Orissa High Court
Sudarsan Sahani vs State Of Odisha (Vig.) on 18 April, 2022
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ODISHA, CUTTACK
CRLA No. 695 of 2016
An appeal under section 374(2) of the Code of Criminal Procedure
from the judgment and order dated 13.12.2016 passed by the
Special Judge (Vigilance), Phulbani, Kandhamal in G.R. Case
No.08 of 2013(v) (T.R. No. 08 of 2013)/G.R. Case No.30 of
2005(v) BAM (T.R. No. 39 of 2009).
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Sudarsan Sahani ....... Appellant
-Versus-
State of Odisha (Vig.) ....... Respondent
For Appellant: - Mr. Asok Mohanty
Senior Advocate
For Respondent: - Mr. Srimanta Das
Senior Standing Counsel (Vig.)
CRLA No. 687 of 2016
Prasanta Kumar Patra ....... Appellant
-Versus-
State of Odisha (Vig.) ....... Respondent
For Appellant : - Mr. Pradipta Kumar Mohanty
Senior Advocate
For Respondent: - Mr. Srimanta Das
Senior Standing Counsel (Vig.)
// 2 //
CRLA No. 694 of 2016
Saroj Kumar Misra ....... Appellant
-Versus-
State of Odisha (Vig.) ....... Respondent
For Appellant : - Mr. Asok Mohanty
Senior Advocate
For Respondent: - Mr. Srimanta Das
Senior Standing Counsel (Vig.)
GCRLA No. 25 of 2019
An appeal under section 378 of the Code of Criminal Procedure
from the judgment and order dated 13.12.2016 passed by the
Special Judge (Vigilance), Phulbani, Kandhamal in G.R. Case
No.08 of 2013(v) (T.R. No. 08 of 2013)/G.R. Case No.30 of
2005(v) BAM (T.R. No. 39 of 2009).
State of Odisha (Vig.) ....... Appellant
-Versus-
1. Saroj Kumar Mishra
2. Sudarsan Sahani
3. Prasanta Ku. Patra
4. Abakash Padhy ....... Respondents
For Appellant : - Mr. P.K. Pani
Standing Counsel (Vig.)
For Respondents: - Mr.Pradipta Kumar Mohanty
Senior Advocate
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Page 2 of 60
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CORAM:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
.....................................................................................................
Date of Hearing: 25.03.2022 Date of Judgment: 18.04.2022
.....................................................................................................
S.K. SAHOO, J. Since all the appeals arise out of one case, with the
consent of the learned counsel for the parties, those were heard
analogously and disposed of by this common judgment.
The appellant Sudarsan Sahani in CRLA No. 695 of
2016, appellant Prasanta Kumar Patra in CRLA No. 687 of 2016,
appellant Saroj Kumar Misra in CRLA No. 694 of 2016 and
respondent no.4 Abakash Padhy in GCRLA No. 25 of 2019 faced
trial in the Court of learned Special Judge (Vigilance), Phulbani in
G.R. Case No.08 of 2013(v) (T.R. No. 08 of 2013)/G.R. Case
No.30 of 2005(v) BAM (T.R. No. 39 of 2009) for the offences
punishable under section 13(2) read with section 13(1)(d) of the
Prevention of Corruption Act, 1988 (hereafter '1988 Act') along
with offences punishable under sections 420, 468, 201 and
section 120-B of the Indian Penal Code on the accusation of
misappropriating government money to the tune of Rs.1,50,000/-
(rupees one lakh fifty thousand) in connivance with each other by
corrupt or illegal means or by otherwise abusing their position
showing false execution of pothole repair work, committing
forgery of certain documents/records such as, pothole repair
Page 3 of 60
// 4 //
estimate and causing disappearance of evidence, such as MB
No.1311 to screen themselves from legal punishment.
The learned trial Court vide impugned judgment and
order dated 13.12.2016 though acquitted the respondent no.4
Abakash Padhy of GCRLA No. 25 of 2019 of all the charges so also
the appellants Sudarsan Sahani, Prasanta Kumar Patra and Saroj
Kumar Misra in the three criminal appeals of the charges under
sections 420, 468, 201 and section 120-B of the Indian Penal
Code, but found the appellants guilty of the offence under section
13(2) read with section 13(1)(d) of 1988 Act and sentenced each
of the appellants to undergo rigorous imprisonment for two years
each and to pay a fine of Rs.2,000/- (rupees two thousand) each,
in default, to undergo further R.I. for one month each.
The appellants have challenged the impugned
judgment and order dated 13.12.2016 passed by the learned trial
Court by filing the aforesaid three criminal appeals whereas the
State of Odisha has filed GCRLA No. 25 of 2019 challenging order
of acquittal of the appellants of the charges under sections 420,
468, 201 and 120-B of the Indian Penal Code so also of the
respondent no.4 Abakash Padhy of all the charges.
2. The prosecution case, as per the First information
report (Ext.28) lodged by P.K. Dwivedy (P.W.12), Inspector of
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Police, Vigilance, Berhampur, in short, is that pursuant to receipt
of reliable information of misappropriation of government money
to the tune of Rs.1,50,000/- (rupees one lakh fifty thousand) by
showing false execution of pothole repair work in N.H. 217 from
147 K.M. to 171 K.M. in September 2004, an enquiry was taken
up, in course of which it was ascertained that during the period
from 2002 to 2004, the appellant Sudarsan Sahani was the S.D.O.
of N.H. Sub-division, Balliguda, appellant Saroj Kumar Misra was
the Executive Engineer, N.H. Division, Berhampur and appellant
Prasanta Kumar Patra was the Junior Engineer of N.H. Section,
Balliguda. During the said period, an estimate was made relating
to the periodical renewal of N.H. 217 and the same was
sanctioned and agreement was executed on 19.02.2004 with
contractor Sri Arun Kumar Choudhury relating to PR Coat of N.H.
217 from 148 K.M. to 154 K.M. for an amount of Rs.36,98,199/-
with the date of commencement and completion from 19.02.2004
to 18.06.2004 and further extension of time was given upto
30.01.2005. The enquiry further revealed that while the said
agreement was subsisting, another agreement was executed for
the same portion of work with co-accused Abakash Padhy
(respondent no.4 of GCRLA No. 25 of 2019) overlapping the
earlier agreement with an estimate of Rs.4,64,881/- with the date
of commencement and completion from 10.09.2004 to
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09.03.2005. After execution of agreement with co-accused
Abakash Padhy, the appellant Prasanta Kumar Patra made
necessary entries relating to pothole repair work in the
measurement book and an amount of Rs.1,50,000/- was paid to
co-accused Abakash Padhy on 14.10.2004. It further came to light
that pothole repair works from 147 K.M. to 171 K.M. was not
actually executed and false bills were prepared and payment of
Rs.1,50,000/- was shown. The Superintending Engineer, N.H.
Circle (South), Bhubaneswar conducted an inspection and came to
the conclusion that the agreement drawn by the Executive
Engineer, N.H. Division, Berhampur was unauthorized as PR
agreement over the same patch was already in force and it was
further found that inflated rates were given in the sanction and
estimate agreement with an intention to give undue financial
benefit to the agency executing pothole repair work and that the
measurement books were not produced before him for his scrutiny
and it was reported to be missing. Considering the inspection
report, the payment of Rs.1,50,000/- made to the contractor
Abakash Padhy was treated as unauthorized, unwanted and loss
to the Government.
Consequent to the enquiry, P.W.12 P.K. Dwivedy,
Inspector of Police, Vigilance, Berhampur drew up the plain paper
F.I.R. against the three appellants so also respondent no.4
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Abakash Padhy and submitted the same to Superintendent of
Police, Vigilance, Berhampur Division, Berhampur for registration
of the case and accordingly, Berhampur Vigilance P.S. Case No.
30 dated 28.12.2005 was registered section 13(2) read with
section 13(1)(d) of 1988 Act along with offences punishable under
sections 420, 201 and section 120-B of the Indian Penal Code.
During investigation, P.W.12 examined the witnesses,
seized relevant documents, obtained sanction for prosecution in
respect of the public servants and on completion of investigation,
since prima facie case was found against all the three appellants
and the respondent no. 4 of GCRLA, charge sheet was placed
under section 13(2) read with section 13(1)(d) of 1988 Act along
with offences punishable under sections 420, 468, 201 and
section 120-B of the Indian Penal Code.
3. The defence plea of the appellants who are the public
servants is that the PR agreement with contractor Arun Kumar
Choudhury was a conditional one which was not completed till the
departure of Executive Engineer and the said contractor Arun
Kumar Choudhury had also not applied for extension of time for
which the 1st contract came into end on 31.08.2004 and was not
in force when the 2nd contract with the respondent Abakash Padhy
was executed. It is further pleaded by the appellants that the
Executive Engineer executed the 2nd agreement for repair of
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// 8 //
potholes from 148 K.M. to 171 K.M. which includes the work of 6
K.M. of the 1st agreement and that MB No.1311 was submitted by
the appellant Prasanta Kumar Patra relating to the work executed
by respondent Abakash Padhy and the same was submitted by
J.E. S. Acharya to the Divisional Office. The defence plea of
respondent Abakash Padhy is that he had rightly executed the
work as per agreement and has been falsely implicated. The
payment of running bill of Rs.1.50 lakh was made with bonafide
and final bill having not been paid, there was no loss to the
Government. The 1st contractor Arun Kumar Choudhury started
the work on the verbal instruction on the day of joining of P.W.9
without extension and it is only on 24.03.2005 that post-facto
extension was granted after the final bill was paid.
