Jharkhand High Court
Surendra Prasad vs Union Of India Through Cbi on 15 May, 2024
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
[Against the judgment of conviction and order of sentence dated 28.11.2019 passed
by learned A.J.C. XVIII-cum- Special Judge, CBI (Other than AHD), Ranchi in R.C.
Case No.17(A)/2009-R and R.C. Case No.15(A)/2009]
Cr. Appeal (S.J.) No. 1166 of 2019
Surendra Prasad .... .... .... Appellant
Versus
Union of India through CBI .... .... .... Respondent
WITH Cr. Appeal (S.J.) No. 1167 of 2019 Vindhyachal Singh @ Bindhyachal Singh .... .... .... Appellant Versus Union of India through CBI .... .... .... Respondent WITH Cr. Appeal (S.J.) No. 1172 of 2019 Upendra Prasad .... .... .... Appellant Versus The Union of India through CBI, Ranchi .... .... .... Respondent WITH Cr. Appeal (S.J.) No. 1168 of 2019 Surendra Prasad .... .... .... Appellant
--Versus--
Union of India through C.B.I. .... .... .... Respondent
WITH
Cr. Appeal (S.J.) No. 1173 of 2019
Uma Chandra Prasad Keshri .... .... .... Appellant
--Versus--
The Union of India through C.B.I. .... .... .... Respondent
WITH
Cr. Appeal (S.J.) No. 1183 of 2019
Onkar Prasad Gupta .... .... .... Appellant
--Versus--
The Union of India through C.B.I. .... .... .... Respondent
For the Appellant : Ms. Anjana Prakash, Sr. Advocate
Mr. Rajeev Kr. Sinha, Advocate
Mr. Niraj Dubey, Advocate
Mr. Vishnu Kr. Mahto, Advocte
(In Cr. Appeal Nos.1166 & 1168/2019)
Mr. Ajit Kumar, Sr. Advocate
Mr. Rajeev Kr. Sinha, Advocate
Ms. Akriti Shree, Advocate
Mr. Vishnu Kr. Mahto, Advocate
(In Cr. Appeal No.1167/2019)
Mr. K.S. Nanda, Advocate
(In Cr. Appeal Nos.1172 & 1173/2019)
Mr. Rajesh Kumar, Advocate
(In Cr. Appeal No.1183/2019)
For the CBI: Mr. Anil Kumar, A.S.G.I.
Mr. Nitish Parth Sarthi, A.C. to A.S.G.I.
CAV ON : 22.04.2024 PRONOUNCED ON: 15.05.2024
PRESENT
HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
1
1. Cr. Appeal No.1168/2019, Cr. Appeal No.1173/2019, Cr. Appeal
No.1183/2019 arise out of RC Case No.15(A)/2009 and Cr. Appeal No.1166/2019, Cr. Appeal No.1167/2019 and Cr. Appeal No.1172/2019 arise out of R.C. Case No.17(A)/2009-R. Since all these appeals raise common question of facts and law and therefore, they have been heard together and will be disposed of by the common judgment.
2. Gravamen of allegation as disclosed in the prosecution case of both RC Case No.15(A)/2009 and RC Case No.17(A)/2009-R is that bitumen used in road construction was not procured from Public Sector Unit (PSU) as per the terms of the work contract, but from outside sources and the payment was released to the contractors on fake and forged invoices purported to be issued by PSU.
3. Engineers Surendra Prasad and Vindhyachal Singh @ Bindhyachal Singh are alleged to have counter signed the fake bitumen invoices in criminal conspiracy with contractor Upendra Prasad for release of bills to the tune of Rs.85,91,443/- in RC Case No.17(A)/2009-R. Bitumen was procured for the execution of work contract for improvement of Bano PWD Road to Pabura Nimtur Pangur Path for 10 Kms.
