Delhi District Court
State vs . Ramesh Chand Singla & Anr. on 24 May, 2022
1
In the Court of Dig Vinay Singh: Special Judge (PC Act) (ACB)-02
Rouse Avenue Courts, New Delhi
In re:
CNR No. DLCT110005682019
CC No. 127/2019
FIR No. 69/2003
P.S. Anti-Corruption Branch
State Vs. Ramesh Chand Singla & Anr.
State
Vs.
1. Ramesh Chand Singla
S/o Sh. Shiv Dhan Mal
R/o 60/1, Chandoo Park,
Som Bazar, Chander Nagar,
Delhi-51.
2. Tara Chand
S/o Sh. Chohal Singh
R/o 161A, Pocket A,
Dilshad Garden, Shahdara,
Delhi-95.
Date of Institution : 25.02.2011
Date of Arguments : 17.05.2022
Date of Judgment : 24.05.2022
JUDGMENT
1. The above named two accused faced trial in the present matter for offences U/s 13(1)(c) r/w Sec. 13(2) of POC Act, 1988 and, U/s 120B/409/420/468 & 471 of IPC.
2. At the relevant time A1 R. C. Singla was a Junior Engineer (JE) and; A2 Tara Chand was an Assistant Engineer (AE), in MCD. Besides them, two Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 1 of 65 2 Executive Engineers (EE), namely, Rajpal & Satish Kumar Kataria were also charge sheeted, who were discharged at the stage of charge. One more accused namely Harpal Singh (also EE) was also charge sheeted, but he expired and proceedings against him abated vide order dated 26.04.2011.
3. Brief facts of the case are, that in order to avoid water logging during monsoon season, the Conservancy & Sanitation Engineering (CSE) Department of Municipal Corporation of Delhi (MCD), conducts drive to desilt the drains in Delhi. For that purpose, preparation of estimate; desilting and; then carrying silt up to the Silt Land Fill (SLF) site, is carried out. CSE department of Shahdara, North Zone, MCD, prepared an action plan for the year 2002-03 and the work was executed under the supervision of EE (CSE). For desilting, casual labourers were engaged from open market. It is the case of investigating agency that the accused persons while working as JE, AE and the EE in MCD entered into criminal conspiracy amongst themselves wherein they reflected fake entries qua engagement of some of the casual labourers for desilting, in order to misappropriate the wages qua those fake entries and also that wages of some of the labourers who had actually worked were not paid and it was misappropriated. It is also the case of investigating agency that the accused persons forged / got forged the signatures / thumb impressions of many such ghost labourers in token of receipt of wages and then misappropriated the wages.
3.1. Initially a complaint was received in the Vigilance Department of MCD on 15.05.2002, from one Smt. Shimla Beniwal, alleging irregularities in maintaining Muster Rolls (MR for short) and in making payments to the labourers qua desilting of drains. The allegations in the complaint were;
a) non-issuance of Muster Rolls in time and instead issuing them later on ante-dated;
Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 2 of 65 3b) mentioning number of labourers in the Muster Rolls and forging their signatures and thumb impressions in drawing money against it;
c) bogus payment against tractor / trolley for lifting of silt;
d) showing of more than one rounds of trolley to get payment more than once;
e) payment without slip from the SLF site and;
f) lastly, payment against Muster Rolls even without carrying out the desilting work at all.
3.2. On the above-mentioned complaint, the Vigilance Department of MCD conducted an inquiry and recommended registration of FIR as also departmental action against various EE/AE/JE/Accountant/LDC/Cashier and few Beldars. Based on the said inquiry recommendation, a complaint was lodged in police station Anti-Corruption Branch and one FIR No. 42/2002 was registered on 13.08.2002.
3.3. During investigation of that FIR No. 42/2002, various MRs as to engagement of labourers, prepared between the months of March 2002 to June 2002, were seized by the investigating agency. Those MRs were then separated by the investigating agency as per the Junior Engineer concerned who had prepared those MRs, since for different wards and area, different Junior Engineers prepared various such MRs during the period. And according to the said separation of MRs, few other FIRs were registered, including the FIR of the present case.
3.4. In the present FIR, we are concerned with 24 (twenty-four) Muster Rolls.
These 24 MRs were issued to A1 R. C. Singla, as he was working as JE at the relevant time in Ward no. 85 & 86, Shahdara Zone. A1 remained posted in the said ward from 24.10.2001 to June 2002 and, A2 remained posted from 04.04.2001 to 07.08.2002.
Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 3 of 65 43.5. It is alleged that under the 24 MRs prepared by A1, he had shown and claimed to have engaged 861 labourers for work of desilting of drains, during the period March to June, 2002. After closing these MRs, A1 submitted them for payment, through A2, and the Executive Engineers concerned. Total payment of Rs. 18,38,437/- was received by A1 with respect to payment of wages of 861 labourers engaged under those MRs, on different dates from cashier Vinod Kumar. The amount was claimed to have been disbursed by A1 and then the MRs were re-deposited to the cashier after purported disbursement.
3.6. During investigation of FIR No. 42/2002, physical verification of labourers was conducted and it was found that two labourers viz., Amarnath and Shiv Bahadur, both sons of Ganga Ram, named in certain MRs prepared by A1, denied having worked or having received the payment or even having signed the MRs in token of receipt of wages. Accordingly, a rukka was prepared by Inspector Rajender Prasad and present FIR was got registered.
3.7. During investigation of the present case, the investigating officer verified the labourers named in the 24 MRs prepared by A1 and found that as many as 60 labourers named in the MRs claimed that they never worked for desilting; that they did not receive any payment and; that their signatures / thumb impressions on MRs were forged. As per investigating agency the accused persons in conspiracy misappropriated a sum of Rs. 1,96,325/- and they also forged signatures / thumb impressions in the name of labourers, without actually engaging them and then used those forged documents as genuine.
3.8. Alleging involvement of AE and the EEs in the conspiracy, the case of investigating agency is that the AE and EE, under CPWD Manual Rule 9.5, Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 4 of 65 5 9.12 & 9.13, as applicable to MCD, were responsible to conduct surprise checks at the site and since they failed to notice and detect the bogus names in the MR and did not check the labourer working at the site, therefore they were in connivance with the JE.
3.9. During investigation, specimen signatures / thumb impression of few of the labourers were obtained and were sent for comparison by expert, which confirmed that the questioned signatures / thumb impression of several such disputed labourers did not match with their specimen. As per charge sheet, the dispute as to ghost labourers engaged is qua 11 (Eleven) out of 24 MRs, i.e. qua MR No. 61926, 61922, 61929, 411, 61930, 414, 61924, 61920, 61927, 53915, 61928. Though at one place in the charge sheet the investigating agency claimed that 60 persons named in the MRs confirmed that they did not work, but in the tabulated list in the charge sheet, names of 61 persons are mentioned with the MR numbers. The said list is as follows:
Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 5 of 65 6 Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 6 of 65 73.10. Sanctions U/s 19 of POC Act, 1988 were obtained against the accused and they were charge sheeted for the above-mentioned offences.Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 7 of 65 8
3.11. It may be mentioned here that the final report was filed for offences U/s 13(1)(c), 13(1)(d)(ii) r/w Sec. 13(2) of POC Act as also Sec.
420/467/471/120B of IPC. Cognizance for the above mentioned offences was taken vide order dated 17.03.2011. Thereafter, vide order dated 11.10.2013, Satish Kataria and Rajpal were discharged by the Ld. Predecessor Court observing that there was no direct role attributed to them as regards the preparation of MRs or certification thereof and payments were also not made in their presence, therefore, they cannot be roped in U/s 120B of IPC.
3.12. Qua the present two accused, charge U/s 120B of IPC and Sec.
13(1)(c)/13(2) of POC Act, 1988 & Sec. 420/409/468/471 r/w Sec. 120B of IPC was framed. Both the accused pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined total 58 witnesses.
4.1. From MCD, the witnesses examined are PW16, 17, 22, 46 to 52, 54 & 58. 4.1.1. Out of them, PW46 Vinod Kumar deposed that when he was posted as LDC / cashier in MCD, Shahdara, North Zone, he issued the 24 MRs in question to A1 vide entry Ex.PW46/C & D in Register Ex.PW46/B. The witness also deposed that as per entry in the cash book, Rs. 14,22,326/- & Rs. 6,40,000/- were handed over to A1 on 19th & 22nd July, 2002 for disbursal of wages. The entry is proved as Ex.PW46/E bearing signature of A1. The witness also identified the voucher no. 7 to 38, dated 18.07.2002 corresponding to the MRs concerned. Witness also deposed that on 30.07.2002, a sum of Rs. 9,71,922/- was also handed over to A1 through one Agnesh Verma, another JE, with respect to 13 MRs vide entry Ex.PW46/F bearing signatures of Agnesh Verma. The witness also deposed that as per record, A1 did not deposit any balance from the said amount.
Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 8 of 65 9In his cross examination PW46 explained the process that after conclusion of work and after filling up the MRs, the JE presents the MRs to AE, who then forwards it to the EE and who in turn submits it to the Accounts Department. Also, Measurement Book (MB), duly filled by the JE concerned, used to be sent along with the MRs. Thereafter, after approval of the MRs and the MB by the EE, the same are sent to Chief of Accounts, MCD through the concerned Assistant and the Deputy Chief of Accounts. Thereafter, the MRs are forwarded to the Headquarters and thereafter on the directions of Director-in-Chief (Engineering) the payments are released to the Zonal Office. The witness also deposed that in the process all the aforesaid officers examine the file and they clear the file after their satisfaction. The witness also deposed that on each of the MR in question, it is the Executive Engineer who ordered release of the amount for payment as per notings at Portion X to X. The witness also admitted that so far as A2 is concerned, none of the MRs were signed by A2 in his presence and that none of the MRs in question containing disputed entries bear signatures of the AE concerned, i.e. A2. It may be mentioned here that though in the testimony of PW46 it is mentioned that Ex.PW46/E bears signature of A2 Tara Chand at point TC, but on this document neither any point TC is recorded nor any signature of A2 seems to have been identified. It may be also mentioned here that there is one more signature of someone at point A on Ex.PW46/E, but that signature at point A belongs to PW46 as admitted by him in his testimony. There is one more signature on this document against the entry qua payment of Rs. 14,22,326/- but that signature appears similar to that of PW46 Vinod and not of A2 Tara Chand. In any case, PW46 specifically deposed that all the payments on 19.07.2002 Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 9 of 65 10 and 22.07.2002 were made to A1 and it is nobody's case that any payment was made to A2.
4.1.2. PW16 M. K. Malhotra deposed regarding seizure of the 124 MRs in FIR no. 42/2002 in his presence, including the MRs involved in the present case, vide Seizure Memo Ex.PW16/A. He also deposed about seizure of four files produced by PW17 Rajesh Bhatia and seized vide seizure memo Ex.PW16/B. 4.1.3. PW17 Rajesh Bhatia deposed that he was part of inquiry committee of Vigilance Department of MCD which gave report Ex.PW17/A dated 29.07.2002 recommending lodging of criminal complaint against various engineers of MCD including both the accused A1 and A2 as well as the deceased accused. He also deposed about handing over the 124 MRs to the IO of FIR No. 42/02 along with other files. The witness also identified the MRs handed over by him to the IO.
