Delhi District Court
Central Bureau Of vs . (1) Suresh Chand Aggarwal on 2 September, 2015
1
IN THE COURT OF BHUPESH KUMAR,
SPECIAL JUDGE (PC ACT) CBI01,
SAKET COURTS, NEW DELHI
CC NO.1/15
Unique case ID No.02046R0000502015
Central Bureau of Vs. (1) Suresh Chand Aggarwal
Investigation JE in Delhi Jal Board,
S/o late Shri Ram Kishan,
R/o C4/22, First Floor,
Near Hauz Khas,
SDA, New Delhi16.
(2) Deepak Kumar
S/o Shri Dharamveer Singh
Contractor and active partner of
M/s Nitin Enterprises,
C10, Sector19, Rohini, Delhi.
R/o D115, Rajiv Nagar,
Opp.Sector 22,
Rohini, Delhi.110085
RC No. : 28(A)/2011.ACB/N.D.
U/Sec : Sec 13(2) r/w 13(1)(d) of PC Act, 1988,
420 IPC, 468 IPC, 471 IPC and 477A IPC
Date of Committal : 02.01.2015
CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar
CC No.01/15 Spl.Judge (PC Act) CBI01, Saket
02.09.2015
2
Arguments heard on : 18.08.2015
Date of Decision : 02.09.2015
Appearances
Sh.Naveen Giri, Ld. PP for CBI.
Sh.Mohd.Qamar Ali, ld. Counsel for A1 Suresh Chand Aggarwal
Sh.R.C.Tiwari, Ld.counsel for A2, Deepak Kumar
JUDGMENT
1.0 Brief facts of the matter are that on 14.11.2011 on receipt of reliable source information a preliminary inquiry bearing no. PE A1/2011/A/0010 was registered by ACB, CBI against unknown officials of Delhi Jal Board (DJB) and six private contractors including M/s Nitin Enterprises, on the ground that during 2006 to 2010, DJB had got executed work of installation of tubewells for drinking water at different places within south I Division through private contractors including M/s Nitin Enterprises after inviting tenders. As per contract agreement the contractors were required to use slotted pipe Johnson make in tubewells. But substandard pipes which were 45 times cheaper than Johnson pipes were used. Thereafter, contractor had furnished bills of purchase of Johnson pipes from M/s Bharti Water Pvt Ltd., the sole authorized distributor of Johnson pipes. The Bills furnished by the contractor were duly certified and passed by the officials of SouthI Division of DJB.
The inquiry disclosed that South I division had awarded contracts CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 3 bearing CA No.78/0708, 103/0708, 111/0708, 122/0708 to M/s Nitin Enterprises through its representative Sh.Deepak Kumar. As per terms and conditions of contract, the contractor was required to use slotted pipes of Johnson make in the tubewell. However, the contractor submitted fake bills of purported reportedly purchased from Bharti Water Pvt. Ltd. and payments were released to him by officials of DJB. On further inquiry it was revealed that M/s Bharti Water Pvt. Ltd. has not supplied any material to M/s Nitin Enterprises against the invoices submitted by the contractor with the DJB and M/s Bharti Water Pvt. Ltd. against said invoice has issued invoice no.BW/247/200708 date 29.12.2007 in the name of XEN, BW/S Sanitation Divions no.2 Amritsar. The Invoice No.BW 2990708 dated 12.3.2008 was issued in the name of M/s Sony Drilling Engineers, Jammu. Since the bill submitted by contractor of M/s Bharti Water Pvt. Ltd. was not genuine which shows that the contractor has not purchased and used the Johnson pipes in the tubewell. However, the contractor has received the payment on the basis of forged bills duly passed and certified by officials of DJB which reflect that the contractor and officers of DJB entered into criminal conspiracy and in furtherance of said conspiracy, the cotnractor has successfully installed pipes other than Johnson pipes and claimed the payment on the basis of false/forged bills showing purchase of Johnson pipes. Further it was revealed that the cost of Johnson pipes was Rs.9,85,478/ of total cost of contract amount of Rs. 43,65,677/ in all the above contract agreements (CA). The JE was supposed CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 4 to check 100% work of the project and during relevant period i.e. 200708 Sh.Suresh Chand Agarwal and Sh.V.K.Gupta were posted as Junior Engineers for said projects. These facts disclose commission of offence u/S 120B r/w Section 420/468/471 IPC and Section 13(2) r/w Section 13(1)(b) of PC Act and accordingly RC No.28A/2011 was registered against Sh.Suresh Chand Agarwal and Sh.V.K.Gupta, the then JEs DJB, South I Division and Sh.Deepak Kumar of M/s Nitin Enterprises. Investigation of the matter was entrusted to Insp.Manish Kumar Upadhyaya of ACB, CBI.
During investigation, it was found that during 20062010, the DJB for the installation of tubewells in South I Division DJB the tenders were floated through NIT. The tenders were awarded to M/s Nitin Enterprises who quoted the lowest price. The four contract agreements bearing CA Nos. 78/200708, 103/200708, 111/200708, 122/200708 were executed between Executive Engineer of DJB and M/s Nitin Enterprises. As per terms of the contract, the contractor was required to use Johnson Pipes. For all the four contracts, nine tubewells were installed. Four tubewells were installed for CA no.78/200708. One of the tubewell installed at Devli Band Road, Devli Bus Stand in view of CA No.78/200708, was inspected by expert from NGRI and during inspection it was observed that the Johnson make pipes were not used in the said tubewell. But for said project the contractor has claimed the payment on the basis of the bill/invoice no. BW/247/200708 dated 1.8.2007 by mentioning that vide said invoice 280 meter Johnson pipes were purchased CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 5 from M/s Bharti Water Pvt. Ltd. The said invoice has been signed by Sh.Suresh Chand Agarwal JE and Sh. K.N.Dhyani, JE. But the bill was found to be forged as stated above. For the execution of the work of installation/re boring of tubewell in question at Devli Village, Sh. Suresh Chand Agarwal, JE was responsible.
As per strata chart, total length of tubewell was 194 meter deep in which 75 meter Johnson pipe is shown to have been used from 120.15 meter onwards. During inspection by expert from NGRI, this tubewell could be inspected upto 169.5 meter but no Johnson pipe has been observed from depth of 86.5 meter till 150 meter. The cost of Johnson pipe was Rs.1669/ per meter (by further enhancing/adding 46%), and the total cost of 75 meter pipe comes to Rs.1,82,775/. The amount claimed by M/s Nitin Enterprises from the DJB was transferred on 24.10.2007 in the bank account jointly maintained by Ms. Kavita Yadav and Mr.Deepak Kumar in State Bank of Bikaner and Jaipur.
The investigation further revealed that the Executive Engineer check the entries in the 'measurement books' (MB) and prepare test check report based on the checking made by him in respect of MB for the items costing upto 10% of total work. The Assistant Engineer (AE) was responsible for 50% checking of work. At the time of execution work, JE remains engineer incharge and was responsible for 100% checking of the work. Accordingly, Sh. Anil Kumar Sharma, Executive Engineers checked 10% of CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 6 the work, Sh. K.N. Dhayani, AE checked 50% of the work and Sh.Suresh Chand Agarwal, checked 100% of the work. The 10% checking by the Executive Engineer and 50% checking by AE, does not include lowering/installation of Johnson Pipe. Whereas Sh. Suresh Chand Agarwal has done 100% checking of work which include lowering/installation of assembly of tubewell. The involvement of Sh.Anil Kumar Sharma Ex. Engineer and K.N.Dhyani, AE was not found in commission of any offence in the project. The total loss to the Government Exchequer due to act of Sh.Suresh Chand Agarwal, JE and contractor Sh.Deepak Kumar of M/s Nitin Enterprises was assessed to the tune of Rs. 1,82,755/. Sanction to prosecute Suresh Chand Agarwal was obtained from competent authority. After conclusion of the investigation chargeseet under 120B r/w Section 420/468/471 IPC and Section 13(2) r/w Section 13(1)(b) of PC Act filed against Sh.Suresh Chand Agarwal, JE and Sh.Deepak Kumar of M/s Nitin Enterprises.
CHARGE 2.0 Both the accused were summoned and were admitted to bail. After compliance of Section 207 Cr.P.C. charge under Section120B read with Section 420, 468, 471 and 477A IPC and Section 13(2) read with Section 13(1)(d) of P.C. Act, 1988 was framed against both the accused by my learned predecessor of the Court on 19.02.2015 to which both accused pleaded not guilty and claimed trial.
CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar
CC No.01/15 Spl.Judge (PC Act) CBI01, Saket
02.09.2015
7
PROSECUTION EVIDENCE
3.0 In support of its case, the prosecution has examined seventeen
witnesses.
3.1 PW1 is Shri S. Naiyer Ali Najmi, Member of Administration, Delhi
Jal Board. He has stated to the effact that in the month of August, 2015, he was posted as member (Administration), Delhi Jal Board. On receipt of request from CBI along with copy of FIR, chargesheet and other documents, he has accorded sanction to prosecute Shri Suresh Chand Aggarwal vide sanction order Ex.PW1/A(D16) which bears his signature at point 'A' on all the pages.
