Delhi District Court
State vs . 1. S.D. Sharma on 5 May, 2012
IN THE COURT OF SHRI B.R. KEDIA, SPECIAL JUDGE07
(CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
C.C.NO. : 35/12
Unique Case ID : 02401R5004852004
STATE VS. 1. S.D. SHARMA
S/o Sh. Shriram Sharma,
R/o H.No. A5B/53B, Janak Puri,
Delhi.
2. DEEPAK BHATNAGAR
S/o Sh. P.S. Bhatnagar
R/o WZF19/1A, Gali No. 4,
Virender Nagar, Delhi.
3. R.K. SHAURYA
S/o Sh. Mansukh
R/o A134, Gulab Bagh, Nawada,
Uttam Nagar, New Delhi.
4. JAGDISH
S/o Sh. Vishnu Dutt
R/o V.P.O. Dhandlan, Distt. Rohtak,
Haryana.
5. AUSAT ALI
S/o Sh. Ali Hussain
R/o B34, Police Colony,
Bhajanpura, Delhi.
C.C. No. 35/12 Page No. 1 of 37
6. SURAJ BHAN
S/o Sh. Munshi Ram
R/o 257, Line Par, Shankar Garden,
Gali No. 2, Bahadurgarh, Haryana.
7. RAM CHANDER
S/o Sh. Baldev Singh
R/o 18, Kot Mohalla near Cloth
Market, Sonepat, Haryana.
8. KESHAV DAS
S/o Sh. Onkar Singh
R/o Q4185C, North Pitampura,
Delhi.
9. S.R. SHARMA
S/o Sh. Shiv Lal Sharma
R/o AC3/37A, Shalimar Bagh,
Delhi.
FIR NO. : 45/2000
U/S : 13 (1)(d) r/w 13 (2) of Prevention of
Corruption Act, 1988 and Section
420/468/471/120B IPC
P.S. : ANTI CORRUPTION BRANCH,
DELHI
Date of Institution 04.02.2004
Judgment reserved on 16.04.2012
Judgment delivered on 05.05.2012
C.C. No. 35/12 Page No. 2 of 37
JUDGMENT
1. The precise case of the prosecution is that on dated 31.8.2000 Nagender Singh while posted as Inspector in Anti Corruption Branch on preceipt of the complainant to the effect that no desilting of the drains (nalas) was carried out by the Irrigation and Flood Control Department of Govt. of NCT, Delhi and payment was made without desilting the nalas, conducted enquiry and found that Irrigation and Flood Control Department, Government of NCT, Delhi was responsible for maintenance of about 75 storm water drain where permanent desilting was carried out either by the Department or through Contractor. It was reliably learnt that in the year 2000 also desilting work had been carried out in four circles of this Department and Official of the Department awarded contracts primarily on work contract basis by dispensing with established norms of inviting NITs and without following the codal formalities. It was also found that fictitious billing/over billing and differential payments for the same nature of work was also done and contracts were awarded to near and dear one in consideration of hefty commission by the Officers of Irrigation and Flood Control Department, Government of NCT, Delhi. On secret verification, it was found that the contract for desilting and transportation were awarded in that year in Flood CircleI, II, III & C.C. No. 35/12 Page No. 3 of 37 IV. The work of dumping and transportation of silt/garbage were done by measuring cross section levels at the dumping sites in all cases, except in case of Najafgarh Drain (Flood CircleIII). The silt of Najafgarh was carried out by Trucks and payment was to be made as per the number of Trips made. The total work of desilting/ transportation of the drain was awarded for Rs. 16,13,000/ approximately and the work for transportation was awarded for Rs. 3,14,160/ approximately out of the said amount. The verification about the trucks further revealed that some of the vehicle numbers were shown falsely whereas infact those vehicles were never used for the said work. It has also been revealed that in some cases the works have been awarded on the basis of two tenders only instead of minimum three tenders. Thus, the Officials of Irrigation and Flood Control Department namely Deepak Bhatnagar/ AE, R.K. Shaurya/JE of CDII CircleIII Irrigation and Flood Control and Sh. Sushil Kumar/JE of SLF Bhalsawa, MCD in connivance with S.R. Sharma/Contractor and others had abused their official position and obtained pecuniary advantage for themselves and others and had caused loss to the Government of NCT of Delhi. On the basis of the same as per Rukka Ex.PW19/A, FIR Copy of which is Ex.PW18/A/A was registered on dated 31.08.2000 at PS Anti Corruption Branch, C.C. No. 35/12 Page No. 4 of 37 Delhi.
2. After registration of the case, Investigation was taken up by the IO. During the course of Investigation, file Ex.PW2/C1 (colly) pertaining to Agreement no. EEII/ACB/Agreement24/992000 Contractor S.R. Sharma, Running Account Bill Ex.PW2/D1, Test Check Statement Ex.PW2/D2, part Rate statement Ex.PW2/D3, Memo of payment Ex.PW2/D4 vide Receipt Memo Ex.PW2/D, Silt Register Ex.PW8/1 (colly) and Ex.PW8/2 (colly), Goods Receipt Ex.PW10/A and Ex.PW10/B, Challan Ex.PW20/A1 to A8 were seized by the IO. Trip details Ex.PW7/A during the period 18.05.2000 to 22.06.2000 as delivered by Anil Garg were seized vide Seizure Memo Ex.PW7/B. Trip cards Ex.PW3/A1 to A10 for the period MayJune 2000 as delivered by Chotu Ram were seized vide Seizure Memo Ex.PW3/A. Two Attendance Register Ex.PW20/D and E, Posting Order of accused Jagdish, Deepak Bhatnagar and R.K. Shaurya Ex.PW20/F, G & H respectively were obtained by the IO. Admitted handwriting and signatures of accused S.R. Sharma, accused Jagdish, accused Deepak Bhatnagar besides the specimen signature of accused Ausat Ali, Jagdish, R.K. Shaurya, Suraj Bhan, Ram Chander, Keshav Das, Deepak Bhatnagar were obtained by the IO. During the course C.C. No. 35/12 Page No. 5 of 37 of the Investigation, IO also obtained the Biodata of the accused persons and Sanction order concerning the accused persons, FSL Report etc. IO on recording the statement of the witnesses and after completion of the Investigation, prepared the chargesheet and filed in the court.