In the cross examination, the witness expressed ignorance as to whether the JE was required to collect proof of address and identity of the casual labourers employed for the purposes of desilting. 4.1.4. PW22 Sushil Kumar was also part of the inquiry committee with PW17 and his testimony is in line to that of PW17. This witness also deposed that he handed over certain MRs and files to the IO of FIR No. 42/02, which he identified during his deposition. In the cross examination, the witness claimed that he was ignorant as to whether any official of the department raised any objection regarding the requirement of labour or estimate of expenditure and whether the JE was required to collect any Id proof of the labourers engaged for desilting.
Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 10 of 65 114.1.5. PW48 Rajeev Sharma deposed that in his presence certain MRs and files were handed over by one Sudesh Kumar UDC to the IO vide seizure memo Ex.PW48/A and he identified those files as Ex.PW48/A-1 to 48/A-20.
4.1.6. PW49 Veer Singh proved circular dated 02.09.1964 as Ex.PW49/A. 4.1.7. PW50 Rajesh Kumar Gupta & PW58 Shri Krishan, both proved posting orders of A2 and A1, respectively, in the concerned Division as Ex.PW50/A & Ex.PW58/A. 4.1.8. PW52 Ankit Kumar & PW54 Lalit Kumar both proved service records / bio-data of A1 & A2, respectively, as Ex.PW52/A & Ex.PW54/A. 4.1.9. Qua Sanction under section 19 of POC Act, the prosecution examined PW47 K. S. Mehra & PW51 Naresh Kumar who proved the Sanction against A2 and A1, respectively, as Ex.PW47/A and Ex.PW51/A. 4.2. From amongst the police officials, the witnesses examined by the prosecution are PW41, PW45, PW53, PW55, PW57.
4.2.1. PW41 Ct. Shammi Kapoor witnessed the obtaining of specimen signatures of various labourers examined by the investigating officer on different dates vide Ex.PW25/A & B; Ex.PW6/A; Ex.PW19/A; Ex.PW18/A; Ex.PW29/A & B; Ex.PW23/B & C; Ex.PW33/A & B; Ex.PW31/A & B; Ex.PW30/A & B; Ex.PW24/A & B; Ex.PW28/A & B; Ex.PW32/A & B; Ex.PW41/A to F. 4.2.2. PW45 Inspector Ajay Tomar was the duty officer who proved registration of present FIR on 15.12.2003 as Ex.PW45/A and endorsement on rukka Ex.PW45/B. 4.2.3. PW53 the then Inspector Rajender Prasad deposed about collection of MRs during investigation of FIR No. 42/02 and then segregating 24 of them Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 11 of 65 12 which were prepared by A1. He also deposed that during sample verification, two labourers Amarnath & Shiv Bahadur told him that they never worked for desilting of drains as mentioned in the MRs and never took payment or signed the MRs and therefore he prepared rukka Ex.PW53/A and got the present case registered, which was then investigated by Inspector Sohan Lal.
In his cross examination, the witness admitted that he did not examine Smt. Simla Beniwal as a witness; did not record statements of Amarnath and Shiv Bahadur and; he did not collect admitted signatures of any of the labourers.
4.2.4. PW55 the then Inspector H. N. Meena was also investigating officer of said another FIR No. 42/02 who also deposed about seizure of MRs and other documents by him vide seizure memos Ex.PW22/A; Ex.PW16/A; Ex.PW16/B; Ex.PW48/A and; Ex.PW55/A & B. In his cross examination, witness admitted that he did not record any statement regarding the number of labourers who had reported for work on a particular day; he did not visit the site where silt was dumped after removal from drains; he did not collect specimen handwriting / thumb impression of the JE; he did not confront the labourers who had actually worked with the persons whose name was mentioned in the MRs but they did not work in order to verify whether the disputed labourers actually worked or not; he did not examine the labourers as to which MCD official was present at the time of disbursal of wages and; whether Assistant Engineer was present at the time of disbursal or not.
4.2.5. PW57 the then Inspector Dharambir investigated the present FIR. He deposed that A1 prepared estimate for desilting of drains which were forwarded by A2 and after the same was approved by Commissioner of Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 12 of 65 13 MCD, in February 2002, A1 got issued 24 MRs and carried out desilting work between March to June 2002 and thereafter he collected payments from cashier for disbursement of wages which were claimed to have been disbursed, but during investigation when he verified as to whether all the labourers were actually engaged and whether payments were disbursed to all the labourers, he found that around 50-60 labourers who were named in the MRs were either not employed but were shown to have been paid, or without actual payment to them, the payment were shown to have been disbursed and during investigation he collected specimen thumb impressions / signatures of such labourers which were got compared from Finger Print Bureau and FSL and the Finger Print Bureau / FSL confirmed that the specimen did not match with the questioned thumb impressions / signatures. The witness also deposed about arrest of the two accused, collection of documents and evidence and obtaining Sanction against the two accused. The report of Finger Print Bureau and FSL are proved as Ex.PW57/D & E, as well as the specimens, as mentioned above.
In his cross examination, the witness admitted that he did not take permission from Court while obtaining specimen handwriting / signature of the witnesses; he did not seize Id proof of any of the witnesses and their employment proof; he randomly sent specimen signatures / thumb impressions of about 15 persons out of 50 labourers, for comparison by the handwriting expert; admitted signatures / thumb impressions of those labourers were not available, therefore, their specimens were only taken; he did not conduct any investigation as regards the desilting of drains claiming that since a long time had elapsed, therefore, the desilting carried out in the previous years could not have been assessed as it is supposed to be done every year; he did not record statement of Simla Beniwal; he too Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 13 of 65 14 did not confront the labourers who had actually worked with the persons regarding whom the disputed entries were made; he did not collect proof of employment of the witnesses examined by him and who claimed not to have worked; he did not examine any person from neighbourhood of drains which were cleaned regarding the number of persons who were deployed; the payments were released to the JE by the Cashier on the directions of EE; he did not take specimen or admitted signatures of the accused persons. He claimed ignorance whether he came across any circular requiring collection of id proof by the JE.
4.3. Rest of the 40 witnesses are from amongst the public witnesses, examined qua non-existence of the labourers named in the MR.
4.3.1. From amongst them, PW2 Ajay Kumar Goyal; PW6 Amarnath; PW7 Satish; PW8 Satdev; PW9 Rajiv Kumar; PW11 Rupesh Kumar; PW12 Vinod; PW13 Anil Kumar; PW14 Tikaram; PW15 Bona Lal; PW18 Jagbir Singh; PW19 Vinod; PW20 Nawal Singh; PW21 Jaswant; PW23 Jiva Ram; PW24 Kumar Gaurav; PW25 Suresh; PW26 Sanjiv Kumar; PW27 Nathu Singh; PW28 Rajesh; PW29 Vicky; PW30 Ahmad; PW31 Anil; PW32 Inderjeet; PW33 Govind Ram; PW34 Ranjeet; PW35 Raju; PW36 Ved Prakash; PW37 Ashok Kumar; PW38 Ram Babu; PW40 Satbir; PW42 Amit Kumar; PW43 Rajender; PW44 Ram Niwas and; PW56 Rajender, deposed that though in the MRs, their names and addresses with their father's name (except few of them) were correctly mentioned, but they never worked for desilting of drains with MCD; they never received any payment as mentioned in the concerned relevant entries and; that the thumb impressions / signatures appended on the Revenue Stamp in token of receipt of wages against those entries are forged thumb impressions / signatures.
Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 14 of 65 154.3.2. PW39 Bhola deposed that he was never engaged by MCD for desilting of nalas, but strangely he claimed that the signatures on entry at Serial No. 18 in MR no. 61920 Ex.PW8/A are his signatures. But he claimed that he did not receive wages of Rs. 1857/- as mentioned against that entry.
4.3.3. The rest of the above named witnesses all denied having been engaged for desilting of drains, or having worked as such, or having signed those entries, or having received the payments mentioned against entries of their names in the MR in question. The relevant entries in the MRs, the serial number and the details qua these witnesses is mentioned in Tabulated form in para 5 below, for the sake of clarity and brevity.
4.3.4. Besides it, PW2 also deposed that in his house no person by the name of Babu S/o Banwari Lal resided in the year 2002-03, whereas in MR no. 61926 Ex.PW2/A name of Babu is mentioned at Sl.No. 23 claiming that Babu worked for MCD.
4.3.5. Similarly, PW24 also deposed that his elder brother Bhim Sen who was residing with him also never worked for desilting of drains, whereas in MR no. 61929 Ex.PW22/B & MR no. 411 Ex.PW23/A name of Bhim Sen is mentioned at Sl.No. 16 claiming that Bhim Sen worked for MCD.
4.3.6. Similarly, PW30 also deposed that his brother Hassan also never worked for desilting of drains, whereas in MR no. 61929 Ex.PW22/B & MR no. 411 Ex.PW23/A name of Hassan is mentioned at Sl.No. 38 claiming that Hassan worked for MCD.
4.3.7. Similarly, PW31 additionally deposed that he does not have any brother by the name of Trilok Singh and rather he had a maternal uncle namely Trilok Singh @ Tilak Singh who had expired more than 20 years ago, whereas in MR no. 61929 Ex.PW22/B & MR no. 411 Ex.PW23/A name of Trilok Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 15 of 65 16 Singh is mentioned at Sl.No. 12 claiming that Trilok Singh worked for MCD.
4.3.8. Similarly, PW33 additionally deposed that he has four brothers and that none of his brothers ever worked for desilting of nalas, whereas in MR no. 61929 Ex.PW22/B & MR no. 411 Ex.PW23/A name of his brother Mohan is mentioned at Sl.No. 34 claiming that Mohan worked for MCD.
4.3.9. Besides the above mentioned witnesses, PW5 Satish Kumar also deposed that his brother Brahm Prakash, whose name figures as a labourer in MR no. 61924 Ex.PW5/A at Sl.No. 34, never worked for desilting of drains and the signature on the Revenue Stamp in token of receipt of wages by his brother were not genuine signatures. He also clarified that their correct address is C-3/424, Nand Nagri, Delhi, whereas in the entry in question the address mentioned is C-3/420.
4.3.10. PW1 Laxman deposed that in his house no. C-3/423, Nand Nagri, Delhi, no one by the name of Binod S/o Raghuraj ever lived, whereas name of that person is shown in MR no. 61924 Ex.PW5/A at Sl.No. 62.
4.3.11. PW3 Chander Pal deposed that in his house no. C-3/31, Nand Nagri, Delhi, no one by the name of Bittoo S/o Jatan ever lived, whereas name of that person is shown in MR no. 61928 Ex.PW16/F and MR No. 419 Ex.PW46/A, at Sl.No. 14.
4.3.12. PW4 Ishwar deposed that in his house no. C-3/490, Nand Nagri, Delhi, no one by the name of Ravinder S/o Ved Prakash ever lived, whereas name of that person is shown in MR no. 419 Ex.PW46/A and MR No. 53915 Ex.PW16/C, at Sl.No. 67 & 21, respectively.
4.3.13. PW10 Suresh Chand deposed that in his house no. C-3/406, Nand Nagri, Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 16 of 65 17 Delhi, no one by the name of Vijay S/o Ram Chander ever lived, whereas name of that person is shown in MR no. 61924 Ex.PW5/A at Sl.No. 35.
