Ex.PW6/A (D26) and its photocopy in case file bearing CC No.09/14 and 10/14 as Ex.PW6/B (D26) and Ex.PW6/C (D26) respectively. He also proved various envelops as Ex.PW6/D, Ex.PW6/E, Ex.PW6/F and Ex.PW6/G and CDs as Ex.P1 and Ex.P2.
C. Witnesses to prove standard procedure adopted in Delhi Jal Board and witnesses who were dealing with the matter at the relevant time:
(i) PW9 Shiv Kumar Bhardwaj, Superintending Engineer, DJB who deposed regarding procedures and proved copy of letter dated 08.06.2006 as Ex.PW9/A, instructional order CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 13 of 73 14 No.DJB/DIR (F&A)/2000/290 dated 06.09.2000 as Ex.PW9/B and copy of circular dated 28.5.2008 regarding test checking of measurement as Ex.PW9/C.
(ii) PW12 Sh. Satya Prakash, Senior Accounts Officer, DJB who during the relevant period was Accountant. He also deposed regarding the procedures adopted and in addition to other, he proved signatures on the work file Ex.PW11/A, and final bill as Ex.PW11/B and completion statement Ex.PW11/C and photocopy of instruction order as Ex.PW12/A in CC No.08/14 titled as CBI v. Suresh Kumar Aggarwal etc. With respect to CC No.09/14, titled as CBI v. Pradeep Kumar etc. he identified signature on work file Ex.PW11/F (Colly), final bill Ex.PW11/G and completion statement Ex.PW11/H and photocopy of instructional order as Ex.PW12/B. He also proved the same set of documents in case No.10/14 titled as CBI v. G. K. Gupta etc. and identified signatures on the work file Ex.PW11/L, final bill Ex.PW11/M and completion statement as Ex.PW11/N and proved instructional order as Ex.PW12/C. He also proved Strata Chart and Test Check Report in CC No. 10/14, 08/14 and 09/14 as Ex.PW12/D (Colly), Ex.PW12/E (Colly) and Ex.PW12/F (Colly) respectively.
(iii) PW11 Ms. Lekha Pawar, Head Draftsman (It should be CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 14 of 73 15 Draftswoman) in the office of Superintending Engineer, DJB and at the relevant time she was Draftsman in the office of EE. She proved Bill of Quantity in work file as Ex.PW11/A (Collectively), final bill bearing signature of Sh. Anil Kumar Sharma, EE as Ex.PW11/B and completion statement as Ex.PW11/C which bears signature of accused Suresh Aggarwal, JE and Sh. K. N. Dhyani the then AE and of Executive Engineer Mr. Anil Kumar Sharma and MB No. 14250 as Ex.PW11/D (Colly) and work order no. 161/2008 of M/s Kadri Tubewells Pvt. Ltd. as Ex.PW11/E (Colly). She also proved the same set of documents in CC No.09/14 titled CBI v. Pradeep Kumar etc. as Ex.PW11/F (Colly), PW11/G, PW11/H Ex.PW11/J (Colly) and PW11/K (Colly) and in CC No. 10/14 titled as CBI v. V. K. Gupta etc. as Ex.PW11/L (Colly), Ex.PW11/M, Ex.PW11/N, Ex.PW11/O (Colly) and Ex.PW11/P (Colly).
D. Independent public witnesses regarding issuance of bill/invoices:
(i) PW7 Sh. Anand Tripathi, the then Civil Engineer in Nisha Engineers and Contractors, is witness of purchase of screening pipe make 'Johnson' and proved retail invoice number BW/200/200809 dated 06.02.2009 in the case file bearing CC No.08/14 titled as CBI v. Suresh Kumar Aggarwal etc. as CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 15 of 73 16 Ex.PW7/A and its photocopy in CC No.09/14 titled as CBI v. Pradeep Kumar Singh etc. as Ex.PW7/B.
(ii) PW8 Sh. Kamal Kumar Aggarwal, Managing Director, Bharti Waters Pvt. Ltd., he proved invoice issued in favour of M/s Nisha Engineers and Contractors as Ex.PW7/A, copy of account ledger as Ex.PW8/B( Colly) and its seizure as Ex.PW8/A and photocopy of bill invoice BW/244/200809 dated 30.3.2009 issued in favour of M/s Aggarwal Pumps and Pipes as Ex.PW8/C (Objected to being photocopy) and seizure memo in respect of invoices as Ex.PW8/D and certified copies of invoices as Ex.PW8/E and Ex.PWF (objected to being photocopy), fake bills issued in favour of M/s Kadri Tubewells Pvt. Ltd. as Ex.PW8/G and PW8/H. He also proved the photocopies of these documents in CC No. 09/14 titled as CBI v. Pradeep Kumar etc. as Ex.PW8/J, Ex.PW7/B, Ex.PW8/J1 and Ex.PW8/J2 (objected to), PW8/J3 and PW8/J4 and Ex.PW8/J5 (objected to), Ex.PW8/J6 and in case No.10/14 titled as CBI v. V. K. Gupta etc. as Ex.PW8/K, Ex.PW8/K1 (Colly), photocopy of bill invoice No. BW/244/200809 Ex.PW8/K2 (objected to), photocopy of invoices dated 18.8.2008 and 12.12.2008 as Ex.PW8/K4, Ex.PW8/K5 (objected), and its seizure as Ex.PW8/K3, fake bill as Ex.PW8/K6.
CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 16 of 7317 E. Witnesses who joined the Investigating and conducted the investigation and Investigating Officer (IO) :
(i) PW3 Vikas Rathi, JE (Civil) is the witness of site inspection alongwith CBI team and handing over of documents to CBI relating to this case and its seizure. He proved Productioncum Receipt Memos dated 25.07.2012 in respect of CC Nos.08/14, 09/14 as Ex.PW3/A and Ex.PW3/B respectively and Site Inspection Memo dated 23.09.2013 as Ex.PW3/C, memo Ex.PW3/D and Site InspectioncumIdentification Memo dated 29.8.2012 as Ex.PW3/E in CC No.08/2014 titled as CBI v. Suresh Kumar Aggarwal etc. He also proved the seizure and inspectioncumidentification memos in CC No.09/14 as Ex.PW3/F, Ex.PW3/G and Ex.PW3/H and in respect of CC No. 10/14 titled as CBI v. V. K. Gupta etc. as Ex.PW3/J, and Ex.PW3/K.
(ii) PW14 SI Arjun Kumar Maurya, CBI, ACB, New Delhi is the investigating officer (IO). He in addition to other documents, proved FIR as Ex.PW14/A, and permission u/s 17 of PC Act as Ex.PW14/B, first and final bill of CA No.82/200809 as Ex.PW14/C (Colly) running into 16 pages, letter no.4418 dated 11.4.2014 as Ex.PW14/D Colly. He also proved copy of FIR No. RC DAI 2012 A 0021 dated 29.6.2012 in CC No. 9/14 as CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 17 of 73 18 Ex.PW14/E and copy of permission u/s 17 of PC Act as Ex.PW14/F, first and final bill as Ex.PW14/G (Colly) and copy of forwarding letter dated 4418 dated 11.4.2014 as Ex.PW14/H Colly. He also proved copy of FIR in CC No/10/14 as Ex.PW14/J and copy of permission u/s 17 of PC Act as Ex.PW14/K, first and final bill as Ex.PW14/L (Colly) and copy of forwarding letter dated 4418 dated 11.4.2014 as Ex.PW14/M Colly.
STATEMENT OF ACCUSED
15) After conclusion of prosecution evidence, the statement of accused persons recorded u/s 313 Cr.PC on 09.4.2015 and 10.4.2015 and statements of accused were also recorded additionally on 10.4.2015, 13.4.2015 wherein all accused persons denied the prosecution evidence claimed to be innocent.
