Indian Kanoon - Search engine for Indian Law

Delhi District Court

Cbi vs . Pradeep Kumar & Ors. on 23 May, 2016

        IN THE COURT OF MS. ANJU BAJAJ CHANDNA, 
              SPECIAL JUDGE (PC ACT) (CBI)­6, 
            PATIALA HOUSE COURT, NEW DELHI


CC No.  06/15
RC­DAI­2012­A­0023, CBI, ACB, New Delhi (Charge sheet No. 2)
u/s 120B IPC r/w Sec. 420,  IPC r/w Sec. 468, 477A IPC & Sec. 
13 (2) r/w Sec. 13 (1)(d) of PC Act & Substantive offences thereof. 
CBI vs. Pradeep Kumar & Ors.
Unique ID No.: 0240R114672015

                      Central Bureau of Investigation 
                                                   vs 
                    (1) Pradeep Kumar (A­1) S/o Sh. Charan Singh,
                    R/o H. No. 330, Church Gali,
                    Fatehpur Beri, New Delhi­110074.

               (2) Madho Singh (A­2) S/o Sh. Chandan Singh Tanwar
               R/o Presently: Khasra No. 141, Chandan Complex, 
               Fatehpur Beri, New Delhi­74 & 
               195/2, Fatehpur Beri, New Delhi
               Permanent: H.No. 74, Fatehpur Beri, New Delhi­110074

               (3) Chandan Singh Tanwar (A­3)
               S/o Late Sh. Prahlad Singh
               R/o Presently: Khasra No. 141, Chandan Complex, 
               Fatehpur Beri, New Delhi­74 
               Permanent: H.No. 74, Fatehpur Beri, New Delhi­110074



RC­DAI­2012­A­0023   CC No.  06/15   CBI vs. Pradeep Kumar & Ors.   Page 1 of 60
                Date of FIR                             :       30/06/2015.
               Date of filing of charge­sheet          :       01/07/2015.
               Date of cognizance                      :       07/07/2015
               Date of framing of charge               :       08/10/2015
               Arguments concluded on                  :       10/05/2016.
               Date of Judgment                        :       23/05/2016.


Appearances
For prosecution           :    Sh P.K Dogra, Ld. Senior Public Prosecutor for CBI.
For accused persons       :    Mohd. Qamar Ali, Ld. Counsel for A­1.
                               Sh. Vinod Sharma, Ld. Counsel for A­2 and A­3.

                                   JUDGMENT

1. Accused Pradeep Kumar (A­1), Junior Engineer (JE), Delhi Jal Board (DJB), accused Madho Singh (A­2) Contractor and accused Chandan Singh (authorized nominee and lawful attorney of accused Madho Singh) (A­3) have been sent for trial vide present charge­sheet submitted by CBI as RC DAI 2012­A­0023 dated 29.06.2012 for the offences punishable under section 120B r/w Sec. 420, 471 IPC r/w Sec. 468 and 477A of IPC and Section 13 (2) r/w Sec. 13 (1) (d) of The Prevention of Corruption Act, 1988 and also substantive offences thereof.

2. The present case has been registered on the basis of RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 2 of 60 preliminary enquiry by CBI, ACB, New Delhi. The matter pertains to awarding of contract of installation of tubewells for drinking water at different places within South­I Division by Delhi Jal Board (in short DJB) and mainly the allegations have been that the contractors without installation or incomplete installation of tubewells claimed bills of the entire work on the basis of false and forged purchase bills, which were duly certified by the officials of DJB. The contractors were supposed to use slotted screen of Johnson make in the tubewells but instead they used sub­standard screens (comparatively cheaper) by submitting forged bills from the vendor M/s Bharti Waters Private Limited (sole authorized distributor of Johnson screens) and got the payments released causing pecuniary advantage to themselves and corresponding loss to the government.

3. The subject matter of present charge­sheet is contract agreement (CA) no. 128/2008­09 which was awarded to M/s M.S. Borewell vide work order no. 292 dated 20/09/2008. The tender formalities were conducted in the office of Executive Engineer, South­ I Division, DJB and after observing the requisite formalities, the contract was awarded and contract agreement was executed on 20/09/2008 between DJB through its Chief Executive Officer and Sh.

RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 3 of 60

Chandan Singh (authorized nominee and lawful attorney of Sh. Madho Singh), the contractor, for re­boring of 03 tubewells at A, B and C Block, Chhattarpur Extension. During investigation, tubewells covered under CA No. 128 were inspected by the expert from National Geophysical Research Institute (in short NGRI) and the report is conclusive about non use of Johnson pipe at all three bore­wells. As per the contract, 60 meters Johnson pipe each was required to be installed in the borewell covered under the contract. However, as per the observation of expert, Johnson pipes were not found so installed.

4. It is further the case that accused JE Pradeep Kumar (A­1) has been responsible for looking after the work of these borewells under the supervision of Assistant Engineer (AE) Sh. A.P. Garg and Executive Engineer (EE) Sh. Anil Kumar. A­1 has been responsible for 100% test check and to make entries in the Measurement Book (MB), therefore, there is sufficient prosecutable evidence against him and also against contractor Madho Singh (A­2) of M/s MS Borewell and Chandan Singh (authorized nominee and lawful attorney of Sh. Madho Singh) (A­3). The Junior Engineer (JE) also remains present at the time of execution of work as Engineer Incharge, whereas the responsibility of AE is upto 50% and that of EE RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 4 of 60 is 10% only.

5. The false and forged invoices (photocopies) for the purchase of Johnson pipe have been submitted by the contractor bearing no. BW/15/2008­09 (75 meters), BW/16/2008­09 (75 meters) and BW/17/2008­09 (75 meters) on which signatures of Sh. A.P. Garg AE are available. The invoices show that 300 meters Johnson pipes have been purchased by the contractor but according to the record of M/s Bharti Waters Private Limited, the said invoices except invoice no. BW/181/2007­08 (also submitted along with above invoics) were not issued in favour of M/s M.S. Borewell. The genuine invoices were produced bearing the same number but issued in favour of different persons.

6. In view of above facts, it has been concluded that accused Pradeep Kumar JE (A­1) entered into criminal conspiracy with accused Madho Singh Contractor (A­2) and Chandan Singh (authorized nominee and lawful attorney of Sh. Madho Singh) (A­3) with the object of facilitating A­2 and A­3 to have pecuniary advantage by cheating DJB. A­1 also made dishonest and false entries in the official records i.e. measurement book, completion report, final RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 5 of 60 bill, etc showing usage of Johnson pipe and accordingly official entries have been falsified. Wrongful loss to the tune of Rs. 4,26,429/­ approximately has resulted to the government. The sanction with respect to A­1 being public servant has been granted by the sanctioning authority.

7. After submission of the charge­sheet in the court on 01/07/2015, the court took cognizance against the accused persons vide order dated 07/07/2015. Charges were framed on 08/10/2015 against accused JE Pradeep Kumar (A­1) for the offences u/s 120B r/w 420, 471, 477A of IPC and Section 13 (2) r/w 13 (1) (d) of The Prevention of Corruption Act, 1988 and substantive offences u/s 420 IPC, 477A IPC, 13(2) of The Prevention of Corruption Act, against accused Madho Singh (A­2) for the offences u/s 120B r/w 420, 471, 477A of IPC and Section 13 (2) r/w 13 (1) (d) of The Prevention of Corruption Act, 1988 and substantive offences u/s 420 IPC and against Chandan Singh (A­3) for the offences u/s 120B r/w 420, 471, 477A of IPC and Section 13 (2) r/w 13 (1) (d) of The Prevention of Corruption Act, 1988 and substantive offences u/s 420 IPC and 471 IPC. All accused pleaded not guilty and claimed trial.

RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 6 of 60

8. After framing of the charges, admission / denial of documents was done u/s 294 Cr. PC and corresponding statements have been recorded on 08/10/2015.

