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2.2 PW20 S.S. Sandhu during investigation received files (Ex. PW3/A to Ex. PW3/H from PW3 Pushkar Raj, Head Clerk, MCD which were seized vide seizure memo Ex.PW3/J. PW20 S.S. Sandhu sent a letter Ex.PWI5/B to the General Manager (Sales), IOCL, Mathura and received reply Ex. PW15/A from the Chief Engineer, Chief Refinery Coordinator wherein it was mentioned that in the year 1998 there was no customer in their record by the name of M/s Aruna Builders and Suppliers and invoices prepared by IOCL were computer generated but the invoices submitted by the M/s Aruna Builders and Suppliers were manually prepared. PW20 S.S. Sandhu Signing Date:16.04.2024 CRL.A.1202/2015 Page 4 also sent one letter to Executive Engineer, Division no. XVI, MCD to provide measure books/registers bearing no 1766 Ex. PW13/A and 1769 Ex. PW13/B relating to work orders no. 254 to 257 and work order no. 186 and 535 and received measurement books Ex. PW13/A (as exhibited in another case) and Ex. PW13/B (as exhibited during trial arising out of FIR no 24/04) vide letter Ex. PW17/A from PW17 Ashok Drabu, Executive Engineer.PW20 S.S. Sandhu interrogated the appellant co-convict C.B. Singh and co-accused Naresh. PW19 Inspector K.L. Meena was entrusted with further investigation on 22.11.04 and interrogated co-accused Naresh Gupta and the appellant. PW19 Inspector K.L. Meena called Head Clerk K.P. Singh and PW4 Khazan Singh, UDC of Account Section during investigation who informed that tender files and account files of the work orders Ex. PW3/A to Ex. PW3/H bear the signatures of the appellant, co-accused Naresh Gupta (since deceased), co-convict C.B. Singh and Arun Kumar Bansal (since deceased). The further investigation was transferred to PW21 Inspector Santosh Kumar on 13.12.2005.

8.2 The trial court also considered arguments advanced on behalf the prosecution that the first investigating officer PW20 deposed that during investigation he had sent a letter Ex. PW15/B to the General Manager, Sales of IOCL, Mathura Refinery to verify and report regarding the cash memos and gate passes produced by contractor Arun Kumar Bansal regarding sale and dispatch of bitumen and to Signing Date:16.04.2024 CRL.A.1202/2015 Page 24 confirm whether the bills/cash memos and gate passes were genuine or otherwise. PW20 received reply Ex.PW15/A stating that on verification of record pertaining to the relevant period, it was found that there was no customer by the name of M/s Aruna Builders & Suppliers in their customer master record. IOCL also intimated that during the relevant period the challans were computer generated and at no point of time manual challans were issued to parties regarding the supply of bitumen from their terminal. The defence counsel on other hand argued that the testimony of PW20 could not be relied upon as he did not join any official from Bitumen Section of IOCL, Mathura in the investigation and also did not seize record of Bitumen Section of IOCL, Mathura. The trial court also relied on sections 101 and 106 of the Indian Evidence Act.

10. It is reflecting that M/s Aruna Builders and Suppliers, Shakti Nagar, Delhi was awarded four work orders bearing no 254, 255, 256 and 257 dated 07.08.1998 Ex. PW3/A to Ex. PW3/H amounting to Signing Date:16.04.2024 CRL.A.1202/2015 Page 31 Rs.6.8 lacs and as per terms and conditions of the work orders fresh bitumen was to be procured by the contractor i.e. M/s Aruna Builders and Suppliers from M/s IOCL, BP and HP which are Government Oil Companies and the receipt only issued by the Government Oil Company was to be deposited with MCD, Delhi. The appellant was a Junior Engineer and co-convict C.B. Singh was Executive Engineer in Division No XVI, Civil Lines Zone, MCD. PW16 Inspector Rajinder Singh Manku in May, 2004 received source information that the appellant and co-convict C. B. Singh entered into a criminal conspiracy with M/s Aruna Builders & Suppliers through its proprietor/contractor Arun Kumar Bansal along with co-accused Naresh Gupta, Assistant Engineer to defraud MCD by passing bills on forged invoice and thereafter to release payment to the contractor resulting in a pecuniary gain of Rs. 6.8 lacs to the contractor. Arun Kumar Bansal allegedly used substandard/unauthorised bitumen in execution of work orders and submitted bills amounting to Rs.6.8 lacs along with forged vouchers/invoices regarding the purchase of bitumen from M/s Indian Oil Corporation Ltd. The engineers of Division No XVI MCD including the appellant cleared said bills. Signing Date:16.04.2024 CRL.A.1202/2015 Page 32 Inspector Rajinder Singh Manku after verification and with approval of senior officer prepared a rukka dated 25.05.2004 Ex.PW16/A and accordingly FIR bearing no 23/2004 Ex. PW1/A was got registered. The Chief Engineer, Chief Refinery Coordinator vide reply Ex. PW15/A intimated that there was no customer in their record by the name of M/s Aruna Builders and Suppliers in the year 1998 and IOCL prepared computer generated invoices. PW20 S.S. Sandhu also collected measure books/registers bearing no 1766 Ex. PW13/A and 1769 Ex. PW13/B relating to work orders no. 254 to 257.PW19 Inspector K.L. Meena who was entrusted with further investigation was informed by the account officials/officers that tender files and account files of the work orders Ex. PW3/A to Ex. PW3/H bear the signatures of the appellant, co-accused Naresh Gupta (since deceased), co-convict C.B. Singh and Arun Kumar Bansal (since deceased.

