Indian Kanoon - Search engine for Indian Law

3. The appellant being aggrieved filed the present appeal to challenge the impugned judgment dated 29.10.2015 and impugned order on sentence dated 02.11.2015 primarily on the grounds that the impugned judgment is against the law and contrary to the facts and circumstances. The trial court has not considered the inherent inconsistencies and contradictions in the prosecution case and the evidence and benefit of doubt ought to have been extended to the appellant. The appellant was not under obligation to insist for invoice from the contractor as an evidence of procurement of bitumen from authorized source or to verify genuineness of invoice. There is no evidence to draw an inference regarding the appellant arrived at any Signing Date:16.04.2024 CRL.A.1202/2015 Page 9 agreement to do any legal act through illegal means. The prosecution has failed to prove that the appellant had any knowledge about the invoices being fabricated document and as such the appellant could not have been convicted for having committed offences of conspiracy, cheating or misconduct. The trial court has erred in concluding that MCD has suffered any wrongful loss in relation to the work orders subject matter of present case as MCD never received any complaint regarding quality of work and too much weight was given to the invoice and payments were released against the actual work executed at site. The responsibility as per work order of procuring bitumen from authorized source was on the contractor only and the appellant being a Junior Engineer had no role in procurement of bitumen. The appellant was one of the supervisory officer to ensure execution of the work in consonance with the quality stipulated under the work order. The trial court has committed grave illegality in rejecting testimony of the defence witnesses. The trial court has wrongly relied upon sections 91 and 92 of the Indian Evidence Act to brush aside Ex. DW 6/DA. The trial court has ignored serious infirmities in the investigation which cumulatively hit Signing Date:16.04.2024 CRL.A.1202/2015 Page 10 at the root of the case of the prosecution. The trial court has wrongly invoked section 106 of the Indian Evidence Act to shift the burden of proof upon the appellant. The impugned judgment suffered from various legal defects. The appellant also raised various other grounds to challenge impugned judgment and impugned order on sentence.It was prayed that the impugned judgment and order on sentence be set aside.

5. The trial court also considered argument advanced on behalf of the appellant and co-convict C.B. Singh that there was nothing on record to show that substandard quality of bitumen was used by the accused Arun Kumar Bansal, proprietor of M/s Aruna Builders and Suppliers in execution of work orders in question except from bald allegations in FIR. PW20, the first Investigating Officer in cross examination deposed that he had not received any complaint in respect of the work carried out with regard to work orders in question and further deposed that he had not visited the sites nor collected the samples from the site and as such samples could not be sent to the laboratory. It was further argued that DW5 also deposed that the material used for road works in question was in conformity with the technical specifications and proved the lab test reports of the work orders as Ex. DW5/A to DW5/P. The trial court noted that DW5 in cross examination deposed that the reports were notprepared in his presence and accordingly opined that authenticity of the reports Ex. DW5/A to Ex. DW5/P was not proved did not find much substance Signing Date:16.04.2024 CRL.A.1202/2015 Page 14 in the said argument as the work orders stipulated that original receipt of bitumen procured from an authorized government refinery was to be submitted to MCD which was not done.

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.

14.1 It has been established on record that the contractor as per terms and conditions of work orders was responsible for procuring bitumen from authorised government agency which is IOCL in present case and the appellant being junior engineer was not responsible for procurement of bitumen. The contractor also submitted invoices/challans to account department of MCD for encashment of bills. The prosecution could not prove existence of conspiracy between the accused including the appellant. The incriminating evidence against the appellant is that he along with other engineers verified invoices along with bills which is not sufficient to hold the appellant guilty for offence under section 13 (1) (d) read with section 13(2) of PC Act.