Madhya Pradesh High Court
K.K.Shrivastava vs State Of M.P. on 3 March, 2022
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1
Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013)
Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013)
K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013)
R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013)
HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH
SINGLE BENCH
G.S. AHLUWALIA J.
Cr.A. No. 429 of 2013
Ajay Pandvia
Vs.
State of M.P. through S.P.E.
Cr.A. No. 440 of 2013
Narendra Singh Bhadoria
Vs.
State of M.P., through S.P.E.
Cr.A. No. 441 of 2013
K.K. Shrivastava
Vs.
State of M.P. through S.P.E.
2
Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013)
Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013)
K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013)
R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013)
Cr.A. No. 445 of 2013
R.B. Shrivastava
Vs.
State of M.P., through S.P.E.
_______________________________________
Shri R.K. Sharma, Senior Counsel with Shri M.K. Chaudhary for
Appellant Ajay Pandvia
Shri Raj Kumar Shrivastava, Counsel for Appellant Narendra Singh
Bhadoria
Shri Anil Mishra, Counsel for Appellant K.K. Shrivastava
Shri D.P. Singh, Counsel for Appellant R.B. Shrivastava
Shri Ajay Chaturvedi , Counsel for the State/S.P.E.
Date of Hearing : 17-02-2022
Date of Judgment : 03-03-022
Approved for Reporting :
Judgment
03 - March -2022
Per G.S. Ahluwalia J.
1. By this common judgment, Cr.A.s No. 429 of 2013 (Ajay
Pandvia Vs. State), Cr.A. No. 440 of 2013 (Narendra Singh Bhadoria
Vs. State), Cr.A. No. 441 of 2013 (K.K. Shrivastava Vs. State) and
Cr.A. No. 445 of 2013 (R.B. Shrivastava Vs. State) shall be decided.
2. All the four Criminal Appeals have been filed under Section
374 of Cr.P.C. against the Judgment dated 29-5-2013 passed by
Special Judge (Prevention of Corruption Act), Gwalior in Special
Sessions Trial No. 01/2010 by which the appellants have been
3
Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013)
Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013)
K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013)
R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013)
convicted and sentenced as under :
Name of Appellant Conviction under Sentence
Section
Ajay Pandvia 15 of Prevention of 6 months R.I. and fine
Corruption Act of Rs. 10,000/-
read with Section 6 months R.I. and fine
120-B of IPC of Rs. 10,000/-
Narendra Singh 15 of Prevention of 6 months R.I. and fine
Bhadoria Corruption Act read of Rs. 10,000/- for
with Sections 420, offence under Section
467,468,471,120-B of 15 of P.C. Act.
IPC 6 months R.I. and fine
of Rs. 10,000/- for
offence under Section
120-B of IPC
2 years R.I. and a fine
of Rs. 15,000/- each
for offence under
Sections 467,468,471
of IPC
K.K. Shrivastava 15 of Prevention of 6 months R.I. and fine
Corruption Act of Rs. 10,000/-
read with Section 6 months R.I. and fine
120-B of IPC of Rs. 10,000/-
R.B. Shrivastava 15 of Prevention of 6 months R.I. and fine
Corruption Act of Rs. 10,000/-
read with Section 6 months R.I. and fine
120-B of IPC of Rs. 10,000/-
All the sentences shall run concurrently.
3. The necessary facts for disposal of the present appeal in short
are that one Sudhir Singh, resident of Tansen Nagar, Gwalior, made a
complaint against Vivek Singh, the then Commissioner, Municipal
Corporation Gwalior, that forged files of work worth Rs. 2 Crores
have been prepared in the name of maintenance work of water
supply. In the name of sanctioning the work and forged payment,
4
Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013)
Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013)
K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013)
R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013)
illegal gratification in lacs has been taken. Accordingly, on the
orders of Lokayukt, an enquiry was conducted by Commissioner,
Municipal Corporation and Divisional Vigilance Committee and
prima facie the allegations were found proved and accordingly, the
matter was handed over to Special Police Establishment (Lokayukt),
Bhopal. Shri Kaptan Singh Nagar was appointed as investigating
officer, and looking to the large number of files, Virendra Singh
Tomar and Anil Kumar Agrawal, Inspectors were also authorized to
investigate.
4. The investigating officer recorded the statements of the
witnesses. Sanction to prosecute co-accused Hari Singh Khairwar
was obtained and accordingly, charge sheet was filed against the
appellants, co-accused R.N.Karaiya, Hari Singh Khairwar and Kamal
Kishore Puniyani.
5. By order dated 6-3-2010, the Trial Court refused to take
cognizance against R.N. Karaiya, K.K. Shrivastava, Narendra Singh
Bhadoria, Ajay Pandvia and R.B. Shrivastava in absence of sanction
for prosecution, however, took cognizance against the co-accused
Hari Singh Khairwar and Kamal Kishore Puniyani.
6. It is not out of place to mention here that the co-accused Hari
Singh Khairwar and Kamal Kishore Puniyani were tried and they
were acquitted by Judgment dated 29-7-2011, against which the State
has filed Cr.A. No. 959 of 2013, which too has been heard
5
Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013)
Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013)
K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013)
R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013)
simultaneously along with these appeals.
7. Subsequently, supplementary charge sheet was filed against the
appellants Narendra Singh Bhadoriya, K.K.Shrivastava and R.N.
Karaiya after taking sanction for prosecution under Section 19 of
Prevention of Corruption Act. It is also not out of place to mention
here that Ajay Pandvia had taken voluntary retirement whereas R.B.
Shrivastava had stood superannuated.
8. Similarly, by the impugned judgment, the Trial Court has
acquitted R.N. Karaiya, Executive Engineer, against which the State
has filed Cr.A. No. No. 338 of 2014, which too has been heard
simultaneously along with these Criminal Appeals.
9. The Trial Court framed charges under Sections 15 of
Prevention of Corruption Act read with Section 120-B of IPC against
the Appellants K.K. Shrivastava, Ajay Pandvia, R.B. Shrivastava and
acquitted accused R.N. Karaiya and framed charges under Sections
15 of Prevention of Corruption Act, 120-B, 420,467,468 and 471 of
IPC against Appellant Narendra Singh Bhadoria.