11. The trial court to establish conspiracy against the appellant and other accused in impugned judgment relied on the testimony of PW16 Inspector Rajinder Singh Manku who received source information that the appellant and other accused including contractor Signing Date:16.04.2024 CRL.A.1202/2015 Page 33 M/s Aruna Builders and Suppliers entered into criminal conspiracy to cause wrongful gain to the tune of Rs. 6.8 lacs to the contractor who did not procure bitumen from any government refinery in execution of work orders bearing no. 254, 255, 256 and 257 dated 7.8.98 Ex. PW3/A to Ex. PW3/H and used sub-standard/unauthorized bitumen. The contractor Arun Kumar Bansal submitted bills along with forged invoices vouchers relating to purchase of bitumen from Indian Oil Corporation amounting to Rs.6.8 lacs which were cleared by Engineer of Division No XVI including the appellant by abusing their official position as public servants and caused pecuniary benefit to M/s. Aruna Builders and Suppliers and loss to MCD. The reply Ex.PW15/A reflected that there was no customer by the name of M/s Aruna Builders & Suppliers in the customer master record of IOCL and challans were happened to be computer generated. The trial court also relied on sections 101 and 106 of the Indian Evidence Act by observing that the accused including the appellant could not explain about manually prepared invoices which were placed on record and led the trial court to draw adverse inference against the appellant and other accused and to presume complicity of accused including the Signing Date:16.04.2024 CRL.A.1202/2015 Page 34 appellant in the conspiracy to manipulate invoices and cause wrongful loss to MCD. The trial court also referred statement of the appellant under section 313 of the Code wherein the appellant denied that the invoices submitted by the contractor were forged. The trial also held that the accused including the appellant had to prove their defence that the invoices were genuine by preponderance of probability as per section 106 of the Indian Evidence Act. It has come on record that the contractor i.e. Arun Kumar Bansal was responsible to procure bitumen from government refinery in terms of work orders Ex. PW3/A to Ex. PW3/H and was also responsible to submit original invoices for payment of bills. The appellant being junior engineer was not responsible for submission of original invoices which was to be done by the contractor Arun Kumar Bansal as proprietor of M/s Aruna Builders and Suppliers. The source information received by the PW16 regarding alleged conspiracy between the accused including the appellant is not sufficient to presume existence of conspiracy between the accused including the appellant. The trial court was not justified in applying section 106 of the Indian Evidence Act once on basis of reply Ex. PW15/A wherein Signing Date:16.04.2024 CRL.A.1202/2015 Page 35 it was stated that IOCL issued computer generated challan and it was for the prosecution that manual invoices/challans allegedly issued by IOCL were forged and fabricated and the accused including the appellant were not obliged to prove genuineness of invoices/challans submitted by the contractor on preponderance of probabilities with application of section 106 of the Indian Evidence Act. The evidence against the appellant is that he signed invoices and other documents as verification, which were submitted by the contractor for payment, which is not sufficient to establish misuse of public authority by the appellant. There is no sufficient and convincing evidence that the appellant entered into a conspiracy with other accused to cause wrongful gain to the contractor amounting to Rs. 6.8 lacs as public servant.