During crossexamination by ld. Counsel for accused Suresh Chand Aggarwal, he has deposed that he did his graduation in Sociology. He has no technical knowledge with regard to borewell. He did not supervise any work of borewell nor visited the site. He has gone through he CPWD Manual/Specification regarding responsibility of the officials for execution of borewell. It was suggested to the witness that the entire responsibility for work for execution of borewell was of XEN only, but the suggestion was denied. However, the witness voluntarily submitted that it was collective responsibility of all the engineering staff. The witness also denied the suggestion that he had merely signed the draft sanction order prepared by the CBI and accorded the sanction to CBI without application of mind. The CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 8 witness has further stated that he has not gone through the Measurement Book (MB) prior to according the sanction. He has not accorded any sanction to prosecute Mr. Khare and Executive Engineer Shri Anil Kumar Sharma. It was suggested to the witness that he has not given sanction to prosecute since the Johnson pipe was used in the present borewell. He has further deposed that the department has not sought second expert opinion apart from that of Dr. D.V. Reddy. It was also suggested to the witness that he was not competent to grant sanction but the suggestion was denied.
During crossexamination on behalf of accused no. 2 Deepak Kumar, the witness stated that in his sanction order, the bill/invoice of purchase of Johnson pipe submitted by the contractor has been proved to be fake on the basis of the enquiry conducted by the CBI. He further submitted that he has not conducted any personal enquiry regarding purchase of Johnson pipe. The witness has denied the suggestion that he has accorded sanction without application of mind in mechanical manner at the behest of the CBI. 3.2 PW2 is Shri Sanjay Gupta, Joint Director (Vigilance). He has stated that he had forwarded the sanction for prosecution of JE Suresh Chand Aggarwal accorded by Shri Najmi vide forwarding letter dated 29.08.2014 Ex.PW2/A which bears his signatures at point 'A'. The witness was not cross examined by any of the accused though the opportunity was given.
3.3 PW3 is Shri Satya Prakash and stated that in the year 2006 to April,
CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar
CC No.01/15 Spl.Judge (PC Act) CBI01, Saket
02.09.2015
9
2010, he was posted as an Accountant in the Vigilance Section of Delhi Jal Board in the office of SE South. The accountant has the power to concur the estimate of work upto Rs.10 Lakhs and to sign on the pay order upto any limit including establishment penalty. The estimate is prepared by JE, AE and sanctioned by Executive Engineer upto Rs.10 Lakhs and send it to accounts section for booking budget liability and concurrence. After approval/concurrence of estimate, the tender is called by Executive Engineer and the firm participate and quote their rates. Among the participants who quoted lowest rate is L1 is accepted by the Executive Engineer and the file is sent for concurrence and if it is found that the rates are within the justification, the concurrence is given and the file is returned to division. The Executive Engineer issued work order giving specific time for completion of work. The work is executed by the engineering staff and they make entry of work executed in the measurement book. After completion of the work, they record a certificate in the measurement book that the work has been completed as per specification and measurement is duly accepted by the contractor and they sign measurement book. The completion report is also prepared by engineering staff and duly approved by the competent authority i.e. Executive Engineer or Superintendent Engineer. After these formalities, the departmental bill forms prepared by the JE on the basis of entry recorded in measurement book duly signed by JE, AE, XEN and contractor and the same is sent to the divisional account section for payment. The junior CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 10 accountant checks each entry of the bill according to Bill of Quantity (BOQ) and if it is correct, he record pay order and signed it and signatures of Executive Engineer also obtained. Then it is sent to the accountant for his checking and if the accountant found it to be correct, he after deduction of government levies sign the pay order. Thereafter, demand for allocation of funds is sent to Headquarters, Budget and Accounts Section and then it is cleared from the said section, EFT is prepared by Junior Engineer and signed by Executive Engineer and Assistant Chief Accountant.
The witness has further submitted that prior to 200708, their department carried out some work of boring of tubewells on demand of the public. The agreement file (D3) executed between DJB and M/s Nitin Enterprises in regard to contract no. 78/200708 was shown to the witness and thereafter he submitted that the file bears signatures of ZE, XEN, SE and Junior Accountant. Further the witness has brought on record the tender form as Ex.PW3/A and the work file of CA No. 78/200708 (D4) as Ex.PW3/B. In this respect, he had further submitted that it contains the notesheet (four pages) and submitted that each page bears the signatures of ZE, XEN, Junior Accountant, Draftsman, SE, himself and Assistant Chief Accountant at points 'A' to 'J' respectively. After going through page 124 of D4, the witness has submitted that it is the estimate of the contract which bears signatures of SE at point 'A', ZE at point 'B', JE at point 'C' and Junior Accountant at point 'D'. The bill form of CA No. 78/200708 (D2) was also brought on record by this CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 11 witness as Ex.PW3/C and further submitted that it was prepared by JE bears the signatures of JE, ZE, XEN and contractor at points 'A' to 'D' respectively. It is further deposed that the test check report has been signed by ZE, XEN at points 'A' and 'B' respectively. He has further stated that three strata charts submitted by M/s Nitin Enterprises bear signatures of JE, AE, XEN and contractor at points 'A' to 'D' respectively. The bill form containing details of the payment made to M/s Nitin Enterprises amounting to Rs.14,53,080/ through pay order bears his signatures at point 'A' and of Junior Accountant at point 'B' and of XEN at point 'C'. The Measurement Book D1 shown to the witness was also brought on record by him as Ex.PW3/D and the witness further submitted that the relevant entries from page no. 59 to 66 bears signatures of JE, ZE and XEN at points 'A' to 'C'. The witness has also identified the photocopy of tax retail invoice (D3) submitted by M/s Nitin Enterprises as Ex.PW3/E and identified the signatures of JE, ZE at points 'A' and 'B' respectively.
During crossexamination by Ld. counsel for accused no. 1, the witness has stated that the DJB follows the CPWD Manual and Specification for all its work including installation of tubewell. The department issued instructions and directions from time to time which are to be followed mandatorily for the work. The instructions order no. DJB/DIR(F&A)/2000/290 dated 06.09.2000 are of their department and the same are Ex.PW3/DA. After completion of the work and recording the CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 12 satisfaction of the work, the XEN send the bill for the payment to accounts department. Similarly, the accounts department after satisfying itself that all the bills/documents are in order, released the payment. If there is any deficiency in the document or any anomaly, the accounts department put up an objection and returns the same to XEN. In the present case, no objection was raised by the accounts department while releasing the payment. The day today entry in the Measurement Book is made after completion of day's work. In case a senior officer countersigned entry in Measurement Book, it means he had checked the entry. The witness was shown page no. 62 of the Measurement Book and he has submitted to the effact that the entry no. 7 bears signatures of ZE at point 'X'. The work order is binding upon the contractor as well as the XEN. If the work has not been executed as per the work order, the accounts department can raise an objection. The work order which is part of the agreement is checked before release of payment. The final bill, MB, completion report, purchase voucher and strata chart were submitted. The witness further submitted that it is not necessary that original purchase bills should be tendered and in this respect witness has submitted that if the photocopy of the bill has been signed by JE and AE, the same can also be accepted. It was suggested to the witness that as per Ex.PW3/DA, the accounts department was supposed to receive the original purchase bill but the witness has denied the suggestion. On this score the witness has voluntarily submitted that the instructions Ex.PW3/DA have become absolute CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 13 and new instructions dated 02.11.2004 have been issued by department which are Ex.PW3/DB. The accounts department is not duty bound to verify about the genuineness of the purchase voucher. The test check report Ex.PW3/D has been checked by XEN and JE. The witness further submitted it to be correct that item no. 7 has also been checked by JE. After release of the payment, the documents remained in division under the supervision and control of XEN. As per his information, the purchase voucher Ex.PW3/E was not verified by the accounts department.
During crossexamination on behalf of Deepak accused no. 2, it has been submitted by the witness that the accounts department do not verify any document submitted by the contractor to JE, XEN and ZE and if these officials verify the documents or not, he cannot comment on it. The accounts department do not sign the bills and supporting documents filed along with it. The accounts department releases the payment on the basis of the completion report duly signed by the responsible officials and the bills with supporting documents duly verified by them. The responsibilities of all concerned that of accounts department and XEN are different. The contractor is accountable to the XEN with whom he signs the contract.
3.4 PW4 Shri Devinder Kumar is the witness from the State Bank of Bikaner and Jaipur, Rohini and has submitted to the effact that the statement of account and photocopy of current account bearing no. 6100158235 of M/s CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 14 Nitin Enterprises were provided to CBI along with letter D14 i.e. Ex.PW4/A. The witness was not crossexamined by any of the accused persons though opportunity was given.