3. After compliance with the provision U/S 207 of Cr.P.C and after hearing both sides on the point of charge, charge for offence punishable U/S 120B IPC r/w Section 420/468/471 IPC and U/S 13 (1) (d) of the Prevention of Corruption Act, 1988 against all the 9 accused and U/S 13 (1) (d) of Prevention of Corruption Act, 1988 as against all the accused except accused no. 9, and U/S 420 IPC and U/S 468 r/w 471 IPC against all the 9 accused were framed vide order dated 08.07.2005 to which accused persons pleaded not guilty and claimed trial.
4. That in order to bring home the guilt of the accused, the prosecution got examined 23 prosecution witnesses namely Faridu Zamal Khan, Manager of M/s Pahwa Brokers as PW1, U.P. Nautiyal, the then Divisional Accountant in Civil DivisionII, Irrigation and Flood Control Department as PW2, Chotu Ram who was running a C.C. No. 35/12 Page No. 6 of 37 JCB Machine Truck as PW3, Shiv Nath Singh as PW4, N.K. Sharma, the then Executive Engineer in Chief Engineer's Office as PW5, S.K. Garg, the then Superintending Engineer (SE) in Flood Control Department as PW6, Anil Garg, a Transport Operator as PW7, Sushil Kumar, the then JE at Sanitary Landfill Bhalswa as PW8, Anil Kumar, a Transport Operator as PW9, Radhey Shyam, who is also a Transport Operator as PW10, Mahender Veer as PW11, Samrat Goel as PW12, Bhag Chand, the then Manager in Malwa Guwahati Career as PW13, Jitender Pal, the then Supervisor in Transport Center, Azad Pur, Delhi as PW14, Ajay Goel, the then Director in EastWest Movers as PW15, Sh. G.P. Dua, the then Assistant Manager in Union Bank of India, Shalimar Bagh Branch, Delhi as PW16, Ami Lal Daksh, the then Senior Scientific Assistant (Documents), FSL Rohini as PW17, Sh. A.K. Gupta, the then Chief Engineer in Irrigation and Flood Control Department as PW18, SI Kunwar Singh, the then Duty Officer in PS AC Branch as PW18A, Bhuvneshwar Singh, the then Additional Commissioner, MCD, Sanctioning Authority as against the accused Ausat Ali, Ram Chander, Suraj Bhan and Keshav Das as 19, the then Inspector Nagender Singh, Initial IO again as PW19, the then Inspector O.P. Arora, Last IO as PW20, Abdul Razak, a Transport Operator as PW20A, Ashok Gurahiya, the then Special Assistant C.C. No. 35/12 Page No. 7 of 37 from Union Bank of India, Shalimar Bagh, Delhi as PW21, the then Inspector M.A. Salam who has conducted the preliminary Inquiry on the complaint as PW22.
5. After closure of the PE, statement of accused persons under Section 313 Cr.P.C. were recorded in which they claimed to be innocent and have been falsely implicated in this case. However, the accused persons have got examined four witnesses namely Sh.Suresh Kumar as DW1, Hasan Raza as DW2, Inderjeet as DW3 and K.L. Ahuja as DW4 in their defence.
6. I have heard Final Arguments as addressed by Sh.H.L. Chopra, Adv. Ld. Counsel for the accused S.D. Sharma, Sh. M.K. Gupta, Adv. Ld. Counsel for the accused Ausat Ali, Suraj Bhan, Ram Chander and Keshav Das, Sh. R.S. Singhal, Adv. Ld. Counsel for the accused Deepak Bhatnagar, R.K. Shaurya and S.R. Sharma, Sh. Mahender Sharma, Adv. Ld. Counsel for the accused Jagdish and Sh.Vinod Kumar Sharma, Ld. Addl. PP for the State and perused the relevant record.
7. It is submitted by Sh. M.K. Gupta, Adv. Ld. Counsel for C.C. No. 35/12 Page No. 8 of 37 the accused Ausat Ali, Suraj Bhan, Ram Chander and Keshav Das that the accused Ausat Ali and Suraj Bhan were working as Mates and accused Ram Chander and Keshav Das were working as Beldar and have duly performed their assigned duties and have no concern with the alleged offence. It is further added by him that these accused are innocent and have been falsely implicated in this case. It is further added by him that these accused persons have neither made any false entries in the Silt Register in respect of any silt slips. It is also added by him that said slips were issued by JE of MCD to Flood and Irrigation Department and one slip was retained by the MCD and Truck Number were being filled up by the official of Flood and Irrigation Department. It is further added by him that PW8 Sushil Kumar, JE who is a material PW has not deposed anything as against these accused persons. Said PW8 Sushil Kumar has also denied the suggestion of Ld. Addl. PP to the effect that these accused persons used to make forged Trip Entry in Silt Register and in connivance with the officials of Irrigation and Flood Control Department, they used to prepare forged trip slips and signed on the slips as well as in the Register. Thus, Ld. Counsel for these four accused Ausat Ali, Suraj Bhan, Ram Chander and Keshav Das urged for their acquittal. C.C. No. 35/12 Page No. 9 of 37
8. Similarly, Sh. H.L. Chopra, Adv. Ld. Counsel for the accused no. 1/S.D. Sharma submitted that this accused is innocent and has been falsely implicated in this case. It is further added by him that this accused was posted as Executive Engineer in Irrigation and Flood Control Department of Government of NCT, Delhi during the relevant period and had discharged his official duties bonafidely and has no role in the alleged offence. It is further added by him that there is no foul play in awarding the work contract and passing of the Bill by this accused. It is further added by him that this accused being Executive Engineer is not supposed to be physically present at the spot as it is the JE and AE who were supposed to be present at the spot for verification. It is further added by him that this accused has passed the Running Bill without 10% check and therefore, he cannot be faulted for the same. It is further added by him that since this accused has acted during course of discharge of his official duties and as no Sanction U/S 197 Cr.P.C. for launching prosecution as against him has been obtained, this accused deserves to be acquitted. It is further added by him that none of the PWs has deposed that the silt was not removed from the site. It is further added by him that as the specimen handwriting of the accused was not obtained with the permission of the MM, the Handwriting Report cannot be read as C.C. No. 35/12 Page No. 10 of 37 against the accused. It is further added by him that this accused has neither entered into any conspiracy with any accused for commission of the alleged offence. Thus, Ld. Counsel for this accused S.D. Sharma contended for his acquittal.
