Delhi District Court
State vs . 1. Pankaj Goel on 29 October, 2015
IN THE COURT OF MS. POONAM CHAUDHRY, SPECIAL
JUDGE07 (CENTRAL), (PC ACT CASES OF ACB, GNCTD),
DELHI
CC.NO. : 04/12
Unique Case ID : 02401R0464182009
STATE VS. 1. Pankaj Goel
S/o Sh. R.P. Goel,
R/o H.No.47, Pocket II, Sector5, Rohini,
Delhi.
2. C.B. Singh
S/o Sh. Jhamman Singh
R/o D831 A, Gali No. 3, Ashok Nagar,
Delhi.
FIR NO. : 23/2004
U/S : 420/467/468/471/120B IPC &
13(1) (d) & 13 (2) of Prevention of
Corruption Act 1988.
P.S. : Anti Corruption Branch, Delhi
Date of Institution 05.10.2009
Judgment reserved on 13.10.2015
Judgment delivered on 29.10.2015
C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 1
JUDGMENT
1. The case of the prosecution is that on or before 7.8.1998, accused Pankaj Goel while posted as Junior Engineer and accused C.B. Singh while posted as Executive Engineer in Div. No. XVI. Civil Lines Zone, MCD, Delhi entered into a criminal conspiracy with M/s Aruna Builders & Suppliers, 26/87, Shakti Nagar, Delhi through its proprietor/contractor Arun Kumar Bansal (since expired during investigation) and accused Naresh Gupta, AE (who committed suicide in 2006 during investigation) working as a contractor in Division No. 16, MCD at the relevant time, to cheat MCD by passing bills and releasing the payment to the contractor and causing pecuniary gain to the contractor to the tune of Rs. 6.8 lacs with forged invoices. It is also the case of the prosecution that accused Pankaj Goel and C.B. Singh abused their official position in pursuance of said criminal conspiracy being public servant in discharge of official duties by corrupt and illegal means by not fulfilling the requisite terms and conditions of the work orders bearing no. 254, 255, 256 and 257 dt. 7.8.1998 for improvement of main roads, as mentioned therein, awarded to M/s Aruna Builders & Suppliers, 26/87, Shakti Nagar, Delhi through its proprietor/contractor Arun Kumar Bansal. As per the terms and C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 2 conditions of the above work orders the contractor had to purchase fresh "Bitumin" from one of the authorized oil companies of the Government of India viz. M/s Indian Oil Corporation Ltd. (IOCL), M/s Bharat Petroleum (BP), M/s Hindustan Petroleum (HP) and receipt in original was to be submitted to the department of MCD Delhi as proof of purchase of fresh "Bitumin". The contract also stipulated that no receipt of any dealer / stockist etc. was to be accepted. But while executing the said road works, sub standard/unauthorized "Bitumin" was used for the said road works, as such MCD was cheated by way of passing of bills amounting to Rs. 6.8 lacs with forged invoices of M/s Indian Oil Corporation Ltd. by abusing their position by both accused as public servants. Thereby causing pecuniary gain to the contractor and loss to Government exchequer and on the above facts all the accused committed offences punishable u/s 120B IPC, accused C.B. Singh & Pankaj Goel committed offence Under Section 13(1)(d) punishable u/s. 13(2) of the Prevention of Corruption Act (in short POC Act) r/w Section 120 B IPC in conspiracy with the contractor, and accused C.B. Singh and Pankaj Goel committed offences Under Section 420/467/468/471 IPC r/w Section 120B IPC.
C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 3
2. After completion of investigation charge sheet was filed against accused C.B. Singh & Pankaj Goel. Charge Sheet was framed against both the accused u/s. 120B IPC, Section 13(1)(d) punishable u/s. 13(2) Prevention of Corruption Act & Section 420/467/468/471 IPC r/w Section 120 B IPC.
3. The prosecution examined 21 witnesses in support of its case.
4. PW1 SI K.L. Meena deposed that on 25.5.04 he was posted as duty officer in ACB when Inspector R.S.Manku produced a rukka for registration of FIR. He stated that on the basis of the rukka, he had recorded the FIR Ex. PW1/A. He further stated that after registration of the FIR, it was handed over to Inspector S.S. Sandhu for further investigation.
5. PW2 Sh.Teerath Ram stated that he was posted in the vigilance department of MCD as an Assistant Director. He stated that the biodatas of Pankaj Goel and C.B. Singh, which were prepared on the basis of the record available in the office. He proved the biodatas of accused Pankaj Goel and C.B. Singh Ex. C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 4 PW2/A and Ex. PW2/B respectively.
6. PW3 Pushkar Raj, Head Clerk, ADC (HQ) deposed that on 3.6.04 he was posted as Head Clerk, in the Vigilance Department, MCD, 16 Rajpur Road, Delhi. He further stated that on the said date he handed over to IO tender files and account files of the work order nos. 254, 255, 256, 257 all dated 7.8.98 Ex. PW3/A (colly) to Ex. PW3/H (colly) of M/s Aruna Builders and Suppliers, 26/86, Shakti Nagar, Delhi. The said files were taken into possession vide seizure memo Ex.PW3/J.
7. PW4 Khazan Singh deposed that in the year 199899 he was posted as Account Clerk(UDC) in Division No.XVI/MCD/CLZ. He further testified that IO of the case had shown him the tender file of work orders no. 254, 255, 256, 257 dated 7.8.98. As per said work orders and bills, the aforesaid work orders were awarded to M/s Aruna Builder and Supplier, 26/86, Shakti Nagar, Delhi, the proprietorship concern of Arun Kumar Bansal (deceased). He further stated that he inspected the copies of the bills and it bears his signatures. He also stated that accused Pankaj Goel, (JE), Naresh Gupta, AE (deceased) and accused C.B.Singh, (EE) were C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 5 posted in Division No. 16 and he used to visit the above named engineers in connection with the record/files, therefore, he could identify their signatures. He deposed that tender files and account files of the work orders Ex. PW2/A to Ex. PW3/H bear the signatures of accused Pankaj Goel, Naresh Gupta (deceased) and C.B.Singh as well as Arun Kumar Bansal (deceased). He correctly identified accused Pankaj Goel and C.B.Singh.
8. PW5 Sh. Loknath Sahu stated that on 10.9.08 he was posted as UDC in the Directorate of Education, Old Secretariat, Delhi and was on duty as Panch witness in the AC Branch. He further stated that on above said date accused Pankaj Goel and C.B.Singh were interrogated and arrested in his presence. He identified both the accused correctly. He stated that the arrest memo and personal search memo of accused Pankaj Goel were Ex.PW5/A and Ex.PW5/B respectively. He also deposed that the arrest memo and personal search memo of accused C.B.Singh were Ex.PW5/C and Ex.PW5/D respectively and stated that the all above said memos bear his signatures.
9. PW6 Satyapal Hans stated that on 2.8.2007 he was posted as C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 6 Inspector in Food & Supply, Circle no.36, A59, Okhla, PhaseI, New Delhi and on that day, he had joined the investigation of this case. He further stated that accused Arun Kumar (since expired) was arrested in his presence vide arrest memo Ex.PW6/A which bears his signatures.
10. PW7 HC Dasan stated that on 18.8.09 he was posted as Head Constable in PS AC Branch and on the said date on the directions of the IO he had taken the exhibits of the case in 3 sealed envelopes bearing the seal of SKS vide RC No.26/09 dated 18.8.09 PS AC Branch alongwith a forwarding letter, for depositing the same in FSL, Rohini. He testified that he deposited the exhibits in FSL, Rohini and handed over a copy of the receipt of deposit to the IO. He further stated that so long as the case property remained in his custody, it was not tampered with.
11. PW8 Sh.Vinay Kumar Tyagi stated that on 12.3.09 he was posted as LDC in Transport Department, EZone, Loni, Govt. of NCT Delhi and on that day he was on duty as Panch witness in the AC Branch. He further stated that on the requisition of the IO he had joined the investigation of this case. He further testified that C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 7 accused Pankaj Goel, JE and accused C.B.Singh, EE had willingly given their specimen signatures, which were Ex.PW8/A1 to A10 and Ex.PW8/B1 to B11 respectively and bear his signature at point A on each page.
12. PW9 Sh. Narender Kumar Sharma deposed that in the year 199899 he was posted as Tender Clerk in Division No.XVI/CLZ/MCD. He also stated that IO had shown him the tender files of work order no. 254, 255, 256 and 257 dated 7.8.98 and the bills. He further stated that aforesaid work orders were awarded to the proprietorship concern M/s Aruna Builders and Suppliers of which Arun Kumar Bansal was the Proprietor. He further stated that the tender files, work orders and bills bear the signatures of accused Arun Kumar Bansal at point A, C.B. Singh at point B, accused Pankaj Goel at point C, that of Naresh Gupta at point D and his signatures at point F. He further stated that he could recognize the signatures of above named persons on the work orders as he had seen them writing and signing during the course of his duties.
13. PW10 Bhanu Pratap stated that on 9.3.09 he was posted as a C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 8 Craft Instructor, ITI, Jahangir Puri, Govt. of NCT, Delhi and was on duty as Panch witness in the AC Branch. He further stated that on above said date accused Arun Kumar Bansal (since deceased) voluntarily gave his willingness to give his specimen signatures and writing to the IO which were Ex.PW10/A1 to A10 and bear his signatures at point A on each page.
14. PW11 Smt.Rajni Narula stated that on 4.9.08 she was posted as Assistant Law Officer, Vigilance, MCD, Delhi. She further deposed that she had requisitioned the transfer/posting order of Engineers Pankaj Goel and S.N. Goel pursuant to letter of AC Branch from the concerned department vide letter Ex. PW11/C. She further stated that she sent the posting order of Engineers Sanjay Kumar Jain Ex. PW11/A, C.B. Singh Ex. PW11/B, S.N. Goel and Pankaj Goel to AC Branch vide forwarding letter Ex. PW11/D.
15. PW12 Ms. Nirmal Bansal, Audit Officer stated that in the year 1998 she was posted in Civil Line Zone, MCD, Kashmere Gate as an Accountant. She further stated that work orders Ex.PW3/A to Ex.PW3/H bear her signatures at point X and that of C.B. Singh (EE) at point Y. She also stated that she could C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 9 recognize the signatures of C.B. Singh as she had worked with him during the course of her duties. She further testified that she could not identify the signature of Junior Engineer and contractor. In her examination by Ld. Addl. PP for State she denied that she was deliberately not identifying the signatures of JE Pankaj Goel and contractor Arun Kumar Bansal. She also denied that she had stated before the police that she could identify the signatures of Arun Kumar as he was working in Zone No. XVI MCD. She also denied that she stated before the police that she was familiar with the writing and signatures of JE Pankaj Goel and AE Naresh Gupta.
16. PW13 Sh. K.S.Mehra, Commissioner, MCD proved sanction for prosecution of accused C.B. Singh Ex.PW13/A.
17. PW14 Sh. Naresh Kumar, Joint Secretary, Govt. of India proved the sanction accorded by him for prosecution of accused Pankaj Goel as Ex.PW14/A.