(i.) Accused Suresh Kumar Aggarwal, JE stated that photocopy of bill No.BW/200/200809 Ex.PW8/G and bill No. BW/200/200809 Ex.PW8/H had never been processed (sic) by him for release of payment to contractor and there is provision to sign by all the concerned officials i.e. J.E., A.E. and E.E. on the purchase vouchers and no signatures appeared on the above stated bills. He also stated that bill No.BW/200/200809 Ex.PW7/A is procured by Sh. Kamal Kumar Aggarwal (PW8) CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 18 of 73 19 with the connivance and pressure of CBI to falsely implicate him and above stated bills inserted by CBI with the connivance of other witnesses. He also stated that as per the circular the duty of the Account Department is to verify the genuineness of purchased vouchers submitted by the contractor before release of payment. He admitted that J.E. is required to conduct 100% physical test check in every case and in present borewell, 100% test check was done by him. He also admitted that measurement are entered in the Measurement Book, which is signed by JE and on the basis of entries in Measurement Book, Bill and completion Report is prepared by J.E. In this regard, he stated that all entries made by him in the present Measurement Book are correct and same is entered after execution of work and the same are test checked and certified by the AE/EE. He denied to have prepared a bill of quantity in work file of CA/82/200809 and stated that the bill of quantity was prepared by the Tender Clerk and duly verified by the draftsman. However, he admitted that final bill Ex.PW11/B amounting to Rs.13,05,498/ was prepared by him on the basis of completion certificate Ex.PW11/C prepared by him and he does not know whether vide final bill Ex.PW11/B the payment has been made vide cash voucher no.96EFT8 on 5.6.2009. He also admitted that an entry in the MB No.14250 Ex.PW11/D was made by him regarding CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 19 of 73 20 CA/82/200809 and stated that measurement book was cross checked by the AE and EE and after fully satisfied by them, they sign the certificate stating that work done as per specifications. He further admitted that he had made entry in MB no.14250 regarding lowering of 'Johnson' Pipe, however, stated that the Zonal Engineer had test checked the use of 'Johnson' Pipe in item no.7 in page no.90 of measurement book and in the present tubewell, lowering of 'Johnson' pipe was done in the presence of AE and EE. He denied that it is the duty of the JE's to obtain the original bill and stated that as per instructional order Ex.PW9/B, the Finance Officer is duty bound to properly (sic) verify the purchase voucher including verification of procuring bills in original submitted by the contractor before releasing of final payment to the contractor and the Accounts Officer is duty bound to verify the purchase voucher and its genuineness from the vendors through telephone or personal visit. He stated that all the bills were inserted by CBI in connivance with other witnesses. He stated that sanction accorded against him was mechanical without application of mind and without going through the entire record and it has been accorded under the pressure of CBI. The present FIR is motivated one to falsely implicate him. He stated that PW13 Dr. D. V. Reddy is not a competent person to inspect the borewell CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 20 of 73 21 and he has not used the correct method to find out presence of 'Johnson' make pipes in the borewell and the report was prepared after instructions and consultation with CBI and in the present borewell, the 'Johnson' pipe was used in the presence of senior officers of Delhi Jal Board Ex.PW13/D is not admissible. He also stated that he has got executed the work honestly as per Bill of Quantity and specification and he entered the items in measurement book as per actual execution of work at site and the same was checked (test checked) by AE/EE and the same was certified in the certificate given at the end of abstract in measurement book duly signed by JE/AE/EE. 'Johnson' pipe was brought at the site and also lowered in the tubewell in the presence of AE/EE as per item no.7 of the measurement book. Ever after the lapse of significant period of 78 years, the borewell is still functioning and giving sufficient water. There is no complaint. The entry entered by him in the record is true and correct and the instant case is for reboring three number of tubewells and actually the 4 no. tubewell were got executed at the site against the sanctioned amount of 3 no. tubewell. However, he choose not to lead evidence in defence. (ii.) Statement and additional statement of accused Pradeep Kumar and accused V. K. Gupta under S. 313 Cr.PC was also recorded in their respective cases. The incriminating evidences were also CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 21 of 73 22 put to accused Pradeep Kumar and accused V. K. Gupta separately. The questions and the incriminating materials is almost similar and the replies are also similar to that of Sh. Suresh Kumar Aggarwal wherein they denied the prosecution evidence and claimed innocence, however, choose not to lead any defence evidence.
(iii.) Accused Salim Khan in his statement recorded u/s 313 Cr.PC, admitted the agreement of contract No. 82(200809) Ex.PW11/E (Colly) between DJB and him being proprietor of M/s Kadri Tubewells Pvt. Ltd. and he stated that it was signed by Sh. Mohsin Khan as his authorized signatory and for this work order no.161/2008 dated 21.7.2008 was issued. He denied that he submitted two photocopies of bill no. BW/200/200809 Ex.PW8/G and BW/396/200809 Ex.PW8/H issued by M/s Bharti Waters Pvt. Ltd. in favour of M/s Kadri Tubewells Pvt. Ltd. and stated that he had submitted original invoices of purchase of 'Johnson' Pipe and other pipes, same were forwarded by JE, AE and EE and signed on them. Thereafter, same were also verified by the Accounts Section from its vendor prior to release of the payment. The above mentioned photocopies of the invoices are false and manipulated and the original purchase vouchers were removed later on and the above mentioned photocopies were inserted to implicate in this case. CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 22 of 73 23 He stated that PW8 Sh. Kamal Kumar Aggarwal is not the MD of M/s Bharti Waters Pvt. Ltd. and he is stock witness of CBI and invoice no. BW396/20082009 was also not submitted by him. He admitted that vide final bill Ex.PW11/B the payment has been made vide cash voucher no. 96 EFT8 on 5.6.2009 in the account of M/s Kadri Tubewells Pvt. Ltd. Ledger Account Ex.PW8/B is false and fabricated documents and he also stated that report and CD are false and fabricated and Certificate u/s 65 B of the Indian Evidence Act is also fabricated and was inserted later on. He also stated he alongwith his company, have been falsely implicated in this case. He had executed the order as per contract and he had purchased requisite 'Johnson' pipes on or just before starting of the borewell in question from M/s Bharti Waters Pvt. Ltd. on cash payment and he had issued the invoices. Later on the requisite 'Johnson' Pipes and MS pipes were brought on the site and installed in the borewell in the presence of AE, JE, EE and SE. I had handed over the original invoices of M/s Bharti Waters Pvt. Ltd. and other invoices in resect of MS Pipes, the JE and other officials of DJB checked and signed and forwarded them for clearing the payment. I was called by Ms. Satya Dhingra, Assistant Accounts Officer and the bills were got verified through phone from the office of M/s Bharati Waters Pvt. Ltd. Thereafter, his bill was cleared. He CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 23 of 73 24 purchased 'Johnson' Pipe and MS pipe in cash but M/s Bharati Waters Pvt. Ltd. with connivance of CBI did not record his invoice in their account and falsely did not give his correct statement of account to CBI. He joined the investigation and he told the IO that he had purchased all the requisite materials through cash and same have been reflected in the income tax return of the year 200809. He had shwon the Income Tax Return documents to IO but he knowingly and intentionally not verified the same. After three years of the receiving of the payment, he has destroyed all the records and TIN No 07352007743 of the company was surrendered in the office of Sales Tax in the year 2010 and due to this reason he cannot even produce the photocopies of that original invoices which were given to the DJB officers for purchases of the requisite pipes. He has also filed one set of the Income Tax Return 200809 in the office of the Registrar Office of Company vide PAN No.AABCK0503E. In the year 200809, as per Schedule 12, he has reflected the purchases of Rs. 1,47,21,528/ in the year 200809 which include the purchase of 'Johnson' Pipe and other pipes of this work order and he has done his work honestly and sincerely. However, he also chose not to lead evidence in defence.
(iv.) Similarly, statement for accused M/s Kadri Tubewells Pvt. Ltd. CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 24 of 73 25
being represented through accused Salim Khan being its proprietor recorded u/s 313 Cr.PC which also denied the prosecution evidence and claimed innocence.
(v.) Similar statement was made by accused Salim Khan and accused M/s Kadri Tubewells Pvt. Ltd. being represented through accused Salim Khan in their statement under S.313 Cr.PC recorded separately in other two cases.
16) I have heard Sh. K. P. Singh, Ld. PP for CBI and Sh. Sudarshan Rajan and Mohd. Qamar Ali for accused Suresh Kumar Aggarwal, Pradeep Kumar and V. K. Gupta (A1); and Sh. R. C. Tiwari for accused Salim Khan and M/s Kadri Tubewells Pvt. Ltd. (A2 and A3 respectively). I have also gone through the record.
17) For the prosecution to succeed in proving their case against accused persons, they must prove followings :
(a) Sanction for the prosecution against public servants
(b) Procedures followed in execution of work and procedures adopted in making payment
(c) The pipe make 'Johnson' not used in borewells and false entries made in records
(d) submission of fake bill for the payment and the payment against them received by the contractor CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 25 of 73 26 SANCTION
18) Firstly, I shall deal with the issue of sanction for prosecution of government servants. PW1 Dr. Jayadev Sarangi, IAS, Member (Administration) Delhi Jal Board was examined, who deposed that he is appointing as well as removing authority for J.E.s in Delhi Jal Board and in these cases, he had given sanction for prosecution for all the J.E.s accused persons i.e. Suresh Aggarwal, Pradeep Kumar and V. K. Gupta and proved his sanction which provides references regarding registration of RC, work of installation of tubewell for drinking potable water and award to private contractor M/s Kadri Tubewells Pvt. Ltd., findings of the expert regarding non use of 'Johnson' Pipe and having considered all the materials had accorded sanction Ex.PW1/A. In his crossexamination, he was questioned regarding his knowledge of installation of borewell, rules and regulations of DJB, CPWD Manual and regarding having seen measurement of the work. He denied the suggestion that he had mechanically granted sanction without application of mind.
19) The hon'ble Supreme Court of India has culled out the principles on the subject, in case titled as State of Maharashtra Through CBI v. Mahesh G. Jain, (2013) 8 SCC 119, as follows:
a) It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 26 of 73 27 has been made out.
b) The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution.
c) The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before him.
d) Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
e) The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
f) If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction.
g) The order of sanction is a prerequisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity.
20) It is also worthwhile to note the observation of the Hon'ble Supreme Court of India as under:
17. At this stage, we think it apposite to state that while sanctity attached to an order of sanction should never be CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 27 of 73 28 forgotten but simultaneously the rampant corruption in society has to be kept in view. It has come to the notice of this Court how adjournments are sought in a maladroit manner to linger the trial and how at every stage ingenious efforts are made to assail every interim order. It is the duty of the court that the matters are appropriately dealt with on proper understanding of law of the land. Minor irregularities or technicalities are not to be given Everestine status. It should be borne in mind that historically corruption is a disquiet disease for healthy governance. It has the potentiality to stifle the progress of a civilized society. It ushers in an atmosphere of distrust. Corruption fundamentally is perversion and infectious and an individual perversity can become a social evil. We have said so as we are of the convinced view that in these kind of matters there has to be reflection of promptitude, abhorrence for procrastination, real understanding of the law and to further remain alive to differentiate between hypertechnical contentions and the acceptable legal proponements.