3.5 PW.5 is Shri Kamal Kumar Aggarwal, one of the Director of M/s Bharti Waters Private Limited. He has deposed that apart from him Mr. Sanjay Kumar Aggarwal is the other Director of the said company. The company is registered vide Certificate of Registration, Ex.PW.5/A. The witness further submitted to the effact that D7 is the productioncumreceipt memo dated 01.02.2013 and through this memo, he has handed over two original retail invoices to Shri Manish Kumar Upadhaya of CBI which bears his signatures at point A and to that of Shri Manish Kumar Upadhaya at point B. The memo has been brought on record as Ex.PW.5/B. The witness has further submitted that the invoices submitted along with this memo are ExPW5/C & Ex.PW5/D. The invoice, Ex.PW5/C was issued to issued to M/s Executive Engineer, W/S and Sanitation (RWS), Division No.2, Amritsar and invoice, Ex.PW.5/D had been issued to M/s Sony Drilling Engineering, opposite Jodhamal Public School, Sainik Colony, Jammu.
In regard to Invoice Ex.PW.3/E, it has been submitted that it is a fake invoice and has not been issued by their company. In respect to the difference between original and fake invoices, it has been submitted that there is difference of formats, colour and that the name of printing press not CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 15 mentioned on the fake invoice.
During crossexamination by Ld. Counsel for A1, the witness has submitted that he does not remember if the fake and genuine invoices were shown to him by the CBI and if he has pointed out the above differences between them. It has been further submitted that the original voucher was handed over to the purchaser and on Ex.PW.5/C, it has nowhere mentioned if the same was official copy. He has not brought any document to show that he had dealt with Executive Engineer of M/s W/S and Sanitation (RWS), Division No.2, Amritsar through Ex.PW.5/C. He cannot identify the signatures appearing on Ex.PW.5/D & Ex.PW.3/A. Earlier to September, 2004, M/s Bharti Waters was a partnership firm but he has not provided the details of unused stationery / invoices of erstwhile firm to CBI. It was suggested to the witness that M/s Nitin Enterprises made purchases from their company and Ex.PW.3/E was a genuine invoice which has been verified by the officials of DJB but the suggestion was denied.
During crossexamination by Ld. Counsel for A2, the witness has submitted that Ex.PW5/A does not bear any signatures on stamp of company. Their company was having business transactions with M/s Nitin Enterprises. They prepared separate ledger accounts of transactions with every party, they deal with but he do not remember if he had provided any ledger account of M/s Nitin Enterprises to CBI. The witness denied the suggestion that he had not provided the ledger account of M/s Nitin Enterprises to CBI because the CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 16 voucher, Ex.PW.3/E was part of the said account. The witness further submitted that he has also not handed over any copy of the stock register for the year 20072008 to CBI nor the CBI seized any computer record of his company regarding the sale during the year 200708. The witness further submitted that all the 18 invoices, Ex.PW.2/DD1 to Ex.PW.2/DD18 have been issued by their company and all the said invoices bear signatures of different persons of their company and he cannot tell their names (the said invoices were attached with another file titled as CBI vs A.P.Garg, received from Hon'ble High Court). It was suggested to the witness that Ex.PW.3/E, Ex.PW.2/DD3, 7, 9 & 15 bear signatures of Sh. Ravi Kumar but the suggestion was denied.
It has been further deposed by the witness that in normal course of business, they do not accept cash payments but receive the payments through drafts or cheques. He has further submitted that without referring to the ledger accounts, he cannot say if the payment in respect of Ex.PW.2/DD1 to DD18 and Ex.PW.3/E were received in cash. The witness denied the suggestion that he has received the payment in cash and in order to avoid tax, issued two different invoices of the same number. The particulars of the company, TIN number, phone number, terms and conditions, etc. as appearing on both the invoices are same. There was no particular employee who issued invoices in the year 200708 and on this aspect witness has submitted that whosoever sit on computer used to issue the invoice. The witness has denied the suggestion CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 17 that he is a stock witness of CBI and that Ex.PW.3/E was a genuine invoice. 3.6 PW.6 is Shri Anil Sharma, Executive Engineer, SouthI, Delhi Jal Board. He has deposed about the procedure adopted by DJB for floating tenders and execution of work. He has further stated that the work award No.CA 78/0708 was awarded and executed in his division. The estimate in this case was prepared by the then JE, Sh.Mukutmani and it was forwarded by AE Sh.K.N.Dhyani on 13.06.2007. 19 bidders participated in the tender proceedings and M/s Nitin Enterprises quoted the lowest rate. After receipt of tender, the tender clerk submitted the tender with details of tender to him and the tender case was marked to Draftsman for enclosing the justification of rate. Thereafter, the file was marked to Junior Accountant for her comments who has forwarded file to him after her comments and then the file was sent to SE, South after his recommendation and acceptance of rate. SE, South finally accepted the tender. Thereafter, the work order was duly issued. He has dealt with D4 Ex.PW3/B. The contract was signed by himon behalf of DJB with M/s Nitin Enterprises, proprietor Deepak Kumar in CA No. 78/0708. The contract bears his signatures at point A on beah page.
During his crossexamination by ld. Counsel for A1, the witness has submitted that in the instant case, he had approved the payment of contractor after being satisfied with the work. He sign on the documents after carefully examining them. He admitted that after he was satisfied with the work and documents, he forwarded the file to Accounts Department for scrutiny and CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 18 checking. The work order is also the part of the contract and is required to be complied with. The entry in the MB is made at the site during exeuction of the work. In case, he or the ZE had signed on the MB on the spot alongwith the ZE. The witness was shown page 62 entry 7 of the MB Ex.PW3/D, to which he affirms the signatures of ZE Sh.K.N.Dhyani on it. He has further submitted that it relates to supply of Johnson pipes at the site. He admitted to be correct that certificate given and appearing at page 66 of the MB Ex. PW3/D has been given by him after satisfaction of the work done according to satisfaction. His statement was recorded by the CBI. He admitted it to be correct that in the instant case, the work order no.114 dt.31.07.2007 provides that the XEN would check 50% of the work and ZE would check 100%. The Johnson pipe is made up of metal. He admitted to be correct that after a period of 2 to 4 yeas, it is not possible to verify the make and type of the pipe due to natural decay and wear and tear. The witness further submitted that in the instant case he himself, ZE and JE have discharged their duties with proper application and diligently and all of them made correct entries in various documents.
During crossexamination by Ld. Counsel for A2, the witness has submitted to the effect that as per the contract, the contractor was directly accountable to him. The JE on behalf of the department makes entries in the MB or elsewhere as and when the work of the borewell proceeds. He had also checked the work progress. After completion of work, the contractor hands CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 19 over to the department the strata chart, purchase vouchers, copy of engineering certificate etc. which are forwarded to Accounts Department. The strata chart Ex.PW3/C mentions the quantity of Johnson pipe used and has been signed by him.
3.7 PW.7 is Ms. Lekha Panwar, Head Draftsman, DJB. She has deposed that her job description was basically to check the estimates prepared by JE in respect of work relating to boring of tube wells and the further procedure adopted by DJB in respect to the job of draftsman. She can identify the estimate, if checked by her.
This witness was not crossexamined by A1 & A2, though the opportunity was granted.
3.8 PW.8 is Shri Himanshu Singla. He has stated to the effect that he is proprietor of M/s Copier Point situated at RU16, Pritam Pura, Delhi and basically engaged in the work of doing photocopy. In the year 2012, accused Deepak (correctly identified) came to his shop and told that since his bill book has been finished, he needs blank bill book for his customers. He gave him proforma of the bill. He scanned the proforma given to him and generated two blank invoice copies and handed over the same to accused. At this stage, a court question was put to this witness if he can tell the name of the firm / company, department to which the said bill pertain to but the witness replied that he did not remember the name of the firm or the company, however he CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 20 further deposed that the bills were coloured and were pertaining to a private firm.
The witness was shown D8, Ex.PW3/E and in this respect he has submitted that he had scanned the proforma of the same but it was blank. The witness was not crossexamined by A1, though the opportunity was granted.
During crossexamination by Ld. Counsel for A2, the witness has submitted to the effect that on a particular day in the year 2012, first Mr. Deepak came to his shop and asked him to scan a bill after removing the written portion on the bill. Thereafter, Sh. Deepak made payment to him and scanned bill was handed over to Deepak. After 1015 minutes, CBI officials came to his shop along with Deepak. He do not remember if Deepak had come to him and got prepared the scanned copy of bill, Ex.PW.3/E. At that stage, Ld. PP for CBI sought permission of the court to crossexamine this witness which was allowed and during crossexamination by Ld. PP for CBI, the witness submitted that he cannot say if Deepak came to his shop in the year 200708. It was suggested to the witness that he was deliberately denying the fact that Deepak had been coming to his shop since 200708 for getting scanned copies of the bills, but it was denied. He had not identified Deepak in the year 2012 when he came to his shop with CBI officials that he was the same person who had been coming to his shop since 200708 but the suggestion was denied and the witness further voluntarily submitted that he has seen him first time with CBI officials in the year 2012.
CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar
CC No.01/15 Spl.Judge (PC Act) CBI01, Saket
02.09.2015
21
3.9 PW.9 is Shri Shiv Kumar Bhardwaj, Superintendent Engineer,
South Circle, DJB, Jal Sadan, Lajpat NagarII, New Delhi, He has made
similar deposition to that of PW.3 in regard to the procedure adopted by DJB in respect to the preparing of estimate and sanctioning of job work, etc.. This witness was also cross examined at length by both accused persons. 3.10 PW.10 is Sh. Y.B Kaushik, ScientistD in Central Ground Water Board, Faridabad, Haryana. He has submitted that in the year 2012 he was posted at Chandigarh and at the instructions of Regional Director, he had joined the investigation with CBI and visited the site near Devli bus stand along with CBI, DJB team and Dr.. D.V. Reddy, Expert from NGRI. He has provided techincail support to Dr. D.V. Reddy regarding local hydro geological data of the area. He has further submitted that video recording was carried out by Dr. D.V. Reddy by putting bore hole camera into borewell in my presence.