9. Similarly, Sh. R.S. Singhal, Adv. Ld. Counsel for the accused Deepak Bhatnagar/AE, R.K. Shaurya/JE and S.R. Sharma/ Contractor submitted that these accused persons are innocent and have no concern with the alleged offence and have been falsely dragged in this case. It is further added by him that as there was no nexus amongst the officials of MCD and Flood and Irrigation Department, therefore no case U/S 120B IPC is made out against these accused persons. It is further added by him that PW8/Sushil Kumar who is a material PW has not deposed anything as against the accused persons and despite cross examination by Ld. Addl. PP, no material to support the case of the prosecution could be brought out from him. It is also added by him that DW1 Suresh Kumar has duly deposed regarding the encashment of Cheque of Rs.4,720/ in favour of M/s Garg Brothers. Thus, Ld. Counsel for these accused persons urged for their acquittal.
C.C. No. 35/12 Page No. 11 of 37
10. Similarly, Sh. Mahender Sharma, Adv. Ld. Counsel for the accused Jagdish submitted that this accused was working as a Mate in Irrigation and Flood Control Department during the relevant period and has no concern with the alleged offence. It is further added by him that this accused Jagdish being working as Mate used to carry out the official work as per the direction of accused R.K. Shaurya/JE and therefore, he cannot be liable for the alleged offence. It is further added by him that even as per the deposition of PW8/Sushil Kumar/ JE, 647 Trips were unloaded at the site. It is also added by him that none of the PW has deposed as against this accused Jagdish and hence, this accused deserves to be acquitted.
11. To the contrary, it is submitted by Ld. Addl. PP for the State that the prosecution by examining 23 PWs have clearly established its case as against the accused persons and therefore, they deserve to be convicted for the charged offence. It is further added by Ld. Addl. PP for the State that mere fact that PW8/Sushil Kumar being own over by the accused has turned hostile, same can be of no help for the accused persons. It is further added by Ld. Addl. PP that as all the accused persons by hatching criminal conspiracy have committed the charged offence and therefore, the accused persons deserve to be convicted C.C. No. 35/12 Page No. 12 of 37 accordingly. It is also added by Ld. Addl. PP that since the commission of the offence on the part of the accused no. 1, S.D. Sharma cannot be treated as part of his official duties and therefore, said accused is not entitled for any protection U/S 197 Cr.P.C. It is also added by Ld. Addl. PP that there are ample material available on the record which clearly established regarding forgery of 529 Garbage Slips and forged entry in the Silt Registers and preparation of false Running Account in favour of accused S.R. Sharma/Private Contractor by entertaining criminal conspiracy on the part of the accused persons and therefore, all the 9 accused persons deserve to be convicted for the charged offence. Thus, Ld. Addl. PP for the State urged for conviction of all the 9 accused persons.
12. From the perusal of the deposition of PW2/ U.P.Nautiyal, it is reflected that in the year 2000 while he was working as Divisional Accountant with Civil DivisionII, Irrigation and Flood Control Department, in the matter of Agreement No.24 of 1999/2000 pertaining to the removal of the garbage from Najafgarh drain, the estimate was prepared by R.K.Shaurya/J.E. and checked by Draftsman of Drawing Branch and then veted by S.D.Sharma, Executive Engineer and thereafter, tender was floated and out of the seven C.C. No. 35/12 Page No. 13 of 37 casted tenders as S.R. Sharma was the first lowest tenderer, he was awarded the work at his tender cost and the Tender Awarding Authority was S.D. Sharma, the then Executive Engineer. Said Original Agreement No.24 consisting of 128 pages collectively exhibited as Ex.PW2/C1 and is duly signed by S.D.Sharma/E.E. and S.R.Sharma/Contractor and said Agreement was seized by the IO vide Seizure Memo Ex.PW2/C. Said PW2 further deposed that during execution of the work, the Contractor S.R.Sharma presented First Running Bill dated 12.6.2000, accused S.R.Sharma/Contractor had claimed that he had completed the work worth Rs.5,20,000/ out of total tender amount of Rs.6,25,330/ and First Running Bill was paid to accused S.R.Sharma after making statutory deduction. Original First Running Bill dated 12.6.2000 for Rs.507120/ alongwith Test Check and Part Rate statement consisting of four sheets is collectively exhibited as Ex.PW2/D1 to D4 and Original First Running Bill is Ex.PW2/D1, Test Check Statement is Ex.PW2/D2, Part Rate Statement is Ex.PW2/D3 and Memo of Payment is Ex.PW2/D4.
13. As regards the procedure to be followed before making payment against the Running Bill, PW2 U.P.Nautiyal has deposed as under: C.C. No. 35/12 Page No. 14 of 37 "Before making the payment of the running bill, the procedure followed is that the measurement of the work done is recorded in the measurement book by Jr. Engineer accused R.K.Shoriya and it is verified by Asstt. Engineer Deepak Bhatnagar, accused present in the Court.
