Delhi District Court
Vide Separate Judgment Dated ... vs Central Bureau Of on 16 September, 2015
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IN THE COURT OF JITENDRA KUMAR MISHRA
SPECIAL JUDGE (PC ACT) CBI,
KARKARDOOMA COURTS : EAST DISTRICT
DELHI
Unique ID No.02402R0012241996
RC No. 2(A)/95
AC No. 67/11/96
In the matter of
Central Bureau of Investigation
VERSUS
1. P. C. Rao (Discharged vide order dated 07.12.2005)
GM (Retd.), Bharat Heavy Electricals Ltd.
R/o 239, Gulmohar Enclave, New Delhi. (A1)
2. Y. K. Nayyar (Discharged vide order dated 07.12.2005)
GM (Retd.), Bharat Heavy Electricals Ltd.
R/o 329, Sheikh Sarai, Part-I, SFS, DDA Flats,
New Delhi (A2)
3. V. C. Ramulu
Dy. GM, Bharat Heavy Electricals Ltd., Noida (A3)
4. Denis Barnabas
Sr. Manager, Bharat Heavy Electricals Ltd.,
New Delhi. (A4)
5. C. P. Chopra
Manager (Retd.), Bharat Heavy Electricals Ltd.
R/o B-90, Pushpanjali Enclave, Pritam Vihar,
New Delhi.
(Proceedings abated vide order dtd. 23.12.14) (A5)
6. O. P. Sharma
Dy. Manager, Bharat Heavy Electricals Ltd.,
Noida. (A6)
7. P. L. Khadala
Sr. Engineer, Bharat Heavy Electricals Ltd.,
Jagdishpur. (A7)
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8. P. C. M. Jhammnani
Engineer, Bharat Heavy Electricals Ltd., Noida (A8)
9. S. N. Jha
Assistant Foreman, Bharat Heavy Electricals Ltd. (A9)
10. Anil Kumar Goel
Prop. M/s Anil Kumar Goel,
Patel Nagar, Station Road,
Hapur (U.P.) (A10)
..... Accused persons
Date of Institution :24.05.1996
Date of Judgment: 11.09.2015
JUDGMENT
1. CBI has registered this case upon which charge-sheet has been filed wherein it is alleged that accused no. 3 V. C. Ramulu on behalf of of Bharat Heavy Electrical Ltd. (hereinafter referred as "BHEL") invited tenders for construction of dispensary and for maintenance of it at Noida township of BHEL through press notification dated 28.03.90. Eight firms offered their rates. As per rates quoted in the tender by Sh. Anil Kumar Goel of M/s Anil Kumar Goel, the rate for item no. 19 of the Schedule of Works i.e. "Transportation and fixing of ceiling fans" comes to Rs. 12.32 per fan. As per the schedule of rates - 84 published by the CPWD for electrical items, the rate for transportation of ceiling fan is Rs. 1.20. each and the rate for fixing of ceiling fans is Rs. 5.85 each and total amount for transportation and fixing of ceiling fans, thus comes to Rs. 7.05 each and after adding 74.85 % of the above rates as 3 offered by M/s Anil Kumar Goel, the rate for transportation and fixing of ceiling fans comes to Rs. 12.32 per fan.
2. Sh. V.C. Ramalu (A3), Sh. C.P. Chopra (A5) and Sh. O. P. Sharma, the committee members processed the tender and the comparative statement was prepared by A9 which was duly signed by the Committee Members. It is the case of the CBI that pursuant to the criminal conspiracy, A9 while preparing the comparative statement in respect of the tenders received, fraudulently mentioned Rs. 685/- as DSR-84 rates against Sl. No. 19 instead of Rs. 7.05 p and it was checked and signed by the three Committee Members. According to this comparative statement rate of Anil Kumar Goel (A10) for item no. 19 of electrical items mentioned in the schedule of rates comes to Rs. 685 + 74.85 % = 1197.72 each. As per the tender received from eight firms, the rate of M/s Anil Kumar Goel for electrical items was Rs. 107199.82 being L7 out of eight tenders whereas the lowest offer for electrical items was from M/s Prompt Constructions at Rs. 31683.85 p.
3. The tender committee members recommended for acceptance of offer of A10 for civil and electronic work which was examined by Sh. Denis Barnabas (A4) who agreed with the 4 recommendation. Sh. P.C. Rao, after examining the concerned note approved the acceptance of the offer of A10 on 21.07.90. The matter was further referred to Sh. Y.K. Nair on 30.07.90, who accorded financial concurrence for the offer of A10 inluding the rate for transportation and fixing of celing fans. The final approval of the competent authority was obtained on 01.08.90, However, A3 issued work order to A10 on 20.07.90 for which agreement by A 3 and A10 was executed on 25.07.90 i.e. much before the approval of the rate of A10. It is further mentioned in the chargesheet that 50 ceiling fans were installed at the dispensary and maintenance office by A10 and the work was entered in the Measurement Book 006/B (hereinafter referred as 'MB') duly signed by A3, A7 to A9. The rate for transportation and fixing of ceiling fans were mentioned as Rs. 685 + 74.85 % by A9 which was signed by A3, A7 A8 and A10 and submitted the bill which was passed by A5. The payment was made to A10 on 01.10.91 and an excess amount of Rs. 59270/- was paid to A10 dishonestly and fraudulently causing wrongful loss to BHEL, and wrongful gain to A10. Even the cheque on behalf of A10 was received by A3 on 01.10.91. A10 signed the MB as full and final settlement of the bill which was verified by A8 and certified by A3. It has also been mentioned in the chargesheet that sanction for prosecution of A3, A4, A6 to A9 have been obtained U/s 19 (1) (c) of 5 the P.C. Act. No sanction was required for prosecution of accused no. 1, P.C. Rao, accused no. 2 Y. K. Nayyar and accused no. 5 C.P Chopra as they were retired from the service of BHEL and were not public servant.
4. There is no extension of work order on 09.04.91 recommended by A3 in favour of A10 at the rate already approved for the previous work as this work was left midway by the another contractor. A4 agreed with this recommendation on 16.04.91. Approval of competent authority was obtained on 20.04.91. As per extension of the work order, A10 executed the work and installed 192 ceiling fans alongwith other work as per entry made in the MB 007 which were made by A9 and verified by A3, A7, A8. A bill for the job @ Rs. 50 each was submitted by A10 to BHEL which was received by A3 on behalf of A10 on 24.02.93 and A10 put his remarks in MB about the full and final settlement and there was no outstanding payment against this bill.
5. Accused no. 10 vide letter dated 06.04.94, claimed that the payment has been paid @ Rs. 12.32 each for transportation and fixing of ceiling fans instead of Rs. 1197.72 as approved rate and demanded the difference for payment against supplementary bill. 6 The matter was examined by A3 and A4 to justify the payment of supplementary bill by fraudulently re-entering in the MB for the same work was got done by them, in an illegal manner and a supplementary bill was prepared for an extra amount of Rs. 2,21,942.28 paise at the instance of A3 and A4 being the difference of the amount already paid and the amount to which A10 was entitled to be paid. Thus, for fixing 242 fans at BHEL, Noida, A10 was dishonestly and fraudulently paid an excess amount of Rs. 285866.78p by these officials of BHEL. The prosecution claims that the accused persons in conspiracy with each other, manipulated and put forged entries in MB 007 to justify the payment of supplementary bill, a draft about the contents required to be entered in MB was prepared by A9 and was corrected by A3. Subsequently, it was inserted in the MB by A10 with a view to cheat BHEL to the tune of Rs. 286866.78p. Thus, prosecution claims that the accused persons committed offences punishable U/s 120- B/420/467/471/477-A IPC. The prosecution filed the challan against P.C. Rao and Y. K. Nayyar as A 1 and A2. However, my Ld. Predecessor vide order dated 07.12.05, discharged both of them and ordered to frame charge against all other accused persons. 7
6. My Ld. Predecessor framed charge against other accused persons on 30.05.07. All other accused persons from A2 to A10 pleaded not guilty and claimed trial.
7. It is pertinent to mention that accused C. P. Chopra left this world during trial and thus case abated against him vide order dated 23.12.2014.
8. To prove charge against accused persons, CBI examined following witnesses.
PW1 Sh. K. N. Anantha Naryayanan Chief Egineer Electrical, CPWD, New Delhi.
PW2 Sh. N. C. Lakhanpal Sr. Manager, BHEL, Noida, UP PW3 Sh. D. Sri Ramamurty Retired Director (Personal) BHEL PW4 Sh. K.T. Hegde Retired Sr. Manager, Vijaya Bank PW5 Sh. D. K. Chawla Cash Officer, Canara Bank. However, later on dropped.
PW6 Sh. Kalu Ram Supervisor
PW7 Sh. Rames Lal Clerk, Canara Bank
PW8 Sh. K. V. Sriniwasan Sr. Manager (Finance)
PW9 Sh. S. S. Rao General Manager
PW10 Sh. Nagendra Gupta Dropped
PW11 Captain S. L. Bhambri Deputy General Manager
PW12 Sh. Sanjay Makhija Accounts Officer
PW13 Sh. Balbir Singh Owner of M/s Prince Electric Works
PW14 Sh. S. B. Chawla Accounts Officer
PW15 Sh. Ram Pal
PW16 Sh. G. Sundrani Retd. Additional General Manager
PW17 Sh. Vidyanand Deputy Manager (Finance)
PW18 Sh. S. C. Arora Deputy General Manager (Vigilance)
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PW19 Sh. Mohinder Singh GEQD
PW20 Sh. R. P. Verma Manager (Finance)
PW21 Sh. K. Raghavan DGM (Admin )
PW22 Sh. Harish Chander Manager
PW23 Sh. Rakesh Sharma Public witness
PW24 Sh. N. K. Mukherjee Retd. SP CBI
PW25 Sh. G. G. K. Rao Accountant at BHEL
No other witness examined by CBI.
9. Accused no.3 to 8 were examined U/s 313 Cr.P.C. on different dates. Accused claimed to examine the witnesses in their defence. In defence accused examined following witnesses:-
1. DW1- Sh. K. K. Seth, Executive Director, HRDI, BHEL, Noida, UP, who proved letter dated 16.03.1994 as Ex DW1/A.
2. DW2- Sh. Deepak Kumar, Sr. Manager (Finance) BHEL, Corporate Office, Delhi.
10. On 12.08.2015, accused no. 3 moved an application for examination of another witness Sh. Jai Kishan. Application was allowed on the same day and Sr. PP for CBI also did not put objection with a view that let the accused be permitted to put his defence in the interest of justice. Application was allowed subject to cost, keeping in view another attempt to delay in the trial and with the consent of learned defence counsel Sh. M. P. Singh and Sh. U. 9 C. Saxena, Sr. PP for CBI this court listed the matter for 13.08.2015 for defence evidence. On 13.08.2015, Sh. M. P. Singh himself appeared and submitted that he was not able to call the witness and therefore closed the defenc evidence which was earlier allowed vide order dated 12.08.2015. Therefore, accused persons have been given sufficient to opportunity to lead defence evidence.
11. This court heard arguments at length as advanced by the prosecution as well as defence. It is the argument of CBI that it has proved its case beyond reasonable doubt as all accused persons are guilty of offence under Section 120B/420/467/471/477(A) IPC and Section 13 (2) read with 13 (1)(d) of Prevention of Corruption Act, 1988.
12. Defence counsel opposed with the argument that the CBI is not able to prove its case against either of the accused. It is submitted on behalf of the defence that testimony of either PWs are not going to support the CBI.
13. Lets discuss testimony of all the witnesses 10
14. Sh. K. Anantamurthy Chief Engineer (Electrical) was examined as PW1. He deposed that he was posted as Superintendent Engineer (Vigilance) Electrical, CPWD from July, 1994 to April, 1996. The schedule of rates for electrical works issued from time to time. It contained estimates rates of various items of electrical works in building etc. He has proved one such schedule of rates which was published in 1984 as Ex PW1/1. He further deposed that as per Ex PW1/1, rates for installation of ceiling fans at page no. 73 at item no. 1 as Rs.5.85 and additional as per item no. 5 on same page for carriage of fans from store to site is Rs.1.20. Then the total rate become Rs. 7.05. On this amount 74.85% is added, the rate would become Rs.12.32 p. This witness has not stated that he is any way connected with any of the event or incident pertaining to the present case. He appeared for the purpose only to prove Ex PW1/A.
15. During cross-examination, PW1 has stated that Ex PW1/A contains the rates which was prepared by the Director General Works, CPWD, basically for CPWD but same are being used by some other departments. He has further submitted that this document was not prepared and published by him. This document has not been published in the Gazette of India.
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16. Sh. N. C. Lakhanpal, Manager BHEL was examined as PW2. He deposed that on 25.06.1996 he was working as Sr. Manager in BHEL, Noida. Prior to that he worked as engineer and was attached to A3 and was assisting in different matters related to construction. He has seen, A3, A5(since deceased) and A6 signing and writing during the ordinary course of business and identified their hand writing and signatures. He further deposed that during the relevant period BHEL had awarded contract for construction to A10 at BHEL Township, Noida. Comparative statement was prepared on the basis of rates given by different contractors against tenders invite notice. He had seen comparative statement prepared by A9, whose hand writing he identified as he had seen him signing and writing during the ordinary course of business, which was signed by A6, A3 and A5 (deceased). He further deposed that in this comparative statement DSR-84 rates mentioned as Rs.685 + 74.85%. The work was being supervised by A7, A8 and A9. The entries are in the hand writing of A9 which was signed by A7, A8 and A10 at points A, B & C respectively, after certificate regarding the work, A3 had signed at page 107 at point B. The measurement book is Ex PW2/B and Ex PW2/C. The entries from page no. 95 to 113 are in the hand writing of A9. At page no. 101 of Ex PW2/C, A10 has made endorsement as full and final settlement. There was no 12 outstanding payment against this bill and it was certified by A3 under his signatures at point A at page 102. He further deposed that payment was for installation of fans at the rate of 12.32 per piece which is DSR-84 rate + 74.85% above the DSR which is a correct rate.
17. At this stage, Ex PW2/B is seen where in black ink in bigger fonts it is mentioned "full and final settlement, there is no outstanding payment against this contract" and it bears the signatures of A10 at point D. It also bears signatures of A7 at point A, A8 at point B, A9 at point C. It is further observed by this Court that at the top of this page there is certificate and thereafter another certificate issued at the bottom of the page and in between there was space left wherein such noting as observed hereinabove in different ink and at different time has been mentioned. Another peculiar fact which is observed now that neither date of certificate has been mentioned nor date of noting of full and final settlement, has been mentioned nor either person who has signed, whether it is A3, A6, A9 and A10 has mentioned the dates. Moreover, in this page fonts of the certificate at the top of the page and bottom of the page, same pen and same ink has been used but when the noting has been made there was use of different ink.
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18. Now this Court is not able to understand why there is different ink as observed have been used in the middle of the page when abovmentioned noting has been mentioned. At page 107 there is signatures of Sh. V. C. Ramalu (A3) which is signed at point E. It bears the date of 16.09.1991. Again there is certificate issued regarding present inspection of the work and physical completion of the work in the same ink which has been used in certificate at the top and bottom at page 106 of this document but this Court is surprised why different ink has been used in middle of the page and why that space was left blank. None of the accused has mentioned the reason for it. At point E, date of signature is mentioned as 16.09.1991 but again observed signatures are in different ink. By this document this Court is of the opinion that it cannot be said that all such persons have signed this document at the same time. May be in official capacity, those persons signed document at different times but A7, A8, A9 and A10 have not mentioned the date of signatures on the said document. Reason for not mentioning of dates has also not been explained by the accused.
19. Ex PW2/C is also perused. Again in this document at page 95 which is also Ex PW16/12, in mid of the document there is entry no. 4, as mentioned but "digit '4' has been over written over 14 digit '9'" and against it there is mention of fixing of ceiling fans. Thereafter, there is cutting in column L, 192 number added below it and there is again cutting in column D and there is again overwriting at last bottom entry and over there is cutting for the amount of bill. There is interpolation as " As per BOQ of dispensary maintenance office, the rates for the item is 685 + 74.85%. The rates entered in the MB is ascertained only as past rate."