4. In order to prove its case, the prosecution examined
twelve witnesses.
P.W.1 Kamala Padhi and P.W.2 Jabaharlal Patra were
working as the Senior Clerk and Junior Clerk respectively attached
to the office of Executive Engineer, N.H. Division, Berhampur in
whose presence some documents were seized by the Vigilance
police on production by one Rama Chandra Sethi as per seizure
list vide Ext.1.
P.W.3 Surya Narayan Padhy was working as Junior
Clerk in the office of Executive Engineer, N.H. Division, Berhampur
Page 8 of 60
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in whose presence some documents were seized by the Vigilance
as per the seizure lists vide Exts. 2, 3 and 4.
P.W.4 Rankanidhi Padhy was working as Junior Clerk
in the office of Executive Engineer, N.H. Division, Berhampur and
is a witness to the seizure as per the seizure list vide Ext. 3.
P.W.5 Rama Chandra Sethy was working as an
Assistant Engineer in the office of Executive Engineer, N.H.
Division, Berhampur. He stated that on the direction of the
Executive Engineer, he produced certain documents before the
Investigating Officer which were seized as per the seizure lists
vide Ext. 1 and 2. He was declared hostile by the prosecution.
P.W.6 Mahesh Ch. Panda was the Junior Clerk in the
office of the N.H. Division, Berhampur and he is a witness to the
seizure of documents as per seizure list vide Ext.2.
P.W.7 Muralikrushna Pattnaik was the Junior Clerk in
the office of the N.H. Division, Berhampur and he is a witness to
the seizure of documents like MB movement register (Ext.5),
correspondence file (Ext.6) as per seizure list Ext.3. He also stated
about the seizure of MB issue register (Ext.7) as per seizure list
Ext.4.
P.W.8 Sarada Prasad Das was the Asst. Engineer
attached to the Vigilance Directorate, Odisha, Cuttack, who was
directed by the Superintending Engineer, Vigilance Direcotrate to
Page 9 of 60
// 10 //
submit a report on scrutiny of certain records relating to the work
providing PR coat to N.H. 217 at 13 patches under N.H. Division,
Berhampur for the year 2003-04 and he submitted the report as
per Ext.8 which was forwarded to the I.O. of the case.
P.W.9 Pradip Ku. Sutar was the Executive Engineer of
N.H. Division, Berhampur. He stated that though the agreement
in respect of the work in question was executed during the tenure
of his predecessor, but the work started after his joining. He
proved the tender documents and bills for the work of the two
contractors i.e., Arun Kumar Choudhury and respondent no.4
Abakash Padhi and also proved the measurement book in respect
of the work executed by the 1st contractor Arun Kumar
Choudhury. He further stated that M.B. No.1311 containing
measurement for the 1st running bill passed for respondent no.4
for Rs.1,50,000/- was not available in the office.
P.W.10 Anil Kumar Choudhury executed the work in
question being the power of attorney holder of his brother Arun
Kumar Choudhury as the agreement for the work between the
Executive Engineer and his brother. He stated that after execution
of the agreement, the work was executed jointly by him and his
brother Arun Kumar Chaudhury and he was supervising the entire
work, which was for an estimated cost of Rs.36,98,199/-. He
further stated that though as per agreement, the date of
Page 10 of 60
// 11 //
commencement of the work was 19.02.2004 and date of
completion was 18.06.2004 but it was extended from time to time
and completed in January 2005. He proved the documents like
running bills, final bill and signatures of his brother Arun Kumar
Choudhury on the measurement books.
P.W.11 Bharat Ch. Pradhan was in additional charge of
the Superintending Engineer, National Highway, Berhampur and
he had inspected the work in question and submitted a
consolidated report as per Ext.27.
P.W.12 Prasanta Kumar Dwivedy was the Inspector of
Police, Vigilance, Berhampur, who submitted the written report to
the Superintendent of Police, Vigilance, Berhampur, which was
treated as F.I.R. as per Ext.28. He is also the Investigating Officer
of the case.
The prosecution exhibited thirty six documents. Exts.1
to 4 are the seizure lists, Ext.5 is the MB movement register,
Ext.6 is the correspondence file, Ext.7 is the MB issue register,
Ext.8 is the report of P.W.8, Ext.9 is the forwarding letter, Ext.10
is the F-2 agreement, Ext.11 is the 1st running bill, Ext.12 is the
relevant entry in MB 1427, Ext.13 is the 2nd running bill, Ext.14 is
the relevant page nos.1 to 9 of MB 1446, Ext.15 is the final bill,
Ext.16 is the relevant page nos. 5 to 11 of MB 1427, Ext.17 is the
Schedule of Quantities approved by Superintending Engineer, N.H.
Page 11 of 60
// 12 //
Circle (South), Bhubaneswar, Ext.18 is the comparative
statement, Ext.19 is the tender schedule, Ext.20 is the estimate,
Ext.21 is the F-2 agreement, Ext.22 is the tender submitted by
respondent no.4 Abakash Padhy, Ext.23 is the tender submitted
by Debaraj Pradhan, Ext.24 is the 1st running bill, Ext.25 is the MB
Book No.1447, Ext.26 is the MB Book No.1346, Ext.27 is the
inspection note of the Superintending Engineer, Ext.28 is the
F.I.R., Ext.29 is letter no. 154, Ext.30 is the relevant entry
No.263, Ext.31 is the letter no. 279, Ext.32 is letter No.1474,
Exts.33, 34 and 35 are the sanction orders for prosecution of the
three appellants, Ext.36 is letter no. 2453 dated 05.08.2015 of the
Executive Engineer, N.H. Division, Berhampur.
The defence has examined four witnesses in its
support.
D.W.1 Sarat Chandra Rout was the Assistant Engineer,
N.H. Division office, Berhampur, who was also holding the
additional work of Public Information Officer of the concerned
office and while working as such, he had furnished some
documents/letters, which were marked as Exts.G, I, J, M and Q.
D.W.2 Sanatan Mohanty was working as Asst.
Engineer, Estimate, N.H. Office, Berhampur and he produced the
letters vide Ext.CC, Ext.T, Ext.U, Ext.V, Ext.W, Ext.H/1, Ext.X,
Ext.Y, Ext.Z, Ext.AA and Ext.BB.
Page 12 of 60
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D.W.3 Basudev Sasmal was working as Asst. Engineer,
R & B Division, Jeypore and he produced the documents vide
Ext.O & Ext.S.
D.W.4 Saroj Kumar Misra is the appellant in CRLA
No.694 of 2016 and he produced certain documents which are
marked as Ext.K and Ext.L.
The defence exhibited twenty nine documents. Ext.A is
letter no. 843 dated 16.02.2005, Ext.B is letter No. 37 dated
16.02.2005, Ext.C is letter No.711 dated 11.02.2005, Ext.D is
letter no. 581 dated 04.02.2005, Ext.E is letter no. 21 dated
31.01.2005, Ext.F is letter No. 246 dated 17.01.2005, Ext.F is
letter no. 246 dated 17.01.2005, Ext.G is letter no. 5277 dated
29.10.2004, Ext.H is letter no. 56 dated 24.04.2005, Ext.I is letter
No. 38(cib) WE dated 31.10.2004, Ext.J is letter No.11342 dated
19.02.2004, Ext.K is letter no. 2816 dated 17.08.2004, Ext.L is
letter dated 22.05.2003, Ext.M is memo no. 2682 dated
29.05.2004, Ext.N is letter No.1165(WE) dated 24.03.2005, Ext.O
is payment details of 141F-2/03-04 of respondent no.4 Arun
Kumar Choudhury, Ext.P is the rain fall data obtained from BDO,
Daringbadi, Ext.Q is the letter no. 4775 dated 22.09.2004, Ext.R
is the charge papers showing details of inspection, Ext.S is memo
no. 2584-88 dated 20.04.2005, Ext.T is D.O. letter no. 16990
dated 23.12.2003, Ext.U is the inspection report of R.K. Rao
Page 13 of 60
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(CEMH), Ext.V is the tour diary of P.K. Sutar (EENH), Ext.W is the
letter no. 2500 dated 23.04.2005, Ext.X is the hand receipts of
Abakash Padhy, Ext.Y is the forwarding letter of PIO dated
07.05.2015, Ext.Z is the office order of the Executive Engineer,
NH Division, Berhampur, Ext.AA is the FDR assessment report,
Ext.BB is the bar chart of FDR and Ext.CC is the letter no. 63
dated 07.05.2015.