(Correctly identified). Thereafter, measurement book containing the measurement of work done alongwith running bill is presented to the Accounts Branch for pre checking to be done by Auditor/Accountant. On the basis of arthimetical checking reported in the measurement book, the amount of the running bill to be paid to the contractor is worked out as gross as well as net amount after making the statutory deductions. The running bill is finally put up before the Executive Engineer for passing the same. The running bill in this case was passed by accused S.D.Sharma, Executive Engineer and thereafter the payment of the running bill was made to the contractor accused S.R.Sharma."
14. Said PW2/ U.P.Nautiyal on seeing pages No.82 to 91 of C.C. No. 35/12 Page No. 15 of 37 Measurement Book No.834 pertaining to Agreement No.24 for the work of removal of garbage etc. from Najafgarh drain for the period 11.5.2000 to 25.6.2000, stated that the entry contained in the said pages are in the handwriting of accused R.K.Shaurya and bears his signature on Page 83, 84 (at two places), 85, 86, 87, 89 to 91 at points Q787 to 796 and said pages 82 to 91 of said Measurement Book No. 834 are collectively exhibited as Ex.PW2/A1 to A10. Similarly, said PW2/ U.P.Nautiyal on seeing pages No.43 to 62 of Measurement Book No.874 pertaining to Agreement No.24 for the work of removal of garbage etc. from Najafgarh drain to Sanitary Landfill site at Bhalswa for the period 24.5.2000 to 11.6.2000, stated that the entry contained in the said pages are in the handwriting of accused R.K.Shaurya and bears his signature on Page 44 at point Q764, Page 45 at point B, Page 46 at point Q765, Page 47 at point Q766, Page 48 at point Q767, Page 49 to 51 at points Q768 to Q770, Page 53 to 54 at point Q771 to Q773, Page 56 to 58 at point Q774 to Q776 and Page 61 to 62 at point Q777 to Q778 and said pages 43 to 62 of said Measurement Book No.874 are collectively exhibited as Ex.PW2/B1 to B20. Said PW2 further deposed that the accused Deepak Bhatnagar/A.E. in token of his having Test Check, the said entries in Ex.PW2/B1 to B20, had signed at points Q779 to Q786. Said C.C. No. 35/12 Page No. 16 of 37 deposition of PW2 has not been disputed even by accused R.K. Shaurya and Deepak Bhatnagar.
15. PW8/Sushil Kumar, J.E. has deposed regarding the procedure for entry on the receipt on transportation of the garbage as under : "The garbage is brought to the filling station by the vehicles owned by the corporation as well as by the private vehicles engaged by the corporation. The trucks carry garbage, malba and silt taken out from the nalas.
Whenever a vehicle comes for unloading of garbage or malba or silt then entry is made in the register by the mate who is on duty at that place. The entry is made as per contents maintained in the truck. If the truck carry garbage then entry will be of garbage likewise if the truck is carrying the malba or silt the entry will be made in this regard. The truck driver carries with him two receipts in duplicate regarding the material contained in the truck. The mate collects both the receipts from the truck drivers and returns one the slips to the driver after unloading of C.C. No. 35/12 Page No. 17 of 37 the truck and after making entry in the register by stamping one of the receipts and put his initials."
16. From the perusal of the deposition of PW22/ the then Inspector M.A.Salam, it is reflected that he has conducted the preliminary verification with regard to the complaint bearing No.C39/2000 forming the basis of this case and he has deposed that after Inquiry on the said complaint, he has prepared the detailed Report dated 18.6.2000 Ex.PW22/A which bears his signature at point A. In the said Inquiry Report, PW22 had inter alia mentioned as under: "During enquiry it conformed that only 118 Trips out of 647 Trips were actually made by the trucks and owners of the 9 Trucks which have been shown 381 Trips stated that their Trucks have not made any trips and they produced documentary proof in support of their version. Other 7 Truck's owner could not be found out at the address received from Transport Authority, how ever local enquiry revealed that these seven truck are not being operated from that address. These 7 truck have been shown 109 Trip."
C.C. No. 35/12 Page No. 18 of 37
17. As per the case of the accused persons, the work of desilting and transportation of the garbage from the Najafgarh drain to the Sanitary Landfill Site at Bhalswa have been duly made by 647 Trips as per the transportation receipts as available on the record and the entries in this respect have also been made in the Silt Register Ex.PW8/1 and Ex.PW8/2 and relevant measurement in this respect has also been made in the Measurement Book as per Pages 82 to 91 of Measurement Book No.834 exhibited as Ex.PW2/A1 to A10 (colly.) and pages 43 to 62 of Measurement Book No.874 Ex.PW2/B1 to B20 (colly.). Therefore, the question having significant bearing on the fate of this case arises as to whether the entries as made in the said Measurement Books, Silt Registers and Transportation Receipts are forged?
18. Section 463 of IPC defines forgery as under: "[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." C.C. No. 35/12 Page No. 19 of 37
19. Section 468 IPC defines forgery for the purpose of cheating as under: "Forgery for purpose of cheating. Whoever commits forgery, intending that the {document or electronic record forged} shall be used for the purpose of cheating, shall be punished with imprisonment of either description a term which may extend to seven years, and shall also be liable to fine."
20. Section 420 IPC defines cheating and dishonestly inducing delivery of property: "Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
C.C. No. 35/12 Page No. 20 of 37
21. Section 120A IPC defines criminal conspiracy as under: "When two or more persons agree to do, or cause to be done, (1) an illegal act, or (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."
