Delhi District Court
State vs . 1. Ishwar Singh, on 16 May, 2012
IN THE COURT OF MS. SANGITA DHINGRA SEHGAL
SPECIAL JUDGE, ANTI CORRUPTION BRANCH, DELHI
CC No. : 03/07
Computer Identification No. : 02401R0040432007
State Vs. 1. Ishwar Singh,
S/o Sh. Kanak Singh,
R/oA1/29 Freedom Fighter Enclave,
Neb Sarai, Delhi.
Under Sections : 13 (i) (d) of the Prevention of
Corruption Act, 1988 read with
Sections 420/468/471/120B IPC
2. Ajaz Ahmed Khan,
S/o Sh. Kallan Khan,
R/om N73, Abul Fazal Enclave,
Jamia, Okhla, New Delhi.
Under Sections : 13 (i) (d) of the Prevention of
Corruption Act, 1988 read with
Sections 420/468/471/120B IPC
3. Surinder Bhanot,
S/o Sh. Amar Nath,
R/o C2/90, Swran Park Extension,
Nangloi. New Delhi
Under Sections : 420/468/471/120B IPC
FIR No. 11/03 State Vs. Ishwar Singh & Ors. 1/33
4. Nitin Gupta,
S/o Sh. Narotam Dass Gupta,
R/o 5A/1 Block, UA2,
Jawahar Nagar, Delhi.
Under Sections : 420/468/471/120B IPC
5. Satinder Panwar,
S/o Sh. Ombir Singh,
R/o Vill. Doghat, P.S. Doghat,
Distt. Bhagpat, Uttar Pradesh.
Under Sections : 420/468/471/120B IPC
6. Ankur Gupta
S/o Sh. Mohinder Kumar Gupta,
Q304, Tagore Park, Model Town,
Delhi.
Also at:
303, AsterII Supertech,
Sector93, Noida, Uttar Pradesh.
Under Sections : 420/468/471/120B IPC
F.I.R. No. : 11/2003
Police Station : Anti Corruption Branch
Date of filing of Chargesheet : 12.01.2007
Judgment reserved on : 28.04.2012
Judgment pronounced on : 16.05.2012
FIR No. 11/03 State Vs. Ishwar Singh & Ors. 2/33
J U D G M E N T
In brief, the case of the prosecution is that work of digging of pits, planting of trees and fixing of tree guards in Civil Lines Zone Ward No. 104 & 106 was awarded to accused Surinder Bhanot, Proprietor of M/s United Enterprises, accused Nitin Gupta, Proprietor of M/s Vishakha Gupta, accused Satinder Panwar, Proprietor of M/s Jai Traders and accused Ankur Gupta, Proprietor of M/s A. G. Construction to be executed by the MCD through contractors in the year 2001 & 2002. At the relevant time, accused Ishwar Singh was the Deputy Director and accused Ajaz Ahmad was the Section Officer in Civil Lines Zone, MCD and it was their duty to ensure that work of digging of pits, plantation of trees and affixing of tree guards was done by the contractors as per the work awarded to them.
2. A secret information was received that the work was not executed and bogus bills were raised by the contractors and the payments were got released in collusion with the officials of MCD. On the basis of this information the present case was registered.
3. The case of the prosecution further is that during investigation Inspector Ranbir Singh along with Sh. Dharamveer Singh, Deputy Director, Horticulture, Civil Lines Zone, FIR No. 11/03 State Vs. Ishwar Singh & Ors. 3/33 Sh. Yashpal Sharma, Section Officer (H) and Surinder Singh, Section Officer (H), Civil Lines Zone and Rishi Raj, Gardner, Civil Lines concluded that no work was done in the area mentioned from serial number 19 that are i) Kadipur Village to Ibrahim Pur; ii) Nangli Village to Kadipur Village; iii) Road side of Indra Vikas Colony;
iv) Mangal Bazar Chowk to end of H Block Jahangirpuri; v) Fire Station to slum bandh Jahangirpuri; vi) Mukhmail pur village to Hiranki Village; vii) Burari Village to Burari Chowk phaseII;
viii) Burari Village to Alipur Chowk phaseII; ix) Burari Village to Burari Chowk phaseI and partial work was done in respect of areas mentioned at serial number 1012 that are x) Burari Village to Sant Nagar PhaseI; xi) Sant Nagar PhaseI to Outer Ring Road PhaseI and
xii) Sant Nagar to Outer Ring Road PhaseII in physical inspection report MarkA which caused financial loss to the tune of Rs.4050 Lacs to the MCD.
4. In this background the accused persons were charged for entering into criminal conspiracy on the allegations that accused Ishwar Singh the then Deputy Director, MCD, Civil Lines, Delhi and accused Ajaz Ahmed, Section Officer Horticulture Department, MCD, Civil Lines, Delhi both being public servants conspired with coaccused Surinder Bhanot, Proprietor of M/s United Enterprises, FIR No. 11/03 State Vs. Ishwar Singh & Ors. 4/33 accused Nitin Gupta, Proprietor of M/s Vishakha Gupta, accused Satinder Panwar, Proprietor of M/s Jai Traders and accused Ankur Gupta, Proprietor of M/s A. G. Construction to obtain wrongful gain by preparing forged report regarding digging of pits, tree plantation and fixing of tree guards on the road sides in Civil Lines Zone, Ward No. 104 & 106 and all committed an offence punishable under Section 120B IPC.