4. Engineers Surendra Prasad and Onkar Prasasd Gupta are alleged to have counter signed the fake bitumen invoices in criminal conspiracy with contractor Uma Chandra Prasad Keshri for release of bills to the tune of Rs.41,95,611/- in RC Case No.15(A)/2009. Bitumen was procured for the execution of work contract for maintenance and repair of Lachargarh-Jaldega Road for 11 Kms. CHARGE & CONVICTION
5. In both the cases Engineers and the Contractors were jointly put on trial. In 15(A)/2009 Surendra Prasad and Onkar Prasad Gupta, the then Assistant and Junior Engineers, were jointly charged under Section 13(2) read with 13(1)(d) of the P.C. Act for dishonestly and fraudulently certifying by countersigning four forged bitumen invoices submitted by co-accused Uma Chandra Prasad Keshri, the contractor and thereby facilitating the passing of bill and making payment to the contractor causing wrongful loss of Rs.6,94,196/-. Surendra Prasad and Onkar Prasad Gupta were jointly charged along with Uma Chandra Prasad Keshri, for entering into a criminal conspiracy by abusing their official position by counter signing the forged bitumen invoices and making entries in measurement books thereby committing offence punishable under Section 120B read with 420, 468 and 471 of the IPC. Uma Chandra Prasad Keshri and Surendra Prasad have been convicted in RC Case No.15(A)/2009 for offence under Section 420, 468, 471 read 2 with 120B of the IPC and under Section 13(2) of the P.C. Act. They have also been convicted along with Onkar Prasad Gupta under these Sections and sentenced to different terms of imprisonment.
6. In RC Case No.17(A)/2009-R Surendra Prasad and Vindhyachal Singh, the then Assistant and Junior Engineers, have been jointly charged under Section 13(2) read with 13(1)(d) of the P.C. Act for dishonestly and fraudulently certifying by countersigning twelve forged bitumen invoices by co-accused Upendra Prasad, the then contractor and thereby, passing the bill and making payment to the contractor causing wrongful loss of Rs.18,15,714/-. Surendra Prasad and Vindhyachal Singh were jointly charged with Upendra Prasad for entering into a criminal conspiracy by abusing their official position by counter signing the forged bitumen invoices and making entries in measurement books thereby committing offence punishable under Section 120B read with 420, 468 and 471 of the IPC. Vindhyachal Singh and Surendra Prasad have been convicted in RC Case No.17(A)/2009-R for offence under Section 420, 468, 471 read with 120B of the IPC and under Section 13(2) of the P.C. Act. Upendra Prasad has been convicted and sentence for the offences under Section 420, 468 and 471 of the IPC.
COMMON GROUNDS OF APPEAL
7. The main plank of argument on behalf of the appellants is that prosecution has failed to prove that the invoices which were presented by the contractors were forged and fabricated. There is absolutely no evidence to establish that by procurement of bitumen from source other than Public Sector Unit and its use in road construction, in any way compromised the quality of the road, thereby causing any wrongful loss to the State. In the absence of proof of wrongful loss, charge of cheating or forgery will not be made out because causing wrongful gain or wrongful loss, is an essential ingredient of the offence of cheating and forgery. At best, it will be a face of codal violation or irregularity, but will not rise to the level of criminality. SPECIFIC ARGUMENT ON BEHALF OF THE ENGINEERS, (SURENDAR PRASAD, VINDHYACHAL SINGH , ONKAR PRASAD GUPTA)
8. It is argued that the Executive Engineer was responsible for the final payment to the contractor. Role of Assistant Engineer or Junior Engineer was confined to physical verification of bitumen used at the construction site. It was only the Executive Engineer, Contractor and Oil Companies who were involved in the process of bitumen procurement. In order to substantiate this line of argument, reliance is placed on the deposition of P.W. 2-Ram Kumar Mahto, REO, Simdega in para 17 as deposed in RC 17(A)/2009.
9. It is further argued that there is no evidence on record to show that appellants 3 made any wrongful gain or caused corresponding loss to the Government.
10. Once the invoices were presented for payment, role of Engineers was confined to physical verification of the work executed and not to enter into a forensic examination of the invoices produced for payment. The invoices prima facie did not reflect any forgery and therefore to merely counter sign it, cannot be said to amount the offence of forgery and that there was dishonest or fraudulent intention on the part of these appellants in counter signing the invoices.