20. Now peculiar facts are observed when this document is perused. Item no. 1, 2, 3 and thereafter item 5 has been mentioned and by overwriting item over item no. 9 there is item no. 4. But item 4 has over written comes after item no. 8. None of the accused from A3 to A9 who was working in BHEL has able to explain why this document there are such interpolations, over writings and cutting.
21. Now again coming to page 101 of Ex PW2/C there is again mention about full and final settlement and no outstanding payment against the bill. But again this noting is in the mid of the page in different ink and in different fonts. At the top of the page there is certificate and mid of the page bottom there is another certificate but in between of the page, there is noting as observed. Moreover this document bears signatures of A10, A7 but again 15 another peculiar facts is that neither at the endorsement nor in the certificate date has been mentioned. On page 102 at point A, there is signatures of A3 dated 23.02.1993.
22. PW2 further relied upon Ex PW2/D and stated that it bears signatures of A9 and A3. Document is perused. This document at the face of it bears a stationary paper pertaining to BHEL. In this document, there is a writing by using pen which is red portion as under:-
"This item exists in agreed BOQ of dispensary and maintn office, the rates of which applicable for this contract of balance A Block, the rates for this item is 685 + 74.85%. The rate entered in the M. B. is acceptable only as per rate."
It also contains several cuttings.
It is further stated that Prince Electricals work awarded the work of fixing of fans at the rate of Rs.10/- per fan. The note sheet regarding award of work to Prince Electricals is Ex PW2/E. The document is perused. This document is dated 25.04.1991. He has further relied upon Ex PW2/F which is a bill for payment of installation of 137 fans at the rate of Rs.10/-. This witness was cross-examined.
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23. Upon question in cross-examination, this witness stated that fans were supplied by BHEL was based on information / knowledge since he was working in BHEL but he could not tell number of fans which were supplied by BHEL in the present case. He could not tell number of fans which were supplied by outside contractors. He denied the suggestion that A6 had merely signed the comparative statement, subject matter of the present case and apart from that he had no role to play in the case. He denied that this witness was not involved at any stage in any capacity including supervisory.
24. A7, A8 and A10 tried to establish the case that M/s Vatushilpa was giving the work of estimates by BHEL in support of the jobs subject matter of the present case. In cross-examination, this witness admitted an agreement dated 25.07.1990 entered into between the BHEL and A10 as Ex PW2/DA.
25. During cross-examination, witness admitted Ex PW2/DB which is rate of electrical items as per schedule DSR - 84. Witness referred to entry at Sl. No. 19, in Cl. no. 5, 'Rs. 685/- each' has been written. Entry at Sl. No. 19 is referred herein:-
"19.Transportation, installation, testing and commissioning of 1200 mm dia 17 ceiling fans to ceiling of the building including all accessories like regulator No 40 685.00 27400. and all connection with 1.5 sq. mm PVC Total 61298.00 insulated aluminium conductor cable etc. as required."
It bears signatures and seals of A3 and A10.
26. PW2 has admitted that generally it is the duty of the Finance Department to check the contractual rates before clearing bills and making payments to the contractors. He has further admitted that first scrutiny of the contractor bills lies with the project office and the final scrutiny rests with Finance Department. This witness further clarifies that with respect to portion of his deposition recorded in his examination in chief regarding grant of contract to M/s Prince Electricals for maintenance of fans @ Rs.10/- each. He has stated that awarding of said contract, size, makes and specifications of the ceiling fans were not mentioned perhaps because fans were not supplied by M/s Prince Electrical. Therefore this witness corroborates his statement that it was the practice of BHEL to supply the fans to the contractor as earlier fans were not supplied by the Prince Electrical and this witness stated in this case the fans were not supplied by A10. Moreover, during cross- examination confronted with Ex PW2/DB wherein also at Sl. No. 19 as referred herein above there is no mention of supply of fans or cost of fans.
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27. PW3 was Director Personnel from October 1995 to August, 1997. He was the sanctioning authority for prosecution. He has proved sanction order for prosecution as Ex PW3/A. During cross-examination, there is no serious challenge to the sanction order even otherwise during arguments, none of the counsels or either of the accused have challenged the sanction order for prosecution. Therefore, sanction order for prosecution of the accused persons is not in dispute.
28. PW4 Sh. K. T. Hedge was working as Sr. Manager with M/s Vijay Bank, Noida. He proved pay in slip dated 29.09.1994 for Rs.2,21,989.76 by A10 for and on behalf of the of M/s Anil Kumar Goel, OD Account no. 5/94. This document is Ex PW4/A. He further proved the certified copy of the statement of account of M/s Anil Kumar Goel as Ex PW4/B. He identified his attestation on this document at point A on all sheets. He further referred the relevant entry in sheet no. 2 at point X. He has further stated that said amount was deposited by way of cheque no. 590027 dated 28.09.1994 drawn on Canara Bank, Hauz Khaz was credited in account of M/s Anil Kumar Goel. He has further proved his signatures on seizure memo Ex PW4/C at point A at Ex PW4/C. Testimony of this witness remained unchallenged by any of the 19 accused.
29. Sh. D. K. Chawla, was examined as PW5. He has stated that vide pay in slip dated 01.10.1991 Rs.77,091.27 were credited vide cheque no. 46006 by M/s Anil Kumar Goel and the relevant entry in this regard is at point A. Copy of ledger pertaining to the said current Account is 20463. However, this witness could not be examined as on 09.08.2011, it is reported that witness has expired and his name was struck from the list of witnesses.
30. CBI examined Sh. Kalu Ram as PW6 who was working as Supervisor with M/s Anil Kumar Goel from 1990 till 2002. He deposed that bill was prepared as per instructions of A10. He further deposed that bills were being raised only after the construction. He identified the bill as Ex PW6/1. This witness was declared hostile and learned Public Prosecutor for CBI was allowed to cross-examine the witness. He admitted that he has given statement to CBI that he lived in the house of A9 as tenant since February, 1994. In Ex PW6/1 there is item no. 5 wherein fixing of fans has referred in column no 9. However there is cutting over figure 50 and 7.05 has been inserted. Quantity as referred in column no. 7 for fans is 192.
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31. Sh. Ramesh Kumar was examined as PW7 and stated that he remained as clerk in Canara Bank, Branch Hauz Khaz from 1991-92. He had seen two cheques bearing no. 391730 dated 26.09.1994 for Rs.4,46,512.28 and 865759 dated 25.02.1993 for a sum of Rs.2,96,774.32 both drawn on Canara Bank, Hauz Khaz Market, New Delhi. These cheques were cleared by his branch. He has further stated the cheque amount mentioned therein credited to Vijaya Bank, Noida Branch and for other cheque the amount credited to Syndicate Branch Morna Station branch, Noida. Testimony of this witness remained unchallenged.
32. Sh. S. K. Srinivasan was examined as PW 8. He deposed that he worked at BHEL from 1973 to 1975 and again from 1977-2001. Initially he joined as Accountant and retired as Sr. Manager (Finance). During 1990-91 he was Deputy Manager (Finance). He explained the procedure of clearance of the bills. He stated that contractor used to submit bill at the site to the person incharge of the relevant site for a particular. Thereafter, the site incharge or the officer incharge of that work would certify the entries made in the bill in accordance with the agreement pertaining to the concerned work. Thereafter, the relevant bill alongwith enclosures like measurement books, would be sent to Finance Section to 21 process and payment. Thereafter, Accounts Officer or the officer incharge of the particular work authorised for making payment would verify the bill. The entries made in the bill and MB would also verify that the entries made there were in accordance with the relevant agreement and thereafter issue a payment order on the bill. Thereafter, the bill would be sent either to cash section or to the cheque section for issuance of a cheque.
33. He has seen cheque no. 865759 dated 25.02.1993 for Rs.2,96,774.32 in favour of M/s Anil Kumar Goel. Said cheuqe bears signatures of A4 and Sh. R. P. Aggarwal at point A. During cross-examination, this witness stated that contractor can submit supplementary bill.
34. Sh. S. S. Rao was examined as PW9, who deposed that he served with BHEL from 1968 to December 2003. In the year 1995, he was General Manager (Personnel). During cross- examination, this witness stated that decision of DGM in finance matters were subject to the approval of GM (Finance) and GM( Administration). He has further deposed that not in all cases the tenders used to be floated by BHEL by appointment of consultation and submission of estimates by them. But in some 22 cases such consultants used to be appointed, who used to submit their estimates before floating the tenders.
35. PW10 Sh. Nagendra Gupta was dropped as unnecessary witness by the CBI.
36. Captain S. L. Bhambri was examined as PW11. He deposed that during 1991 and 1995, he was posted as Deputy General Manager in BHEL. In the year 1995 he was managing Human Resources Department. He has stated that he had forwarded note for examination by Financial Department which is Ex PW11/1 (D-31). It bears his signatures at point A and endorsement at point B. Document is perused. This document discloses that the annual expenditure during the year 1994-95 for providing required services/repairs of fans, desert coolers, room heaters and re- winding of motor, pumps etc. was about Rs.20,000/-. It is further disclosed that M/s Prince Electricals Works, Delhi was undertaking maintenance job of the BHEL township at Noida for the last 6 to 8 years and services so far provided was satisfactory. Testimony of this witness remained unchallenged.
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37. Sh. Sanjay Makhija was examined as PW12. However, testimony of this witness is not going to help either CBI or accused persons.
38. CBI further examined Sh. Balbir Singh as PW13 who stated that he was running shop of repair at M/s Prince Electrical works, Roshanara Road for the last 25 years. He has done work for BHEL at Noida. He proved letter dated 01.04.1991 as Ex PW13/1. In this letter new rates were quoted for re-winding of fans 48" for Rs.135/- whereas replacement of bearings 48" for Rs.45/-. This letter is upon the letter head of M/s Prince Electrical Works wherein the willingness to continue work expressed on the rates mentioned referred herein above. This witness further proves his signatures at point A on this document. He further referred Ex PW13/2 which is bill generated on 20.12.1992. He has further proved document Ex PW13/3 which is letter dated 06.06.1995 addressed to Sr. Manager, BHEL. He has further stated that he had charged Rs.10/- for fixing of ceiling fans as per Ex PW13/3. He also provided document Ex PW2/F. It bears date of 10.06.1992 wherein he charged @ Rs.10/- for installation of 137 ceiling fans.
39. CBI further examined Sh. S. B. Chawla as PW14, who 24 stated that he was posted as Accounts Officer in the BHEL in the year 1995. During cross-examination witness was confronted with voucher bearing date 26.09.1994 which is Ex PW14/DA. This is a document for release of payment to A10. He further deposed that "as per contract condition cheques to be delivered by hand, special rebate allowed."
40. CBI examined Sh. Ram Pal Chaudhary as PW15. This witness proved seizure lists dated 09.08.1995, 11.08.1995 and 14.08.1995 as Ex PW15/1 to Ex PW15/3 respectively. Testimony of this witness remained unchallenged.
41. CBI examined Sh. G. Sundrani as PW16, who stated that in the year 1990, he was working as Deputy General Manager in BHEL. He has in detail disclosed the procedure pertaining to awards of tenders and execution of work as was applicable to BHEL in the year 1990. He proved notice D-15 file pertaining to tender no. AA NOI. CW:89:04 dated 28.03.1990 as Ex PW16/2.
42. He further proved that as per this file tenders were open by A3, A5 and A6. He has further stated that A10 was found lowest bidder. He further proved Ex PW16/3. He further proved note sheet 25 dated 20.07.1990 bearing signature of A3, A5(since deceased) and A6 at points A, B and C respectively, which is Ex PW16/4. This document is perused. This Court observes that in this document at various places white fluid has been used. This court further observes that there is a seal of receiving and it bears date 31/7. He further proved Ex PW16/5 vide which Manager (Finance) had given his concurrence. He further deposed that he had seen comparative statement dated 19.07.1990 which is Ex PW2/A and according to it M/s NAV was the lowest bidder and A10 was not lowest bidder therein. He further deposed that as per Ex PW2/DA rates for transportation, installation, testing and commissioning of 40 ceiling fans had been shown as Rs. 685/- per fan. These rates were exorbitant and were against DSR-84 which was applicable in BHEL. He has further deposed that as per note Ex PW16/4, the work was awarded to A10, was approved on 01.08.1990 by the then ED (HRM & PR) as GM (Administration) was on leave and on the same day, file was sent back to A3 who had also put his signatures on 01.08.1990 but the work order was already issued on 25.07.1990.
43. He has further deposed that as per schedule booklet (D-
34) which is Ex PW1/A, charges for installation, testing and commissioning of one ceiling fan was Rs.5.85. He further referred 26 Ex PW16/6 which relates to "Balance A Block Work". This document bears date 06.11.1995. This document states that as per BOQ of Dispensary & Maintenance Office, the rate was Rs.685 + 74.85%. Ex PW16/7 also states similar.
44. Note sheet Ex PW16/8 is also proved by this witness. Ex PW16/9 is a note executed by A10 regarding full and final settlement and no outstanding payment against the bill was there. It bears date 16.11.1995 and bears signatures of A3 at point A.
45. He has further proved document Ex PW16/10 which is letter dated 06.09.1994 issued by A10. By this letter, A10 claimed the amount of difference for work payable to Rs.2,27,597.28p. By this document, A10 contractor claimed difference in rates for 192 ceiling fans. Thus this document by which the contractor had claimed first time difference of rates of ceiling fans.
46. Ex PW16/10 is carefully perused. In this letter, it is intimated by A10 that in the final bill, item fixing of ceiling fans was wrongly paid @ 12.32 each. For the first time by this letter, A10 claimed that the rates are to be 685 + 74.85% equal to 1197.72. 27
47. He referred schedule of rates as mentioned Ex PW1/A under title carriage of fans, wherein rates mentioned as:-
"1. Installation testing and commissioning of ceiling Fan and regulator including wiring the down rod of standard length (upto 30 cm) etc. as required .. .. .. . Each 5.85 ................. .................... .................... ................ ................... ....................
5. Carriage of ceiling fan/exhaust fan and regulator from store to site as required .. .. .. . Each 1.20"
48. Now if item 5 and item 1 is added then it comes to Rs.7.05. If as per the contents of Ex PW16/10, 74.85% is to be calculated of Rs.7.05 then it will comes to Rs.5.27 and total comes to Rs.12.32. Thus as per contents of this letter and if contents of this letter is tested in the light of Ex PW1/A then the amount was to be paid Rs.12.32 each as mentioned but for the first time by this letter A10 claimed rate 685 + 74.85%. How, this magical figure of Rs. 685 arrived at and source of this figure has not been disclosed by either of the accused. Now A10 by Ex PW16/10 also claimed addition of 74.85% though it is nowhere mentioned as per agreement but contents of Ex PW2/B are added by pen, which bears seal and signatures of A3 and A10. No one from the side of the accused has disclosed how figure Rs. 685 has been mentioned in Ex PW2/DB whereas contents of Ex PW16/10 for the first time 28 disclosed about such rates.
49. Ex PW16/10 further perused wherein calculation by ink has been mentioned as:-
"Balance cleared no.4 229962.72
Less already paid vide
MB 95 (8) clause 4 2365.44
227597.28
Less rebate .25% (-)569.00
Less IT/SC 5086.00
221942.28"
50. All such calculations is only by pen/ink. No calculation is there in type writing whereas entire letter is typed. If we multiply 12.32 i.e. the rate as per Ex PW1/A as referred herein with the quantity of fans i.e. 192 then it comes to 2365.44. It means there was agreement regarding 192 fans at the rate of 12.32 and the amount was paid as per demand made in Ex PW16/10. But later on, accused persons manipulated by adding exaggerated amount to such calculation and Ex PW16/10 was prepared, this document also mentions that the amount was paid as MB 95 (8). Therefore, till the MB was written the rate was agreed upon 12.32/192 as per admission made in Ex PW16/10. A4 at the top of this letter also made note by ink as:-
"Corporate Finance Please make necessary entry in the MB. The claim will then be examined for payment."29
51. Therefore, A4 had directed for manipulation in entries in MB. Therefore, ExPW16/10 discloses that prior to 06.09.94 there was no talk of 685 + 74.85%. It is only by this letter A10 started manipulation and other accused persons also expressed their intention for manipulation and fabrication of entries to claim for more payment by this document PW16 further proved signatures of A3 at point C. By this letter, A10 first time claimed cost of fans whereas as per entry no.19 of ExPW2/DB, there was no contract for cost of ceiling fans.