The accused persons were also charged under Sections 420/468/471 of the IPC read with Section 120B IPC that in pursuance of the criminal conspiracy accused Ishwar Singh, the then Deputy Director, MCD and accused Ajaz Ahmed, the then Section Officer, MCD being public servants certified doing of work of tree plantation, digging of pits and fixing of tree guards, the contract of which was awarded to other accused Surinder Bhanot, Nitin Gupta, Satinder Panwar and Ankur Gupta whereas in fact the physical checking report MarkA from serial number 112 no work had been done and from serial number in 19 partial work was done and all the accused persons obtained wrongful gain for themselves and caused wrongful loss to MCD to the tune of Rs.4050 Lacs by cheating the MCD and by preparing false report by using the same as genuine and having reasons to believe the same to be forged.
FIR No. 11/03 State Vs. Ishwar Singh & Ors. 5/33 Accused Ishwar Singh and Ajaz Ahmad were also charged for committing an offence punishable under Section 13 (2) as defined under Section 13 (i) (d) of the Prevention of Corruption Act, 1988 for having obtained pecuniary advantage by corrupt or illegal means being public servants.
5. In order to prove its case prosecution examined 21 witnesses.
6. Thereafter, the statement of accused persons was recorded under Section 313 Cr.P.C. Accused Ishwar Singh took up a plea that he has been falsely implicated and Dharamveer, Deputy Director Horticulture had taken charge from him after physical verification of the sites and after checking the records had also recommended the payment of bills for the work done during his tenure.
Accused Ajaz Ahmed stated that the present case is false and he has been falsely implicated. He further stated that he had executed his duties diligently as per procedure.
Accused Surinder Bhanot submitted that he has been falsely implicated in the present case only on the basis of suspicion FIR No. 11/03 State Vs. Ishwar Singh & Ors. 6/33 and further stated that he had obtained the money from the MCD for the work done by him.
Accused Nitin Gupta took up a defence that he is innocent and the bills were raised for the work done and assigned agreements.
Accused Satinder Panwar also stated that he had obtained the money from MCD for the work done by him. He added that he has been falsely implicated in the present case on the basis of suspicion.
Accused Ankur Gupta took up a plea that he is innocent and till date i.e. for the past 10 years his bills have not been cleared by the MCD nor any payment has been made to him for the work done by him.
7. The accused persons also examined 16 witnesses in defence being Bishwajeet Roy (DW1), Accounts Officer (HQ), MCD deposed that no payment was made to M/s A. G. Construction Building and Contractor by the Horticulture (HQ), MCD and proved the certificate as Ex.DW1/A. Tejbir Singh (DW2) deposed that he was residing in the area of Burari and was a regular user of the Ring Road which leads to Ali Pur Baandh and noticed that the trees with tree guards had been planted on both sides of the road and also noticed FIR No. 11/03 State Vs. Ishwar Singh & Ors. 7/33 that some labourers of the MCD had been watering those trees but after about 78 months of their plantation the road was widened and a nala was constructed as a result of which the trees along with tree guards were uprooted. He further deposed that he saw that some of the trees were taken away by general public, some by the officials of the MCD and some were stolen. Kanwar Lal (DW3), working as a Supervisor in MCD, Kingsway Camp, Delhi deposed that the Outer Ring Road Burari to Ali Pur Baandh was under his supervision and during his tenure in the year 200102 trees were planted and tree guards fixed on this road under his supervision from laboureres and gardeners working under him. Due to widening of Outer Ring Road Burari, the trees and tree guards were uprooted and some tree guards were brought to the Nursery and some of them got stolen. Anil Kumar (DW4), working as a Store Keeper in MCD, Jahangirpuri deposed that Contractor Satender supplied 150200 tree guards which were received by him being the Store Keeper but the said stock was not checked by the MCD. He further deposed that some pits were dug on the road from Jahangirpuri Fire Station to Shah Alam Baandh Road for planting trees and later on tree guards were affixed on the dugged pits. He further deposed that the tree guards affixed in the area of Jahangirpuri remained intact. Rajender (DW5), FIR No. 11/03 State Vs. Ishwar Singh & Ors. 8/33 working as a gardener in MCD deposed that he was posted at Outrem Line, Kingsway Camp and was assigned the duty at Burari Road for watering the trees and 56 gardeners were deputed to look after the trees at Burari Road but the trees were uprooted as the road was widened and the tree guards were brought and deposited in the Store at Kingsway Camp, Delhi. Sunil Tyagi (DW6), working as gardener, MCD deposed that his duty was to get the trees planted. In the year 200102 he got planted trees and tree guards were fixed on both sides of the road at Nangli to Kadi