9. In evidence, prosecution has examined 11 witnesses. The substance of the prosecution evidence is as follows:­

(i) PW 1 Sh. Kamal Kumar Aggarwal is the Managing Director of M/s Bharti Waters Private Limited and according to him his company is the authorized sole distributor in Delhi of Johnson Screen Pipes since year 2004. He deposed that invoices are issued against the purchase of Johnson Screen Pipes in sequence bearing unique number and cannot be repeated during the particular year. The witness on seeing photocopy of invoices / bills No. BW/15/2008­09 Ex. PW 1/A, BW/16/2008­09 Ex. PW 1/B and BW/17/2008­09 Ex. PW 1/C testified that all these bills have not been issued from his company and they are not the genuine bills. The genuine bills (original) bearing the same numbers were seen by the witness and confirmed and proved as Ex. PW 1/E (colly). The witness also handed over the statement of account Ex. PW 1/H maintained by Sumer Chand and Sons with respect to dealings with Bharti Waters Private RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 7 of 60 Limited. The witness confirmed that he handed over these documents to CBI during investigation. The witness has also identified the genuine invoices seized from Sumer Chand & Sons as Ex. PW 1/G (colly). During cross­examination on behalf of A­1, the witness admitted that prior to the company M/s Bharti Waters Private Limited there was a partnership firm under the name of M/s Bharti Waters. The left over stationary of partnership firm might have been used by company for sometime but the necessary changes must have been made since company issued the invoices after coming into existence. Payments are accepted in cash but generally it is through cheques or drafts. The invoices / bills against purchases are generated by the employee sitting on the counter but PW 1 could not recall the name of the employee who was doing this job in the year 2007­08 and 2008­09 nor he could identify the signatures on bills Ex. PW 1/E (colly) and Ex. PW 1/G (colly). The witness denied the suggestion that the penalty for sales tax evasion have been imposed several times on M/s Bharti Waters Private Limited. During cross­examination on behalf of A­2 and A­3, the witness deposed that M/s Bharti Waters Private Limited has two directors, PW 1 himself and his brother Sh. Sanjay Kumar Aggarwal. PW 1 is also partner in Sumer Chand and Sons and brochure of the same is Ex. PW 1/DA which mentions Sumer Chand RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 8 of 60 and Sons as Distributor Johnson Screen India Limited. The witness further stated that Sumer Chand & Sons is the parent firm and have been existing since 35 years, whereas M/s Bharti Waters Private Limited company was launched in the year 2004. He admitted that prior to M/s Bharti Waters Private Limited, Sumer Chand and Sons was the distributor of Jonson Screen Pipes but denied the suggestion that even after establishment of the company, firm Sumer Chand and Sons continued as distributor of Johnson Screen Pipe. The witness further testified that firm Sumer Chand and Sons is involved in trading of non woven cloth and was never involved in installation of water pumps at any point of time. He admitted that phone numbers and FAX numbers mentioned on the brochure of Sumer Chand and Sons as well as on the genuine bills Ex PW1/E (colly) issued by M/s Bharti Waters Private Limited are the same. PW1 denied the suggestion that the company was established with a view to convert black money into white money and to evade government taxes. The manufacturing company of Johnson Screen pipes is a Multi National Company namely Bill Finger India Private Limited. There was an agreement with respect of sole distributorship but the witness could not recollect the date of the agreement. PW1 has no knowledge about the manufacturing company having changed hands nor he could recollect RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 9 of 60 the number of times the agreement was executed with respect to sole distributorship. The witness could not bring the agreement about the sole distributorship. PW1 could not recollect as to whether his statement or statement of his employee was recorded by CBI. However, he was called several times to CBI office. He denied that no document was handed over by him to CBI. PW1 further testified that they do maintain Ledger, Cash Book, Sale Register, Purchase Register and Stock Register. The ledger contains accounts of the purchasers. The company also files sales tax returns. The invoices are issued through the computer and in the event of computer not working hand written invoice may be issued but rarely. The unique number of invoice could not be repeated and if it is done, the computer will not accept the same. The computer was not seized by the CBI. PW1 denied the suggestion that the bills with the same unique number could be issued repeatedly. The witness could not recollect about any Resolution passed giving authority to him to hand over the documents to CBI. There have been two or three bank accounts of M/s Bharti Waters Private Limited but their account statements were not given to CBI. The witness admitted that company maintained the ledger account of M/s M.S. Borewell but could not tell without seeing the ledger as to whether payment of Rs. 1,79,496/­ was received through RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 10 of 60 demand draft dated 25/08/2005 from M/s M.S. Borewell against the purchase of Johnson Pipe 100 meters or that an amount of Rs. 2,60,304/­ was credited through the cheque of M/s M.S. Borewell dated 01/07/2006. The witness was asked to bring ledger account of M/s M.S Borewell and same was produced duly certified Ex PW1/DB (colly). The witness generated the computer print out of the ledger account. The witness did not bring the ledger account of the financial years 2004­05 and 2005­06. The witness denied the suggestion that during the financial years 2006­07 and 2007­08, M/s M.S. Bore­wells had purchased Johnson Screen Pipes against cash which have not been reflected in the ledger account or that bills of cash purchases were issued in favour of Sumer Chand and Sons to legalize cash payments. PW 1 stated that from Ex. PW 1/H it cannot be ascertained as to how much quantity and value of Johnson Screen Pipe was sold to Sumer Chand and Sons. PW1 denied the suggestion that Ex. PW 1/H has been furnished at the instance of CBI to suit their case or intentionally he has not brought ledger account of Sumer Chand and Sons from the year 2004.

(ii) PW 2 Dr. D.V. Reddy deposed about his qualification being M.Sc. (Geology) and M.Sc. (Tech.), Hydrogeology. He is Ph.D. RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 11 of 60 from National Geophysical Research Institute (NGRI), Hyderabad and has been working as Senior Principal Scientist. He is having 30 years experience in different Hydrogeology environs. The witness deposed about inspection dated 17/09/2013 conducted at Gali No. 8, Thomas Site, Chatterpur Pahari, New Delhi, at B Block, Birla Farm near Gurudwara Chatterpur Extension, New Delhi and Hajira Kabristan, Chatterpur Extension, New Delhi, whereby he inserted borehole camera and scanned the well. He has given his report detailing the procedure Ex PW2/A dated 06/02/2014. The inspection reports of borewells in question are Ex. PW 2/A­1, Ex. PW 2/A­2 and Ex. PW 2/A­3 along with certificate u/s 65 B Evidence Act Ex. PW 2/B (collectively). The witness also identified his signatures on site inspection memos Ex P­4 (colly), Ex P­5 (colly) and Ex P­6 (colly). The video recording of scanning done on palm top was then transferred to a CD which has been proved as Ex PW2/E. The CD has been played in the laptop in the court. The witness has been cross examined during which he deposed that he has been conducting inspection for the purposes of research for about last 5/6 years. He has not filed any document about his qualifications and expertise but given the details in his report. He conducted the inspection on 17/09/2013 for about half an hour on each site. The pumping assemblies were not RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 12 of 60 taken out in his presence. He signed the inspection memos on reading the same. He did not conduct any study with respect to the nature of strata of Delhi region. The witness admitted that corrosion, deposits and moss formation is faster in the metal pipes than in PVC pipes and if the water is salty, the deposits and moss formation would be faster. It is rare that in 2/3 years, moss formation or deposits appears in the metal pipe but it may be possible with salty water in 4/5 years. The Johnson Screen Pipes are made of metal with special alloy. He ascertained the nature of pipe through the bore­well camera and denied the suggestion that due to deposits and moss formation, it was not possible for him to ascertain the nature of pipe. The witness voluntarily stated that at the point where the water is flowing, the possibility of deposits is very less and nature of pipe can be clearly ascertained. The camera was working properly. The recording on the palm top was not replayed after the conclusion of inspection although recorded data was saved therein. There was also voice recording system and he has spoken about the level of depth seen through the camera. The witness admitted that he did not reveal about the absence of Johnson Screen Pipe at the spot. The video recording was done in MP4 format. The witness admitted that due to moss formation and deposits in the bore­well the visibility of the camera would be affected RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 13 of 60 and also due to turbidity of water. PW2 was provided strata charts relating to the bore­wells but they were given after the inspection was concluded but before preparation of the report. He denied the suggestion that the report has been prepared by him at the instance of CBI to suit their case. He denied the suggestion that the report has been prepared in a casual manner but admitted that he has not given descriptions of various pipes such as MS Slot and Johnson Pipe. He denied the suggestion that CD is doctored or report is false or that 50 meters of Johnson Screen Pipe was installed in the bore­well. He denied the suggestion that proper method was not used by him to ascertain the nature of pipe. According to the witness, there is no possibility that Johnson Screen Pipes can be detached if the welding is properly done and denied that Johnson Screen Pipe can be squeezed due to pressure. Whenever there is change in diameter of borewell, the pipes of different diameters will be overlapped not welded whereas in case of single diameter, pipes are joined through welding. In this case, the pipes were overlapped as per strata chart.