5. The tabulated information as to the disputed entries, MRs wise, proved by the prosecution is as follows;
Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 17 of 65 18 Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 18 of 65 19 Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 19 of 65 206. On conclusion of the prosecution's evidence, the incriminating evidence was put to the accused persons in their statements recorded on 24.04.2015. 6.1. In it, A1 admitted that he worked as JE in the relevant zone; that the 24 MRs in question were issued to him under which he engaged 861 casual labourers for desilting of drains between March to June 2002 and that those MRs were prepared by him. He also admitted that the above mentioned amount towards disbursement of wages were received by him from the cashier and that he did not deposit back any balance amount out of it. He claimed that the entire amount was disbursed to the labourers by him. A1 also admitted that he gave certificate on the MRs to the effect that casual labourers were actually employed and they worked and wages were disbursed to the genuine persons named in the MRs in his presence. He claimed that all the labourers who had actually worked were paid their wages; the complaint was false; the allegations were false; no inquiry was conducted by the Vigilance team; false FIR was registered; no specimen signature / thumb impression was obtained by the investigating agency; the hand writing expert's opinion was a procured report; he was arrested wrongly; Sanction was granted without application of mind and that witnesses are false and interested witnesses. He also claimed that Smt. Simla Baniwal was not a Councilor and was never a Councilor for Ward no. 85 & 86. He claimed that he has been implicated falsely.
6.2. Subsequently, supplementary statements of both the accused persons were recorded on 26.03.2022, pursuant to Order of this Court dated 10.03.2022. 6.3. In his supplementary statement, A1 again admitted that he was working as JE in Ward no. 85 & 86 during March 2002 to June 2002 and that the 24 Mustor Rolls were issued to him, which bears his Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 20 of 65 21 signature. A1 also admitted that he received the cash amount from the cashier i.e. Rs. 14,22,326/- on 19.07.2002, and Rs. 6,40,000/- on 22.07.2002. He admitted that the said payment was received by him towards the Mustor Rolls in question. He admitted that another sum of Rs. 9,71,922/- was also received by him through his colleague Agnesh Verma. He claimed that the entire above mentioned payment received by him was distributed and disbursed to the labourers employed by him and since no amount was left with him after payment to the labourers, therefore he did not deposit back or return any leftover amount. A1 admitted that after completion of work of desilting, he submitted the Mustor Rolls through his co-accused A2 for disbursement of wages and after collecting the payment and alleged disbursal of the payment, the MR were resubmitted to the MCD. He claimed that all the labourers were duly paid their wages for the work done by them and no amount was misappropriated. When A1 was asked about the evidence of the so-called labourers who denied having been engaged or worked, A1 claimed that the wages were disbursed to the actual persons who worked for desilting and no manipulation was done by him. He claimed that a false complaint was made by Smt. Shimla Beniwal and on the basis of that false complaint, false inquiry was conducted and thereafter FIR no. 42/02 was registered illegally and investigated illegally; Shimla Beniwal was not even examined as a witness in the present trial; the present FIR was registered without any preliminary inquiry and therefore it is illegal; all the specimen signatures / thumb impressions of the witnesses are planted and were obtained without permission of the Court; he was implicated in this case and arrested wrongly; the IO manipulated the witnesses and documents; the present FIR Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 21 of 65 22 is a second FIR registered without permission of Court, therefore it is illegal; the Sanction was granted without application of mind and is illegal; and that the witnesses deposed falsely being interested witnesses and it was a false case. He also claimed that at the relevant time there was no requirement of obtaining Id proof of labourers who were engaged from open market being casual labourer and who used to be constantly migrating and whatever names and addresses those labourer told him that used to be recorded in the Mustor Rolls.
6.4. In his first statement, A2 also admitted that he was working as AE in the relevant zone at the relevant time; that the 24 MRs in question were issued to A1 under which A1 engaged 861 casual labourers for desilting of drains between March to June 2002 and that those MRs were prepared by A1. A2 claimed ignorance about obtaining the amount for payment of wages by A1 and about its disbursal. He claimed that being AE he signed the MRs in token of conducting of surprise checks on four occasions during each month regarding the presence of number of labours at site. He claimed that the MRs were not forged; that a false complaint was given; the Vigilance inquiry was a farce; the payments were disbursed in the presence of Vigilance team when he was not even present; the inquiry report as well as FIR are false in which he has been implicated falsely; the expert's opinion is false and procured; he was arrested falsely; the witnesses are interested witnesses. He stated that at the relevant time he was looking after the work of six wards being Ward no. 83 to 86, 97 & 98 in the concerned zone as an Assistant Engineer with three Junior Engineers working under him who were responsible for two Wards each. He also claimed that he was looking after work of three major projects of Yamuna Vikas Board and he used to be busy there. The certificate of disbursement by A1 was given on every Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 22 of 65 23 MR; the payment was released to A1 on the directions of Executive Engineer; there was no complaint from any corner that the work of desilting was not completed; as an AE he was not supposed to engage labourers which was duty of JE or his sub-ordinate staff. The said work was extremely dirty and de-humanizing during those days and nobody used to be willing to do that work and therefore JE used to ask beldar to find labourers. He claimed that his duty was confined to count the number of labourers working at the site and match the same with the MR and it was not his duty to carry out identity verification. There was no requirement to obtain Id proof of labourers and at that time, it was not even required that name of labourers was to be mentioned on the MR as they were not drawn from employment exchange. He also claimed that IO did not investigate the beldars who brought the labourers; has not investigated about completing the work; payment was approved by higher officials of corporation after satisfying themselves about the quality and quantity of work done as per the approved action plan. He claimed that he was innocent. 6.5. In his supplementary statement dated 26.03.2022, A2 admitted that he was working as AE, and his co-accused was working as JE; he denied that on Ex.PW46/A regarding receipt of payment his signature exist at Point PC and that PW46 wrongly identified signatures to be his; he claimed ignorance as to disbursement of wages by his co-accused, claiming that it was not part of his job; unfair investigation was conducted wherein investigating agency failed to establish that the work of desilting was not completed; he did not submit any Mustor Roll for payment; he did not receive any payment; he did not distribute any payment; he did not employ any casual labour. Regarding the testimonies of the so-called labourers who denied having worked for desilting, A2 claimed that he was not aware as Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 23 of 65 24 he did not employ the casual labours and did not make them work on day to day basis, claiming that his job was to accompany the Executive Engineer and to carry out the head count of the labour working at the site without verifying their names or addresses or their ids. He claimed that in a single day several drains had to be visited in different wards and therefore it was practically impossible to carry out one to one verification of the labourers and that on his visit to the sites with the Executive Engineer, he found that the work was being carried on and that no complaint was received from any corner as to completion of the desilting work. Regarding Sanction, even this accused claimed that the Sanction was granted without application of mind and A2 also claimed that even he was implicated falsely and the witnesses deposed falsely being interested witnesses. A2 claimed that at the relevant time he was looking after the work of six Wards in Shahdara, North Zone as an AE, three JEs were working under him who were responsible for the work of two Wards each; he was looking after three major projects in the area and he used to be busy there; the certificate of disbursement of payment was the responsibility of JE; payments were released to the JE on the direction of Executive Engineer; his duty was confined to head count the number of labours working and as to whether the work was being performed commensurate to the number of labours; because of the dirty nature of work, workers were not willing and JE used to rely on the beldars / Mates for employment of labours; he signed the Mustor Rolls in token of conducting of inspection limited to the aspect as mentioned above; the role of an AE and EE was same regarding inspection; he had approximately 58 drains under his jurisdiction and it was humanly impossible to physically inspect every site every day; the prosecution did Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 24 of 65 25 not obtain the Daily Labour Reports which was required as per CPWD Manual and which was the basis of employing the labour.
7. A2 examined one witness in his defence i.e. DW1 Azhar Ali Khan. DW1 deposed that he remained posted in Conservancy & Sanitation Engineering Department of MCD, (CSE) between the period 1993 to 1998 and again from the year 2001 till his retirement. He deposed that the responsibility of cleaning of drains was that of CSE department, where he worked as Executive Engineer as well as Joint Director and thereafter as a Director on being promoted. The CSE department used to attend to the two types of drains i.e., big drains measuring more than 4 feet in width or depth and; other drains which were less than four feet wide or less than four feet in depth. The small drains used to be cleaned by Sanitation staff i.e., Safai Karamcharis etc., usually, and the JE were not responsible for cleaning of small drains, unless there was any specific direction to clean them. The bigger drains used to be got cleaned by the Engineering staff, three months prior to the onset of Monsoon every year. Casual labourers used to be hired on daily basis for cleaning of those bigger drains. Those casual labourers used to be hired from open market and not from any Employment Exchange. Those casual labourers used to be hired by the JE or by "Mate" of MCD. He deposed that, at that time there were no specific guidelines or circulars as to the identity of the casual labourers to be checked, verified or preserved, before hiring them for cleaning of those drains. He also deposed that the duty of day-to-day verification of the work done on the drains was that of JE. Weekly test check was required to be carried out qua the work done by the AE and EE. He clarified that by the 'test check' to be carried out by AE and EE, he meant that the AE and EE were to go and see the rate of completion of work and the number of casual labourers working at the Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 25 of 65 26 spot; whether the number of persons working corresponds to the number reflected in the MR. He deposed that it was not the job of AE or EE to check the identification of each casual labour against the details provided in the MR and that their job was to carry out head count only. He also deposed that after the said head count, the AE was required to put his signature in token acknowledgment of having carried out the head count. When the attention of witness was drawn to the certificates appended on the first page of each of the MR Ex.PW2/A; Ex.PW22/B; Ex.PW7/A; Ex.PW5/A; Ex.PW16/C; Ex.PW22/D to I; Ex.PW16/D; Ex.PW22/J; Ex.PW16/E; Ex.PW9/E; Ex.PW16/F to H, in stamp impression form, the witness claimed that none of those certificates were legible to him. The witness also admitted that on Ex.PW7/B and Ex.PW46/A, there was no such certificate existing. The witness clarified that the said certificate had to be appended on the MR only in the case of permanent labourer and not in the case of casual labours. He also clarified that by the words "Permanent Labourers", he meant that those labourer should have worked with MCD for longer period but were not on Regular Payment Roll of MCD and that the said certificate was to be appended on those MR where the labour had been working for more than 240 days continuously. He specifically deposed that the labour which worked on the drains three months prior to onset of Monsoon was not the labour which had worked for a continuous period of 240 days or more and that since the labourer who worked for cleaning of those drains, were casual labourers, therefore those certificates should not have been appended on the above-mentioned MRs. The witness admitted that Rule no. 9 Ex.DW1/A under Section Nine of CPWD Manual Volume II, was applicable to MCD also. The witness admitted that Rule 9.20 was applicable in case of engagement of casual labourer. The witness also Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 26 of 65 27 clarified that one AE had one JE working under him in a single Ward and one AE had about four Wards under his control and a single Ward had about 8 - 10 drains, depending upon the location of the Ward and the area. The witness also clarified that though it was possible for AE to inspect all the drains located within his jurisdiction in a single day, but practically it was not feasible since AE was supposed to attend to his office work also; meeting with Councilor also and; other urgent work in the area.
8. I have heard Ld. Prosecutor for the State and Ld. Counsels for both the accused.
9. Ld. Prosecutor for the State argued that from the testimonies of the public witnesses examined in this case, it is clear that ghost labourers were named in the MRs and the proportionate amount towards their wages were misappropriated by both the accused persons. It is claimed that the very fact that A2 also signed the MRs and he could not notice and point out any such engagement of ghost labours during inspection, indicates his involvement in the conspiracy and the prosecution thus succeeds in establishing conspiracy, misappropriation of money, forgery / using forged documents and cheating MCD.