10. The appellants and the acquitted accused R.N. Karaiya abjured
their guilt and pleaded not guilty.
11. The prosecution examined Kishorilal (P.W.1), Hari Singh
(P.W.2), Yogendra Pal Singh Sisodiya (P.W.3), Mohan Singh Chandel
(P.W. 4), Rajendra Singh Dikshit (P.W.5), Rajesh Sharma (P.W.6),
Mohd. Ubbais Siddique (P.W.7), Sharad Chandra Garg (P.W.8),
6
Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013)
Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013)
K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013)
R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013)
Kusumlata Sharma (P.W.9), N.R. Godhiya (P.W.10), Devendra Singh
Chauhan (P.W.11), A. Pradhan (P.W. 12), Vimal Kumar Soni (P.W.
13), Suresh Singh (P.W. 14), Anil Agrawal (P.W. 15), and Virendra
Singh Tomar (P.W. 16).
12. The appellants did not examine any witness in their defence.
13. The Trial Court by the impugned judgment has convicted and
sentenced the appellants for the offences mentioned above and
acquitted R.N. Karaiya.
14. Challenging the judgment of conviction passed by the Court
below, it is submitted by the Counsel for the Appellants, that the Trial
Court failed to see that work was executed in Rangiyana Colony. No
forged bills were filed. Quotations were invited and they were
properly processed. In fact work was carried out, but still the
payment was not released and the appellants have not committed any
offence and they are innocent persons.
15. Per contra, the Counsel for the respondent has supported the
reasoning given by the Trial Court.
16. Heard the learned Counsel for the parties.
17. As per the prosecution case, the file, Article A-1 contains an undated letter written by Govind Verma, Councilor, Ward No. 9 Rangiyana Colony, Chaar Shahar Naka, Gwalior, pointing out that because the underground water level has gone down, therefore, water is not coming out of the tube-well installed in Rangiyana Colony and 7 Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013) Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013) K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013) R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013) accordingly, it was prayed that in place of submersible pump, hand pump may be installed. A note sheet was prepared by the then Sub- Engineer namely Shri Narendra Singh Bhadoria that "due to scarcity of water in Rangiyana Colony, submersible pump has been removed and bore has been cleaned, so that hand pump can be installed". It was also mentioned that looking to the shortage of water and summer season, the estimate of work would be Rs. 9,940/-. Accordingly, it was mentioned that quotation may be called. The note sheet was forwarded to Asstt. Engineer. It is not out of place to mention here, that there is no reference of letter allegedly written by Councilor nor the note sheet contains any date. Similarly an estimate of Rs. 9,940/- was prepared by Sub-Engineer Narendra Singh Bhadoria and Asstt. Engineer Ajay Pandvia but no date has been mentioned below their signatures. Thereafter, Asstt. Engineer Ajay Pandvia prepared a note sheet dated 24-7-2003 proposing for calling of quotation and accordingly, Executive Engineer R.N. Karaiya granted approval for calling quotation. This note sheet is dated 27-7-2003. Thereafter on 13-8-2003, a notice addressed to three contractors including Kamal Kishore Puniyani was affixed on the Notice Board and the last date for submission of quotation was 19-8-2003, however, the said letter doesnot contain the date of issuance, although it was signed by Asstt. Engineer Ajay Pandvia. On 19-8-2003, three quotations by those three Contractors were submitted. On 19-8-2003, the quotations 8 Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013) Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013) K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013) R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013) were opened by Asstt. Engineer Ajay Pandvia by mentioning "Open by" whereas he was not authorized to do so. The quotations are alleged to have been received by Asstt. Engineer as it contains the seal of Asstt. Engineer and all the three quotations were entered into at serial no. 4888,4889 and 4890 in the inward register. None of the quotation bears any date. Further more, the quotations were called from three contractors only and the quotations were never invited from general public/contractors. On 19-8-2003 itself, the Sub- Engineer Narendra Singh Bhadoria wrote a note sheet mentioning that quotations of three firms were received, and the quotation of Kamal Kishore Puniyani was the lowest one. The said note sheet was forwarded to Asstt. Engineer. Asstt. Engineer Ajay Pandvia forwarded the note sheet for approval by Executive Engineer on 19- 8-2003 itself. The Executive Engineer granted approval on 3-9-2003. Thereafter, the legible copies of the work order were placed for signatures and the seal of approval dated 24-12-2003 by M.I.C. is affixed. It has been signed by Executive Engineer Karaiya. The work order was issued on 30-12-2003 to Kamal Kishore Puniyani. The work order was issued by Executive Engineer R.N. Karaiya and a copy was endorsed to Asstt. Engineer, Water Supply Maintenance Block No. 1. On the said letter it is mentioned that Technical sanction was granted on 9-10-2003. Although a seal to the effect that it has been approved by MIC is affixed but there is no date on it. 9
Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013) Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013) K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013) R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013) Although the work order was issued on 30-12-2003, but Kamal Kishore Puniyani submitted the bill on 2-1-2004 i.e., just two days after the work order was issued. On the basis of bill, a seal has been affixed to the effect that work was inspected and it was found satisfactory and is in accordance with quality control. The measurement book no. 912 Page no. 2 is mentioned. It is also mentioned that the bill of Rs. 9,940 is presented for payment. The said note sheet has been signed by Sub-Engineer Narendra Singh Bhadoria on 6-1-2004 and it has been certified by Asstt. Engineer Ajay Pandvia on 15-5-2004. On the same page, a recommendation was made for payment of Rs. 9,940/-. However, there is no order by the Commissioner, Municipal Corporation. Further, as complaint was made, therefore, the payment was stopped and after inspecting the file, the file was closed and no payment was released. The investigating officer had also carried inspection on the spot, and found that submersible pump was not replaced and hand pump was never installed.