Pur, Kadi Pur to Ibrahimpur and Mukhmelpur to Hiranki and during his tenure 34 tree guards were stolen and some were uprooted by the villagers. Gaffar Ali (DW7) deposed that in the year 2002 he dug pits from Fire Station Jahangirpuri to Shah Alam Bagh for a length of about 1½ Kms on the instructions of Contractor Surender. He deposed that the pits were dug on both sides of the road and accused Ajaz Ahmed Khan used to occasionally check the site. Veer Singh (DW8) deposed that he is into business of property dealing in the area of Nathu Pura, Burari, Palla Bakhtawarpur and in the year 2002 plantation was done on both sides of the road from Burari to Palla Bakhtawarpur and tree guards were also affixed. He deposed that the said road was widened in the year 2003 on the directions of the then L.G., Delhi but as a result of FIR No. 11/03 State Vs. Ishwar Singh & Ors. 9/33 widening of the road many trees had to be uprooted and the tree guards were shifted from the road by the MCD officials and some of the tree guards were stolen by the nearby villagers. Daya Kishan (DW9), Driver in the Civil Lines, MCD Zone, Delhi deposed that he had carried 14001500 trees from the Nursery which were planted at site Outer Ring Road Nathu Pura to Ali Pur Baandh. He further deposed that tree guards were also affixed along with the trees which were planted at Kadi Pur to Ibrahimpur, Mukhmelpur to Hiranki Village. Rajeev Verma (DW10) deposed Dharamveer Singh (PW2) was an accused in RCAC2/2003A0002 and has been convicted by the Court of Sh. P. K. Saxena, the then Special Judge, CBI, Delhi. Rakesh Kumar (DW11), tempo driver deposed that he had carried 350400 tree guards in his tempo and dropped the same at Burari Road, Delhi. Rakesh Kumar (DW12), Asstt. Chief Accountant, MCD deposed that as per record no payment had been released to M/s A. G. Construction. Manish Dutta (DW13), fabricator of iron material deposed that in the year 2002 an order for making 500550 tree guards had been placed on him which he had sent to Burari Road, Delhi through transporters. Sushil Kumar (DW14) has also deposed that an order of making 1100 tree guards was placed on him. FIR No. 11/03 State Vs. Ishwar Singh & Ors. 10/33 Jai Bhagwan (DW15) deposed that he ferried about 1000 tree guards in his tempo from Nangli to Burari on the instructions of Nitin Gupta, Contractor. Jaivinder Choudhary (DW16), Supervisor, MCD deposed that in the year 200102 he was deputed to look after 400 trees planted on both sides of the roads from Fire Station Jahangirpuri to Shah Alam Baandh and he used to water them with the help of a water tank.
8. In this background, Sh. B. S. Kain, Ld. Addl. PP representing the State argued that the case of the prosecution has been proved beyond reasonable doubt under Section 13 (i) (d) of the Prevention of Corruption Act, 1988 against accused Ishwar Singh and accused Ajaz Ahmed that both public servants entered into a criminal conspiracy with their coaccused Surinder Bhanot, Proprietor of M/s United Enterprises, Nitin Gupta, Proprietor of M/s Vishakha Gupta, Satinder Panwar, Proprietor of M/s Jai Traders and Ankur Gupta, Proprietor of M/s A. G. Construction to obtain wrongful gain by preparing forged report regarding digging of pits, tree plantation and fixing of tree guards on the road sides in Civil Lines Zone, Ward No. 104 & 106 and that the prosecution has been able to prove that pursuant to the criminal conspiracy both accused Ishwar Singh and Ajaz Ahmed certified doing work of tree plantation, digging of pits FIR No. 11/03 State Vs. Ishwar Singh & Ors. 11/33 and fixing of tree guards which was awarded to their coaccused and then both of them with other coaccused persons obtained wrongful gain and caused wrongful loss to MCD to the tune of Rs.4050 Lacs by cheating the MCD and preparing false report by using the same as genuine knowing and having reasons to believe the same to be forged and committed offences punishable under Sections 420/468/471 & 120B IPC and further proved that both accused Ishwar Singh and Ajaz Ahmed by corrupt or illegal means obtained pecuniary advantage and committed an offence punishable under Section 13 (2) defined in Section 13 (i) (d) of the Prevention of Corruption Act, 1988.
9. Accused Ishwar Singh, Ajaz Ahmed, Surinder Bhanot and Satinder Panwar were represented by Sh. Ashok Soni, Advocate and accused Nitin Gupta and Ankur Gupta were represented by Sh. Harish Khanna, Advocate who argued that the whole case of the prosecution is that trees were not planted nor tree guards were affixed at the identified sites and bogus bills were raised by the contractors who got the payments released in collusion with accused Ishwar Singh & Ajaz Ahmed, officials of the MCD but the truth is that trees were planted, tree guards were fixed and payment released to the contractors on genuine bills. It is further argued that the FIR No. 11/03 State Vs. Ishwar Singh & Ors. 12/33 widening of the roads where plantation was done, widening of roads was carried out and therefore the trees and tree guards had been uprooted, some tree guards were stolen and some were deposited in the stores.