(iii) PW 3 Sh. Sanjay Gupta, posted as Joint Director (Vigilance) DJB deposed that he had forwarded the sanction for prosecution request with respect to accused JE Pradeep Kumar (A­1) RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 14 of 60 and has proved the forwarding letter dated 30/06/2015 as Mark P­1/A.

(iv) PW 4 Sh. Anil Kumar, has been the Executive Engineer, South­I division, DJB from March 2006 to 18/08/2009. The witness deposed about the extent of responsibility of JE for 100% test check and his functions including recording measurement book whereas AE/ZE is required to conduct 50% of test check and EE himself to conduct 10% of test check. The procedure given in CPWD Manual is also applicable to DJB. He deposed that JE will prepare the final bill, completion report in agreement with MB and contractor will submit purchase voucher and strata chart to the JE. The purchase vouchers were required to be checked / signed by JE or AE so also the strata chart and the documents required to be enclosed with the bill. At the time of submitting the final bill, contractor is also required to submit certificate of the person engaged by him for day to day supervision of the work at site. The completion report is prepared by JE and signed by ZE and is marked by EE to Draughtsman for checking. Completion report upto Rs. 10 lakhs and variation upto 10% is approved by EE. If completion cost is more than Rs. 10 lakhs and upto Rs. 25 lakhs, it is recommended by EE to Superintending Engineer (SE) for approval. The report is checked by circle head Draughtsman and Accountant and RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 15 of 60 thereafter, it is approved by SE. The witness identified CA No. 128/2008­09 Ex. P­1, final bill Ex P­2 (colly), completion report Ex P­ 2 (colly), test check report Ex P­2 (colly), MB Ex P­3 and site inspection memo Ex P­4, Ex P­5 and Ex P­6 (colly), dated 17/09/2013. During cross examination on behalf of A­1, witness deposed that bill of quantity (BOQ) is part of the contract agreement and therefore mandatory. PW4 admitted that account section is required to follow the instructions issued through circular and he is final authority to release the payment to the contractor on being satisfied with the work. The documents are scrutinized by accounts department and in case of any discrepancy the objections are raised but in the present case, no objections were raised with respect to the documents including the final bill and its annexures. The entries in the measurement book are done at the site during progress of the work and if any particular entry is signed by concerned AE and EE, it means that the particular work was executed in their presence. The witness admitted that after execution of the work, certificate is accorded in the MB itself and same is signed only when the concerned JE, EE and AE are satisfied about the execution of the work. The certificate about satisfaction of work is given in the MB itself and in the present case page nos. 87 and 94 of MB contains said certificate. The witness admitted that RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 16 of 60 change of sites were mentioned in the MB after approval of the competent authority and same were within his knowledge. The test check of item no. 8 was done by AE Sh. A.P. Garg and not with respect to item no. 11 on page 89 of MB. The strata chart is prepared on the basis of MB and is signed by JE, EE and AE which is Ex P­2 (colly). In the present case, the strata charts Ex. P­2 (colly) bear signatures of ZE Sh. A.P. Garg. PW4 denied that Ex PW1/A to Ex PW1/C and Ex PW1/J does not bear the signatures of JE A­1 but admitted that signatures of A­1 appearing on final bill (Ex. P­2) seems to be different from the signatures appearing on Ex PW1/A to Ex PW1/C and Ex PW1/J. The witness admitted circular Ex. PW 4/DA and CPWD Specifications Ex. PW 4/DB and that accounts department is duty bound to verify the purchase vouchers from the vendor. The witness deposed that he has experience about the work of bore­wells and admitted that due to hard water, the deposits and moss formation occurs quickly inside the metal pipe. He also admitted that Johnson pipe (which is made of metal) and its holes get varied due to moss formation and in case of variation, it is difficult to find out the nature of the pipe. The witness admitted that due to pressure Johnson Pipe may get squeezed. According to the witness, it is not possible for bore­ well to work if there is gap between two pipes. There is no complaint RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 17 of 60 about the working of the bore­well in question. The payment is given to the contractor on the basis of set calculation based on BOQ and Work Order and it is not necessary that the amount reflected in the purchase voucher is paid to the contractor. The payments are not concerned with the market rates / fluctuations and in the present case it was paid @ Rs. 2436.74 per meter for Johnson pipe (including percentage above on BoQ quoted by the contractor). He further stated that he could not say whether Ex PW1/J, Ex PW1/A, Ex PW1/C have not been processed by accused JE Pradeep Kumar but he asserted that accused Pradeep Kumar as JE, ZE A.P. Garg and he himself worked with sincerity and honestly in this case. During cross examination on behalf of A­2 and A­3, witness deposed that normally the purchase vouchers submitted by contractor are signed by him. The photostat copy is submitted, while the original is shown to concerned JE. PW4 admitted that the purchase vouchers Ex. PW 1/A to Ex. PW 1/C and Ex. PW 1/J were not signed by the contractor. The witness stated that purchase vouchers are signed by ZE Sh. A.P. Garg and the receiving is not given from the department. The witness could not comment as to whether Ex. PW 1/A to Ex. PW 1/C and Ex. PW 1/J are not the purchase vouchers submitted by the contractor or whether the contractor submitted bills no. 180 and 181 dated 27/10/2007 in the RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 18 of 60 present case. PW4 denied that CBI has planted the bills Ex. PW 1/A to Ex. PW 1/C and Ex. PW 1/J. PW4 admitted that he visited the borewells in the present case for two or three times each and saw Johnson Pipe lying on the spot of all the three bore­wells.

(v) PW 5 Sh. Ashish Pareek posted as Inspector CBI proved FIR Ex PW5/A. He investigated the present case vide court order dated 11/07/2012 and seized some documents from Sh. Vikas Rathi. The investigation of present case was transferred to Sh. M.P. Singh. He denied the suggestion that FIR is false and fabricated.

(vi) PW 6 Sh. Anand Sarup posted as Inspector CBI investigated this case having been assigned the job on 13/06/2014. He recorded statements of witnesses and seized the documents through various seizure memos Ex. PW6/A to Ex. PW6/E. PW6 also received various documents and letter Ex PW6/F during investigation and after obtaining required sanction, presented the charge sheet bearing his signatures. During cross examination, PW6 admitted statement of K.K. Aggarwal was recorded u/s 161 Cr. PC vide Ex PW6/DA. No investigation was conducted by witness by checking the electronic or physical records to find out whether unique number allotted to the RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 19 of 60 purchase vouchers by M/s Bharti Waters Private Limited were being repeated or not nor he visited the office of K.K. Aggarwal. PW6 has not checked the genuineness of the transactions between M/s Bharti Waters Private Limited and M/s Sumer Chand and Sons despite the fact that material/johnson pipe were sold in bulk through the transactions. No investigation was conducted about the nature of business of M/s Sumer Chand & Sons. PW6 further stated that he did not check bill books or account books of M/s Bharti Waters Private Limited to check whether the counterfoils were available in hard copy or soft copy. No investigation was conducted as to from where purchase vouchers Ex PW1/A to Ex PW1/C were procured nor any raid was conducted in the office of contractor A­2. The witness only believed the statement of K.K. Aggarwal to come to the conclusion that Ex PW1/A to Ex PW1/C are forged, and he also investigated about the actual purchasers of genuine bills. The accounts of M/s M.S. Borewell or CST Company were not checked to find out whether the purchases were actually made or not. The witness denied that he had not properly investigated the case. During cross examination on behalf of A­1, PW6 deposed that he did not go through the report of preliminary enquiry nor he enquired from DJB about any complaint regarding functioning of borewells. He admitted that borewell has RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 20 of 60 been working properly. The witness denied that he deliberately did not examine ZE Sh. A.P. Garg despite the fact that he was crucial witness in view of that lowering of Johnson pipe was done in MB Ex P­3 in his presence in all the three bore­wells. No inquiry was made by witness about responsibility for verification of purchase vouchers. PW6 denied that Ex PW1/A to Ex PW1/C were not processed by JE. The witness denied that CD prepared by Dr. D.V. Reddy was not sent to CFSL as it was doctored or tempered. He did not physically check the nature, shape and style of johnson pipe and ordinary pipe, therefore unable to differentiate. Also, no document has been placed on record showing specifications of different pipes. The witness has no idea that borewell cannot function in case of damaged pipes. He denied the suggestion that charge­sheet has been filed in a casual manner.