5. The learned trial Court in its impugned judgment has
been pleased to hold that the appellants were the public servants
at the relevant point of time within the meaning of public servant
as defined under section 2 of 1988 Act. It was further held that
the respondent no.4 had executed the patch work on the N.H.
way and at the time of entering into the contract with the
respondent no.4, the earlier contract was not in force, as such, no
illegality has been done. It was further held that by the time Arun
Kumar Choudhury, the contractor commenced the disputed work
on 01.12.2004 till its completion on 30.01.2005, there was no
extension of time and extension of time was sought for by P.W.9
only on 21.03.2005 which was sanctioned by the Superintending
Engineer on 24.03.2005. It was further held that till 22.09.2004,
the earlier contract with the 1st Contractor Arun Kumar Choudhury
was not rescinded and was very much in force in view of Clause-2
(b)(l) of the conditions of contract. The appellant Saroj Kumar
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Misra entered into an agreement with the respondent no.4 on
10.09.2004 for the self-same work with commencement and
completion date as 10.09.2004 and 09.03.2005 and as such the
subsequent contract was illegal. It was further held that in view of
the contradictory evidence adduced by the prosecution witnesses,
it can affirmatively be concluded that the trial run of the
machineries by the 1st contractor Arun Kumar Choudhury was
doubtful. It was further held that the prosecution has not
substantiated the essential ingredients of sections 420 and 468 of
the Indian Penal Code.
The learned trial Court further held that on careful
scrutiny of the materials on record, there appears nothing to the
fact that the appellants conspired with the respondent no.4 to
grab the government funds allotted for construction of potholes
and therefore, the prosecution has failed to bring home the
charge under section 120-B of the Indian Penal Code against the
accused persons.
The learned trial Court further held that the
disappearance of MB No.1311 against the appellants was not
founded and accordingly, the prosecution has failed to
substantiate the charge under section 201 of the Indian Penal
Code against them. It was further held that the respondent no.4
Page 15 of 60
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is not guilty under any of the offences charged and accordingly,
he was acquitted of all the charges.
However, the learned trial Court held that the
prosecution has successfully established the charge under section
13(2) read with section 13(1)(d) of the 1988 Act against the
appellants and accordingly found them guilty.
6. Mr. Asok Mohanty, learned Senior Advocate appearing
for the appellants Sudarsan Sahani and Saroj Kumar Misra argued
that the finding of the learned trial Court that the 2nd agreement
which was executed by the appellant Saroj Kumar Misra with the
respondent no.4 Abhisekh Padhi while the 1st agreement was in
force is illegal, is contrary to the evidence on record and suffers
from non-application of mind. It is further submitted that the 2nd
agreement was a valid one for the following reasons:
(i) Both the agreements were for different work and
therefore, did not overlap at all. Moreover, the nature
and scope of work in the two agreements operate in
two different spheres. The 1st agreement was for
periodical renewal and the 2nd agreement was for
pothole repairs;
(ii) The 1st agreement was for periodical renewal from 148
K.M. to 154 K.M. and the 2nd agreement was for
pothole repair from 147 K.M. to 171 K.M. The value of
Page 16 of 60
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the 1st agreement was Rs.36,98,199/- for six
kilometers, whereas the 2nd agreement value was for
Rs.4,70,170/- for 24 Kms.;
(iii) At the time of execution of 2nd agreement dated
10.09.2004, the 1st agreement/contract was not in
force;
(iv) In the 1st agreement, it is clearly mentioned that time
was the essence of contract, which would be evident
from a bare reading of clause 2(a) of the agreement
(Ext.10) and since time was the essence of contract,
the 1st contractor Arun Kumar Choudhury was obliged
to finish the work within time or during the period of
extension granted as per procedure laid down in the
O.P.W.D. Code. The 1st contractor signed the
agreement (Ext.10) on 19.02.2004 wherein the date
of completion of the work was mentioned as
18.06.2004. On account of the Code of Conduct for
General Election, extension was granted from
01.05.2004 to 31.08.2004, but before or after
31.08.2004, no extension was sought for or granted
by the prescribed authority. Therefore, there was no
agreement in force as on 10.09.2004 when the
disputed agreement under Ext.21 was executed
Page 17 of 60
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between the appellant Saroj Kumar Misra, the
Executive Engineer and the respondent no.4 Abakash
Padhi. Reliance was placed on two letters i.e. Ext.Q
and Ext.G.
Mr. Asok Mohanty, learned Senior Advocate further
argued that the learned trial Court rightly acquitted all the
appellants including the respondent no.4 of the charges under
sections 420, 468, 120-B and 201 of the Indian Penal Code but
most peculiarly without assigning any reason whatsoever,
convicted the appellants under section 13(2) read with section
13(1)(d) of 1988 Act. Such an order of conviction is perverse and
suffers from non-application of mind and therefore, cannot be
sustained in the eye of law.
Mr. Pradipta Kumar Mohanty, learned Senior Advocate
appearing for the appellant Prasant Kumar Patra in CRLA No.687
of 2016 so also for all the respondents in GCRLA No.25 of 2019
not only adopted the argument advanced by Mr. Asok Mohanty,
Senior Advocate but added that the impugned judgment and
order of acquittal of respondent no.4 of all the charges and the
appellants of some of the charges passed by the learned trial
cannot be said to be perverse, palpably wrong, manifestly
erroneous or demonstrably unsustainable and since this Court
while dealing with an appeal against acquittal ought to be cautious
Page 18 of 60
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because the presumption of innocence in favour of the accused is
not certainly weakened by the fact that he has been acquitted at
the trial, therefore, there is no compelling reasons to interfere
with the same in the GCRLA.
Mr. Srimanta Das, learned Senior Standing Counsel
for the Vigilance Department on the other hand contended that
the appellant Saroj Kumar Misra being the Executive Engineer
executed the agreement vide Ext.10 with the 1st contractor Arun
Kumar Choudhury with date of commencement as 19.02.2004
and date of completion as 18.06.2004 and extension of time was
granted upto 30.01.2005 which was sanctioned by Superintendent
Engineer, N.H. Circle vide letter dated 24.03.2005. However, the
said appellant executed the fresh agreement vide Ext.21 within
the extended period of the 1st contractor with the respondent no.4
Abakash Padhi, i.e. the 2nd contractor on 10.09.2004 for repair of
potholes from 147 K.M. to 171 K.M. for the year 2004-05 with
date of commencement 10.09.2004 with the stipulated date of
completion as 09.03.2005 thereby overlapping the existing
agreement vide Ext.10 and the learned trial Court has rightly
given the finding that the 2nd agreement was entered into
between the appellant Saroj Kumar Misra and the respondent
no.4 Abakash Padhy while the 1st agreement was not rescinded
and was very much in force. He further argued that P.W.9 has
Page 19 of 60
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stated that although he joined as Executive Engineer on
08.10.2004, but he was not given charge of the office by his
predecessor (appellant Saroj Kumar Misra) and that during that
period, the office of the Executive Engineer was kept under lock
and key by the said appellant and that he (P.W.9) took charge
from the appellant on 01.12.2004 which was after nearly two
months and during the said period, he (P.W.9) made an
inspection of the site in question and found that no work appeared
to have been done there. It is argued that P.W.9 was deliberately
kept out of the office in order to cover up the irregularities
committed by the appellants with regard to so-called work of the
respondent no.4 which was in fact non-existent but the payment
of bill was made thereon. He further emphasized that the
respondent no.4 in his accused statement has clearly stated that
he had no knowledge regarding entrustment of work to him in
pursuance to the 2nd tender call notice for the year 2004-05,
which substantiates that the accused persons prepared false bills
and vouchers to misappropriate Government money making the
respondent no.4 as a dummy contractor only on paper. While
concluding his argument, Mr. Das contended that the respondent
no.4 should have to execute the work entrusted utilizing machines
as per specification in the tender, but he claimed the amount for
such work, which he had allegedly executed manually and there is
Page 20 of 60
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no iota of doubt that had the work been done manually, the
expenses would have been more and the respondent no.4 could
not have claimed the lesser amount as if it was executed through
machines and this is another factor, which improbablises the
execution of any work by the respondent no.4 under the 2nd
contract and rather it strengthens the prosecution case that
fabricated documents were created by the accused persons to
claim charges for pothole repair works, which was in fact not been
done and whatever work has been done, that was done only by
the 1st contractor Arun Kumar Choudhury, who was paid for the
work and therefore, the learned trial Court has rightly convicted
the appellants under section 13(2) read with section 13(1)(d) of
1988 Act.
Mr. P.K. Pani, learned Standing Counsel (Vigilance)
appearing in the Government Appeal contended that not only the
acquittal of respondent no.4 of all the charges, but also the
appellants of the charges under sections 420, 468, 201 and
section 120-B of the Indian Penal Code is faulty and it should be
set aside and all the appellants and respondent no.4 should be
held guilty for all the offences they were charged. According to
Mr. Pani, pursuant to the F-2 agreement executed with the 1st
contractor Arun Kumar Choudhury, the work was carried out and
completed within the extended time as allowed by the
Page 21 of 60
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Department and after due measurement, the final bill was passed
and payment was made thereon. During the continuance of the
work under the 1st agreement which was in force, another
agreement was illegally entered into with the respondent no.4 for
a small part of the work covered under the 1st agreement and not
only that, the bill for the work under 2nd agreement for an amount
of Rs.1,50,000/- was also released in favour of the respondent
no.4 within four days of the agreement. He further argued that
the pothole repair works as per the 2nd agreement was also
covered under the original agreement, which was not permissible,
inasmuch as in case of exigencies for any small additional work
within the original work in progress, the same has to be executed
by the original contractor as per clause 10 of the F2 agreement of
the 1st contractor as well as clause 3.5.31 of O.P.W.D. Code. Mr.