It is argued that a video cassette relied upon by the prosecution is not reliable as:
VIDEOGRAPHY
(a) That the inspection of the sites in question were carried out on 29.01.2003 whereas the FIR was registered on 04.03.2003 and the delay in registration of the FIR is unexplained.
(b) That FIR does not talk about videography.
(c) That Inspection memo Ex.PW1/A does not talk about videography.
(d) That the name of the videographer is not mentioned in the FIR nor in the inspection memo Ex.PW1/A.
(e) That as per FIR the sites were photographed but no photographs have been placed on record nor proved.
(f) That the videographer does not say that he took photographs.
(g) That the video cassette Ex.P1 does not mention the place which has been videographed.
(h) That the memo Ex.PW1/A does not bear the signatures of FIR No. 11/03 State Vs. Ishwar Singh & Ors. 13/33 PW21 Manoj who prepared the video cassette.
(i) That PW21 deposed that he videographed the area of Jahangirpuri & Pooth Kalan which are not relevant sites.
(j) That as per the case of the prosecution, the video cassette was seized from the videographer PW21 on 29.01.2003 and the same was not sealed.
(k) That the statement of PW21 was recorded after 8 months i.e. on 22.09.2003 and no explanation for the delay has come forth.
(l) That no bill, receipt of payments towards the preparation of the video CD Ex.P1 has been proved.
(m)That according to PW2 inspection of sites was done in the vehicle arranged by the Anti Corruption Branch whereas according to PW16 the inspection was carried out in a vehicle arranged by the MCD.
(n) That according to PW16 the inspection of the sites was started from Outer Ring Road Burari Chowk and Alipur were whereas according to PW7 the inspection was started from Jahangirpuri area.
(o) That according to PW16 inspection report was prepared at Burari Chowk whereas according to PW7 the inspection report was prepared in his office.
FIR No. 11/03 State Vs. Ishwar Singh & Ors. 14/33 WIDENING OF ROADS It is further argued that the prosecution got examined I. M. Arora (PW19), Superintendent Engineer to prove that the roads were not widened and in fact the trees and tree guards were not uprooted due to widening of roads but the trees were never planted and tree guards were not fixed. Ld. Defence Counsel has argued that in order to prove these facts the prosecution relied upon Ex.PW19/A which has not been proved by the prosecution as PW19 deposed that he only forwarded the letter Ex.PW19/A to Dy. Director Horticulture, Delhi in a routine manner for necessary action.
CIRCULAR DATED 26.08.1993 Ld. Defence Counsel further argued that vide circular No. PA/93/1194 dated 26.08.1993 issued by the Director Horticulture, MCD, it was the responsibility of the incoming SO (H) to take charge from the outgoing SO (H) and therefore SO (H) Surinder Singh was required to physically verify the existence of tree guards and plantations and take charge from SO (H) Ajaz Ahmed but SO (H) Surinder Singh took up a plea that he did not take charge of the sites in question. It is argued that SO (H) Surinder Singh (PW5) deposed that even though he had heard that the work had not been executed he did not lodge any complaint or FIR and rather passed the bill and FIR No. 11/03 State Vs. Ishwar Singh & Ors. 15/33 released the payment to the contractor vide PW2/D15. It is argued that the duty of the contractor is over as and when the tree guards are fixed. It is also argued that there has been delay in recording the statement of the witnesses and therefore an adverse inference be drawn against the prosecution. It is finally argued that Dharamveer Singh (PW2) & SO (H) Surinder Singh (PW5) have been convicted under the POC Act by the Court of Sh. P. K. Saxena, Special Judge, Delhi.