18. Kishorilal (P.W.1) has proved the sanctions for prosecuting R.N. Karaiya, K.K. Shrivastava, Narendra Singh Bhadoria, which was granted by Dinesh Kumar Nayak, the then Secretary, Law and Legislative Department, Ex. P.1A. In cross-examination, a question was put by Counsel for Ajay Pandvia with regard to sanction to prosecute him, but the said question was disallowed for the reason 10 Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013) Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013) K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013) R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013) that Ajay Pandvia had already taken voluntary retirement and he was no more in service. Similarly question in respect of sanction to prosecute R.B, Shrivastava was rejected as he had already attained the age of superannuation.
19. Hari Singh (P.W.2) is the Constable who delivered the Dehati Nalishi in the office of S.P.E. (Lokayukt) in Bhopal and on the basis of said Dehati Nalishi, the S.H.O., Satish Kumar Verma lodged FIR, Ex. P.1.
20. Yogendra Pal Singh Sisodiya (P.W.3) has stated that he had joined Municipal Corporation Gwalior as Asstt. Engineer and took voluntary retirement in Oct. 2005 from the post of Superintendent Engineer. He further stated that from 2001 till 2005 he was posted as Executive Engineer and was also incharge Superintendent Engineer. The accused persons were the officers and employees posted in Public Health and Engineering Department. Public Health and Engineering Department was bifurcated in two Sections i.e., Water Supply Section and Sewer Section. The accused persons were posted in Water Supply office. On 19-3-2005, Nikunj Shrivastava who was posted as Commissioner had constituted an Enquiry Committee for for inspecting 5357 files. This witness was the Chairman, whereas M.S. Chandel, Rajesh Sharma, Sharad Chandra Garg, Arvind Chaturvedi and Ubbais P. Siddique were the members. The files were inspected and was found that spot map was not included and no 11 Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013) Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013) K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013) R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013) measurement was mentioned in measurement book and merely estimate was prepared and amount payable was mentioned. In the estimate as well as measurement book, the place of work was not specifically mentioned, but merely the total number of works were mentioned. Separate permission for every maintenance work was not sought, but a consolidated case was presented. The enquiry report is Ex. P. 15 C and its original copy is Ex. P.16. File no. 2 bearing case no. 30/4x9/1 is concerning Public Health and Engineering Department. The spot map is not annexed. The estimate and rates of work were not in accordance with law and accordingly, it was not possible to give permission for payment and was also not possible to conduct verification. The file No.2 is Article 1 and at page 4, his signatures are at A to A. This witness was cross-examined.
21. In cross-examination, he stated that he had never visited Rangiyana Colony. Since, he was required to give report within 2 months, therefore, he had inspected the files in cursory manner. He did not conduct spot inspection. In the estimate as well as in measurement book, the place of work was not specifically mentioned. The sanction for payment of maintenance expenses were not submitted on individual basis but a consolidated chart was presented.
22. Mohan Singh Chandel (P.W.4) is also one of the members of the Enquiry Committee constituted by Nikunj Shrivastava, the then Municipal Corporation Commissioner. He also stated that he had 12 Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013) Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013) K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013) R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013) inspected the files in cursory manner. Article A-1 is the file which contains his signatures at B to B. This file was concerning water problem in Rangiyana Colony. As per the Estimate it was shown that submersible pump was to be removed and hand pump was to be installed. The Committee did not recommend for payment and recommendation was made to close the file. In cross-examination, he stated that he was the Secretary of the Committee. He further stated that spot inspection was not done prior to submitting the report.
23. Rajendra Singh Dikshit (P.W.5) has stated that he was posted as Asstt. Draftsman. The file Article A-1 is the file concerning water scarcity in Rangiyana Colony. Since, this file was never placed before him, therefore, this file doesnot contain his signatures. In cross-examination, this witness tried to take a somersault and admitted that he was posted as Incharge of Technical Branch. He further stated that the estimate was prepared in accordance with law and Technical sanction was given by his office. However, it is clear from File Article A-1, that the Technical sanction was never obtained.
24. Rajesh Sharma (P.W.6) has stated that he was one of the member of the Enquiry Committee which had inspected around 5000 files and had recommended for closing all the files. The enquiry report is Ex. P.16. He in cross-examination stated that he had not carried out the spot inspection. He also took somersault and said that measurement is mentioned in measurement book and the work was 13 Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013) Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013) K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013) R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013) done in accordance with law.
25. Mohd. Ubbais Siddique (P.W.7) was also member of the Enquiry Committee and the Committee had inspected 5000 files and it was recommended that all the files be closed.
26. Sharad Chandra Garg (P.W.8) was also the member of Enquiry Committee. About 5200-5300 files were inspected and it was found that there were lapses. The enquiry committee had not visited the spot. This witness was cross-examined and in cross-examination he admitted that the files were inspected cursorily. Article A-1 is file concerning Rangiyana Colony, and since, red seal is appended, therefore, it is clear that lapses were found and thus payment was not to be made. He further stated that in all the files in which lapses were found a red coloured seal was affixed. He admitted that no spot inspection was carried out.
27. Kusumlata Sharma (P.W.9) has stated that She is working on the post of Tracer. She used to place the sanctioned file before Draftsman Shri R.S. Dikshit. She further stated that in file Article A- 1 She had written "legible copies of work order" and had put her signatures. This witness was declared hostile. However, nothing could be elicited by the public prosecutor, which may help the prosecution.
28. M.R. Gothia (P.W.10) has stated that he was posted as Executive Engineer and had sent the photo copy of the file containing 14 Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013) Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013) K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013) R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013) approval by MIC. In cross-examination, this witness admitted that K.K. Shrivastava, remained incharge of Executive Engineer from 22- 1-2004 till 15-6-2004.
29. Devendra Singh Chauhan (P.W. 11) has stated that by letter Ex. P.18 he had forwarded the copy of order issued by Vivek Singh, Commissioner Municipal Corporation by which powers were conferred on K.K. Shrivastava.
30. A. Pradhan (P.W. 12) had identified signatures of the then Executive Engineer who had supplied the attested service book of R.N. Karaiya by letter Ex. P.20.
31. Vimal Kumar Soni (P.W. 13) had provided the information regarding duties and liabilities of Executive Engineer, Asstt. Engineer, Sub-Engineer, Accountant, Divisional Accountant, vide letter Ex. P.8.