11. PW 2 in RC 17(A)/2009-R has deposed that responsibility of the Junior Engineer was 100%, Assistant Engineer 50% and Executive Engineer 10% for supervision of sight. In para 3, he deposed that while passing a bill, the Executive Engineer when satisfied notes 'C & P' which means checked and passed. If any kind of discrepancy, error or mistake is found in the bill or invoice, then he will not pass the bill and it is returned to the Assistant Engineer with objection.
12. PW 3 in RC 17(A)/2009-R has admitted during cross-examination that prior to 2008, neither the Assistant Engineer nor the Junior Engineer were entrusted the work of verification of genuineness of invoices. Reliance is placed on A. Sivaprakash v. State of Kerala, (2016) 12 SCC 273 "18. The prosecution has sought to cover the case of the appellant under sub-clause (ii) of Section 13(1)(d) and not under sub-clause (i) and sub- clause (iii). Insofar as sub-clause (ii) is concerned, it stipulates that a public servant is said to commit the offence of criminal misconduct if he, by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage. Thus, the ingredients which will be required to be proved are:
(1) The public servant has abused his position. (2) By abusing that position, he has obtained for himself or for any other person any valuable thing or pecuniary advantage.
19. It was not even the case set up by the prosecution that the appellant had taken that money from some person and had obtained any pecuniary advantage thereby. It was the obligation of the prosecution to satisfy the aforesaid mandatory ingredients which could implicate the appellant under the provisions of Section 13(1)(d)(ii). The attempt of the prosecution was to bring the case within the fold of sub-clause (ii) alleging that he misused his official position in issuing the certificate utterly fails as it is not even alleged in the charge-sheet and not even an iota of evidence is led as to what kind of pecuniary advantage was obtained by the appellant in issuing the said letter."
ARGUMENT ON BEHALF OF CONTRACTORS (UPENDRA PRASASD AND UMA CHANDRA PRASAD KESHRI)
13. It is argued that prosecution has utterly failed to discharge burden of proof that invoices that were presented by the contractors, were forged and fabricated.
14. Prosecution witnesses have deposed that there had been no complaints regarding the quality of construction of road. PW 2 in RC 17(A)/2009-R has deposed that after the completion of road, till date no expenses had been incurred in the repair 4 of the road. In para 8, he has deposed that no complaint had been found either about the quality of road or bitumen used for its construction or about the length, width and thickness of the road in question. In para 12, it has been stated that the quality of road was inspected by the Quality Control Division and no deficiency was found.
15. With regard to the charge of submitting forged invoices, it is submitted that the signatures on the said invoices, had not been sent for verification. PW 4 in RC 17(A)/2009-R has admitted during cross examination, that he cannot say whose signature was there on invoices. PWs 10 and 11 in RC 17(A)/2009-R have deposed that since the sample of bitumen sent by CBI, Ranchi was 3.5-7.5 year old, therefore, it was not possible to ascertain the parameters in binder grade and content of mixed property used.
16. By referring to deposition of Investigating Officer (PW 14) in RC 17(A)/2009-R in para 14, 15 and 16 that the invoices were forged, was concluded on the basis of the statement given by the officer of the oil company and no independent verification was made. In para 35, he has deposed that forensic examination of handwriting and signature on invoices were not made.
17. Similarly, in RC 15(A)/2009, I.O. (PW 12) has admitted in para 13 and 14 that the invoices were forged was concluded on the basis of statement made by the officers of the oil company and he did not get them scientifically tested.
18. There was no loss to the Government exchequer as the payment was made on the basis of the entries made in the measurement book. PW 10 in RC 15(A)/2009 has stated that payments of bills were not made unless it was accompanied with invoices of bitumen and with empty drums. PW 12 in para 63 has deposed that no payment had been made on the invoices which were allegedly fake. With regard to the quantum of loss, it has been deposed by him in para 65 that it was on guess. PW 9 in RC 17(A)/2009-R who was the Executive Engineer has deposed that he could not give any definite opinion with regard to the quality of bitumen used for repair and construction.
ARGUMENT ON BEHALF OF CBI
19. It is argued by the learned ASGI that as per the Work Agreement, it was incumbent on the part of the contractor to have purchased bitumen from IOCL.