10. Returning to the evidence on record, Satyapal Singh (PW1) joined the raiding party headed by Inspector Ranbir Singh during which 12 sites of Horticulture Department, Civil Lines Zone were inspected (i) Khadipur Village to Ibrahim Pur; (ii) Nangli Village to Kadipur Village; (iii) Road side of Indra Vikas Colony;
(iv) Mangal Bazar Chowk to end of H Block Jahangirpuri; (v) Fire Station to Slum Bandh Jahangirpuri; (vi) Mukhmail Pur Village to Hiranki Village; (vii) Burari Village to Burari Chowk PhaseII;
(viii) Burari Village to Alipur Chowk PhaseII; (ix) Burari Village to Burari Chowk PhaseI; (x) Burari Village to Sant Nagar PhaseI;
(xi) Sant Nagar PhaseI to Outer Ring Road PhaseI and xii) Sant Nagar to Outer Ring Road PhaseII observed that no pit had been dug FIR No. 11/03 State Vs. Ishwar Singh & Ors. 16/33 nor any plantation or tree guard was found at the 9 following sites:
(i) Khadipur Village to Ibrahim Pur; (ii) Nangli Village to Kadipur Village; (iii) Road side of Indra Vikas Colony; (iv) Mangal Bazar Chowk to end of H Block Jahangirpuri; (v) Fire Station to Slum Bandh Jahangirpuri; (vi) Mukhmail Pur Village to Hiranki Village; (vii) Burari Village to Burari Chowk PhaseII; (viii) Burari Village to Alipur Chowk PhaseII; (ix) Burari Village to Burari Chowk PhaseI;
According to Satya Pal Singh (PW1), 147 trees with tree guards were found at site at serial number 10 i.e. Burari Village to Sant Nagar PhaseI and 56 trees with tree guards were found at the site mentioned at serial number 11 i.e. Sant Nagar PhaseI to Outer Ring Road PhaseI and 48 trees with tree guards were found in the site mentioned at serial number 12 i.e. Sant Nagar to Outer Ring Road PhaseII. PW1 deposed that the sites were videographed and the Inspection memo dated 29.01.2003 Ex.PW1/A was prepared and the video cassette was seized vide memo Ex.PW1/B. PW1 has further deposed that on 14.08.2003 Inspection memo Ex.PW1/C was prepared in the area near Nirankari Colony from Senior Secondary FIR No. 11/03 State Vs. Ishwar Singh & Ors. 17/33 School to Gupal Pur Jhuggi East Mukherjee Nagar where 204 trees along with tree guards were found planted. Dharamveer Singh (PW2) deposed that he was working as Deputy Director, Horticulture in Rohini Zone and was looking after the additional charge of Civil Lines Zone and took over the charge from Ishwar Singh. PW2 deposed that he participated in the raid conducted by the Anti Corruption Branch and inspected the sites which were videographed and it was found that except 23 sites no pit was dug nor any tree or tree guard had been planted or fixed. He further deposed that on 10.03.2003 the files Ex.PW2/D1 to D12 and agreement registers Ex.PW2/D13 & 14 were seized vide Ex.PW2/A. PW2 while explaining the procedure deposed that it is the responsibility of the Section Officer to verify and check the execution of the work at site and thereafter an estimate is prepared by the Section Officer which is duly signed by the Asstt. Director and Deputy Director on which sanction is obtained. The Director, Horticulture assigns the estimate to the technical cell of the Head Quarter which is under his control and supervision. The technical cell checks the estimate and the same is sanctioned by the Director, Horticulture on which the Deputy Director Horticulture invites tenders through newspaper in case the FIR No. 11/03 State Vs. Ishwar Singh & Ors. 18/33 estimate is above 2 Lacs. A comparative statement of the tenders received is forwarded to the accounts branch for financial concurrence and after the approval of rate and agency by the Director Horticulture, agreement is entered with the contractor and a work order is issued to the contractor fixing the time limit for completion of work. Thereafter the Section Officer carries out inspection and the contractor submits a report of the work executed and the Section Officer is required to submit a report to Asstt. Director who is required to check 50% of sites to ensure that the work has been executed who in turn submits a report to the Deputy Director and the Deputy Director will check 10% of the sites. After the work has been physically checked by the officials, the contractor is required to produce the actual bill with actual measurements and same is sent to the Deputy Director, Horticulture for checking and verification and only then the bill is sent to accounts for release of payment. Arun Kumar (PW3) deposed that the record pertaining to digging of pits and fixing of tree guards in ward No. 104 & 106 was seized vide siezure memo Ex.PW2/A. Yashpal Sharma (PW4) proved the inspection report Ex.PW1/A and Ex.PW1/C. Surinder Singh (PW5) also participated in the inspection and the inspection reports FIR No. 11/03 State Vs. Ishwar Singh & Ors. 19/33 Ex.PW1/A & Ex.PW1/C. Ram Phal Tyagi (PW6), Rishi Raj (PW7), Mahinder Singh (PW8), Prem Parkash (PW12) and Anand Pal (PW13) turned hostile. Parimal Rai (PW9) accorded the sanction under Section 19 of the Prevention of Corruption Act, 1988 against accused Ajaz Ahmed, SO, Horticulture. SI Ram Kumar (PW10) deposed that on 04.03.2003 on receipt of the rukka from Inspector Ranbir Singh FIR was registered, vide Ex.PW10/A. Prem Chand Tomar (PW11) posted as Director, Horticulture, MCDII deposed on the lines of PW2 regarding the procedure to be followed by the concerned officials of the MCD in cases of tree plantation and also deposed that at the relevant time accused Ishwar Singh was working as the Deputy Director Horticulture and also looking after the work of Asstt. Director Horticulture. Anil Kumar (PW14), Asstt. Chief Accountant joined the investigation. He