22. From the perusal of the record, it is reflected that PW1/Mr.Faridu Zamal Khan has deposed that he was working as Manager of M/s Pahwa Brokers and Oil Tanker No.DL 1GA 2243 was registered in the name of Vikrant Pahwa, owner of M/s Pahwa Brokers and said Oil Tanker was plying on the route of Calcutta, Nepal, Urai on 24th May, 9th June, 11th June and 25th June, 2000 or between this period said Tanker was not in Delhi. Said PW1 has also deposed that said Tanker was not engaged in lifting sand with Civil DivisionII, Flood Control Department. However, Transportation Receipts No.137884 as per Page No.947 indicate the transportation of C.C. No. 35/12 Page No. 21 of 37 garbage Receipts through said vehicle DL 1GA 2243 on dated 11.6.2000 and bear signature of accused Jagdish at point Q138 and signature of accused Ausat Ali at the point of stamping of receipt. Certainly the malba/garbage cannot have been transported in Oil Tanker and therefore, the said Transport Receipt found to be a forged one.
23. Similarly, PW3/Chotu Ram deposed that in the year 2000 he was having a JCB Machine and several Trucks were associated with his JCB and he had given the Trip Sheets regarding the Trips of the Truck attached with him and said Trip Sheets are Ex.PW3/A1 to PW3/A10 which bears his signature on back of all the Sheets at point A, which were seized by the IO vide Seizure Memo Ex.PW3/A. Said Trip Sheets Ex.PW3/A1 to A10 clearly reflect the date wise number of Trips as performed by Truck No. DL 1GA 5352, DL 1GA 5354, DL 1GA 9456 and HR 46 A 2244 in transportation from excavation site to disposal site. Considering the detailed as found mentioned in the said Trip Sheets and even it is not the case of the accused persons that said PW3/Chotu Ram was having any prior enmity with them, I do not see any reason to disbelieve the contents of said Trip Sheets Ex.PW3/A1 to A10. The content of said Trip Sheets clearly falsify C.C. No. 35/12 Page No. 22 of 37 the Transport Receipts relating to Truck No. DL 1GA 5352 for 51 Trips as per Transport Receipts Page No. 3, 5, 57, 59, 61, 139, 157, 159, 215, 217, 251, 253, 295, 303, 377, 421, 423, 501, 503, 505, 507, 557, 586, 615, 617, 619, 681, 683, 685, 687, 689, 767, 769, 811, 813, 815, 873, 931, 933, 1043, 1045, 1047, 1113A, 1115, 1117, 1189, 1213, 1215, 1233, 1275, 1277, Transport Receipts relating to Truck No. DL 1GA 5354 for 50 Trips as per Transport Receipts Page No. 1, 7, 73, 75, 77, 135, 137, 141, 201, 245, 247, 249, 299, 301, 383, 411, 413, 499, 509, 511, 513, 559, 579, 611, 613, 621, 673, 675, 677, 679, 759, 761, 763, 827, 829, 857, 859, 957, 959, 1049, 1051, 1097, 1099, 1101, 1103, 1221, 1225, 1241, 1265, 1267, Transport Receipts relating to Truck No. DL 1GA 9456 for 49 Trips as per Transport Receipts Page No. 23, 25, 89, 91, 93, 187, 189, 221, 259, 261, 263, 309, 365, 399, 401, 449, 451, 453, 555, 591, 627, 629, 631, 655, 699, 701, 703, 705, 785, 787, 837, 839, 841, 889, 891, 971, 973, 975, 1001, 1131, 1133, 1135, 1137, 1139, 1193, 1195, 1197, 1247, 1249 and Transport Receipts relating to Truck No. HR 46 A 2244 for 40 Trips as per Transport Receipts Page No. 27, 85, 99, 101, 169, 171, 191, 203, 231, 235, 237, 317, 319, 363, 403, 405, 455, 457, 459, 461, 561, 589, 633, 635, 637, 705, 707, 711, 713, 715, 789, 791, 817, 819, 831, 1199, 1201, 1251, 1253, 1255 through which the accused C.C. No. 35/12 Page No. 23 of 37 persons claimed to have got transported the garbage/malba from Najafgarh drain to Sanitary Landfill Site Bhalswa.
24. Similarly, PW7/Anil Garg has also deposed that he was running the business of Transport and was having two Trucks bearing No. HR 29B 7622 and HR 29B 8053 and another Truck bearing No.HR 47 4879 was registered in the name of his brother Sunil Garg. Said PW7 has also deposed that he had handed over there card regarding the work done by said Trucks during the period May and June 2000 as per Ex.PW7/A (Four Sheets) which is in his hand and bears his signature at point A on each Sheet and same were seized by the IO vide Seizure Memo Ex.PW7/B which bears his signature at point A. Said PW7 in his cross examination by Ld. Defence Counsel has deposed that he used to park his vehicles at Sector3, Rohini (Nahar Pur) and driver used to remain on the vehicles during night and he used to supervise the parking of the vehicles in the night at that place. He further deposed that he used to take the key of the vehicles while going to his house, so there is no question of drivers taking out the vehicles without his knowledge to any other place. He has further deposed that S.R.Sharma has never engaged his vehicle. Said PW7 has also deposed that name of his firm is M/s Garg Brothers. C.C. No. 35/12 Page No. 24 of 37 Considering the detailed as found mentioned in the said Trip Sheets Ex.PW7/A as provided by PW7 and even it is not the case of the accused persons that said PW7/Anil Garg was having any prior enmity with them, I do not see any reason to disbelieve the contents of said Trip Sheets Ex.PW7/A (Four Sheets). The contents of said Trip Sheets Ex.PW7/A clearly falsify the Transport Receipts relating to vehicle No. HR 47A 4879 for 2 Trips as per Transport Receipts Page No. 13 & 661, Truck No. HR 29 B7622 for 51 Trips as per Transport Receipts Page No. 11, 15, 55, 63, 65, 143, 145, 149, 219, 223, 243, 291, 293, 297, 381, 419, 429, 479, 481, 483, 485, 495, 563, 585, 605, 623, 663, 691, 693, 695, 753, 755, 757, 823, 825, 855, 861, 965, 967, 969, 1037, 1039, 1107, 1109, 1123, 1125, 1219, 1229, 1231, 1269, 1287 and vehicle No. HR 29B 8053 for 46 Trips as per Transport Receipts Page No. 19, 21, 87, 95, 97, 165, 167, 227, 233, 239, 307, 311, 313, 385, 425, 427, 487, 489, 491, 493, 567, 583, 607, 609, 665, 667, 669, 671, 765, 771, 807, 809, 869, 871, 939, 1063, 1065, 1111, 1113, 1119, 1121, 1223, 1227, 1279, 1281, 1284 through which the accused persons claimed to have got transported the garbage/malba from Najafgarh drain to Sanitary Landfill Site Bhalswa.