18. PW 15 Sh. Sajjan Kumar, General Manager, IOCL, Patna (Bihar) deposed that on 24.06.2004 he was posted as Chief Refinery Coordinater in Mathura Refinery Terminal, Mathura C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 10 when letter dated 15.6.04 bearing no.5184/SSS Ex. PW15/B was received from AC Branch. Vide said letter information was sought as to whether bitumen was purchased during the period 07.08.98 to 31.10.98 by Aruna Builders & Suppliers from their refinery or not alongwith cash memos/bills gate passes as it was required for investigation. He further stated that he sent reply to the said letter which is Ex.PW15/A stating therein that on verification of the available record pertaining to period August 1998 it was found that there was no customer by the name of M/s Aruna Builders & Suppliers available in their customer master (full record) and that no bitumin was supplied to M/s Arun Builders and Supplier, Delhi from their Refinery. He further stated that letter Ex.PW15/B was received by the then Sr. Manager Sh. D.K. Goel whose signatures and writing he could identify as he had seen him writing and signing in the course of his duties.
19. PW16 ACP Rajinder Singh Manku stated that in May 2004 he was posted as Inspector in ACB, GNCT Delhi when he received source information that M/s Aruna Builders and Suppliers, Shakti Nagar, Delhi had been awarded four work orders bearing numbers 254, 255, 256 and 257 all dated 07.08.1998 C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 11 amounting to Rs.7.8 Lakhs pertaining to improvement of roads in the area of Jahangir Puri. He further stated that as per terms and conditions of the work orders fresh bitumen was to be procured by the contractor from any of the Government Oil Companies viz M/s IOCL, BP and HP for execution of the work orders and receipt issued by the government Oil Company was to be deposited with MCD Delhi and no receipt of any other dealer was to be submitted. He further deposed that while executing the work the Engineers of Division No. XVI MCD Delhi entered into a criminal conspiracy with accused Arun Kumar Bansal with the intention to cheat MCD by using substandard/unauthorised Bitumen. He also testified that in furtherance of said conspiracy accused Arun Kumar Bansal used substandard/unauthorised Bitumen. He also testified that contractor also submitted bills amounting to Rs.6.8 lakhs alongwith forged vouchers / invoices regarding the purchase of bitumen from M/s Indian Oil Corporation Ltd. and the said bills were cleared by the Engineers of Division No. XVI MCD by abusing their official position as public servant, thereby causing pecuniary benefit to M/s Aruna Builders and Suppliers. PW16 further testified that the veracity of information was verified by him and thereafter, a detailed report was prepared and submitted to his Senior Officer C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 12 regarding commission of offences u/s 120B IPC R/w section 420/468/471/467 IPC & section 13(2) R/w section 13(1)(d) of POC Act. He also stated that with the approval of Senior Officers a criminal case was got registered through Rukka dated 25.05.2004. He proved the Rukka Ex.PW16/A. He further stated that after the registration of the case the duty officer marked the investigation to Inspector S.S. Sandhu posted in Anti Corruption Branch.
20. PW17 Ashok Drabu Retd. Executive Engineer stated that pursuant to the direction of IO, he had sent measurement book no. 1766 and 1769 relating to work order no. 254 to 257 and work order no. 186 and 535 vide covering letter Ex.PW17/A to the IO. He identified measurement book no. 1766 as Ex. PW13/A and 1769 as Ex. PW13/B.
21. PW18 Shri R.K. Bahal, deposed that on 24.08.09 he was posted as Audit Officer in MCD and had joined investigation. He deposed that the work orders no. 254, 255, 256 & 257 and 235 & 186 were shown to him. He stated that his duty was to scrutinize the bills which came from the Division No. XVI and at the time of scrutiny, the following formalities were to be exercised by him: C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 13
(a) to see the bill of supplier.
(b) to see the work order.
(c) to see not to include any other items in the schedule.
(d) to see the samples.
(e)to see the details of the bitumens/cement consumption.
(f) to see there is any variation in amount of the bills.
(g) to see the statutory deductions have been made in the bill.
He further testified that after seeing the above formalities, the bill was resubmitted to the EE for payment and for endorsing the payment order on the back of the original agreement. He deposed that accused C.B. Singh, whom he correctly identified was EE at that time. He also deposed that the measurement books were checked and signed by him. The measurement book No. 1766 and 1769 were also inspected. He testified that the measurement book no. 1766 (Ex. PW13/A) bears his signatures at point X on pages 65, 66, 67 and 70. He also stated that tender file of Ex. PW3/A bears the signatures of Ms. Nirmala Bansal at point X. He also testified that the bill of work order Ex. PW3/B, Ex. PW3/D, Ex. PW3/F and Ex. PW3/H bear his signatures at point X. The agreements also bear his signatures at point X. C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 14
22. PW 19 Sh.K.L. Meena Retd. ACP deposed that on 22.11.04 he was posted in AC Branch as an Inspector and on the directions of the then DCP, further investigation of this case was marked to him. He stated that he had interrogated accused Naresh Gupta AE and Pankaj Goel JE in the office of AC Branch. He further stated that he had also called Head Clerk Sh. K.P.Singh and UDC Sh.Khazan Singh of Account Section during investigation. He further testified that thereafter further investigation was transferred to Inspector Santosh Kumar.
23. PW 20 Sh. S.S. Sandhu stated that on 25.05.2004 he was posted in AC Branch, GNCT of Delhi as an Inspector. He further stated that after registration of this case, further investigation was marked to him. He also testified that during investigation, he received files Ex. PW3/A to Ex. PW3/H from Pushkar Raj, Head Clerk, MCD which were taken into possession by him vide seizure memo Ex.PW3/J. He also stated that during investigation, he sent a letter Ex.PW15/B, to the General Manager, Sales of IOCL, Mathura and he had received reply to the said letter from the Chief Engineer, Chief Refinery Coordinator which is Ex.PW15/A. He also stated that one letter was also sent to Executive Engineer, C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 15 MCD Division no. XVI to provide MB/register relating to work orders in question. The measurement books Ex. PW13/A were accordingly received vide letter Ex. PW17/A and was kept on record. He also testified that he had interrogated accused Pankaj Goel, C.B. Singh and Naresh. He correctly identified accused Pankaj Goel and C. B. Singh.
24. PW21 Inspector Santosh Kumar deposed that on 13.12.05 he was posted in AC Branch when investigation of this case was marked to him. He testified that the documents relating to work orders no. 254, 255, 256 and 257 and the measurement book no. 1766 & 1769 were already on record. He further testified that a report received from IOCL, Mathura in respect of "Bitumin" was also on record wherein it was mentioned that in the year 1998 there was no customer in their record by the name of M/s Aruna Builders and Suppliers and that invoices prepared by them (IOCL) were computer generated but the invoices submitted by the contractor/proprietor of M/s Aruna Builders and Suppliers were manually prepared. He also testified that during investigation he arrested Arun Kumar Bansal (since deceased) vide arrest memo Ex.PW6/A. He also testified that he took the specimen signatures C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 16 of the contractor as well as accused Pankaj Goel JE, C.B.Singh EE and Arun Kumar AE, which were already exhibited as Ex.PW8/A1 to A10, PW8/B1 to B11 and PW10/A1 to A10 respectively. He stated that the specimen signature of all accused and questioned documents were sent to FSL. The FSL report was Ex.PW21/A. He also testified that letter for obtaining sanction for prosecution against the accused Pankaj Goel, JE, C.B.Singh, EE were sent to department of MCD and the sanctions obtained were placed on record. He also stated that bio datas and posting orders of accused Pankaj Goel and accused C.B. Singh were also obtained from MCD. He also deposed that during investigation accused Pankaj Goel and C.B.Singh were arrested and their personal search was conducted. He also stated that accused AE Naresh Gupta could not be arrested as he committed suicide in 2006. He further stated that he had sent a letter to Superintendent Engineer, MCD regarding the procedure for procurement bulk bitumin from Indian Oil Corporation for construction work, which is Ex.PW21/B and reply to the same given by the concerned official Ex.PW17/B. PW21 also deposed that during the course of investigation, statements of witnesses were recorded. Chargesheet was prepared and filed. C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 17
25. The statements of both accused were thereafter recorded u/s 313 Cr.P.C. Both the accused stated that they were innocent and had been falsely implicated. Accused examined six witnesses in their defence.
FINDINGS ON CHARGE OF CONSPIRACY
26. Section 120 A of the India Penal Code which defines 'Criminal Conspiracy' is as follows :
"When two or more persons agree to do, or cause to be done, (1) an illegal act, (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy :
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 18
27. Section 120B provides punishment for criminal conspiracy and provides as under :
"Whoever is a party to a criminal conspiracy to commit an offence punishable with death, (imprisonment for life) or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in the code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence."
28. Criminal conspiracy is an independent offence. It is punishable separately. The ingredients of the offences of criminal conspiracy are:
i). agreement between two or more persons.
ii). an agreement to doing or causing to be done either an illegal act or an act which is not illegal in itself but is done by illegal means.
The prosecution thus had to establish meeting of the minds of the accused persons for doing an illegal act or an act by illegal means. It has to be borne in mind that a criminal conspiracy is hatched in secrecy, hence it is difficult to establish the same by direct evidence. Thus the manner and circumstances in which the offences have been committed are relevant and to prove the charge C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 19 of conspiracy, it is not necessary that all the conspirators know each other and every detail of the conspiracy so long as they are coconspirators in the main object of conspiracy anything said, done or written by any of hem would be evidence against the other. It is also not necessary that all the conspirators participate from the inception of conspiracy to its end. If there is unity of object all those participating at different stages of crime will be guilty of conspiracy.
29. "Criminal conspiracy" is not easy to prove. The conspirators invariably deliberate, plan and act in secret over a period of time. It is not necessary that each one of them must have actively participated in the commission of the offence or was involved in it from the start to finish. What is important is that they were involved in the conspiracy. Conspiracy requires actus reus and accompanying mens rea. To convict a person for conspiracy, the prosecution must show that all accused agreed with each others to accomplish the unlawful object of conspiracy. The Court has to be satisfied that there is a reasonable ground to believe the existence of the conspiracy and that is a matter for judicial inference from proved facts and circumstances.
C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 20
30. As regards the concept of criminal conspiracy, it has been held in (2009) 15 Supreme Court Cases 643 Mir Nagvi Askari Vs. Central Bureau of Investigation as under:
"A. Penal Code, 1860 - Ss. 120A and 120 B - Criminal conspiracy - Concept - Evidence for proving - Illegal advance credits by bank officials - Held, criminal conspiracy involves meeting of minds of two or more persons for doing or causing to be done an illegal act or an act which may not be illegal but by illegal means - The offence takes place with the meeting of minds even if nothing further is done - It is an offence independent of other offences and is punishable separately - Criminal conspiracy is generally hatched in secrecy - Direct evidence is therefore difficult to obtain or access - The offence can be proved by adducing circumstantial evidence and/or by necessary implication."