52. This witness further proved Ex PW16/11 regarding full and final settlement by A10. Ex PW16/11 is perused. In Ex PW16/11 at the top of this page, there is certificate issued regarding measurement and at the bottom similar certificate is there but in the mid of the page 'full and final settlement' is written in different ink and it bears signatures of A7. Similarly, Ex PW16/13 is also perused. Regarding Ex PW16/12 observations have already made in this judgment herein earlier.
53. He further refers at point A in this document where the total payment of Rs.2365.44 for fixing of fans has been referred. However, by interpolating the entry the rate was inserted Rs.685 + 30 74.85%. He further referred Ex PW16/13 wherein the rates paid @ Rs.685 + 74.85% for 192 ceiling fans less already paid. This document is perused. In this document there are lines have been drawn for cancellation. He further referred signatures of A9 in this document.
54. PW16 further refers document Ex PW16/14 at page 16 of this document where there is running bill of M/s Anil Kumar Goel dated 30.06.1992. Vide this document, work was commenced on 24.05.1991 and completed as per agreement on 28.11.1991.
55. Ex PW16/14 contains a complete folder wherein various final account and running account bills submitted in bill dated 15.02.1991, which are perused. One of the regarding electrical items. At Sl. No. 19, there is claim of 50 ceiling fans charged at the rate of Rs.685/-. There is Ex PW16/15 which is bill dated 24.05.1991 a is running bill. This bill regarding civil work. It further shows that work was commenced on 24.05.1991 and completed on 28.11.1991. This witness has further seen payment voucher Ex PW8/A in Ex PW16/14. He identified signatures of A3 at point A as recipient of the cheque bearing no. 046006 dated 01.10.1991 for Rs.77091.27. It bears signatures of A3 as recipient of the cheque 31 and also of A5. PW16 further deposed that there was no authorization on behalf of M/s Anil Kumar Goel for receipt of this cheque by A3. He further deposed that similarly A3 had received and signed another cheque no. 865759 for Rs.2,96,774.32 as Ex PW8/4 in the name of M/s Anil Kumar Goel without having formal authorization. He further proved cheque no. 391730 dated 26.0.1994 for Rs.4,46,512,.28 which is Ex PW8/2.
56. Ex PW14/D i.e. cheque was also issued by A3 who has signatures at point A in Ex PW14/A. He further deposed that rebate of .25% for delivery of payment by hand.
57. Document carefully perused. At the top of this document there is mentioned "As per contract condition - cheque, delivery by hand special rebate". He has further stated that once the final bill is settled, then there was no question of subsequent/supplementary bill in this case.
58. During cross-examination, witness admits that entries related to work executed by contractor and their claims/bill are made in relevant MBs by the Project Engineering Department. The bills are processed in Engineering Department and the department 32 making payment according to the correct verification of the work done. He has further admitted that bill was not found tenable then no entry of the same is recorded in MB and the contractor is informed accordingly. He has further deposed that in such situation, the matter does not reach to the Finance Department. Therefore, this witness specifically stated that if bill is not found tenable then no entry of the same is recorded in MB and the contractor is informed accordingly. Admittedly, no information on behalf of the contractor has been brought on record where the contractor agitated that the department has informed about any untenable bill. He has further admitted that entries in the MB are made by designated person/ Engineering Incharge. The concerned Engineer or designated person accepting the work will decide which entry to be made in which MB. When an entry is made for the work done and recorded in MB, then the contractor becomes eligible for payment.
59. PW16 has further submitted that if department is required to supply any material that also forms part of the contract. He has further admitted that if any material is supplied by the department, then the cost has to be set off/ recovered from the contractor's payment. He has further submitted that if there is any excess payment to the contractor, then department has right to 33 recover the same. He has further submitted that whatever material is issued to the contractor, it is recorded in MBs.
60. He has further admitted that in DSR-84 (Electrical) Ex PW1/A, in Chapter XIII at Sl. No. 1 entry is "installation, testing and commissioning of ceiling fans and regulator including wiring the down rod of standard length (upto 30 cm) etc. as required." He has further admitted that if some items are to be provided by BHEL then it would be mentioned in agreement that these items are provided by BHEL. He has admitted that engineers do their work provided in the agreement. He has further admitted that department is to make a payment of the work on the basis of rates specified in the contract.
61. After perusal entire testimony of PW16, this Court observes one peculiar feature that as per Ex PW2/DA, the contract regarding installation, testing and commissioning of 1200 mm dia ceiling fans to ceiling of the building including all accessories like regulator and all connections with 1.5 square mm PVC insulated aluminium conductor cable etc. but in Ex PW16/10 calculations in fact have been made for rectification of the amount of claim the balance wherein cost of 192 ceiling fans have also been claimed but in the entire testimony of PW16 nowhere it is challenged on behalf 34 of either of the accused that the contract included cost of ceiling fans or ceiling fans were to be supplied by the contractor i.e. A10. Cross-examination is there that if fans and some items have to be supplied by the contractor, it would be mentioned in the agreement but this Court is unable to understand if ceiling fans were supplied by the contractor or any of the accused/official were having any knowledge that those fans were supplied by BHEL then what stopped the accused to challenge during testimony of PW16 that fans were to be supplied by the contractor for the purpose of installation at the site. It is also not challenged by either of the accused that there was subsequent bill or specific brand of fans which were put up before officials of BHEL by A10 or accused/officials of BHEL have noticed about such fact and such fact was taken into consideration while passing any of the bill by the BHEL. None of the accused who were responsible for maintaining of MB pointed out any entry at the site taking note of supply of ceiling fans from the contractor at the site.
62. Surprisingly, it is case of the defence that ceiling fans have been supplied but PW16 has not been drawn any attention or challenge by any of the accused towards any particular brand of the ceiling fans supplied by contractor. Nowhere it is challenged. 35
63. PW19 Sh. Mohinder Singh, Government Examiner of Questioned Documents (GEQD), Heydrabad has proved his opinion Ex PW19/6. Testimony of this witness has not been challenged by A3 and A9.
64. During cross-examination by A7, A8 & A10 it is deposed by witness that he was not assisted by his assistants and he conducted the examination of documents of his own. However, testimony of this witness could not be shaken by either of the accused during cross-examination.
65. Now the report i.e. Ex PW19/6 is to be perused. At point 2 opinion has been given that writing stamped and marked Q1 and S1 to S4 were written by one and the same person. Q1 is writing as Ex PW2/D whereas SI to S4 were specimen writing taken of A9 are of the same person i.e. A9. He further opined at point 2 that signatures stamped and mark Q2, Q6, Q7 and Q8 and S5, S6, S18 and S19. Similarly, Q2 is at Ex PW2/D. Q6 is at Ex PW2/C, Q8 is at Ex PW2/B which are signatures of A3, Q7 is also by A3. At point 4 of his opinion, that Q3, Q5(a), Q5(b) and S7 to S17 were all written by one and same person. He has further opined that Mark Q5(a), Q5(b) were not written in same sequence. Q5(a) and Q5(b) who are 36 on Ex PW2/C i.e. MB were not written in same sequence as written at Mark Q4 are subsequent additions.
66. PW20 Sh. R. P. Verma resiled from his previous statement and therefore, he was declared hostile witness. He was confronted with statement Ex PW20/1 which was recorded under Section 161 CrPC, wherein he had stated that as per procedure, claim of the contractor against supplementary bill was totally illegal. He had further stated that claim of supplementary bill for the same work after a lapse of more than 18 months did not arise. He had further stated that as per rule this bill never been entertained by BHEL and passing of such bills is highly irregular. After referring said statement, witness has stated that entries made in MB after preparation of bill cannot be changed. He has further deposed that supplementary bill would be made in case any mistake including variations in rates were there which includes clerical error, variation of rates etc.
67. PW21 Sh. K. Raghavan stated that in the year 1995, he was posted as Sr. Manager (Admn), BHEL at Noida office. He has proved Ex PW21/1. Document is perused. This note is regarding issuance of ceiling fans to M/s Anil Kumar Goel, as per record 37 available in site office. There are 7 entries regarding indents and receipt. According to it 237 ceiling fans were issued on 10.01.1991, 23.01.1991, 14.01.1991 and thereafter total 239 fans on 01.07.1991 and 20.07.1991. He has further made a note that these ceiling fans were issued as per DSR-84 (Electrical). This note was prepared by him on 08.08.1995 and he proved his signatures at point A on this document. He has further proved that 239 fans were issued to Sh. S. N. Jha - A9. This is a consolidated statement based on the indents and receipts annexed with this document. He handed over the said indents and receipts to CBI officers alongwith his note from the record of the stores of Noida office. Alongwith this document indent Mark PW21/A is also annexed wherein Mr. R. K. Yadav for M/s Anil Kumar Goel signed. Similarly, Mark PW 21/B is also there. Mark PW21/C is letter dated 14.01.1992 which is on the letter head of M/s Anil Kumr Goel. Ex Mark PW21/D is also a letter dated 30.01.1992 on the letter head of M/s Anil Kumar Goel. He further proved seizure list Ex PW21/2 which is carbon copy. It bears his signatures at point A and at point B it bears signatures of Sh. N. K. Mukherjee, SP, CBI dated 08.08.1995. He has further proved Ex PW21/3 which was issued to M/s Prince Electricals Works. He has further proved that rates recommended for the year 1993-94 was Rs.12.50 for oiling and services of ceiling fans and the same was 38 recommended for the year 1995-96 after taking approval of the management. To support his testimony, he refers Mark PW21/E which is photocopy of letter dated 22.06.1993.
68. During cross-examination, he has admitted that he had prepared Ex PW21/1 on the basis of record. He further admitted that indents and receipts were annexed by him alongwith Ex PW21/1.
69. Sh. Harish Chander was examined as PW22, who proved credit of payment in the account of A10 on different dates by different cheques. None of the accused has challenged testimony of this witness during cross-examination.
70. PW24 is IO of the case. He has deposed regarding investigation of the case and proved various documents collected by him during investigation. He deposed that he filed the charge sheet which was forwarded by the then SP, CBI, ACU-I, New Delhi Sh. N. P. Singh. He further deposed that chargesheet contains his signatures and also signatures of Sh. N. P. Singh. During cross- examination, he deposed that he did not record statement of Sh. N. P. Singh as the same was not required. He further deposed that 39 after lapse of 18 years he did not remember the details regarding tender in the case diary. He has admitted that there was composite tender for Civil and Electrical works and sanitary work and rates were required to be submitted for individual items for work on percentage basis over and above DSR. He further deposed that present case relates to order given for electrical items in which rates were given over and above DSR-84. He denied that he was aware that A3 had taken the approval vide note/letter no. AA: ADM: NOI dated 05.02.1990 for collection of cheques on behalf of the contractor. He has further stated that this approval was granted by Sh. P. C. Rao, GM (Admn) on 07.02.1990 but he has stated that he is not aware about such approval. He further deposed that so far this case is concerned, no audit was conducted though he has further stated that audit report is nothing to do with the criminal case.
71. PW25 Sh. G. G. K. Rao stated that he joined BHEL as Accountant in the Accounts Department in 1979. He has further stated that Ex PW14/DA i.e. voucher N-213 dated 26.09.1994 of M/s Anil Kumar Goel was brought by A3 then DGM and handed over to A4. Then Sr. Manager called him and gave him the bill for passing the same.
40
72. He has further stated that he took the charge recently and he was not aware about this matter. The said bill was passed on the instructions of A4 but he did not sign the voucher. A3 told him that bill was genuine so he passed the supplementary bill. Since they were senior officers, so under good faith, he passed the bills for Rs.4,46,512.28. He proved his signatures at point E on Ex PW14/DA and of A3 at point A who signed while receiving cheque no. 391730 dated 26.09.1994. He has further stated that when the bill was prepared, it was submitted to finance section alongwith MB. He denied the suggestion that Ex PW14/DA was not passed by him under the pressure of A3 and A4.
73. In defence accused examined Sh. K. K. Seth, Executive Director, HR & DR, BHEL. He proved Ex DW1/A which is letter dated 603.1991 which informs that A3 was relived from his duties from corporate office w.e.f. 16.03.1994 (AN). During cross- examination, this witness stated that he cannot admit or deny whether this document is genuine or forged due to non-mentioning of new place of posting where he had to join. Therefore, Ex DW1/A cannot be believed upon in view of this piece of testimony of DW1. 41
74. DW2 stated that he tried to locate document no. AA:
ADM: NOI dated 05.02.1990 containing note dated 05.02.1990 purported to be signed by A3 and note dated 07.02.1990 purported to be signed by P. C. Rao, GM (Admn). He has further deposed that he tried to locate the document in his office by serious efforts have been made on the same but could not locate. He further deposed that it appears that during weeding out process in his office, said document might have been weeded out as despite efforts, same is not available. Thus testimony of this witness is also not going to help the accused persons. Moreover, during arguments, none of the defence counsels has referred the testimony of DW1 and DW2.
75. During arguments, Sh. M. P. Singh, counsel for accused no. 3, 7, 8 & 10 argued that during testimony of PW24 it was stated that he has not made witness N. P. Singh, the then S. P., CBI then he has been deprived of cross-examination of such an important witness. He also tried to demolish the veracity of documents Ex PW24/13 to Ex PW24/17. He has further argued that no witness from M/s Vastushilp called or arrayed as witness by the CBI.
76. He further argued that tender was not only for installation of fans but included the cost of fans, wires, switches and other 42 accessories. He has further argued that rates were approved by upto to the designations of GM in BHEL. He has further argued that final approval was given by Sh. P. C. Rao, GM.
77. It is further argued that Section 13 (1) (b) of PC Act not attracted in this case. He has further submitted that whatever case has been produced by CBI, Section 420, 467, 468 IPC are not attracted. It is further argued that Ex PW1/A has not been proved as per Section 81 of Indian Evidence Act not attracted, to prove this document. It is case that testimony of PW1 and PW2 are not going to help CBI. It is further argued that Ex PW2/DB has not been proved in accordance with law or this document in any manner helps CBI. It is further argued that PW16 never worked with A10, as per his own admission in his testimony. He was not competent to identify his signatures. Prosecution is not able to prove about competence of this witness to prove signatures.
78. He relied upon Ex PW2/DB and referred entry at serial no. 19 and submits that payment was released in accordance with this document. He has relied upon Ex PW14/DA and submits that as per note at the top of this document which referred in para no. 39 of this judgment, rebate was to be allowed for the contractors. He 43 has further referred upon document Ex PW16/10 and submits that payments have been released according to this document (detailed observations made by this Court in para nos. 45, 46 & 48 of this judgment)
79. Sh. Harish Khanna, counsel for accused no. 4 also relied upon Ex PW16/10. It is further argued by him that DSR - 85 meant for civil and DSR-84 for electrical work.
80. He has referred clause 3.7.2 of Ex PW16/DA3 which reads as :-
"3.7.2 The tender form supplied to the intending tenderers should mention the applicability of the general conditions of contract to the tender and the contract to be entered into as well as any special conditions which the tenderers will have to take into account. A copy of the general conditions of the contract should be made available to every tenderer who wishes to have a copy of it either as a part of tender documents or separately on payment of the fee prescribed therefor. Any special conditions which have financial implications will necessarily require to be concurred in by Finance before they are included in the tender. It should be ensured that the items included in the bill of quantities bear the same nomenclature as given in the approved schedule of rates and also as detailed in the estimates. The rates of items which are not strictly according to the nomenclature in the approved schedule should be worked out any analysed and the rates so worked out should be duly concurred in by Finance."
81. He further referred clause 3.4 of this document which is Works Account Manual, same reads as :-
"3.4 In Percentage Rate Contract, the rates for execution of various items of work are indicated in the bills of quantities in the contract and the contractor is required to quote the rates on a percentage basis 44 above or below the rates. In such cases the rates indicated in the bill of quantities should be worked out carefully."