Pani further submitted that that is the reason why the purported
work under the 2nd tender was stopped because of irregularity and
no work appeared to have been done in the site under the 2nd
tender. He emphasized about the conspiracy between the accused
persons in preparing false paper work like tender and agreement
by showing simultaneous execution of sham work with the original
work and for such purpose, a dummy contractor like respondent
no.4 was set up. The measurement book for the work done under
the 2nd agreement, which was M.B. No. 1311 was found missing.
Page 22 of 60
// 23 //
According to Mr. Pani, since the learned trial Court has ignored
the material evidence brought on record by the prosecution to
substantiate various charges against the accused persons, the
view taken for acquittal is clearly unsustainable and therefore, it
should be set aside.
7. The first and core point for determination is whether
the 1st agreement executed with the contractor Arun Kumar
Choudhury was in force when the 2nd agreement was executed
with the respondent no.4 Abakash Padhy.
The second point for determination is whether there
was at all any necessity for entering into the 2nd agreement for
execution of pothole repair work and whether the respondent no.4
executed any work at all or false bill was claimed.
The third point for determination is whether there was
any criminal conspiracy between the accused persons and undue
official favour was shown to the respondent no.4 for making
payment of Rs.1,50,000/- (rupees one lakh fifty thousand) to him
by showing false execution of pothole repair work.
The fourth point for determination is whether there
was any forgery in respect of documents/records like pothole
repair estimate of Rs.4,91,800/-, agreement entered into with the
respondent no.4 and M.B. No. 1311 and whether there was any
Page 23 of 60
// 24 //
dishonest cheating to the Government by showing undue official
favour to the respondent no.4.
The fifth and last point for determination is whether
the accused persons have caused disappearance of M.B. No.1311
with an intention to screen themselves from legal punishment.
First Point:
Whether the 1st agreement was in force when the 2nd
agreement was executed:
8. Ext.10 is the F2 agreement executed between 1st
contractor Arun Kumar Choudhury and the appellant Saroj Kumar
Misra as Executive Engineer, N.H. Division, Berhampur on
19.02.2004 for the work "Periodical renewal work of N.H. 217
from KM 148/0 to 158/0". This document was proved by P.W.9,
the Executive Engineer, N.H. Division, Berhampur. The stipulated
date for commencement and completion of the work as per Ext.10
were 19.02.2004 and 18.06.2004.
Clause 2(a) of Ext.10 reads as follows:-
"The time allowed for carrying out the work as
entered in the tender shall be strictly observed by
the contractor and shall be reckoned from the date
on which the written order to commence work is
given to the contractor. The work shall throughout
the stipulated period of the contract be carried on
with all due diligence (time being deemed to be of
the essence of the contract on the part of the
Page 24 of 60
// 25 //
contractor) and the contractor shall pay as
compensation an amount equal to ½% on the
amount of the estimated cost if the whole work as
shown by the tender for every day that the work
remains uncommenced or unfinished after the
proper dates (the work should not be considered
finished until such date as the Executive Engineer
shall certify as the date on which the work is
finished after necessary rectification of defects as
pointed out by the Executive Engineer, or his
authorized Agents, are fully complied with by the
contractor to the Executive Engineer's satisfaction)
And further to ensure good progress during
execution of the work, the contractor shall be
bound in all cases in which the time allowed for
any work exceeds one month, to complete one-
fourth of the whole of the work before one fourth
of the whole time allowed under the contract has
elapsed, one half of the work, before one half of
such time has elapsed and three-forth of the work
before three-fourth of such time has elapsed. In
the events of contractor failing to comply with the
condition, he shall be liable to pay as
compensation an amount equal to one third
percent on the said estimated cost of the whole
work for every day that the due quantity of work
remains incomplete provided always that the entire
amount of compensation to be paid under the
provisions of this clause shall not exceed 10% on
the estimated cost of the work as shown in the
tender."
Page 25 of 60
// 26 //
Clause 4 of Ext.10 which provides for extension of
time is quoted below:-
"If the contractor shall desire on extension of the
time for completion of the work, on the ground of
his having been unavoidably hindrances in its
execution or any other ground, he shall apply in
writing to the Executive Engineer within 30 days of
the date of the hindrance on account of which he
desires such extension as aforesaid and the
Executive Engineer shall, if in his opinion (which
shall be final) reasonable be shown therefore,
authorize such extension of time, if any, as may in
his opinion, be necessary or proper. The Executive
Engineer shall at the same time inform the
contractor whether he claims compensation for
delay."
Para 3.5.30 of the O.P.W.D. Code, Vol.I provides for
extension of time, which reads as follows:-
"3.5.30. Application for extension of time for the
completion of a work on the grounds of
unavoidable hindrance or any other grounds shall
be submitted by the contractor within 30 days of
such hindrance and the Divisional Officer shall
authorize or recommend such extension of time as
deemed necessary or proper within fifteen days of
the receipt of such an application. In cases where
the sanction of the higher authority to the grant of
extension of time is necessary, the Divisional
Officer should send his recommendation as
Page 26 of 60
// 27 //
expeditiously as possible. The higher authority
should communicate his decision within sixty days
from the date of receipt on recommendation in his
office. If the orders of the competent authority are
not received in time, the Divisional Officer may
grant extension of time under intimation to the
concerned authorities so that the contract might
remain in force, but while communicating this
extension of time, he must inform the contractor
that extension is granted without prejudice to
Government's right to levy compensation under
relevant clause of the contracts.
Notes:- (I) The power to grant extension of time
vests with the authority who accepted the tender
but the period of extension that can be granted by
such an authority is limited to the period
equivalent to the time originally stipulated in the
agreement for completion of the work. Beyond
this, approval of next higher authority should be
obtained before extension of time is granted.
(II) The application for extension of time
and sanction thereto should be made in the
prescribed form."
Mr. Asok Mohanty, learned Senior Advocate placed
reliance on Ext.Q, which is the letter no.4775 dated 22.09.2004
addressed to the 1st contractor Arun Kumar Choudhury by the
appellant Saroj Kumar Misra in his official capacity. In the said
letter, it is mentioned as follows:-
Page 27 of 60
// 28 //
"You have not executed any work till now. You
have also not applied for grant of extension of
time as per clause of F2 agreement in prescribed
form."
Mr. Ashok Mohanty, learned Senior Advocate further
placed reliance on Ext.G i.e. the letter no.5777 dated 29.10.2004
addressed to Superintending Engineer, N.H. Circle (South) by the
appellant Saroj Kumar Misra which was a submission of rescission
proposal of the 1st agreement i.e. the work assigned to the
contractor Arun Kumar Choudhury. In the said letter, it is
mentioned that the work that was awarded to Shri Arun Kumar
Choudhury was with the date of commencement and stipulated
date of completion was 19.02.2004 (shifted to 01.05.2004) and
18.06.2004 (shifted to 31.08.2004) respectively, but the
contractor had neither executed any work during the period of
contract nor has he applied to grant of extension of time in proper
format as required under clause 4 of the F2 agreement. It is
further mentioned therein that the said contractor as per letter
dated 22.09.2004 (Ext.Q) was asked to file show cause within
seven days as to why his contract should not be rescinded. It is
further mentioned therein that the contractor had not started the
work till 19.10.2004 and his revised work programme was already
returned in original and that the delay in starting the work was
therefore appeared to be intentional.
Page 28 of 60
// 29 //
From these two letters i.e. Ext.Q and Ext.G, it
becomes prima facie evident that the 1st contractor Arun Kumar
Choudhury had not applied for extension of time either prior
31.08.2004 or after that particularly till the 2nd contract with
respondent no.4 vide Ext.21 was executed on 10.09.2004.
During course of hearing on 10.02.2022, Mr. Asok
Mohanty placed the letter dated 21.03.2005 written by P.W.9, the
Executive Engineer to the Superintending Engineer, N.H. Circle
(South), Bhubaneswar which is a part and parcel of Ext.N proved
by the defence through D.W.3 wherein it was mentioned that
subsequently on consideration of representation of the 1st
contractor, the date of commencement and stipulated dated of
completion were shifted to 01.06.2004 and 30.09.2004
respectively and below the letter in the enclosure portion, copy of
the representation of the 1st contractor Arun Kumar Choudhury
has been mentioned. It was argued that no such representation
was in existence and no such order has been passed on any such
representation of the 1st contractor as was mentioned in the letter
dated 21.03.2005 regarding shifting of date of commencement
and date of completion of work to 01.06.2004 and 30.09.2004
respectively. To meet the contention of Mr. Asok Mohanty, learned
Senior Advocate, time was sought for by Mr. Srimanta Das,
learned Senior Standing Counsel of Vigilance Department to
Page 29 of 60
// 30 //
obtain instruction as to whether any such representation of the 1st
contractor and any such order regarding shifting of the date of
commencement and the date of completion of the work is
available or not.