21) The sanction order finds mentioned RC number, offences and name of accused persons and allegations against them which show that the sanctioning authority was having all the material before him and he applied his mind while granting sanction. He was crossexamined with respect to his knowledge of technical work but no question is asked about the material before him. Accordingly, I am of the opinion that the same is properly accorded sanction for prosecution of public servants.
CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 28 of 73 29 STANDARD PROCEDURE
22) PW9 Sh. Shiv Kumar Bhardwaj, Superintending Engineer, DJB was examined. He testified that he is working as S.E. since July, 2010 and in the year 2006, he was posted as X'EN, North EastI, DJB. He testified that reboring in place of old defunct tubewell can be done by Delhi Jal Board with the permission from Chief Engineer of that area. The boring of the tubewell involves, boring on the ground upto the depth specified as per the strata chart in loose soil as well as rocky strata. After boring is completed, the tubewell pipe assembly is lowered in the tubewell. First of all, the lower most portion of pipe assembly i.e. a blank cap or "MS Screw Cap" is fitted with "MS Steel Pipe" and lowered at the bottom of bore hole. Thereafter, Johnson (Slotted/Strainer) pipe is welded and further lowered in the said bore hole. The 'Johnson' slotted pipe made of iron with holes is utilized to facilitate the inflow of water from the surrounding underground water sources. Above the level of ground water, MS Steel Pipe is welded with 'Johnson' Pipe and further lowered into the bore well. This MS Steel Pipe is fitted upto to the ground level and at sometime slightly above the ground level as per requirement. The proportion of MS Steel Blank Pipe alongwith screw cap 'Johnson' Pipe and MS Steel Pipe assembly varies from borewell to borewell depending upon the underground strata of the soil and availability of underground water level. In rocky strata, where the depth of bore is very deep, boring and CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 29 of 73 30 lowering is done in two stages.
23) He stated that after work is awarded, borewell starts sic (getting) fitted at the site and during boring soil strata and water samples are collected and the pipe is brought by the contractor at site which is checked by field engineers i.e. J.E./ A.E./X'EN. If it is as per specifications mentioned in the Bill of Quantity (BOQ), the lowering of pipe is done. After lowering of pipe i.e. Slotted pipe and Plain pipe, pea gravels are filled around the pipe and development of bore is done. During execution of work, normally physical test check of 100% is to be done by J.E., 50% by Assistant Engineer and 10% by X'EN unless otherwise specifically mentioned in the Work Order/ Contract. He, however, stated that J.E. is required to conduct 100% Physical Test Check in every case. The measurements are taken and entered in Measurement Book, which is signed by the Junior Engineer and 50% and 10% test checks are also signed by the A.E. and X'EN respectively. Based on the quantity entered in the Measurement Book, Bill and completion Report is prepared by the J.E. which is signed by A.E., X'EN and the contractor. Completion Report is approved as per delegation of powers by the X'EN and S.E. Normally, Contractor has to submit Purchase Vouchers in original which is signed by J.E. and A.E., who record the quantities of materials utilized in that work. In case, if a contractor purchases larger quantities of materials for utilization in different works he may submit a photocopy of the CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 30 of 73 31 purchase voucher. The Contractor has to submit the Strata Chart which is signed by J.E., A.E. and X'EN. In Strata Chart quantity of pipe used and location of the plain pipe and slotted pipe are mentioned. Scrutiny of bill and documents is done by Accounts Section. There is a check list proforma circulated by Director, Finance and Administration vide Letter No. DJB/Director F & A/2006/60388 dated 08.6.2006 in this regard and proved as Ex.PW9/A and he had also proved Instructional Order No. DJB/DIR(F&A)/2000/290 dated 06.9.2000 as Ex.PW9/B and Circular dated 28.5.2008 regarding Test Checking of Measurement as Ex.PW9/C.
24) Since no irregularity is found in the tender process, therefore, evidence of the witnesses in that respect is unnecessary and is not being mentioned.
25) PW11 Ms Lekha Pawar, testified that she is posted as Head Draftsman in the Office of S.E. (SW) since January, 2012 and prior to this she was posted as Draftsman GradeI in the Office of E.E. (SouthI) since February, 2008 to January, 2012. She stated that the work starts under the supervision of JE. After the completion of the work, JE prepares completion report which is signed by AE and send by X'EN to Draftsman for checking it. She further deposed that JE used to record entries in the Measurement Book periodically and after completion of the work he prepares the final bill.
CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 31 of 73 32 ARGUMENTS
26) It is submitted on behalf of accused persons, who are public servants, that the Executive Engineer (XEN) is Engineerincharge and borewell is hidden item and he is required 100% test check as per CPWD Manual and responsibility was common to Junior Engineer (JE) and EE, but JE has been singled out and made scapegoat to save higher official. CPWD Manual Specification Vol. I, Ex.PW9/DA is cited where Engineerincharge is referred to as XEN who signs the contract on behalf of President and as per Ex.PW9/DC, AE must satisfy himself before passing a bill for payment, or before submitting to the Divisional Officer for payment and that the work or supply billed for has actually been carried out/completed.
27) PW9 in crossexamination admitted that CPWD Manual/Specifications/ Circular/ Instructional Orders are applicable to DJB to mandatory follow and admitted Ex.PW9/DC and installation of tubewell assembly is mandatory to the satisfaction of XEN as per Ex.PW9/DB but said XEN satisfies himself through test check 100% by JE, 50% by AE and 10% by himself. He said 10% test check is of quality and quantity of work and as per practice 10% test check is 10% cost of work. With respect to CPWD Manual, S 30.1.Aiv and v, he stated that both of these relate to building work and not to tubewell boring and in the Department, they are following the rule of 100% test CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 32 of 73 33 check by JE, 50% by AE and 10% by XEN,. However, JE is required to conduct 100% physical test check and shown ignorance about hidden item. In crossexamination on behalf of A2 and A3, he stated that after completion of the work, the measurements are certified by the contractor and the X'EN.
28) PW11 Smt. Lekha Pawar confronted with the statement wherein she had not stated that entire work is to be supervised by J.E.
29) As per CPWD Manual Engineerincharge is mentioned as Executive Engineer. However, site engineerincharge is mentioned as J.E. Further, hidden item relates to building work and not to borewell. However, there is no dispute that J.E. is required 100% test check at site. XEN being overall incharge is required to do sample check 10%. It cannot be said that XEN alongwith J.E. is responsible for 100% test check. Moreover, as per Ex.PW9/C dated 28.5.2008, which is followed by Delhi Jal Board, provides mandatory check of 50% by AE and 10% by EE which is at par with other Department, Govt. of Delhi and CPWD.
STANDARD PROCEDURE OF PAYMENT
30) PW12 Sh. Satya Prakash testified that he is posted as Senior Accounts Officer and remained Accountant in South Circle, DJB in the Office of SE South from April, 2006 to July, 2010. He stated that after completion of work, the bill is prepared by the concerned JE/AE CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 33 of 73 34 according to measurement done in MB and signed by JE, ZE and X'EN in bill form as well as in MB. The completion report is also approved by the Competent Authority. After this, the bill is sent to Accounts Section of the Division along with procurement vouchers and Junior Accountant or his Assistant checks the bills according to MB and after deducting government taxes, pay order is recorded by Accounts Assistant and signed by Junior Accountant and E'XN and thereafter sent to Accountant for his signatures.
31) The PW12 has also dealt with the matter personally in the capacity being Accountant and identified the signature of persons who have handled the file including himself.
ARGUMENTS
32) It is submitted on behalf of accused persons that it is the responsibility of the XEN and the Account Department to verify the bill submitted and after being satisfied then only to release the payment. Further, it is submitted that it is admitted by the Account Officer that when the payment in this case was released everything was in order. Therefore, the documents placed on record are not the one which were submitted for payment. Ld. PP for CBI submitted, it is the responsibility of JE to verify the goods used in the borewell and verify the purchase voucher before sending it to XEN for payment.
CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 34 of 73 35
33) Factual position : The undisputed factual position as per documents are:
(a) in Suresh Kumar Aggarwal case, BOQ is prepared by JE, signed by A.E. and EE. Final Bill signed by Jr. Accountant, Accountant and EE and payment made vide cash voucher. Completion statement signed by JE, AE, EE and Measurement Book (MB) signed by J.E., AE and EE.
(b) In Pradeep Kumar case, BOQ is prepared by JE, signed by AE & EE. Final bill signed by Jr. Accountant, Accountant and EE and MB signed by JE, AE and EE.
(c) In V. K. Gupta case, BOQ is prepared by J.E., signed by AE and EE. MB signed by JE and EE.
34) PW9 has proved the letter dated 8.6.2006 Ex.PW9/A. The same is with respect to direction to the Accountant, Jr. Accountant, ACA wherein the previously entrusted job of Pre Audit Cell has been given to them to scrutinize the contractor's bill. In same proforma check list is provided and item no.13 provides to see whether purchase vouchers alongwith test report / guarantee period for material have been duly obtained in context to each and every item and contract duly verified in original purchase vouchers by JE/AE that material has been consumed in CA in question and photostat copy is made available to them. Instructional Order Ex.PW9/B issued on 6.9.2000 whereby CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 35 of 73 36 Finance Officers are directed to ensure that contractor's bill submitted to them for clearance are duly and properly verified, including the verification of procurement bills, in original.