During crossexamination by Ld. Counsel for A1, the witness submitted that Dr. D.V. Reddy had not operated palm top or camera to verify if there was any previous recording. He was not aware of the findings given by Dr. D.V. Reddy. There was a device attached to palm top and the camera through which the voice commands of Dr. D.V. Reddy were also recorded. He do not remember if Dr. D.V. Reddy had stated that there was no Johnson piper inside the borewell. He do not remember exactly but so far he recollect CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 22 no public person was joined to the investigation. Once the camera of Dr. D.V. Reddy was broke down but he do not remember if it was before or after their visit to Devli.
3.11 PW11 is Sh.Vikas Rathi, JE, Civil Vigilance Department. He has submitted to the effect that on 19.6.2012 inspection cum identification memo Ex.PW11/A (colly.) was prepared which bears his signature at point A on each page, signatures of V.K.Gupta, JE at point B and S.C.Aggarwal, JE (A1) at point C (the original of said document is in the file titled CBI vs. Anand Prakash Garg, received from the Hon'ble High Court). The witness furhter submited that again in the month of September, 2012, he visited the site alongwith Dr.D.V.Reddy, IO, JE S.C.Agarwal and others and in their presence Dr.D.V.Reddy inserted a bore hole camera in the borewell and had recorded the proceedings on his palm laptop which was attached with voice recorder on which Dr. Reddy gave voice command regarding the depth to which camera was traveling.
During crossexamination by ld. Counsel for A1, the witness submitted that the Dr. Reddy has not shown the camera or palmtop to them before commencing proceedings if it contained any previous recording or not. Dr. Reddy generally used one camera in all his proceedings at various sites. Dr. Reddy has visited 45 sites with them and had done the recording with same camera and palm top.
During crossexamination by ld. Counsel for A2, the CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 23 witness has submitted that in his presence, the IO had not recorded any statement of the officials of E&M Wing of DJB at the spot. 3.12 PW12 is Dr. D.V.Reddy, Sr.Scientist with National Geo Physical Research Institute, Hyderabad. He has deposed to the effect that he has done Ph.D. In Hydrogeology i.e. ground water studies in coastal aquifer of Pondicherry Region and has around 35 years experience in ground water studies. In the month of June, 2012, September 2012 and February or March, 2013, he has conducted inspection for CBI to check the borewell casing details. The object was to ascertain the type of the casing and its length. He has used bore hole underwater camera with graduated cable connected to palmtop. The camera was having facility of recording and scanning. Around the camera there was provisions of around 12 LED for focusing the light in the water. In the first inspection he had used the camera which could view upto 300 feet but due to certain problems second time he used the camera which could view upto 150 meter deep. The recording was done in analog signal. It had provisions to transfer the data to computer system. The portion around the camera can be seen if the water is clear, but if the water is dirty, the reception would not have been that clear. The camera had also facility of voice recording. In this procedure the camera is lowered in the borehole with the help of graduated cable and gradually scan the entire borehole. It was also simultaneously recorded and stored in an outside device (palmtop). The CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 24 recording was further used for further analyses and preparation of report. He has submitted the same to CBI alongwith entire report Ex. PW12/A (D13) and report pertaining to Devli village is Ex. PW12/A1. The witness further submitted that after scanning he was sent photocopy of Strta Chart by CBI showing what casing should have been in the borewell inspected by him. After comparing, he has submitted the detailed report to CBI. He has also prepared the CD and handed over the same to CBI. (At this stage, the CD was taken out from the judicial file (in unsealed condition) of titled CBI vs Anand Prakash Garg which has been received from the Hon'ble High Court). The original CD is already Ex.p1 in that case and copy of CD is Ex.PX. The CD contains two files RC 28 CA - 103 of 36.9 MB and RC 28 CA 103 repeat of 280 MB. The file was played in the Court and witness submitted that it was recording of first inspection where the camera went upto 169.95 meter and thereafter the camera could not travel further. The witness further submitted that during scan it was observed that upto 86.5 meter, 200 mm blank pipe was seen and thereafter the well diameter was changed to 200 to 150 mm. From 86.52 to 150 meter the depth of MS slotted pipe was observed. Thereafter, due to disturbance the details of the pipe was not clear. The detailed observation in this regard has been given in his report Ex. PW12/A. The coloured photographs of MS slotted pipe and Johnson pipe for better understanding were marked as Mark 12/B. He took the photographs MS slotte pipe and Johnson screen from the samples lying in the CBI office from his CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 25 own camera.
During crossexamination by A1 the witness submitted to the effect that it took around 30 minutes for recording the videon on 25.6.2012. More than 10 people went to the site alongwith IO. First they went to office of CBI. IO had not briefed him about the report to be prepared. When they reached the spot many local people gathered there. No public person joined the inspection proceedings. He does not have any degree in Civil Engineering and in this respect the witness has further submitted that he has done M.Sc. Technical in Hydrological and Well construction is part of it. He has never studied or supervise in boring or reboring in South Delhi and has not done any study in geology of south Delhi. The witness further submitted that metal pipe get corrosion after particular time. In the recording played today in the Court the corrosion in the pipe was well visible. In the present recording the rusting was well seen and it normally take place even within few months. There is difference between rusting and corrosion. In rusting there is deposit of iron oxide whereas in case of corrosion it is totally dissolve in water. The witness further submitted that Johnson pipe is also of metal. On this score the witness volunteered that because it is made up of special alloy, the rusting is very slow. The CD was prepared by him and handed over to CBI with his signature in unsealed condition. The rusting and corrosion in case of salty water is relatively fast. Even in case of salty water though the type and make of pipe may not be ascertained, but it can be CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 26 ascertained whether the pipe exist or not. He has not given any certificate to CBI regarding recording of proper functioning of camera used by him in the present case. CBI has not seized the camera, laptop and memory card from him. During the usage of camera, the video was recorded in palmtop and it was stored there only. He has not prepared any CD on spot. In the entire voice recording, he has not stated that Jhonson pipe did not exist. In this case he has sent the CD twice to CBI. The present recording was done in MP4 format as per specification of the instrument. He does not know if the recording done in MP4 format is editable. He has not handed over any certificate regarding his qualification to CBI nor has brought the same in the court. He has not done any computer or videography course. There was no sofrware in the camera which could measure the diameter of pipe. In this regard, the witness has volunteered that depth was measured with the help of graduated cable attached to the camera. The camera cannot measure the diameter of the pipe.
During cross examination on behalf of A2, the witness has deposed that he had inspected the borewell by inserting the camera twice but this fact has not been mentioned in his report, therefore, there are two files in the CD. On this score, the witness has volunteered that there was some recording problem during scan, hence, the same was repeated again. Photograph Mark 12/B have been prepared with the help of computer after the photographs were taken from the camera but he has not stated this fact in his report.
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3.13 PW13 is Shyambir Singh. He has deposed to the effect that on
10.12.2012 CBI has obtained signature of Deepak Kumar on some papers in his presence. The witness has identified specimen handwriting of Deepak Kumar at point C (S1 to S12) and brought the same on record as Ex. PW13/A (colly). The witness was not cross examined by A1 though the opportunity was granted.
During cross examination of witness by A2, the witness has stated to the effect that he has not brought any letter/authority letter given to him by his department to report to CBI nor he has deposited the said letter in the CBI office. Apart from the signature/writing of Deepak Kumar, encircled at point C , no signature of Deepak Kumar was taken anywhere else on Ex. PW13/A. The typed portion at point D on Ex. PW13/A (colly) was already typed. The witness further stated that he does not remember if the portion at point E on Ex. PW13/A was already typed or not before obtaining his signature. It was suggested to the witness that Deepak Kumar has put his signature on Ex. PW13/A in his presence to which the witness has denied. 3.14 PW14 is Sh.Deepak R Handa, HOD and Sr.Scientific Officer,Grade IcumAsst.Chemical Examiner, CFSL, New Delhi. This witness has been examined by CBI as handwritten expert. He has deposed to the effect that he has examined the questioned documents mark Q1 to Q5, Q1A to Q5A and and sample documents from S1 to S15 and after examining CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 28 the same he has prepared his report Ex.PW14/A bearing his signatures at point A. The specimen documents attributed to Deepak Kumar S1 to S12 already exhibited as Ex.PW13/A (colly) and the witness has brought on record the specimen documents as S13 to S15, Ex. PW14/B (colly). The witness has further submitted that he has given his opinion in his report as follows : "The gist of the report is handwriting evidence points to the writer of specimen English writing marked S1 to S15 attributed to Deepak kumar signing as Ravi Kumar being the person responsible for writing the questioned English signatures marked Q1 to Q3.