31. In order to bring home the charge of conspiracy and for the purpose of drawing inferences U/s 10 of the Evidence Act, the prosecution had to establish beyond reasonable doubt that accused acted in concert, either through overt or covert acts in furtherance C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 21 of the common objective. Section 10 of the Indian Evidence Act introduces the doctrine of agency and if the conditions laid down there are satisfied, the act done by one is admissible against the co conspirators. Section 10 of the Indian Evidence Act is as under :
"Things said or done by conspirator in reference to common design. Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
(1) Thus, there should be prima facie evidence disclosing reasonable grounds for court to believe that two or more persons were members of a conspiracy., (2) Anything said, done or written by anyone of them in reference to the common intention would be evidence against the other., (3) Anything said, done or written by anyone of them should have been said, done written by them after C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 22 the intention was formed by anyone of them. The prosecution thus had to prove by chain of events which could lead to strong inference of conspiracy. Conspiracy can be inferred either on the basis of direct or circumstantial evidence. Though direct evidence of conspiracy is difficult in most cases, the circumstances proved should reasonably point to existence of prior concert of mind.
32. Ld. Counsel for accused Pankaj Goel and C.B. Singh submitted that it was the duty of the prosecution to bring home the guilt of the accused u/s. 120B IPC and u/s 13(1)(d) &13(2) of POC Act, 1988 r/w section 120B IPC as well as offences u/s. 420/467/468/471 IPC r/w Section 120 B IPC beyond reasonable doubt. It was also contended that there was no irregularity in the awarding of contract and the accused had no role in the process of awarding of the contract. It was further alleged that the case was registered on the basis of a source information as deposed by PW16 but the source of the said information was not disclosed. Neither the informer was examined as a witness and in this regard PW16 stated in his cross examination that he had conducted a secret inquiry but the inquiry report was not filed in the court. It was further contended that PW16 also stated that he had submitted C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 23 detailed report to his seniors and with the approval of his senior officers a criminal case was got registered. But the approval of senior officers was not placed on record and PW16 admitted this fact in his cross examination. Thus, there was no proper investigation. However, Ld. Addl. PP countered the said arguments and submitted that PW16 stated that he conducted secret enquiry and contacted his sources in Indian Oil Corporation, Delhi during the course of enquiry. Thus a secret and preliminary enquiry was conducted before registration of FIR and after being satisfied that the accused were guilty of serious misdemeanor case was registered against them. I am of the view that the non disclosure of the source of secret information was not fatal to the case of prosecution as prosecution is not bound to disclose the source of its information. The purpose of secret enquiry was to find out whether criminal proceedings were to be resorted to and to save honest public servants from vexatious prosecution. Thus when a public servant is charged with acts of dishonesty which amounts to serious misdemeanor before FIR is registered against him, a preliminary enquiry into the allegations before the lodging of a FIR would save him from incalculable harm. However, as soon as it becomes clear to the enquiry officer that the public servant C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 24 appeared to be guilty of serious misconduct it was his duty to lodge FIR and proceed further according to process of Cr.PC. Thus, I do not find any substance in the contentions of Ld. Counsel for accused that investigation was tainted.
33. Ld. Counsels for both accused further argued that apart from bald allegations in the FIR there was nothing on record to show that substandard quality of bitumen was used by accused Arun Kumar Bansal, proprietor of M/s. Aruna Builders and Suppliers for the work orders in question. It was further submitted that first IO PW20 stated in his cross examination that he had not received any complaint in respect of the work carried out with regard to work orders in question. PW20 also stated that he had not visited the sites nor lifted the samples from the site, as such the same could not be sent to the laboratory. It was further contended that DW5 was examined in support of the contention that the material used for road works in question was in conformity with the technical specifications. DW5 proved the lab test reports of the work orders Ex. DW5/A to DW5/P and stated that the samples were in conformity with technical specifications. However, it is to be noted that DW5 stated in his cross examination that the reports were not C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 25 prepared in his presence, as such I am of the view that the authenticity of the reports was not proved. Moreover, I also do not find much substance in the said contentions of accused as the work orders stipulated that original receipt of bitumen from an authorized government refinery was to be submitted to MCD which was not done.
34. Ld. Counsel for accused next contended that the Chief Engineer, MCD Shri Sant Lal had sent a written statement with a circular to the IO PW20 Ex. PW20/DA in pursuance of a notice given to him by the IO to join investigation stating that the work orders were executed as per the terms and conditions stated therein. It was alleged that PW18 also stated that no complaint was received with respect to the quality and quantity of the work orders. It was further alleged that IO/PW19 also had deposed that he had not verified from MCD regarding the deficiency work orders. Neither PW19 conducted investigation as to the source from where bitumen was purchased. PW16/first IO also stated that no complaint was received regarding the quality and quantity of the four work orders and also stated that he did not make enquiry regarding the process of sale supply of bitumen from IOCL. Thus C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 26 the prosecution failed to prove deficiency in the work orders or that bitumen was not purchased from an authorized government oil company.
35. It was further contended by Ld. Counsel for both accused that invoice was of no significance and in this regard DW6 Shri K.S. Sandhu, retired Director, MCD was examined stated that invoice was a document submitted by the contractor as proof of his claim as regards the quality and quantity of material. The claim of the contractor was not binding on the department. DW6 also stated that for releasing payment the account division had to verify the entries in MB/register and laboratory test reports. DW6 further stated that CPWD manual applicable to MCD proved as DW6/A (Colly) provides that the role of Engineers was only inspection of work at site, recording entries in MB/register and there was no mechanism available to Engineers to verify the invoices submitted by the contractor. The contractor was responsible for the correctness of the documents submitted by him. It was contended that in this regard DW6 also proved DW6/B which was also Mark 12/B. However, in his cross examination DW6 stated that in case a complaint was received regarding submission of fake invoices by C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 27 contractor then it could be sent to the police.
36. It was also contended by Ld. Counsels for accused that no documents were seized by the IO during enquiry nor the site was inspected. However, it is pertaining to note that PW16 stated that he received source information in 2004, whereas the work of repair under the work orders in question, were carried out in 1998, thus, the roads in question may have been repaired once or more than once, I accordingly reject the said contention of Ld. Counsel for accused. As regards non seizure of documents during enquiry, I am of the view that it was not incumbent upon IO to do so as it was not an investigation but only a preliminary inquiry.
37. Ld. Counsel for both accused further submitted that prosecution failed to prove that the invoices were forged. It was contended that the invoices were submitted by the contractor and it was not the duty of the accused (Engineers) to verify the invoices. It was also urged that it was the contractor who was thus responsible for the genuineness and correctness of the documents and in this regard the IO PW20, was confronted with Ex. PW20/DA which was statement/report of Chief Engineer, MCD, C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 28 addressed to PW20 wherein it was stated that the responsibilities of the Engineers of MCD was restricted to the execution of work and not to ascertain the correctness and genuineness of the documents furnished by the contractors. Ld. Counsels for accused further submitted that the circular Mark PW12/B of MCD also provided that the contractor was solely responsible for the correctness and genuineness of the invoices and documents submitted by him. The accused in support of said contention examined DW1 who stated that bitumen was only being manufactured by IOCL, BP and HP. DW1 also stated that it was the duty of contractor to purchase Bitumen and furnish invoice and also stated that the Engineers get the work executed as per the contract. Accused also examined DW2 Shri K.P. Singh, Superintendent Engineer who stated that it was the contractor who was responsible for the correctness of documents submitted by him and the accounts department had to scrutinize the documents. However, Ld. Addl. PP contended that DW2 on being questioned with regard to Mark C to C of circular Mark 12B admitted that as per the said circular the contractor had to attest the documents to be submitted in the presence of the Engineer incharge or divisional accountant. Moreover, Ex. PW20/DA was dated 06.07.04 and circular Mark 12B was dated C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 29 24.05.01, whereas the work orders were dated 07.08.98, as such Ex. PW20/DA and Mark 12/B had no relevance to the agreements/contracts work orders as they could not be retrospective in operation. Moreover, it is significant to note DW1 R.N. Gupta stated in his cross examination that in case of any discrepancy in the bills, even the EE could return back the same. Thus, in my view Engineers had also to verify the genuineness of the bills.
38. It is pertinent to note that the original work orders filed in court which were primary evidence of documents and oral evidence could not be led to contradicts its terms. Section 61 & 62 of the Indian Evidence Act, 1872, which relates to proof of contents of documents and primary evidence are as under:
"61. Proof of contents of documents - The contents of documents may be proved either by primary or secondary evidence. "62. Primary evidence - Primary evidence means the documents itself produced for the inspection of the Court".
39. The testimony of PW3 who proved the work orders went unchallenged. Thus the contents of the same and signatures of C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 30 accused on the same stood admitted.
40. Section 91 of the Indian Evidence Act relates to proof of terms of contract, grant or any other disposition of property reduced to the form of a document by tendering the document itself or by secondary evidence wherever admissible.
41. Section 92 of the Indian Evidence Act relates to exclusion of oral evidence and provides that when the terms of any contract, grant or disposition of property are reduced to the form of a document have been proved u/s. 91 of the Evidence Act, no evidence of any oral agreement or statement shall be led to contract, vary, add or subtract from its terms except in cases covered under the proviso to Section 92 of the Act. Thus, the contention of Ld. Counsel for accused with regard to Ex. PW20/DA & Mark 12/B to contradict terms were unfounded and rejected.
42. Section 92 of the Act which is as under: "Exclusion of evidence of oral agreement. When the terms of any such contract, grant or other disposition of property, or C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 31 any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms :
Proviso (1). Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting partly, [want or failure] of consideration, or mistake in fact or law:
Proviso (2). The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document: Proviso (3). The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved: Proviso (4). The existence of any distinct C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 32 subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents:
Proviso (5). Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved :
Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract:
Proviso (6). Any fact may be proved which shows in what manner the language of a document is related to existing facts."
43. As per the terms and conditions of the work orders fresh bitumen was to be purchased by the contractor and original receipt of purchase of same was to be submitted to MCD. It was not a case of accused that their case fell under any of the exceptions to Section 92 of the Act.
C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 33
44. Condition No. 6 of the work orders is as under:
"6. Fresh supply of bulk bitumin from Bharat Petroleum / Indian Oil / Hindustan Petroleum as appd. by EinC will be arranged by the contractor."
45. The conditions no. 8 & 14 of the agreement translated from Hindi to English are as under: Condition No. 8 "The contractor has to submit one bill every month for the whole work executed in the last month on or before the date fixed given by the Executive Engineer and before the elapse of ten days after submitting the bill, the Executive Engineer will test either by himself or from others for the purpose of verification and as far as possible he will adjust the claim. If the contractor fails to submit the bill within the limits of prescribed date, the Executive Engineer in the presence of the contractor will make counter sign and will depute his subordinate to take the measurement of the executed work and further Executive Engineer will prepare the bill on such away which would bind the contractor".