On 24.02.2022, Mr. Srimanta Das, learned Senior
Standing Counsel for the Vigilance Department filed an application
under section 391 of Cr.P.C. for marking certain documents as
additional evidence and the application was registered as I.A.
No.254 of 2022.
An affidavit was filed by the holding Investigating
Officer on 10.03.2022 in which it was clearly mentioned that the
two documents i.e. the representation of the 1st contractor Arun
Kumar Choudhury for extension of time for completion of work or
the order passed on such representation regarding shifting of the
date of commencement or date of completion of work were not
available either in the office of Executive Engineer, N.H. Division,
Berhampur or in the office of Chief Construction Engineer, N.H.
Circle, Berhampur.
The application filed by the learned Senior Standing
Counsel for the Vigilance Department under section 391 Cr.P.C.
was heard and rejected as per order dated 10.03.2022.
Thus, neither before the learned trial Court nor before
this Court, the prosecution was able to produce any
Page 30 of 60
// 31 //
representation of the 1st contractor nor any order passed on such
representation shifting the date of commencement and date of
completion of the work to 01.06.2004 and 30.09.2004
respectively. P.W.9 admits that there is a provision under
O.P.W.D. Code giving scope to the executant to apply for
extension of time one month prior to the proposed date of
completion if the extension is required due to unavoidable
hindrance. However, P.W.9 stated that he could not say if the
extension was prayed within the time stipulated unless he
referred to the record. He further stated that he could not say if
Arun Kumar Choudhury had applied for extension of time one
month prior to the end day of the stipulated time. P.W.9 further
stated that he could not say whether the Technical team had
inspected the work entrusted to the 1st contractor Arun Kumar
Choudhury and reported on 29.07.2004 that the contractor had
no equipments in order to execute the proposed work which was
submitted to the Superintending Engineer, N.H. South Circle,
Berhampur who in turn intimated the Executive Engineer, N.H.
Division, Berhampur vide letter dated 17.08.2004. P.W.9 further
stated that he could not say whether the Executive Engineer had
called on Arun Kumar Choudhury to submit his show cause within
seven days and whether the Executive Engineer vide letter dated
29.10.2004 intimated Superintending Engineer about the closure
Page 31 of 60
// 32 //
proposal of the work of Arun Kumar Choudhury. P.W.9 further
stated that when a contractor fails to execute the work under the
conditions stipulated in the agreement and for his default, he is
served with a show cause notice, he cannot be directed to take up
the said work afresh after the time stipulation of the agreement.
In view of such state of affairs, the submission of Mr.
Asok Mohanty, learned Senior Advocate has got substantial force
that the prosecution has failed to produce any document
regarding submission of any application by the 1st contractor for
extension of time to complete the work or any order passed
thereon and thus it would be deemed that after 31.08.2004, there
was no extension to the work in question under 1st agreement
Ext.10.
The above aspect is further strengthened on perusal
of the check list which is a part and parcel of Ext.N that goes to
show at column no.4 that the application for extension of time
was submitted on 10.03.2005 after the work is said to have been
completed on 30.01.2005. This check list was signed by P.W.9
wherein the date of submission of application for extension of
time by the 1st contractor Arun Kumar Choudhury has been
mentioned as 10.03.2005.
P.W.9 has clearly stated in his evidence that he joined
as Executive Engineer, N.H. Division, Berhampur on 08.10.2004
Page 32 of 60
// 33 //
and took charge from his predecessor (appellant Saroj Kumar
Misra) on 01.12.2004 and that the agreement Ext.10 was
executed during the tenure of his predecessor but the work
started after his joining and in the cross-examination, he has
clarified that the 1st contractor Arun Kumar Choudhury started
execution of work on 01.12.2004 on which date he took charge of
the office from his predecessor. The learned trial Court has also
observed (para-16 of the impugned judgment) that by the time
the 1st contractor Arun Kumar Choudhury commenced the
disputed work on 01.12.2004 till its completion on 30.01.2005,
there was no extension of time and extension of time was sought
for by P.W.9 only on 21.03.2005 and the same was sanctioned by
the Superintending Engineer on 24.03.2005. This finding of the
learned trial Court is quite justified in the facts and circumstances
of the case.
Mr. Asok Mohanty, learned Senior Advocate contended
that 'contract remains in force' after the earlier stipulated date
only when the application for extension of time for the completion
of a work is submitted by the contractor within the period
stipulated indicating the grounds of unavoidable hindrance or any
other grounds in the work in question. The same also finds place
in clause 4 of the conditions of the contract in Ext.10. According
to him, as per Para 3.5.30 of O.P.W.D. Code, Vol.I, the term
Page 33 of 60
// 34 //
'contract remains in force' and 'rescission of contract' as per
clause 2(b)(i) of the conditions of the contract as per Ext.10 are
two different things. To rescind the contract, the rescission notice
in writing is to be given to the contractor under the hand of
Executive Engineer which would be the conclusive evidence and
the security deposit of the contractor shall stand forfeited and will
be absolutely at the disposal of the Government. The finding of
the learned trial Court in para-17 of the impugned judgment that
in view of the notice dated 22.09.2004 vide Ext.Q issued to the 1st
contractor, till that date the earlier contract was very much in
force, is not correct. I agree with the submission made by the
learned Senior Advocate Mr. Asok Mohanty that 'contract to
remain in force' as per the provisions of the O.P.W.D. Code and
'rescission of contract' which includes forfeiture of the security
deposit of the contractor are quite different and distinguishable
and the learned trial Court erred in holding these two aspects to
be one and the same.
Security for the due fulfillment of a contract is
invariably taken in view of clause 3.5.19 of the O.P.W.D. Code.
The security may be taken in shape of N.S.C./Post Office Savings
Bank Account/ Post Office Time Deposit Account/ Kissan Vikash
Patra only towards E.M.D./initial security deposit/ any other
security deposit from the contractor or supplier. In Ext.10, as per
Page 34 of 60
// 35 //
tender call notice 1/2003-2004 issued by the Office of the
Superintending Engineer, N.H. Circle (South), Bhubaneswar under
the heading of eligibility criteria as per clause 8, it is mentioned
that the contractor shall be required to give a trial run of the
equipments for establishing their capacity to achieve the laid
down specification and tolerances to the satisfaction of the
Engineering-in-charge within fifteen days from signing of
agreement failing which the securities of the contractor shall be
forfeited. Basing on the inspection of Drum Mix Plant made by the
Technical Committee on 28.07.2007 as per Ext.K, it was found to
be not to the satisfaction of the Executive Engineer which is
mentioned under the heading of general remarks. The learned
trial Court also came to conclusion in the impugned judgment that
the trial run of machinery by the 1st contractor Arun Kumar
Choudhury as per clause 8 of Ext.10 is doubtful. However, the
learned trial Court gave an erroneous finding that failing to give a
trial run of the equipments for establishing the capacity by the
contractor will only result in forfeiture of his 'security deposit' and
not 'rescission of contract'. Once there would be forfeiture of
security for not giving the trial run of the equipments, it would
result in a situation of tender being submitted without security
and agreement will also be without security and as such the
agreement will lapse in view of clause 3.5.19.
Page 35 of 60
// 36 //
In view of the foregoing discussions and the relevant
provision of Para 3.5.30 of O.P.W.D. Code, Vol.I and clause 4 of
the conditions of contract (Ext.10), since there was no application
for extension of time submitted by the 1st contractor either prior
to 31.08.2004 or after that, it is to be held that the contract as
per 1st agreement executed with the contractor Arun Kumar
Choudhury was not in force when the 2nd agreement was
executed on 10.09.2004 vide Ext.21 with the respondent no.4
Abakash Padhi for potholes repair works. Thus, the first point is
answered accordingly.
Second Point:
Whether there was any necessity for entering into the 2nd
agreement and whether the respondent no.4 executed any
work at all or claimed false bill:
9. From a bare reading of the two F2 agreements i.e.
Ext.10 and Ext.21, it is apparent that the agreements were for
different work and operate in two different spheres. The 1st
agreement (Ext.10) with Arun Kumar Choudhury was for
periodical renewal from 148 K.M. to 154 K.M. and the 2nd
agreement (Ext.21) with the respondent no.4 Abakash Padhy was
for pothole repair from 147 K.M. to 171 K.M. The value of the 1st
agreement was Rs.36,98,199/- for six kilometers, whereas the
2nd agreement value was for Rs.4,70,170/- for 24 Kms. Thus,
Page 36 of 60
// 37 //
the nature and scope of work in two agreements are different.