35) PW12 in his crossexamination stated that after the execution of work, XEN send the final bill with original purchase voucher, completion report, strata chart, test check report to the Account Section and voluntarily stated that photocopy of voucher is also admissible while it was signed by JE/ZE/EE. He had seen all the documents and formalities were in order before, he signed the pay order in this case. In case of finding discrepancy in the bill or document, he could object and stop the payment. With respect to documents, Ex.PW8/H, Ex.PW8/G and Ex.PW8/J6 i.e. photocopies of purchase vouchers, he admitted, it does (sic) not bear any signature and with respect to Ex.PW8/K6 bears some signature but he cannot identify the same and cannot say whether this belong to JE/AE or EE.
36) PW12 has also proved Instructional Order Ex.PW12/A dated 02.11.2004 which gives the direction to XEN that for original procurement vouchers of bearings and other items be obtained from the Contractor, CA No. and consumption be noted thereon and then attested copy be enclosed with the Bill.
37) I do not find any inconsistency in Ex.PW12/A, Ex.PW9/A and Ex.PW9/B. The responsibility of verifying and to see whether CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 36 of 73 37 voucher is in order, is of the Account Department only but as per Circular Ex.PW12/A, the responsibility to collect the original voucher from the contractor is shifted to the field staff. Therefore, as per the standard procedure, it is the responsibility of the field staff to collect the bill/voucher from the contractor of item consumed and verify the same and thereafter after noting the CA No. and consumption, attested copy be enclosed with the bill. However, Account department is not absolved from the responsibility of checking that the same is in order as per the check list.
EXECUTION OF WORK
38) The prosecution in order to show that 'Johnson' Pipe was not inserted in the tubewell, choose to two type of evidences: (i.) By showing through expert evidence by inspection of borewell that no 'Johnson' Pipe was found; and (ii.) By showing that the Contractor had not purchased the 'Johnson' Pipe from sole distributor of 'Johnson' Pipe and therefore how he could say that Johnson Pipe was used.
39) It is not disputed that after completing the tender formalities, the work orders in respect of all the three cases i.e. CA No.82/200809, 91/200809 and 120/200809 were given to M/s Kadri Tubewells Pvt Ltd. which is an incorporated company.
CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 37 of 73 38
40) The official records prove the use of 'Johnson' Pipe in all the three cases as per following details. The CC No. 08/14, titled as CBI v. Suresh Kumar Aggarwal etc. is in respect of borewell site at ABlock, Durga Vihar. As per strata chart, Ex.PW12/E (Colly), the total drilling depth is shown as 567.76 M, 8" Housing (Blind) Pipe was inserted up to 97.60 M, 8" Slotted Pipe was inserted up to 6.10 M, and thereafter 6" Blind Pipe was inserted up to 16.30 M and thereafter 6" Slotted Pipe was inserted up to 55.0 M.
41) The CC No. 09/14 titled as CBI v. Pradeep Kumar etc., is in respect of borewell sites at near Baljit House, Chattarpur Enclave and near Shiv Shakti Mandir, Chattarpur Enclave. As per Ex.PW12/F (Colly) i.e. strata chart of site near Baljit House, it is shown that 200 mm MS slotted pipe was inserted up to 12.20 M and thereafter 150 mm MS plain pipe was inserted upto 15.0 M and thereafter 150 mm 'Johnson' Slotted Pipe was inserted upto 60 M and thereafter 150 mm MS Plain pipe was inserted up 15 M. Further, as per strata chart of site near Shiv Shakti Mandir, it is mentioned that 200 mm of MS Pipe was inserted upto 88.55 M and thereafter 200 mm of MS Pipe was inserted upto 12.20 M and thereafter 150 mm plain MS Pipe was inserted upto 60 M and then 150 mm of 'Johnson' Slotted Pipe was inserted upto 55.0 M and thereafter 150 mm of plain MS Pipe was inserted upto 3.40 M. CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 38 of 73 39
42) The CC No.10/14, titled as CBI v. V. K. Gupta etc., is in respect of borewell site at Near West End Marg, Saidulajab Village. As per Strata Chart which is Ex.PW12/D, the total drilling depth is shown as 154 M and thereafter 8" Housing (Blind) Pipe was inserted up to 90.45 M, and then 8" Slotted Pipe was inserted up to 12.20 M and then 6" Blind Pipe was inserted up to 7.00 M and thereafter 6" Slotted Pipe was inserted upto 45 M.
43) The Measurement Book No. 18064 Ex.PW11/J (Colly) is in respect of CC No.09/14. As per entry on 04.8.2008, at page no.38, 'Johnson' 150 MM Slotted pipe 60 meter is shown in respect of borewell site at Baljit House, Chhatarpur Enclave. As per entry on 09.8.2008 at page no. 40, 'Johnson' 150 MM Slotted Pipe 55 meter is shown in respect of borewell site at near Shiv Shakti Mandir, Chhatarpur Enclave. The Measurement Book No. 15445 Ex.PW11/O (Colly) is in respect of CC No.10/14 and borewell site at Near West End Marg, Saidulajab Village. As per entry on 05.7.2009, at page no.86, 45 meter 'Johnson' pipe is shown to have been provided. The Measurement Book No. 14250 Ex.PW11/D (Colly) is in respect of CC No.08/14 and borewell site at near ABlock, Durga Vihar. As per entry on 15.12.2008, at page no.92, 55 M (32 M + 25M ) 'Johnson' pipe is shown to have been provided.
44) M. S. Slotted pipe is referred to 'Johnson' pipe. The Measurement CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 39 of 73 40 Book also corroborates respective strata charts regarding length of the 'Johnson' Pipe shown to have been provided.
Johnson Pipe not provided in tubewell.
45) Regarding putting of 'Johnson' Pipe, PW3 Sh. Vikas Rathi, JE (Civil) joined the site inspection alongwith CBI team and testified that on 29.8.2012, he has been a witness to site inspection alongwith CBI team relating to CC No.08/14 titled as CBI v. Suresh Kumar Aggarwal etc., 09/14 titled as CBI v. Pradeep Kumar etc. and 10/14 CBI v. V. K. Gupta etc. and stated that Site InspectioncumIdentification Memos as Ex.PW3/E, Ex.PW3/G and Ex.PW3/J respectively were prepared in XEN office.
46) In his crossexamination he stated that he does not remember that at how many places inspection was conducted on 02.3.2013 and admitted that normally 45 inspections used to be conducted in a day. On 29.9.2013 also inspection must have been conducted at 45 places. It takes around 3 to 5 hours in taking out the borewell assembly. In some of these case, bore assembly had already been taken out before he reached there. It took around 30 to 40 minutes in each of the inspection. Dr. D.V. Reddy had not shown him the borewell camera to be used in the inspection nor it was shown to ensure that it had no contents. In all the inspections, Dr. D.V. Reddy had used the same camera. Dr. Reddy had not told during the inspection CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 40 of 73 41 proceedings that 'Johnson' Pipes were not used. After completion of inspection also, Dr. Reddy had not played the recorded proceedings and the CD was not prepared in his presence.
47) PW2 Sh. Jyothi Kumar testified that he has been working as Senior HydroGeologist since July, 2012 and he has witnessed the site inspection of borewell videography by Dr. Reddy of NGRI, Hyderabad in Case CC no. 08/14, titled: CBI Vs. Suresh Kumar Aggarwal etc. The bore hole video camera was lowered into the tubewell, and videography was recorded and the depth of tubewell was measured. The proceedings were drawn in a document and he had signed the said document and proved Site Inspection Memo dated 23.9.2013 as Ex.PW2/A. He also stated that he had also visited two borewells on 02.3.2013 as a witness of site inspection and site Inspection Memo was prepared in his presence and proved 02 Site Inspection Memos, both dated 02.3.2013, as Ex.PW2/B and Ex.PW2/C. In respect of cases, titled as CBI v. Pradeep Kumar etc. and CBI v. V. K. Gupta etc., he similarly stated that he has witnessed the site inspection of borewell videography by Dr. Reddy and documents were prepared and he signed the same and proved the site inspection memos as Ex.PW2/D and ExPW2/E respectively. In his crossexamination, he stated that the Site Inspection Memo Ex.PW2/E was prepared at the spot itself and admitted that he had signed Ex.PW2/E on 02.3.2013 and Memo Ex.PW2/E bears the date 02.3.2012. He denied the suggestions that CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 41 of 73 42 Ex.PW2/E was not prepared on the spot.
48) In his crossexamination, he further stated that the inspections used to be conducted at 34 places on each day but he does not remember the exact locations. However, stated that the borewell assembly had already been taken out when he reached at the spot and again said, does not remember exactly, Dr. D.V. Reddy had not told during the inspection that there were no 'Johnson' Pipes in the borewell.
49) In his further crossexamination on behalf of A2 and A3, he could not tell, without looking into the record, whether strata of the borewell inspected was rocky or alluvial. The casing in the assembly was of metal and also admitted that on the metal, there is generally deposit of rust, corrosion and moss formation.
50) PW14 Sh. Arjun Kumar Maurya, SubInspector, CBI, Investigating Officer deposed that it was decided by the CBI to examine the underground pipes with the help of NGRI, Hyderabad and accordingly the assistance of Dr. D. V. Reddy was taken, who inspected the tubewells in this case and forwarded his report in two sealed video CDs which he forwarded to CFSL for examination.
51) PW6 Sh. Rakesh Bisht, Senior Scientific Officer from CFSL testified that he had received 2 CDs for examination and he had given his detailed examination report dated 28.7.2014 and regarding the query whether CDs have been tampered with or not, he has mentioned that CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 42 of 73 43 no opinion could be offered on examination of two CDs as these two video CDs do not have the required video quality for video examination.