(vii) PW 7 Sh. Vikas Rathi JE (Civil) DJB handed over the documents to CBI during investigation and proved his signatures on seizure memo Ex PW7/A.

(viii) PW 8 Sh. Pramod Kumar posted as Inspector CBI deposed about seizing of MB No. 14322 Ex P­3 from Inspector Kailash Sahu in FIR No. 31­A/2011 of CBI and handing over the same RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 21 of 60 to Inspector Anand Sarup on 14/10/2014 in FIR No. 23­A/2012 vide Ex PW6/B.

(ix) PW 9 Sh. Kailash Sahu posted as Inspector CBI conducted preliminary enquiry and seized documents from Vikas Rathi during the same. During the cross examination, PW9 stated that documents were lying in Malkhana and were obtained by IO directly from there. During cross examination on behalf of A­2 and A­3, PW 9 denied that no document was handed over by Vikas Rathi or that he is deposing falsely.

(x) PW 10 Sh. Mahender Pratap Singh, Inspector CBI, was entrusted with the investigation on 18/08/2012 of this case and he seized relevant documents and recorded statements of witnesses u/s 161 Cr.P.C. He identified his signatures on seizure memo Ex. PW 1/D and was also present during the site inspection. He also received report and certificate u/s 65B and CDs as mentioned Ex. PW 2/B (colly) and Ex. PW 2/A. Thereafter the investigation of this case was transferred to Inspector Anand Sarup. During cross examination on behalf of A­2 and A­3, witness stated that investigation remained with him from 18/08/2012 to 13/06/2014. He denied the suggestion that he RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 22 of 60 deliberately did not investigate regarding bills within the period of two years when investigation remained with him, with a view to give sufficient time to concerned persons to manipulate the documents. The CD was received by this witness on 19/02/2014 in a sealed envelope with the seal of NGRI. He viewed copy of CD which was received through E mail. During cross examination on behalf of A­1, witness stated that he briefed Dr. Reddy about checking of Johnson Pipe during the inspection. He did not collect any literature depicting the specifications of Johnson pipe either from Dr Reddy or from manufacturer. He physically checked the samples of pipes but could not recollect differences noticed between johnson pipes and ordinary pipes. However, no proceedings to this effect were drawn. The witness denied the suggestion that Dr Reddy was briefed to give his report in a particular fashion to favour the case of CBI. Five borewells were inspected on the same day. The exact findings were not disclosed by Dr. Reddy or N. Jyoti Kumar about the johnson pipes at the spot. The borewells were functioning during the inspection. No inquiry was made by him about the repairs of bore­wells if carried out on behalf of DJB before the inspection. PW 10 denied the suggestion that CD is doctored/tempered. He called ZE A.P. Garg for questioning and his statement was recorded and same was handed over to next IO Sh.

RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 23 of 60

Anand Sarup. PW10 denied that he did not carried out fair investigation.

(xi) PW 11 Sh. Jayadev Sarangi being Member Administration was competent to remove JE DJB from services during 29/05/2014 to 23/03/2016. Accordingly, he accorded sanction Ex PW11/A against A­1 after examining the entire material after due application of his mind. During cross examination on behalf of A­1, the witness stated that he did not hold any discussion with DJB officials or CBI officials before the grant of sanction nor any second opinion about the pipes of borewell were taken. PW11 denied the suggestion that he signed the sanction order without application of his mind independently or that same has been granted in a mechanical manner.

10. Thereafter prosecution evidence was closed.

11. The statements of all the accused persons were recorded u/s 313 Cr. PC by putting entire evidence in question and answer form, to which all the accused have pleaded innocence and false implication.

RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 24 of 60

12. According to A­1 Pradeep Kumar JE, he has been looking after the work of installation of borewells in question under the contract agreement no. 128/2008­09 awarded to M/s M.S. Borewell and he has been responsible for 100% test check. A­1 has admitted to entire evidence relating to grant of contract and execution of work at the site and releasing of payment to the contractor but denied the expertise of PW 2 Dr. D.V. Reddy in the field and has strongly disputed the report Ex. PW 2/A by stating that requisite Johnson Pipe has been installed and CD prepared by PW 2 is tampered, whereas entries made in the Measurement Book (MB) are correct. With respect to the final bill, completion report and test check report, A­1 has stated that they were prepared by him but the alleged bills Ex. PW 1/A to Ex. PW 1/C and Ex. PW 1/J were not processed by him. A­1 has denied that his signatures appear on the alleged forged vouchers. The evidence of PW 1 has also been denied and it is pleaded that FIR Ex. PW 5/A is false and investigation is misconceived. According to A­1, the sanction has been obtained against him without any application of mind and same has been granted in a mechanical manner. A­1 has performed his duty diligently and meticulously and especially he has been targeted by CBI and witnesses have deposed falsely. A­1 pleaded innocence and emphatically stated that Johnson Pipe was installed and RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 25 of 60 same is in the knowledge of senior officials of DJB and same are reflected in MB. The borewell is still working. A­1 preferred not to lead any defence evidence.

13. A­2 Madho Singh and A­3 Chandan Singh have admitted the grant of contract and work order in favour of M/s MS Borewell of borewells in question. They have also denied the expertise of PW 2 in the field and have also disputed video­recording since same was not displayed or disclosed at the spot. According to them, Johnson Pipe was used and lowered in the tubewell in terms of the agreement and report prepared by PW 2 is doctored whereas documents and entries are genuine. A­2 and A­3 have denied having submitted Ex. PW 1/A to Ex. PW 1/C and Ex. PW 1/J rather pleaded that copies of invoices No. 180 and 181 dated 27/10/2007 were submitted by them in the present contract. The same were duly issued by M/s Bharti Waters Private Limited but the originals of said invoices have been destroyed due to fire in their office. It is also pleaded that M/s Bharti Waters Private Limited issued invoices with same number to different companies to legalize their black money and to conceal the real transactions particularly to Sumer Chand and Sons being the same controlling authority. They further stated that case is manipulated and no wrongful RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 26 of 60 loss has resulted to the government since the bore­well is functioning properly. A­2 and A­3 has pleaded false implication.

14. In defence, A­2 and A­3 have summoned the record from M/s Bharti Waters Private Limited of invoices no. 180 and 181 dated 27/10/2007 and ledger account of M/s C.S.T & Co., Delhi for the period from 01/04/2005 to 31/03/2008 and the same were produced and exhibited as Ex. PX (colly).

15. I have heard Sh. P.K. Dogra, Ld. Senior PP for CBI, Mohd. Qamar Ali, Ld. Counsel for A­1, Sh. Vinod Sharma, Ld. Counsel for A­2 and A­3 and have perused the case record.

16. It is argued by Ld. Senior PP for CBI that prosecution has been able to bring home the guilt of the accused persons. It is admitted case that vide work order no. 292, the work of reboring of 03 tubewells at Hazira Kabristan, Thomas Site Chattarpur, Birla Farm Chattarpur Extension was assigned to A­2 and A­3. A­1 being the JE of DJB was responsible to check 100% execution of the work. It has been established through the evidence of PW1 that bills / invoices submitted by the contractor A­2 and A­3 and endorsed by A­1 JE after RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 27 of 60 completion of work are not genuine and same are forged and fabricated. The fact has been further corroborated through the testimony of PW 2 Dr. D.V. Reddy, scientific expert, who has physically inspected the bore­wells and came to the conclusion that no Johnson Pipe were found installed therein. It is evident that contractor and the JE have represented to the department of DJB through various documents that the work has been executed as per the work order and BOQ requirements and only thereafter the payment was released in favour of the contractor. It has resulted in wrongful gain to all accused persons and wrongful loss to the government. The bills used by the contractor in getting the payment have not been issued by the concerned company M/s Bharti Waters Pvt. Ltd. The witnesses of the prosecution have deposed in a consistent manner and documents have corroborated their version and therefore, the findings of conviction be recorded against the accused persons.