32. Suresh Singh (P.W.14) is a witness before whom the investigating officer had prepared the spot panchnama in Rangiyana Colony, however, he stated that his signatures were obtained and he turned hostile.
33. Anil Agrawal (P.W. 15) is the investigating officer. According to him, he had collected information regarding budget from the office of Commissioner, Municipal Corporation, Gwalior. On 11-10-2007 he had recorded the statements of Govind Verma, on 16-11-2007, he had recorded the statements of Suresh Sikarwar and Madan Baba, on 15 Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013) Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013) K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013) R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013) 28-1-2008, he had recorded the statement of Mohan Singh Chandel, on 23-1-2008 he recorded the statements of Yogendra Pal Singh Sisodiya, and Rajendra Singh Dikshit, On 8-1-2008 he recorded the statements of Surendra Kumar Juneja, on 7-1-2008 he recorded the statement of Rajesh Sharma, on 5-1-2008 he recorded the statement of Sharad Chandra Garg, on 4-1-2008 he recorded the statements of Kaushlendra Buddhiraja, on 3-1-2008 he recorded the statements of Mohd. U. Siddique and on 6-1-2008 he recorded the statement of Kusumlata Sharma. He filed the charge sheet against Hari Singh Khairwar and Contractor Puniyani after obtaining sanction for prosecution. Later on, after receiving sanction to prosecute R.N. Karaiya the then Executive Engineer, K.K. Shrivastava the then Executive Engineer, and Narendra Singh Bhadoria, he filed the charge sheet. Since, Ajay Pandvia had taken voluntary retirement and R.B. Shrivastava had retired therefore, there was no need to seek sanction for prosecution. In cross-examination, he admitted that he had not prepared any spot map. He was also not in a position to say as to whether handpump was installed or not? He admitted that he had not carried out the spot inspection. He also admitted that he had not visited the spot. He admitted that K.K. Shrivastava had remained posted in Corporation from 22-1-2004 till 15-6-2004. He further admitted that no payment was released in favor of Contractor. He also admitted that he is aware of the fact that the Contractor has 16 Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013) Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013) K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013) R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013) already been acquitted.
34. Virendra Singh Tomar (P.W. 16) is also one of the investigating officer. He had inspected the file in question, Article A-1. He had visited the spot and had prepared spot panchnama, Ex. P.21. He had found that hand pump was not installed. The work was not done, and inspite of that forged bills were presented. He could not trace out the complainant Sudhir Singh. Since, the allegations made in complaint Ex. P.22 were found correct therefore, he had recorded Dehati Nalishi, Ex. P.23 and sent it for registration of FIR. This witness was cross-examined.
35. In cross-examination, he denied that panchnama was prepared in the office. He denied that he did not carry out spot inspection in Rangiyana Colony. He admitted that the payment of the bills was not released. He admitted that the time of preparing Panchnama, Ex. P.21 is not mentioned. However, he on his own clarified that it was prepared at 2:30 P.M. He denied that he had not investigated the matter properly.
36. Now the moot question for consideration is that whether the prosecution has proved the guilt of the appellants beyond reasonable doubt or not?
37. The entire proceedings done by the accused persons can be summed up as under :
(a) An undated application was made by Govind Verma, 17 Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013) Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013) K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013) R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013) Councilor, Ex. P.22, to the effect that water level has gone down in the water bore situated in Rangiyana Colony, therefore, hand pump may be installed after getting the bore cleaned. It is not out of place to mention here that since, Govind Verma had expired, therefore, he could not be examined.
(b) Thereafter, Narendra Singh prepared an undated note sheet to the effect that as the water level in Rangiyana Colony has gone down, therefore, the motor installed in the water bore has been removed and the bore has been cleaned so that hand pump can be installed and looking to the summer season and scarcity of water, the estimate of the work is Rs. 9,940/-.
(c) Asstt. Engineer, Ajay Pandvia, forwarded the file to Executive Engineer, R.N. Karaiya, who by his note sheet dated 27-7 permitted to call quotations.
(e) Quotations were called from three Contractors only including Kamal Kishore Puniyani and all the quotations were received on 19-
8-2003 in sequence i.e., at serial no. 4888,4889 and 4890 of inward register.
(f) All the three quotations were opened by Ajay Pandvia, Asstt. Engineer on 19-8-2003 itself, although he was not competent to do so and it was for the Technical Department to open the Quotations and to prepare the comparative chart.
(g) Thereafter, on 19-8-2003 itself, Sub-Engineer Narendra Singh 18 Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013) Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013) K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013) R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013) prepared a note sheet mentioning that as per the order, three quotations were received and the quotations submitted by Kamal Kishore Puniyani is the minimum being of Rs. 9,940/-.
(h) Asstt. Engineer Ajay Pandvia placed the proposal for approval on 19-8-2003 and it appears that Executive Engineer R.N. Karaiya granted permission on 3-9-2003.
(i) Thereafter, the legible typed copy of work order was placed, but the note sheet doesnot contain any date. Below said noting a rubber seal has been affixed to the effect that MIC has granted approval on 24-12-2003.
(j) Work order was issued on 30-12-2003.
(k) A rubber stamp was affixed to the effect that work has been completed in his presence, work was satisfactory and is as per the specification, the measurement of the work is mentioned in M.B. 912 page no. 2 and the bill of Rs. 9,940 is presented after the completion of work. This seal is signed by Sub-Engineer Narendra Singh and Asstt. Engineer Ajay Pandvia. Sub-Engineer Narendra Singh has put the date 6-1-2004, whereas Ajay Pandvia has put the date 15-5-2004.
(l) Accountant / Auditor /Divisional Accountant/ Executive Engineer made recommendation for payment, but the file doesnot contain approval by Commissioner, Municipal Corporation.
(m) The Accountant affixed the rubber seal for payment, however, it appears that since, complaint was made therefore, the payment was 19 Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013) Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013) K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013) R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013) stopped and ultimately, after inspection, the enquiry Committee closed the file and payment was not released.