Interse comparison of the two sets of printed questioned matter marked as Q1A to Q3A and Q4A, Q5A show differences in their size, design and proportion of letters when they were subjected to microscopic, VSC and transmitted light examination on super imposition."
During cross examination by A1, the witness has stated that he is not aware of the doucments but he has examined the questioned signatures bearing mark Q2 & Q3 and has given his report that these disputed signatures tallies with the specimen signature S1 to S15.
During cross examination by A2, the witness has submitted that he did not prepare the enlarged photographs of the questioned documents. It was suggested to the witness that comparison on the basis of enlarged photographs is the easiest and the most authenticated / appropriate method, to which the witness has denied and further volunteered that he has examined the CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 29 doucments in original condition with various scientific aid. It was suggested to the witness that he has given false report, which was denied. 3.15 PW15 is Kapil Kumar. He is another witness in whose presence the specimen signatures of Deepak Kumar was obtained by the CBI. The document D11 already exhibited as Ex. PW14/B (colly) from S13 to S15 running into 3 pages were shown to the witness and after identifying the same, the witness has submitted that the same bear his signatures at point A on each page and of Mr.Manish Upadhyay at point B and writing/signature of Deepak Kumar at point C. The witness was not cross examined by A1 though the opportunity was given.
During cross examination by A2, the witness has submitted that Ex.PW14/B (colly) does not bear any date. He has further submitted that portion encircled at points D and E was not typed before obtaining his signatures. It was suggested to the witness that signatures of Deepak Kumar was not obtained in his presence and he has denied this suggestion. 3.16 PW16 is Mr. Praveen Kumar, Inspector, ACB CBI. He has submitted to the effect that in the month of October, 2014 the present matter was marked to him as earlier IO Inspector Manish Upadhyay was already conducted by Insp. Manish Upadhyay. However, after obtaining the sanction to prosecute has filed the chargesheet as Ex. PW1/A. During crossexamination by A1, the witness has CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 30 submitted that he has not gone through the preliminary enquiry report which was conducted before registration of FIR. He does not know if the Zonal Engineer has test check the use of Johnson make pipe because this report does bear the name and signature of Zonal Engineer. He has denied the suggestion that he has not gone through the doucments and the statement of the witness recorded in this case and filed the chargesheet in casual and routine manner.
During crossexamination by A2, the witness has submitted that he had not made any enquiries from Sh.Kamal Kumar Aggawal or that if Sh. Kamal Kumar Aggarwal was one of the Director of M/s Bharti Waters Pvt. Ltd. He had not collected any document from Mr. Kamal Kumar Aggarwal that he is the Sole Distributor of pipe make Johnson. He admitted to be correct that it is not mentioned in the main body of the chargesheet that the specimen signature of the accused Deepak Kumar had been obtained and sent to handwriting expert, CFSL. 3.17 PW17 is Inspector Manish Kumar Upadhyay, Investigating Officer of the matter. He has brought on record the FIR Ex. PW17/A and further deposed that investigation of the matter was carried out by him. The witness has further submitted that after he has received the report from CFSL and expert opinion from NGRI, he was transferred and the further investigation of the matter was handed over to Inspector Praveen Kumar. The witness has also submitted to the effect that D1 is the MB book (measurement CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 31 book) already Ex.PW3/D and on page no.66 of the MB, there entry depicting 50% checking by the AE and 10% checking by the Executive Engineer while 100% of the checking has been done by the JE concerned. Document D3 Ex. PW3/A is contract agreement executed between DJB and M/s Nitin Enterprises. Document D4 already Ex.PW3/B is a original work file pertaining to tubewell at Devli Village. The same is Ex.PW3/B. D6 is inspection memo Ex.PW11/A bears his signatures at point D. In respect to the inspection, he has further submitted that inspection was carried out in the presence of concerned officials of DJB and Vikas Rathi, JE Vigilance, DJB. Document D7 already Ex.PW5/B is productioncum receipt memo dated 1.2.2013 bears his signatures at point B and of Mr.Kamal Kumar Aggarwal at point A. On this score, witness has further submitted that vide this production cum receipt memo, he has collected two original invoices of M/s Bharti Waters Pvt.Ltd. Ex. PW5/C and Ex.PW5/D. The document D8 is bill submitted by M/s Nitin Enterprise claiming for use of Jhonson Pipe. D9 and D10 are forged bills already Ex.PW14/C (colly) used by Deepak Kumar. Ex. PW13/A and Ex.PW14/B (colly) are photocopies of handwriting/signatures of Deepak Kumar. Document Ex. PW14/A is the handwriting expert opinion. Ex PW12/A is report of Dr. D.V.Reddy, Sr. Principal Scientist, NGRI, Hyderabad. Ex. PW4/A is letter from State Bank of Bikaner and Jaipur, Rohini Branch addressed to him containing the photocopy of current account of M/s Nitin CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 32 Enterprises.
During crossexamination on behalf of A1, the witness has submitted that he has not received any complaint from DJB or any public prson during investigation of case regarding malfunctioning of the present tubewell. Dr.D.V.Reddy, Senior Principal Scientist, NGRI, Hyderabad was sent a request through SP, CBI,ACB, New Delhi to conduct examination of tubewells pertaining to DJB group cases registered by CBI. The proceedings of inspection took around two hours. The process of taking out the pipes from the borewell was in process when they reached there. He did not record the statement of any E&M (Electrical & Mechanical) staff. The camera was inserted inside the borewell and it was attached with a wire having length marking in it. He does not remember whether Dr.D.V.Reddy spoke about Johnson pipe not being there during the time of inspection. Dr.D.V.Reddy sent a CD containing the video recording alongwith his report to the CBI which was perused by him. He denied the suggestion that the CD was not sent to CFSL as it was tampered and manipulated in connivance with Dr.D.V.Reddy. He has examined AE and ZE, but their statement was not recorded. He has gone throught he test check report. He has further deposed that he has also checked the bill of quantity. He has not enquired from EE W/S & Sanitation (RWS) Division No.II, Amritsar or from M/s Sony Drilling Engineers, Opposite Jhodha Mal Public School, Jammu regarding Ex.PW5/C and Ex. PW5/D, respectively regarding purchase of items mentioned therein.
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He had examined accounts section officials that the payment vouchers were verified before the release of payment.
During crossexamination on behalf of A2, the witness has submitted that he enquired that whether any Ravi Kumar was working with M/s Bharti Waters Pvt. Ltd. and he could not found any conclusive lead regarding this. He denied the suggestion that he did not conduct any investigation regarding the genuineness of bill Ex. PW3/E. He admitted to be correct that he did not take permission of any court before taking specimen signatures of Deepak Kumar. He denied the suggestion that Deepak Kumar was not explained neither his signature/specimen were taken on Ex.S1 to S15. He did not collect any ledger account of M/s Bharti Waters Pvt. Ltd. in respect of M/s Nitin Enterprises. He further deposed that he has not collected ledger account, income tax document, sales tax documents and stock registers of M/s Bharti Waters Pvt. Ltd. He denied the suggestion that he has created false document to implicate the accused Deepak Kumar.
P.E. was closed.
STATEMENT OF ACCUSED 4.0 Statement of both accused persons were recorded under Section 313 Cr. P.C..
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4.1 A1 in his statement has submitted that PW1 Naiyer Ali Najmi has
granted sanction to prosecute him without application of mind. It has been further submitted that he never entered into any criminal conspiracy with A2. Further it has been submitted that Johnson make pipes were lowered at site in the presence of Ex. Engineer and Asstt. Engineer. AE has checked the used of 75 meter Johnson pipe. The EE was incharge of the spot. The payment was made to the contractor by the Accounts Department after proper verification. The accused has further impleaded false implication and innocence and further submitted that he does not want to lead any defence evidence. 4.2 A2 in his statement has submitted that the investigation in the matter has not been carried out fairly and certain documents, reports, CD were fabricated to implead him. It has been further submitted that the XEN has verified the pipes on spot and after his satisfaction, MS pipes and Johnson pipes were lowered. The borewell was installed as per work order. It has been further stated that Dr. D.V.Reddy is not an expert and he has prepared false and fabricated CD and report Ex. PW12/A at instance of CBI. It has been further submitted that he has not prepared any forged invoice nor used the same as genuine. In regard tothe handwriting expert report Ex. PW14/A, the accused has stated that it is a false and fabricated report prepared at the instance of CBI. The accused has further impleaded false implication and innocence and further submitted that he does not want to lead any defence CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 35 evidence.
ARGUMENTS 5.0 Sh.Navin Giri, Ld PP for CBI has submitted that the prosecution has succeeded in bringing on record sufficient evidence that as per contract agreement executed between DJB and contractor Deepak Kumar A2 of M/s Nitin Enterprises, inter alia, the contractor was required to use Johnson pipes in the tubewell in question at Devli Village. At that relevant time A1 Suresh Chand Aggarwal was posted as Junior Engineer with DJB and was incharge of the project of the tubewell. But they hatched criminal conspiracy and instead of using Johnson pipes, some sub standard pipes were used in tubewell in question, whereby they have caused loss to Government exchequer. The evidence of PW12 Dr.D.V.Reddy, who has inspected the tubewell, in his report has mentioned that no Johnson pipes were lowered. Further PW14 Deepak R. Handa, handwriting expert has deposed to the effect that the invoice/bill Ex. PW3/E (qua which the contractor has obtained the amount from DJB) is forged and fabricated document. On the basis of these submisisons he has submitted that prosecution has succeeded in proving his case beyond reasonable doubts.