17. It is argued on behalf of A­1 by Ld. Counsel Mohd. Qamar Ali that case of the CBI is groundless and the charge against the accused has not been substantiated through concrete and admissible evidence. The JE is responsible for the execution of the work by the contractor and in this case JE has properly discharged his RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 28 of 60 duties. The senior officers i.e. Executive Engineer (EE) and Zonal Engineer (ZE) have also checked the material as well as the progress of the work at the site from time to time and have signed entries in the record. They are also responsible for the execution of the work and no explanation has been given by CBI for not proceeding against them. The JE has been picked up to face the criminal proceedings without any justification despite the fact that AE Sh. A.P. Garg was present at the sites when the Johnson Pipe were installed in the bore­wells in question and also the alleged purchase vouchers Ex. PW 1/A to Ex. PW 1/C and Ex. PW 1/J bear the signatures of AE Sh. A.P. Garg. The bills/purchase vouchers submitted by the contractor were forwarded to the accounts department with the completion report and MB and it was the duty of the accounts department to verify the genuineness of the bills before releasing the payment to contractor. The JE cannot be held responsible in case the payment is released without verifying the bills so submitted by the contractor. With respect to the execution of the work, it is argued that it has been properly done at the site and stands confirmed in the testimony of various witnesses of DJB who have deposed that the payment was released only after recording satisfaction about the work done. The method of ascertaining non­use of Johnson Pipes by PW 2 is totally faulty and the evidence relating to RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 29 of 60 this has to be discarded. It is not possible to find out the nature of pipes once it is installed beneath the ground level and the method adopted by PW2 is devoid of any scientific justification. The inspection conducted by PW 2 after the lapse of more than five years since installation, is meaningless and futile exercise. This is a case of selective prosecution, whereby CBI has targeted the smallest officer without conducting genuine investigation about the facts and events. The role of AE Sh. A.P. Garg has not been properly investigated despite the fact that he has been present on the day Johnson Pipes were lowered and also he signed the alleged forged invoices. Ld. Counsel has relied upon following judgments (i) State of Madhya Pradesh vs Sheetla Sahai and Others, (2009) 8 SCC 617, (ii) Musauddin Ahmed vs The State of Assam, C.A. No. 879 of 2004, Supreme Court of India and (iii) Tomaso Bruno vs State of U.P., C.A. No. 142 of 2015, Supreme Court of India, in support of his arguments. It is also pointed out by Ld. Counsel for A­1 that sanction has not been properly granted and the sanctioning authority has not examined any witness relating to the case nor verified the genuineness of the documents of the case. The CBI has failed to prove the case against the accused by sufficient evidence and therefore the accused must be acquitted.

RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 30 of 60

18. On the other hand, it has been argued on behalf of A­2 and A­3 by Ld. Counsel Sh. Vinod Sharma that work has been properly executed as per the work order and BOQ and the same was duly checked and satisfaction recorded by various officers of DJB. The bills / invoices bearing no. 180 and 181 submitted by contractor with respect to the purchase of Johnson Pipe are true and genuine bills, whereas the testimony of PW1 is not truthful and the statement of ledger account produced by him is apparently incorrect and not admissible. The payments were released to the contractor only after verification of the bills in question and therefore no question of having submitted forged bills arises. The alleged forged bills / vouchers Ex. PW 1/A to Ex. PW 1/C were not submitted by A­2 and A­3 and therefore their signatures are not appearing on the same. No proper investigation has been conducted to ascertain as to from where the alleged forged bills were got printed or procured. The investigation with respect to the records of M/s Bharti Waters Private Limited have not been thoroughly conducted to substantiate the statement of PW 1 that unique number cannot be repeated or that cash transactions are rarely done. The original invoice allegedly issued to M/s Larsen & Toubro Limited could not be summoned nor any witness has been examined from said company to substantiate the fact that purchases RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 31 of 60 were made through purchase voucher no. BW/16/2008­09 Ex. PW 1/E (colly). It has also been submitted on behalf of A­2 and A­3 that due to moss formation and deposits over a period of time, it is not possible to find out the nature of the pipes used in the bore­well and the method adopted by PW2 is not correct and conclusive. The Compact Disc (CD) prepared by PW2 is not admissible as there is no report of CFSL to substantiate its genuineness. The use of Johnson Pipe is clearly evident from the documents proved on record and also with the fact that bore­wells are functioning properly even till date. False case has been registered by CBI against A­2 and A­3 who have carried out their job according to the requirements and prescribed procedure and no criminal liability can be attributed to him.

19. I have given due consideration to the rival contentions, facts, evidence and record of the case. I have also gone through the written arguments filed by the accused persons. The video CD has also been played and viewed in the court during the trial and at final stage.

20. The points of determination as required u/s 354 (i) (b) Code of Criminal Procedure, 1973 in this case, are as under:­

(i) As to whether accused Pradeep Kumar (A­1), RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 32 of 60 accused Madho Singh (A­2) and accused Chandan Singh (A­3) entered into criminal conspiracy to cheat DJB and in pursuance thereof forged bills Ex. PW 1/A to Ex. PW 1/C were submitted and payments were got released,

(ii) Whether requirements of contract were not fulfilled and the requisite Johnson Pipes were not inserted in the bore­well and

(iii) Whether false entries were made in the official records by accused JE Pradeep Kumar showing installation of Johnson Screen Pipe with respect to borewells in question.

21. The present case pertains to re­boring of three tubewells at Hazira Kabristan, Thomas Site Chattarpur, Birla Farm Chattarpur Extension. It is important to understand the procedure to grant the work and to release the payment. On completion of procedural formalities, Bill of Quantity (BOQ) is ascertained and tender is floated. BOQ contains requirements of using and providing Johnson Screen Pipes. The work is awarded through contract and contractor is required to execute the work at the site under the supervision of JE, RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 33 of 60 AE and EE. The boring of tube­wells involves boring on the ground upto the specified depth as provided in strata chart in loose soil as well as rocky strata. On completion of boring, tube­well pipe assembly is lowered in accordance with the strata chart to facilitate the inflow of water from underground to above level of ground water. The pipes of different kinds are joined as per strata chart. During execution of work, physical test check is 100 per cent by JE, 50 per cent by AE and 10 per cent by EE. The measurements are noted in the Measurement Book (MB) signed by all above three and based on the quantity noted therein, the completion report is prepared by JE and signed by AE and EE and the contractor. The contractor is required to submit purchase voucher, (copy thereof is retained) and also the strata chart and certificates etc. On scrutiny of all the documents including the purchase voucher/bill, the payment is approved.

22. The case of prosecution is primarily based on two allegations, firstly that the bills submitted by the contractor on the basis of which the payment was released were found to be forged and secondly the work has not been executed as per the work order and BOQ and requisite Johnson screen pipe was not used at the site, (which fact is confirmed through physical inspection by putting bore RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 34 of 60 hole camera and videography of the same) thereby cheating the government and causing wrongful loss.

23. Accused Pradeep Kumar (A­1) Junior Engineer under Delhi Jal Board is the public servant and is discharging public duties. He has been charge­sheeted on the basis of preliminary inquiry and before filing the charge­sheet, the sanction has been obtained from the competent sanctioning authority. The said competent authority has been examined in the present case as PW 11 Dr. Jayadev Sarangi and also the sanction order has been placed on record as Ex. PW 11/A. On examining the testimony of competent authority i.e. PW 11 and the record of the case, it is clear that sanction has been properly granted by the competent authority with due application of mind. The sanction order Ex. PW 11/A is supported with due reasons on consideration of material available and it cannot be said that sanction has been mechanically granted. No question has been raised on behalf of A­1 to the effect that PW 11 is not the competent authority to remove him from the post in question. Therefore, it is clear that PW 11 is the appropriate and competent authority to grant the sanction and it is evident that sanction has been properly accorded in terms of section 19 of The Prevention of Corruption Act, 1988. I am not in agreement with RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 35 of 60 Ld. Counsel for A­1 that sanctioning authority should have called the witnesses and verified the records as sanctioning authority is not supposed to hold parallel investigation while considering the question of grant of sanction. The CBI submitted its report along with the relevant record of the case to sanctioning authority and on consideration of the same, the sanction has been granted and same is sufficient legal compliance.