52) PW13 Dr. D. V. Reddy, Senior Principal Scientist, National Geo Physical Research Institution, Hyderabad is witness regarding execution of work. He testified that he is M.Sc. in Geology, M.Sc. Tech in Hydrogeology and Ph.D in Ground Water and has experience of 30 years in the field of Hydrogeology. He further stated that on the request of CBI, Director NGRI nominated him to investigate the borewells in the South Delhi in particular to identify casing in the borewells drilled by Delhi Jal Board. Accordingly, he had visited the site and inspected the borewells using bore hole camera and regarding these inspections, memos were prepared with respect to that particular site indicating the location of the borewell prepared by the Investigating Officer in his presence and proved site inspection memos dated 02.3.2013.
53) In respect of examination/scanning of borewell, he stated that after reaching at the site, he had used the bore hole camera and scanned the borewell till the total depth. During the scanning he has also used a micro phone to represent the different depths of the scan. The video and the voice recording was simultaneously done in the palm top. Later on, the recording was transferred into a laptop and finally, it was CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 43 of 73 44 transferred into a CD. He further deposed that after analyzing the video recordings and comparing with the strata chart supplied by CBI, final report was prepared and submitted to CBI and proved his report 06/13 dated 29.5.2013 pertaining to examination of borewells regarding CA No. 8201/200809 at Devli, CA No. 8202/200809 at DBlock, J.J. Camp, Tigri, CA No. 120/200809 at Saiyadulajab, Village: Near West End Marg and CA No. 91/200809, at Chattarpur Enclave, Near Baljeet House as Ex. PW13/A collectively. Alongwith this report, he had annexed Map indicating the GPS Location of borewells and strata charts of the concerned borewells.
54) He also proved his report no. DVR, CBI/DEL/NGRI/HYD./15/13 dated 18.11.2013 pertaining to CA No. 82/200809 at Devli Village, A Block, Durga Vihar and CA No. 91/200809 as Ex. PW13/B (D21) and stated that the details of examination are mentioned in the above mentioned report.
55) He also proved the copy of report filed for each case separately.
56) In respect of CA 82/2008, borewell at Devli Village, A Block, Durga Vihar, he stated that the borewell casing details indicated from top to 81.4 meters blank pipe and 81.42 to 91.5 meters MS Slotted Pipe was observed and thereafter, no casing pipe exists. As per the strata chart which is at the back side of page no. 2 of his report Ex. PW13/B indicates from top to 97.6 meters 8 inch blank pipe followed by 6.1 CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 44 of 73 45 meters of slotted pipes and thereafter, the borewell diameter reduced from 8 inches to 6 inches and 16.3 meters of blank pipe is shown in the Map and thereafter, 55 meters length of 6 inches slotted pipe is indicated which he had not seen during his examination.
57) In respect of borewell at Chattarpur, Near Shiv Shakti Mandir , he stated that the borewell casing details indicated from top to 62.8 meters blank pipe and thereafter, no pipe was seen during examination. As per the strata chart which is at the back side of page no. 3 of his report Ex. PW13/F indicates from top to 76.4 meters 200 MM of blank pipe followed by 12.2 meters Slotted Pipes. Thereafter, well diameter reduced from 200 MM to 150 MM. Initially, at 150 MM, borewells 6 meters of blank pipe forward by 55 meters of 'Johnson Screen' Pipe and at the end 3.4 meters of blank is shown
58) In respect of CA No. 120/200809, borewell at Saiyadulajab Village, Near West End Marg, he stated that during his examination, it was observed that from surface to 75 meters 200 MM blank pipe, 75 to 81 meters MS Slotted Pipes and further 81 to 87 meters blank pipe were seen. No casing was seen after 87 meters. As per the strata chart which is at the back side of page no. 8 of his report Ex. PW13/H indicates from top to 90.45 meters 200 MM of blank pipe followed by 12.2 meters Slotted Pipes. Thereafter, borewell diameter reduced from 200 MM to 150 MM. Initially, 45 meters of slotted pipes followed by CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 45 of 73 46 7 meters of blank pipe was shown.
59) He also similarly stated that after preparation of CD, it was forwarded to CBI and proved letter to CBI and certificates under Section 65B of Indian Evidence Act as Ex.PW13/J and Ex.PW13/K (collectively) respectively. The original of the same is in CC No. 08/14, titled: CBI Vs. Suresh Kumar Aggarwal etc.
60) He also identified the CD as Ex.PW6/P1 and its envelops.
In the CD there are two file pertaining to RC No. 21 relating to CA No. 120 and 91. There are four files related to CA No. 82, CA No. 91 and CA No. 120. The file related to CA No. 120 pertaining to CC No. 10/14, Titled: CBI Vs. V.K. Gupta etc. has been played. The CD is of 7 minutes and 49 seconds and same has been played and seen in the Court. The original report is in CC No. 08/14, Titled: CBI Vs. Suresh Kumar Aggarwal etc.
61) He also identified CD Ex.PW6/P2 and its envelops and same is played in the laptop and seen in the court. In the CD, there are two file pertaining to RC No. 21 relating to CA No. 82 and 91. There is recording of 8 minutes and 44 seconds in file related to CA No. 82/200809, in CC No. 08/14, titled: CBI Vs. Suresh Kumar Aggarwal etc.. He stated that the CDs prepared by him, were forwarded to CBI with NGRI Official Seal through a letter no. 7/14 dated 24.02.2014 alongwith this letter, certificates under Section 65B of Indian CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 46 of 73 47 Evidence Act were also forwarded and he also proved the letter as Ex. PW13/C (D24) and certificates u/s 65B of Indian Evidence Act as Ex. PW13/D Collectively.
62) The another file pertaining to CA No. 91, is related to CC No. 09/14, titled: CBI Vs. Pradeep Kumar Singh etc has been also played and there is recording of 16 minutes and 41 seconds and seen in the Court.
63) He also proved the forwarding letter and certificates under Section 65B of Indian Evidence Act as Ex. PW13/G.
64) During his crossexamination, he stated that the pumping assembly was not taken out from the borewell in his presence. He admitted that the metal pipe will be corroded relatively faster than the PVC pipe and in the PVC Pipe, there is no corrosion but stated that it may break in pieces. He stated that if the water is salty, the corrosion would be faster in the iron pipes. He admitted that 'Johnson' Pipe is made of metal with special alloy. He stated that they have geophysical method to identify the metals buried in the ground. However, in this case, geophysical method has not been used. He further stated that they did not use the other method also to find out the buried metal pipe in the borewell. He admitted that if the water is salty, there will be some deposit inside the metal pipe timely. After such deposit, they could not find out the type of the pipe.
CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 47 of 73 48
65) He has not given any certificate that his camera was in order at that time and voluntarily stated that because they use the same for taking the picture of inside of the pipe at that time from his camera, so it does not require any certificate issued by him regarding working of his camera and it was working properly at the relevant time. He does not recollect the name of the camera but stated that it is mentioned in his report. The camera with cable, palmtop, and memory card were not seized by CBI at any point of time. On 02.3.2013, he had inspected 04 borewells and used the same camera in each and every borewell including same palmtop and memory card and on each and every occasion, the camera creates a new file with time, so it is not required to show the camera recording system to anyone that there is no previous recording.
66) He stated that he could not explain when he was putting his camera inside the borewell in the open area to anyone that there was a 'Johnson' Pipe buried inside.
67) He also admitted that he had not prepared certificate u/s 65B of Indian Evidence Act on the day when the CD was prepared and prepared this certificate only when the IO asked him to do so and he had collected the proforma from Internet.
68) He admitted that many of the borewell inspected by him were in working condition. He knew on the date of inspection of borewells CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 48 of 73 49 were (sic) installed around six years before the date of inspection. Also admitted that if there are mica contents in the water, there will be accumulation of deposit on the pipe surface. ARGUMENTS
69) Ld Counsel on behalf of accused persons has challanged that the Dr. D. V. Reddy is not expert as he had no expertise of dealing pipes in nature of 'Johnson' Pipe and that he did not do any study on the area of South and SouthWest Delhi regarding boring and reboring that he has not done any thorough study regarding the geology. He also submitted that he was not expert in respect of nature of pipe and he had not conducted any study in this regard. Therefore, his testimony is not reliable and in support of his arguments cited State of H.P. v. Jai Lal and Others (1997) 7 SCC 280. Further, the report of Dr. D. V. Reddy is also questioned firstly with respect to the manner in which data was transferred from palmtop to laptop and later on from laptop to CD and secondly that the CD in which recording was done could not be proved by the prosecution in view of the fact that that the certificate u/s 65B of Indian Evidence Act is not of the same date when the recording was done and it was given later on. In support of his arguments, cited judgment of hon'ble Supreme Court of India in case titled as Anvar P. V. v. P K Basheer, (2014) 10 SCC 473 and Ld. Counsel for the accused persons also cited judgment of our own Hon'ble High Court in case titled as Ankur Chawla & Anr. v. CBI, CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 49 of 73 50 2014 (10) LRC 96 (Del).
70) It is stated that as per judgment of Anvar P.V. (supra), the electronic evidence/record was not admissible unless requirement of S. 65B of Indian Evidence Act is satisfied in case of CD, VCD, chip, etc. and the same shall be obtained at the time of taking the document.
71) On the other hand Ld. PP for CBI submits that witness is expert in field and further submitted that the certificate under S.65B of Indian Evidence Act is proper and CD is admissible.