5.1 Sh. Mohd. Qamar Ali, ld. Counsel for A1 Suresh Chand Agarwal
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has contented that the sanction to prosecute the accused was accorded by PW1 Sh.Nayer Ali Azmi, member of Administration, Delhi Jal Board. But from the crossexamination of this witness, it reveals that he has accorded sanction to prosecute the accused without application of mind, without going through the documents , proper verification of the material and in mechanical manner. The reliance in this regard has been made in case Mansukh Lal Vitthal Dass Chauhan vs State of Gujarat, 1997 (7) SCC 622.
It has been further argued that as per work order, all the three concerned officials of DJB i.e. Executive Engineer, Assistant Engineer and Junior Engineer were required to moniter the work and accordinglyt the documents viz. Bill form, work order, test check reports and measurement book have been signed by all of them after verifying that the Johnson make pipers were used/lowered in the project. But the CBI has prosecuted A 1 only who happened to be posted as Junior Engineer with DJB in the area. This reflect that the CBI has adopted the method of 'pick & choose' and prosecuted the JE only, whereas, no action has been taken against the other officers.
It has been further submitted that there is no material on record which shows that any criminal conspiracy took place between both the accused. On this score it has been further submitted that the agreement of contract Ex. PW3/A took place between Chief Executive Officer of DJB and accused Deepak Kumar. The measurement book Ex.PW3/D1, Bill form and Test Check Report Ex. PW3/C have been signed by all the three officers i.e. CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 37 present accused (A1), Executive Engineer and Assistant Engineer. Further as per CPWD manual , Ex. PW6/DA at 0.4.2, the Executive Engineer was the Engineerincharge of the work. In this regard it has been further submitted that as per PW3 Sh.Satya Prakash the day to day entry in the MB book was made after completion of the work of a particular day and when the senior officer countersigned the entry, it means he had checked the said entry. The intention of the Court was also drawn towards evidence of PW6 Executive Engineer, DJB wherein, he has submitted that after the completion of the work the JE submits the bill of the contractor to AE and AE after accepting the bill, further submit the same to EE and EE after accepting the same mark the bill to AAO.
On the basis of these submissions, it has been submitted that there is no material on record which shows that A1 was only authority to deal with all kinds of work in the matter right from floating of tenders to ultimate payment of the last bill to the contractor. On this ground it has submitted that there was no occasion for the A1 to enter into any sort of criminal conspiracy with A2.
On the score of use of Johnson pipes, it has been submitted that there is sufficient documentary evidence viz. MB book, test check report, strata chart etc. which shows that the Johnson make pipes have been lowered/used. Further, ld. Counsel for A1 has attacked the genuineness of inspection report Ex.PW12/A1 prepared by PW12 Dr.D.V.Reddy and CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 38 admissibility of his evidence. It has been further submitted that PW12 has prepared the report Ex. PW12/A1 on the basis of incomplete inspection because the total length of pipe as per strata chart was not measured for inspection purpose. It has been further submitted that expert has not recorded his voice regarding absence of Johnson pipes when he has lowered the camera at the time of inspection. Further the expert has not given any certificate that the recording device used in this inspection, did not contain the recording of any other site.
It has been further submitted that as per provisions of Section 65B of Indian Evidence Act, the electronic recording is not admissible without the production of original device or without certificate of the correctness, in view of SEction 65 B of Indian Evidence Act. The reliance in this regard has been made in case Anwar P.V. vs P.K.Bashir, 2015(1) SCC (LS) 108. On the basis of these submisisons it has been submitted that no reliance can be made on the report of Dr. D.V.Reddy or the CD produced by him alongwith report. 5.2 Sh.R.C.Tiwari, ld. Counsel for A2 Deepak Kumar has submitted that the prosecution has failed to prove that any criminal conspiracy took place between both accused persons and that no reliance can be made on expert report. On both these aspects he has relied upon the arguments advance by ld. Counsel for A1.
It has been further submitted that A2 has used Johnson pipes in the CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 39 borewell as per strata chart and that is why all the concerned officials of DJB have signed all the relevant documents viz. MB and test check reports. It has been further vehemently submitted that as per work order, the liability of the contractor was for six months after the completion of the work to maintain the borewell. The work was completed by A2 in the month of August and when the work was completed, A2 was given 90% of the total contract amount and the remaining 10% amount was given after six months. After six months the job of A2 to maintain the tubewell came to end and thereafter, the job to maintain the tubewell was of Electrical and Mechanical department of DJB. But the inspection of the borewell was carried out by the expert after long gap of more than five years. But the prosecution has failed to bring on record any evidence that during the said six years, borewell was not tampered with in any manner. Hence, in the absence of any evidence that the borewell was not tampered with, no liability of A2 can be fixed.
In respect of obtaining the specimen signatures of A2 for handwriting expert opinion, it has been vehemently submitted that the specimen signatures have not been obtained with the permission of Magistrate, hence, in view of provision of Section 311A of Cr.P.C., hence, no reliance can be made on the handwriting expert opinion, if obtained by the CBI in this regard.
On this score percontra, ld. PP for CBI has submitted that the permission of Magistrate was not required as the accused was not arrested by CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 40 the CBI when his specimen signatures were obtained.
In regard to the invoice of purchase of Johnson pipes from M/s Bharti Water Pvt. Ltd., it has been contented that A2 has purchased the Johnson pipes from M/s Bharti Water Pvt. Ltd. by making cash payment against which the invoice / bill was issued by the employee of the company. It has been further contented that the M/s Bharti Water Pvt. Ltd. used to indulge in such practice of issuing two invoices to different parties in order to escape from the liability to pay the sales tax.
Further it has been submitted that the prosecution has failed to bring on record sufficient evidence to prove that the invoice submitted by A2 with DJB for payment was forged and fabricated. In this regard it has been submitted that the CBI has not carried out proper investigation and collected the ledger books and stock register of the Company. Further the evidence of PW5 Sh. Kamal Kumar Agarwal, is also not reliable and trustworthy, as he has not identified the signatures of any of his employee on Ex. PW2/DD1 to Ex. PW2/DD18 (i.e. some other invoices issued by the company to other parties attached with the other file titled as CBI vs A.P.Garg).
Ld. Counsel for A2 has further vehemently submitted that the prosecution has examined PW8 to prove that A2 has got the proforma of the bills prepared from him to forge it. But this witness did not support the case of prosecution at all.
It has also been contented that the CD prepared by Dr.D.V. Reddy CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 41 is not admissible in evidence. First on the ground that the CD was handed over by Dr. D.V.Reddy to CBI in unsealed condition and that the provisions of Section 65B of Indian Evidence Act has not been complied with because the certificate qua genuineness of the CD was not issued by this witness. 6.0 Heard. Material perused.
7.0 The sanction order Ex. PW1/A to prosecute A1 was brought on record by PW1 Naiyer Ali Najmi. In the sanction order Ex. PW1/A, inter alia, PW1 has mentioned that he is competent to remove A1 from his office. During crossexamination of this witness by A1, apart from putting mere suggestion that he is not competent to remove A1 from his office, no other explanation has been called. It is well settled law that mere suggestion without any other material is of no consequences. Moreover, even otherwise there is no ground to doubt the authority of PW1 to accord sanction to prosecute A1. Hence, in the absence of any such material it is found that PW1 Sh. Naiyer Ali Najmi was competent to grant sanction to prosecute A1.
On the score of genuineness of the sanction order Ex.PW1/A, the said order is scrutinized carefully which reflects that PW1 apart from other documents has also considered important documents viz. CA No.78/200708 work order 114 dated 31.7.2007 and measurement book (MB) at the time of CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 42 granting sanction. Here it is necessary to reproduce the relevant portion of crossexamination of this witness in this respect, which is as under : I did not see the contract made between the DJB and Contractor for execution of borewell work. ..... I had not seen the measurement book prior to accord the sanction.
In this matter the contract executed between DJB through its Chief Executive Officer and A2 Deepak Kumar is on record as Ex. PW3/A bearing CA No.78/200708 dated 31.7.2007. As per evidence of PW3 Sh.Satya Prakash, Accountant with the DJB, Vigilance Section, the work order is also part of the agreement, meaning by the work order bearing no. 114 dated 31.7.07 is also part of the original contract.
The above mentioned portion of crossexamination of PW1 has revealed that he has not seen the contract agreement Ex. PW3/A and measurement book Ex.PW3/D. The Measurement book shows that proportionate responsibility of officers of DJB who were responsible for supervision of the work.
In case Mansukh Lal Vithaldas Chauhan vs State of Gujarat, (1997) 7 SCC 622, Hon'ble Supreme Court has, inter alia, held as under : that since the validity of "sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. .....
CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar
CC No.01/15 Spl.Judge (PC Act) CBI01, Saket
02.09.2015
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It it is shown that the sanctioning authority was
unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction"
was taken away and it was compelled to act mechanically to sanction the prosecution.