There is no dispute that the period of execution of the pothole
repair work under Ext.21 would have been well within the time
period of earlier agreement Ext.10 had the 1st contractor applied
for extension of time and an order would have been passed in
granting extension. It is also not in dispute that in case of
exigencies for any small additional work within the original work in
progress, the same has to be executed by the original contractor
as per clause 10 of the F2 agreement of the 1st contractor as well
as Para 3.5.31 of O.P.W.D. Code, but when the 1st contractor Arun
Kumar Choudhury has not at all progressed with his work as per
F2 agreement Ext.10 executed on 19.02.2004 and started
execution of work only on 01.12.2004 as stated by P.W.9 and on
account of rainy season, the potholes repair which was in the
nature of flood damage repair work had to be undertaken
immediately for maintaining the safety of road for movement, no
fault can be found with entering into the contract vide Ext.21 with
the respondent no.4 Abakash Padhy on the ground that those two
work overlap each other. Had the 1st contractor Arun Kumar
Choudhury started the periodical renewal work in time, there
might not have been any necessity for entering into contract with
the 2nd contractor respondent no.4 Abakash Padhy for pothole
repair work. P.W.9 admits in his cross-examination that repairing
Page 37 of 60
// 38 //
of potholes on N.H. is a routine work for maintenance. He further
stated that the Executive Engineer is competent to take steps for
repair of the potholes in an emergency situation by entering into
new agreement with a contractor following the official procedure.
He further stated that if the potholes on the road required to be
repaired are small in size, the work can be executed manually. In
my humble view, there were every necessity for entering into the
2nd agreement (Ext.21) as the 1st contractor had not progressed
with his assigned work.
There are materials on record that the respondent
no.4 executed the port hole repair work assigned to him under
agreement Ext.21 and submitted the first running bill which was
passed for Rs.1,50,000/-. Ext.C is the letter dated 11.02.2005
issued by P.W.9 to the Assistant Engineer, N.H. Sub-Division,
Balliguda which clearly states that the final bill regarding
execution of work under F2 Agreement No.1 of 2004-05 (Ext.21)
has not been submitted. P.W.9 further mentioned in the letter
that it would be construed that no further work had been
executed against the above contract other than the items against
which the bills were earlier submitted. Thus, P.W.9 himself
indicates in the letter under Ext.C that the respondent no.4 had
executed the work as per Ext.21 for which running bill was
submitted. According to P.W.9, running bills are prepared taking
Page 38 of 60
// 39 //
into consideration the progress of a particular work and that the
payment on running bill is made during the execution of the work
and it has nothing to do with the completion of the work. P.W.9
further submits that the first running bill (Ext.24) for the second
work was prepared for Rs.2,53,418/- and passed on 14.09.2004
for Rs.1,50,000/- and in M.B. No.1311 at page No.89, the
measurement for this work was recorded.
P.W.9 has stated that the Superintending Engineer
(P.W.11) had inspected the works along with him on 05.05.2005
and submitted the inspection note Ext.27 which was received by
him (P.W.9) on 31.05.2005. P.W.11 referring to his inspection
note Ext.27 has stated that the pothole repair work from KM
147/0 to 171/0 of NH 217 was taken up and during his inspection,
some patch work was found executed on the National Highway
towards the repair. He (P.W.11) further stated that in his
inspection report marked as Ext.27, he has observed that the
potholes between KM 147/0 to 171/0 excluding the area between
148/0 to 154/0 were found repaired manually using over sized
chips for surface dressing. In the cross-examination, P.W.11 has
stated that if those 6 Kms. are excluded from 24 Kms., the
pothole repair work was undertaken for 18 Kms. only. He further
stated that a pothole can be repaired without using WBM and by
surface dressing only if the nature of the pothole is small and due
Page 39 of 60
// 40 //
to wear and tear of the BT. He further stated that the record
reveals that the pothole repair from 147/0 Km. to 171/0 Km. on
NH 217 was a flood damage repair. He further stated that for
repairing pothole, machineries are required depending upon the
size of damage and it can also be repaired manually. He has
further stated that the part bill paid to contractor Abakash Padhi
(respondent no.4) for the pothole repair was calculated on the
basis of repair through machine though the work was actually
executed manually. P.W.9 also admits that in the status report
communicated to Asst. Engineer on 17.02.2005, he had instructed
him to stop the work by respondent no.4 as on that day. As per
Ext.A the respondent no.4 was intimated about the closure of
contract. From this, it is apparent that the respondent no.4
continued with the work in respect of 154 Km. to 171 Km. till
17.02.2005. In view of the evidence available on record, I am of
the humble view that after execution of the agreement under
Ext.21, the respondent no.4 executed the pothole repair work and
submitted the first running bill which was passed for
Rs.1,50,000/- (one lakh fifty thousand) and it cannot be said that
he raised any false bill merely because the pothole repaired work
was done manually even though he could have utilized machine
as per specification in the tender but since it was the running bill,
it cannot be said that no pothole work had been done by the
Page 40 of 60
// 41 //
respondent no.4 and that he was a dummy contractor only on
paper and that it was a sham work and that the accused persons
prepared false bills and vouchers to misappropriate the
Government money. Thus, the second point is answered
accordingly.
Third Point:
Whether there was any criminal conspiracy between the
accused persons and undue official favour was shown to
respondent no.4:
10. It has already been held while discussing the 1st point
and 2nd point that the contract as per 1st agreement (Ext.N)
executed with the contractor Arun Kumar Choudhury was not in
force when the 2nd agreement (Ext.21) was executed with the
respondent no.4 Abakash Padhi for pothole repair work and that
the nature and scope of work in the two agreements (Ext.10 and
Ext.21) are different and there was every necessity for entering
into the 2nd agreement (Ext.21) as the 1st contractor had not
progressed with his work and that there are materials on record
that the respondent no.4 executed the pothole repair work and
submitted his first running bill (Ext.24) which was passed for
Rs.1,50,000/-.
The basic ingredients of the offence of 'criminal
conspiracy' as defined under section 120-A I.P.C. are
Page 41 of 60
// 42 //
(i) An agreement between two or more persons;
(ii) The agreement must relate to doing or
causing to be done either (a) an illegal act; or (b)
an act which is not illegal in itself but is done by
illegal means.
The meeting of minds of two or more persons for
doing or causing to be done an illegal act or an act by illegal
means is the sine qua non of criminal conspiracy. The offence can
be proved largely from the inferences drawn from the acts or
illegal omission committed by the conspirators in pursuance of a
common design in as much as the conspiracy is always hatched in
secrecy and it is impossible to adduce direct evidence of the
common intention of the conspirators. The entire agreement is to
be viewed as a whole and it has to be ascertained as to what in
fact the conspirators intended to do or the object they wanted to
achieve. The essence of criminal conspiracy is the unlawful
combination and ordinarily the offence is complete when the
combination is framed. Encouragement and support which co-
conspirators give to one another rendering enterprises possible
which, if left to individual effort, would have been impossible,
furnish the ground for visiting conspirators and abettors with
condign punishment. (Ref:-AIR 2008 SC 2991, Yogesh @
Sachin Jagdish Joshi -v- State of Maharashtra; (1980) 2
Page 42 of 60
// 43 //
SCC 465, Shivnarayan Laxminarayan Joshi -v- State of
Maharastra, 2013 (3) SCALE 565, Yakub Abdul Razaq
Menon -v- State of Maharashtra; AIR 2005 SC 128, K.
Hasim -v- State of Tamil Nadu).
Section 120-B of the Indian Penal Code prescribes
punishment for criminal conspiracy which is defined under section
120-A of the Indian Penal Code.
In case of Devender Pal Singh -Vrs.- State
National Capital Territory of Delhi reported in (2002) 5
Supreme Court Cases 234, it is held that the element of a
criminal conspiracy consists of (a) an object to be accomplished,
(b) a plan or scheme embodying means to accomplish that object,
(c) an agreement or understanding between two or more of the
accused persons whereby they become definitely committed to
co-operate for the accomplishment of the object by the means
embodied in the agreement, or by any effectual means, (d) in the
jurisdiction where the statute required an overt act. The essence
of a criminal conspiracy is the unlawful combination and ordinarily
the offence is complete when the combination is framed. From
this, it necessarily follows that unless the statute so requires, no
overt act need be done in furtherance of the conspiracy, and that
the object of the combination need not be accomplished, in order
to constitute an indictable offence. Law making conspiracy a crime
Page 43 of 60
// 44 //
is designed to curb immoderate power to do mischief which is
gained by a combination of the means. The encouragement and
support which co-conspirators give to one another rendering
enterprise possible which, if left to individual effort, would have
been impossible, furnish the ground for visiting conspirators and
abettors with condign punishment. The conspiracy is held to be
continued and renewed as to all its members wherever and
whenever any member of the conspiracy acts in furtherance of the
common design. For an offence punishable under section 120-B of
the Indian Penal Code, the prosecution need not necessarily prove
that the perpetrators expressly agree to do or cause to be done
illegal act; the agreement may be proved by necessary
implication. Offence of criminal conspiracy has its foundation in an
agreement to commit an offence. A conspiracy consists not
merely in the intention of two or more, but in the agreement of
two or more to do an unlawful act by unlawful means.