38. The following documents are the part of file Article A-1.
(a) Un-dated application of Govind Verma in original;
(b) The Original Note Sheets:
(c) Index of the Office of the Asstt. Engineer, Maintenance Sub.
Dn. Gwalior, Estimate
(d) Notice inviting quotations
(e) Quotation submitted by respondent no.2.
(f) Envelop containing quotation by respondent no.2.
(g) Quotation submitted by Tarun Traders
(h) Envelop containing quotation by Tarun Traders
(i) Quotation by Surendra Kumar Juneja
(j) Envelop containing quotation by Surendra Kumar Juneja
(k) Proforma of comparative chart
(l) Work order dated 30-12-2003
(m) Bill containing an endorsement that cheque of Rs. 9940/- has been issued.
39. It is submitted by the Counsel for the Appellants that notice inviting quotations was issued. Kamal Kishore Puniyani and two more persons submitted their quotations. Since, the quotation of Kamal Kishore Puniyani was lowest, therefore, it was accepted. The work order was issued 30-12-2003 and bill dated 2-1-2004 was 20 Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013) Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013) K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013) R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013) submitted after completing the work. However, the payment could not be released. Thus, it is incorrect to say that any attempt was made to misappropriate the amount.
40. Per contra, the Counsel for the respondent/State submitted that undated application for removal of submersible pump was obtained and notice inviting quotations was issued to only three persons. The quotations were opened by unauthorized person. No work was done. A false bill was presented and even the cheuqe was issued, but since, complaint was made, therefore, the payment was not made. Thus, it is clear that the appellants are guilty.
41. Heard the learned Counsel for the parties.
42. As per the documents relied upon by the Appellants, an Estimate of Rs. 9940 was prepared by Narendra Singh, Sub- Engineer.. This estimate was for removing Submersible Pump, for supply of India Mark II Hand pump, Supply of 1 ¼ inch G.I. Pipe, Installation of Hand pump, and construction of platform. Accordingly, the notice inviting quotations was issued. The said quotation is dated 13-8-2003 and it was addressed to Kamal Kishore Puniyani, Tarun Traders and Surendra Kumar Juneja only. The notice inviting quotation is as under :
dzekad 1889 Xokfy;j fnukad 13-8-2003
loZJh 1- dey fd'kksj iqfu;kuh
2- r:.k VzsMlZ
3- lqjsUnz dqekj lqustk
21
Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013) Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013) K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013) R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013) 4- lwpuk iVy fo"k; foHkkx dk lkeku iznku @ ejEer dk;Z djus ds laca/k esa bl foHkkx }kjk fuEufyf[kr vk;Veksa @ dk;Z ds dqVs'ku vkef=ar fd;s tkrs gSA d`i;k vki viuh U;wur njsa bl dk;kZy; es fnukad 19-8-2003 dks cts rd Hkstus dk d"V djsaA vki tks njsa bl dk;kZy;k es izLrqr djs os lc VsDlksa lfgr gksuk pkfg;s rFkk ;fn dksbZ VsDl vyx ls ysosa rks mldk fooj.k vafdr djsaA ;g eky tks vki iznku djsxsa ;g dk;kZy;hu Lvksj es fy;k tkosxk A vkns'k feyrs gh eky 3 @ 7 fnol ds vanj iznku djuk vko';d gS nj izLrqr djrs le; lkeku tks vki iznku djsxs mldk LisflfQds'k DokfyVh es dk fooj.k vo'; nsaA 1- 150 ,e ,e O;kl ds cksj es ls lefoZcy eksVj iIi lsV fudkykuk & ,d dk;Z 2- gS.MiEi ls bf.M;k ekdZ 2 iznk; & ,d dk;Z 3- 1 ¼ th vkbZ ikbZi iznk; djuk & ,d dk;Z 4- gS.MiEi yxkuk & ,d dk;Z 5- IysVQkeZ cukuk & ,d dk;Z
43. The last date for submission of quotation was 19-8-2003 and surprisingly, three quotations were received on 19-8-2003 which were received at serial no. 4888, 4889, and 4890 of inward register. Whether it was co-incidence that all the three quotations were 22 Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013) Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013) K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013) R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013) received at one time or it was manipulation, shall be considered in the later paragraphs.
44. It is surprising that although the quotations were addressed to Commissioner, Municipal Corporation and the file was to be sent to Technical branch for opening of quotations, but Ajay Pandvia, Asstt. Engineer, opened the quotations on his own on 19-8-2003 itself and opined that the quotation submitted by Kamal Kishore Puniyani is the lowest. Accordingly, note sheet was prepared by Narendra Singh, Sub-Engineer on 19-3-2003 itself.
45. As already pointed out, the proposal was placed before R.N. Karaiya, Executive Engineer, who without verifying the facts, approved the same by his note sheet dated 3-9.
46. Thereafter, a typed copy of work order was presented and the note sheet contains the rubber stamp of approval by MIC on 24-12- 2003 and the work order was issued on 30-12-2003. Kamal Kishore Puniyani submitted his bill on 2-1-2004 i.e., just 2 days after the work order was issued and Narendra Singh, Sub-Engineer prepared the following M.B. on 6-1-2004 :
fooj.k ek=k nj :Ik;s
1- 150 ,e ,e O;kl ds cksj es ls lceflZcy 1 925 925
eksVj ,oa lsV fudkyuk
2- gS.MiEi bf.M;k ekdZ 2 iznk; djuk 1 3695 3695
23
Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013) Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013) K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013) R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013) 3- 1 ¼ th vkbZ ikbZi iznk; djuk 1 99 2970 4- gS.MiEi yxkuk 1 400 400 5- IysVQkeZ cukuk 1 1950 1950 _______ 9940
47. Narendra Singh Sub-Engineer issued a verification certificate on 6-1-2004, mentioning therein that he has verified the work and it is found to be satisfactory and in accordance with specifications and this was attested by Ajay Pandvia, Asstt. Engineer on 15-5-2004.