Condition No. 14 C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 34
"If the Executive Engineer or his subordinate have been assigned to execute any work and if it is felt that any execution of work is faulty, unskilled work, executed with substandard material or any provided material is faulty for the execution of the work or substandard and not as per the agreement or contract or otherwise not favourable to the contract or agreement, then the contractor on the written demand/direction of the Executive Engineer will execute or repair or remove or reconstruct completely or partially as per the specified and required conditions on the required charges or expenses. If the contractor fails to execute the above work within the time limits given by the Executive Engineer he would be liable for the penalty of one percent for the estimated cost not exceeding to ten years. In case of the condition of failure by the contractor the risk and cost will be lied on him and the Executive Engineer will got repaired or removed or reconstruct or can remove the material or can replace on the cost and risk of the contractor".
Thus, in my view, it was incumbent on the accused to have complied with the terms of the work orders and documents Ex. PW20/DA, Mark 12/B relied upon by accused were of no significance in view of the express terms of the work orders and agreements.
C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 35
46. It was next contended by Ld. Counsels for accused that the invoices were genuine. However, it was also contended by Ld. Addl. PP that accused C.B. Singh EE, Pankaj Goel JE and Naresh Gupta (AE, since deceased) in furtherance of conspiracy with Arun Kumar Bansal, contractor (since deceased) to cheat MCD passed the bills on forged invoices and released payments to Arun Kumar Bansal, thereby causing pecuniary gain to the contractor to the tune of Rs.6.8 lacs and both accused Pankaj Goel and accused C.B. Singh by abusing their position as public servants dishonestly and fraudulently and cheated MCD by permitting withdrawal of payment for the bills on forged invoices.
47. Ld. Counsel for both accused contended that it was for the prosecution to prove affirmatively that accused by corrupt or illegal means and by abusing their position obtained pecuniary advantage for themselves or any other person. It was thus for the prosecution to show that accused with oblique motive departed from the terms of the work orders and knew that the contractor had not purchased fresh bitumen from an authorized government oil company.
C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 36
48. Ld. Counsel for accused Pankaj Goel in support of his contention that burden of proof was on the prosecution placed reliance on "Major S.K. Kale Vs. State of Maharashtra 1977 SCC Crl. 356 wherein it has been held as under :
"Prevention of Corruption Act, 1947 - Section 5 (1)
(d) and 5 (2) - Burden of proof is on the prosecution - Also abuse of position under clause (d) must necessarily be shown to be dishonest - On facts, conviction improper and therefore set aside.
"It was for the prosecution to prove the ingredients of Section 5(1)(d). In other words it was for the prosecution to prove affirmatively that that appellant by corrupt or illegal means or by abusing his position obtained any pecuniary advantage for some other person. In view of the clear defence taken by the appellant it is obvious that it was for the prosecution to prove that the accused made no enquiries, that the accused made a departure from the normal procedure with oblique motive, and that the accused knew that the present supplier would make a profit of 45% whereas others would be satisfied with a profit 1015%
7. Normally this Court in special leave C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 37 against a concurrent judgment of the High Court and the trial court does not reappraise the evidence, but unfortunately in this case we find that both the courts below have drawn wrong inferences from proved facts and have made a completely wrong approach to the whole case by misplacing the onus of proof which lay on the prosecution on the accused. Both the courts below had proceeded on the footing that it was for the accused and not for the prosecution to prove that the accused made enquiries from the local market or that he knew about the rates, etc. This approach was obviously and manifestly wrong.
9. We are satisfied that the Judgment of the High Court runs counter to the principles laid down by this Court in the case cited above, and the High Court does not appear to have applied that principle in deciding the truth of the case presented by the prosecution against the appellant. In the instant case, it is not alleged that the accused had used any corrupt or illegal means. It has not been shown that the accused himself accepted any illegal gratification or pecuniary benefit nor C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 38 has it been shown that he violated any statutory rule or order. Thus, even on the prosecution allegation the case of the appellant falls only within the second part of Section 5 (1)(d), namely, abusing his position as public servant. The abuse of position, as held by this Court, must necessarily be dishonest so that it may be proved that the appellant caused deliberately wrongful loss to the Army by obtaining pecuniary benefit for PW2.
49. The onus of proof of existence of every ingredient of the charge always rests on the prosecution and that burden never shifts. Thus, it was for the prosecution to prove affirmatively that accused C.B. Singh and Pankaj Goel alongwith coaccused (Naresh Gupta AE and Arun Kumar Bansal, since deceased) by corrupt or illegal means by abusing their position as public servants obtained pecuniary advantage themselves or for any other person and that accused had violated the terms of work orders/agreement Ex.PW3/A to Ex. PW3/H with oblique motive to cause wrongful loss to MCD and wrongful gain to contractor Arun Kumar Bansal.
50. It was urged on behalf of accused that it was not for the C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 39 accused to prove the case of prosecution but it was for the prosecution to prove that accused Arun Kumar Bansal had not purchased bitumin from any of the authorized govt companies and the invoices were forged.
51. Wrongful loss and wrongful gain have been defined in Section 23 of Indian Penal Code as follows:
"Wrongful gain" "Wrongful gain" is gain by unlawful means of property to which the person gaining is not legally entitled.
"Wrongful loss" "Wrongful loss" is the loss by unlawful means of property to which the person losing it is legally entitled. Gaining wrongfully, losing wrongfully. A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property.
52. The term Public Servant has been defined in Section 21 of IPC and are as under:
C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 40
"Public servant" The word "public servant" donate a person falling under any of the description hereinafter following; namely Twelfth - Every person
(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;
(b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956)"
53. To establish the offence of conspiracy the prosecution relied on the testimony of PW16, ACP Rajinder Singh Manku who stated in his examination in chief that he had received source information to the effect that M/s Aruna Builders and Suppliers, Shakti Nagar, Delhi had been awarded 4 (four) work orders bearing no. 254, 255, 256 and 257 all dt. 7.8.98 Ex. PW3/A to Ex. PW3/H pertaining to improvement of road in the area of Jahangirpuri amounting to Rs.6.8 lacs by the Engineering Division of MCD, Delhi. He further stated that as per the terms and conditions of the C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 41 above said work orders fresh bitumen had to be purchased by the contractor from any government refinery and the original receipt of the same was to be submitted to the MCD. PW16 further deposed that the Engineers of Division no. XIV, MCD, while executing the work orders entered into a criminal conspiracy with the contractor Arun Kumar Bansal, proprietor of M/s Aruna Builders & Suppliers to cheat MCD by using substandard/unauthorized bitumen. PW16 further stated that in furtherance of the said conspiracy, the contractor Arun Kumar Bansal used substandard unauthorized bitumin and submitted bills amounting to Rs.6.8 lakhs pertaining to the four work orders along with forged invoices vouchers relating to purchase of bitumin from Indian Oil Corporation. The said bills were cleared by Engineer of Division No. XVI by abusing their official position as public servants and thereby causing pecuniary benefit to M/s. Aruna Builders and Suppliers and loss to MCD. PW16 also deposed that the varasity of the above information was verified by him and a report was submitted to his senior officials regarding prima facie case being made out u/s. 120B IPC r/w Section 420/467/468/471 IPC & Section 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act. He also stated that with the approval of senior officials a criminal case was got registered. Ld. C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 42 Addl. PP contended that the first IO PW20, stated that during investigation he had sent a letter Ex. PW15/B to the General Manager, Sales of IOCL, Mathura Refinery to verify and report regarding the cash memos and gate passes produced by contractor Arun Kumar Bansal regarding sale and dispatch of bitumen and to confirm whether the bills/cash memos and gate passes were genuine or otherwise. The details of the same are as under:
S.No. Cash Memo No. Date of Issue Gate Pass SI Date of Issue No. 1 90412 09/08/98 ABT22795 09/08/98 2 90423 15/08/98 ABT22806 15/08/98 3 90419 12/08/98 ABT22802 12/08/98 4 90424 17/08/98 ABT22807 17/08/98
54. PW20 stated that he sent a letter Ex. PW15/B to IOCL to inquire whether M/s. Aruna Builders & Suppliers had purchased bitumen from its refinery pursuant to which he received reply Ex.PW15/A stating that on verification of record pertaining to the relevant period, it was found that there was no customer by the name of M/s Aruna Builders & Suppliers in their customer master record. IOCL also intimated that during the relevant period the C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 43 challans were computer generated and at no point of time manual challans were issued to parties regarding the supply of bitumin from their terminal.
55. However, Ld. Counsel for the accused submitted that the testimony of PW20 could not be relied upon as he stated in his crossexamination that he had not joined any official from Bitumen Section of IOCL, Mathura in the investigation neither the record of Bitumen Section of IOCL, Mathura was seized, thus the investigation was tainted. It was also contended that PW20 also stated in his cross examination that he had sent a notice to the Chief Engineer MCD to join investigation but he could not recollect if the Chief Engineer Shri Sant Lal had sent a written statement dated 06.07.04. Ld. Counsel for accused contended that PW20 on being confronted with the written statement of Sant Lal dated 06.07.04 Ex. PW20/DA admitted that the same was sent pursuant to his notice to the Chief Engineer, Shri Sant Lal to join investigation. It was further contended by Ld. Counsels for accused that Ex. PW20/DA was accompanied with a circular dated 24.05.01 Mark PW12B and as the written statement of Shri Sant Lal and circular Mark 12/B exonerated the accused (Engineers) it C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 44 was withheld by prosecution. The investigation was thus not fair. It was also contended that it was incumbent on prosecution to have examined Sant Lal, however, the prosecution withheld material witnesses and documents as such the investigation was tainted. However, it is significant to note that the work orders in question provided that original receipt of purchase of bitumen was to be submitted by the contractor and oral or documentary evidence could not be led to wriggle out of the terms of work orders. Thus, I do not find any merit in this contention of Ld. Counsels for accused.
56. Moreover, Ld. Addl. PP further submitted that when a fact was within the knowledge of any person, the burden of proving the said fact was upon him.
57. Section 101 of the Evidence Act which relates to burden of proof provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of those facts must prove that those facts exist.
58. Section 106 of the Indian Evidence Act is an exception to C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 45 Section 101 of the Indian Evidence Act, is as under:
"106. Burden of proof - Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person".
59. Thus, onus of proof means duty of establishing the case, the burden of which is on the prosecution, it never shifts. But after the prosecution has discharged its initial burden and accused takes plea of a fact within his special knowledge, he must prove it. The standard of proof of such plea is not so high as in the case of prosecution. Section 106 of the Indian Evidence Act shifts the burden on the accused under the circumstances mentioned therein.
60. A party who has special means of knowledge of a fact is under the obligation of proving that fact. Thus Section 106 of the Indian Evidence Act would apply when the facts are especially within the knowledge of the accused and it would not be possible or difficult for the prosecution to establish such facts "especially within the knowledge of accused." In this regard it has been held C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 46 by Honble Supreme Court in Criminal Appeal No. 357 of 2005 State of Rajasthan Vs. Thakur Singh decided on June 30, 2014 as under :
"The law therefore, is quite well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then it is strong circumstance pointing to his guilt based on those facts."