Since in the factual scenario, the execution of 2nd
agreement with the respondent no.4 cannot be said to be an
illegal act but was a sheer necessity in the situation of flood
damage and there is absence of any material that there was any
agreement between the accused persons for doing the pothole
repair work by illegal means or for doing an unlawful act by
unlawful means rather the respondent no.4 has executed the
Page 44 of 60
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pothole repair work entrusted to him in a lawful manner and got a
sum of Rs.1,50,000/- towards the first running bill and there is no
material also on record that there was any inflated cost or any
loss to the Government and specifically in view of the evidence of
P.W.11 that the part bill paid to respondent no.4 was calculated
on the basis of repair through machine though the work was
actually executed manually, I am of the humble view that the
learned trial Court has rightly held that the prosecution has failed
to bring home the charge under section 120-B of the Indian Penal
Code against the accused persons. Thus, the third point is
answered accordingly.
Fourth Point:
Whether there was any forgery in respect of
documents/records or there was any dishonest cheating to
the Government by showing undue official favour to the
respondent no.4:
11. The essential ingredients of the offence of "cheating"
are that (i) deception of a person either by making a false or
misleading representation or by dishonest concealment or by any
other act or omission; (ii) fraudulent or dishonest inducement of
that person to either deliver any property or to consent to the
retention thereof by any person or to intentionally induce that
person so deceived to do or omit to do anything which he would
Page 45 of 60
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not do or omit if he were not so deceived; and (iii) such act or
omission causing or is likely to cause damage or harm to that
person in body, mind, reputation or property. To constitute an
offence under section 420 of the Indian Penal Code, there should
not only be cheating, but as a consequence of such cheating, the
accused should have dishonestly induced the person deceived (i)
to deliver any property to any person, or (ii) to make, alter or
destroy wholly or in part a valuable security (or anything signed
or sealed and which is capable of being converted into a valuable
security). (Ref:- Md. Ibrahim -Vrs.- State of Bihar reported
in (2009) 8 Supreme Court Cases 751)
In case of Inder Mohan Goswami -Vrs.- State of
Uttaranchal reported in (2008) 39 Orissa Criminal Reports
(SC) 188, it is held that to hold a person guilty of 'cheating', it is
necessary to show that he had a fraudulent or dishonest intention
at the time of making the promise. From his mere failure to
subsequently keep a promise, one cannot presume that he all
along had a culpable intention to break the promise from the
beginning.
In case of Joseph Salvaraj A. -Vrs.- State of
Gujarat reported in (2011) 49 Orissa Criminal Reports (SC)
924, it is held that under section 420 of the Indian Penal Code, it
is inbuilt that there has to be a dishonest intention from the very
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beginning, which is sine qua non to hold the accused guilty for
commission of the said offence.
In case of Devendra -Vrs.- State of U.P. reported
in (2009) 43 Orissa Criminal Reports (SC) 680, it is held that
a misrepresentation from the very beginning is a sine qua non for
constitution of an offence of cheating, although in some cases, an
intention to cheat may develop at a later stage of formation of the
contract.
In case of Alpic Finance Ltd. -Vrs.- P. Sadasivan
reported in A.I.R. 2001 S.C. 1226, it is held as follows:-
"10. The facts in the present case have to be
appreciated in the light of the various decisions of
this Court. When somebody suffers injury to his
person, property or reputation, he may have
remedies both under civil and criminal law.
The injury alleged may form basis of civil
claim and may also constitute the ingredients of
some crime punishable under criminal law. When
there is dispute between the parties arising out of
a transaction involving passing of valuable
properties between them, the aggrieved person
may have right to sue for damages or
compensation and at the same time, law permits
the victim to proceed against the wrongdoer for
having committed an offence of criminal breach of
trust or cheating. Here the main offence alleged
by the appellant is that respondents committed
Page 47 of 60
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the offence under Section 420 I.P.C. and the case
of the appellant is that respondents have cheated
him and thereby dishonestly induced him to
deliver property. To deceive is to induce a man to
believe that a thing is true which is false and
which the person practicing the deceit knows or
believes to be false. It must also be shown that
there existed a fraudulent and dishonest intention
at the time of commission of the offence. There is
no allegation that the respondents made any
willful misrepresentation. Even according to the
appellant, parties entered into a valid lease
agreement and the grievance of the appellant is
that the respondents failed to discharge their
contractual obligations. In the complaint, there is
no allegation that there was fraud or dishonest
inducement on the part of the respondents and
thereby the respondents parted with the
property. It is trite law and common sense that
an honest man entering into a contract is deemed
to represent that he has the present intention of
carrying it out but if, having accepted the
pecuniary advantage involved in the transaction,
he fails to pay his debt, he does not necessarily
evade the debt by deception.
11. Moreover, the appellant has no case that the
respondents obtained the article by any
fraudulent inducement or by willful
misrepresentation. We are told that respondents,
though committed default in paying some
Page 48 of 60
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installments, have paid substantial amount
towards the consideration.
12. Having regard to the facts and circumstances,
it is difficult to discern an element of deception in
the whole transaction, whereas it is palpably
evident that the appellant had an oblique motive
of causing harassment to the respondents by
seizing the entire articles through magisterial
proceedings. We are of the view that the learned
judge was perfectly justified in quashing the
proceedings and we are disinclined to interfere in
such matters."
In case of Hridaya Ranjan Pd. Verma -Vrs.- State
of Bihar reported in A.I.R. 2000 S.C. 2341, it is held as
follows:-
"13. Cheating is defined in Section 415 of the
Code as, "Whoever, by deceiving any person,
fraudulently or dishonestly induces the person so
deceived to deliver any property to any person, or
to consent that any person shall retain any
property, or intentionally induces the person so
deceived to do or omit to do anything which he
would not do or omit if he were not so deceived,
and which act or omission causes or is likely to
cause damage or harm to that person in body,
mind, reputation or property, is said to "cheat".
Explanation - A dishonest concealment of facts is
a deception within the meaning of this section.
Page 49 of 60
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The section requires - (1) Deception of any
person.
(2) (a) Fraudulently or dishonestly inducing that
person
(i) to deliver any property to any person; or
(ii) to consent that any person shall retain any
property; or
(b) intentionally inducing that person to do or
omit to do anything which he would not do or
omit if he were not so deceived, and which act or
omission causes or is likely to cause damage or
harm to that person in body mind, reputation or
property.
14. On a reading of the section, it is manifest that
in the definition there are set forth two separate
classes of acts which the person deceived may be
induced to do. In the first place he may be
induced fraudulently or dishonestly to deliver any
property to any person. The second class of acts
set forth in the section is the doing or omitting to
do anything which the person deceived would not
do or omit to do if he were not so deceived. In
the first class of cases the inducing must be
fraudulent or dishonest. In the second class of
acts, the inducing must be intentional but not
fraudulent or dishonest.
15. In determining the question, it has to be kept
in mind that the distinction between mere breach
of contract and the offence of cheating is a fine
one. It depends upon the intention of the accused
Page 50 of 60
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at the time to inducement which may be judged
by his subsequent conduct but for this
subsequent conduct is not the sole test. Mere
breach of contract cannot give rise to criminal
prosecution for cheating unless fraudulent or
dishonest intention is shown right at the
beginning of the transaction, that is the time
when the offence is said to have been committed.
Therefore it is the intention which is the gist of
the offence. To hold a person guilty of cheating, it
is necessary to show that he had fraudulent or
dishonest intention at the time of making the
promise.
16. From his mere failure to keep up promise
subsequently such a culpable intention right at
the beginning, that is, when he made the promise
cannot be presumed."
The basic ingredients of the offence under section 467
of the Indian Penal Code are that (i) the document in question is
forged; (ii) the accused forged it and (iii) the document is one of
the kinds enumerated in the said section. Section 468 of the
Indian Penal Code applies to those cases where forgery has been
committed for the purpose of cheating. If it is proved that the
purpose of the offender in committing the 'forgery' is to obtain
property dishonestly or if the guilty purpose comes within the
definition of 'cheating' as defined under section 415 of the Indian
Penal Code, then his act would be punishable under section 468 of
Page 51 of 60
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the Indian Penal Code. For both these offences, the very first
thing which is required to be proved is that a 'forgery' as defined
under sections 463 and 464 of the Indian Penal Code have been
committed.
There is absolutely no material that any fraud has
been perpetuated in making the document Ext.21. There is no
dispute that final bill in respect of the work executed by
respondent no.4 had not been prepared and the amount paid to
him to the tune of Rs.1,50,000/- (rupees one lakh fifty thousand)
was in the nature of first running bill. The evidence on record as
already discussed clearly indicates that the pothole repair work
was done manually but the bill of respondent no.4 has been
calculated on the basis of repair through machine and thus the
payment of the running bill cannot be said to be with an inflated
rate or it cannot be said that there was any wrongful loss to the
Government in making such payment. The prosecution had not
adduced any satisfactory evidence that any of the documents like
agreement entered into with the respondent no.4 or M.B. No.1311
or the pothole repair estimate are false documents and that the
accused persons prepared such documents for the purpose of
cheating and therefore, the learned trial Court is quite justified in
holding that the prosecution has not substantiated the essential
Page 52 of 60
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ingredients of offences under sections 420 and 468 of the Indian
Penal Code. Thus, the fourth point is answered accordingly.