48. It is really interesting that while seeking permission to call quotations, Narendra Singh, Sub-Engineer in his undated note sheet had given the estimate in which he had mentioned as under :
mijksDr fo"k; es ys[k gS jax;kuk eksgYyk es ikuh dh deh gks tkus ds dkj.k mDr uydwi dh eksVj fudky nh xbZ gSA rFkk mDr uydwi es vLi"V ds }kjk lQkbZ djk nh xbZ gSA ftlls mDr uydwi es gS.iEi LFkkfir fd;k tk lds mDr dk;Z xzh "e dky ,oa bykds es is;ty dh deh dks ns[krs gq, mDr dk;Z vko';d dk;Z dh vuqekfur ykxr 9940 A vr% mDr dk;Z gsrq dqVs'ku cqyk, tkus dh vuqefr nsus dk d"V djsA
49. It is really surprising that when the submersible pump was already removed and the bore was already got cleaned, then why the cost of removing submersible pump was included in the Estimate? The estimate which was prepared by Narendra Singh Sub-Engineer 24 Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013) Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013) K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013) R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013) was as under :
OFFICE OF THE ASSISTANT ENGINEER Maintenance Sub. Dn.
GWALIOR (M.P.)
ESTIMATE
S.No. Detail Quanti Rate Amount
ty Rs. P. Rs. P.
1- 150 ,e ,e O;kl ds cksj es 1 dk;Z 925/- 925/-
lcejflcy eksVj iEi lsV
fudkyuk
2- gS.MiEi ls bf.M;k ekdZ 2 iznk; 1 dk;Z 3695/- 3695/-
djuk
3 1 ¼ th vkbZ ikbZi iznk; djuk 1 dk;Z 99/- 2970/-
4 gS.MiEi yxkuk 1 dk;Z 400/- 400/-
5 IysVQkeZ cukuk 1 dk;Z 1950/- 1950/-
9940/-
50. Thus, it is clear that Narendra Singh, Sub-Engineer had prepared false note sheet based on false declaration that the submersible pump has been removed and bore has been cleaned, whereas it is clear from the Estimate itself that nothing was done and the cost of removing submersible pump was also included in the Estimate. Without comparing the undated Note Sheet and the Estimate, R.N. Karaiya, Executive Engineer, also directed for calling the Quotations.
51. Although in the undated note sheet, it was mentioned that due 25 Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013) Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013) K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013) R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013) to summer season and scarcity of water, the work is of urgent nature, but R.N. Karaiya approved the note sheet and directed for calling the quotations on 27-7 (must be 27-7-2003). Thus, it is clear that by that time, the summer season was already over and rainy season had started. It is really surprising that according to the officials due to poor availability of water, submersible pump was required to be replaced by hand pump, whereas submersible pump is always installed below the water level and it throws the water from inside whereas the hand pump is installed at the top of the bore and above the land and is operated by hand. Submersible pump is always more effective then hand pump. Why submersible pump was being replaced specifically when there is nothing on record that the submersible pump had gone out of order? Even if the submersible pump already installed in the bore had become un-operational, then why it was not repaired or replaced ?
52. Under these circumstances, the undated application made by Govind Verma, Councilor appears to be suspicious and similarly undated note sheet prepared by Narendra Singh, Sub-Engineer also becomes suspicious. Further, the submersible pump which was already installed in the bore was the property of Municipal Corporation, Gwalior. There is nothing on record to show that what happened to the said submersible pump. On the contrary, as per Spot Panchnama, Ex. P.21, it is clear that the submersible pump was found 26 Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013) Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013) K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013) R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013) in the bore itself and thus, it is clear that submersible pump was never removed from the bore.
53. Further, there is nothing on record to suggest that Ajay Pandvia , Asstt. Engineer was competent to open the quotations. The last date for submission of quotations was 19-8-2003. All the three quotations were received on 19-8-2003 in sequence. On 19-8-2003 itself, the quotations were opened by Ajay Pandvia, whereas it should have been done by Technical branch. The quotations were addressed to Commissioner, and there is nothing on record to suggest that Ajay Pandvia, Asstt. Engineer was authorized to open the quotations. On 19-8-2003 itself, Narendra Singh, Sub-Engineer prepared the note sheet mentioning that the quotation of Kamal Kishore Puniyani is the lowest and on the same day, the said note sheet was also forwarded by Ajay Pandvia, Asstt. Engineer to R.N. Karaiya, Executive Engineer. The manner in which the entire things were done, clearly indicates some undue interest of the appellants Narendra Singh and Ajay Pandvia in the matter.
54. Further, from the evidence of Kusumlata Sharma (P.W.9), who is posted in Technical branch, it is clear that She had merely prepared the clear copy of work order only. Thus, it is clear that the file was never sent to Technical Branch for examination of quotations, estimate, work place etc.
55. By referring to the evidence of Rajesh Sharma (P.W.6), it is 27 Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013) Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013) K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013) R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013) submitted by the Counsel for the appellants, that this witness has admitted that measurement was mentioned in the measurement book, Article B, therefore, it is incorrect to say that no spot inspection was carried out before certifying the completion of work.
56. This Court has gone through the measurement book, Article B. In measurement book, Article B, no measurement is mentioned. In the measurement book the estimate is reproduced with price and a rubber stamp has been affixed mentioning therein that the work was found to be satisfactory and in accordance with specifications. The size of the platform which was to be constructed is not mentioned.
The description of Hand pump allegedly installed by Kamal Kishore Puniyani is also not mentioned. In fact, the measurement book, Article B cannot be said to be a measurement book. Thus, merely because Rajesh Sharma (P.W.6) had stated that measurement was mentioned in the measurement book, Article B, this Court is not bound by his evidence. It is well established principle of law that this Court has to appreciate the evidence on its face value and thus, it is held that no measurement was mentioned in the measurement book, Article B. The Supreme Court in the case of Dayal Singh Vs. State of Uttaranchal reported in (2012) 8 SCC 263 has held as under :
30. With the passage of time, the law also developed and the dictum of the Court emphasised that in a criminal case, the fate of proceedings cannot always be left entirely in the hands of the parties. Crime is a public wrong, in breach and violation of public rights and duties, which affects the 28 Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013) Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013) K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013) R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013) community as a whole and is harmful to the society in general.