20. There is positive evidence that twelve invoices purported to be issued by the IOCL, Namkum in RC 15(A)/2009 were presented by the contractor.
21. In RC 15(A)/2009, it has been categorically deposed by the officers of IOCL, Bokaro, Patna and Namkum (P.Ws. 2, 4 and 6), invoices having assignment numbers 20052345B001717 (Exhibits 4/3, 4/4, 4/5 and 4/6) from their office. Similarly, in RC 17(A)/2009-R, P.Ws, 4, 6, 7, 8 and 9, who are the officers of IOCL, have deposed 5 that invoices having assignment number 20052345B001717 (Exhibit 11 to 11/11) were never issued from their office. Neither were they signed by the officials of Namkum Depot. It is argued that every invoice have unique identification number and under no circumstance, other invoices have similar assignment number. P.W. 4 in RC 15(A)/2009 has deposed that the invoices did not bear his signature. Deposition of PW 6, 7, 8 and 9 are also to the same effect. These evidences leave no doubt that false invoices were presented for payment.
22. With regard to the argument of wrongful loss, it has been argued that the very procurement of bitumen from sources other than PSU amounted to wrongful loss to the public exchequer.
23. It is further argued that making a false document dishonestly is itself sufficient to attract the provision of Section 471 of the IPC. ANALYSIS & FINDING
24. Main question for determination before this Court is whether the prosecution has succeeded to prove the charges of fraud and forgery against the Contractors, that they in gross violation of the terms of work agreement had procured bitumen from source other than IOCL, and had received payment of bills on the fake invoices purported to be issued by IOCL. Whether the Engineers had entered into criminal conspiracy with the contractors to facilitate the payment of fake bills by the Contractors.
25. In order to address the first limb of argument that unless there is wrongful gain or loss no offence of fraud or forgery will be made out, it will be desirable to consider the law on the point. The Indian Penal Code has taken two sections to define forgery, Section 463 and 464. The former defines forgery as making of a false document with any intention enumerated therein, and the latter defines what the making of false document is. The one ingredient common to both is the element of fraud, so that whoever makes false document with intent to commit fraud or that fraud be committed, commits forgery.
463. Forgery.--Whoever makes any false documents [or false electronic record] or part of a document [or electronic record,] with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
464. Making a false document--[A person is said to make a false document or false electronic record--
First.--Who dishonestly or fraudulently--
6(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any [electronic signature] on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the [electronic signature], with the intention of causing it to be believed that such document or part of a document, electronic record or [electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly.--Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with [electronic signature] either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly.--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his [electronic signature] on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.] The definition of a "false document" is a part of the definition of "forgery". Reading both together ingredients of offence of forgery are as follows (i) fraudulently signing or a part of a document with intention of causing it to be believed that such document or part of document was signed by another or under his authority;(ii) making of such document with intention to commit fraud or that fraud may be committed.
Idea of deceit is a necessary ingredient of fraud........ The second thing to be noticed is in Section 464 to adverbs, "dishonestly" and "fraudulently" are used alternatively indicating thereby that one excludes the other. That means that they are not tautological and must be given different meanings. Section 24 of the Penal Code defines "dishonestly" thus:
"Whoever does anything with the causing of wrongful gain to one person or wrongful loss to another person, is said to do that thing dishonestly".
Fraudulently is defined in Sec.25 thus:
"A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise."
The word "defraud" includes an element of deceit. Deceit is not an ingredient of the definition of the word "dishonestly" while it is an important ingredient of the word "fraudulently". In the definition of dishonestly, wrongful gain wrongful or 7 wrongful loss is the necessary ingredient but not in case of fraudulently. Both need not exist, one would be enough.
26. From the above definitions, it will be apparent that both dishonestly or fraudulently need not coexist to make out the offence of forgery. It must be a document dishonestly or fraudulently made and it should have been made with intention of causing a belief that it was made or executed by or by the authority of a person who did not make or execute it and with knowledge that it was not so made or executed. A false document is made not only when the whole of it is made but even in a case where a person makes only a part of it. Under the first clause of Section 464 IPC, a person makes a false document if he makes, or signs a document
(i) intending it to be believed that it was made or signed or executed by, or by the authority of some person by whom, or by whose authority, he knows it was not made or signed, or(ii) with the intent that it shall be believed that it was made or signed that time when he knows it was not so made or signed.