10. On the other hand, Counsel for A1 argued that Smt. Shimla Baniwal, on whose complaint inquiry was conducted was not a Councilor in the zone and she was not concerned with the zone and also that she has not been examined in the present trial and was not examined by the IO in the present FIR, therefore, the entire inquiry initiated on her complaint was false, illegal and farce. It is argued that in the inquiry conducted by the Vigilance Department, PW46 Vinod, was prime suspect and he should have been an accused, but the investigating agency at its whims & fancies exonerated him and made him a witness. It is also argued that the investigating agency Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 27 of 65 28 chose to separate the FIRs after registration of FIR No. 42 and various FIRs were registered on the same dispute which is illegal and that too only some out of FIR no. 42 were made accused in this case, leaving others arbitrarily and therefore this case cannot continue against the present accused persons. It is also argued that there was no wrongful loss or wrongful gain claimed by anybody and there were no such allegations; there are no allegations of misappropriation; no money was recovered from the accused; work was admittedly completely done and was completed to the satisfaction; the Head of the inquiry committee was not examined in the present matter; Sanction was granted without application of mind; in the departmental inquiry the A1 was exonerated, therefore, the accused deserves acquittal in the present case also. It is argued that since there are no allegations of 'demand' by A1 from anyone, therefore, no offence under POC Act can continue. It is also argued that the specimen signatures of the public persons were obtained without permission of the Court; the FIR is ante dated and ante timed without any permission from senior officers to register another FIR; PW46 is an unreliable witness since he was himself named in the inquiry report.
11. Counsel for A2 argues that there is no evidence of conspiracy in this matter and ingredients of none of the offences with which A2 has been charged gets invoked. It is claimed that role of A2 was akin to the role of Executive Engineer who have been discharged. It is claimed that neither A2 engaged any labour, nor was it his responsibility to check or collect their identity proofs. All that A2 was duty bound to do was to conduct surprise checks at the site where desilting work was going on and that too in the said checks only head counts of the number of labourers engaged and working and whether the work was commensurate or not was to be checked. It is claimed Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 28 of 65 29 that signatures of A2 on the MRs are only qua surprise checks and not qua certifications. It is also claimed that the contents of the certificates on the first page of the MRs are not legible and were never proved by the prosecution and in any case that certificate was applicable qua permanent labours only and not qua casual labourers engaged from open market. It is argued that at the most case of prosecution against A2 can be that A2 did not conduct test checks. It is claimed that once the work was done and completed and no evidence has been led to show that work was not completed or was done unsatisfactorily, the entire case of the prosecution is fallacious. It is argued that given the quantum of work which A2 was required to perform, which covered as many as 58 drains in his area, it was humanly impossible for A2 to have identify each and every labour. It is also argued that PW46 is unreliable since he did not identify signature of A1 in another case FIR No. 66/03, whereas in the present case he identified the same to be that of A1. It is claimed that when neither A2 was present at the time of engagement of labour, nor he was present at the time of disbursement of payment, he cannot be faulted with. The Court has been taken through CPWD manual Rules, in order to claim that as per those rules nowhere was it the responsibility of A2 to conduct identity verification and nowhere in those rules, there is any mention about the certificates appended on the first page and what applies is rule 9.20 and no other rules. It is also argued that as per Rule 9.3 to 9.5 of the CPWD Manual, Daily Labour Reports (DLR) were to be prepared in the case of casual labourers by the JE which were to be sent to the AE and EE to enable them to verify the workers, however, neither the DLR was procured by the prosecution nor its absence has been explained and therefore, it lends credence to the claim of A2. It is argued that the illegible certificates which are barely visible on the Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 29 of 65 30 front page of the Mustor Rolls are not within the ambit of Clause 9 of CPWD Manual and therefore it cannot form the basis of inferring criminality. It is also argued that no charge for any substantive offence of Sec. 420/409/468/471 of IPC & Sec. 13(1)(c) r/w Sec. 13(2) of POC Act was framed against A2. It is argued that testimonies of DW1, PW22 & PW55 rather lends support to the defence of accused that there was no requirement of collection of Id proofs of labourer. It is also argued that the ingredients of Sec. 420 of IPC are not fulfilled as there is no evidence of intention to cheat from the very inception of desilting work and when desilting was done and no labourer has claimed to have been cheated, Sec. 420 of IPC does not get attracted. It is also argued that ingredients of Sec. 409/120B/468 & 471 of IPC also are not fulfilled and regarding forgery reliance is placed upon the case of Sheila Sebestian Vs. R. Jawaharaj (2018) 7 SCC 581. It is also argued that not even a single worker examined by the prosecution has identified A2 and IO did not collect residence proof of those workers and there is no witness examined to prove that A2 carried out the test check or signed the Mustor Rolls in token of the same.
12. As mentioned above, it is an admitted case of the two accused that both of them were respectively posted as JE and AE in the concerned Ward at the relevant time. It is not in dispute that under the Mustor Rolls in question work of desilting was initiated and for that purpose A1 engaged casual labourers from open market and named 861 total number of casual labourers in the 24 Mustor Rolls. A1 also admitted that he received payment from cashier to be disbursed to the labourers. He claimed that he disbursed the entire wages to the actual persons who had worked under the Mustor Rolls in question.
Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 30 of 65 3113. Though, both the accused challenged the Sanction accorded against the two accused claiming that the Sanction was accorded without application of mind by the Sanctioning Authority, but besides making those bald allegations no substantive argument could be raised and nothing substantive could be shown to the Court by either of the accused as to why the Sanction Ex.PW47/A & 51/A are not valid. The two Sanction orders, specifically mentions in detail as to the material taken into consideration by the sanctioning authority before according the sanctions. Merely because the Sanctioning Authority did not personally peruse the MRs in question, would be insufficient to hold that the Sanctioning authority accorded Sanction without application of mind.
13.1. In the case of Vinod Kumar Garg v. State (NCT of Delhi), (2020) 2 SCC 88, it is observed as follows;
"25. On the said aspect, the later decision of this Court in State of Maharashtra v. Mahesh G. Jain [State of Maharashtra v. Mahesh G. Jain, (2013) 8 SCC 119: (2014) 1 SCC (Cri) 515: (2014) 1 SCC (L&S) 85] has referred to several decisions to expound on the following principles of law governing the validity of sanction: (SCC pp. 126-27, para 14)
"14.1. It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
14.2. 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. 14.3. The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it.
Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 31 of 65 3214.4. Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
14.5. The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order. 14.6. If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction.
14.7. The order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper technical approach to test its validity." ...............
28. This Court in Ashok Tshering Bhutia v. State of Sikkim [Ashok Tshering Bhutia v. State of Sikkim, (2011) 4 SCC 402: (2011) 2 SCC (Cri) 258: (2011) 2 SCC (L&S) 697] referring to the earlier precedents has observed that a defect or irregularity in investigation however serious, would have no direct bearing on the competence or procedure relating to cognizance or trial. Where the cognizance of the case has already been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless a miscarriage of justice has been caused thereby. Similar is the position with regard to the validity of the sanction. A mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby. Section 19(1) of the Act is matter of procedure and does not go to the root of the jurisdiction and once the cognizance has been taken by the court under the Code, it cannot be said that an invalid police report is the foundation of jurisdiction of the court to take cognizance and for that matter the trial."
13.2 In the case of Girish Kumar Suneja v. CBI, (2017) 14 SCC 809, a three judges bench of Supreme Court made following observations: -
Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 32 of 65 33"67. In CBI v. V.K. Sehgal [CBI v. V.K. Sehgal, (1999) 8 SCC 501: 1999 SCC (Cri) 1494] it was held that for determining whether the absence of, or any error, omission or irregularity in the grant of, sanction has occasioned or resulted in a failure of justice, the court has a duty to consider whether the accused had raised any objection on that score at the trial stage. Even if it had been raised at the trial and early enough, it would not be sufficient to conclude that there was a failure of justice. Whether in fact and in law there was a failure of justice would differ from case to case but it was made clear that if such an objection was not raised in the trial, it certainly cannot be raised in appeal or in revision. It was explained that a trial involves judicial scrutiny of the entire material before the Special Judge. Therefore, if on a judicial scrutiny of the evidence on record the Special Judge comes to a conclusion that there was sufficient reason to convict the accused person, the absence or error or omission or irregularity would actually become a surplusage. The necessity of a sanction is only as a filter to safeguard public servants from frivolous or mala fide or vindictive prosecution. However, after judicial scrutiny is complete and a conviction is made out through the filtration process, the issue of a sanction really would become inconsequential."
14. Prosecution has examined 35 witnesses from public persons, all of whom specifically deposed that their names were though mentioned in the various entries in the Mustor Rolls claiming that they had worked as labourer for desilting of drain, but they were never engaged by MCD for desilting of drains; they did not ever work as such; they did not receive any amount mentioned against the entries bearing their names and; that they did not append the signatures / thumb impressions in token of receipt of payments as mentioned in those entries. The said entries are mentioned in the table in Para 5 above. The witnesses who specifically so deposed are PW2 Ajay Kumar Goyal; PW6 Amarnath; PW7 Satish; PW8 Satdev; PW9 Rajiv Kumar; PW11 Rupesh Kumar; PW12 Vinod; PW13 Anil Kumar; PW14 Tikaram; PW15 Bona Lal; PW18 Jagbir Singh; PW19 Vinod; PW20 Nawal Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 33 of 65 34 Singh; PW21 Jaswant; PW23 Jiva Ram; PW24 Kumar Gaurav; PW25 Suresh; PW26 Sanjiv Kumar; PW27 Nathu Singh; PW28 Rajesh; PW29 Vicky; PW30 Ahmad; PW31 Anil; PW32 Inderjeet; PW33 Govind Ram; PW34 Ranjeet; PW35 Raju; PW36 Ved Prakash; PW37 Ashok Kumar; PW38 Ram Babu; PW40 Satbir; PW42 Amit Kumar; PW43 Rajender; PW44 Ram Niwas and; PW56 Rajender. Some of them even deposed that none of their relatives also ever worked as such and even signatures of their relatives were forged and some of them even deposed that no person as named in the Mustor Rolls ever resided in their house during the relevant period.