61. Thus it was for the accused to explain that manually prepared invoices placed on record were of the IOCL. However, accused did not prove their defence by preponderance of probability, as such adverse inference has to be drawn against the accused, that the invoices were not of IOCL Mathura, Refinery. All that was required by accused was to, explain the 'unusual practice' of issuing manual invoices by IOCL, Mathura, Refinery but they made no attempt to do so. It is also pertinent to note that both accused in C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 47 their statements u/s. 313 Cr.PC denied that the invoices were forged but gave no explanation regarding the circumstances in which manual invoices were issued by IOCL, Mathura. Thus, a denial of the prosecution case with no explanation regarding issuance of manual invoices was inconsistent with the innocence of accused but pointed towards the complicity of accused in the conspiracy to manipulate invoices and cause wrongful loss to MCD. Thus, as held in Thakur Singh (Supra) the principles laid down in Section 106 of the Evidence Act is applicable to the facts of the case and raises a strong presumption that both accused were conspirators in the offences of cheating MCD by abusing their official position.
62. Both accused in their statements u/s. 313 Cr.PC stated that original receipt of purchase of bitumen from an authorized government oil company was to be submitted by the contractor/proprietor of M/s. Aruna Builders & Suppliers to MCD as per the terms and conditions of the work orders. Both accused denied that the invoices submitted by the contractor were forged. Thus, the accused had to prove their defence that the invoices were genuine by preponderance of probability. As such, what was C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 48 required to be proved by the accused was to bring such material on record on the basis of which court could reasonably reach a conclusion that a fact exists. In reaching such a conclusion law gives absolute discretion to the court to draw presumption in view of Section 114 of the Evidence Act regarding the existence of any fact which it thinks likely to have happened, having regard to the common cause of natural events human conduct visavia to the facts of particular case, unless the presumption is disproved or rebutted the court can treat the presumption as tantamounting to proof.
63. Ld. Counsel for accused also contended that PW15 stated in his crossexamination that he could not tell if all the invoices for sale and supply of bitumin for the month August 98 were available, neither could he tell the number of invoices generated in 1998 in a single day. PW15 further stated that he could not tell if manual record was prepared by any official of Indian Oil Corporation in the case of failure of computer. Thus, the prosecution failed to prove that manual invoices were not prepared by Indian Oil Corporation Ltd, in case of power failure. However, Ld. Addl. PP countered the said argument and contended that PW15 had C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 49 categorically deposed that the challans were computer generated and at no point of time manual challans were issued to parties. Thus, in view of Section 106 of the Evidence Act, the burden of proving a fact especially within the knowledge of any person was upon him.
64. It is to be noted that apart from bald denial of invoices being forged accused did not bring on record any material to show that the manually prepared invoices placed on record were of IOCL, Mathura, Refinery.
65. Ld. Counsel for both accused next contended that Engineers had no role in purchase of bitumin by the contractor. It was the duty of the contractor to purchase the bitumin and submit the receipt to MCD. Ld. Counsel for accused stated that the duty of accused was only to visit and check the work being executed at the site and had no role in the passing of bills. It was further contended that in regard PW4 stated in his cross examination stated that he used to check the bills and bills were passed by the accountant. He also stated that he used to compare the bills checked with the MB/register. PW4 also stated that no complaint was received by C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 50 him regarding the quality and quantity of the work done otherwise he would not have passed the bills. It was further submitted that PW9 also stated in this regard in his cross examination that he could not tell whether there was any rule or practice to get the receipt of bitumen verified from the concerned Oil Company. It was further urged by Ld. Counsel for accused that PW18, stated in his cross examination that he had seen the laboratory test reports in respect of the work orders and after being satisfied that everything was in order he forwarded the file to the then EE C. B. Singh. And PW18 had compared the entries of bitumen as recorded in the invoices with the entries in the measurement book. However, Ld. Addl. PP submitted that PW18 deposed in his examination in Chief that after scrutinizing the bill it was submitted to the EE for payment and endorsement of payment order on the back of the agreement. It is significant to note that accused C.B. Singh did not challenge the testimony of PW18, whereas accused Pankaj Goel had cross examined PW18 but not on this aspect. Thus, in view of the deposition of PW18, the complicity of accused C.B. Singh and Pankaj Goel was implicit in the conspiracy for having made endorsement for payment on forged/false invoices. C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 51
66. It was next contended by Ld. Counsel for accused that IO had not conducted investigation regarding the process of sale of bitumen from Indian Oil Corporation, Mathura, neither had he investigated if bitumen was delivered or not at the work site. Neither IO examined any official from IOC Mathura. It was further submitted that IO had also stated that he had no knowledge if bitumen was being manufactured only by government refineries, as such the investigation was tainted. It was contended that in this regard PW21/IO stated in his cross examination that he did not record the statement of any official of IOCL, Mathura nor seized their record. However, it is relevant to note that IO/PW21 stated in his cross examination that he did not record the statement of witnesses of IOCL, Mathura, since CRC, IOCL Mathura had been transferred and he already submitted report that there was no customer in their record by the name of M/s. Aruna Builders and Suppliers. IO stated that he had examined the records of IOCL, Mathura. It was also alleged that the IO had also not conducted investigation as regards the officials posted in the bitumen sales department, IOCL, Mathua in 1998. IO also did not investigate as to the procedure for issuing invoices in case of power failure, thus there was no proper investigation. However, the factum of C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 52 issuance of manual invoice was categorically denied by IOCL. PW15 also stated that along with the reply, he had forwarded two sample copies of invoices which were Ex.PW15/DA and Ex.PW15/DB. PW15 also stated that no manual challan were issued to parties for the supply of bitumen from their terminal. Thus accused had to explain the same in view of Section 106 of the Evidence Act.
67. Ld. Addl. PP contended that IO/PW21 had verified the process of purchase of bitumen and in this regard deposed in his cross examination that he had sent letter Ex. PW21/B to the Superintendent Engineer verifying regarding practice to obtain Bitumen from IOCL, PW21 also stated that reply was received in this regard which was Ex. DW17/A & Ex. DW17/B, according to which bitumen supplied in a tanker was called bulk bitumen, while bitumen supplied in a drum was called packed bitumen.
68. It was next contended by Ld. Counsel for accused that IO did not verify whether bitumen was purchased by contractor in his name. However, it is pertinent to note that as the factum of purchase of bitumen by the contractor in his name was, this fact C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 53 being within the special knowledge of the accused so the burden of proving it was on the accused in view of Section 106 of the Evidence Act, which accused failed to discharge.
69. I, thus, hold that the acts of accused C.B. Singh and Pankaj Goel were the outcome of conspiracy with coaccused (since deceased) with the intention to cause wrongful loss to MCD and wrongful gain to the contractor. There was a prior understanding between the accused to cause wrongful loss to MCD and wrongful gain to the contractor on false/forged invoices. Thus, there is no doubt that the actions of accused were actuated with ill motive and they took the tainted steps to achieve the unlawful object of conspiracy. I accordingly hold both accused guilty for the offence u/s. 120 BIPC.
SANCTION
70. Section 19 of the Prevention of the Corruption Act, 1988 which relates to previous sanction for prosecution is as follows: "19 Previous sanction necessary for prosecution.(1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 54 except with the previous sanction [save as otherwise provided in the Lokpal and lokayuktas Act, 2013 (1 of 2014)]
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under subsection (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 55
(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under subsection (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice.
(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under subsection (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.
C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 56 Explanation.For the purposes of this section,
(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature."
71. "Section 465 Cr.P.C, which relates to the effect of any error, omission or irregularity in the grant of Sanction is as under :
"465. Finding or sentence when reversible by reason of error, omission or irregularity. (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 57 the opinion of that Court, a failure of justice has in fact been occasioned thereby. (2) In determining whether any error, omission or irregularity in any sanction for the prosecution has occasioned a failure of justice, the court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings." (emphasis supplied) "6. In a situation where under both the enactments any error, omission or irregularity in the sanction, does not vitiate the eventual conclusion in the trial including the conviction and sentence, unless of course a failure of justice has occurred."
72. The object behind the requirement of grant of sanction to prosecute a public servant under the POC Act and Cr.PC are designed as a check on frivolous and unscrupulous attempts to prosecute honest public servant for acts arising out of due discharge of their duties. Section 19(1) of the POC Act are mandatory and forbid courts from taking cognizance of any offence punishable U/S 7,10,11,13 & 15 of the POC Act against public servants except with the previous sanction of the competent C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 58 authority.
73. PW13 Sh. K.S. Mehra, the then Commissioner, MCD proved the Sanction for prosecution granted against accused C.B. Singh, EE Ex.PW13/A. He stated that details of the facts mentioned therein were prepared on his dictation and thereafter signed by him. He also stated that he had gone through the copy of FIR, Rukka, copy of work orders and statement of the witnesses before according Sanction. He further stated that he had applied his mind before according sanction for prosecution.
74. PW14 Sh. Naresh Kumar, Joint Secretary, Ministry of Mines, Govt. of India deposed that he was posted as Addl. Commissioner (Engineering) MCD, when the request was received from ACB, Delhi for according Sanction for prosecution against Pankaj Goel, along with copy of FIR, Memos and papers from concerned IOC and other documents. He testified that after going through the documents and applying his mind and considering the facts and circumstances of the case, he granted Sanction for prosecution against said accused Pankaj Goel, JE as he was competent to remove him from service. The Sanction Order was proved as C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 59 Ex.PW14/A. He also stated details of the facts is mentioned in the Sanction were prepared on his dictation and thereafter signed by him.
75. It was submitted by Ld. Counsel for accused C.B. Singh that accused C.B. Singh being category A employee, sanction for his prosecution could have been granted by the Corporation and not the Commissioner MCD. Accused C.B. Singh in support of the said contention examined DW3 Shri Vagish Mishra, AAO, MCD, who proved his salary record for the period April 1998 to July 1998 as Ex. PW3/A. PW3 stated that the pay scale of C.B. Singh at that time was 10,000/ 325/ 15200/. However, Ld. Addl. PP contended that DW3 stated in his cross examination that he had not brought any document to show the fixation of salary of C.B. Singh, as such the date of fixation of salary of accused C.B. Singh could not be said to have been proved.
76. It is also pertinent to note that accused C.B. Singh did not challenge the testimony of PW2 who proved his biodata Ex. PW2/B according to which his appointing and removal authority was the Commissioner, MCD. Thus, in view of Ex. PW2/B, on the C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 60 date of joining service and promotion the Commissioner was his appointing and disciplinary authority. It is also significant to note that PW13 denied that it was the House which had the power to grant sanction against category A employees and Commissioner did not have the power.