82. He further referred clause 2.6.1 of Ex PW16/DA3 which reads as:-
"2.6.1 On receipt of administrative approval to a scheme or work, detailed estimates are prepared based on sound technical designs and specifications and in sufficient detail providing for all the item of work required. The estimate will consist of a report, specification and a detailed statement of quantities and rates with an abstract showing the total estimated cost of each item. The report will give particulars such as reference to administrative sanction, provision in the budget etc. The abstract of cost of work will also indicate the allocation of head of account. While preparing the estimates an guidelines/directives issued or standards laid down by the Bureau of Public Enterprises or Corporate Office should be kept in view. In every case a detailed estimate should be prepared and approved by the competent authority and concurred in by Finance before work is tendered or undertaken for execution."
83. He further referred clause 4.9 of this document, which reads as:-
"4.9 At the time of preparing the running account bill of final bill as the case may be, an abstract of works measured for the running account bill/final bill will be prepared in the measurement book immediately after the entry of measurements. The abstract will also indicate the payments made of the contractor upto the previous bill and arrive at the payment proposed under the present bill. A pass order will also be given by the Senior Engineer in charge of the work for the amount so approved for payment. A reference will also be made in the measurement book to the bill in which the billed quantities have been entered for payment. All quantities given in the measurement book should be clearly traceable in the documents on which payments are made. The bill will also contain a reference to the number and page of the measurement book in which detailed measurements are recorded and also the dates of measurements, the names of the officers who measured or checked the measurements etc. After due check and passing of the relevant bill in the Finance and Accounts department, the entries in the measurement book including the abstract will be crossed over diagonally in red ink. In case at the time of passing the bill it appears that entries in the measurement book require correction by the Senior Engineer, the bill and the measurement book will be returned to the Senior Engineer for such correction and only thereafter the bill will 45 be passed and the crossing out of the entries of the measurement book will be made by the Finance and Accounts department."
84. He has further relied upon cross-examination of PW16 and submits that this witness was not aware about the contract. It is further argued that approving authority in this case was A1. If he had accepted the recommendations, then responsibility of other accused was over. He further submits that the said authority/accused was already let of by learned Predecessor of this Court as A1 has already been discharged.
85. He further relied upon 4.1 and 4.2 of Ex PW2/DA which are mentioned herein:-
"4.1 SCOPE OF CONTRACT i. The Contract comprises the planning, construction, completion and maintenance of the works and except in so far as the Contract otherwise provides the provision of all labour, materials, supervision, storage, construction plant, equipments, supplies, transportation to or from the site, fuel, electricity, Temporary works and everything whether of a temporary or permanent nature required in and for such construction, completion, maintenance and handing over of the works except items specified to be furnished by Employer or others, all in accordance with the stipulations laid down in the contract and additional drawings as may be provided by the Engineer during execution of the works.
ii. Even though all the work and materials necessary to the satisfactory completion of the works may not be detailed in the specifications and Schedules, their costs will be considered to be within the contract and not extra charges will be accepted, provided always that there is no substantial revision in the specifications of the work in which case consequential changes in prices shall be mutually agreed between the Employer and the Contractor.
4.2 SUPPLY OF PLANT, MATERIALS AND LABOUR Except where otherwise specified the contractor shall at his own expenses supply and provide all the constructional plant, temporary works, materials both for temporary and for permanent works, labour (including the supervision thereof) transport to or from the site and in 46 and about the works and other things of every kind required for the construction, completion and maintenance of the works."
86. He has further argued that fans were not supplied by BHEL and were supplied by contractor in terms of this contract. He has further relied upon Ex PW16/10 (supra) and Ex PW14/DA (supra). He further referred D-12 (Ex PW2/C) MB-7. It is submitted by him that this document has no signature of anyone.
87. Arguments also heard on behalf of A9 where it is argued that A9 was simply a foreman and he was only following the directions of his superior. He did not take part in any policy decision and therfore, he has been falsely implicated by CBI alongwith other accused persons.
88. In rebuttal, Sh. U. C. Saxena, Sr. PP for CBI relied upon Section 101, 102, 103 and 106 of Indian Evidence Act and submits that burden of prove for any defence taken by accused is upon them. He further submits that it is defence of the accused that fans were supplied by accused no. 10 but no bill has been produced in defence for purchase of any fan.
47
89. He has further submitted that there was no agreement regarding supply of fan by the contractor. It is further argued on behalf of CBI that the contract was strictly in accordance with DSR
- 84. He relied upon Mark PW21/A regarding indent for purchase of fans and Ex PW21/1. He further relied upon explanation to Section 47 of Indian Evidence Act. He further relied upon Q3 in Ex PW16/12 and Q2 in Ex PW2/D. It is further submitted that there was forgery regarding full and final settlement in MB i.e. measurement book.
90. It is further case of the CBI that A3 received cheque on behalf of A10 to prove that there was conspiracy by meeting of minds of the accused persons. It is further argued that on behalf of CBI that for installation of fans Rs.1200/- were claimed in the year 1990 when even cost of fans were not as such. It is further argued on behalf of CBI on 09.04.1991 that there was extension of work order but exorbitant payment was made to the contractor by A3 to A9 to gain illegal benefit.
91. It is argued on behalf of CBI that even if it is believed for the sake of arguments that the fans were supplied then at least there would be some challenge on behalf of either of the accused regarding brand, make or description of fans to any witness during 48 cross-examination. It is also argued that it is not the case of A10 that he procured 192 fans from any particular distributor or supplier for installation, towards the discharge of the contract. Even no date of supply of such huge quantity of fans has been disclosed.
92. From the above discussion of the evidence, this Court comes to the conclusion that the work was awarded to A10 for installation, testing, commissioning of ceiling fans. It is defence of A10 that fans were also to be supplied by contractor as per record. In statement under Section 313 CrPC, in reply to question no. 15, it is stated by A10 that fans were also supplied by the contractor as per contract. But the fact remains that as per entry no. 19 of Ex PW2/DB, rate was claimed for transportation, installation, etc. for ceiling fans but there is no claim regarding cost of fans. Even otherwise, if this document is to be kept aside then also in none of the documents either defence counsel confronted with any prosecution witness to the effect that there was a contract between A10 and BHEL for supply of fans also to BHEL.
93. In this case, PW16 who appeared before the Court and disclosed about details of the facts of the case. None of the counsels has put any suggestion or case or confront with the fact to 49 PW16 that A10 had provided the fans also and fans were installed by him. Even in MBs there is not even single entry regarding installation of even a single fan by A10. Ex PW16/12 is abstract of MB wherein there is entry of fixing of ceiling fans but nowhere it is disclosed or had entry regarding supply of fans by the contractor to the BHEL. Ex PW16/12 is a document which disclosed high handedness of forgery and manipulation by all the accused. This document disclosed about detailed work. At the left side of this folio, document started with numbering 1, 2, 3, thereafter, straightway there is entry no. 5. Instead of numbering 4, there is numbering 6, 7, 8 and Sl. No. 4 has been entered after no. 8. Bare perusal of document shows that at the place of '9' by over writing '4' was inserted. Earlier '9' was written in the same ink which is ink of earlier part of the page and there is exact entry of 192 fans according to DSR-84 rates were charged at 12.32 i.e. 7.05 + 74.85% and total amount comes to 2365.44. However, below this entry there is manipulation then rates have been claimed as Rs.685/- + 74.85%. Now this manipulation is in different ink and thereafter ink at this page is of the same which was used at the earlier part of this page. Therefore, bare perusal of this document shows that manipulation and forgery has been done in the MB for the purpose of illegal gain and cheating. It further fortifies from the 50 fact that bill was claimed by A10 according to original entry done in Ex PW16/12 but later on a letter was issued by A10 as Ex PW16/10 and entire manipulation was done in the said letter which observed in this judgment in para no.29. Definitely, A10 had issued letter Ex PW16/10 and the fact remains that there is no noting for consideration by any of the remaining accused in this case but straight they all followed the directions of A10 and immediately started manipulation to honour the bill raised by A10. Surprisingly, the another feature is that none of the accused i.e. A3 to A9 asked A10 to disclose the reason why he claimed 1197.72 as nowhere in the said letter A10 has informed that according to agreement, he also supplied fans to BHEL.
94. Definitely, 192 ceiling fans is not a small quantity of any commodity. Even in statement under Section 161 CrPC or any other statement made by any witness none had stated that fans were also supplied by A10 to the BHEL.
95. If A10 would have supplied the fans to BHEL then definitely he would come with clear defence. He would also call the relevant witness i.e. supplier in his defence evidence to prove such fact. This witness would definitely comes out to disclose that fans were supplied for such and such make, brand or any specification 51 for such 192 fans. Definitely, expenditure would have been incurred for 192 fans and when a fan has to be installed then brand of it would have definitely been noticed by all the people who were working in public office i.e. BHEL. If such an incident would have happened i.e. supply of fans then definitely, since very beginning, defence counsels would have confronted to other witnesses of CBI that look fans were also supplied by the contractor and CBI was failed to notice such fact.
96. Even PW21 who is witness of incident and specifically stated before the Court in his deposition that fans were supplied by BHEL, two indents and two receipts were issued but surprisingly it is not challenged to this witness that these two indents were forged or his deposition is not as per record but rather fans were supplied by A10 to the BHEL. But no such challenge by any defence counsel to such witness.
97. If this witness was deposing falsely, then definitely, PW21 would have been guilty of stealing 192 fans and this fact should have been confronted because if 192 fans would have been issued wrongly or were not issued altogether then definitely there would be criminal case upon PW21 but nothing as such has been 52 challenged to PW21 by the accused persons. Moreover, if fans have been supplied by the contractor i.e A10 then definitely PW21 would have been confronted regarding description of fans i.e. make or brand of the fans, measurement of fans or other accessories of such fans but nothing has been confronted to this witness by either of the accused. Rather suggestion was put by counsel for A7, A8 and A10 that PW21 prepared Ex PW21/1 on the basis of the record i.e. indents and receipts and the said suggestion has been admitted as correct. PW21 has also admitted that indents and receipts were annexed by him alongwith Ex PW21/1. Therefore, by this suggestion and admission on behalf of the accused regarding the correctness of Ex PW21/1 i.e. regarding statement of indents and receipts wherein details have been given regarding supply of fans admitted as correct. A3 has also admitted the correctness of the testimony given by PW21 in the statement given by A3 under Section 313 of CrPC.
98. Therefore, claim regarding supply 192 fans by A10 is itself incorrect and documents have been fabricated by A10 i.e. Ex PW16/10 in view of suggestion given on his behalf of accused persons during cross-examination of PW21. Since this document bears recommendations of A3 and A4 were also associated in 53 furtherance of illegal design to attain criminal object.
99. PW16 also pointed out signatures of A7 on this document. Therefore, A7 is also held liable for committing manipulation of this document A10 has also written upon this official document i.e. Ex PW16/12. This writing is in accordance with the writing supplied by A9 at Ex PW2/D. Moreover, Ex PW2/A was prepared by A9 as came in the deposition of PW2. It bears signatures of A3, A5 and A6. Since as per deposition of PW2, the work was supervised by A7, A8 and A9. The entries are in the handwriting of A9 at page no. 102 and at page no. 107, these were signed by A7. In reply to specific question in statement under Section 313 CrPC, A9 has stated that he had only copied Ex PW2/A on the basis of previous record and the same was signed by A3, A5 and A6. He was not one of the members of the purchase committee and had no official powers. Therefore, in statement under Section 313 CrPC, it is a specific admission by A9 which supports the testimony of PW2. Therefore, A9 is also part of this conspiracy.
100. This Court also perused statement of all the accused persons recorded under Section 313 CrPC. All the accused persons have claimed stated in their statements that fans were also to be 54 supplied by the contractor i.e. by A10 fans were not supplied by the BHEL. It is admitted by A3 in his statement that procedure used to be adopted as deposed by PW8 that before making payments, initially contractor used to submit bill at the site to the person incharge of the relevant site for a particular work; thereafter, the site incharge or the officer incharge of that work would certify the entries made in the bill in accordance with the concerned work; thereafter, relevant bill alongwith enclosures like measurement books, would be sent to Finance Section to process and payment; thereafter, Accounts Officer or the officer incharge of the particular work authorised for making payment would verify the bill; entries made in the bill and MB would also verify that the entries made there are in accordance with the relevant agreement; thereafter issue a payment order on the bill; thereafter, the bill would be sent either to cash section or to the cheque section for issuance of a cheque.
101. Hon'ble Supreme Court in Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan 2013 AD (S.C.) 433 referred various judgments passed by various Hon'ble High Courts in para no. 30, 31 & 32 which are reads as:-
"30. In Rafiq Ahmed @ Rafi v. State of U. P. MANU/SC/0959/2011; AIR 2011 SC 3114, this Court observed 55 as under:
"It is true that the statement under Section 313 Code of Criminal Procedure cannot be the sole basis for conviction of the accused but certainly it can be a relevant consideration for the courts to examine, particularly when the prosecution has otherwise been able to establish the chain of events."
31. In Dharindhar v. State of U. P. MANU/SC/0480/2010; (2010) 7 SCC 759, this Court held:
"The proper methodology to be adopted by the Court while recording the statement of the accused under Section 313 Code of Criminal Procedure is to invite the attention of the accused to the circumstances and substantial evidence in relation to the offence, for which he has been charged and invite his explanation. In other words, it provides an opportunity to an accused to state before the Court as to what is the truth and what is his defence, in accordance with law. It was for the accused to avail that opportunity and if he fails to do do then it is for the Court to examine the case of the prosecution on its evidence with reference to the statement made by the accused under Section 313 Code of Criminal Procedure."
32. In Ramnaresh and Ors. v. State of Chhattigarh MANU/SC/0163/2012: AIR 2012 SC 1357, this Court held as under:
"It is a settled principle of law that the obligation to put material evidence to the accused under Section 313 Code of Criminal Procedure is upon the court. One of the main objects of recording of a statement under this provision of Code of Criminal Procedure is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused take benefit of this opportunity, then is statement made under Section 313 Code of Criminal Procedure, in so far as it supports the case of the prosecution, can be used against him for rendering conviction. Even under the latter, he faces the consequences in law."
Thereafter, Hon'ble Supreme Court further held in para no. 56
36 as under:-
"36. In view of the above, the law on the issue can be summarised to the effect that statement under Section 313 Code of Criminal Procedure is recorded to meet the requirement of the principles of natural justice as it requires that an accused may be given an opportunity to furnish explanation of the incriminating material which had come against him in the trial. However, his statement cannot be made a basis for his conviction. His answers to the questions put to him under Section 313 Code of Criminal Procedure cannot be used to fill up the gaps left by the prosecution witnesses in their depositions. Thus, the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution. In case the prosecution's evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under Section 313 Code of Criminal Procedure is not recorded after administering oath to the accused. Therefore, it cannot be treated as an evidence within the meaning of Section 3 of the Evidence Act, though the accused has a right if he chooses to be a witness, and once he makes that option, he can be administered oath and examined as a witness in defence as required under Section 315 Code of Criminal Procedure.
An adverse inference can be taken against the accused only and only if the incriminating material stood fully established and the accused is not able to furnish an explanation for the same. However, the accused has a right to remain silent as he cannot be forced to become witness against himself."
102. Now all such statements of the accused persons recorded under Section 313 CrPC has to be read in context with Ex PW16/10 in the light of referred law laid down by the Apex Court. A10 submitted Ex PW16/10 in BHEL on 06.09.1994 for consideration. Thereafter, said letter was put up before A3 on 57 07.09.1994. The same was put up before A4 on 09.09.1994 but it is not the case of either of the accused that this letter or bill whatsoever has followed the procedure as disclosed by all the accused in their respective statements made before this Court under Section 313 CrPC. Moreover, A10 in his statement has not disclosed that he had submitted this supplementary bill to claim the cost of ceiling fans. The Court considered that the procedure laid down by the BHEL for submission of bill, as disclosed by accused persons themselves in their statements under Section 313 of CrPC only to ensure the checks and balances so that the person incharge at the site should verify about the work done at the site. Thereafter, that person incharge has to certify the entries in accordance with the agreement concerning particular work. Facts remains that none of the accused has whispered or cited any agreement regarding cost of ceiling fans wherein there was the term for stipulation by the contractor to the BHEL.