14.1. In cross examination of none of the above mentioned 35 persons anything material came out in favour of the accused to create any doubt as to the veracity of these witnesses. All these above named witnesses were categorical and consistent that they never worked as labourer, did not receive any payment and, did not sign the Mustor Rolls. 14.2. Specimen signatures / thumb impressions of some of them were also collected by the investigating agency. The report of hand writing expert / finger print expert has been exhibited by the investigating officer in the present matter as Ex.PW57/D & E. No objection as to the exhibiting of the expert's report was raised by the accused persons and therefore even though those two reports were exhibited by the IO, since no objection as to the mode of proof was raised, therefore the accused persons cannot challenge those reports at a subsequent stage. (Reliance R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple (2003) 8 SCC 752.) 14.3. The hand writing expert's report Ex.PW57/E establishes that the specimen of PW12 Vinod; PW29 Vicky; PW23 Jiva Ram; PW33 Govind; PW31 Anil; PW30 Ahmad; PW24 Kumar Gaurav; PW28 Rajesh; PW32 Inderjeet;
Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 34 of 65 35PW26 Sanjeev and; PW25 Suresh, does not match with their respective questioned signatures on the Mustor Rolls in question. The report Ex.PW57/E specifically mentions that the specimen S-1 & S-2 Ex.PW19/A of PW12 Vinod does not match with the questioned signature Mark Q-1 on Mustor Roll Ex.PW11/A at Sl.No. 44. The report Ex.PW57/E also specifically mentions that the specimen S-7 & S-8 Ex.PW29/A & B of PW29 Vicky does not match with the questioned signature Mark Q-4 on Mustor Roll Ex.PW22/B at Sl.No. 17 and the questioned signature Mark Q- 11 on Mustor Roll Ex.PW23/A at Sl. No. 17. The report Ex.PW57/E also specifically mentions that the specimen S-9 & S-10 Ex.PW23/B & C of PW23 Jiva Ram does not match with the questioned signature Mark Q-5 on Mustor Roll Ex.PW22/B at Sl.No. 18 and the questioned signature Mark Q- 12 on Mustor Roll Ex.PW23/A at Sl. No. 18. The report Ex.PW57/E also specifically mentions that the specimen S-11 & S-12 Ex.PW33/A & B of PW33 Govind does not match with the questioned signature Mark Q-13 on Mustor Roll Ex.PW23/A at Sl.No. 19. The report Ex.PW57/E also specifically mentions that the specimen S-13 & S-14 Ex.PW31/A & B of PW31 Anil does not match with the questioned signature Mark Q-7 on Mustor Roll Ex.PW22/B at Sl.No. 20 and the questioned signature Mark Q- 14 on Mustor Roll Ex.PW23/A at Sl. No. 20. The report Ex.PW57/E also specifically mentions that the specimen S-15 & S-16 Ex.PW30/A & B of PW30 Ahmad does not match with the questioned signature Mark Q-8 on Mustor Roll Ex.PW22/B at Sl.No. 23 and the questioned signature Mark Q- 15 on Mustor Roll Ex.PW23/A at Sl. No. 23. The report Ex.PW57/E also specifically mentions that the specimen S-17 & S-18 Ex.PW24/A & B of PW24 Kumar Gaurav does not match with the questioned signature Mark Q-9 on Mustor Roll Ex.PW22/B at Sl.No. 31 and the questioned signature Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 35 of 65 36 Mark Q-16 on Mustor Roll Ex.PW23/A at Sl. No. 31. The report Ex.PW57/E also specifically mentions that the specimen S-19 & S-20 Ex.PW28/A & B of PW28 Rajesh does not match with the questioned signature Mark Q-10 on Mustor Roll Ex.PW22/B at Sl.No. 37 and the questioned signature Mark Q-17 on Mustor Roll Ex.PW23/A at Sl. No. 37. The report Ex.PW57/E also specifically mentions that the specimen S-21 & S-22 Ex.PW32/A & B of PW32 Inderjeet does not match with the questioned signature Mark Q-18 on Mustor Roll Ex.PW7/A at Sl.No. 10 and the questioned signature Mark Q-23 on Mustor Roll Ex.PW7/B at Sl. No. 10. The report Ex.PW57/E also specifically mentions that the specimen S-29 & S-30 Ex.PW26/A & B of PW26 Sanjeev does not match with the questioned signature Mark Q-22 on Mustor Roll Ex.PW7/A at Sl.No. 38 and the questioned signature Mark Q-27 on Mustor Roll Ex.PW7/B at Sl. No. 38. The report Ex.PW57/E also specifically mentions that the specimen S-31 & S-32 Ex.PW25/A & B of PW25 Suresh does not match with the questioned signature Mark Q-28 on Mustor Roll Ex.PW5/A at Sl.No. 33. In the report Ex.PW57/E, the handwriting expert also gave opinion that the specimen of two more disputed labourers namely Bhagwan Dass and Sushil did not match with the questioned signatures on Ex.PW7/A, 7/B at Sl.No. 27 & 32, respectively. But those two persons could not be examined in the present matter as prosecution's witness. Qua specimen of PW7 Satish as S- 23 & S-24 Ex.PW41/A & B, no opinion could be given by the handwriting expert.
14.4. Merely because specimen signatures/thumb impressions of public witnesses were obtained without permission of Court, is insufficient to discard the expert's reports Ex.PW57/D & E. Court's permission would have been necessary had specimen of the accused persons were obtained Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 36 of 65 37 and not for obtaining specimen of the witnesses. Those witnesses did depose giving specimen signatures / thumb impressions during investigation.
14.5. Even though the investigating officer admittedly did not obtain specimen signatures / thumb impressions of some of the public witnesses and did not collect their admitted signatures, that fact would not make any difference. What is important, and is primary evidence, is the testimonies of these witnesses in the Court that they did not sign the disputed entries. It is the primary evidence which has to be given weightage and the handwriting expert's opinion would have been at the most corroborative piece of evidence. The primary evidence is the testimonies of all the above named public persons who specifically denied having worked, having received payment or having signed the Mustor Rolls. It is their oral testimony in the Court which is primary evidence as to forgery of their signatures / thumb impressions. None of these witnesses had any plausible reason to falsely depose against the accused persons. Therefore, even if the handwriting expert's opinion is not taken into consideration, the primary evidence of the witnesses does prove that their signatures were forged by someone on the MRs.
14.6. Besides these witnesses, even PW39 Bhola deposed that he did not work as labourer for desilting and he did not receive any payment. Though this witness claimed that the entry in Mustor Roll Ex.PW8/A contains his signature, and even if the testimony of PW39 is taken as not against the accused persons, yet the testimonies of other 35 witnesses clinches the issue that names of those 35 witnesses/ their family members were falsely entered in various Mustor Rolls prepared by A1, and the signatures / thumb Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 37 of 65 38 impressions of those witnesses and / or their relatives were forged by someone on the Mustor Rolls.
14.7. Thus, the prosecution succeeds in proving the fact that the above named 35 persons and /or their relatives never were engaged as labourers for desilting and they never worked as such, they never received any such payment and; they or their relatives did not sign the Mustor Rolls in token of receipt of payments reflected against their names, whereas payments were shown to have been disbursed to them by forging their signatures / thumb impressions.
14.8. PW1 Laxman; PW3 Chander Pal; PW4 Ishwar and PW10 Suresh Chand, all deposed that in their respective houses at the relevant time no labour as named in the Mustor Rolls with their addresses, ever resided. PW5 Satish also deposed that his brother Bhram Prakash never worked for desilting and he did not sign the Mustor Roll in question. The testimonies of even these five witnesses has remained unimpeached and there is no reason for this Court to doubt the veracity of the testimonies of these witnesses. Even they do not have any reason to falsely depose against the accused persons. Accordingly, even from testimonies of these five witnesses it is established beyond doubt that name of few labourers with the addresses of these witnesses were falsely entered in the Mustor Rolls and payments were shown to have been disbursed to them by forging their signatures / thumb impressions.
14.9. Thus, from the testimonies of above mentioned 40 persons, it is proved beyond reasonable doubt by the prosecution that the entries qua the labourers respecting the addresses of these witnesses were falsely entered in the Mustor Rolls and signatures qua those entries were forged and the Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 38 of 65 39 payments shown to have been made to those labourers was in fact not made to anyone.
14.10. The argument of A1 that some out of the 40 public witnesses examined in the matter admitted that they had not seen the Mustor Rolls during investigation, cannot go in favour of the accused for the reason that these witnesses were examined in this matter more than a decade after the alleged work was carried out and investigation was undertaken. They may or may not have correctly remembered whether they saw the Mustor Rolls during investigation or not. Once witnesses are examined after a long gap, these small omissions are bound to occur and cannot be given any undue weightage. Once they deposed in the Court, after seeing the disputed entries in the Mustor Rolls, that the disputed entries in the Mustor Rolls do not contain their signatures, it is their testimonies in the Court which matters.
15. But the question is whether those forgeries can be attributed to the accused? 15.1. In order to sustain a conviction under Section 468, first it has to be proved that forgery was committed under Section 463, implying that ingredients under Section 464 should also be satisfied. Therefore, unless and until ingredients under Section 463 are satisfied a person cannot be convicted by solely relying on the ingredients of Section 464, as the offence of forgery would remain incomplete. An offence of forgery cannot lie against a person who has not created it or signed it. In this case, it is proved that the signatures of abovementioned labourers were forged by someone. 15.2. The argument of accused that the MRs cannot be called forged documents, as they were legitimately prepared for desilting, placing reliance upon the judgment of Hon'ble Supreme Court in the case of Sheila Sebestian (Supra), is without force. The MRs as a whole may not have been a forged document when they were prepared for the purposes of desilting by A1. However, the Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 39 of 65 40 moment signatures qua the disputed entries were forged / got forged, the said entries became forgery as it would fall within the definition of preparing false document as defined in Sec. 463 & 464 of IPC. Section 470 of IPC provides that a false document made wholly or in part by forgery is designated "a forged document".
15.3. The prosecution however failed to prove that those entries or any of them are in the handwriting of A1 or A2 and any of those entries bear forged signatures under the hand of either of the accused. The investigating agency chose to not collect specimen signatures / handwritings or admitted handwriting / signatures of either of the accused. No witness has deposed that any of those entries are in the hand writing of either of the accused. The prosecution did not examine any of the labourer who actually worked and actually received payment to prove the fact as to whether either of the two accused personally prepared those entries or forged the signatures in question. The prosecution never even attempted to collect specimen signature / thumb impression or admitted signature / writings of either of the accused and never got it compared with the disputed entries and the signatures / thumb impressions and therefore it is not proved by the prosecution that it was either of the two accused or more particularly A1 who forged those entries, though those entries were indeed forged by someone.
16. Thus, the prosecution failed to prove that any of the forged signatures / thumb impressions on the above mentioned disputed 63 entries in the Mustor Rolls, were forged by A1 or by A2, therefore, neither of them can be held guilty U/s 468 of IPC. For convicting a person U/s 468 of IPC, it is necessary to prove that the said person committed the forgery. Reliance in this regard can be placed upon the case of Shiela Sebestian (Supra). Thus, Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 40 of 65 41 neither A1 nor A2 can be held guilty U/s 468 of IPC for forging those thumb impressions / signatures.
17. However, A1 being Junior Engineer and primarily and solely responsible for preparation, maintenance and safe custody of the MRs, can be safely held guilty U/s 471 of IPC. Sec. 471 of IPC makes punishable an act where anyone fraudulently or dishonestly uses as genuine any document which he knows or even has reason to believe to be forged.
17.1. A1 being JE and solely responsible for accurate preparation, maintenance and custody of those Mustor Rolls, even if it is not proved by the prosecution that he himself forged those disputed signatures / thumb impressions, it can be safely inferred that A1 at least had reasons to believe the same to be forged. It is so, because it is not a solitary instance out of 861 labourers in 24 Mustor Rolls about forgery of signature /thumb impression, but as many as 63 such entries, as mentioned in table in Para 5 are proved to be forged.