24. To establish forgery, the prosecution is mainly relying upon the testimony of PW 1 Kamal Kumar Aggarwal, who has been the Managing Director of M/s Bharti Waters Private Limited. He deposed that invoices Ex. PW 1/A to PW 1/C are not issued by his company. The original genuine invoices bearing the same numbers Ex. PW 1/E (colly) and Ex. PW 1/G (colly) have been produced in evidence. The original invoices Ex PW1/E (colly) have been produced in evidence of which invoice numbers BW/15/2008­09 (75 meters) and BW/17/2008­09 have been issued to Sumer Chand & Sons and invoice number BW/16/2008­09 (75 meters) to M/s Larsen & Toubro Limited.

25. The issue in this regard is whether Ex. PW 1/A to Ex. PW1/C are forged and fabricated documents. According to the RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 36 of 60 sequence of events, CA No. 128/2008­09 was executed on 20/09/2008 under which work of bore­wells in question were to be completed. The completion report shows that the work of the bore­wells under contract started on 20/09/2008 and completed on 19/11/2008. The payment was released to the contractor on the basis of completion report / final bill. On examination of the bills Ex. PW 1/A to Ex. PW 1/C and alleged genuine invoices Ex. PW 1/E (colly), it is evident that format of the bill is printed but other details like unique number, date of bill, order date, name of the purchaser, particulars of the material and amount etc are filled up through the printer at the time of preparation of invoices. The font and style of the printed material is exactly similar if forged invoices are compared with genuine original invoices but there is no investigation as to from where A­2 and A­3 could procure the similar stationary for being put to use for preparing forged and fabricated bills. The source of making forged bills not found out by investigating officer nor any efforts made to seize any incriminating material by conducting search in the office of A­2 and A­3 or by subjecting them to interrogation.

26. According to IO, he only believed the statement of PW 1 to come to the conclusion that Ex. PW 1/A to Ex. PW 1/C are forged RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 37 of 60 bills. If it is assumed that Ex. PW 1/A to Ex. PW 1/C are forged bills then the question arises as to how it contains the exact particulars and format of that of genuine bills of the relevant time. There is nothing on record to show as to how the unique number is generated and put on invoices whether it is done in sequence, chronologically or randomly. The original bill book from where the genuine purchase vouchers were issued has not been produced for scrutiny of the court to show the manner and consistency of putting unique number. No statement of any employee or official of Bharti Waters Private Limited was recorded to show the procedure for generating unique number whether it is done by computer automatically or manually put through the printer. PW 1 has also failed to identify the signatures of his employee appearing on genuine bills.

27. The invoices bearing nos. BW/15/2008­09 (75 meters) and BW/17/2008­09 issued to Sumer Chand and Sons Ex. PW 1/E (colly) shows dealing between M/s Bharti Waters Private Limited and Sumer Chand and Sons and it is admitted fact that Sumer Chand and Sons belongs to PW 1 himself. Admittedly the firm Sumer Chand and Sons is not dealing in Johnson Pipes nor involved in installation of bore­wells. It is not explained as to for what purposes bulk purchases RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 38 of 60 were done by Sumer Chand and Sons when the firm is involved in the business of non woven cloth and its import and has no connection with trade and purchases relating to Johnson Pipes particularly after the year 2004. IO too has not investigated these transactions to find out truthfulness of the same. Also the original invoice is shown to have been seized from PW 1 Sh. Kamal Kumar Aggarwal of Bharti Waters through memo D­8 Ex. PW 1/D and copy thereof also from Sh. Kamal Kumar Aggarwal as partner of Sumer Chand vide D­23 Ex. PW 1/F and it is how possible that original invoice is lying with Bharti Waters Private Limited and not with Sumer Chand and Sons. This transaction also appears to be doubtful.

28. The remaining invoice bearing no. BW/16/2008­09 allegedly issued in favour of M/s Larsen & Toubro Limited show the transaction made through the purchase voucher but there is no evidence to confirm this transaction from M/s Larsen & Toubro Limited. The original or copy of this invoice was not seized from M/s Larsen & Toubro Limited nor any witness has been examined from the company to confirm the said transaction. It is also evident that cash transactions are also done by M/s Bharti Waters Private Limited. No Physical checking of the records maintained by M/s Bharti Waters RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 39 of 60 Private Limited, was conducted to find out as to how frequently the cash transactions were entered into. Alleged forged bills Ex. PW 1/A to Ex. PW 1/C are photostat copies and it is difficult to conclude that same are forged particularly in view of statement of PW 1 that prior to company M/s Bharti Waters Private Limited, it was a partnership firm under the name of M/s Bharti Waters. The left over stationary of the partnership firm was used by the company although necessary changes must have been made. PW 1 has failed to give categorical statement as to during what period the stationary of erstwhile partnership firm was being used on behalf of the company.

29. On the other hand, the existence of bills no. 180 and 181 dated 27/10/2007 Ex. PX (colly) has not been disputed and it is evident from the testimony of PW 1 and statement u/s 161 Cr. PC Ex. PW 6/DA as well as from the ledger account that Johnson Pipes were purchased from time to time on behalf of M/s M.S. Borewell and sister concern CST & Co. from M/s Bharti Waters Private Limited. In the present contract there were three sites of bore­wells and as per the completion report total 175 meters of Johnson Screen Pipe was installed. In these circumstances, the purchase of Johnson Screen Pipe by M/s MS Borewell from M/s Bharti Waters Private Limited is RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 40 of 60 clearly established and it becomes improbable that despite having purchased Johnson Pipe from time to time, the contractor chose not to install the same in one bore­well in order to cheat DJB. It has also been testified by PW4 Executive Engineer Anil Kumar that he visited the three sites for test check purpose and found Johnson pipe lying there. This testimony further lends credibility to the claim of the contractor that he had purchased and installed Johnson pipe in all the bore­wells under the contract.

30. The another important factor is whether the alleged forged bills can be attributed to A­2 and A­3. The submission of Ex. PW 1/A to Ex. PW 1/C to DJB for payment is strongly disputed and denied and instead it is pleaded that bills no. 180 and 181 were given for payment. The prosecution has failed to bring sufficient and reliable evidence on this aspect. No witness has been examined who could depose that the bills Ex. PW 1/A to Ex. PW 1/C were directly submitted by the contractor A­2 and A­3. Although, the records have been seized from DJB through PW 7 Sh. Vikas Rathi but there is no direct evidence to the effect that bills were submitted by contractor for payment. They also do not bear the signatures of either accused. The particulars of the bills is nowhere mentioned either in the MB or in the RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 41 of 60 completion report and therefore, it cannot be concluded that payment was released to M/s MS Borewell on the basis of bills Ex. PW 1/A to Ex. PW 1/C. The signatures of AE Sh. A.P. Garg are appearing on Ex. PW 1/A to Ex. PW 1/C and therefore he could be the appropriate witness to depose as to whether these bills were submitted by A­2 and A­3 for seeking payment under the contract in question. However, AE Sh. A.P. Garg has not been examined despite the fact that his statement was recorded by IO u/s 161 Cr. PC during the investigation. ZE Sh. A.P. Garg has not been cited as a witness nor his statement so recorded has been relied upon by the prosecution. The presumption u/s 114(g) Indian Evidence Act clearly arises as the available evidence has not been brought on record by the prosecution.

31. In view of strong denial by A­2 and A­3 about the submission of Ex. PW 1/A to Ex. PW 1/C, there is no evidence to prove this fact either through oral or documentary evidence and therefore, it is not established that on the basis of Ex. PW 1/A to Ex. PW 1/C the payment has been claimed and granted. Accused A­1 Pradeep Kumar has claimed having not signed bills Ex. PW 1/A to Ex. PW 1/C. During cross examination of PW4 Executive Engineer on this point, the witness has failed to give categorical statement about RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 42 of 60 the signatures of JE Pradeep Kumar (A­1), although he identified signatures of Sh. A.P. Garg. PW4 admitted that signatures of JE appearing on Ex PW1/A to Ex PW1/C are different from the signatures of JE (A­1) appearing on final bill Ex P­2 (colly). It is clear through the evidence of PW 4 Anil Kumar and circular Ex. PW 4/DA dated 06/09/2000 that verification was required to be done by the accounts department from the concerned vendor before releasing the payment and further the accounts department is required to check MB before preparing final bill. No liability can be fastened on concerned AE or JE for verification of the genuineness of the bills.