deposed that he found that administrative approval was given by the Dy. Commissioner, Civil Lines Zone and approval of rate and agency was also given by them in all 12 files Ex.PW2/D1 to D12. As per record the bills forwarded by the Section Officer were compared with the entries in the measurement book and were verified by the Section Officer who at that time was accused Ajaz Ahmed Khan and the FIR No. 11/03 State Vs. Ishwar Singh & Ors. 20/33 payment was recommended by accused Ishwar Singh, Dy. Director, Horticulture on which he passed the bills. Sant Ram (PW15) deposed that he had made a statement Ex.PW15/D1 that there was no plantation of trees from Burari Chowk to Burari Road. Inspector Ranbir Singh (PW16) deposed that on the basis of a secret information on 13.01.2003 huge amount of government money has been misappropriated on the pretext of plantation in the area of Civil Lines Zone by the officials of Horticulture Department he conducted a raid and inspected sites from Burari Chowk to Alipur and some sites in Jahangirpuri area which sites were videographed through a private videographer and the video tape was seized vide memo Ex.PW1/B. He deposed that an inspection report Ex.PW1/A after physical inspection was prepared and on the basis of the enquiry, FIR Ex.PW10/A was registered. The CD has been proved as P1 and the VCD is also Ex.P1. A. K. Chauhan (PW17) proved that at the relevant time files Ex.PW2/D1 to D12 were placed before him for sanction by the Director Horticulture and the proposal in the file Ex.PW2/D1 for site from Mangal Bazar Chowk to HBlock Jahangirpuri for supplying of tree guards was prepared by accused Ajaz Ahmed Khan and was marked to Dy. Director Horticulture Ishwar Singh and further marked to Director Horticulture who in turn FIR No. 11/03 State Vs. Ishwar Singh & Ors. 21/33 marked the file to him and he sanctioned an amount of Rs.98,890/. PW17 further deposed that in all files except Ex.PW2/D4 the proposal was prepared by accused Ajaz Ahmed Khan and was forwarded by accused Ishwar Singh. I. M. Arora (PW19) deposed that he was posted as Superintendent Engineer in Civil Lines Zone, MCD and forwarded the letter Ex.PW19/A to the Deputy Director Horticulture which was prepared by the Executive Engineer. Inspector Vipin Kumar (PW20) deposed that after joining the investigation he took possession of 11 files, measurement books, and two agreement registers from the MCD office vide memo Ex.PW2/A & Ex.PW2/B. Manoj Nagpal (PW21) deposed that he videographed various areas of Delhi including the area of Jahangirpuri and prepared a video cassette Ex.PW1/B.
11. I have carefully gone through the record, judgments cited by the Ld. Defence Counsel and considered the rival contentions. It is true that the foundational facts are required to be established by the prosecution and the burden of proof always lies on the prosecution except in exceptional circumstances as held in Babu Vs. State of Kerala 2010 (3) Law Reports on Crimes 320 (SC):
FIR No. 11/03 State Vs. Ishwar Singh & Ors. 22/33 "Every accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right. However, subject to statutory exceptions, the said principles forms the basis of criminal jurisprudence. For this purpose, the nature of the offence, its seriousness and gravity thereof has to be taken into consideration.
The Courts must be on guard to see that merely on the application of the presumption, the same may not lead to any injustice or mistaken conviction. Statues like Negotiable Instruments Act, 1981; Prevention of Corruption Act, 1988, and Terrorist and Disruptive Activities (Prevention) Act, 1987, provide for presumption of guilt if the circumstances provided in those Statues are found to be fulfilled and shift the burden of proof of innocence on the accused. However, such a presumption can also be raised only when certain foundational facts are established by the prosecution. There may be difficulty in proving a negative fact. However, in cases where the statute does not provide for the burden of proof on the accused, it always lies on the prosecution. It is only in exceptional circumstances, such as those of the statues as referred to herein above, that burden on proof is on FIR No. 11/03 State Vs. Ishwar Singh & Ors. 23/33 the accused. The statutory provision even for a presumption of guilt of the accused in a particular statute must meet the tests of reasonableness and liberty enshrined in Article 14 & 21 of the Constitution."
12. It is also true that the presumption that defence witnesses always lie and prosecution witnesses always tell the truth is neither justified nor proper as held in Kaur Sain Vs. State of Punjab [1974 (3) Supreme Court Cases 649].
13. Keeping in mind the settled law, the prosecution has been able to prove the following:
a) That pits were to be dug, trees planted and tree guards affixed at 12 sites of the MCD detailed in para 3 above.
b) That the work of carrying out plantations and fixing of tree guards were awarded to accused Surinder Bhanot, Proprietor of M/s United Enterprises, accused Nitin Gupta, Proprietor of M/s Vishakha Gupta, accused Satinder Panwar, Proprietor of M/s Jai Traders and accused Ankur Gupta, Proprietor of M/s A. G. Construction.
c) That at the relevant time accused Ajaz Ahmed was the Section Officer Horticulture and accused Ishwar Singh was the Deputy FIR No. 11/03 State Vs. Ishwar Singh & Ors. 24/33 Director Horticulture.
d) That a secret information was received that the work has not been executed by the concerned contractors and the bills had been passed and payments released to them.