103. None of the accused has stated in their respective statements that they had followed such procedure, as disclosed by themselves in their statements, in respect to Ex PW16/10. 58
104. A3 further admitted the correctness of the statement given by PW16 that the work of the contractor was supervised by team of engineers headed by Project Manager and thereafter, in respect of work done by the contractor, he is entitled to receive payment once in a month for which he was to submit a bill to the Project Manager.
105. Now question arises if this procedure regarding the supervision of the work of the contractor was correct then definitely regarding work carried out by A10 as per agreement, it must have been supervised by Team Manager and A10 was entitled to receive payment once in a month for which he must have submitted the bill to the Project Manager every month. In such circumstances, contention of the accused that the supplementary bill as Ex PW16/10 was raised by the contractor A10 for the amount arisen under what circumstances, not explained. None of the accused has explained in their respective statements, especially in view of the fact that the bill was already paid to the contractor for Rs.2365.44, whereas the supplementary bill was claimed Rs.2,29,962.62 i.e. more than 100 times above then the final bill. It is possible only when fans were installed by the contractor but the fact remains that such a fact was neither supervised by team of engineers nor 59 presented such bills once in a month to the Project Manager. Therefore, again veracity of Ex PW16/10 as submitted by defence regarding installation of fans is incorrect. It is further submitted by A3 in his statement under Section 313 CrPC stated that pass order for the bill was given in the MB by the Project Incharge thereafter the bill was to be examined in finance section where pass order for payment was given. Nowhere in Ex PW16/10 or even any other document in office of BHEL has certified that fans were installed or supplied by the contractor i.e. A10. Moreover, there is no entry in MB that fans were supplied by the contractor A10.
106. It is also admitted case of A3 in his statement that he was recipient of the cheque bearing no. 46006 dated 01.10.1991 for Rs.77091.27. However, he has further claimed in the same statement that he was authorized by GM (Admn.) to collect the cheques and distribute the same to the contractor as it was always not possible for the contractors to come to the Finance Department. The Finance Department was against the contractors coming to the Finance Department but fact remains that no authorization letter or any document has been brought on the record by defence during entire evidence nor explained or confronted with any witness about any procedure for such authorization, has been explained or 60 deposed by any of the witnesses of the prosecution or put or challenge during their respective cross-examination by the defence.
107. It is further case of A3 in the same statement that subsequent supplementary bill can be submitted by the contractor in case there is any mistake or by mistake some item has been left to be included but fact remains that mistake, clerical error, variations of rates or left of any item cannot be included the cost of fans for entire work, was left by the contractor when submitting his earlier bills. Moreover, clerical error, variation of rates, etc. are mistake or left of the item cannot be construed that the amount claimed in the supplementary bill is more than 100 times then the earlier final bill. Moreover, in supplementary bill, there is nothing stated as claim of cost of fans by A10.
108. It is an interesting fact comes out that accused persons in their respective statements made under Section 313 CrPC stated about supplementary bill regarding clerical error, variation of rates, omission to claim, claim left during preparation of bill etc. All accused persons in the same statement also agreed or not disputed about procedure for sanctioning and passing of bills but none of the witness disclosed about the fact that there was any final scrutiny of 61 the supplementary bill which was submitted on 06.09.1994 as Ex PW16/10. At the cost of repetition, this Court further observes that there was no procedure followed, as disclosed by the accused persons in their respective statements regarding supplementary bill dated 06.09.1994 i.e. Ex PW16/10 or any such challenge has ever been made by any of the accused during cross-examination of prosecution witnesses.
109. A3 further admitted that the correctness of statement of PW20 in the normal course that the entries made in measurement book (MB) after preparation of final bill is not changed but in case of preparation of supplementary bill, addition in MB would be possible but the fact remains that in this case there is no addition in any of the MB regarding cost of ceiling fans. Even there is no addition in any of the MB but only interpolations are there as observed by this Court after refer the documents on the record. Nowhere in any MB, it is mentioned that what was the per piece rate of fans. Nothing has been mentioned. A3 further admitted the correctness of statement of PW1 regarding consolidated statement Ex PW21/1 on the basis of 2 indents and 2 receipts annexed therewith.
62
110. Similar, statement made by A4 under Section 313 CrPC. A4 also admitted the statement of PW16 about measurement book Ex PW2/C at page 95 which is an entry regarding payment of fixing of 192 ceiling fans @ 7.05 + 74.85% above which works out to Rs.12.32 per ceiling fans. Therefore, it is not disputed by A4 that payment was made to A10 at the rate of Rs. 12.32 per ceiling fans.
111. Contrary statement is made by A4 in the same statement when he has been explained that the rate should have been paid at the rate of 685 + 74.85% above for fixing of ceiling fans on the ground that the contractor had also supplied fans. But the facts remains that no such entry either in Ex PW2/C regarding supply of fans or any other document or any evidence has been brought before this Court regarding supply of fans by A10. CBI in this case has successfully proved that there was no contract regarding supply of fans. Then defence has to prove in accordance with law by the defence only i.e. burden was shifted upon the accused to prove their defence. Section 103 of the Indian Evidence Act, 1872 provides that if the defence wishes that this court is to believe in the case that contractor A10 supplied the fans then the burden to prove such fact lies upon the defence i.e. accused persons.
63
112. Moreover, A4 submitted that there was no need of any authorization for receiving cheque as A3 permitted to collect the cheques for contractor. Again source of permission has not been disclosed by A4, in his statement recorded under Section 313 CrPC.
113. A6 in his statement under Section 313 CrPC admitted the fact of preparation of comparative statement. He has further admitted that said statement was prepared by A9 in his own handwriting. Same is Ex PW2/A which was also signed by him alongwith A3 and A5. He has also disclosed that he has signed comparative statement as per procedure. However, he has claimed that in the comparative statement wherein Rs.685/- has been mentioned was actually showing the sanctioned estimated rates of the item as per procedure of Works Accounts Manual. He has further claimed of Rs.685/- as shown as duly approved rates and not in the DSR. None of the accused has denied sanctity of DSR as admittedly the contractor has claimed the rate @ 7.05 + 74.85% above DSR - 84. Therefore, this accused himself in his statement made admission regarding insertion of Rs.685/- without any reason and not explained about interpolation of Rs.685/- in Ex PW2/A. 64
114. It is also claimed by A6 that fans were to be supplied by contractor but nowhere he has able to show any agreement regarding supply of fans by the contractor. He found that DSR-84 rates as claimed earlier by A10 were only as labour charges.
115. A6 has also admitted about procedure regarding payment of contractor as admitted by A3 and A4 in their respective statements. He has stated that contractor can always raise supplementary bill in case there is any accounting mistake but the facts remains that in accounting the supplementary bill was mistake of more than 100 times of the amount than the original amount claimed in the earlier bill submitted by the contractor.
116. A6 also admitted in his statement about correctness of the statement given by PW16 at various places in his statement. Similar statement was given by A7 also under Section 313 CrPC. However, A7 has given evasive answer and has not come forward with clear facts in his statement.
117. A8 during statement recorded under Section 313 CrPC stated that measurement book Ex PW2/B (D-11) for which this witness gave evasive reply that he did not know about this 65 document but the fact remains that at point B at Ex PW2/B at page no. 106 bears his signatures alongwith A9 and A10. Document is perused. In this document, there is a certificate wherein verification has been given that entires made from page 62 to 106 of this MB are correct and the work was carried out in accordance with terms, conditions, schedule, specification, etc.
118. At page 101 of Ex PW2/B there is entry at Sl. No. 19 where an entry for fixing of ceiling fans have been mentioned for 40 fans @ Rs. 685/-. Thus A8 is responsible for making wrong entry in Ex PW2/B under his official capacity alongwith other accused which reflects that there was meeting of minds of the accused persons. Moreover, at page no. 107, A3 has also signed in official capacity on 16.09.1991. Therefore, his signatures alongwith other accused shows meeting of mind and come in the ambit of Section 120B IPC. Bill in respect of this MB was also verified by A8 which was certified by A3.
119. A9 had stated in this statement under Section 313 that he had only copied comparative statement on the basis of previous record and the same was in his handwriting which was signed by A3, A5 and A6. He has further stated that in the said comparative 66 statement Ex PW2/A, DSR-84 is mentioned as 685 + 74.85% above. He did not deny this fact. He has further admitted the fact that the work was supervised by A7, A8 and A9. A9 further admitted that the MB Ex PW2/C and entry at Sl. No. 95 and 113 are in his hand-writing. This accused also admitted the procedure for clearance of bill as admitted by other accused in their respective statements. Therefore, A9 has also admitted about the correctness of evidence adduced against him by CBI i.e. prosecution before this Court.
120. As the Hon'ble Supreme Court in Raj Kumar Singh @ Raju @ Batya's case (supra) referred hereinabove that statement of all such accused persons cannot be made a basis for their conviction in this case neither such statements used to fill up the gaps left by the prosecution witnesses in their depositions as statements of the such accused are not substantive piece of evidence or some inclupatory part of their statements cannot be made sole basis of their conviction. Adverse inference can be taken against the accused for such statements only and only if the incriminating material fully established. In this case, this court discussed various evidences against the accused persons in this judgment and is of the considered opinion that the prosecution is 67 able to prove its case against the accused persons even without referring the testimony of accused persons under Section 313 CrPC but the statements given by the accused persons further brought this Court to strengthen the conclusion that the accused persons are guilty of the charges put against them by the CBI as accused persons are not able to furnish any explanation in opposition to the evidence brought by the CBI against them.
121. Charges against A3, A4, A6, A7, A8, A9 & A10 are under Section 420, 468, 471, 477A IPC and A3, A4, A6, A7, A8 & A9 are also charged for offences under Section 13 (1) (d) and 13 (2) of Prevention of Corruption Act.
122. In view of the observations made herein, taking into account the entire facts, evidences, statements, documents and the statements made by the accused persons themselves under Section 313 CrPC in the light of law of law discussed herein this judgment, this Court comes to the conclusion that all the accused persons have committed offence under Section 420 IPC as they have intentionally induced the person i.e. the BHEL to make payment which BHEL would not do if such a criminal conspiracy, as disclosed herein this judgment, would not have been committed. 68
123. Similarly, this court also comes to the conclusion that accused persons have committed offence under Section 468 IPC as there is forgery of document i.e. Ex PW2/DB, Ex PW2/A, Ex PW16/10 and Ex PW16/12 for the purpose of cheating the BHEL.
124. Similarly, all the accused persons were aware that they are fraudulently used various forged documents as genuine and claimed the payment based upon those forged documents. Therefore, they are also guilty of offence under Section 471 IPC.
125. Similarly, all the accused persons are also guilty for offence under Section 477A as A3, A4, A6, A7, A8 and A9 forged books i.e. MB Ex PW16/12, Ex PW2/C, Ex PW16/10, Ex PW2/A and Ex PW2/DA.
126. Since all accused persons committed such offences to attain illegal object i.e. to claim payment as per forged documents from the BHEL by illegal means and thus they have committed criminal conspiracy under Section 120B IPC as these accused persons committed offences with meeting of minds.
In Mir Nagvi Askari v. CBI Crl. Appeal No. 1477 of 2004 decided by Hon'ble Supreme Court on 07.08.2009, it has been 69 observed as:-
"Criminal conspiracy, it must be noted in this regard, is an independent offence. It is punishable separately. A criminal conspiracy must be put to action; for so long as a crime is generated in the mind of the accused, the same does not become punishable. Thoughts even criminal in character, often involuntary, are not crimes but when they take a concrete shape of an agreement to do or caused to be done an illegal act or an act which is not illegal, by illegal means then even if nothing further is done, the agreement would give rise to a criminal conspiracy.
The ingredients of the offence of criminal conspiracy are:
(i) an agreement between two or more persons;
(ii) an agreement must relate to doing or causing to be done either (a) an illegal act; (b) an act which is not illegal in itself but is done by illegal means.
Condition precedent for holding the accused persons to be guilty of a charge of criminal conspiracy must, therefore, be considered on the anvil of the fact which must be established by the prosecution, viz., meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means.
The courts, however, while drawing an inference from the materials brought on record to arrive at a finding as to whether the charges of the criminal conspiracy have been proved or not, must always bear in mind that a conspiracy have been proved or not, must always bear in mind that a conspiracy is hatched in secrecy and it is difficult, if not impossible, to obtain direct evidence to establish the same. The manner and circumstances in which the offences have been committed and the accused persons took part are relevant. For the said purpose, it is necessary to prove that the propounder had expressly agreed to it or caused it to be done, and it may also be proved by adduction of circumstantial evidence and/or by necessary implication [see Mohammad Usman Mohammad Hussain Maniyar & Ors. v. State of Maharashtra (1981) 2 SCC 443] The following passage from Russell on Crimes (12th Edn. Vol 1) cited by Jagannatha Shetty, J. in Kehar Singh and Ors. v. State (Delhi Administration), [1988 (3) SCC 609 at 731] brings out the legal position succinctly:
"The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough."
Further it was noted in Kehar Singh (supra) that to establish the offence of criminal conspiracy, it is not required that a single agreement should be entered into by all the conspirators at one time. Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. Each one is aware that he 70 has to play in general conspiracy though he may not know all its secrets or the means by which the common purpose is to be accomplished.
In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This Court in State of Maharashtra v. Som Nath Thapa [(1996) 4 SCC 659] opined that it is necessary for the prosecution to establish that a particular unlawful use was intended, so long as the goods or services in question could not be put to any lawful use, stating:
"24. The aforesaid decision weighty as they are, lead us to conclude 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 for services in question may be inferred from the knowledge itself. This apart, the prosecution has not be establish that a particular unlawful use was intended, so long as the goods or services in question could not be put to any unlawful 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 services to an unlawful use."
[See also K. R. Purushottaman v. State of Kerala (2005) 12 SCC 631].
Since we have dealt with the law with respect to criminal conspiracy in detail in R. Ventakrishnan v. Central Bureau of Investigation (Criminal Appeal 76 to 2004 decided today) we need not deal with it hereat once again.
We may however notice that this court most recently in Mohmed Amin @ Amin Choteli Rahim Miyan Shaikh and Anr. v. C.B.I. Through it is Director, 2008 (14) SCALE 240 after taking recourse to law governing the filed note thus:
"55. The principles which can be deduced from the above noted judgments are that for proving a charge of conspiracy, it is not necessary that all the conspirators know each and every details of the conspiracy so long as they are co-participators in the main object of conspiracy. It is also not necessary that all the conspirators should participate from the inception of conspiracy to its end. If there is unity of object or purpose, all participating at different stages of the crime will be guilty of conspiracy."71
127. As per Ex PW2/DA the entry at Sl. No. 19, work as done for 40 fans but bill was claimed and cleared by accused persons for 50 fans. Moreover, if he also admitted in his statement that he was recipient of cheque no. 46006 dated 01.10.1991 for Rs.77091.72, this Court already held that no authorization has been brought by either of the accused to prove that A3 was authorized to receive such cheque. Therefore, it is also proved that A3 had collected the money illegally from the BHEL. Therefore, this Court comes to the conclusion that all the accused persons have committed offences under IPC as discussed hereinabove by manipulating various documents to claim the costs of fans, transportation, installation, testing and commissioning of 192 ceiling fans at the rate of 685 + 74.85% above DSR -84 instead of Rs. 7.05 + 74.85% i.e. equal to 12.32 as per DSR- 84.
128. Since accused no. A3, A4, A5, A6, A7, A8 and A9 are public servants, therefore, they are also liable for offence under Prevention of corruption Act covered as per Section 2 (c) as public servants.
In this regard reference may be made in decision R. Venkatakrishnan v. Central Bureau of Investigation Criminal Appeal No. 76 of 2004 decided by Hon'ble Supreme Court on 72 07.08.2009, wherein it has been observed as:-
"...... Relevant portions of Section 13 which provide for criminal misconduct by a public servant reads as under. "13. Criminal misconduct by a public servant. -(1) A public servant is said to commit the offence of criminal misconduct- ....(d) if he,-
....(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public advantage; or (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which shall may extend to seven years and shall also be liable to fine."