77. It was contended on behalf of accused Pankaj Goel also that Addl. Commissioner was not competent to grant sanction against him and in this regard examined DW4, who proved the RTI application moved by accused Pankaj Goel Ex. DW1/A seeking information regarding his appointing and removal authority during the period 19982009 and whether the post of JE fell in category A,B,C & D. DW4 proved reply to the RTI application as Ex. DW1/B according to which Pankaj Goel was appointed as JE on adhoc basis under the orders of Commissioner, MCD on 03.05.93 and stated that the Commissioner was appointing and removal authority for the post of JE vide the order of appointment of accused Pankaj Goel Ex. DW1/D. He also stated that as per 6th pay commission the post of JE fell under B category in the year 2008. It is pertinent to note that as per Ex. DW1/D dated 03.05.93, accused was appointed on adhoc basis which was purely temporary C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 61 basis and the adhoc appointment did not confer any right whatsoever for claiming regular appointment to any post.
78. The Ld. Counsel for accused Pankaj Goel further submitted that biodata could not overrule the official communication which is Ex. DW1/D and the scheduled appended thereto according to which the appointing authority for category B employee was the Commissioner MCD. The Ld. Counsel for accused in support of his contention that without a valid sanction the court had no jurisdiction to try the case placed reliance on AIR 1968 SC 1292 Shailender Nath Bose Vs. State of Bihar wherein it has been held as follows: "This court has laid down in R.R.Chari v.
State of Uttar Pradesh, 19631 SCR 121 = (ARI 1962 SC 1573) as well as in several other decisions that no court can validly take cognizance of any of the offences mention in S. 6(1) of the Prevention of Corruption Act without the previous sanction of the authority competent to remove from office the accused. Without a valid sanction the court had no jurisdiction to try the case. Hence, if the sanction accorded in this case is invalid then the appellant is entitled to be C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 62 acquitted."
79. Ld. Counsel for accused also placed reliance on the Judgment of Hon'ble Supreme Court in case titled Nanjappa Vs. State of Karnataka, VI 2015 SLT 223, wherein it has been held that "if trial court proceeds, despite invalidity attached to the sanction order, the trial shall be deemed to be nonest in the eyes of Law. The relevant extract is as under :
"Prevention of Corruption Act, 1988 - Sections 7, 13 r/w Sections 13(2), 19 Illegal Gratification
- Sanction for Prosecution - Statute forbids taking of cognizance by Court against a public servant except with previous sanction of an authority competent to grant such sanction absence of a valid sanction affects competence of Court to try and punish accused - Competence of Court trying accused so much depends upon existence of a valid sanction - In case sanction is found to be invalid Court can discharge accused relegating parties to a stage where competent authority may grant fresh sanction for prosecution in accordance with law - If trial Court proceeds despite invalidity attached to sanction order, same shall be deemed to be non est in eyes of law and shall not forbid second trial for C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 63 same offences upon grant of valid sanction for such prosecution.
(ii)Prevention of Corruption Act, 1988 -
Sections 7, 13 r/w Sections 13(2), 19 Criminal Procedure Code, 1973 - Section 465 - Illegal Gratification - Sanction for prosecution - If trial has proceeded to conclusion and resulted in a finding or sentence, same should not be lightly interfered with by Appellate or Revisional Court simply because there was some omission, error or irregularity in order sanctioning prosecution under Section 19(1) - Failure of justice is what Appellate or Revisional Court would in such cases look for."
80. Ld. Counsel for both the accused contended that as sanction for their prosecution was not granted by competent authority thus it was not in accordance with Section 19 of the POC Act and placed reliance on 'G.S. Matharoo Vs. CBI, 2012 II AD(DELHI) 186' where it has been held as follows :
"Delhi Municipal Corporation Act, 1957 - Sec. 480 Competency of authority - Held, Section 59 (d) of DMCAct could not be C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 64 construed to mean that it repealed the existing Regulations and was only subject to Regulations which would be made after amendment Act - plain reading of provisions of Act and Regulations show that Corporation is competent authority to remove petitioner from service and not, Commissioner MCD - Further, contention of the learned counsel for CBI that effect of omission of Section 509 by amendment Act of 1993 is that schedule to Regulation get automatically repealed - It may be noted that in Schedule as reproduced above only part 'A' relates to officers appointed under Section 509 whereas Petitioner is Group 'A' employee in Part 'B' - It may be noted Section 509 related only to first appointment to post of General Manger (Electricity/) and any municipal employee to be made by Central Government whose term was not to exceed three years - only conclusion that can be drawn in present case is that authority competent to remove Petitioner is Corporation as notified in schedule to Regulations on 15th December, 1976 which regulations have neither been rescinded nor amended till date - Thus, Corporation is competent authority to grant sanction under Section 19 of the P.C. Act and not Commissioner is case of Petitioner, who is C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 65 Group 'A' employee - Since Trial Court has taken cognizance on sanction granted by incompetent authority, order taking cognizance is illegal and set aside Petition disposed off."
81. However, I am of the view that accused failed to show that failure of justice had occasioned by any error, omission or irregularity in the sanction. Moreover, as regards errors, omission or irregularity in the sanction order including competency of the authority to grant sanction, it has been held in "State of Bihar Vs. Raj Mangal Pandey, 2014 (II) SCC 388" as under :
"In a situation where under both the enactments any error, omission or irregularity in the sanction which would also include the competence of the authority to grant sanction, does not vitiate the eventual conclusion in the trial including the conviction and sentence, unless of course a failure of justice has occurred."
"The object behind the requirement of grant of sanction to prosecute a public servant need not detain the court save and except to reiterate that the provisions in this regard either under the Code of Criminal C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 66 Procedure or the Prevention of Corruption Act, 1988 are designed as a check on frivolous, mischievous and unscrupulous attempts to prosecute an honest public servant for acts arising out of due discharge of duty and also to enable him to efficiently perform the wide range of duties cast on him by virtue of his office. The test, therefore, always is - whether the act complained of has a reasonable connection with the discharge of official duties by the government or the public servant. If such connection exists and the discharge or exercise of the governmental function is, prima facie, founded on the bona fide judgment of the public servant, the requirement of sanction will be insisted upon so as to act as a filter to keep at bay and motivated, illfounded and frivolous prosecution against the public servant. However, realising that the dividing line between an act in the discharge of official duty and an act that is not, may, at times, get blurred thereby enabling certain unjustified claims to be raised also on behalf of the public servant so as to derive undue advantage of the requirement of sanction, specific provisions have been incorporated in Section 19(3) of the Prevention of Corruption Act as well as in C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 67 Section 465 of the Code of Criminal Procedure which, inter alia, make it clear that any error, omission or irregularity in the grant of sanction will not affect any finding, sentence or order passed by a competent court unless in the opinion of the court a failure of justice has been occasioned. This is how the balance is sought to be struck."
82. It was contended by Ld. Addl. PP that biodata of accused Pankaj Goel was proved as Ex.PW2/A according to which, his appointing and disciplinary authority was Additional Commissioner. It was also contended that testimony of PW2 was not challenged in this regard. The testimony of PW14 was not challenged as regard to his competency to grant sanction against accused Pankaj Goel. Thus, in my view the contention of Ld. Counsel for accused in this regard are meritless.
83. It was next submitted by Ld. Counsel for both the accused that it was also incumbent upon the prosecution to prove that sanction has been granted by Authority after being satisfied that a case for sanction has been made out. In this regard it was submitted by Ld. Counsel for accused C.B. Singh that PW13 stated in his cross C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 68 examination that the documents perused by him were not mentioned in Ex. PW13/A. He also stated that the sanction order did not bear date. PW13 also stated that he did not call the IO before according sanction.
84. Ld. Counsel for accused Pankaj Goel submitted that had all the documents been placed before the sanctioning Authority, it would not have accorded sanction. It was also contended that the PW14 on being confronted with the circular Mark 12/B stated that it was issued by the department. It was contended that in view of the above circular, it was the contractor who was responsible for the genuineness of the documents and nor the Engineers. It was also contended that PW14 gave evasive reply on being asked whether he verified that the roads in respect of which contract was given were laid. It was also contended that had there been any deficiency in the the work orders MCD could claim damages from the contractor, but PW14 stated that he could not remember whether MCD had claimed damages in respect of the work orders in question. It was also contended that PW14 also stated that he did not remember whether he had seen the MB/Book. Thus, there was no application of mind as all the documents were not perused C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 69 by PW14 before according sanction and sanction was accorded prior to the completion of investigation. However, Ld. Addl. PP contended that PW14 stated that he accorded sanction after going through the FIR, memos and documents from IOCL. It is relevant to note that PW14 denied in his cross examination that he prepared the sanction order by copying the charge sheet as the language of chargesheet and sanction order was substantially same. Thus, in view of the said suggestion given in the cross examination of PW14 the contention of Ld. Counsel for accused that sanction was obtained prior to completion of investigation was without merits. PW14 had categorically stated that he had gone through the FIR/documents from the Indian Oil Corporation Ltd and other documents.
85. As regards application of mind by sanctioning authority, it has been held in (2013) 8 Supreme Court Cases 119 State of Maharashtra Vs. Mahesh G. Jain that grant of sanction is an administrative function and only prima facie satisfaction of the sanctioning authority is needed. The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order. Flimsy C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 70 technicalities cannot be allowed to become tools in the hands of accused. The relevant extract is as under:
"A. Public Accountability, Vigilance and Prevention of Corruption - Prevention of Corruption Act, 1988, S.19(1) - Sanction for prosecution - Application of mind - Proof - Sanction order may itself show consideration of relevant material by authority - Prosecution may also adduce evidence showing that authority reached its satisfaction on basis of materials placed before it - Criminal Procedure Code, 1973, S.197.
B. Public Accountability, Vigilance and Prevention of Corruption - Prevention of Corruption Act, 1988 - S.19 (1) - Sanction for prosecution - Administrative function
- Only prima facie satisfaction of sanctioning authority needed - Criminal Procedure Code, 1973, S.197.
D. Public Accountability, Vigilance and Prevention of Corruption - Prevention of Corruption Act, 1988 - S.19(1) - Sanction for prosecution - Judicial review - Adequacy of material placed before sanctioning authority cannot be examined by court - Court should not adopt hypertechnical approach to determine validity of sanction order - When sanction C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 71 order indicates application of mind by authority court should not interfere with in on hypertechnical ground - Court should keep in mind rampant corruption in society and act with promptitude - Criminal Procedure Code, 1973, S.197"
86. Thus, in view of the above I am of the view that the court does not sit in appeal over the sanction order. Moreover, PW13 & PW14 categorically stated that by considered the documents and applied their mind before according sanction, I am of the view prosecution succeeded in proving that sanction had been granted by PW13 and PW14 after being satisfied that a case for sanction had been made out.
87. Ld. Counsels for accused next contended that date of grant of sanction was not mentioned in the sanction orders which renders them invalid. However, in this regard it is significant to note that PW13 and PW14 had stated that he had gone through the relevant documents before according sanction, thus nonmentioning of the date was not material. The next contention of Ld. Counsel for both accused was that sanction order being verbatim also reflect non application of mind, the said contention is also rejected as the C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 72 accusations against both the accused were same and thus there was no illegality in the same.