e) That physical checking and inspection of plantation work was carried out on 29.01.2003 in the presence of Dharamveer Singh DD (H) Civil Lines Zone, Yashpal Sharma SO (H) Shahdara South Zone, Satya Pal JE, ACB, Surender Singh SO (H) Civil Lines Zone, Ranvir Singh, Inspector ACB and Rishi Raj, Gardener, Civil Lines Zone and a report was prepared vide Ex.PW1/A.
f) That the report Ex.PW1/A concluded that there were no plantations in sites at serial number 1 to 9 and 147, 56, 48 tree guards had been affixed in sites at serial number 10 to 12.
g) The inspection report Ex.PW1/A finds support from a video cassette Ex.P1.
h) That vide Ex.PW19/A no widening was done at sites No.1,2,3,6,7,9,10,11 though widening was done at sites No. 4, 5 & 8 but the tree guards did not come in the alignment of the widening portion of the road.
i) That the step wise procedure to be followed for carrying out the FIR No. 11/03 State Vs. Ishwar Singh & Ors. 25/33 work of plantation of trees, tree guards has been detailed by PW2 Dharamveer Singh & PW11 Prem Chand Tomar.
j) That the perusal of files Ex.PW2/D1 to D12 shows that the contract was awarded to the contractors who had quoted lowest rates and the concurrence of approval of rate and agency was taken. The record also shows that after both the parties entered into agreements supply orders were issued to the concerned contractor but there is nothing on record to suggest as to how and in which manner the work was executed i.e. the day when the work of plantation was started and completed, the number of pits dug and trees planted on each day and the number of tree guards fixed date wise.
k) That there is nothing on record to suggest that the work done was verified by Ajaz Ahmed, SO (H) and thereafter the same was verified / checked by Ishwar Singh, the Asstt. Director (H) who was also working as Deputy Director (H) and they satisfied themselves that the work had been completed as per the terms & conditions as detailed in the agreement.
14. The main arguments addressed by the Ld. Defence Counsel is that the prosecution has relied upon a video cassette which is a fabricated piece of evidence. This argument does not hold FIR No. 11/03 State Vs. Ishwar Singh & Ors. 26/33 ground. It is true that in the rukka sent to the Police Station for registration of the case, it has been mentioned that the sites were photographed though actually the sites were videographed. Manoj Kumar (PW21) categorically deposed that he videographed the sites on 29.01.2003 and Satya Pal Singh (PW1), Dharamveer Singh (PW2) and Yashpal Sharma (PW4) have also supported the case of the prosecution on this fact. It is also true that according to Manoj Kumar (PW21) the video cassette was collected from him after 23 months but there is nothing to suggest that the same has been tampered with.
15. Video cassette was sent to the FSL for preparing a video CD and the same was played in Court wherein it has been observed that the VCD shows that most of the area there are houses on both side of road or there are shops on both side of the road. There is no place even for pedestrian what to talk for fixing of trees. There is not even a single tree or tree guard seen in the VCD played in the court for about 20 minutes. The VCD has not been played continuously but intermittently.
16. Even if it is assumed for the sake of arguments that the video cassette cannot be relied upon the inspection report Ex.PW1/A FIR No. 11/03 State Vs. Ishwar Singh & Ors. 27/33 proves that no plantation was done at 9 sites except 3 places as detailed in the report Ex.PW19/A prepared by the Executive Engineer (XII) & Executive Engineer (XVI).
17. It is also true that there is no presumption that defence witnesses always lie and the prosecution witnesses always tell the truth and the defence witnesses produced by the accused persons are to be treated at par with the prosecution witnesses. Tejveer Singh (DW2) deposed that he had noticed trees and tree guards planted on both sides of the road from Ring Road to Ali Pur Baandh and also saw that trees and tree guards had been uprooted due to widening of roads. Rajender (DW5) deposed that he was on duty on Burari Road for watering the trees and when the road was widened the uprooted tree guards were deposited in store at I.D. Hospital, Kingsway Camp. Sunil Tyagi (DW6) deposed that trees were planted and tree guards fixed on the road from Nangli to Kadipur and Kadipur to Ibrahimpur and during his tenure 34 trees were stolen. The defence witnesses have failed to prove that when the tree guards were deposited in the MCD store some corresponding record was prepared. No explanation has come forth nor it is understandable that the defence witnesses came to the Court to depose that it was within their knowledge that tree guards had been stolen but failed to lodge a complaint to any FIR No. 11/03 State Vs. Ishwar Singh & Ors. 28/33 authority about the government property being stolen. Gaffar Ali (DW7) deposed that accused Ajaz Ahmed, Section Officer used to check the sites but there is nothing on record to suggest that the sites were checked and verified by accused Ajaz Ahmed. Veer Singh (DW8) deposed that the widening was done on the road from Burari to Palla Bakhtawarpur in the year 2003 on the directions of the then L.G., Delhi but no such order has been placed on record. Rakesh Kumar (DW11) deposed that he had carried 350400 tree guards in his tempo and dropped them at Burari Road, Delhi, no record in support has been produced. Manish Dutta (DW13) deposed that in the year 2002 an order for making 500550 tree guards had been placed on him which he had sent to Burari Road, Delhi through transporters and Sushil Kumar (DW14) has also deposed that an order of making 1100 tree guards was placed on him. Both the witnesses did not place the copy of the order vide which the order was placed. Jaivinder Choudhary (DW16) deposed that in the year 200102 he was deputed to look after 400 trees planted on both sides of the roads from Fire Station Jahangirpuri to Shah Alam Baandh and he used to water them with the help of a water tank but there is nothing on record to suggest that he was assigned that work. During defence, the accused failed to bring even a single document in support of their version. It is difficult FIR No. 11/03 State Vs. Ishwar Singh & Ors. 29/33 to swallow that all instructions and orders were placed orally in a government department to the concerned for execution of the work and that no record was maintained or retained by the Horticulture Department.