27. To bring the offence within the four corners of the Section, the false document must be created with a view to making it appear that it was made by some other person who the accused knows did not make it. Unlike dishonestly, the requirement of causing wrongful loss is not an essential ingredient of doing a thing fraudulently. Even if the expression fraudulently were to be held to involve the element of injury to the person or persons deceived, it can be an injury other than pecuniary or economic loss as per the definition of cheating under Section 415 of the IPC. A brief review of the case law on the point will demonstrate that there is a consensus of judicial opinion that wrongful loss is not an essential ingredient of the offence of forgery. (Refer to Province of Bihar v. Surendra Prasad Ojha, AIR 1951 Pat 86 , Vimla (Dr) v. Delhi Admn., AIR 1963 SC 1572, Tulsi Ram v. State of U.P., 1962 SCC OnLine SC 99, Iridium India Telecom Ltd. v. Motorola Inc., (2011) 1 SCC 74 )
28. Engineers namely Surendra Prasad and Vindhyachal Singh, have been charged under Sections 13(2) read with 13 (1) (d) of the P.C. Act and have also been charged along with the contractor Upendra Prasad for offences under Sections 420, 468, 471 r/w 120B of the IPC. in RC 17(A)/2009-R.
29. Engineers Surendar Prasad and Onkar Prasad Gupta have been charged under Sections 13(2) of the P.C. Act and have also been charged along with the contractor Uma Chandra Prasad Keshri for the offences under Sections 420, 468, 471 and 120B IPC in RC 15(A)/2009. Contractor Uma Chandra Prasad Keshri has been separately charged under Sections 420, 468 and 471 of the IPC.
830. As discussed above, in order to prove the charges under Sections 468 and 471 of the IPC the following ingredients need to be proved: (i) that the accused committed forgery; (ii) that he did so intending that the document or electronic record forged, shall be used for the purpose of cheating. The essential ingredients to prove the charge under Section 471 of the IPC are following: (i) fraudulent or dishonest use of a document as genuine. (ii) the person using it must have reason or knowledge to believe that the document is a forged one.
31. As far as the contractors namely Upendra Prasad and Uma Chandra Prasad Keshri are concerned, there is clinching evidence against them in the RC 17(A)/2009-R and RC 15(A)/2009 respectively, that in violation of the terms of contract, instead of procuring the bitumen from the public sector undertaking, they purchased it from other sources. In the absence of wrongful loss, no criminal offence would have been made out if they had not done nothing more than purchasing it from outside sources, and it would have resulted in mere codal violence of the terms of agreement.
32. Both these contractors however, not only committed a breach of term of work agreement, but also went a step further by submitting forged and fabricated bills purported to be issued by IOCL, Namkom as enjoined by the terms of agreement and got the payment released. In RC 17(A)/2009-R, contractor Upendra Prasad submitted 12 invoices which have been marked as Exhibits 11- 11/11 which was signed by co-accused Surendar Parasad (Exts-7 to 7/11) and Vindhyachal Singh which has been proved as Exhibits 6-6/11. Signature of the both of them were sent for being compared by FSL Kolkatta and have been duly proved.
33. P.W. 4 who was the officer of the Indian Oil Corporation Limited posted at relevant time at Namkum Depot, has deposed that all these invoices had the same number being 20052345B001717. It has also been deposed that every invoice challan bears separate serial number and in any circumstance, it cannot be the same. He has also deposed that it could not bear his signature and the invoices were forged and fabricated. Other officers of the IOCL P.Ws. 6, 7, 8 and 9 have also deposed to the same effect.