17.2. On the Mustor Roll no. 61924 Ex.PW5/A, on the last page the first certificate as to payment order is signed by the Executive Engineer and the Accountant (Lekhpal). The other two certificates are signed by A1. The second certificate on the last page of each of the Mustor Rolls is a certificate as to the amount of payment made, the date when the payment was made and, the balance amount if any. This certificate has not been filled up. Without filling up the certificate, A1 has signed it at point RC. Similarly, the third certificate on the last page of each of the Mustor Roll is a certificate which speaks about the fact that it was to be certified that payment was made in the presence of the officer certifying it, in which the amount paid was to be mentioned and also the certificate provides that the person signing the certificate certifies that the labourers named in the Mustor Roll were Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 41 of 65 42 actually worked for MCD and the payment was made to those very persons / labourers to whom the payment was due in presence of the person issuing this certificate. Even this certificate is signed by A1 at point RC. This is the situation qua the certificates on the last page in Mustor Roll no. 53915 Ex.PW16/C; Mustor Roll no. 61930 Ex.PW7/A; Mustor Roll no. 61920 Ex.PW8/A and; Mustor Roll no. 61928 Ex.PW16/F. In the Mustor Rolls mentioned in this paragraph, the certificate no. 2 & 3 on each of the Mustor Rolls on the last page are though signed by A1, but those certificates are not even filled up and yet signed by A1 without filling up the certificates. 17.3. Mustor Roll no. 61926 Ex.PW2/A; Mustor Roll no. 419 Ex.PW46/A;
Mustor Roll no. 414 Ex.PW7/B; Mustor Roll no. 61927 Ex.PW9/A; Mustor Roll no. 61922 Ex.PW11/A; Mustor Roll no. 61929 Ex.PW22/B; Mustor Roll no. 411 Ex.PW23/A; also similarly contains three certificates on the last page of the Mustor Rolls. The first certificate is signed by the Executive Engineer and the Accountant, whereas the certificate no. 2 & 3 are signed by A1.
17.4. None of these three certificates are signed by A2. All these certificates no.
2 & 3 on the last page of each of the Mustor Rolls mentioned above, are certificates issued by A1 as to making of payment to the labourers and no amount being left over and, in these certificates A1 has certified that the payment was made to the labourers named in the Mustor Rolls who had actually worked for MCD and also that the payment was made to the labourers in his presence.
17.5. In the present matter, once it is proved that the labourers claimed to have been engaged were ghost labourers and no such labourer existed or worked and their disputed 63 entries contain forged signatures / thumb impressions, A1 who was responsible to prepare, maintain and keep the Mustor rolls in Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 42 of 65 43 safe custody can be safely imputed reasons to believe that those signatures were forged. A1 admitted that he received payment from cashier to be disbursed to the labourers. He claimed that he did disburse the entire wages to the actual persons who had worked under the Mustor Rolls in question. But then it was found that many of them did not sign the MRs and many of them did not even exist. A1 therefore has to be imputed at least the reasons to believe that the persons who are claimed to have signed the MRs did not actually do so. Thereafter, he deposited the MRs back in the MCD after payments were claimed to have been made. Thus, he used those MRs containing forged signatures/thumb impressions when he finally deposited them in MCD after the disputed payments, at least having reasons to believe them to be containing forged signatures and thumb impressions, as he had sufficient cause to believe them to be forged. Therefore, A1 is also found guilty U/s 471 of IPC also.
18. Turning to the charges under Section 409 IPC and Sec. 13(1)(c) of POC Act, 1988, section 409 of IPC pertains to criminal breach of trust by a public servant or a banker, in respect of the property entrusted to him. The entrustment of public property and dishonest misappropriation or use thereof in the manner illustrated under Section 405 are a sine qua non for making an offence punishable under Section 409 IPC. Unless it is proved that the accused, a public servant or a banker etc. was 'entrusted' with the property which he is duty bound to account for and that such a person has committed criminal breach of trust, Section 409 IPC may not be attracted. The onus is on the prosecution to prove that the accused, a public servant or a banker was entrusted with the property which he is duly bound to account for and that he has committed criminal breach of trust. (Sadupati Nageswara Rao v. State of Andhra Pradesh 9 (2021) 8 SCC 547).
Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 43 of 65 4418.1. Sec. 13(1)(c) of POC Act, 1988, as was inforce at the time of offence of this case specifically provided that a public servant is said to commit the offence of 'criminal misconduct' if the public servant dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant. It also provides that even if such a public servant allows any other person to so misappropriate or convert for his own use any such property, still the public servant would be guilty of criminal misconduct. Sec. 13(2) of the POC Act, 1988, provides punishment for the offence of criminal misconduct. It is not in dispute that A1 was a public servant at the relevant time.
18.2. PW46 Vinod Kumar has proved that as per entry in the cash book, Rs.
14,22,326/- & Rs. 6,40,000/- were handed over to A1 on 19th & 22nd July, 2002 for disbursal of wages. The entry is proved as Ex.PW46/E bearing signature of A1. The witness also identified the voucher no. 7 to 38, dated 18.07.2002 corresponding to the MRs concerned. Witness also deposed that on 30.07.2002, a sum of Rs. 9,71,922/- was also handed over to A1 through one Agnesh Verma, another JE, with respect to 13 MRs vide entry Ex.PW46/F bearing signatures of Agnesh Verma. The witness also deposed that as per record, A1 did not deposit any balance from the said amount. In the evidence of PW46 Vinod, it has specifically come that the first certificate / order at Point X to X on the last page of each of the Mustor Rolls, the Executive Engineer ordered release of amount for payment. It has also come that thereafter the amount was received in the Zonal office and then the amount was transferred to the EE and then the amount was disbursed to the JE.
18.3. In his statements under section 313 Cr. P. C., A1 clearly admitted that he Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 44 of 65 45 was working as JE in Ward no. 85 & 86 during March 2002 to June 2002 and that the 24 Mustor Rolls were issued to him, which bears his signature. A1 also admitted that he received the cash amount from the cashier i.e. Rs. 14,22,326/- on 19.07.2002, and Rs. 6,40,000/- on 22.07.2002. He admitted that the said payment was received by him towards the Mustor Rolls in question. He admitted that another sum of Rs. 9,71,922/- was also received by him through his colleague Agnesh Verma. He claimed that the entire above mentioned payment received by him was distributed and disbursed to the labourers employed by him and since no amount was left with him after payment to the labourers, therefore he did not deposit back or return any leftover amount. A1 admitted that after collecting the payment and alleged disbursal of the payment, the MR were resubmitted to the MCD. He claimed that all the labourers were duly paid their wages for the work done by them and no amount was misappropriated. When A1 was asked about the evidence of the so-called labourers who denied having been engaged or worked, A1 claimed that the wages were disbursed to the actual persons who worked for desilting and no manipulation was done by him.
18.4. Thus, entrustment of the amount to A1 for paying wages to the Labourers named in the MRs, is proved beyond reasonable doubt. Though A1 claims to have paid the amount to all the labourers actually claimed to have been employed, but it is also proved that at least 63 such entries showing payments were false. Meaning thereby that the respective amounts claimed to have been disbursed was not disbursed qua those 63 entries. No amount was returned by A1.
18.5. A1 received cash amount towards wages of those ghost labourers, totaling Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 45 of 65 46 an amount of Rs. 1,57,143/-, as mentioned in the table in Para 5. He did not deposit back the said amount of wages and instead claimed to have disbursed that amount. Thus, he misappropriated the said amount which was entrusted to him for being paid to the labourers.
18.6. To establish the charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion. The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted if proved, may, in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion. (Reliance Ram Narayan Popli v. CBI, (2003) 3 SCC 641 and; Jaikrishnadas Manohardas Desai v. State of Bombay AIR 1960 SC 889) 18.7. Thus ingredients of section 409 IPC as well as section 13(1)(c) of POC Act are fulfilled against A1. There is however no evidence qua entrustment or misappropriation against A2.
18.8. The argument of A1 that since there are no allegations of 'demand' by A1 from anyone, therefore, offence of POC Act cannot continue, is misplaced. The requirement of 'demand' would be necessary U/s 7 of POC Act, 1988 and may be Sec. 13(1)(d). But in the present case the accused is charged U/s 13(1)(c), which speaks about 'criminal misconduct' where the public servant dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or where a public servant allows any other person to so misappropriate or convert for his own use any such property. The Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 46 of 65 47 allegations of 'demand' is not necessary for an offence U/s 13(1)(c). 18.9. Therefore, A1 is also found guilty U/s 409 of IPC as well as section 13(1)(c) of POC Act also.
19. As to the charge under Section 420 IPC, it provides that whoever cheats and thereby dishonestly induces a person deceived to deliver any property to any person, or to make, alter or destroy, the whole or any part of valuable security, or anything, which is signed or sealed, and which is capable of being converted into a valuable security, shall be liable to be punished. There are, three components of this offence, i.e., (i) deception of any person, (ii) fraudulently or dishonestly inducing that person to deliver any property to any person, and (iii) mens rea of the accused at the time of making the inducement. For the offence of cheating, fraudulent and dishonest intention must exist from the inception when the promise or representation was made. The word 'dishonestly' emphasizes a deliberate intention to cause wrongful gain or wrongful loss, and when this is coupled with cheating and delivery of property, the offence becomes punishable under Section 420 IPC.
19.1. It may be mentioned here that since Sec. 409 of IPC i.e. Criminal breach of trust by a public servant and the offence of cheating punishable U/s 420 of IPC are completely different offences and both those offences cannot go together. Though not specifically mentioned in the charge framed by the Ld. Predecessor, but the charge U/s 409 & 420 of IPC had to be in the alternative. It is so because a property which is obtained dishonestly and fraudulently by cheating someone, cannot be claimed to have been entrusted. Entrustment and obtaining a property by cheating someone are completely two different things. Thus, once it is proved that A1 was Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 47 of 65 48 entrusted with the money towards payment of wages, which he criminally misappropriated, A1 cannot be held guilty U/s 420 of IPC also.
20. The next question is that once it is held that there is no evidence to hold either of the accused guilty for forgery punishable under section 468 of IPC, despite the fact that it is proved that the 63 entries were dishonestly and fraudulently made in the above mentioned MRs, can A1 claim that he is completely innocent as to making of those entries in the MRs. The answer to the said question has to be obviously in the negative for the following reasons.
20.1. A1 being JE was responsible to prepare the MRs by correctly entering name, parentage and address of the labourers actually engaged by him. A1 was responsible for issuance of wages and disbursement of wages to the labourers as per the respective entries in the MRs. A1 specifically admitted in his statement that he received the payment from cashier and he claimed that he disbursed entire wages and since no amount was left over, therefore he did not redeposit any amount with MCD. A1 also specifically claimed that he made payment to the actual labourers named in the MRs. But then from the testimonies of above mentioned 40 witnesses from public, it is proved beyond doubt that several such entries as mentioned in the table in Para 5 were incorrectly made in the MRs and signatures / thumb impressions against those entries were forged and no such person worked as labourer or some of them did not even exist.
20.2. It cannot be sheer coincidence that as many as 40 public witnesses, who deposed in the Court, were named by the so-called labourers engaged under the Mustor Rolls in question and it could not have been sheer coincidence Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 48 of 65 49 that all those disputed labourers revealed the exact addresses which matched with the addresses of the 40 witnesses named above. Law of probability completely rules out that possibility. Even if a person willing to work as a labourer for some reason wanted to conceal his own actual identity, in how many cases the name of the witnesses of this case, or their relatives, their parents and their addresses would have matched? Had it been a case where either the name or only the parentage or only the addresses of witnesses did not match, still one could have argued that someone worked as a labour by giving false particulars. But it cannot be sheer co-incidence that all those labours not only gave the name corresponding / matching to the witnesses, but also gave the same parentage and addresses. The very fact that those 63 entries corresponds to the name, parentage and addresses of the 40 witnesses examined in this case, rather indicates that it was only and only because of deliberate false entries as to the name of labourers, their parentage and their addresses done by A1 or at his behest.