25. Similarly, PW10/Radhey Shyam has also deposed that he C.C. No. 35/12 Page No. 25 of 37 was running the business of Transport in the name and style of Shyam Transport at Gurgaon and he is the owner of Truck No.HR 38 1152 and said Truck is full Punjab body. He further deposed that his Truck used to carry chicken excreta from Gurgaon to Rajasthan. He has also deposed that he has handed over the goods receipts Ex.PW10/A and PW10/B to the IO vide Seizure Memo Ex.PW10/C which bears his signature at point A. Said PW10 in his cross examination by Ld. Addl.PP has deposed in this respect as under: "It is correct that my aforesaid truck was never sent for work to S.R.Sharma, contractor of Shalimar Bagh and my said truck was not ever used for mud and earth etc. and I was not knowing any contractor namely S.R.Sharma. It is correct that my aforesaid truck had gone with chicken excreta on 26.05.2000 from Gurgaon to Naya Baans and on 30.06.2000 from Uganya Gaon to distt. Jaipur and on 07.06.2000 to Jaipur and on 11.06.2000 from Gurgaon to Shahpur Town. It is correct that on 30.05.2000, my said truck had gone loaded with junk (kabada) from Sohna to Bhiwadi. Someone had given the number of my truck wrongly."
26. Considering the aforesaid deposition of PW10/Radhey Shyam and even it is not the case of the accused persons that said C.C. No. 35/12 Page No. 26 of 37 PW10/Radhey Shyam was having any prior enmity with them, I do not see any reason to disbelieve the deposition of said PW10. Said deposition of PW10 clearly falsify the Transport Receipts relating to vehicle No. HR 38 1152 for 47 Trips as per Transport Receipts Page No. 39, 41, 117, 119, 121, 123, 193, 195, 211, 281, 283, 347, 349, 351, 353, 391, 393, 441, 443, 537, 539, 541, 543, 551, 587, 593, 639, 641, 717, 719, 721, 723, 725, 775, 777, 843, 897, 899, 901, 981, 983, 1003, 1005, 1143, 1145, 1147, 1149 through which the accused persons claimed to have got transported the garbage/malba from Najafgarh drain to Sanitary Landfill Site Bhalswa.
27. PW12/Samrat Goel has deposed that he has been running a shop of auto parts and had never owned any Truck bearing registration No.HR 38 1881 and he do not know any person by name of Satya Narain Parikh nor any such person ever resided at the address of his shop. Considering the aforesaid deposition of PW12/Samrat Goel and even it is not the case of the accused persons that said PW12/Samrat Goel was having any prior enmity with them, I do not see any reason to disbelieve the deposition of said PW12 and said deposition of PW12 clearly falsify the Transport Receipts relating to vehicle No. HR 38 1881 for 37 Trips as per Transport C.C. No. 35/12 Page No. 27 of 37 Receipts Page No. 43, 45, 129, 131, 133, 197, 199, 213, 285, 287, 355, 357, 359, 361, 395, 397, 445, 447, 545, 547, 549, 553, 569, 643, 727, 729, 731, 779, 781, 803, 805, 1041, 1203, 1205, 1207, 1267, 1269 through which the accused persons claimed to have got transported the garbage/malba from Najafgarh drain to Sanitary Landfill Site Bhalswa.
28. Similarly, PW20A/Abdul Razak has deposed that in the year 200001 he was doing the business of Transport and he did not have any Truck bearing No. DL 1GA 0158. He further deposed that he had never provided said Truck to S.R.Sharma and he do not know any contractor by name of S.R.Sharma. Considering the aforesaid deposition of PW20A/Abdul Razak and even it is not the case of the accused persons that said PW20A/Abdul Razak was having any prior enmity with them, I do not see any reason to disbelieve the deposition of said PW20A and said deposition of PW20A clearly falsify the Transport Receipts relating to vehicle No.DL 1GA 0158 for 8 Trips as per Transport Receipts Page No. 833, 835, 877, 883, 929, 949, 963, 1191 through which the accused persons claimed to have got transported the garbage/malba from Najafgarh drain to Sanitary Landfill Site Bhalswa.