31. Reiterating the above principle, this Court in NHRC v. State of Gujarat held as under: (SCC pp. 777-78, para 6) "6. ... '35. ... The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata.
The courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice--often referred to as the duty to vindicate and uphold the 'majesty of the law'. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the Judges as impartial and independent adjudicators.' (Zahira Habibullah case, SCC p. 395, para
35)"
32. In State of Karnataka v. K. Yarappa Reddy this Court occasioned to consider the similar question of defective investigation as to whether any manipulation in the station house diary by the investigating officer could be put against the prosecution case. This Court, in para 19, held as follows: (SCC p. 720) "19. But can the above finding (that the station house diary is not genuine) have any inevitable bearing on the other evidence in this case? If the other evidence, on scrutiny, is found credible and acceptable, should the court be influenced by the machinations demonstrated by the investigating officer in conducting investigation or in preparing the records so unscrupulously? It can be a 29 Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013) Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013) K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013) R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013) guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation. It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinised independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by the investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case."
33. In Ram Bali v. State of U.P. the judgment in Karnel Singh v. State of M.P. was reiterated and this Court had observed that: (Ram Bali case, SCC p. 604, para 12) "12. ... In case of defective investigation the court has to be circumspect [while] evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigation officer if the investigation is designedly defective."
34. Where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the Judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the Court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not subverted. For truly attaining this object of a "fair trial", the Court should leave no stone unturned to do justice and protect the interest of the society as well.
30
Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013) Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013) K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013) R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013)
57. Thus, it is clear that the Court can make overall assessment to reach to a conclusion and is not bound by the evidence by prosecution.
58. Thus, it is clear that under the garb of scarcity of water during summer season, an undated application from Govind Verma, Councilor was obtained. It is not out of place to mention here that since, Govind Verma had expired, therefore, he could not be examined. Thereafter, Narendra Singh, Sub-Engineer, prepared an undated note sheet, thereby mentioning that the submersible pump has already been removed and the bore had been got cleaned and also prepared the estimate, but also included the cost of removal of submersible pump. When the submersible pump was already removed by the Corporation, then under what circumstances, the contractor was to be paid the cost of removal is also not clear. Without verifying the above mentioned anomaly, R.N. Karaiya, Executive Engineer, granted permission to call quotation on 27-7, whereas the summer season was already over. The Executive Engineer R.N. Karaiya also did not verify that when submersible pump is more effective then hand pump, then why hand pump was being installed after removing submersible pump. Thereafter, quotations were invited only from three contractors and no Notice Inviting Tender/Quotation was issued. Thereafter, on 19-8-2003, all the three quotations were submitted in sequence and on the very same 31 Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013) Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013) K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013) R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013) day, Ajay Pandvia, Asstt. Engineer, opened the quotations, whereas the file should have been sent to Technical branch for doing the needful. Further, Narendra Singh, Sub-Engineer also prepared the note sheet regarding lowest quotation on 19-8-2003 itself. Ajay Pandvia, Asstt. Engineer, in his turn forwarded the file to R.N. Karaiya, Executive Engineer, who granted sanction on 3-9-2003. It appears that thereafter, a consolidated file was prepared including all work orders and the matter was placed before MIC, which granted approval. It is not out of place to mention here that during the course of arguments, it was submitted by the Counsel for the respondents that trial for other files are still pending. It is clear from the file of MIC, Ex. P.12, R.N. Karaiya, Executive Engineer, had granted approval of work worth Rs. 1.75 Crores approximately in 1500 files. Thereafter, the work order was issued on 30-12-2003 and on 2-1- 2004, Kamal Kishore Puniyani submitted the final bill also. No spot inspection report is annexed in the file. Even Virendra Singh Tomar (P.W. 16), who is the investigating officer, had carried out the spot inspection, and did not find any hand pump on the spot. Thus, it is clear that without doing any work, the bills were submitted by Kamal Kishore Puniyani and the Appellant R.B. Shrivastava without recommending for deduction of statutory taxes, forwarded the file to the Appellant K.K. Shrivastava, who in his turn, by ignoring all above mentioned material lapses, forwarded the file to the 32 Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013) Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013) K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013) R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013) Commissioner, Municipal Corporation for payment. Even the cheques were prepared, but before the payment could be made, a complaint was made, and therefore, the payments were immediately stopped. Further, it is clear that no measurement was recorded in the measurement book and ultimately, the Enquiry Committee after conducting enquiry closed the file and no payment was released.
59. Thus, it is clear that the prosecution has succeeded in establishing the guilt of the appellants beyond reasonable doubt. Accordingly, the conviction of the Appellants K.K. Shrivastava, R.B. Shrivastava and Ajay Pandvia for offence under Section 15 of Prevention of Corruption Act read with Section 120-B of IPC is hereby affirmed. Similarly, the conviction of Appellant Narendra Singh Bhadoria for offence under Sections 15 of Prevention of Corruption Act, read with Section 420,467,468,471 and 120-B of IPC is hereby affirmed.
60. So far as the question of sentence is concerned, it appears that the Trial Court lost sight of certain factual aspects. The Trial Court was swayed away by the fact that only a forged bill of Rs. 9,940/- was prepared without doing the work and even that bill was not paid.
61. From the file which was sent to MIC for approval, it is clear that R.N. Karaiya had prepared 1500 files of work of Rs. 1.75 Crores. The payment was not released because of the fact that complaint was 33 Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013) Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013) K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013) R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013) made and accordingly the file was closed ( ufLrc}). The Trial Court lost sight of the evidence of Mohd. Ubbais Siddique (P.W.7) that about 5000 files were inspected and recommendations were made for closing all the files. Thus, it is clear that the Enquiry Committee had found lot of irregularities in several files, and accordingly, the payment was stopped and the files were closed. Further more, during the course of arguments, it was also accepted by the Counsel for the appellants, that other trials are also pending. Thus, it is clear that the present case was not the solitary case to misappropriate a meager amount of Rs. 9,940/- but thousands of forged files were created in order to misappropriate huge amount and it is clear from the record of MIC that R.N. Karaiya had signed 1500 files involving work worth Rs. 1.75 crores.