34. In RC 15(A)/2009, contractor Uma Chandra Prasad Keshri submitted five invoices of bitumen purported to be purchased from IOCL, Namkum which have been proved as Exhibits 4/2, 4/3, 4/4, 4/5 and 4/6. P.W 6 Prabodh Kumar has deposed that in the year 2009, he was posted at IOCL, Namkum as Senior Manager. Out of the five invoice, only Exhibit 4/2 was found to be genuine and others were forged and not issued from Namkom. On the forged invoices the signature of Surendar Prasad and Onkar Prasad Gupta has been proved and marked as Exts-
911/3,11/4,11/5 and 11/6 respectively. Signature of the both of them were sent for being compared by FSL Kolkatta and have been duly proved. PW 2 Uday Kumar, who was also posted at Namkum, IOCL, and issued letter no.BOK/LPG/CBI dated 17.11.2009 addressed to S.P., C.B.I. which has been marked as Exhibit 2 that these invoices were not issued from there. He has also deposed that some of the invoices having identical serial number, were forged. Contrary, to the details in the invoices, it has been clarified by this witness that no bitumen was supplied to any firm/contractor.
35. With regard to the issue of invoices being forged, much has been argued on behalf of the appellants that the prosecution has failed to prove these invoices were forged and fabricated. It is difficult to be persuaded by the argument. There is a difference between burden of proof and onus of proof. Burden of proof in a criminal case is on the prosecution and it never shifts. However, onus of leading evidence to prove a fact, keeps on shifting with the progress of trial. In the present case, the prosecution has led clinching evidences by examining officers from the IOCL, Namkon that the invoices were not issued from there. In both the cases against the contractors, invoices that were raised for payment and on their basis the payment was released were not issued from IOCL, Namkum from where they claimed to have been issued. They did not bear the signature of the IOCL officer and they bore the same serial numbers. On these evidence, the irresistible conclusion that follows is that these documents were forged and fabricated. No evidence in rebuttal has been led on behalf of the defence to substantiate their plea that documents were issued from IOCL, Namkum.
36. The charge of using forged invoices from sources other than from which they were claimed and required to be issued is thus proved. Logically, when the bitumen was not purchased from the public sector undertaking as per the work agreement, it definitely caused loss to the public sector undertaking and. Even if the argument on behalf of the appellant, is accepted that loss has not been quantified and there was no evidence that procurement and use of bitumen from outside sources, compromised the quality of road construction, still the offence of forgery will be complete as wrongful loss is not a sine qua non to make out the offence. Once forged invoices are used for raising bills and payment is received with on it, offence of fraud and forgery is proved. Charge under Sections 468, 471 and 420 of the IPC is proved against the contractors.
37. As far as the complicity of the Engineers namely Surendra Prasad, Assistant Engineer and Vindhyachal Singh, Junior Engineer in RC Case No. 17(A)/2009-R, Surendra Prasad, Assistant Engineer and Onkar Prasad Gupta, Junior Engineer RC 10 Case No. 15(A)/2009, is concerned, the prosecution case against them is that, they in conspiracy with the contractors, counter signed the fake invoices to facilitate the clearance of the bills. They deliberately ignored the discrepancy of fake invoices and countersigned it facilitating their payment. As discussed above, the forged invoices have been adduced into evidence which was presented by the contractors and payment was released.
38. Matter for consideration is if the charge of entering into criminal conspiracy with the contractors is proved on the evidence of signing the fake and forged invoices?
39. Prosecution has proved the signatures of these appellants on the forged invoices. Onkar Prasad Gupta and Surendra Prasad accused in RC Case No. 15(A)/2009, had verified the work done in their official capacity and certified the invoices having assignment number 20052345B001717 claim to be issued from IOCL, Namkum, Depot (Exhibits 4/3, 4/4, 4/5 and 4/6). Their signatures have been proved on the invoices marked as Exhibits 11/3, 11/4, 11/5 and 11/6).
40. Similarly, in RC Case No. 17(A)/2009-R, Engineers Surendra Prasad and Vindhyachal Singh who were posted at the relevant time, had verified and certified the forged invoices and their signatures on the invoices have been proved and marked as Exhibit 7-7/11 and 6-6/11 respectively. Prosecution has thus proved the signature of certification on the forged invoices of the Engineers.