32. PW 4 categorically supported the fact that accounts department was bound to verify the bills. In the present case, payments were released to A­2 and A­3 on 12/11/2008, 05/02/2009, 24/02/2009 and the officers of DJB were bound to follow the instructions contained in the above orders. The instructions contained in Ex. PW 4/DA have not been followed and during evidence none of DJB witnesses have come out with clear version about procedure of verification of the invoice submitted by the contractor. It is evident that DJB witnesses are evasive on this count and are avoiding the specific responsibility for verification. Therefore, I conclude that bills RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 43 of 60 Ex. PW 1/A to Ex. PW 1/C cannot be attributed either to the contractors (A­2 and A­3) or to JE (A­1). The evidence is not found convincing and credible to substantiate the factum of using forged documents by A­2 and A­3 in collusion with JE A­1 so as to hold them liable for the offences punishable u/s 471 IPC r/w 120B IPC.

33. Prosecution has alleged conspiracy between JE (A­1) and contractors (A­2 and A­3) to submit forged invoices for payment. To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither it is necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implication. In most of the cases, the conspiracy is proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. Criminal conspiracy is an independent offence in the Penal Code. The unlawful agreement is sine qua non for constituting offence under the Penal RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 44 of 60 Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express or partly implied.

34. In "Shivanarayan v. State of Maharashtra", AIR 1980 Supreme Court 439, it was held that "It is manifest that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from the inferences drawn from acts or illegal omission committed by the conspirators in pursuance of a common design."

35. In the case of State of Maharashtra and Others vs Som Nath Thapa and Others, (1996) 4 SCC 659, it was held that "To establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use."

RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 45 of 60

36. Coming to the case in hand, alleged conspiracy is with respect to forged invoices. It is strange that invoices Ex. PW 1/A to Ex. PW 1/C bear the signatures of ZE Sh. A.P. Garg but he has not been brought either as a witness or accused to share the responsibility of the bills / invoices. There is no material evidence on record to suggest that A­1 contributed to the submission of forged bills or that he verified or certified the same as genuine in pursuance of criminal conspiracy. The PW 4 Anil Kumar EE who had checked the file before final payment, has failed to depose that Ex. PW 1/A to Ex. PW 1/C were submitted by contractor A­2 and A­3. In fact, Ex. PW 1/A to Ex. PW 1/C, have not been connected to Pradeep Kumar JE A­1 by bringing concrete evidence or even to A­2 and A­3 for that matter, in the absence of their signatures. Therefore, for the submission of the bills no liability can be fastened upon JE unless he has certified the same as genuine.

37. For the aforesaid reasons, I conclude that prosecution has failed to prove beyond reasonable doubt the charge of forgery as well as conspiracy against accused i.e. A­1, A­2 and A­3.

38. Now we are left with expert scientific evidence only on the issue of non use of Johnson pipe. According to BOQ and Strata RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 46 of 60 Chart the contractor was required to install 150 mm Johnson pipe of total length of 180 meters at borewells in question. The prosecution has relied upon expert and scientific evidence on this issue and have examined PW 2 Dr. D.V. Reddy and also played CD Ex. PW 2/E. The defence has challenged the inspection report and very expertise of PW 2 and very strongly argued about admissibility of CD which is electronic evidence, due to non confirmation by forensic report. The defence Counsels have relied upon State of H.P. Vs Jai Lal and Others, (1999) 7 SCC which says:­ "...................

18. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions.

..................

20. The question for consideration is whether the evidence of Shri P.C. Panwar who was examined as an expert witness measures up to the well accepted principles RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 47 of 60 for judging the credibility of such an evidence. As noted earlier, Shri Panwar has not stated anything in his testimony to show that he had made any scientific study or research in assessing the productivity of apple trees in the State of Himachal Pradesh. He does not even state whether he had undertaken any such work prior to the present case. No doubt as an officer of the Horticulture Department of the State Government he might have acquired some experience in the matter but that is not sufficient to make him an expert in the field and to give the label of 'expert evidence' to his testimony. ...........

................."

39. PW 2 Dr. D.V. Reddy is M.Sc. (Geology) and M.Sc. (Tech.), Hydrogeology from Hyderabad. The inspections of bore­well in question were conducted by him on 17/09/2013. He has 30 years of experience in ground water studies in different Hydrogeologic environs. The witness has put bore hole camera into the well and scanned total length and he has given his report Ex. PW 2/A. The video recording was done by him on his palm top and on the same date transferred the material into a CD. The report and CD are duly accompanied by the certificate issued u/s 65B of Indian Evidence Act.

40. As per his profile, PW 2 has done Doctorate in groundwater investigations from NGRI and is involved in groundwater studies. The main objective of the witness was to find out the depth RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 48 of 60 and length of the bore­well and type of casing used therein. The simple under water camera was used and considering the qualification and experience of PW 2, it is clear that he had relevant expertise.

41. Coming to the evidentiary value of contents of CD and inspection report, PW 2 has used simple method to assess the depth of the well and nature of casing used. The bore hole camera was put inside the bore well and it had the provision of lighting and also the audio and video recording, connected with the monitor on ground surface and the images were visible on the monitor. The witness visited the sites on 17/09/2013 and the officials of DJB were also present. In his report Ex. PW 2/A, the expertise, procedure and experiment have been detailed by the witness. According to the report, no Johnson pipe were found / seen in the bore­wells.

42. Following table would show the difference about the casing details, between the strata charts and observations as per video footage:­ RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 49 of 60 Chart of location: Hazira Kabristan, Chattarpur Ext. (Ex. PW 2/A­1) Casing details as per Lengths (m) Casing details Depth (m) Time slot diagram observed 200mm 67.9 Blank 0­70.7 4:23 MS plain 200mm 12.20 MS slotted 70.7­76.2 4:23­4:59 MS slotted 200mm 6.0 MS plain 150mm 6.0 MS slotted and 76.2­137.8 4:59 onwards blank blank mixed 150mm 60.0 JS slotted 150mm 1.8 blank Description as per the strata chart As per the strata chart given by M.S. Borewell, the borewell depth is not mentioned. However, based on well assembly, it is assessed as ~150m in two sizes. Top 86m is shown with 200mm dia pipes (67.9m blank pipe, 12.2 MS slotted pipe and 6.0m blank pipe). Bottom 67m is shown with 150mm pipes (6.0 blank pipe, 60m Johnson type slotted pipe and 1.8m blank pipe) with some overlap at well reduction.

Observation The well was scanned on 17.9.13, using borehole camera and measured RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 50 of 60 the present depth as 137.8m bgl. As the video is not clear, it was repeated. Top 70.7m blank pipe followed by MS slotted pipe upto 76.2m is seen (both are 200mm dia). Well diameter reduced from 200 to 150mm at 76.2m. From 76.2m to 137.8m 150mm dia MS slotted pipe and blank pipes (mixed) is seen. Well filled up to 137.8m.

Chart of location: B Block, near Gurudwara, Chattarpur Ext (Ex. PW 2/A­2) Casing details as per Lengths (m) Casing details Depth (m) Time slot diagram observed 200mm 64.12 Blank 0­63.4 4:14 MS plain 200mm 6.10 MS slotted 200mm 6.10 blank pipe 150mm 6.0 MS slotted 63.4­109.75 4:14 onwards MS plain 150mm 55.0 Johnson screen 150mm 3.0 MS plain Description as per the strata chart As per the strata chart given by M.S. Borewell, the borewell was drilled upto 140m in two sizes. Casing lengths are not clearly mentioned. However, the extracted details show, top 76m with 200mm dia pipes (64m blank pipe, RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 51 of 60 6.1m MS slotted pipe and 6.1m blank pipe). Bottom 64m is shown with 150mm pipes (6.0m blank pipe, 55m Johnson type slotted pipe and 3m blank pipe) with some overlap at well reduction.

Observation The well was scanned on 17.9.13, using borehole camera and measured the present depth as 109.75m bgl. Top 63.4m blank pipe of 200mm dia is seen. At 63.4m well diameter reduced from 200 to 150mm and from there MS slotted casing continued upto 109.75. Well filled up up to 109.75m.