18. In my considered opinion, it can be inferred from the record & surrounding circumstances that the accused persons had a common concerted plan to carryout the unlawful design to obtain wrongful gain by preparing false report and use them as genuine regarding digging of pits, tree plantation and fixing of tree guards on the roadside in Civil Lines Zone, Ward No. 104 & 106 and that accused Ishwar Singh and Ajaz Ahmed, public servants obtained pecuniary advantage by corrupt means.
Conclusion
19. The prosecution has successfully discharged the burden of proof on them and proved that accused Ishwar Singh, Dy. Director Horticulture and Ajaz Ahmed, SO Horticulture and Contractors Surinder Bhanot, Nitin Gupta, Satinder Panwar & Ankur Gupta entered into a criminal conspiracy to obtain wrongful gain by preparing a forged report and using the same as genuine that the pits had been dug in the areas of i) Kadipur Village to Ibrahim Pur; FIR No. 11/03 State Vs. Ishwar Singh & Ors. 30/33
ii) Nangli Village to Kadipur Village; iii) Road side of Indra Vikas Colony; iv) Mangal Bazar Chowk to end of H Block Jahangirpuri;
v) Fire Station to slum bandh Jahangirpuri; vi) Mukhmail pur village to Hiranki Village; vii) Burari Village to Burari Chowk phaseII; viii) Burari Village to Alipur Chowk phaseII; ix) Burari Village to Burari Chowk phaseI and partial work was done in respect of areas mentioned at serial number 1012 that are x) Burari Village to Sant Nagar PhaseI; xi) Sant Nagar PhaseI to Outer Ring Road PhaseI and xii) Sant Nagar to Outer Ring Road PhaseII and the accused persons caused wrongful loss to the MCD to the tune of Rs.40 - 50 Lacs and that accused Ishwar Singh and Ajaz Ahmed, public servants obtained pecuniary advantage by corrupt means.
RESULT
20. As a result of the above, accused Ishwar Singh the Assistant Director & the then Deputy Director, MCD, Civil Lines, Delhi and accused Ajaz Ahmed, Section Officer Horticulture Department, MCD, Civil Lines, Delhi both being public servants FIR No. 11/03 State Vs. Ishwar Singh & Ors. 31/33 entered into criminal conspiracy with coaccused Surinder Bhanot, Proprietor of M/s United Enterprises, accused Nitin Gupta, Proprietor of M/s Vishakha Gupta, accused Satinder Panwar, Proprietor of M/s Jai Traders and accused Ankur Gupta, Proprietor of M/s A. G. Construction to obtain wrongful gain by preparing forged report regarding digging of pits, tree plantation and fixing of tree guards on the road sides in Civil Lines Zone, Ward No. 104 & 106 and therefore all accused persons are convicted for committing an offence punishable under Section 120B IPC.
All the accused persons are also convicted under Sections 420/468/471 of the IPC read with Section 120B IPC as in pursuance of the criminal conspiracy accused Ishwar Singh, the then Deputy Director, MCD and accused Ajaz Ahmed, the then Section Officer, MCD being public servants certified doing of work of tree plantation, digging of pits and fixing of tree guards, the contract of which was awarded to other accused Surinder Bhanot, Nitin Gupta, Satinder Panwar and Ankur Gupta whereas in fact the physical checking report MarkA from serial number 112 no work had been done and from serial number in 19 partial work was done and all the accused persons obtained wrongful gain for themselves and caused FIR No. 11/03 State Vs. Ishwar Singh & Ors. 32/33 wrongful loss to MCD to the tune of Rs.4050 Lacs by cheating the MCD and by preparing false report by using the same as genuine and having reasons to believe the same to be forged.
Accused Ishwar Singh and Ajaz Ahmad are also convicted for committing an offence punishable under Section 13 (2) as defined under Section 13 (i) (d) of the Prevention of Corruption Act, 1988 for having obtained pecuniary advantage by corrupt or illegal means being public servants. Ordered accordingly. Let they be heard on the point of sentence.
Announced in the SANGITA DHINGRA SEHGAL
Open Court on 16.05.2012 SPL. JUDGE, ACB, DELHI
FIR No. 11/03 State Vs. Ishwar Singh & Ors. 33/33