Fifth Point:
Whether the accused persons have caused disappearance
of M.B. No.1311 with an intention to screen themselves
from legal punishment:
12. In order to attract the ingredients of the offence under
section 201 of the Indian Penal Code, the prosecution is required
to prove the following aspects:-
(i) The accused had knowledge or reason to believe
that an offence has been committed;
(ii) The accused caused disappearance of the
evidence which is related to such offence;
(iii) Such disappearance has been done with the
intention of screening himself or any other offender
from legal punishment which is co-related to such
offence;
(iv) After having knowledge or reason to believe
regarding commission of offence, the accused
intentionally gave any false information relating to
such offence and thereby caused disappearance of
evidence.
Page 53 of 60
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The Investigating Officer (P.W.12) has stated that
during investigation, J.E. Sasikanta Acharya disclosed before him
to have received and handed over M.B. No.1311 to the Head Clerk
Prakash Chandra Panda but had not received a receipt for the
same from Shri Panda. Neither the prosecution has examined J.E.
Sasikanta Acharya nor Prakash Chandra Panda.
P.W.9 has stated that a letter was written to Assistant
Engineer to ascertain about the M.B. No.1311 and in his letter
dated 03.04.2006, the Assistant Engineer intimated that the M.B.
was submitted along with the bill in the Office of the Executive
Engineer's Head Clerk in-charge Shri P.C. Panda on 15.03.2005.
He further stated that after receipt of the reply from the Assistant
Engineer, a letter was issued to the Head Clerk in-charge Shri P.C.
Panda. He further stated that M.B. No.1311 was in his office on
03.02.2005 and on that day, he was the Executive Engineer of
N.H. Division, Berhampur and the M.B. movement registers
remain under the custody of the dealing assistant. He further
stated that a departmental proceeding was initiated against the
Junior Engineer S.K. Acharya for the untraced M.B. and the bills
and that J.E. S.K. Acharya was awarded with a punishment in that
D.P.
In view of such materials, it cannot be said that
merely because M.B. No.1311 was not found, the accused persons
Page 54 of 60
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caused its disappearance. The finding of the learned trial Court
that disappearance of M.B. No.1311 against the accused persons
is not found and the prosecution has failed to substantiate the
charge under section 201 of the Indian Penal Code against the
accused persons is quite justified and I also agree with the same.
Thus, the fifth point is answered accordingly.
13. Coming to the charge under section 13(2) read with
section 13(1)(d) of the 1988 Act for which the three appellants
were found guilty by the learned trial Court after acquitting all the
accused persons of the charges under sections 420, 468, 120-B
and 201 of the Indian Penal Code without assigning any reason
whatsoever is quite surprising, reflects non-application of mind to
the ingredients required to substantiate such charge.
The charge was framed under section 13(2) read with
section 13(1)(d) of the 1988 Act on the ground that that all the
three appellants-public servants in connivance with each other
and also with the respondent no.4 Abakash Padhi by corrupt and
illegal means or by otherwise abusing their position as such public
servant obtained for themselves pecuniary advantages to the
extent of amount of Rs.1,50,000/- (rupees one lakh fifty
thousand) by showing undue official favour to the respondent
no.4 by showing false execution of pothole repair work.
Page 55 of 60
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Since I have already found that there has been
execution of pothole repair work by the respondent no.4 for which
he was paid Rs.1,50,000/- (rupees one lakh fifty thousand)
towards his first running bill, the question of showing of undue
official favour to anybody does not arise. Therefore, the conviction
of the appellants under section 13(2) read with section 13(1)(d)
of the 1988 Act is not sustainable in the eye of law and hereby set
aside.
14. Coming to the appeal against acquittal filed by the
State of Odisha, law is well settled as held in case of Babu -Vrs.-
State of Uttar Pradesh reported in A.I.R. 1983 Supreme
Court 308 that in appeal against acquittal, if two views are
possible, the appellate Court should not interfere with the
conclusions arrived at by the trial Court unless the conclusions are
not possible. If the finding reached by the trial Judge cannot be
said to be unreasonable, the appellate Court should not disturb it
even if it were possible to reach a different conclusion on the basis
of the material on the record because the trial Judge has the
advantage of seeing and hearing the witnesses and the initial
presumption of innocence in favour of the accused is not
weakened by his acquittal. The appellate Court, therefore, should
be slow in disturbing the finding of fact of the trial Court and if
two views are reasonably possible on the evidence on the record,
Page 56 of 60
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it is not expected to interfere simply because it feels that it would
have taken a different view if the case had been tried by it.
Thus, an order of acquittal should not be disturbed in
appeal under section 378 of Cr.P.C. unless it is perverse or
unreasonable. There must exist very strong and compelling
reasons in order to interfere with the same.
The right of appeal against acquittal vested in the
State Government should be used sparingly and with
circumspection and it is to be made only in case of public
importance or where there has been a miscarriage of justice of a
very grave nature.
In case of Bannareddy -Vrs.- State of Karnataka
reported in (2018) 5 Supreme Court Cases 790, it is held as
follows:-
"10....It is well-settled principle of law that the
High Court should not interfere in the well-
reasoned order of the trial court which has been
arrived at after proper appreciation of the
evidence. The High Court should give due regard
to the findings and the conclusions reached by
the trial court unless strong and compelling
reasons exist in the evidence itself which can
dislodge the findings itself".
In case of Ghurey Lal -Vrs.- State of Uttar Pradesh
reported in (2008) 10 Supreme Court Cases 450, it is held as
follows:-
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75....The trial court has the advantage of
watching the demeanour of the witnesses who
have given evidence, therefore, the appellate
court should be slow to interfere with the
decisions of the trial court. An acquittal by the
trial court should not be interfered with unless it
is totally perverse or wholly unsustainable."
Thus in a case of appeal against acquittal, although
the powers of the High Court to reassess the evidence and reach
its own conclusions are as extensive as in an appeal against an
order of conviction, yet, as a rule of prudence, proper weight
should be given to the views of the Trial Judge as to the credibility
of the witnesses, the presumption of innocence in favour of the
accused, a presumption certainly not weakened by the fact that
he has been acquitted at the trial, the right of an accused to the
benefit of any doubt and the slowness of an appellate Court in
disturbing a finding of fact arrived at by a Trial Judge who had the
advantage of seeing the witnesses. Where two reasonable views
are possible or two reasonable conclusions can be drawn on the
evidence on record, the appellate Court, as a matter of judicial
caution should not interfere with the conclusion arrived at by the
learned trial Court unless the conclusions are not possible. Even if
the appellate Court can review the trial Court's conclusion both on
facts as well as law, but if the grounds of acquittal cannot be
entirely and effectively dislodged or demolished and unless there
has been flagrant miscarriage of justice by pronouncing the order
Page 58 of 60
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of acquittal substantially and compelling reasons are there to
interfere with the conclusions arrived at by the trial Court, the
findings of acquittal should not be disturbed.
Keeping the ratio laid down by the Hon'ble Supreme
Court and the settled position of law, on the basis of careful
analysis of evidence on record as made above, I am of the humble
view that the view taken for the acquittal of the respondent no.4
of all the charges so also the appellants of the charges under
sections 420, 468, 201 and 120-B of the Indian Penal Code is
reasonable and plausible and I find no compelling reason to
interfere with the conclusions arrived at by the learned trial Court
so far as the order of acquittal is concerned.
15. In view of the foregoing discussions, all the three
criminal appeals i.e. CRLA No.695 of 2016 filed by appellant
Sudarsan Sahani, CRLA No.687 of 2016 filed by appellant
Prasanta Kumar Patra and CRLA No.694 of 2016 filed by appellant
Saroj Kumar Misra are allowed. The impugned judgment and
order of conviction of the three appellants under section 13(2)
read with section 13(1)(d) of the 1988 Act and the sentence
passed thereunder is hereby set aside and they are acquitted of
such charge. The appellants are on bail by virtue of the orders of
this Court. They are discharged from liability of their bail bonds.
The personal bonds and the surety bonds stand cancelled.
Page 59 of 60
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GCRLA No.25 of 2019 filed by the State of Odisha also
stands dismissed. The respondent no.4 Abakash Padhy who is on
bail by virtue of the order dated 02.08.2019 is discharged from
the liability of the bail bonds. The personal bond and the surety
bonds stand cancelled.
The trial Court records with a copy of this judgment
be sent down to the concerned Court forthwith for information.
...............................
S.K. Sahoo, J.
Odisha High Court, Cuttack The 18th April 2022/PKSahoo/Pravakar/RKMishra Page 60 of 60