62. The Supreme Court in the case of State of Karnataka Vs. J. Jayalalitha reported in (2017) 6 SCC 263 has held as under :
181. Qua the required orientation of a court vis-à-vis offences under the Act, it has been inter alia emphatically observed in State of M.P. v. Ram Singh (SCC pp. 93-94, para 8) that corruption in a civilised society is a disease like cancer, which if not detected in time is sure to afflict the polity of the country leading to disastrous consequences. It was ruled that corruption is like a plague which is not only contagious but if not controlled spreads like fire in a jungle.
It was proclaimed that corruption is opposed to democracy and social order, being not only anti-people but aimed and targeted against them. It affects the economy and destroys the cultural heritage and therefore, unless it is nipped in the bud at the earliest, it is likely to cause turbulence, shaking the socio-economic-political system in an otherwise healthy, 34 Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013) Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013) K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013) R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013) wealthy, effective and vibrating society.
182. The history of the enactment of the 1947 Act was traced in R.S. Nayak v. A.R. Antulay and a caveat was sounded to the effect that whenever a question of construction arises upon ambiguity or if two views are possible of a provision of an anti-corruption law (then Act, 1947), it would be the duty of the Court to adopt that construction which would advance the object underlying the statute, namely, to make effective the provision for the prevention of bribery and corruption and at any rate not to defeat it. It was underscored that procedural delays and technicalities of law should not be permitted to defeat the object sought to be achieved by the statute and the overall public interest and the social object is to be borne in mind while interpreting the various provisions thereof and in deciding cases under the same.
(emphasis supplied)
183. In Niranjan Hemchandra Sashittal v. State of Maharashtra, this Court while dwelling on the same theme, exposited as hereinbelow: (SCC pp. 654-55, para 26) "26. It can be stated without any fear of contradiction that corruption is not to be judged by decree, for corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a country, corrodes the sense of civility and mars the marrows of governance. It is worth noting that immoral acquisition of wealth destroys the energy of the people believing in honesty, and history records with agony how they have suffered. The only redeeming fact is that collective sensibility respects such suffering as it is in consonance with the constitutional morality."
184. A Constitution Bench of this Court in Subramanian Swamy v. CBI, reiterated that corruption is an enemy of the nation and tracking down corrupt public servants and punishing such persons is a necessary mandate of the 1988 Act.
185. On the touchstone of the above entrenched legal prescripts the evidence on record would have to be assayed to derive the deductions as logically permissible.
* * * *
202. In State of M.P. v. Shambhu Dayal Nagar, this Court 35 Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013) Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013) K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013) R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013) while responding to the plea for a lenient view qua a charge of corruption expressed its concern against rampant venality by public servant observed that the malady is corroding like cancerous lymph nodes, the vital veins of the body politics, social falenic of efficiency in public service and demoralising the honest officers. The need for public servants to devote their sincere attention to the duties of the office was emphasised.
203. In Subramanian Swamy, this Court was examining the challenge to the constitutional validity of Section 6-A of the DSPE Act, 1946--qua a classification amongst public servants made by Section 6-A for the purpose of inquiry/investigation into any offence under the 1988 Act. It was observed that the corruption is an enemy of the nation and to track down the corrupt public servant and to punish them is the necessary mandate of the 1988 Act and as such the purposes of law being either to eliminate public mischief or achieve public good, the classification militates against the same and in a way advances public mischief and protects the crime doer. It was held that the provision thwarts independent unhampered, unbiased, efficient and fearless inquiry/investigation to track down the corrupt public servants. Section 6-A of the DSPE Act and Section 26(c) of the CBC Act were struck down.
204. In Niranjan Hemchandra Sashittal, this Court, apart from elucidating the objective of the 1988 Act, ruled that the gravity of the offence thereunder is not to be judged on the measure of quantum of bribe, as corruption is not to be justified in degree. A serious concern was expressed noticing the permeating presence of the malady in the contemporary existence, so much so, that immoral acquisition of wealth visibly has the potential to destroy the morale of the people believing in honesty, destroying societal will to progress, aside corroding the sense of civility and enervating the marrows of governance.
63. Thus, it is clear that the Trial Court has adopted an unwanted lenient view in the matter, by awarding flee bite sentence.
64. Now the next question for consideration is that whether this Court should issue notice to the appellants for enhancement of 36 Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013) Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013) K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013) R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013) sentence or not?
65. The present case arises out of the offence committed in the year 2003. The Counsel for the appellants have also submitted that other trials are also pending. The appellants were convicted in the year 2013 and more than 8 years have passed. Even no notice to show cause as to why sentence may not be enhanced was issued at the time of admission of the Appeal. Thus, this Court is of the considered opinion, it is not desirable to issue notice to the appellants for enhancement of sentence at this stage.
66. Accordingly, the sentence awarded by the Trial Court is affirmed.
67. Ex-Consequenti, the Judgment dated 29-5-2013 passed by Special Judge (Prevention of Corruption Act), Gwalior in Special Sessions Trial No. 01/2010, qua the appellants is hereby affirmed.
68. The appellants are on bail. The bail bonds are hereby cancelled.
69. The appellants are directed to immediately surrender before the Trial Court on or before 31st of March 2022, for undergoing the remaining jail sentence.
70. The record of the Trial Court be send back immediately along with a copy of this Judgment for necessary information and compliance.
71. The appeals fail and accordingly, Cr.A. No.s 429/2013, 37 Ajay Pandvia Vs. State of M.P. through S.P.E. (Cr.A. No. 429 / 2013) Narendra Singh Bhadoria Vs. State of M.P., through S.P.E. (Cr.A. No. 440 / 2013) K.K. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 441 / 2013) R.B. Shrivastava Vs. State of M.P. through S.P.E. (Cr.A. No. 445 /2013) 440/2013, 441/2013 and 445/2013 are hereby Dismissed.
G.S. Ahluwalia Judge ARUN KUMAR MISHRA 2022.03.03 17:08:13 +05'30'