20.3. It is clearly mentioned in Rule 9.8 that at the close of the MRs it was the Junior Engineer who was supposed to give certificate under his dated signatures on the MRs as well as the Daily Labour Reports in the following words "Certified that the workers mentioned in the Mustor Rolls were actually employed by me on government work". As per Rule 9.9, after closing of the MR the JE In-charge of the work was supposed to complete all formalities regarding making entries in the measurement book, work out cost of the work etc. and it was then the MR was to be submitted to the Assistant Engineer concerned within two days. As per Rule 9.5 to 9.7 preparation of MRs and checking presence / attendance / details of the labourers was responsibility of JE only.
Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 49 of 65 5020.4. A1 cannot claim ignorance and cannot take shelter under the plea that he delegated the work to his sub-ordinates or his Mates / contractors for engaging those labourers. Even if he relied upon Mates and Contractors in engaging the casual labourers, he was duty bound to have correctly recorded the Mustor Rolls; he was duty bound to have ensured that payments were made to only those persons who had actually worked for desilting.
20.5. Though, it was vehemently argued on behalf of both the accused that at the time when the desilting of the present case was got done, there was no requirement of verifying or establishing identity of the labourers, but that argument does not help the accused persons. Even if it is assumed for the sake of arguments that A1 was not required to cross check and verify the name and addresses of the labourers from the Id proof or that the casual labourers would not have carried such Id proofs, yet A1 being a government servant ought to have satisfied himself that he was recording or getting recorded the correct name, parentage and address of the labourers. Even if he was not to collect their Id proofs, he was duty bound and ought to have exercised due diligence in recording correct name and addresses. The very fact that it cannot be a sheer coincidence that not one, not two, but as many as 63 such false entries were found coupled with the fact that it is not a case where assumed name and addresses were given, or that all those addresses were found to be not existing, but is a case which does match with the addresses of the witnesses clinches the issue that A1 or someone under him did deliberately note wrong name, parentage and addresses of the labourers. Even if it is to be assumed that A1 did not personally made those entries in the Mustor Rolls, yet A1 was under obligation of exercising of due care and diligence being a public servant, that whoever made those entries under Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 50 of 65 51 him, makes them correctly. Not only false names were entered, but also payments were made to those ghost labourers.
20.6. The argument of accused that the investigating agency did not collect residential proof addresses of the 40 public witnesses examined by the prosecution qua the disputed labourers entries, does not help the case of accused. Even if the residence proof of the witnesses were not collected by the investigating agency and were not proved, that by itself does not make any of them unreliable. Accused did not examine anyone to prove that any one of these 40 witnesses of public were not owners / residents of the addresses mentioned by them.
20.7. Similarly, merely because the employment proof of those public witnesses as to their actual employment was not collected by the investigating agency, cannot go in favour of the accused as neither that was mandatory nor it would have made any difference once the witnesses have specifically deposed that they did not work for desilting of drains. Once the witnesses specifically deposed that they did not work for desilting of drains, it does not really matter as to what particular job / business / occupation the witnesses were actually doing. It is not the case of A1 that those 40 public witnesses who stepped into the witness box and denied having worked for desilting, had actually worked or that they were falsely deposing against A1. No such fact has been proved against any of those 40 public witnesses. 20.8. The fact that in some of the entries the name of the labourer or the parentage has been mis-spelled or is different also does not exonerate A1 as it is proved that those entries were incorrectly made and respective payments as wages to those ghost labourers claimed to have been made by A1 was in fact never made and the amount was misappropriated instead.
Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 51 of 65 5220.9. The argument of A1 that Smt. Simla Beniwal, on whose complaint vigilance inquiry was conducted by MCD was not a Councilor; she was not concerned with the zone; she has not been examined in the present trial; she was not examined by the IO, therefore the inquiry; the inquiry report; the complaint by vigilance branch; the lodging of FIR No. 42/02; or registration of the subsequent present FIR is illegal, is baseless and ought to be rejected. In a commission of cognizable offence, even if a complaint is lodged by a person unconnected with the offence, law permits registration of FIR and consequent investigation. In a cognizable offence, even a police official could have registered the FIR on his own knowledge and could have undertaken investigation.
20.10. The argument of accused that after registration of FIR no. 42/02, police could not have registered the present second FIR that too without conducting preliminary inquiry, is also baseless. When the investigating agency, during investigation of FIR No. 42/02 found that in different zones of MCD various such Mustor Rolls were incorrectly prepared, forgery was committed and, money was misappropriated, the investigating agency was within its right to have separately registered FIR for every such separate offence. The case of investigating agency is that the commission of offence under the present FIR and the conspiracy is different from commission of similar offences qua other Mustor Rolls prepared by other JEs, which are subject matters of other FIRs.
20.11. Law does not make it mandatory that before registration of FIR under PC Act offences, preliminary inquiry ought to have been conducted. Though, such an inquiry of preliminary nature may be desirable in some peculiar cases, it is not mandatory in every case. In this regard, one may place reliance upon the case of CBI Vs. Thommandru Hannah Vijayalakshmi Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 52 of 65 53 alias T.H. Vijayalakshmi and Another 2021 SCC OnLine SC 923. In any case, before registration of FIR of the present case, Inspector Rajender Prasad who was investigating another FIR did inquire into the existence of labourers and it was only when he had found few labourers who had denied having worked for desilting, that the present case was got registered. 20.12. The arguments of the accused persons that the investigating agency did not seize the Measurement Books (MB) and those Measurement Books were not proved in the trial of the case, does not help either of the accused. Undoubtedly, the MB were not seized and were not proved, but then even without those registers the case of the prosecution as to indicating ghost labourers in the MR gets proved. If the accused persons were so confident that the MB would have thrown any light in their favour, they could have proved the same by summoning them U/s 91 Cr.P.C.. But it was not done. Similarly, the argument that none of the senior officers of MCD, while processing the MR for payment, raised any objection as to the work done inadequately or incompletely, does not help the case of accused in any manner.
20.13. The argument of the accused persons that the work of desilting was completed and the investigating agency did not even attempt to collect any evidence that the work was not done or was partly done or was done unsatisfactorily, therefore, neither misappropriation nor cheating can be claimed, is without force. Indeed, investigating agency did not collect any evidence and did not prove that the desilting work was not done or was done unsatisfactorily or was incompletely done, but then the said fact alone cannot go in favour of the accused for the reason that it might well be a case where the same amount of work was got done by A1 from lesser number of labourers of which Sanction was obtained.
Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 53 of 65 5420.14. Merely because the Head of inquiry committee of MCD was not examined in the present matter would not be a circumstance in favour of the accused and the accused cannot claim acquittal on that ground either. 20.15. Though, it is argued by A1 that the FIR of this case was ante dated, ante timed and that PW46 was an unreliable witness, but besides making those bald allegations and claim, not even a single supporting argument was raised as to how the FIR was ante dated or ante timed or as to why PW46 is an unreliable witness.
20.16. Merely because role of PW46 was under cloud and suspicious in the inquiry report in internal inquiry conducted by the Vigilance Branch of the MCD, that would not make PW46 an unreliable witness. After all, PW46 as a cashier and MCD official who merely deposed about issuance of the Mustor Rolls to A1 and, issuance of cash to A1 for disbursement. Those facts are even otherwise admitted by A1 and are not in dispute that he was issued the Mustor Rolls in question and that he received the cash amount for disbursement of wages. Merely because PW46 may not have adhered to strict procedures at the time of issuance of cash etc., it would not make him an unreliable witness in any manner.
20.17. The argument of accused that no charge of substantive offences was framed, has to be rejected as the charge framed would reveal that in the first para charge of criminal conspiracy punishable U/s 120B of IPC was separately framed and the charges for the substantive offences U/s 13(1)(c) of POC Act, Sec. 409/420/468 & 471 of IPC were also specifically separately framed read with Sec. 120B of IPC in the subsequent para no. 2 to 6 of the charge.
20.18. Accused cannot claim shelter under the plea that in the case of casual labourers, Daily Labour Reports were to be prepared and not the Mustor Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 54 of 65 55 Rolls. If that was so, why did A1 prepare MRs? He admittedly prepared and maintained those MRs. Even if he was issued MRs and not the DLRs by the MCD, and even if it was against CPWD Manual, it does not make any difference.
20.19. Once it is proved that A1 was primarily responsible to correctly and honestly prepare as well as maintain the MRs in question and there is no dispute to the fact that the MRs in question were issued to A1; were prepared by A1 or under his directions and; it was he who was responsible to maintain those MRs, which obviously he was obliged and duty bound to prepare and maintain diligently and he failed to do it and instead either himself made those false entries or allowed someone to make those false entries, is sufficient to hold that at least A1 prepared incorrect records without actually engaging the labourers qua those 63 entries and then he submitted those MRs to the MCD for release of payment as wages to the persons named in the MRs. Those allegations attract section 477A of IPC against A1.
20.20. Once it is proved that A1 either himself or through someone else allowed making false entries in the above mentioned MRs i.e. the 63 disputed entries, it would cover the case of A1 U/s 477A of IPC also.
20.21. Sec. 477A of IPC provides that where a person being a clerk, officer or employed or acting in that capacity, willfully, and with intent to defraud, either destroys or alters or mutilates or falsifies any book, electronic record, paper, writing or any valuable security or account which belongs to or is in possession of his employer or which has been received by him for and on behalf of his employer, the said person shall be guilty of falsification of accounts. The said section also covers a case even where any such book or Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 55 of 65 56 record is received by a clerk or officer for and on behalf of his employer and still that person willfully, and with intent to defraud makes or abets the making of any false entry in any such book record etc. 20.22. For Section 477A IPC, the prosecution must prove; that the accused destroyed, altered, mutilated or falsified the books, electronic records, papers, writing, valuable security or account in question; the accused did so in his capacity as a clerk, officer or servant of the employer; the books, papers, etc. belong to or are in possession of his employer or had been received by him for or on behalf of his employer and; that the accused did it wilfully and with intent to defraud. All these ingredients are indeed fulfilled in this case as the A1 falsified the Mustor Rolls belonging to MCD, in his capacity as an officer of MCD, for obvious reason to defraud by obtaining the amount against the wages of false entries and fictitious Labours.
20.23. Though, no separate charge for Sec. 477A of IPC was framed against A1 but he was charged for the offence of forgery punishable under section 468 of IPC and section 477A IPC being an offence of the same category of forgery, with the aid of section 222 of Cr. P. C., there is no legal hurdle in holding A1 guilty U/s 477A of IPC also. Both those offences are offences of similar nature. Punishment for section 477A IPC is imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Whereas punishment for section 468 IPC is imprisonment of either description for a term which may extend to seven years, and shall also be liable for fine. Thus, though both the provisions provide equal term of imprisonment, but the imposition of fine is must U/s 468 IPC whereas in Section 477A IPC there is discretion to either impose inflict imprisonment Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 56 of 65 57 or fine or both. It makes the offence of 477A IPC a lesser offence of the same kind. Therefore, with the aid of section 222 of Cr. P. C A1 can be safely convicted. (Reliance; Rafiq Ahmad v. State of U.P., (2011) 8 SCC 300 and; Shyam Behari v. State of U.P. AIR 1957 SC 320) 20.24. In the present case, A1 being entrusted with the MRs to honestly and diligently maintain those MRs based on true and actual employment of labourers, made false entries by including the name of 63 persons claiming them to have worked. The obvious object was to draw money as wages against those entries and then to misappropriate the same. Thus, the intention of A1 at the time of preparation of those false entries was to defraud MCD. Accordingly, all the ingredients of Sec. 477A of IPC are fulfilled and A1 is found guilty for that offence also.