88. Ld. Counsel for both accused contended that on receipt of a complaint in respect of the work orders in question the Vigilance Department MCD has seized the record of work orders in question and sent the same to CBI. PW14 had in his cross examination stated that he did not whether CBI did not find any lapse on part of the MCD official hence the file were sent back to the department for initiating departmental action. However, in this regard it is significant to note that accused could have availed the remedy for quashing of FIR but it was not done as such it is without any substance.
89. As regards, sanction for prosecution U/S 420/467/468/471 IPC r/w Section 120 IPC, Section 197 of Cr. P.C, which is relevant is as under :
"197. Prosecution of Judges and public servants - (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the government is accused of any offence alleged to have been C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 73 committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction".
90. Section 190 of Criminal Procedure Code empowers the Magistrate specified therein to take cognizance of any offence in the manner indicated in that section. Section 197 of the Code embodies an exception to Section 190. The object of the section is to prevent the commencement of vexatious proceedings against public servants and to secure the well considered opinion of a superior authority before a prosecution is launched against them. The language in Section 197 of the Code, however makes it clear that it is only a qualified protection and does not apply to all public servants and to all offences. Before the Section could be invoked, two conditions must be satisfied.
(1) That the accused must be a public servant. (2) The offence must be committed by the accused while acting or purporting to act in the discharge of his official duty. C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 74
91. "A public servant can only be said to act or to purport to act in the discharge of his official duty if his act is such as to lie within the scope of his official duty.
92. Thus, whether sanction is required under Section 197 (1) will depend upon the facts of each case. If the acts complained of was so integrally connected with the duties attached to the office of public servant as to be inseparable from them, then sanction under Section 197 (1) would be necessary; but if there was no necessary connection between them and the performance of those duties, then no sanction would be required.
93. As regards the offence u/s. 420 IPC the sanction required is u/s. 197 Cr.P.C which provides that no court shall take cognizance of an offence against a public servant except with the previous sanction. However, the protection u/s. 197 Cr.PC is available to a public servant only when the alleged act alone by a public servant is reasonably connected with the discharge of his official duty. Thus, sanction is not necessary when the C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 75 offence complained of has nothing to do with the discharge of his public duty. In view of my findings on the charges of conspiracy and cheating, I am of the view, no sanction was required for prosecution of the accused C.B. Singh, Pankaj Goel u/s. 420 IPC r/w Section 120B IPC as entering into conspiracy and using false invoice to cheat MCD was not part of duty of a public servants while discharging their official duties. In this regard, my view is fortified by the Judgment of Hon'ble Supreme Court in (2006) 1 Supreme Court Cases 294, Romesh Lal Jain Vs. Naginder Singh Rana & others wherein it has been held as follows : "order of sanction in terms of Section 197 Cr.P.C is required to be obtained when the offence complained of against the public servant is attributable to the discharge of his public duty or has a direct nexus therewith, but the same would not be necessary when the offence complained of has nothing to do with the same."
C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 76
94. The Ld. Counsel for accused Pankaj Goel further contended that holding of preliminary enquiry prior to the registration of the case was mandatory. In this regard, Ld. Counsel for accused placed reliance upon AIR 1971 Supreme Court 520, P. Sirajuddin Vs. State of Madras, wherein, it is held:
"Prevention of Corruption Act (1947), Ss. 5 and 5A - Criminal P.C. (1898), Ss. 160, 161, 162, 163 and 164 - Public servant charged for serious misdemeanor - Preliminary enquiry necessary for lodging FIR - Duty of enquiring officer.
Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount serious misdemeanour and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially one who occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general.
When the enquiry is to be held for the purpose of finding out whethr criminal proceedings are to be resorted to the scope thereof must be limited to the examination C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 77 of persons who have knowledge of the affairs of the delinquent officer and documents bearing on the same to find out whether there is prima facie evidence of guilt of the officer. (Para17) "19. All the above provisions of the Code are aimed at securing a fair investigation into the facts and circumstances of the criminal case: however incriminating the circumstances may be against a person supposed to be guilty of a crime the Code of Criminal Procedure aims at securing a conviction if it can be had by the use of utmost fairness on the part of the officers investigating into the crime before the lodging of a charge sheet. Clearly the idea is that no one should be put to the harassment of a criminal trial unless there are good and substantial reasons for holding it."
95. Ld. Counsel for accused placed reliance upon AIR 2011 Supreme Court 1363, Ashok Tshering Bhutia Vs. State of Sikkim, wherein, it is held:
"The FIR had been lodged in flagrant violation of statutory requirements."
"No preliminary enquiry had been conducted against the appellant, as C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 78 required by various judicial pronouncements of this Court. The documents very heavily relied upon by the prosecution had never been proved in spite of remand the case for that purpose."
"6. This Court in P. Sirajuddin etc. v. The State of Madras etc., AIR 1971 SC 520; and State of Haryana & Ors. v. Ch. Bhajan Lal & Ors. AIR 1992 SC 604 has categorically held that before a public servant is charged with an act of dishonesty which amounts to serious mis demeanour and an FIR is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. Such a course has not been adopted by the prosecution though the law declared by this Court is binding on everyone in view of the provisions of Article 14 of the Constitution, which would by all means override the statutory provisions of the Cr.P.C and such an irregularity is not curable nor does it fall within the ambit of Section 465 Cr.P.C. However, as the issue is being raised first time before this Court, it is not worth further consideration. Moreso, the aforesaid observations do not lay down law of universal application."C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 79
96. The purpose of preliminary enquiry is to see whether prima facie there is ground for lodging of FIR against the public servant who is charged with acts of dishonesty which amounts to serious misdemeanor. Thus, as preliminary enquiry/secret inquiry was conducted by PW16 to find out whether criminal proceedings were to be resorted to. Thus, this contention of Ld. Counsel was without substance.
FINDINGS ON CHEATING, FORGERY FOR THE PURPOSE OF CHEATING, USING AS GENUINE A FORGED DOCUMENT / CONSPIRACY SECTION 420/467/468/471 IPC r/w SECTION 120B IPC
97. The offence of cheating is defined in Section 415 of the Indian Penal Code follows: "415. Cheating.Whoever, by deceiving any person, fradulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 80 act or omission causes or is likely to damage or harm to that person in body, mind, reputation or property, is said to "cheat".
98. The ingredients which require to constitute the offence of cheating under Section 415 are as under:
"(i) There should be fraudulent or dishonest inducement of a person by deceiving him:
(ii) (a) The person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or
(b) The person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) In cases covered by (ii)(b) the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property."
99. "Deceit" is one of the essential elements of offence of cheating. Mere deception does not constitute an offence of C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 81 cheating. There must be evidence to show that pursuant to the deception a person was induced to deliver property or omitted to commit acts detrimental to his interest.
100. The elements of fraud and dishonesty as defined in Section 24 IPC & 25 IPC must be present in the mind of an accused in order to bring its act under this sections. Sections 24 IPC defines dishonesty and 25 IPC defines fraudulently which are as under :
Section 24 IPC "Dishonestly Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly".
Section 25 IPC "Fraudulently A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise.
101. Dishonesty has been defined in Section 24 of the Indian Penal Code as under: "Whoever does anything with the intention for causing wrongful gain to C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 82 any person or wrongful loss to another person is said to do that thing dishonestly".
102. Section 467 IPC relates to forgery of a valuable security. To justify conviction u/s. 467 PC, it must be shown that document in question is a false document, within the meaning of Section 464 IPC and that it was forged by accused with the intention mentioned in Section 463 IPC.
103. Sections 463 IPC and Section 464 IPC are reproduced as under:
Section 463 IPC "Forgery - Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
Section 464 IPC Making a false document - A person is C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 83 said to make a false document or false electronic record First - who dishonestly or fraudulently
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any electronic signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature"
Section 468 IPC "Section 468 IPC relates to forgery with an intention to commit cheating. The essential ingredients to constitute an offence u/s. 468 IPC are :
1. Scope (1) Forgery with the intention of thereby committing cheating is the offence dealt with under this section.
(2) Where no "forgery" has been proved no offence under this Section is committed.
Section 471 IPC relates to using as genuine a forged document and is as under:
Forgery of valuable security, will etc. Whoever forges a document C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 84 which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt for the delivery of an movable property or valuable security, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
104. Section 471 IPC relates to using as genuine a forged document. In order to punish a person under this section it is not necessary that he himself made or create the forged document.
Suffice is to show that the accused not only used the forged documents as genuine but he used it fraudulently and dishonestly. The essential ingredients of Section 471 IPC are as under : C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 85
1. Scope (1) The essential ingredients of this section are :
(i) knowledge of reasonable belief on the part of the person using the document that the document is a forged one; and
(ii) fraudulent or dishonest use of a document as genuine
105. Thus, guilty intention is an essential ingredient of the offence of cheating. In other words, mens rea on part of accused must be established before he can be convicted for the offence of cheating. Intention to cheat has to be gathered from the facts and circumstances of the case. In view of my findings on the charge of conspiracy, I hold that both the accused guilty of cheating in pursuance of the conspiracy by getting bills passed on false invoices with the dishonest intention to cheat MCD and release of payment to the contractor/accused. For a person to be convicted U/S 420 IPC it has to be established not only that he had cheated someone but also that by doing so he dishonestly induced the person C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 86 cheated to deliver any property etc. A person can be said to have done a thing dishonestly if he does so with the intention of causing wrongful gain to one person or wrongful loss to another person. Wrongful loss is the loss by unlawful means of property etc. to a person who is entitled to it. While wrongful gain means gain by unlawful means of property to which the person gaining was not entitled. Thus, I hold that both accused by practicing deception with dishonest intention inter alia induced the account section of MCD to release payment to contractor on false invoices of bitumen, thereby causing wrongful gain to the contractor and wrongful loss to MCD. The offence of cheating is complete after delivery of property/money because of deception practiced. The burden of proving the falsity of the representation made by the accused never shift from the prosecution but if an explanation is given by the accused, the court will have to take that into consideration. However, in the present case the explanation given by the accused was not satisfactory as accused did not discharge the onus of proof placed on them under Section 106 of the Evidence Act as hereinabove held, to prove a fact C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 87 especially within their knowledge that the manually prepared invoices were of IOCL, Mathura, Refinery. I, thus, hold both accused guilty for the offences u/s. 420 IPC r/w Section 120B IPC.
106. The burden of proof of the offences u/s. 420/467/468/471 r/w Section 120B IPC was on the prosecution.
107. As regards the offence u/s. 467 IPC, to convict accused under this section it was to be shown that the invoices in question were false documents and were forged by the accused. In view of my finding herein above on the charge of conspiracy I hold that prosecution succeeded in proving by cogent evidence that the invoices in question were false documents. However, I am of the view that prosecution did not establish by reliable evidence as to who had forged the invoices. It was the duty of the prosecution to establish as to who had forged the invoices, however, prosecution did not send the invoices in question to FSL with the admitted writings and signatures of accused to prove the charge of forgery.