In case State of Maharashtra through CBI vs Mahesh G.Jain, (2013) 8 SCC 119, hon'ble Supreme Court, inter alia, has held as under :
The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution.
Reverting to the matter in hand, as discussed above, PW1 has not gone through the work order Ex. PW3/A and measurement book Ex. PW3/D meaning by he has not perused the entire material placed before him before according sanction. Here the question arises when he has not gone through the work order Ex. PW3/A and MB Ex.PW3/D then how he came to the conclusion that work order was granted to M/s Nitin Enterprises by the DJB and how he came to know the proportionate responsibility of the officials of DJB. It transpires that PW1 has not gone through the entire material before granting sanction to prosecute A1.
In the light of above judgement and the facts and circumstances of the matter, it is found that the sanction accorded by PW1 Sh.Naiyer Ali CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 44 Najmi can not be termed as valid sanction.
8. In respect to the evidence of Dr.D.V.Reddy, PW12 it is found that it is well settled law that evidence of expert is like evidence of any other witness which required to be appreciated in accordance with law and accepted only if found trustworthy. Reliance in this regard can be made in case Rokad Singh vs State of M.P., 1994 MPLJ 57.
On the basis of the arguments of Ld. counsel for accused persons, the expert opinion report requires deliberation on various aspects viz. if PW12 Dr.D.V.Reddy is Expert to inspect and to give any report in respect to the pipes lying in the borewell; if so, whether he has adopted proper procedure during the inspection ; whether the report of the Expert stands proved beyond reasonable doubt. In case State of Himachal Pradesh Vs. Jai Lal and others AIR 1999 SC 3318 Hon'ble Supreme Court has interalia held as under: "Therefore in order to bring the evidence of a witness that of an expert it has to be shown that he has made a special study of subject or acquired a special experience therein or in other words that he is skilled and has adequate knowlede of the subject. "
Coming to the present matter, it is found that the expert opinion was of peculiar nature because the expert was called upon to give his opinion CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 45 if the Jonson Pipes were lowered in the tubewell in question in view of the strata chart, or not. PW12 Dr. D.V.Reddy in his evidence has stated to the effect that he is Ph.D. in Hydrogeology i.e Ground water studies and has 35 years experience in this regard. In his report Ex. PW12/A, he has further mentioned the procedure required to be followed to carry out the inspection of Borewell which include use of bore hole camera with 12 LED attached to it, the recording of the camera in MP4 format at the time of scanning the borewell and to measure the depth of the borewell with the cable attached to the camera etc. The witness was cross examined at length, but his evidence in regard to his expertise in the matter remained unshaked and unimpeached. Moreover, no suggestion was put to the witness that he is not expert to carry out any inspection. Under these circumstanaces there is no reason to disbelieve his expertise to carry out inspection of pipes lowered in the tubewell particularly on the basis of qualification, his nature of job of study of underground water and length of experience of 35 years.
Further the witness has mentioned the procedure required to be adopted during inspection in his inspection report Ex.PW12/A1, however, here the question arises whether he has taken all the precautions while carrying out inspection of the borewell and that the report prepared by him is free from all the suspicions and is reliable. In this respect, from perusal of file, it is found that D2 Ex.PW3/C contains starata chart of the pipes lowered at the site in question which shows use of plain pipe of 8 cm upto 9830 CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 46 meter, followed by slotted pipe of 8 inch diameter 12.10 meter. Then use of M.S plain pipe of 6" diameter 9.75 meter and further use of Jonson Pipe of 6 inch diameter 75.0 meter deep. Hence as per the strata chart, the Jonson pipe starts from 120.15 meter onwards which goes upto 195.15 meter. The water level in the strata chart is from 80 meter onwards as per strata chart.
As per the report Ex.PW12/A1 prepared by Dr. D.V.Reddy, he has measured the borewell upto depth of 169.5 meter only because after 150 meter depth the pipe details were found to be not cleared due to high turbidity, meaning by the total length of borewell which was 195.15 meter deep as per strata chart was not inspected and the inspection was carried upto 150 meter depth only. It further reflects that the expert has measured only 30 meter of length to ascertain if the Jonson Pipes were used or not and has not carried out the inspection of total depth of the borewell as per strata chart.
Before proceeding ahead here it is necessary to reproduce the relevant portion of cross examination of this witness which is as under : "The metal pipe gets corrsen after a particular time. .................In the recording played today in the court corrsen in the pipe was well visible. In the present recording, the rusting was well seen and it normally takes place even within few months. There is a difference between rusting and corrsen. In rusting there is only deposit of iron oxides whereas in the case of corrsen, it is totally dissolved in the water. ................. It is correct that Jonson pipe is also of metal ......................"
CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar
CC No.01/15 Spl.Judge (PC Act) CBI01, Saket
02.09.2015
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From the said portion of cross examination of this witness, it reflects that the pipes qua which he has carried the inspection were not only rusty but were also got corrosioned. As per prosecution the work was completed in the month of August 2007 whereas the inspection was carried out after the gap of more than five years i.e. 11.9.2012 which is substantially long period. Here the witness failed to explain that if the pipes were found to be corrosioned and rusty that too lying at the depth of more than 100 meters full of water, then on what basis he has observed that Johnson pipes were not used.
Further the evidence of PW12 reflects that at the time of inspection he has not recorded the use of Johnson pipes in his voice. On this score he has failed to give any reasonable explanation when he was cross examined on this score. Here again the question arises that when there was facility of voice recording then why the witness has not used the word Johnson in his voice while voice recording.
In respect to the recording of inspection proceedings of different sites on same device used in this matter, it is found that there is nothing in the report Ex.PW12/A1 prepared by Dr. D.V.Reddy that how he has identified and separated the video/audio recording of each of the site in his report including the site in question which casts suspicion in the mind of the court if the report furnished by Dr. D.V.Reddy is actually pertaining to the bore in question.
CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar
CC No.01/15 Spl.Judge (PC Act) CBI01, Saket
02.09.2015
48
Further from the evidence of PW12 Dr. D.V.Reddy, it reflects that he has recorded the inspection and saved the same on the palmtop camera and has preapred the CD, whcih was handed over to CBI by him. As matter of record, no certificate has been issued by PW12 Dr.D.V.Reddy in regard to genuineness of the CD, as required under SEction 65 B of Indian Evidence Act. In case of Anwar P.V. vs P.K.Bashir (Supra) HOn'ble Supreme Court has held as under :
"An electronic record by way of secondary evidence shall not be admitted in evidence unless that requirements under SEction 65 B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of SEction 65B obtained at the time of taking the doucment, which which, the secondary evidence pertaining to that electronic record, is inadmissible."
In the light of this judgment, the CD Ex.PX of the recording of the proceedings of inspection of the tubewell, is not admissible in evidence.
In view of this discussion it is found that the inspection carried out by Dr. D.V.Reddy in this matter was incomplete, prepared without adopting proper procedure. Hence, no reliance can be made upon the inspection report Ex.PW12/A1.
9. The next point for consideration is, if A1 was alone responsible for the supervision of the execution of the work in this matter. On this score it is found that as per case of prosecution Executive Engineer was required to CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 49 check 10 per cent, Assstt. Engineer 50 per cent and J.E. was required to check 100 per cent of the work. But during cross examination of PW6, one important fact came on record that as per work order No. 114 was responsible for checking of 100 % of work. As matter of fact, the work order bearing No. 114 dt. 31.7.2007 is part of Ex. PW3/A and it is executed between A2 and Chief Executive Officer and there is no other document which shows that JE, A1 was 100 per cent responsible for the execution of the work. The prosecution has also relied upon the M.B. Book Ex.PW 3/D brought on record during the evidence of PW3 Sh. Satya Prakash, Accountant in the Vigilance Section of DJB which shows that signatures of Z.E and XEN bears at point B and C respectively on page No. 16329 and against the signatures of both the officials it has been mentioned that 50% and 10% of checking of the work. The signatures of A1 bears at point A but there is no mentioning of the fact that A1 was responsible for 100% of the work. Further the M.B Book at page No. 65 also shows the use of Jonson Pipes. Here it remained un explained that exactly on the basis the prosecution has claimed that the A1 was 100 per cent responsible for the work.
PW1 Sh. S.Nayyer Ali Nazmi during the query in this respect first denied the suggestion that it was responsibility of XEN only but further in unmistakenable terms had stated that it was collective responsibility of all the Engineer staff.
In case State of Madhya Pradesh vs Sheetla Sahai and ors., CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 50 (2009) 8 SCC 617, Hon'ble Supreme Court has, inter alia, held as under : "that it is also interesting to notice that the prosecution had proceeded against the officials in a pickandchoose manner. ........ We fail to understand on what basis such a discrimination was made."
In the light of this judgment and the facts and circumstanaces of matter, substance has been found in the arguments of ld. Counsel for A1 that the CBI has adopted the policy of pickandchoose method and the CBI has carried out hasty investigation which does not inspire the confidence of the Court.