41. In order to prove the charge of fraud, forgery or of criminal conspiracy, it is not only sufficient to prove the physical act in the form of actus reus, but also the mental element involved in the act that it was done fraudulently or dishonestly to commit the said illegal act. It has been argued by the learned counsels on behalf of the appellants that it was not the responsibility of the Engineers to verify the authenticity of the invoices that were purported to be issued from the public sector oil Company. Their role was confined to verify the use of the material as per the invoice in the construction project.
42. P.W. 2 in RC Case No. 17(A)/2009-R from REO Department, has deposed in para 12 in that road in question was thoroughly inspected by Quality Control Division and found to be correct. He has further deposed that the responsibility of Junior Engineer was 100%, Assistant Engineer 50% and Executive Engineer 10% for supervision of site. In para 3, he has deposed that while passing a bill, the Executive Engineer notes "C &P", which means checked and passed. In the event any discrepancy, the bill is returned to the Executive Engineer. Furthermore, P.W. 3 in this case in has deposed that prior to 2008, neither the Assistant Engineer nor the Junior Engineer were entrusted with the work of verification of genuineness of the 11 invoices. There is some force in the argument advanced on behalf of these appellants that, there is no other evidence to impute criminal intent on their part or that they by corrupt or illegal means, obtained for themselves or for any other person, any valuable thing or pecuniary advantage. In order to prove the charge under Section 471 of the IPC, it is necessary to establish that the accused had either known or have reason to believe that the document was forged. It has been held by Hon'ble Supreme Court Shiv Prakash Vs. State of Kerala, (2016) 12 SCC 273, the Assistant Engineer had issued stage certificate in respect of contract and on its basis 50% of the contract value was received by the contractor. The said certificate was found to be forged. Apex Court held that Section 13(1)(b)(2) of the PC Act will not apply as there was not even allegation of obtaining pecuniary advantage by the accused. In the present case also, there is no material to show that these Engineers derived any pecuniary advantage directly or indirectly by facilitating the clearance of the fake invoices.
43. Under the circumstance, this Court finds that beyond the act of certifying the forged invoices, there is no other material from which inference can be drawn that they were cognizant of the fact that the invoices were forged and fabricated. From the discussions above made, it also appears that before 2008, there was no duty cast on the engineers to verify the authenticity and source of invoices presented by the contractors. Their job was confined to the verification of the materials used and quality of the road construction.
44. Under the circumstance, the appellants namely Onkar Prasad Gupta and Surendra Prasad in RC Case No. 15(A)/2009 and Surendra Prasad and Vindhyachal Singh in RC Case No. 17(A)/2009-R, are given benefit of doubt as it is not proved that they entered into criminal conspiracy to facilitate the clearance of the bill on the basis of fake invoices. The judgment of conviction and sentence passed against them, is accordingly set aside. Cr. Appeal (S.J.) Nos.1166, 1167, 1168 and 1183 preferred by them, is allowed.
45. Conviction of Upendra Prasad is affirmed under Sections 420, 468 and 471 of the IPC in RC Case No. 17(A)/2009-R.
46. Conviction of Uma Chandra Prasad Keshri, is affirmed under Sections 420, 468 and 471 of the IPC in and RC Case No. 15(A)/2009.
47. On the point of sentence, considering the nature of offence and overall facts and circumstance of the case wherein the said procurement did not result in quality of road construction being compromised, a lenient sentence will serve the ends of justice.
1248. Under the circumstance, a sentence of SI of one year each under Sections 420, 468 and 471 of the IPC to both Upendra Prasad, Uma Chandra Prasad Keshri shall meet the ends of justice. Both the Appellants are also inflicted with fine of Rs.1,00,000/- each under Section 468 and 471 of the IPC and Rs.50,000/- under Section 420 of the IPC and in the default of payment of fine, the appellant shall undergo SI of two months for each default. All the substantive sentence shall run concurrently. Bail of the appellants stands cancelled, they be taken into custody to serve the remaining part of the sentence.
Cr. Appeal Nos.1172 and 1173 of 2019 are dismissed with modification in sentence.
(Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated, 15th May, 2024 NAFR/Anit 13