Section 13 in general lays down if a public servant, by corrupt or illegal means or otherwise abusing his position as a public servant obtained for himself or for any other person any valuable thing or pecuniary advantage he would be guilty 'criminal misconduct'. Clause (2) thereof speaks of the punishment for such misconduct.[ See C. K. Damodaran Nair v. Government of India AIR 1997 SC 551.] The ingredients of sub-clause (iii) of S 13 (1) (d) contemplate that a public servant who while holding office obtains for any person any valuable thing or pecuniary advantage without any public interest would be guilty of criminal misconduct. Sub-section (2) of section 13 provides for the punishment for such criminal misconduct. Minimum sentence is prescribed under Section 13(2) of the 1988 Act and public servant who abuses his position as such for obtaining for himself or for any other person any valuable thing a pecuniary advantage cannot be punished for a term of imprisonment, which is less than for the duration of one year. For convicting the person under Section 13(1) (d) (iii), there must be evidence on record that accused 'obtained' for any other person and valuable thing or pecuniary advantage without any public advantage.
In Dalpat Singh v. State of Rajasthan [AIR 1969 SC 17] while interpreting an analogous provision in the unamended Prevention of Corruption At, this opined noted:
"The ingredients of the offence under Section 5(1) (d) are : (1) that the accused should be a public servant, (2) that he should use some corrupt or illegal means or otherwise abuse his position as a public servant, (3) that he should have obtained a valuable thing or pecuniary advantage, and (4) for himself or any other person."
The Madras High Court in B. Ramachandran and S. S. Abdul Hameed v. State rep. by The Inspector of Police, Special Police Establishment, Central Bureau of Investigation, Anti Corruption Branch, Crl. A. No. 553 of 2000 decided on 23.03.2007 noted thus:
"Section 13(1) (d) of the said Act also deals with the criminal misconduct by a public servant by means of corrupt or illegal means, obtains for himself of for any other person any valuable thing or pecuniary advantage; or by abusing his position as a public servant, obtains for himself or for any other person any other person any 73 valuable thing or pecuniary advantage; or while holding office as a public servant, obtains for any person any valuable things or pecuniary advantage without any public interest."
Thus, in R. Sai Bharathi v. J. Jayalalitha & Ors. AIR 2004 SCC 692, Hon'ble Supreme Court observed as:
"..... To attract provisions of Section 13(1) (d) of the Prevention of Corruption Act, public servant obtains for himself or any other person any valuable thing or pecuniary advantage
(i) by corrupt or illegal means, or
(ii) by abusing his position as public servant, or
(iii) without any public interest."
Therefore, they are also guilty for the offence of Criminal misconduct as per Section 13(1)(d) and 13(2) of Prevention of corruption Act.
129. Therefore, all the accused persons are guilty for the offences under Section 420, 468, 471, 477A, 120B IPC read with Section 13(1)(d) and 13(2) of Prevention of corruption Act. Accused no. 3 to 9 are also held guilty for the offence under Section 13 (2) read with Section 13(1) (d) of Prevention of corruption Act. From the discussion and observations made hereinabove, the case of the prosecution stands proved beyond any reasonable doubt. Nothing could be pointed out by the defence regarding doubt towards case of the prosecution.
Dictated and announced in the open Court on 11.09.2015.
( JITENDRA KUMAR MISHRA) SPECIAL JUDGE, CBI ( PC ACT) EAST DISTRICT KKD COURTS: DELHI 74 IN THE COURT OF JITENDRA KUMAR MISHRA SPECIAL JUDGE (PC ACT) CBI, KARKARDOOMA COURTS : EAST DISTRICT DELHI Unique ID No.02402R0012241996 RC No. 2(A)/95 AC No. 67/11/96 In the matter of Central Bureau of Investigation VERSUS
1. P. C. Rao (Discharged vide order dated 07.12.2005) GM (Retd.), Bharat Heavy Electricals Ltd.
R/o 239, Gulmohar Enclave, New Delhi. (A1)
2. Y. K. Nayyar (Discharged vide order dated 07.12.2005) GM (Retd.), Bharat Heavy Electricals Ltd.
R/o 329, Sheikh Sarai, Part-I, SFS, DDA Flats, New Delhi (A2)
3. V. C. Ramulu Dy. GM, Bharat Heavy Electricals Ltd., Noida (A3)
4. Denis Barnabas Sr. Manager, Bharat Heavy Electricals Ltd., New Delhi. (A4)
5. C. P. Chopra Manager (Retd.), Bharat Heavy Electricals Ltd. R/o B-90, Pushpanjali Enclave, Pritam Vihar, New Delhi.
(Proceedings abated vide order dtd. 23.12.14) (A5)
6. O. P. Sharma Dy. Manager, Bharat Heavy Electricals Ltd., Noida. (A6)
7. P. L. Khadala Sr. Engineer, Bharat Heavy Electricals Ltd., Jagdishpur. (A7) 75
8. P. C. M. Jhammnani Engineer, Bharat Heavy Electricals Ltd., Noida (A8)
9. S. N. Jha Assistant Foreman, Bharat Heavy Electricals Ltd. (A9)
10. Anil Kumar Goel Prop. M/s Anil Kumar Goel, Patel Nagar, Station Road, Hapur (U.P.) (A10) ..... Accused persons ORDER ON SENTENCE
1. Vide separate judgment dated 11.09.2015, all the accused persons were held guilty for the offences under Section 120B, 420, 468, 471, 477A, 120B IPC read with Section 13(1)(d) and 13(2) of Prevention of corruption Act. Accused no. 3 to 9 are also held guilty for the offence under Section 13 (2) read with Section 13(1) (d) of Prevention of corruption Act.
2. On 15.09.2015, arguments have already been advanced on behalf of both the parties for about 2 ½ hours on the point of sentence.
3. Heard arguments on order on sentence on behalf of both the parties for about 2 ½ hours.
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4. It is submitted by learned Sr. PP for CBI that the offences for which the accused persons have been convicted effects the society at large and prays or maximum punishment and fine.
5. It is further submitted by learned Sr. PP for CBI that the accused persons have been convicted for the crime committed for economic offences which affects the economy of the country. It is further submitted that all accused persons have committed such offences while they were holding responsible posts in a public sector undertaking and ultimately it affected the dreams of billions of people of this country towards the attainment of self-dependency of this country.
4. Learned Sr. PP further submits that BHEL is a public sector undertaking. It was a project, which is outcome of second five year plan. It is further submitted that our late Prime Minister Sh. Jawahar Lal Nehru had a dream that this country should become self -dependent regarding heavy industrial machinery and to attain such objectives plans were formulated to establish for various industrial undertakings. BHEL has been started to attain such high objective to fulfil the dreams of people of this country.
5. Learned Sr. PP for CBI further submits that accused persons are not small people. They are highly educated persons holding high educational qualifications and are role model of the 77 people and the society where they used to sit and live.
7. Learned Sr. PP for CBI further submits that there was no compulsion upon the accused persons to commit such economic offences for which they have been convicted. It is further submitted that they are highly paid professionals getting salary from the income -tax collected by the government of this country and instead of look after and take care of economic health of the PSU i.e. the BHEL, they committed such a crime only to attain more luxurious life for which they were not entitled in any manner. It is further vehemently argues that sometimes crime have been committed under compulsion or social pressure or those circumstances upon which a convict has no control and is bound to become victim of circumstances. But in this case there was no such compulsion either of economic or else whatsoever. Accused persons have committed offences may under notion that if they are public servants or working in public sector undertaking, they may have right to take cut out of all the expenditure incurred towards health of the PSU and if they take such cut from such expenditure, then definitely nobody could harm them.
8. Learned Sr. PP for CBI further submits that all the accused persons are influential people of the society. They are leading luxurious life and have their weight in their respective 78 communities. It is further submitted that public have faith upon such people and they are guilty of breach of the faith of public. It is further submitted that if such people are allowed to go scot free or only awarded minimum sentences then definitely it will convey wrong message to the society to the effect that nothing would happen if one does corruption.
9. Learned Sr. PP further argues that this trial started on the source information which came into knowledge of prime investigating agency of this country. He further submits that possibility cannot be ruled out that there may be other instances or offences committed by these people during their service tenure in view of the manner in which crime has been committed by these people. He further submits that all the accused persons were not come under employment in BHEL on the very same day or few months prior when crime has been unearthed as they were serving already for years.
10. Learned Sr. PP further prays that all the accused persons should be given maximum punishment as provided under statute.
11. Learned Sr. PP further claim cost of entire prosecution as per Section 357 (a) of CrPC for the amount of Rs.30 lac since the CBI has investigated the matter thoroughly and called witnesses 79 from different parts of the country. He further submits that CBI has taken services for the purpose of investigation of best professionals and also hired best prosecutors to bring the guilt at home of the accused persons. He further submits that keeping in view all the fact of rising cost of transportation, communication and various other applicable methods for the purpose of investigation and to bring the witnesses before the Court from different parts of the country Rs.30 lac would not be actual cost incurred in prosecution but definitely it will compensate to some extent the expenses incurred in the prosecution of this case.
12. Learned Sr. PP for CBI further submits that loss suffered by BHEL i.e. a public sector undertaking of Rs.2,86,866.80 in the year 1990-1994 should also be payable to the BHEL after taking into account the comparative per capita income of the country in the year 1990 to 1994 and in the year 2015 when the judgment is being passed. He further submits that business capital multiplies by passage of time and therefore, he further submits that interest @ 24% per annum should also be payable by the accused persons in view of the passage of time.
13. Learned Sr. PP further submits that besides compensation as prayed hereinabove, accused persons should also be imposed highest fine. He further submits that even fine to the 80 tune of Rs.15 lac should be imposed in view of the fact that these people were got selected for such a PSU and heavy expenditure had incurred for their recruitment. Accused no. 3 to 9 were selected upon their educational qualification at the relevant time. All the accused persons studied in institutions where government provided the subsidy for the purpose of education. They have been studied in the institutions setup by government and after getting education they were bound to serve the people of nation towards progress of this country but instead of taking care of prestige of this country, these people misused their education and worked to put obstructions against the growth of this country.
14. Learned Sr. PP further argues accused nos. 3 to 9 should have been held accountable for making payment of such expenditure as they were public servants. They were selected and recruited by PSU with aspiration of their selectors that they would use their educational qualifications and skills towards the attainment of such dreams.
15. Learned Sr. PP further argued that accused no. 10 is also qualified person in as much as he is the person responsible to facilitate other accused persons to do corruption as he was also to benefited by such corruption. Instead of being a good and honest business man, he facilitated the accused persons to commit the 81 crime for which have been convicted. If things were not such he would definitely approach the CBI to spill the beans about crime committed by other accused persons and definitely it would facilitate the investigation and trial of the case but he did not choose such.
16. Learned counsel for A4 advances arguments towards mitigating factors on the point of sentence. He pointed out that age of A4 is 78 years. He even cannot walk as he always carry stick with him. He further submits that is ailing from many disease as per his medical record. It is submitted that A4 is suffering from degradation of bones, enlarged prostate gland. He lost his control over activity of urination. He urinates at any time due to his illness. He is also suffering from cataract besides hyper-tension and high blood pressure. He regularly goes for physiotherapy. It is further submitted that for the last various decades A4 is suffering from mental pain and agony as the incident has taken place in the year 1990. It is further submitted that nobody raised dispute that A4 always cooperated in the trial and prior to that even in the investigation. Earlier, he used to appear before the Court on wheel chair due to his illness. He further submits that A4 besides the present case, is a respected citizen of society having clean antecedents and never indulged in any crime at any point of time. It is not case of the CBI that any pecuniary loss have been suffered by 82 any person due to act of A4. He further submits that even otherwise, amount involved around Rs.2 lac which if divided in parts as other accused persons are involved then also it comes into fraction of the said amount come against A4. He further submits that besides pain and agony A4 has already spent huge amount towards facing of trial. He further submits that after hearing for conviction, his son immediately rushed from Australia and he incurred huge amount.
He further relied upon Kanwar Singh v. State 2015 AD (CRI.) (DHC) 258 as:-
"38. On the question of sentence, Ms. Gulati relied on the decision in V. K. Verma v. CBI (2014) 3 SCC 485 and submitted that a lenient view may be taken as the Appellant is now 64 years of age and has suffered the ordeal of the trial and pendency of appeal for over nearly 13 years. She pleaded that the sentence may be reduced to the period already undergone by the Appellant."
17. Learned counsel for A4 further submits that for the purpose of criminal judicial administration system towards reformation and not towards retribution. He further submits that keeping in view all such facts mentioned herein lenient view may be taken in favour of A4.
18. Sh. M. P. Singh, learned counsel argues on behalf of A8 that he is a heart patient. He is aged about 67 years and 83 angioplasty has already taken place and stunts have been implanted in his heart due to heart disease. He is suffering from enlarge prostate cancer. Besides these similar arguments have been raised as have been advanced in favour of A4. It is further submitted that A8 attended the trial without fail. He further submits that around 296 hearings have been taken in this case and almost all hearings have been attended by him and in case there is any absence, he deputed his counsel for such hearing. He further submits that A8 never misused the liberty granted to him. Learned counsel for A8 prays for lenient view on the point of sentence.
19. It is submitted on behalf of A7 that at the time of commission of crime, he just joined as trainee engineer after passing out IIT, Delhi. He was just a Jr. Engineer. He submits that A7 is also suffering from tuberculosis. He also repeats the arguments that criminal judicial administration system believes in reformative theory and not retributive theory. He furthef submits that A7 who is highly educated engineer and also is suffering of agony of trial for the last 25 years. It is further submitted that he attended more than 250 days of hearing. He never abused the liberty. He further submits that he is having daughter of marriageable age and a son who is getting education. He further submits that except A7 nobody is in the house to take care of his family and children. He 84 further submits that he has entire unblemished service record and for this reason he was promoted also. He further submits that he does not have his own house and is living in official accommodation. He further submits that in case longer punishment is being given the entire family of the A7 would come on road.
20. It is submitted that A3 is is aged about 70 years. He is having uncontrollable sugar problem and owing to this problem, his eye site is very weak. He is also having keen problem and not able to walk properly. He further submits that he is having daughter of marriageable age and her marriage is going to be held in the month of October, 10. It is submitted that he is putting in Andhra Pradesh and regularly attended the Court from there. He has already spent huge amount of money on travelling from Andhra Pradesh to Delhi.
21. It is submitted on behalf of A10 that he never absented or moved an application for exemption in the entire trial barring one date. There is no criminal antecedents. He has never committed any offence. He is aged about 57 years and is suffering from uncontrollable sugar. He is a heart patient and is suffering from hyper-tension. He has to take care of his widow mother who is 86 years of age and she has to undergo dialysis twice in a week. It is submitted that wife of A10 is also suffering from serious problem of heart and uncontrollable sugar. He is having no son and his 85 daughter is of marriageable age and her marriage is fixed in the month of October, 2015. If he has to undergo sentence for longer time, then marriage of his daughter would be affected. It is submitted that A10 never misused the liberty of bail at any point of time. He has good reputation and respect in the society. Now he has no dealing with the BHEL. Except him nobody in the house is there to takecare of his ailing wife and ailing mother. He is having parental property in Hapur. It is further submitted that A10 has faced mental agony and pain for about 25 years. It is further submitted that as per prescription by his doctor, he has to take special diet to maintain his health which is not possible in jail.
22. It is further submitted on behalf of A6 that he is 74 years of age. He is suffering from mild Celebral and Cerebellar Atrophy and for this reason he tends to have problem of falling backward and is suffering from the problem of imbalance. He is also suffering from trembling of hands, speech difficulty, high blood pressure, enlarged prostate and thickening of urinary bladder. It is further submitted that A6 is also suffering from osteo-arthritis in his limb and he requires constant medical care by family members. It is further submitted that due to his illness, he can only take restricted food items which may not be available in jail and for this reason, he is taking only bread in jail which further multiplied adverse effect on his 86 health. He has further argued regarding length of trial. A6 is having one son who is settled in Mumbai, another daughter is married separately and another daughter is under the process of separation with her husband and is living with the applicant. He does not have his own house. He has suffered mental pain and agony by attending proceedings for about 20 years. He relies upon K. Lal v. C. B. I. 2013 [3] JCC 1548 and referred para 12 as:-
"12. Thus, even excluding the evidence of tape recorded conversation, the prosecution has been able to prove its case beyond reasonable doubt against the Appellant. The impugned judgment of conviction dated 26th April, 2003 convicting the Appellant under Section 12 of the PC Act is upheld. However, learned Special Judge has directed the Appellant to undergo Rigorous imprisonment for a period of 5 years with a fine of Rs.20,000/- which in my opinion is erroneous. The facts of the cse do no warrant maximum punishment as awarded by the learned Trial Court. The learned Trial court failed to consider the mitigating circumstance. The Appellant is 70 years of age as he attained the age of superannuation in October, 2002 and is a heart patient, in B. C. Goswami v. Delhi Administration, AIR 1973 SC 1457, it was held that too lenient as well as too harsh sentences lose their efficaciousness, while one does not deter and the other may frustrate thereby making the offencer a hardened criminal. In Surain Singh v. State of Punjab, AIR 2009 SC 1397 after noting the menace of corruption, it was held that in the peculiar facts of the case the minimum prescribed custodial sentence would suffice. The fine has already been paid. Thus interest of justice would be met by modifying the sentence of imprisonment for a period of six months, which is the minimum sentence prescribed."