C.C. No. 35/12 Page No. 28 of 37
29. In view of the aforesaid material as available on the record, it is established that no garbage/malba have been transported from Najafgarh drain nor received at Sanitary Landfill site Bhalswa during period MayJune, 2000 through said Truck No. DL 1GA 2243, Truck No. DL 1GA 5352, Truck No. DL 1GA 5354, Truck No. DL 1GA 9456, Truck No. HR 46 A 2244, Truck No. HR 47A 4879, Truck No. HR 29 B 7622, Truck No. HR 29B 8053, Truck No. DL 1GA 0158, Truck No. HR 38 1152, Truck No. HR 38 1881. Therefore, it is established that the entries at Page No. 82 to 91 of Measurement Book No. 834 which are Ex.PW2/A1 to A10 (colly.) and pages 43 to 62 of Measurement Book No.874 which are Ex.PW2/B1 to B20 (colly.) which also found mention of aforesaid Trucks regarding transport of the garbage from Najafgarh drain to Sanitary Landfill site at Bhalswa are forged documents and found bear signature of accused R.K.Shaurya/J.E. and accused Deepak Bhatnagar/A.E. at various points as said entries in the Measurement Book have been made by accused R.K.Shaurya/J.E. and accused Deepak Bhatnagar/A.E., has signed in token of having Test check the entries therein. Similarly, as the Silt Registers Ex.PW8/1 and Ex.PW8/2 found contain entries showing Receipt of the garbage/malba from Najafgarh drain at C.C. No. 35/12 Page No. 29 of 37 Landfilling site Bhalswa through the aforesaid Trucks which were never received at the said site and the Transport Receipts showing the receipt of the garbage/malba from Najafgarh drain at Landfilling Site Bhalswa through said Trucks No. DL 1GA 2243 for 2 Trips as per Transport Receipts Page No. 947 & 1027, Trucks No. DL 1GA 5352 for 51 Trips as per Transport Receipts Page No. 3, 5, 57, 59, 61, 139, 157, 159, 215, 217, 251, 253, 295, 303, 377, 421, 423, 501, 503, 505, 507, 557, 586, 615, 617, 619, 681, 683, 685, 687, 689, 767, 769, 811, 813, 815, 873, 931, 933, 1043, 1045, 1047, 1113A, 1115, 1117, 1189, 1213, 1215, 1233, 1275, 1277, Trucks No. DL 1GA 5354 for 50 Trips as per Transport Receipts Page No. 1, 7, 73, 75, 77, 135, 137, 141, 201, 245, 247, 249, 299, 301, 383, 411, 413, 499, 509, 511, 513, 559, 579, 611, 613, 621, 673, 675, 677, 679, 759, 761, 763, 827, 829, 857, 859, 957, 959, 1049, 1051, 1097, 1099, 1101, 1103, 1221, 1225, 1241, 1265, 1267, Trucks No. DL 1GA 9456 for 49 Trips as per Transport Receipts Page No. 23, 25, 89, 91, 93, 187, 189, 221, 259, 261, 263, 309, 365, 399, 401, 449, 451, 453, 555, 591, 627, 629, 631, 655, 699, 701, 703, 705, 785, 787, 837, 839, 841, 889, 891, 971, 973, 975, 1001, 1131, 1133, 1135, 1137, 1139, 1193, 1195, 1197, 1247, 1249, Trucks No. HR 46A 2244 for 40 Trips as per Transport Receipts Page No. 27, 85, 99, 101, 169, 171, 191, 203, 231, 235, 237, C.C. No. 35/12 Page No. 30 of 37 317, 319, 363, 403, 405, 455, 457, 459, 461, 561, 589, 633, 635, 637, 705, 707, 711, 713, 715, 789, 791, 817, 819, 831, 1199, 1201, 1251, 1253, 1255, Trucks No. HR 47A 4879 for 2 Trips as per Transport Receipts Page No. 13 & 661, Trucks No. HR 29B 7622 for 51 Trips as per Transport Receipts Page No. 11, 15, 55, 63, 65, 143, 145, 149, 219, 223, 243, 291, 293, 297, 381, 419, 429, 479, 481, 483, 485, 495, 563, 585, 605, 623, 663, 691, 693, 695, 753, 755, 757, 823, 825, 855, 861, 965, 967, 969, 1037, 1039, 1107, 1109, 1123, 1125, 1219, 1229, 1231, 1269, 1287, Trucks No. HR 29B 8053 for 46 Trips as per Transport Receipts Page No. 19, 21, 87, 95, 97, 165, 167, 227, 233, 239, 307, 311, 313, 385, 425, 427, 487, 489, 491, 493, 567, 583, 607, 609, 665, 667, 669, 671, 765, 771, 807, 809, 869, 871, 939, 1063, 1065, 1111, 1113, 1119, 1121, 1223, 1227, 1279, 1281, 1284, Trucks No. HR 38 1152 for 47 Trips as per Transport Receipts Page No. 39, 41, 117, 119, 121, 123, 193, 195, 211, 281, 283, 347, 349, 351, 353, 391, 393, 441, 443, 537, 539, 541, 543, 551, 587, 593, 639, 641, 717, 719, 721, 723, 725, 775, 777, 843, 897, 899, 901, 981, 983, 1003, 1005, 1143, 1145, 1147, 1149, Trucks No. HR 38 1881 for 37 Trips as per Transport Receipts Page No. 43, 45, 129, 131, 133, 197, 199, 213, 285, 287, 355, 357, 359, 361, 395, 397, 445, 447, 545, 547, 549, 553, 569, 643, 727, 729, 731, 779, 781, 803, 805, 1041, 1203, 1205, C.C. No. 35/12 Page No. 31 of 37 1207, 1267, 1269, Trucks No. DL 1GA 0158 for 8 Trips as per Transport Receipts Page No. 833, 835, 877, 883, 929, 949, 963, 1191 are forged documents and said Receipts found bear signature of R.K.Shaurya/J.E. and accused Jagdish/Beldar on the left side and of accused Ausat Ali/ Ram Chander/Suraj Bhan/Keshav Das in token of receipt of malba/garbage and the factum regarding bearing of signature of said accused on the Transport Receipts is not disputed even by the said accused persons.