21. Merely because A1 was exonerated in the departmental inquiry, he cannot claim acquittal in the present case. A1 never proved the outcome of the departmental inquiry findings in the present matter. It is not known as to on what ground A1 was exonerated in the departmental inquiry, if he was so exonerated. It is not even proved that he has been so exonerated. Law is well settled that it is only in those cases where a public servant is exonerated in the departmental inquiry on merits to the effect that the departmental inquiry comes to a conclusion that the employee did not commit that offence, that an accused in a criminal trial can claim acquittal / discharge. When A1 did not prove the very report of departmental inquiry and as to on what grounds he was exonerated, he cannot claim acquittal on that ground.
21.1. In the case of Radheshyam Kejriwal v. State of W.B., (2011) 3 SCC 581, it is held as follows;
Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 57 of 65 58"38. The ratio which can be culled out from these decisions can broadly be stated as follows:
(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;
(ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution;
(iii) Adjudication proceedings and criminal proceedings are independent in nature to each other;
(iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution;
(v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure;
(vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and
(vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases.
39. In our opinion, therefore, the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court."
22. Turning to the charge of Criminal Conspiracy, in the entire evidence led by the prosecution there is no evidence pointing to conspiracy between A2 and A1. There is no evidence that A1 entered into criminal conspiracy with A2 or anyone else. This Court is conscious of the fact that for an offence of conspiracy, there cannot be any direct proof and in most of the cases conspiracy will have to be gathered from the attending circumstances of an Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 58 of 65 59 offence. The only circumstance claimed against the AE, in order to claim conspiracy, is that he was duty bound to conduct surprise checks at the site, which either he did not or he did but ignored the fact of ghost labours named in the MRs.
22.1. It would be apt to note few important observations of Apex Court in the case of K.R. Purushothaman v. State of Kerala, (2005) 12 SCC 631, wherein it is held as follows;
"11. Section 120-A IPC defines "criminal conspiracy". According to this section when two or more persons agree to do, or cause to be done (i) an illegal act, or (ii) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. In Major E.G. Barsay v. State of Bombay [(1962) 2 SCR 195:
AIR 1961 SC 1762: (1961) 2 Cri LJ 828] Subba Rao, J., speaking for the Court has said: (SCR p. 228) "The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts."
12. In State v. Nalini [(1999) 5 SCC 253: 1999 SCC (Cri) 691: JT (1999) 4 SC 106] it was observed by S.S.M. Quadri, J. at JT para 677: (SCC pp. 568-69, para 662) "In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 59 of 65 60 conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus with the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences."
13. To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither is it necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implication. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the court to keep in mind the well-known rule governing circumstantial evidence viz. each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. Criminal conspiracy is an independent offence in the Penal Code. The unlawful agreement is sine qua non for constituting offence under the Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement.
14. Suspicion cannot take the place of legal proof and prosecution would be required to prove each and every circumstance in the chain of circumstances so as to complete the chain. It is true that in most of the cases, it is not possible to prove the agreement between the conspirators by direct evidence but the same can be inferred from the circumstances giving rise to conclusive or irresistible inference of an agreement between two or more persons to commit an offence. It is held in Noor Mohd. Mohd. Yusuf Momin v. State of Maharashtra [(1970) 1 SCC 696:
1970 SCC (Cri) 274: AIR 1971 SC 885], that: (SCC pp. 699-700, para 7) "[I]n most cases proof of conspiracy is largely inferential though the inference must Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 60 of 65 61 be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material."
15. It is cumulative effect of the proved circumstances which should be taken into account in determining the guilt of the accused. Of course, each one of the circumstances should be proved beyond reasonable doubt. The acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. While speaking for the Bench it is held by P. Venkatarama Reddi, J. in State (NCT of Delhi) v. Navjot Sandhu [(2005) 11 SCC 600: 2005 SCC (Cri) 1715: JT (2005) 7 SC 1] (p. 63) as follows: (SCC pp. 691-92, para 103) "103. We do not think that the theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design even if such offences were ultimately committed by some of them, without the participation of others. We are of the view that those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy; but, the non-participant conspirators cannot be found guilty of the offence or offences committed by the other conspirators. There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them. Criminal offences and punishments therefor are governed by the statute. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy or by extension of a common law principle."
22.2. A perusal of the relevant rules of the CPWD Manual, which is applicable to MCD, in preparation of Mustor Rolls / Daily Labour Reports (DLR), would reveal that as per Rule 9.5, it was the responsibility of JE In-charge of the work to mark attendance of casual labourers in the MR daily at the time of roll call and to check once during the day. The responsibility of AE / Additional EE / EE was to conduct surprise checks frequently to ensure Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 61 of 65 62 that the workers as indicated in the DLR and MR were actually employed and that their output was commensurate to the expenditure incurred. As per Rule 9.5 to 9.7, the preparation of MRs and checking presence / attendance / details of the labourers was the responsibility of JE only. 22.3. It is clearly mentioned in Rule 9.8 that at the close of the MR it was the JE who was supposed to give certificate under his dated signatures on the MRs as well as the DLR in the following words; "Certified that the workers mentioned in the Mustor Rolls were actually employed by me on government work". As per Rule 9.9, after closing of the MR the JE In- charge of the work was supposed to complete all the formalities regarding making entries in the measurement book, work out cost of the work etc. and it was then the MR was to be submitted to the AE concerned within two days.
22.4. Thereafter, Rule 9.10 onwards deals with procedure of making payment against MRs. Under Rule 9.11, after the MR was closed by the JE it was required to be sent to Sub-Divisional Clerk who was supposed to check the MR arithmetically and the AE was to conduct test check within a day and then the MR was to go to Divisional Office. The Divisional Officer was then to scrutinise the MR under Rule 9.12 and then forward it to EE and the EE was to pass the MR and hand over the amount as temporary advance to the AE for disbursal of wages. Rule 9.13 makes it clear that it was the responsibility of JE in charge to make payment and to certify on the MR that the payment has been made in his presence and on his identification. 22.5. It is claimed by the Prosecution that according to the Rule 9.5, since it was the responsibility of AE to conduct frequent checks, which the AE did not do, therefore, AE was in conspiracy with JE.
Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 62 of 65 6322.6. There is no evidence available with the prosecution to indicate that there was any such conspiracy between the JE concerned with the AE or the EE. The prosecution assumes that the AE did not conduct surprise checks and therefore he should be held guilty. In the considered opinion of this Court, there cannot be any such assumption or presumption against AE, legally. Either he did not conduct physical checks as was required or he did it. In either of the eventualities, there would be no criminal liability against him. If the AE did not conduct physical checks but merely countersigned the MRs and thereafter those MRs were processed for payments to the labourers and so that JE can make payments to the casual labourers, it would at the most be dereliction of duty, and merely on that basis neither can conspiracy be presumed, nor any other offence. In any case, it is merely a presumption of the prosecution that A2 did not conduct physical checks. What if he indeed conducted physical checks. Was it his responsibility to also verify the identity of each and every casual labour employed by the JE? Even as per the admitted case of prosecution i.e., their reliance on Rule 9.5 of CPWD manual, there was no such responsibility or duty of AE or EE or AEE.
22.7. Though in the Rule 9.12 of CPWD Manual, it is mentioned that the Divisional Office should not take more than two days for scrutiny of the MR and similarly the EE should not take one day to pass the MR and then handing over the amount of the passed MR through temporary advance to the AE for disbursing wages to the persons engaged on MR, but in the facts of the present case no evidence has been led by the prosecution that the amount was handed over to AE. In absence of any evidence that any amount was handed over to AE or that he was physically present at the time of Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 63 of 65 64 disbursal of payments, nothing can be read in Rule 9.12 against AE in the present case.
22.8. It is nobody's case that the desilting works in question were not carried out.
In the light of this circumstance, coupled with the fact that nowhere was it the responsibility of AE or EE to conduct actual identity check of each and every casual labour, entitles A2 to be given benefit of doubt. When it was not the duty of the A2 to find out the actual identity of the casual labourers engaged by the JE and his responsibility was merely checking head count and work commensurate to the payment, it cannot be presumed that A2 was in any manner in conspiracy with the JE. Thus, assuming that AE did not conduct the surprise checks or did conduct them but failed to notice or ignored the number of labourers working at the site, it can at the most point to dereliction of duty and nothing more.
22.9. No witness has been examined by the prosecution from amongst the actual labourers who had worked at the site to prove whether the AE and EE conducted the surprise checks or not. In such circumstances, AE cannot be roped in for conspiracy with the JE just like the EE could not have been roped in.
22.10. In the case of C. Chenga Reddy & Ors. Vs. State of A. P., AIR 1996 Supreme Court 3390, it was observed by the Hon'ble Supreme Court that the entire case hinged on circumstantial evidence and there was no direct evidence available on record connecting the public servants with the commission of crime viz., payment made for various amount without the execution of work etc. It was held that at best the evidence of that case established violation of Codal provisions and ignorance of departmental instructions and circulars regarding nomination of contractors and allotment of work and those lapses at best made those public officers liable Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 64 of 65 65 for departmental action but not for criminal offence. It was held that the circumstances proved in that case were not such which can be said to be compatible only with their guilt or incompatible with their innocence. In this regard, reliance may also be placed upon the cases of Abdulla Mohd. Pagarkar v. State, (1980) 3 SCC 110; Union of India & Anr. Vs. Major J. S. Khanna & Anr. (1972) 3 SCC 873 and; J. Siri. Ram Surya Prakash Sharma Vs. State of A. P. 2011 Crl. Law Journal 2027.
23. The sum & substance of the above discussion is, that the prosecution fails to establish conspiracy between A1 & A2 or anybody else. And as discussed above, there is no evidence qua A2 for any other offence.
24. Accordingly, A2 Tara Chand is acquitted of all the charges framed against him.
25. A1 Ramesh Chand Singla is acquitted for offence of criminal conspiracy punishable U/s 120B of IPC as well as for the offences U/s 420 & 468 of IPC.
26. However, A1 Ramesh Chand Singla is found guilty and convicted for offences U/s 13(1)(c) r/w 13(2) of POC Act, 1988 as also for offences U/s 409, 471 and 477A of IPC.
Announced in the Open Court on
24-05-2022. DIG Digitally signed
by DIG VINAY
SINGH
VINAY Date:
2022.05.24
SINGH 10:15:49 +0530
(DIG VINAY SINGH)
Special Judge (PC ACT) (ACB)-02
Rouse Avenue Courts
New Delhi / 24-05-2022 (r)
Judgment; CNR No. DLCT110005682019 CC No. 127/2019 FIR No. 69/2003 State Vs. Ramesh Chand Singla & Anr. Dated 24.05.2022 Page 65 of 65