Learned counsel has further relied upon Hari Kishan Bansal 87 v. C. B. I. 2013 [2] JCC 1379 and referred para 47 as :-
".........The appellant has undergone the travails of a trial for abut 19 years. He is now close to 80 years without any regular source of income, as stated by his counsel, and has not only his wife to look after but also the wife and children of his deceased son. There is also no record of his having committed any offence during this period of 19 years. Having regard to all these mitigating circumstances, I reduce the sentence to six months."
Learned counsel has also relied upon Sarupchand v. State of Punjab 1987 Cri. L. J. 1180, wherein Hon'ble Apex Court observed as :-
"13. We, therefore, affirm the conviction of the appellant under S. 5(1)(d) read with S.5(2) of the Prevention of Corruption Act and also under S. 161, IPC. In view, however, of the fact that about six years have passed from the date of the incident and this is the first time the appellant has committed an offence, we reduce the sentence to the period already undergone by the appellant. The sentence of fine is, however, sustained."
Learned counsel has further referred upon K. L. Bakolia v. State Through Director, C. B. I. V (2015) SLT 380, wherein it has been observed as:-
"10. ....... The appellant was sentenced to undergo rigorous imprisonment for four years on each count of conviction under Section 7 and Section 13 (2) read with Section 13(1) (d) of the Act and the sentence imposed was ordered to run concurrently. The incident had taken place in the year 1996 about nineteen years ago and for all these years the appellant has undergone the agony of criminal proceedings. Keeping in view the passage of time and that the appellant is now aged seventy four years. In our view, while upholding the conviction of 88 the appellant, interest of justice would be met by reducing the sentence of rigorous imprisonment of four years to one year rigorous imprisonment."
23. It is prayed that in view of the referred case law lenient view may be taken against the A6 on the point of sentence.
24. It is submitted by A9 that Learned counsel Sh. Harish Khanna may be allowed to argue on his behalf on the point of sentence. It is argued by learned counsel that A9 has two sons. One son has left him and gone to Harare, (Zimbabwe). His whereabouts are not known to him and his daughter-in-law is residing with him. His another son used to do petty jobs and earns Rs.9000/- per month. It is further submitted that A9 is living in government accommodation. He further submits that if longer sentence is awarded then his entire family would come on road because due to this case, he also lost his job. It is further submitted that wife of A9 is also suffering from neuro and arthritis problem and he has to take care of his wife. It is submitted that A9 is also suffering from arthritis and high blood pressure. He further submits that A9 used to come from Rai Garh (Chattisgarh) for the last 10 years to attend this case. He further submits that he had incurred huge expenses to attend hearings of this case.
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25. Learned counsel for the accused persons advanced arguments that none of them are hardened criminal. If they would given longer punishment then definitely it would affect their health as well as adverse consequences. It is submitted that lenient view may be taken against all the convicts.
26. All the counsels further submit that though seven accused persons have been convicted in this case but definitely it has effect not only them but their families members, children and wives. It is further submitted that none of the convicts is getting pension. Few of them have been retired. The have also been denied benefits of retirement by their employer. It is further submitted that definitely none of the accused will have any further retirement benefits from their employer despite their services put by them because of conviction in this case.
27. Learned Sr. PP countered the arguments and submits that as per status PF must has been released.
28. When this argument raised, counsel for the accused persons submits that PF has been released but gratuity and other benefits like claim of EL, medical, etc. have not been given. It is submitted that A10 even did not get payment due to present case and even other payments were withheld by the BHEL. 90
29. Learned Sr. PP for CBI countered the arguments and submits that exemplary punishment should be awarded as it will give deterrent effect in the society. He further submits that in the catena of judgments, Hon'ble Supreme Court has held that corruption should be dealt with iron hand and no leniency should be shown in corruption cases.
30. Learned Sr. PP submits that around 296 dates of hearing have been taken place during investigation and trial from top to bottom i.e. IO, Director, Additional Director of CBI and other persons including Sr. PP, DLA/ALA, Naib Court, etc. therefore, all such expenditure if calculated roughly the figure must come out of Rs.30 lac for the prosecuting agency have been incurred in the present case. He further submits that the accused claimed 100 times in the forged bills, therefore, similar they are also make liable to pay 100 times of the amount involved in cheating i.e. more than 2-3 crores as compensation under Section 357 of CrPC. He further claim that at least Rs.50 lac compensation should be given to the compensate loss to the nation in this case.
31. He further submits that the punishment should be of deterrent effect that it should be published or circulate with the co- employees of the accused persons so that they should take lesson and this judgment will have deterrent effect to PSU and other PSU. 91 Resultantly, they should come forward to make the strengthen of the BHEL. It is further prayed that punishment of the convicts should run consecutive not concurrently.
32. Learned defence counsel has countered this argument of learned Sr. PP. It is submitted that Rs.30 lac is a imaginary figure. He further submits that no basis has been disclosed by CBI to claim Rs.50 lac compensation as by imagination or conjuncture cannot be claimed.
33. He further submits that claim of the CBI that punishment should be consecutive is again going to harsh towards the accused persons. He further submits that if judgment passed by equal court or higher Court there is no example of precedent could be cited by learned Sr. PP regarding consecutive sentences. Rather sentence always be run concurrently as practice. It is submitted that illness of the accused persons and their dependents of the family members should be taken into consideration.
34. Learned Sr. PP countered the arguments and submits that it was upon the accused persons when they had committed crime and if they did not think for such at the time of commission of crime then definitely they cannot claim leniency from this Court. He further submits that in catena of judgments Hon'ble Apex Court and other Courts, it is Courts held that corruption is like a cancer to the 92 society, it should be uprooted so that society should be in accordance with lawful means but convicted persons never thought as such when they had committed crime. Learned Sr. PP has relied upon State of Rajasthan v. Dhool Singh AIR 2004 SC 1264, wherein the Hon'ble Supreme Court observed as under:-
"The courts should bear in mind that there is a requirement in law that every conviction should be followed by an appropriate sentence within the period stipulated in law. Discretion in this regard is not absolute or whimsical. It is controlled by law and to some extent by judicial discretion, applicable to the facts of the case. Therefore, there is a need for the courts to apply its mind while imposing sentence."
CBI has further relied upon judgment Sevaka Perumal, etc. v. State of Tamil Nadu AIR 1991 SC 1463, wherein Hon'ble Supreme Court observed as under:-
9. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine to public confidence in the efficacy of law and society could not long endure under serious threats. If he courts did not protect the injured, the injured would then resort to private vengeance. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc.
10. It is clear from the evidence that the accused indulged in illegal business of purchase and sale of ganja. They conspired to entice innocent boys from affluent families took them to far flung places where the dead body could not be identified. The letters were written to the parents purporting to be by the deceased to delude the parents that the missing boy would one day come home alive and that they would not give any report to the police and the crime would go undetected. For murder in a span of five years 93 were committed for gain in cold blooded, premeditated and planned way. It is undoubted that if the trial relating to Athiappan murder had taken place and concluded earlier to the trial and conviction of other three murders are not relevant facts to be considered. But in this case the trial of the murder relating to Athiappan and Hariamachandran practically took place simultaneously by which date the appellants were convicted for the murder of Chellaurai and Christodas. Therefore, the reference of conviction and sentence by the Sessions Court to those two cases also are relevant facts. The deceased Harimachandran is no other than the nephew (elder sister's son) of A-1. This would establish his depravity and hardened criminality. No regard for precious lives of innocent young boys was shown.
They adopted the crime of murder for gain as a means of living."
35. He further submits that as per judicial verdict pronounced earlier in various cases that when the statutes provides maximum sentence, it is only for the talk purpose but it should be implemented. He further submits that if the Court is not going to pass maximum sentence, then there must be some strong reasons for not doing so by the Court. He further submits that if statutes provides maximum sentence then definitely maximum sentence should be awarded as there is no reason for non-awarding of maximum sentence. He strongly objects about leniency towards any of the accused persons.
36. Countered by learned defence counsel Sh. Harish Khanna and argues that facts and law cited by learned Sr. PP in State of Rajasthan v. Dhool Singh (supra) do not applicable in the 94 present case as this is not a case under Section 304 (2) IPC.
37. Learned defence counsel further submits that learned Sr. PP for CBI misconstrued the law, in as much as if the Court is going by the arguments of learned Sr. PP then definitely in every case maximum punishment i.e. capital punishment also to be awarded as a rule but intention of the legislature is not as such. It is discretion lies with the Court depending upon the circumstances and facts of each and every case.
38. This Court considers rival contentions of both the parties. This Court also refers other judgments passed by superior Courts such as:-
39. This Court further has to refer judgment laid down in the Supreme Court :-
In the case titled Mehkar Singh Vs. Central Bureau of Investigation, Hon'ble High Court of Delhi has held that :-
".......... There was no denial of the fact that the corruption by the public servants and particularly the law enforcers like the accused is an alarming menace to the society and which is spreading its tentacles in all walks of life. With regard to the quantum of sentence, nothing specific was pointed out by the learned defence counsel except for praying for leniency in view of the protracted pendency of the case. This was no ground to mitigate the gravity of the offence as per the catena of judgments of the Hon'ble Supreme Court and reference here can be made only to the case of State of A.P. Vs. V. Vasudeva Rao Manu/SC/0916/2003: (2004) 9 SCC 319.
In the given factual matrix, I am not 95 persuaded to impose the minimum sentence as prayed by the learned defence counsel. In the overall circumstances, while maintaining the conviction as awarded by the learned Special Judge, I am of the view that ends of justice would be met by sentencing the accused to two years of rigorous imprisonment on each count. Consequently, the order of sentence stands modified in the sense that the accused shall stand sentenced for two years rigorous imprisonment each under section 7 and also under Section 13(2). The rest of the order shall remain unchanged. Both sentences shall run concurrently. The period of imprisonment already undergone shall be set off. The accused shall be taken into custody to undergo the imprisonment as awarded. The appeal stands dismissed."
In the case titled Raj Kumar Vs. State of Delhi, Hon'ble High Court of Delhi has held that :-
"..........So far as the sentence is concerned, the appellant as let off rather lightly by the learned Special Judge by awarding RI for one year with fine of Rs. 4,000/-, and on failure to pay the same, to undergo SI for four months for the offence under Section 7 of of the P.C. Act; and to further undergo RI for two years with fine of Rs. 6,000/- and on failure to pay the same, to undergo SI for six months for the commission of offence punishable under Section 13(1) (d) read with Section 13 (2) of the P.C. Act. The appellant, who as a Beat Constable, was found guilty of committing criminal misconduct by exploiting his authority to force the complainant to pay him bribe. An officer entrusted the task of protecting the law, blatantly breached the same. Looking to the rampant corruption prevalent in the society, the sentence should, and could, have been harsher. I am, therefore, not inclined to reduce the sentence awarded by the learned Special Judge. The appellant shall surrender forthwith and undergo the remaining sentence."
In the case titled State of Madhya Pradesh Vs. Shambhu Dayal Nagar Hon'ble Supreme Court of India has held that :-
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".......... The corruption by public servants has become a gigantic problem. It has spread everywhere. No facet of public activity has been left unaffected by the stink of corruption. It has deep and pervasive impact on the functioning of the entire country. Large scale corruption retards the national building activities and everyone has to suffer on that count. As has been aptly observed in Swatantar Singh Vs. State of Haryana reported in MANU/SC/0510/1997, lymph nodes, the vital veins of the body politics social fabric of efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post. The reputation of corrupt would gather thick and untraceably clouds around the conduct of the officer and gain notoriety much faster than the smoke.
And also in para no. 19 held that :-
..... From the analysis of the above decisions and the concerned provisions with which we are concerned, the following principles emerge:
a) When the court issues notice confining to particular aspect/sentence, arguments will be heard only to that extent unless some extraordinary circumstance/material is shown to the Court for arguing the matter on all aspects.
b) Long delay in disposal of appeal or any other factor may not be a ground for reduction of sentence, particularly, when the statute prescribes minimum sentence. In other cases where no such minimum sentence is prescribed, it is open to the court to consider the delay and its effect and the ultimate decision.
1. In a case of corruption by public servant, quantum of amount is immaterial. Ultimately, it depends upon the conduct of the delinquent and the proof regarding demand and acceptance established by the prosecution.
d) Merely, because the delinquent lost his job due to conviction under the Act may not be a mitigating circumstance for reduction of sentence, particularly, when the Statute prescribes minimum sentence".
In the case titled Shiv Nanda Sahay Srivastava Vs. 97 The State of Bihar, Hon'ble High Court of Patna has held that :-
" .......... when corruption was sought to be eliminated from the polity all possible stringent measures are to be adopted within the bounds of law. One such measure is to provide condign punishment. Parliament measured the parameters for such condign punishment and in that process wanted to fix a minimum sentence of imprisonment for giving deterrent impact on other public servants who are prone to corrupt deals. That was precisely the reason why the sentence was fixed as 7 years and directed that even if the said period of imprisonment need not be given the sentence shall not be less than the imprisonment for one year.
Such a legislative insistence is reflection of Parliament's resolve to meet corruption cases with a very strong hand to given signals of deterrence as the most pivotal feature of sentencing of corrupt public servants. All public servants were warned through such a legislative measure that corrupt public servants have to face very serious consequences. If on the other hand any public servant is given the impression that if he succeeds in protracting the proceedings that would help him to have the advantage of getting a very light sentence even if the case ends in conviction, we are afraid its fallout would afford incentive to public servants who are susceptible to corruption to indulge in such nefarious practices with immunity. Increasing the fine after reducing the imprisonment to a nominal period can also defeat the purpose as the corrupt public servant could easily raise the fine amount through the same means."
In the case titled Soman Vs. State of Kerala, Hon'ble Supreme Court of India has held that :-
"..........1 Courts ought to base sentence decisions on various different rationales - moth prominent amongst which would be proportionality and deterrence.
2 The question of consequences of criminal action can be relevant from both a proportionality and deterrence standpoint.
3 In so far as proportionality is concerned, the sentence must be commensurate with the seriousness or gravity of the offence.
4 One of the factors relevant for judging 98 seriousness of the offence is the consequences resulting from it.
5 Unintended consequences/harm may still be properly attributed to the offender if they were reasonably foreseeable."
In the case titled Mehkar A.B Bhaskara Rao Vs. Inspector of Police CBI, Visakhapatnam, Hon'ble Supreme Court of India has also relied upon the judgment titled as State of M.P Vs. Shambhu Dayal Nagar MANU/SC/8623/2006 Supra.
In the case titled Mehkar Manish Jalan Vs. State of Karnataka, Hon'ble Supreme Court of India has held that :-
..........In Hari Singh Vs. Manu/SC/0183/1988:
Sukhbir Singh and Ors. 1989 Cril. J. 116, while emphasising the need for making liberal use of the provisions contain in Section 357 Cr.P.C. this court has observed thus:
It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well as of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed as step forward in our criminal justice system.