Although, the specimen signatures of accused were taken during investigation, the invoices in question were not sent to FSL to C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 88 compare them with the admitted handwritings of accused.
108. Thus, as regards the offences u/s. 467/468 IPC and 471 IPC the burden of proving that invoices were forged by accused was not discharged by prosecution, thus I am of the view that the prosecution failed to prove affirmatively that the accused had forged the invoices. However, prosecution had succeeded to bring home the guilt of all accused u/s. 420 r/w 120B IPC as it has been established by cogent evidence that the invoices were 'false documents' and were used by accused to cheat and defraud MCD. Finding on Section 13(1)(d) of the POC Act & Conspiracy
109. To establish the offence under Section 13(1)(d) of the POC Act, all that the prosecution had to establish was that accused C.B. Singh and Pankaj Goel being public servants abused their position to obtain for themselves or any other person any valuable thing or pecuniary advantage. The question whether favour or disfavour was within the power and ambit of accused is irrelevant, if the accused abused their official position the requirement of law is satisfied. C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 89
FINDINGS ON SECTION 13 (1)(d) r/w SECTION 13(2) OF THE PREVENTION OF CORRUPTION ACT.
110. Section 13 (1)(d) of POC Act which is relevant is as under: "Criminal misconduct by a public servant -
(1) A public servant is said to commit the offence of criminal misconduct,
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 90 related to the person so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person to do so; or
(d) if he
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; 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 may extend to seven years and shall also be liable to fine.
111. Section 21 of Indian Penal Code defines: "21" Public Servant - The words "public servant" denote a person falling under any of the description hereinafter falling namely: C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 91 Twelfth Every person(a) in the service or pay of the government or remuneration by fees or commission for the performance of any public duty by the Government;
(b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government Company as defined in Sec. 617 of the Companies Act, 1956".
112. It was contended by accused C.B. Singh and Pankaj Goel that prosecution failed to prove that they had abused their official position to obtain for themselves or for any other person pecuniary advantage or any valuable thing. Rather from the invoices placed on record, it was evident that contractor had submitted the invoices of bitumen to MCD. It was also contended that the duty of engineers was only to verify the work at site. It was further contended that the Engineers also did not have any role in the verification of bills. It was reiterated that PW4 and PW9 had stated that they had verified the invoices with the entries in the MB/register. It was also contended that prosecution also failed to prove dishonest C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 92 intention or mens rea on part of accused to cheat MCD in conspiracy with contractor, by cogent evidence.
113. As regards mens rea not being an essential ingredient to constitute an offence U/S 13 (1)(d) of the POC Act, it has been held in Runu Ghosh & Others CBI in Crl. A. 482/2002, No. 509/2002 and No. 536/2002 decided by Hon'ble High Court of Delhi on 21.12.2011 as follows:
"Interpretation of Section 13(1)(d)(ii) and
(iii) This question lies at the core of the reference to this Division Bench. The material portion of the reference, while adverting to Section 13 (1)(d) and then dealing with the phraseology of Section 13 (1)(d)(iii) and other preceding subclauses, reads thus:
"Whether the absence of adverbs like "wilfully", "fraudulently", "dishonestly", "corrupt or illegal means" to qualify the very "obtains" in this clause would mean that a public servant commits criminal misconduct if he while holding such office obtains for any person (and not for himself) any pecuniary advantage which is "without C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 93 any public interest"?. The statute appears to offer no guidance as to what can be said to be a decision or act that is "without public interest".
"There is no doubt that Section 13 (1) (d)
(iii) differs from other parts of the Act, not only in structure, but also in substance. The use of terms such as "habitually accepts"
"agrees to accept" "attempts"
"consideration which he knows to be inadequate" "dishonestly or fraudulently misappropriates." (property "entrusted" to him or "allows any other person so to do"); "corrupt or illegal" "abusing his position"
are clear pointers to Parliamentary intention that mens rea is essential to be proved in relation to the offences provided for under section 13 (1) (a) to (d) (i) and
(ii). Section 13 (1) (d) (iii) contains no such words, which point to criminal intent."
Having regard to the previous history of the statute, the amendments to the 1947 Act, its avowed objects and the distinctive structure which Parliament adopted consciously, under the 1988 Act, despite being aware of the preexisting law, as well as the C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 94 decisions of the Courtthe conclusion which this Court draws is that mens rea is inessential to convict an accused for the offence under Section 13 (1) (d) (iii) It would be sufficient if the prosecution proves that the public servant "obtains" by his act, pecuniary advantage or valuable thing, to another, without public interest. The inclusion of public interest, in the opinion of the Court, tips the scale in favour of a construction which does not require proof of mens rea. There can be many acts of a public servant, which result in pecuniary advantage or obtaining of a valuable thing to someone else; typically these may relate to payment of royalty, grant of license or concessions, issuance of permits, authorizations etc. Yet, such grants, concessions, or other forms of advantages to third parties would not criminalize the public servant's actions, so long as they have an element of public interest. They (acts of the public servant) are outlawed, and become punishable, if they are "without public interest".
114. As regards the expression without 'public interest' it has C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 95 been held in Runu Ghosh (supra), as under: "Having now settled the true interpretation of whether the offence under Section 13 (1) (d) (iii) requires proof of mens rea, it would now be vital to settle what really the prosecution would have to establish to say that the public servant's actions or decisions, which result in a third party obtaining a pecuniary advantage or valuable thing, without public interest.
"It would be profitable to emphasize that public servants are an entirely different class, and the level of trust reposed in them by the society is reflected in the high standards of behaviour and rectitude expected of them, both in the discharge of their duties, and otherwise".
"The court, as a consequence has to determine the objective criteria by which acts (of public servants) "without public interest", are to be judged, if mens rea (to obtain pecuniary advantage or valuable thing to another) is not a necessary ingredient. This exercise is essential because in the absence of mens rea (which has been ruled out) the C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 96 court has to say what "acts" resulting in someone obtaining pecuniary advantage or valuable thing are "without public interest".
"Therefore, when a public servant's decision exhibits complete and manifest disregard to public interest with the corresponding result of a third party obtaining pecuniary advantage or valuable thing, he is fastened with responsibility for "criminal misconduct" under Section 13 (1) (d)
(iii).
This offenceunder section 13 (1) (d)
(iii) advisedly does not require proof of intent, or mens rea, because what Parliament intended was to punish public servants for acts which were without public interest. This kind of offence is similar to those intended to deal with other social evils, such as food and any adulteration (offences under Prevention of Food Adulteration Act, Drugs and Cosmetics Act, Essential Commodities Act. Section 25 of the Arms Act. It is not every act which result in loss of public interest or that is contrary to public interest thus is C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 97 prosecutable. However, it is only those cases done with complete disregard to norms and manifestly injurious to public interest, which are avoidable, but for the public servant disregarding precautions which resulted in pecuniary advantage to another that are prosecutable U/S 13 (1) d(iii) of the PC Act. In other words, if the public servant is able to show that he followed all the safeguards, and exercised all reasonable precautions having regard to the circumstances, despite which there was loss of public interest, he would not be guilty of the offence. Failure to observe those reasonable safeguards against detriment to the public interest, which having regard to all circumstances, it was his or her duty to have adopted. To put it differently, the public servant acts without public interest, if his action or decision, is by manifestly failing to exercise reasonable precautions to guard against injury to public interest, which he was bound, at all times to do, resulting in injury to public interest. The application of this test has to necessarily be based on the C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 98 facts of each case' the standard however, is objective.
115. The crucial question thus is whether the accused C.B. Singh and Pankaj Goel had abused their official position by corrupt or illegal means to 'obtain' for themselves any other persons pecuniary advantage 'without public interest'. As long as there was no ulterior motive, the courts will not question the decision of the public servant. However, when the act of public servant was without public interest, in utter disregard of the consequences and such act caused loss to the Government Exchequer and resulted in third party obtaining pecuniary advantage it would amount to be without public interest. The public servant indulging in such act had to take responsibility of the consequences. It is thus to be seen whether accused Pankaj Goel and C.B. Singh acted in concert with the contractor without public interest by abusing their official position.
116. It was reiterated by Ld. Counsels for accused that as C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 99 invoice of IOCL, Mathura were submitted but they were not verified. It was further contended that bitumen was purchased by contractor from IOCL, Mathura Refinery. However, this contention was already rejected while deciding the charge of conspiracy and cheating, as accused failed to discharge the onus placed on them U/S 106 of the Indian Evidence Act.
117. Ld. Counsels for the accused also contended that PW21 PW21 Inspector Santosh Kumar Singh did not verify the customer register of IOCL nor seized it and in this regard had stated in his crossexamination that he had not verified the customer register maintained by IOC, Mathura, which was a serious lacuna in the case of prosecution. However, Ld. Addl. PP countered the said contention and reiterated that IO did not verify the same as a report was already received from the CRC IOCL Mathura Refinery that there was no customer by the name of M/s Aruna Builders and Suppliers in their customer record. It was further contended by both accused that it was incumbent upon the prosecution to prove its case beyond reasonable doubt. Ld. Addl. PP further submitted that C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 100 PW15/IO had testified in his examination in chief that manual invoice were never issued by IOCL, Mathura Refinery and that both accused abused their official position to obtain pecuniary benefit for contractor without public interest. Thus as work orders were admitted by accused it was incumbent on accused to have complied with the terms and conditions thereof. But the accused (Engineers) in gross violation of the terms and conditions conspired with the contractor who furnished false document/invoices as proof of purchase of bitumen from an authorized government refinery. Accused C.B. Singh and Pankaj Goel in conspiracy with the contractor to cause wrongful loss to MCD and wrongful gain to the contractor by got the bills passed on forged invoices. The accused (Engineers) who were discharging functions on behalf of MCD were expected to act in public interest and fairly and every public servant who acts on behalf of public body or State is accountable for his acts. All powers vested in a public servant are meant to be exercised for promoting public interest. Thus, when an act of public servants exhibits manifest disregard of public good as a result of which a third party obtains pecuniary C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 101 advantage he is fastened with misconduct U/S 13 (1)(d)(iii) of POC Act. In view of my findings on conspiracy and cheating, I am of the view that there is sufficient evidence adduced by prosecution to bring home the charge for the offence punishable u/s. 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act r/w Section 120B IPC, as accused C.B. Singh and Pankaj Goel in pursuance of the conspiracy, got the bills of contractor passed on 'false invoices' to cause wrongful loss to MCD & wrongful gain to the contractor.
118. For the foregoing reasons, I hold both the accused Pankaj Goel and C.B. Singh guilty U/S 120B IPC, 420 r/w Section 120B IPC and U/S 13(1)(d) punishable U/S 13(2) POC Act r/w Section 120 IPC.
Announced in the open court on this 29th day of October, 2015 (Poonam Chaudhry) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC, Delhi C.C. No.04/12 State Vs. Pankaj Goel etc. Page No. 102