72) The Hon'ble Supreme Court in case Jai Lal & Others (supra) laid down test as to how the testimony of expert witness is to be evaluated.
To quote :
18. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusion so as to enable the Judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration alongwith the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusion.
73) PW Mr. Reddy, expert, had given his experience in his report CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 50 of 73 51 Ex.PW13/A that he had done M.Sc. in Geology, M.Sc. (Tech) in Hydrogeology from Osmania University, Hyderabad and Ph.D in Groundwater investigations from NGRI and submitted to Osmania University and he has about 30 years experience in groundwater studies in different hydro geological environments covering various objectives/aspects and during his services he has completed several projects, and published more than 100 scientific papers in reputed journals. He has also received National Mineral Award for his contribution in groundwater studies in the year 2011 from Ministry of Mines, Govt. of India. It also finds mentioned that to achieve the objective of depth of the wells and the type of casing used, a simple methodology is used and a simple camera called as Borehole Camera is used for the study and this camera has been manufactured by M/s Energy Management Systems, Bengaluru and it consists of simple underwater camera with 600 TV lines, connected to a long cable and has viewing and recording facility wherever the camera is focused and around the camera 12 LEDs (of very high brightness) are fixed for focusing the light in the water at an angle of 60o. The camera can view upto 300 m deep. The video recording is done in MP4 format and the file can be viewed/transferred to any video system/computer. The object, where the camera is focused, can be seen in the monitor. The cable attached to the camera has graduation and wherever necessary voice recording can be made with reference to depth and other CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 51 of 73 52 information also. In this procedure, the said camera is lowered in to the borehole with the help of cable and gradually the scanning of the entire borehole is done and the scanning is simultaneously recorded and stored in an outside device which as a monitor, where the progressive scanning can be viewed and the recording from this device is then transferred to the laptop for further analysis.
74) Therefore, Dr. Reddy, has given expertise in the groundwater studies and stated that to achieve the objective of depth of the wells and the type of casing used he has used a simple methodology of borehole camera. In his crossexamination he has stated that he has not done any thorough study regarding the geology, but stated that he has broad idea about strata determination/geology. He stated that they have geophysical method to identify the metals buried in the ground. However, in this case, geophysical method has not been used. He further stated that they did not use the other method also to find out the buried metal pipe in the borewell. As regards, the expertise of the expert, merely because he has not done thorough study regarding geology, his capability cannot be questioned as he has done many studies and has sufficient experience and expertise in this area.
75) As regards method, if one method is used and other is not used, one cannot raise question regarding the same unless it is shown that method used was not reliable and was not scientific. Therefore, I am of CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 52 of 73 53 the opinion that Dr. Reddy is expert in the area. With respect to cited case Jai Lal & Ors (supra), it was on its own fact. In the said case test was conducted as to what was the yield in apple orchard and the expert witness has only conducted the said test for the first time and it counted the yield on the basis of number of spurs and in many cases yield is shown as NIL without giving reason. Same is not applicable to the facts of the case.
76) In the present case the witness has supported his report with the borehole camera, pictures contained in CD.
77) Hon'ble Supreme Court of India in case of Anvar P. V. (Supra) held
15. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced
(c) The certificate must furnish the particulars of the device involved in the production that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The Certificate must be signed by a person occupying a responsible official position in relation to operation of the relevant device.CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 53 of 73 54
16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompanying the electronic record like computer printout, compact disc (CD), video compact disc (VCD), pend drive, etc. pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
22. ..... Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which the secondary evidence pertaining to that electronic record, is inadmissible.
78) In Ankur Chawla & Anr. case (supra), the Hon'ble High Court of Delhi observed on the facts of that case that CDs must have been prepared soon after the registration of case and the certificate under Section 65B of Indian Evidence Act, 1872 has to be of the date when the CDs were prepared but the photocopy of the aforesaid certificate shows that it was prepared on 18th December, 2009, and is thus of no avail. However, as per the facts of the said judgment, the certificate under S. 65B of Indian Evidence Act was not filed with the chargesheet in respect of audio, video CDs. A photocopy was shown during the hearing but the same was with respect to a packet of 15 CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 54 of 73 55 CDs but it was not with respect to 7 CDs relied upon by the prosecution and hence it was of no avail. It does not lay down that the certificate in all cases should be of same date. In the present case, the certificate under S. 65B is dated 24.2.2014 and was filed alongwith the charge sheet.
79) In the present case, certificate under S. 65B was given accompanying letter dated 24.2.2014 with 2 CDs were sent alongwith certificate under S. 65B to CBI. Ld. Counsel submitted that the witness in the crossexamination has stated that he has given certificate on the asking of the IO. I do not find that there is any irregularity in the same as IO would naturally inform the witness regarding the requirement of the certificate under S. 65B of Indian Evidence Act, 1872 as CDs were sought to be given in evidence in the Court. The certificate had accompanied the CDs. It is nowhere necessary as soon as CD is prepared, he would simultaneously prepared the certificate under S. 65B of Indian Evidence Act. The requirement of law is that documents in form of CD must be accompanied by certificate under S. 65B when intended to be given in evidence. Further, the language of the certificate implies four conditions which identify the CD describes as the electronic evidence which provides particulars of the device involved in the production of the record. In this case the devices involved are borehole camera, palmtop attached with the borehole camera and laptop. He has also signed the certificate and it is also CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 55 of 73 56 mentioned that access to the laptop and the data stored is controlled by defined authorized roles exercised through uniqueid and the password and only he himself knows the password, the userid and solely he operates the laptop. The judgment of Ankur Chawla's case (supra) was on its own facts and does not lay down that the Certificate under S. 65B is required to be simultaneously prepared.
80) Now the second question would be that the same were sent by IO to the CFSL for examination for finding tempering of the same for which it is reported by the expert PW6 Sh. Rakesh Bisht, Senior Scientific Officer from CFSL that since the video quality was poor he could not opine to rule out of tempering . However, is it necessary requirement before admissibility of document ? This document after submission of Certificate under S. 65B of Indian Evidence Act is now admissible. However, the role of expert evidence under S. 45 A of Indian Evidence Act would come later.
81) Now next question would be as to evidenciary value and its authenticity. Mr. Reddy deposed that he had used the bore hole camera and scanned the borewell till the total depth and during the scanning he has also used a micro phone to represent the different depths of the scan. The video and the voice recording was simultaneously done in the palm top. Later on, the recording was transferred into a laptop and finally, it was transferred into a CD. He has stated that he has given CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 56 of 73 57 certificate under S. 65B of Indian Evidence Act, 1872 which is dated 24.2.2014. In his crossexamination he stated that he did not recollect the company name of CD used and also does not recollect as to how many CDs he had given to CBI and his report is based on video and CD. He admitted that he had not prepared the certificate under S. 65B of Indian Evidence Act, 1872 on the date when the CD was prepared and he had prepared the certificate only when IO has asked to do so and he had collected the format from internet.
82) In this case, it is already given that the video quality was poor and therefore the expert could not give report regarding its tempering or not. Reports are dated 29.5.2013 and 18.11.2013 but CDs were sent on 24.2.2014 with Certificate under S. 65B of Indian Evidence Act which means much after the report, which creates doubt about its authenticity. Admittedly, the recording in camera was firstly transferred to palmtop and thereafter to laptop and thereafter CDs were prepared. The camera and palmtop was also having other files which may be used. There is also time gap in inspection and report and submissions of CDs alongwith Certificate under S. 65B of Indian Evidence Act. The witness has prepared the report on the basis of CD. Moreover, to rule out tempering, the expert evidence could not come. Therefore, CD is not reliable piece of evidence.
83) Further, the conducting of inspection is not free from doubt. It is also CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 57 of 73 58 very surprisingly that PW Jyothi Kumar, who was himself expert in the field being Sr. HydroGeologist, was very much present during the lowering down of the borehole camera regarding detection of 'Johnson' Pipe and Dr. Reddy has not told during the inspection that there was no 'Johnson' Pipe in the borewell. If a senior officer, also expert in the field, is present, it is highly suspicious as to why Dr. Reddy did not discuss the matter with him. Further Mr. Jyothi Kumar had admitted that the Site Inspection Memo was prepared at the spot itself and admitted that he had signed on 02.3.2013. Whereas, the Site Inspection Memo Ex.PW2/D is dated 2.3.2012 and admittedly the same has been signed by the witness on 02.3.2013. Similarly Ex.PW2/E also bears the date of 02.3.2012. He also stated that the inspections used to be conducted at 34 places on each day but he does not remember the exact locations.
84) Similarly, PW3 stated that he does not remember that at how many places inspection was conducted on 02.3.2013 and admitted that normally 45 inspections used to be conducted in a day. There is also inconsistency in statements of witnesses with respect to the fact that whether the borewell assembly was taken out before the team reached at the inspection site or it was on their instruction subsequent to their arrival. Whereas, all the inspection memos find mention that well was opened and pumping assembly was taken out with the help of the E&M Staff of DJB. PW9 in his crossexamination also admitted that CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 58 of 73 59 water in most of the places in South Delhi are is saline and that Tigri is in South Delhi and that there are accumulation of deposits in the inner side of pipe with the passage of time and that after accumulation of the deposits, the surface of pipe will not be clearly visible and that in such a situation, it will also be difficult to assess that whether it was metal pipe or 'Johnson' screen pipe. He stated that average life of borewell in South Delhi depends upon the type of soil, quality of water as well quantity of water and again said the average age of borewell in South Delhi is 5 years, if the water table lowers then the bore may dry up earlier. He admitted that if slotted pipe is not put in the borewell, it will not discharge the water and stated that in absence of a pipe in the bore, the loose pocket will certainly collapse.