30. I do not find any force in the submission of Ld. Counsel for the accused persons that the accused persons are innocent and have performed their assigned duties bonafidely and were falsely implicated in this case. I also do not find any force in the submission of Sh. H.L.Chopra, Adv. Ld. Counsel for the accused S.D. Sharma that no Sanction U/S 197 of Cr.P.C. was obtained against this accused and therefore, this accused deserves to be acquitted on this count itself. I am of the considered view that the protection as granted U/S 197 Cr.P.C. cannot be used as a shield for commission of offence on the part of the public servant. Furthermore, the act of commission of offence as punishable U/S 420/468/471 IPC by entering into criminal conspiracy with other coaccused persons on the part of accused C.C. No. 35/12 Page No. 32 of 37 S.D.Sharma cannot be said to be act or purported act in discharge of official duty by accused S.D.Sharma and therefore, he cannot be entitled for protection U/S 197 Cr.P.C. and hence, this plea on the part of the Ld. Counsel for accused S.D.Sharma can be of no help for the accused S.D. Sharma. I am also of the considered view that the deposition of DWs cannot falsify the case of the prosecution specifically when ample material are available on record to establish the case as against the accused person. Furthermore, the deposition of DW2 Hasan Raza that he was working as Driver with Garg Brothers for about 2 years from January 2000 and was driving Truck No. HR 29B 7622 and had transported Soil to Bhalswa Landfill Site and facts that there was no electricity light at Bhalswa and source of light was candle and Helper used to tell last number of Truck etc. found falsified from the fact that all the Transport Receipts relating to said Truck No. HR 29B 7622 for 51 Trips as per Transport Receipts Page No. 11, 15, 55, 63, 65, 143, 145, 149, 219, 223, 243, 291, 293, 297, 381, 419, 429, 479, 481, 483, 485, 495, 563, 585, 605, 623, 663, 691, 693, 695, 753, 755, 757, 823, 825, 855, 861, 965, 967, 969, 1037, 1039, 1107, 1109, 1123, 1125, 1219, 1229, 1231, 1269, 1287 clearly found name of Driver as "Suresh" and not said DW2 Hasan Raza as claimed by him. So said deposition of DW2 is found falsified from C.C. No. 35/12 Page No. 33 of 37 the record itself.
31. In view of the aforesaid material as available on the record, it is reflected that all the accused persons have entered into criminal conspiracy in order to cheat the Irrigation and Flood Control Department, Govt. of NCT Delhi on account of transportation of garbage/malba from Najafgarh drain to Bhalswa Sanitary Landfill Site on the basis of Forged Transport Receipts and Forged entries in the Measurement Books and Forged entries in the Silt Registers maintained at Landfill Site Bhalswa and thereby using the said forged documents as genuine and therefore, all the accused persons can be validly held liable for offence punishable U/S 120B IPC r/w Section 420/468/471 IPC.
32. From the perusal of the record, it is also reflected that in pursuance of the Forged Transport Receipts of garbage/malba, false entries were made in the Silt Registers Ex.PW8/1 & Ex.PW8/2 by accused Ausat Ali, Ram Chander, Suraj Bhan and Keshav Das showing the Receipt of Silt at Bhalswa Landfill Site as shown in 529 Forged Receipts Ex.PW8/B1 to B529 as prepared by accused R.K.Shaurya and accused Jagdish and false Running Account Bill C.C. No. 35/12 Page No. 34 of 37 Ex.PW2/D1 which is signed by accused Deepak Bhatnagar and accused S.R.Sharma, and Test Check Statement Ex.PW2/D2 which is signed by accused Deepak Bhatnagar/A.E. and R.K.Shaurya/J.E. and consequent Memo of Payments Ex.PW2/D4 which is signed by accused S.D.Sharma/E.E. at point A and B and accused S.R.Sharma/Contractor at point C, I have no hesitation to safely conclude that all the accused persons by virtue of said acts have caused unlawful loss to the Irrigation and Flood Control Department of NCT of Delhi to the tune of Rs.4,45,252/ which was sanctioned by accused S.D. Sharma/E.E. on 13.6.2000 and received by accused S.R.Sharma on 13.6.2000 vide cheque No.584287 dated 13.6.2000 on the basis of false documents and therefore, all the 9 accused can be validly held liable for the offence punishable U/S 420 IPC.
33. In view of the aforesaid material as available on record, it is also reflected that as accused Deepak Bhatnagar and R.K.Shaurya have prepared false Running Account Bill Ex.PW2/D1 in favour of coaccused S.R.Sharma/Contractor and said Bill was signed by accused S.R.Sharma as well as accused Deepak Bhatnagar and as accused Deepak Bhatnagar and R.K.Shaurya prepared false Test Check Statement Ex.PW2/D2 in respect of the aforesaid Running C.C. No. 35/12 Page No. 35 of 37 Account Bill and accused R.K.Shaurya and accused Jagdish prepared Forged Transport Receipts showing transportation of garbage/malba from Najafgarh drain to Landfill Bhalswa in 529 Trips in various Trucks whereas no such Trips were made and accused Ausat Ali, Ram Chander, Suraj Bhan and Keshav Das prepared false Silt Registers Ex.PW8/1 and PW8/2 and made false entries therein and forgery was committed by them for the purpose of cheating to Irrigation and Flood Control Department, Govt. of NCT Delhi and as these documents were used fraudulently and dishonestly as genuine and therefore, all these 9 accused can be validly held liable for offence punishable U/S 468 r/w Section 471 IPC.
34. In so far as Section 13(1)(d) of the Act is concerned, its essential ingredients are:
(i) that the accused should have been a public servant;
(ii) that accused should have used corrupt or illegal means or otherwise abused his position as such public servant, and
(iii) that accused should have obtained a valuable thing or pecuniary advantage for himself or for any other person.
Since there is nothing on record that the accused no. 1 to 8 C.C. No. 35/12 Page No. 36 of 37 who are public servants have obtained any valuable thing or pecuniary advantage for themselves and as one of the essential ingredients of Section 13 (1) (d) of Prevention of Corruption Act, is found missing therefore, the accused No.1 to 8 who are public servants, cannot be held liable for offence U/S 13(1)(d) of Prevention of Corruption Act, 1988.
35. The net result of the aforesaid discussion is that all the 9 accused namely S.D.Sharma, Deepak Bhatnagar, R.K.Shaurya, Jagdish, Ausat Ali, Suraj Bhan, Ram Chander, Keshav Das and S.R.Sharma are found guilty for offence punishable U/S 120B IPC r/w Section 420/468/471 IPC and U/S 420 IPC and U/S 468 r/w Section 471 IPC and are convicted accordingly.
Let all these 9 accused persons be heard separately on the point of sentence.
Announced in the open court on this 5th day of May, 2012 (B.R. Kedia) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC,Delhi C.C. No. 35/12 Page No. 37 of 37