Chart of location: Galli­8, Thomas site, Chattarpur Pahari (Ex. PW 2/A­3) Casing Lengths Casing Depth (m) Time slot details as (m) details per diagram observed 200mm 61.16 Blank 0­17.3 2:13 plain 200mm 12.2 MS slotted 17.3­77.7 2:13­7:34 MS slotted 200mm 6.1 Blank 77.7­84.1 7:34­8:28 plain 150mm 12.2 No casing 84.1­121.6 8:28 onwards plain 150mm 60.0 Johnson slotted 150mm 10.0 plain RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 52 of 60 Description as per the strata chart As per the strata chart given by M.S. Borewell, the borewell was drilled upto 161.6m in two sizes. Details of casing lengths are not clearly indicated. However, it is assessed based on the given information as top 79.5m is shown with 200mm dia pipes (61.1m blank pipe, 12.2m MS slotted pipe and 6.1m blank pipe). Bottom 82m is shown with 150mm pipes (12.2m blank pipe, 60m Johnson type slotted pipe and 10m blank pipe) with some overlap at well reduction.

Observation The well was scanned on 17.9.13, using borehole camera and measured the present depth as 121.6m bgl. Top 17.3m blank pipe followed by MS slotted casing (from 17.3m to 77.7.m) and further blank casing (77.7m to 84.1m) of 200mm dia is seen. No well reduction and casing seen after 84.1m upto 121.6m well filled up to 121.6m.

43. PW 2 was summoned at the site for specific purpose to ascertain the use or non use of Johnson pipes. While conducting the inspection, PW 2 is able to ascertain the depth and heard declaring about the various levels of depth reached. He could also see the video RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 53 of 60 images on his palm top at the site but he did not make any observations or comments about non use of Johnson pipes nor he revealed or discussed his observations to any person particularly the DJB officials who were also experts in the field of identifying the nature of Johnson pipes. PW 2 should have made comments about existence of pipes or strata and their nature, at the spot itself while he was noticing the same. Witness particularly PW 4 Anil Kumar has admitted that due to deposits and moss formation, it is difficult to identify the nature of pipes in bore­wells.

44. PW 2 in his report has not clearly spelt out as to on what basis he came to the conclusion about non use of Johnson pipes. He has failed to support or substantiate his findings with due reasons in his report. There is no explanation as to how could the difference in nature of pipes was visible to him through bore hole camera. PW 2 or any other prosecution witness has nowhere given any particular characteristics of Johnson screen pipe nor disclosed how they are different from slotted and plain pipes. The prosecution has not physically produced the specimen of slotted, plain and Johnson pipe during the trial before the court to enable the court to see and ascertain the difference thereof. The technical specifications of different pipes RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 54 of 60 have not been detailed or brought to the notice of the court.

45. It is also true that defence has failed to show that any other method has been more proper or perfect than the one used by PW 2. However, the question remains whether expert evidence is conclusive or corroborative and to what extent can be relied upon.

46. It is not disputed that inspection has been conducted after a lapse of 5 years. Even at the time of inspection, bore­well was functioning and there was presence of water. As per report of Hazira Kabristan, Johnson Screen Pipe was to start from 91 meters in accordance with strata chart but from 76.2m to 137.8m, MS slotted and blank mixed pipe have been seen. The report appears to be vague particularly when it is mentioned in the report that video was not clear. No specifications about the length of slotted and blank pipes between 76.2m to 137.8m is given and it is not explained as to how MS slotted and blank pipes could be mixed. As per the report of B Block near Gurdwara, 55metres Johnson pipe was to start from 82m but blank casing is observed upto 63.4m and from 63.4m to 109.75m MS slotted is seen. According to report of Thomas site, 60metres Johnson pipe was to start from 91m but from 84.1m to 121m there was no casing RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 55 of 60 found and well was filled. There is no explanation whether there was any possibility of pipes having been damaged or detached as found in other case. In such circumstances, when the pipes have been installed in the borewells about 5 years before inspection, the report about nature and status of pipes cannot be considered as clinching evidence. It is difficult to find out and ascertain even after careful viewing of the CD as to what was the nature of pipes installed. The movement of video is fast and jerky. Even the CFSL opinion not obtained to confirm the genuineness of CD.

47. It is very important to note that PW 2 has not elaborated his findings and simply stated that no Johnson screen pipes were seen. He has not done any scientific analysis nor he has demonstrated any special skill. Analyzing the circumstances of the present case, the report is not a strong piece of evidence. It is improbable that the nature of the pipe could be clearly seen and observed in such circumstances. PW 4 Anil Kumar has also got practical experience about the working of bore­well and according to his testimony, the Johnson Pipe is made of metal and deposits and moss formation occur quickly due to which shape of holes gets varied and in that case it is difficult to find out the nature of pipe. Generally, the life of bore­well is 5/7 years and due to RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 56 of 60 pressure Johnson Pipe may get squeezed and also in the event of damaged pipe, bore­well would collapse. He admitted that there is no complaint about the working of bore­well in question. In this way, PW 4 has given counter testimony and has not supported the findings of expert witness. If the testimony of PW 4 Sh. Anil Kumar is taken into consideration, the report cannot be termed as conclusive proof and much significance cannot be attached to the same.

48. The expert has not offered any explanation as to how in case of damaged or detached pipe with moss covering, the quality and nature of pipe could be discovered and how the borewell is functioning properly. It is also evident from the site inspection memo and site plan that N. Jyoti Kumar, Scientist­C, Certified Ground Water Professional (CGWP), New Delhi, was also present during the inspection. This witness has not been examined by the prosecution to substantiate the facts spelt out in the expert report. There is no explanation as to for what purpose scientist Sh. N. Jyoti Kumar joined the inspection. His testimony, if recorded, would have further clarified the facts as to the expert report Ex PW2/A. The report of expert witness therefore is not free of doubts and absolute reliance cannot be placed on the same to reach to clear conclusion about the nature of the pipe. In my opinion, it RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 57 of 60 would not be safe to absolutely rely upon the evidence of PW 2 to conclude that Johnson pipes were not used.

49. I have already held that evidence of forged bills is doubtful. The procedure of PW 2 and his findings cannot be termed as conclusive or clinching evidence and therefore, it would not be safe to conclude that Johnson pipes were not installed in the borewells in question. I conclude that prosecution has failed to establish this fact beyond reasonable doubt.

50. The documents / paper work of this case is in proper order. It is evident from the depositions of DJB witnesses that work has been executed as per contract and requirements and to the satisfaction of JE, AE and EE concerned. It is not the case of prosecution that functioning of bore­well has failed, thereby causing loss to the department. Also there is no evidence about the actual and wrongful loss resulted to the Government due to the bore­well work executed by the contractor. It is clear that purpose of installation of re­ boring stands fulfilled and it is still providing water as per the requirements. The satisfaction certificates were issued by all the concerned officials in favour of the contractor. The AE Sh. A.P Garg RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 58 of 60 was the important witness having signed the alleged forged purchase vouchers and was also present on 22/09/2008, 06/11/2008, 18/11/2008 when the Johnson Pipes were installed in the bore­wells in question. The said witness has not been examined despite his statement was recorded during the investigation and u/s 114 (g) Indian Evidence Act inference is clear that his evidence would have been favourable to the accused persons.

51. Needless to state that prosecution is required to prove its case through unimpeachable evidence beyond any shadow of doubt. The charge u/s 471 IPC about use of forged invoices is not established. The ingredients of offence u/s 420 IPC are not made out or proved and prosecution has failed to establish its allegations against the accused persons beyond doubt. Also for the above reasons, charge u/s 477­A automatically goes as official entries are not proved to be incorrect or false.

52. In the same manner, the charge of abusing the official position by corrupt and illegal means to provide gains to the contractor u/s 13(1) (d) of the Prevention of Corruption Act, 1988, also fails.

RC­DAI­2012­A­0023 CC No. 06/15 CBI vs. Pradeep Kumar & Ors. Page 59 of 60

53. In the end, I conclude that prosecution has failed to bring home the guilt of accused A­1, A­2 and A­3 beyond shadow of doubt. The benefit of doubt is given to accused persons and they are acquitted of all the charges. Their bail bonds are canceled and previous sureties are discharged and the accused persons are directed to submit the bonds u/s 437A Cr. PC in the sum of Rs. 30,000/­ each.

54. Ahlmad is directed to page and book­mark the file so as to enable digitization of the entire record.

55. File be consigned to record room on compliance of section 437A Cr. PC.

 
                                              (Anju Bajaj Chandna)
Announced in open court                       Special Judge (PCAct)(CBI)­6, 
today i.e., 23/05/2016                        Patiala House Court, 
                                              New Delhi




RC­DAI­2012­A­0023    CC No.  06/15   CBI vs. Pradeep Kumar & Ors.   Page 60 of 60