85) Therefore, it creates doubt about inspection as to when it was carried out and whether the assembly was taken out before they reached and subsequent to the same. Further not much reliance can be placed on the expert evidence as admittedly the borewells in question were functioning, even after lapse of 67 years, at the time of inspection and ordinarily the average age of borewell is 5 years in South Delhi and not much reliance can be placed on CDs as discussed above. In the circumstances in which inspection was done, the nature of water having salinity, life of pipe and the time gap between insertion and inspection would not establish beyond doubt that the 'Johnson Pipe' was not used. The CBI has accordingly failed to establish that 'Johnson CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 59 of 73 60 Pipe' was not used.
Johnson Pipe not sold to accused M/s Kadri Tubewells Pvt. Ltd.
86) PW8 Sh. Kamal Kumar Aggarwal, Managing Director, Bharti Waters Pvt. Ltd. testified that he is into the trading of Johnson Screen Pipe under the name and style of M/s Bharati Waters Pvt. Ltd. for the last around 14 to 15 years and for the Delhi region, they are the authorized sole distributors of Strainer filter pipe or screen pipes. They maintain the ledger accounts and bill books of the parties to whom such screen pipes are sold by their company and he produced the copy of bill books and ledger books to the CBI as and when required by the CBI and the documents used to be seized by the CBI against a certificate. He was shown invoice bearing no. BW/200/200809 dated 06.02.2009, Ex. PW7/A, issued in favour of M/s. Nisha Engineers and stated that the same is issued by their company and he also proved copy of Ledger Account of M/s. Kadri Tubewells Pvt. Ltd., Ex.PW8/B (Colly), which is being maintained by them regularly in the ordinary course of business and photocopy of bill invoice no. BW/244/200809 dated 30.3.2009 issued in favour of M/s. Aggarwal Pumps and Pipes, Ex.PW8/C. The same was handed over by him to CBI on being demanded.
87) He stated that each invoice issued by the company has a unique CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 60 of 73 61 number and the same are issued in seritum. Two invoices cannot have the same number. After seeing the invoice no. BW/200/200809 dated 15.7.2008 purportedly issued in favour of M/s. Kadri Tubewells Pvt. Ltd., he stated that this bill has not been issued by their company and the same is a fake bill and stated that he is saying this because original invoice no. BW/200/200809 dated 06.02.2009 was issued in favour of M/s. Nisha Engineers. It has also a different format and he proved the fake invoice BW/200/200809 dated 15.7.2008 issued in favour of M/s. Kadri Tubewells Pvt. Ltd. as Ex.PW8/G. He stated that his company had never sold any article to M/s. Kadri Tubewells Pvt. Ltd. against abovesaid invoice Ex.PW8/G and the The ledger account of M/s. Kadri Tubewells Pvt. Ltd. does not show any entry of goods having been sold against invoice Ex.PW8/G. He further stated that in the financial year 20082009, the last bill invoice number issued by their company, M/s. Bharati Waters Pvt. Ltd. was 244, and he proved the the certified copy as Ex.PW8/C.
88) He also deposed regarding bill invoice no. BW/396/200809 dated 12.12.2008 purported to have been issued to M/s. Kadri Tubewells Pvt. Ltd. by M/s. Bharti Waters Pvt. Ltd. and stated that this invoice is also fake as already stated above, the last invoice issued in financial year 20082009 was no. 244 and further more the format of this fake bill is distinct from his original invoice and similarly, there is no entry of this bill in the ledger account of M/s. Kadri Tubewells Pvt. Ltd. He CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 61 of 73 62 similarly deposed in respect of CC No. 09/14, title : CBI Vs. Pradeep Kumar etc. regarding invoice no. BW/200/200809.
89) He also similarly deposed in CC No. 10/14, title : CBI Vs. V.K. Gupta etc. In respect of bill/invoices and its seizure. With respect to invoice no. BW/410/200809 dated 22.12.2008 purportedly issued in favour of M/s. Kadri Tubewells Pvt. Ltd., he stated that this bill has not been issued by their company and the same is a fake bill as in the financial year 20082009, the last bill invoice number issued by their company was 244 and proved the photocopy and format of this fake bill is distinct from his original invoice. Similarly, there is no entry of this bill in the ledger account of M/s. Kadri Tubewells Pvt. Ltd.
90) Therefore, in nutshell, the witness has stated firstly that invoice no.
200 was not issued to M/s Kadri Tubewells Pvt. Ltd. and in fact was issued in favour of M/s Nisha Engineers and the bills no. 396 and 410 were stated to be fake as in the financial year 200809, the last bill issued by their company was in favour of M/s Aggarwal Pumps and Pipes which was bearing no.244.
91) PW07 Sh. Anand Tripathi corroborates PW8 regarding issuance of bill in favour of M/s Nisha Engineers and testified that he is working as Civil Engineer in Nisha Engineers and Contractors and had purchased screening pipe of 'Johnson' make from the firm, name of which he does not remember now, however, the office from where he CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 62 of 73 63 had purchased 'Johnson' screening pipe is near Azadpur. He had sent a person to purchase the said screening pipe. He identified the Retail Invoice Number BW/200/200809 dated 06.02.2009 and proved the same in CC No. 08/14 and photocopy of same in CC No. 09/14 as Ex.PW7/A and Ex.PW7/B respectively. In his crossexamination, he stated that during that inquiry, he had told to the CBI officer that he is working with M/s Nisha Engineers and Contractors. He was confronted with statement wherein the specific name of the company i.e. M/s. Nisha Engineers and Contractors is not mentioned. He was also confronted with respect to the statement that he had sent a person to purchase the 'Johnson' pipe from the firm wherein it is not so mentioned. He stated that he has not brought original of the document by which the aforementioned 'Johnson' pipe was purchased as the same is not traceable even today i.e. the date of deposition. He has not given any document showing the details of purchase of above mentioned screening pipe. In reply to court question that where this 01 (one) meter Johnson Pipe is used he stated that they were undertaking rain water harvesting project in which the Johnson Pipe had fallen short and therefore, only 01 (one) meter Johnson pipe was purchased. He stated that he had not told this fact to CBI as the CBI had never asked him about the same.
92) PW8 Mr. Kamal Kumar Aggarwal in his crossexamination on behalf CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 63 of 73 64 of A2 and A3, stated that M/s Bharti Waters. Pvt. Ltd. is a private limited company and is registered with ROC, Delhi and he had not given any document relating to registration of firm to CBI as the same was never demanded by them nor he has brought any such document on the day of examination in the court. He stated that he had given a document to CBI indicating his company to be the sole authorized distributor of 'Johnson' Screen in Delhi, however, he does not remember as to in which case he had given this documents. However, Ld. PP for CBI states that no such document has been placed on record by the IO. He admitted that ledger account is being prepared by the employee of his company and he had never tallied the entries made in his ledger book with the entries made in the ledger book maintained by M/s Kadri Tubewells Pvt. Ltd. and again said it will be difficult to make categorical statement regarding this as the Accountants might have cross checked the entries made in the ledger books. He denied the suggestion that on 28.11.2008, he had sold 105 meters Johnson Screens to M/s Kadri Tubewells against cash payment and the entry of such transaction was not reflected in the records and that he maintained two parallel bill books and the sale made in cash are not reflected in the records to avoid payment of tax. He admitted that they also make the transaction in cash, but it is not very frequent and is done only if, we have doubt about the credibility of the buyer. He also denied the suggestion that on around 01.8.2008, he had sold 230 CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 64 of 73 65 meters Johnson Screens to M/s Kadri Tubewells against cash payment and the entry of such transaction was not reflected in the records. He also stated that he had not given details of all the invoices from no. 1 to 244 relating to Financial Year 200809 to CBI as the same was not asked for. He has stated that in the ledger book, the mode of payment is duly mentioned, however, the mode of payment is not reflected in the invoice. He must have given the originals of bill no.88 and 156 Ex.PW8/E and Ex.PW8/F if it had been asked by them and both bills have duly been mentioned in ledger account Ex.PW8/B collectively. The Ex. PW8/E and Ex.PW8/F are the bills issued by Bharti Waters Pvt Ltd in favour of M/s Kadri Tubewells Pvt. Ltd. He admitted that the transaction relating to invoice Ex.PW8/E and PW8/F were made in cash and that at bottom of the bill, it is mentioned that payment is to be made by draft direct in the name of the company. He stated that the original of these invoices must have been given to the buyer. The accounts of a party are maintained in the computer by their employees and the printout of the same are taken as and when required by their Accountant. On the ledger book, his signatures are obtained and it does not bear the signatures of any accountant and he stated that CBI did not ask for any certificate from the Accountant who used to maintain the computer.
93) PW Mr. Kamal Kumar Aggarwal stated that he has not given any CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 65 of 73 66 details of sale and purchase relating to year 200809 to CBI nor he has given stock register pertaining to the year 200809. He also did not handover any document/record pertaining to the Sale and Purchase relating to year 200809. He also stated that he did not show the profit and loss account, balance sheet & VAT of the year 200809 to CBI as the same was not asked.
94) Firstly, coming to the Ledger Account of M/s Kadri Tubewells Pvt.
Ltd. which reflects goods sold to M/s Kadri Tubewells Pvt. Ltd. is the computer copy without the Certificate under S. 65B of Indian Evidence Act, therefore, the same cannot be looked into.