However, in awarding compensation, it is necessary for the Court to decide if the case is a fit one in which compensation deserves to be awarded. If the Court is convinced that compensation should be paid, then quantum of compensation is to be determined by taking into consideration the nature of the crime, the injury suffered and the capacity of the convict to pay compensation etc. It goes without saying that the amount of compensation has to be reasonable, which the person concerned is able to pay. It the accused is not in a position to pay the compensation to the injured or his dependents to which they are held to be entitled to, there could be no reason for the Court to direct such compensation. In Sarwan Singh and Ors Vs. MANU/SC/0163/1978, State of Punjab : 1978 Cril. J 1598.99
Very recently in Dilip S. Dahanukar Vs. MANU/SC/1803/2007 : Kotak Mahindra Co. Ltd. and Anr. 2007 Crl. J. 2417 explaining the scope and the purpose of imposition of find and/or grant of compensation to a great extent must be considered having the relevant factors therefore in mind. It may be compensating the person in one way or the other. The amount of compensation sought to be imposed, thus, must be reasonable and not arbitrary. Before issuing a direction to pay compensation, the capacity of accused to pay the same must be judged. A fortiori, an enquiry in this behalf even in a summary way may be necessary. Some reasons, which may not be very elaborate, may also have to be assigned; the purpose being that whereas the power to impose fine is limited and direction to pay compensation can be made for one or the other factors enumerated out of the same; but Sub Section (3) of Section 357 does not impose any such limitation and thus, power thereunder should be exercised only in appropriate cases. Such a jurisdiction cannot be exercised at the whims and caprice of a judge."
In the case titled Rekha Sharma Vs. Central Bureau of Investigation, Hon'ble High Court of Delhi has held that :-
.......... The Supreme Court in its decision reported as (2013) 11 SCC 401, Jasvir Kaur Vs. State of Punjab expressed concern on the absence of a sentencing policy in the country and, therefore, cautioned the Courts to calibrate the punishment with due care and upon taking into account the relevant attending circumstances. The Supreme Court quoted with approval the luminous observations of English Judge Henry Alfred Mc Cardie which are reproduce hitherto-fore:
"....Trying a man is easy, as easy as falling off a log, compared with deciding what to do with him when he has been found guilty.
Chapter 19 of the Delhi High Court Rules deals with sentencing of offenders and throws insights on this aspect.
"1. The award of suitable sentence depends on a variety of considerations - The determination of appropriate punishment after the conviction of an offender is often a question of great difficulty and always requires careful consideration.100
The law prescribes the nature and the limit of the punishment permissible for an offence, but the Court has to determine in each case a sentence suited to the offence and the offender. The maximum punishment prescribed by the law for any offence is intended for the gravest of its kind and it is rarely necessary in practice to go up to the maximum. The measure of punishment in any particular instance depends upon a variety of considerations, such as the motive for the crime, its gravity, the character of the offender, his age, antecedents and other extenuating or aggravating circumstances, such as sudden temptation, previous convictions, and so forth, which have all to be carefully weighed by the Court in passing the sentence."
The facts of the present case as unfurled by the overwhelming evidence led by the prosecution at trial reveal a shocking and spine-chilling state if affairs prevalent in our country. An ingenious employment scam spanning across eighteen (18) districts of State of Haryana was given effect to by persons at the helm of power and the entire bureaucratic machinery fell prey to its satanic influence. Laudably, few individuals who were examined at the trial were forthright in the hour of adversity and did not succumb to the pressures exerted upon them from all quarters. Some individuals, such as PW-14, Dhup Singh, were not even high ranking officers of th Civil Services, but mustered courage to successfully repel the pressure exerted upon them.
It is submitted that the authors of the present crime were essentially public servants; who were duty bound to preserve and uphold the dignity of law. Some had even been administered 'oath' in terms of the Constitution of India. Yet they chose to flagrantly violate the law, betraying the trust reposed in them by the citizens and the Constitution. The very nature of the present crime, its magnitude, ramifications, designed manner of execution and the deleterious impact on the society at large, warrants a strict view, lest, justice be rendered sterile.
Very recently the Supreme Court in its decision pronounced on 06.05.2014 in the case of Dr. Subramanian Swamy Vs. Director, Central Bureau of Investigation and Another, (2014) 8 SCC 682 while holding section 6A of the Delhi Special Police Establishment Act, 1946 to be ultravires took serious note of malaise of corruption in our country and pertinently observed :
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"77 This court in Shobha Suresh Jumani, took judicial notice of the fact that because of the mad race of becoming rich and acquiring properties overnight, or because of the ostentatious or vulgar show of wealth by a few or because of change of environment in the society by adoption of materialistic approach, there is cancerous growth of corruption which has affected the moral standards of th people and all forms of governmental administration.
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80 ...In the supplementing judgment, A.K
Ganguly, J. While concurring with the main judgment delivered by G.S. Singhvi, J. observed:
"Today, corruption in our country not only poses a grave danger to the concept of constitutional governance. It also threatens the very foundation of the Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our Premabular vision. Therefore, the duty of the Court is that any anti-corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption....."
81 In balakrishna Dattatrya Kumbhar, this Court observed that corruption was not only a punishable offence but also, "undermines human rights, indirectly violating them, and systematic corruption, is a human rights' violation in itself, as it leads to systematic economic crimes".
82 In R.A. Mehta, the two-Judge Bench of this Court made the following observations about corruption in the society:
"Corruption in a society is required to be detected and eradicated at the earliest as it shakes "the socio-economic-political system in anotherwise healthy, wealthy, effective and vibrating society".
Liberty cannot last long unless the State is able to eradicate corruption from public life. Corruption is a bigger threat than external threat to the civil society as it corrodes the vitals of our polity and society. Corruption is instrumental in not proper 102 implementation and enforcement of policies adopted by the Government. Thus, it is not merely a fringe issue but a subject-matter of grave concern and requires to be decisively dealt with."
83 ..... It was observed :
"Abuse of public office for private gain has grown in scope and scale and hit the nation badly. Corruption reduces revenue; it slows down economic activity and holds back economic growth. The biggest loss that may occur to the nation due to corruption is loss of confidence in the democracy and weakening of the rule of law.".......
In the celebrated words of Martin Luther King, Jr. ; "Morality cannot be legislated, but behaviour can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless."
40. After considering rival contentions and law cited by both the parties as well as case laws referred by this Court, this Court comes to the conclusion that long pendency of the trial or long time taken to conclude trial does not make a ground for mitigating sentence. Therefore, arguments raised by learned defence counsel to take lenient view due to such facts is not going to help all the convicts.
41. The Court has to consider important fact that all the accused persons in this case are highly educated persons. Most of them are B.Tech, obtained their educational qualifications from prestegious educational institutions. This court also agrees with the contention raised by the Ld. Sr. PP that all such accused persons have studied in institutions funded by State agencies, who used to charge nominal fees from the students. This Court cannot lost the 103 sight from the fact that the A3 to A9 are not in the job. They have been retired or services have been suspended/terminated without giving them retirement benefits except PF. This Court can also take into consideration that A7 to A9 are not having their own house and are now living in either rented accommodation or accommodation provided by their employer. This court also considered the fact that all these accused persons are of higher post having enough intelligence to judge right or wrong. A person committed offence when having sense of judgment to differentiate between right or wrong, should be given harsher punishment. Court can take judicial notice of public behaviour that whenever a culprit committed crime on the road, the entire public catches the culprit and handled in such a way that half of the punishment got by that culprit on the road itself. But that culprit sometimes not-educated, some educated or may have no education, may have no sense for right or wrong. But here all the convicts who are working in prestegious the BHEL i.e. a Navratan PSU of this country and are educated engineers, highly qualified graduates or diploma holder of Engineering but instead of applying their mind for right or wrong, took part in crime alongwith A- 10 to cheat their employer itself i.e. the employer who was providing them source of livelihood not only to them but other millions of people of the country. This Court is of the considered opinion that 104 these accused persons not only officers of the company but custodian of the resources and assets of the company i.e. BHEL but they have joined hands with A-10 and allowed for commission of crime as observed by this court in the judgment by abusing their positions.
42. A-10 is a contractor joined hands to get illegal benefit with malafide intention to cheat the BHEL and all such accused persons instead of making BHEL richer, joined hands to get illegal advantage for themselves.
43. This Court agrees with the contention raised by the Ld. PP that in this country most of the people have made the way of corruption as their way of living style as it appears to them the easiest route to get early success and easy wealth. The corruption has spread to such an extent in the society that it becomes disease among professionals, medical professionals, educational professionals or even the custodian of the nation i.e. politician of this country. No corruption can take place until and unless the public opinion may give it sanctity. Sanctity only comes when it becomes the life style of the people of the country. Great Scholars of the country Chanakya and Vidur have mentioned in old tentaments that if servant of the king becomes corrupt then integrity of the State would be at threat. Here servants of the King would be A-3 to A-9 105 as they were getting salary from the State. Now, in the democratic system by every citizen of the country is like King of the State because all such citizens of the country elect their representative and those representatives conduct affairs of the State through public servants. It is the duty of the public servants that they should remain faithful to the State, otherwise integrity of the State would be at jeopardy. A-3 to A-9 are employees of the State but not only the employees of the State but rather high officials of the State upon whom people of the State had faith. But instead to prove their faith, they committed the crime by joining the hands. Therefore, I do not find that any leniency can be granted as prayed by their respective counsels. But the court has to balance with the contentions of the convicts as already observed that all such persons either not getting pension or received retirement benefits.
44. However, this Court does not agree with the contention raised by the Ld. Sr. PP that punishment should be run consecutively. Since, all the accused persons are of old age, most of them are Senior Citizen therefore, this court also does not agree with the contention raised by the Ld. Sr. PP that rigorous punishment should be awarded to the accused persons.
45. Ld. Sr. PP further submits that all the convicts are also liable for fine as all the offence under which they have been 106 punished, they have to pay fine to the State. He further claims compensation U/s 357 (1) of Cr.P.C. and also claim compensation to the BHEL to whom all the accused persons by hatching criminal conspiracy and by commission of crime caused pecuniary loss to the PSU as well as to the reputation of the institutions. He claims that heavy fine of Rs. 10 lac each be imposed upon convicts. He also claims compensation of Rs. 30 lacs as he submits that CBI has investigated the matter thoroughly and called witnesses from different parts of the country. He further submits that CBI has taken services for the purpose of investigation of best professionals and also hired best prosecutors to bring the guilt at home of the accused persons. He further submits that keeping in view all the fact of rising cost of transportation, communication and various other applicable methods for the purpose of investigation and to bring the witnesses before the Court from different parts of the country Rs.30 lac would not be actual cost incurred in prosecution but definitely it will compensate to some extent the expenses incurred in the prosecution. He claims that all the accused persons should be jointly liable to pay fine of Rs. 3 crores as State has suffered a lot due to conduct of such officers. He further submits that it is the offence which came into knowledge of prime investigating agency of this country on source information. He further submits that possibility 107 cannot be ruled out that there may be other instances or offences committed by these people during their service tenure in view of the manner in which crime has been committed by these people. He further submits that all the accused persons were not come under employment in BHEL on the very same day or few months prior when crime has been unearthed.
46. Thus, this Court keeping in view all the facts and circumstances and health of the accused persons, their age, their economic condition and responsibility towards their family and maintaining balance between reformative theory as argued by the Ld. Counsels for the Defence and arguments in favour of exemplary punishment to be awarded as argued by the Ld. Sr. PP, this court is of the considered opinion that the punishment should be given to all the accused persons as under :-
47. Accused V.C. Ramalu (A-3) has been convicted and is awarded sentence of simple imprisonment for a period of five years for the offences punishable U/s 120-B R/w sec. 420/468/471/477 A IPC & 120 B read with Section 13 (1) (d) & 13 (2) of P.C. Act. He is also convicted and is awarded sentence of simple imprisonment for a period of five years for each offence punishable U/s 420/468/471/477 A IPC and 13 (1) (d) & 13 (2) of P.C. Act and is also sentenced to pay fine of Rs. 5 lacs (Five Lac). In default of 108 payment of fine, he is to undergo simple imprisonment for a period of one year.
48. Accused Denis Barnabas (A-4) has been convicted and is awarded sentence of simple imprisonment for a period of five years for the offences punishable U/s 120-B R/w sec. 420/468/471/477 A IPC & 120 B read with Section 13 (1) (d) & 13 (2) of P.C. Act . He is also convicted and is awarded sentence of simple imprisonment for a period of five years for each offence punishable U/s 420/468/471/477 A IPC and 13 (1) (d) & 13 (2) of P.C. Act and is also sentenced to pay fine of Rs. 5 lacs (Five Lac). In default of payment of fine, he is to undergo simple imprisonment for a period of one year.
49. Accused O.P. Sharma (A-6) has been convicted and is awarded sentence of simple imprisonment for a period of five years for the offences punishable U/s 120-B R/w sec. 420/468/471/477 A IPC & 120 B read with Section 13 (1) (d) & 13 (2) of P.C. Act . He is also convicted and is awarded sentence of simple imprisonment for a period of five years for each offence punishable U/s 420/468/471/477 A IPC and 13 (1) (d) & 13 (2) of P.C. Act and is also sentenced to pay fine of Rs. 5 lacs (Five Lac). In default of payment of fine, he is to undergo simple imprisonment for a period of one year.
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50. Accused P.L. Khadala (A-7) has been convicted and is awarded sentence of simple imprisonment for a period of four years for the offences punishable U/s 120-B R/w sec. 420/468/471/477 A IPC & 120 B read with Section 13 (1) (d) & 13 (2) of P.C. Act . He is also convicted and is awarded sentence of simple imprisonment for a period of four years for each offence punishable U/s 420/468/471/477 A IPC and 13 (1) (d) & 13 (2) of P.C. Act and is also sentenced to pay fine of Rs. 3 lacs (Three Lac) . In default of payment of fine, he is to undergo simple imprisonment for a period of 9 months. This court has taken into consideration for A7 that at the time of commission of crime he had just joined the BHEL and was merely a junior engineer.
51. Accused P.C.M Jhammnani (A-8) has been convicted and is awarded sentence of simple imprisonment for a period of five years for the offences punishable U/s 120-B R/w sec. 420/468/471/477 A IPC & 120 B read with Section 13 (1) (d) & 13 (2) of P.C. Act . He is also convicted and is awarded sentence of simple imprisonment for a period of five years for each offence punishable U/s 420/468/471/477 A IPC and 13 (1) (d) & 13 (2) of P.C. Act and is also sentenced to pay fine of Rs. 5 lacs (Five Lac). In default of payment of fine, he is to undergo simple imprisonment for a period of one year.
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52. Accused S.N. Jha (A-9) has been convicted and is awarded sentence of simple imprisonment for a period of three and half years for the offences punishable U/s 120-B R/w sec. 420/468/471/477 A IPC & 120 B read with Section 13 (1) (d) & 13 (2) of P.C. Act . He is also convicted and is awarded sentence of simple imprisonment for a period of three and half years for the offences punishable U/s 420/468/471/477 A IPC and 13 (1) (d) & 13 (2) of P.C. Act and is also sentenced to pay fine of Rs. 2 lacs (Two Lac). In default of payment of fine, he is to undergo simple imprisonment for a period of six months. This Court has taken into consideration of the fact that A9 was simply foreman and had no role towards policy decision.
53. Accused Anil Kumar Goel (A-10) has been convicted and is awarded sentence of simple imprisonment for a period of five years for the offences punishable U/s 120-B R/w sec. 420/468/471/477 A IPC & 120 B read with Section 13 (1) (d) & 13 (2) of P.C. Act . He is also convicted and is awarded sentence of simple imprisonment for a period of five years for each offence punishable U/s 420/468/471/477 A IPC and is also sentenced to pay fine of Rs. 5 lacs (Five Lac). In default of payment of fine, he is to undergo simple imprisonment for a period of one year.
54. All the sentences shall run concurrently.
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55. Out of total fine, Rs. 7 lacs (i.e. Rs. 1 lac each from each accused), be paid to the CBI towards litigation expenses and Rs. 3.5 lacs (i.e. Rs. 50,000/- each from each accused), be paid to the BHEL towards compensation.
56. Benefit of Section 428 CrPC, if any, be given to all the convicts.
57. All convicts have been supplied with copy of judgment and order on sentence free of cost.
58. File be consigned to Record Room.
Dictated and announced in the open Court on 16.09.2015.
( JITENDRA KUMAR MISHRA) SPECIAL JUDGE, CBI ( PC ACT) EAST DISTRICT KKD COURTS: DELHI