In respect to the criminal conspiracy Section 120B runs as under : 120B. Punishment of criminal conspiracy. (1)whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both In order to bring home the guilty of the persons under Section 120B IPC, the prosecution is required to prove that accused agreed to do or caused CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 51 to do any illegal act with illegal means and some overt act must be done in pursuance to their agreement. In case State of Maharashtra Vs. Som Nath Thapa, 1996 (4) SCC 649 Hon'ble Supreme Court has held as under:
"It is a matter of common experience thaat direct evidence to prove conspiracy is rarelyy available. Accordingly, the circumstances proved before and after the occurence have to be considered to decde about the complicity of the accused. Even if some acts are proved to have bee committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. An offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstanaces are incapable of any other reasonable explanation. To establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself."
Reverting to this matter, there is no direct evidence that both the accused had hatched any conspiracy to do any illegal act. The material on record has been scrutinized to look the matter from angle of any circumstantial evidence. The evidence of PW3 Sh.Satya Prakash, PW6 Sh.Anil Sharma and PW9 Sh.Shiv Kumar Bhardwaj, all witnesses of DJB and CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 52 the documents on record reflects that A1 was not in picture when initially the tenders were floated or work agreement took place between DJB and A2. The remaining documentary evidence on record reflects that the J.E was not sole responsible for the supervision etc. of the execution of the work. The invoice/bills (the genuineness of the same yet to be discussed) was not sanctioned by A1 and the same were sanctioned after routing through the different officiers including the Accounts branch. Further as matter of evidence the consent of XEN and Executive Engineer was also required for every act in this matter.
As held earlier, A1 was not the sole responsible person for execution of the work. Considering this fact and the fact that there is no clear, cogent, reliable circumstantial evidence to draw inference that both the accused hatched any conspiracy, it is found that the prosecution has failed to prove beyond reasonable doubt that any criminal conspiracy was hatched between both accused persons, at any stretch of time.
10. Ld. counsel for A2 further contended that the specimen signatures of A2 were not obtained by the CBI in view of the provisions of Section 311 of CrPC which is fatal to the case of prosecution. Before proceeding ahead, here it is necessary to reproduce Section 311A of CrPC which is as under:
"Section 311A Power of Magistrate to order person to give specimen signatures or handwriting If a Magistrate of the first class is satisfied that, for the purposes CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 53 of any investigation or proceeding under this Code, it is expedient to direct any person, including an accused person, to give specimen signatures or handwriting, he may make an order to that effect and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give his specimen signatures or handwriting;
Provided that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding."
From plain reading of Section 311 of Cr.P.C., it is found that if accused has been arrested, the Magistrate can make orders and direct the accused to give specimen signatures etc. But there is nothing in the provisions of said Section which debars from obtaining the specimen signature of an accused, who is not under arrest.
Coming to the present matter, it is found that the accused was not under arrest when his specimen signatures were obtained. At this stage, ld. Counsel for accused has vehemently submitted that since the accused was under the control of CBI on 10.12.2012, hence, it cannot be presumed that he has voluntarily given his specimen signatures because no certificate of voluntariness was obtained from A2 in this respect. Further, as per evidence of PW13, after obtaining the signatures of Deepak Kumar on the sheets Ex.PW13/A, the CBI has inserted the portion shown at point E on all the sheets, later on. It has also been pointed out that PW15 in his cross examination has stated that the portion shown at points D and E of all sheets CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 54 of Ex. PW13/A were not typed before obtaining his signatures.
No doubt, no separate certificate was obtained from A2 qua his willingness to provide the specimen signatures to CBI voluntarily. But as matter of fact both these witnesses were not cross examined on this aspect. Even no suggestion was given to both these witnesses that they never met Deepak Kumar at the office of CBI or that the specimen signatures of Deepak Kumar were obtained under any threat or any force. During their cross examination, both the witnesses have explained all the events took place on the day when the specimen signatures of Deepak Kumar were obtained. Regarding the discrepancy came in their evidence in respect to the writing of the portion at points D & E on all the sheets of Ex. PW13/A, it is found that such type of discrepancies are bound to happen, how much trustworthy and reliable the witness may be. Even otherwise no undue weightage can be given to the accused on this point because the occular evidence of both these witnesses on this aspect is found to be reliable and trustworthy that A2 has voluntarily gave specimen signatures in presence of both these witnesses.
11. Before any discussion on invoice Ex. PW3/E it is necessary to reproduce Sections 468 IPC and 471 IPC, which are as under :
468. 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 for a term CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 55 which may extend to seven years, and shall also be liable to fine.
471. Using as genuine a forged [document or electronic record]. Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record].
As per Section 468 of IPC, that in order to hold a person guilty under this Section, the prosecution must prove that the document has been forged by the accused with intention to use the forged document for the purpose of cheating.
From the plain reading of Section 471 reflects that in order to hold a person guilty for offence is that the forged document must be used fraudulently and dishonestly as genuine.
Coming to the present matter, admittedly as pointed out that there are certain weaknesses in the case of prosecution in respect to the invoice Ex. PW3/E viz. CBI has not collected any other material like ledger accounts and the stock material register of M/s Bharti Water Pvt. Ltd. to prove that the material was actually sold by the company to M/s Executive Engineer, W/S & Sanitation (RWS), Divison No.2, Amritsar; nor nonjoining of said party of Amritsar to the investigation; PW8 Himanshu Singhla has not supported the case of prosecution; and deposition of PW5 Kamal Kumar Aggarwal vide which he failed to identify the signature of his employee etc. CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 56 However, despite the existence of all these weaknesses and drawbacks in the case of prosecution in respect to Ex. PW3/E, one fact cannot be ignored that A2 at any stretch of time has not denied the furnishing of invoice bearing no.BW/247/20078 dated 01.08.2007 Ex. PW3/E to the DJB for the payment, meaning by it is admitted fact. As per case of prosecution, the said invoice was sent for handwriting expert opinion. PW14 Sh.Deepak R. Handa, handwriting expert has proved his report which shows that the handwriting on questioned signatures in the name of 'Ravi Kumar' on invoice Ex.PW3/E and specimen signatures of A2 Deepak Kumar on Ex.PW13/A were matching. PW14 in his evidence has stated as under, on this score : "The gist of the report is handwriting evidence points to the writer of specimen English writing marked S1 to S15 attributed to Deepak Kumar signing as Ravi Kumar being the person responsible for writing the questioned English signatures marked Q1 to Q3.
Ld. Counsel for A2 has failed to shake the testimony of PW14 in respect to the genuineness of report Ex. PW14/A, prepared by him. The chain of events in this respect shows that A2 vide invoice Ex. PW3/E raised the bill for the work done by him and accordingly payment was made to him by DJB. But the invoice Ex. PW3/E was found to be forged, in view of the handwriting expert report Ex. PW14/A. In case Ram Narayan Popli vs CBI (2003) 3, SCC 641, Hon'ble Supreme Court has, inter alia, held as under : CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 57 "The intent to commit forgery involves an intent to cause injury. A person make a false document who dishonestly or fraudulently signs with an intent or cause to believe that the document was signed by a person whom he knows it was not signed."
Coming to the instant case, even though some deficiencies have been found in this matter as pointed out by ld. Counsel for A2, but the said deficiencies do not go to the core issue of the matter. The core issue is whether A2 has forged the invoice Ex.PW3/E and used the same or not. In view of the above discussion, it is found that the prosecution has succeeded in proving beyond reasonable doubt that A2 Deepak Kumar, one of the active partner of M/s Nitin Enterprises has forged the invoice Ex. PW3/E by signing the same in the name of Ravi Kumar and dishonestly submitted the said forged invoice for obtaining the amount from the DJB, meaning by he has prepared the forged invoice and dishonestly used the same forged invoice as genuine to obtain the amount mentioned in the forged invoice from DJB. Hence, A2 Deepak Kumar, one of the active partner of M/s Nitin Enterprises is hold guilty under Sections 468 IPC and 471 IPC.
12. Considering the entire facts and circumstances and the fact that the prosecution has failed to bring on record any admissible evidence to prove charges for offence under Section 420 & 120B of IPC against both the accused A1 Suresh Chand Aggarwal and A2 Deepak Kumar, hence by CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar CC No.01/15 Spl.Judge (PC Act) CBI01, Saket 02.09.2015 58 giving benefit of doubt, both accused stands acquitted under Sections 420 IPC and 120B IPC.
13. Further the prosecution has failed to bring on record clear, consistent, cogent and legally admissible evidence against A1 Suresh Chand Aggarwal. Hence, by giving benefit of doubt, A1 is acquitted for charges under Section 13(2) r/w Section 13(1)(d) of PC Act, 1998; 468 IPC, 471 IPC and 477A IPC. Accordingly, bail bonds of A1 Suresh Chand Aggarwal stands cancelled and his surety stands discharged.
14. Let A2 Deepak Kumar, one of the active partner of M/s Nitin Enterprises be heard at point of sentence u/s 468 and 471 IPC.
Announced in the Open Court (Bhupesh Kumar)
today i.e. 02.09.2015 Spl. Judge (PC Act), CBI01(South)
Saket Courts : New Delhi.
CBI vs Suresh Chand Aggarwal & anr. Bhupesh Kumar
CC No.01/15 Spl.Judge (PC Act) CBI01, Saket
02.09.2015