95) Now coming to the testimony with respect of goods sold to M/s Nisha Engineer. The said bill bearing no.200 is of one meter pipe only. PW7 Sh. Anand Tripathi claimed that he had purchased the screening pipe of 'Johnson' from the firm near Azadpur. He has not brought the original of the document by which the aforementioned 'Johnson' Pipe was purchased as the same is not traceable even today (on the day of deposition in the court). In reply to court question that where could this one meter 'Johnson' Pipe be used, he stated that they were undertaking rain water harvesting project in which the 'Johnson' Pipe had fallen short and therefore, only one meter 'Johnson' Pipe was purchased. Meaning thereby M/s Nisha Engineer was regularly dealings with M/s Bharti Waters Pvt. Ltd. being sole authorized CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 66 of 73 67 distributor of 'Johnson' Pipe, and therefore it is not understandable as to how he would not know as to where is the office of Bharti Waters Pvt. Ltd. in Azadpur is located. He also himself not gone to purchase the 'Johnson' Pipe and further the quantity of pipe is so low and ordinarily the bill was not issued for such quantity. Not much reliance can be placed on his testimony as he has not brought the original bill nor he himself gone to purchase the 'Johnson' Pipe.
96) Coming to bill no. 244, the photocopy of the same was brought which was objected to at the time of evidence. The same cannot be proved in the absence of original bill book or by way of secondary evidence, if the original is not available. Hence the same is not proved as per law. As regards the statement of Mr. Kamal Aggarwal that the last bill issued by them was bearing no.244 in the financial year 200809 and hence there is no question of issuance of bills bearing no. 396 and 410. In the absence of entire bill book, purchase bills, and other documents, the statement cannot be relied upon.
97) PW8 Mr. Kamal Aggarwal has also admitted that they also make the transaction in cash, but it is not very frequent and is done only if, they have doubt about the credibility of the buyer. He also denied the suggestion that on around 01.8.2008, he had sold 230 meters 'Johnson' Screens to M/s Kadri Tubewells against cash payment and the entry of such transaction was not reflected in the records. Whereas, admittedly CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 67 of 73 68 M/s Kadri Tubewells Pvt. Ltd. maintaining account with M/s Bharti Waters Pvt. Ltd and therefore there cannot be doubt about his credibility (Credibility of Buyer). Ledger accounts show receipt of cash payment from M/s Kadri Tubewells. As per Ex.PW8/E, as per ledger entry, it clearly showed cash receipt which shows that he was also accepting amount in cash and has wrongly stated that it was accepted on the special circumstances when credibility of the person was not established. Therefore it could not be proved by credible evidence that Mr. Kamal Aggarwal, sole distributor, has not sold 'Johnson' Pipe to M/s Kadri Tubewells Pvt. Ltd.
Forged bill used as genuine
98) However, this leaves us to bill actually submitted by M/s Kadri Tubewells Pvt. Ltd. on the record.
99) PW09 admitted in his crossexamination that after completion of the work, the measurements are certified by the contractor and the X'EN and that after completion of the work and after borewell starts discharging water, the borewell is handed over to the Electrical and Mechanical Department of DJB for further operation and maintenance. He stated that after completion of the work and payment of the bill, 10% of bill amount is retained as security for the period of 01 year and 06 months as mentioned in the contract. He also admitted that security is taken by DJB from the contractor to fix the liability of CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 68 of 73 69 the contractor during the defect liability period and that after expiry of defect liability period and release of security, the contractor remains with no liability qua the work performed and after successful completion of the work the department has no concern left with the contractor. He also admitted that if payment is released to the contractor, it would mean that work has been executed properly and the all the documents are found to be in order by the DJB.
100) As per the standard procedure, the JE after completion of the work prepares completion report and submitted to AE for bill. The bill is supposed to be signed by JE, AE and XEN. But the bill submitted, does not bear signature of anyone verifying the same. It only bears the work order number. The handwriting of the person suspect who have placed the same on record is not taken or compared by the CBI which can fixed the identity of the person as to who has placed the same. Although as per the Instructional Order dated 02.11.2004, Ex.PW12/A, the Executive Engineers are directed for strict compliance for original procurement vouchers of bearings and other items be obtained from the Contractor, CA No. and consumption be noted thereon and then attested copy be enclosed with the Bill. Despite that the bill does not bear the attestation of anyone and the bill has been processed and amount has been released. Admittedly, none of Ex.PW8/G, Ex.PW8/H, Ex.PW8/J6 and Ex.PW8/K6 which are photocopies of invoices/bills against which payments were CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 69 of 73 70 released, bear signature of JE/AE/EE. Even Ex.PW8/J6 does not bear work order no. However, PW12 has categorically stated that when he prepared the pay order everything was in order in the file. In other words, either the purchase vouchers were filed in original signed by JE/AE/EE or if not filed in original, attested copy with the endorsement of CA Number and Consumption against the said bill were filed. The photocopies which are in question are not the same which were on the file when it was processed. Then the question would arise as to how these documents have come in the file and where those documents have gone. It shows that somebody has manipulated the record and replaced it or the Account Dept. in its sheer negligence has not taken care to see whether the documents are properly attested. All the witnesses are consistent that vouchers purchasing material have to be signed by JE/AE/EE alongwith completion report and then only the bills are processed for payment. It therefore caste serious doubt about these documents being the purchase vouchers of 'Johnson' pipe and the same which were in fact submitted by contractor.
Charge of Conspiracy
101) All the accused persons have been charged for having conspired to commit offences. Section 120 A defines criminal conspiracy as under :
120 A - Definition of Criminal Conspiracy - When two or more persons agree to do, or cause to be done CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 70 of 73 71
i) an illegal act, or
ii) an act which is not illegal by illegal means, such as agreement is designated a criminal conspiracy Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
102) The essence of conspiracy is meeting of mind to commit an act. It is true that there cannot be direct evidence of the same but same can be inferred from the facts and circumstances. In the present case, as per discussion in the previous paras, no common thread is seen between the accused persons which may suggest prior meeting of mind. There is also no evidence on record which points to the meeting of mind of the accused persons to commit offence.
103) The charges against all accused persons is for offences punishable under S.120B read with S. 420/471 and 477A IPC and Sec. 13(2) read with 13(1)(d)(iii) PC Act of 1988.
104) In respect of Charge against A1, in all three cases, is that they had made false entry in the Measurement Book (MB) regarding use of 'Johnson' Pipe as per the strata chart and made false entries in the completion bill leading to release of payment to the contractor causing wrongful loss to the government and corresponding gain to the contractor and thus by corrupt or illegal means abused their official position. Since it has not been proved on record that 'Johnson' Pipe CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 71 of 73 72 was not used beyond reasonable doubt, it cannot be said that the entry, made in the MB and completion certificate statement, is false.
105) In the same manner, the evidence of abusing the official position by corrupt and illegal means to provide gains to the contractor also fails.
106) The charge against M/s Kadri Tubewells Pvt. Ltd. is that he had filed fake purchase vouchers to falsely claim the payment. Since the prosecution has failed to establish that those bills were submitted by M/s Kadri Tubewells Pvt. Ltd., it cannot be proved that it has submitted fake bills to claim the payment. Further, it also could not be proved on record that the M/s Kadri Tubewells Pvt. Ltd. has not purchased the 'Johnson' Pipe from M/s Bharti Waters. Further it also could not be established that no 'Johnson' Pipe was provided in the borewell. Hence the charge of cheating and using fake documents as genuine also fails.
107) In view of the findings made hereinabove, I consider that prosecution, in the present cases, has failed to prove its case against all the accused persons beyond reasonable doubt in all the three cases i.e. CC No. 08/14 titled as CBI v. Suresh Kumar Aggarwal etc., CC No.09/14 titled as CBI v. Pradeep Kumar etc. and CC No.10/14 titled as CBI v. V. K. Gupta etc. Hence all accused persons are extended benefit of doubt and all accused persons are acquitted of the charges under S.120B r/w CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 72 of 73 73 Section 420/471 and 477A IPC and Sec. 13(2) r/w 13(1)(d)(iii) PC Act, 1988; Accused Suresh Kumar Aggarwal, Pradeep Kumar and V. K. Gupta (A1) are also acquitted of the charges under S. 13(2) r/w 13(1)(d)(iii) PC Act, 1988 and Sec. 477 A IPC and Section 120 B IPC; and accused Salim Khan and M/s Kadri Tubewells Pvt. Ltd. (A2 & A3) are also acquitted of the charges punishable under S. 420/471 IPC and substantive offence under S. 120 B IPC.
108) All accused are on bail. Their bail bonds are cancelled. Sureties are discharged. Original documents, if any, be returned to them against proper acknowledgment. The bail bond under S. 437 A Cr.PC is already taken and is on record.
109) Copy of the judgment be placed in all the files i.e. CC No.08/14 titled as CBI v. Suresh Kumar Aggarwal etc., 09/14 titled as CBI v. Pradeep Kumar etc. and 10/14 titled as CBI v. V. K. Gupta etc.
110) Files of all three cases i.e. CC No.08/14 titled as CBI v. Suresh Kumar Aggarwal etc., 09/14 titled as CBI v. Pradeep Kumar etc. and 10/14 titled as CBI v. V. K. Gupta etc. be consigned to RR. Announced today i.e. on 16.07.2015 in open court.
(GURDEEP SINGH) SPECIAL JUDGE (PC ACT)/ CBI05 NDD/PHC/NEW DELHI/16.07.2015 CC No. 08/14, CC No. 09/14 & CC No. 10/14 Page 73 of 73