Sanjay Kumar Jain v. State (Through A.C.B)

J U D G M E N T

NENA BANSAL KRISHNA, J.

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¶1The aforesaid 03 Apeals arise from the Judgment dated 29.10.2015 whereby the Apelants - Sanjay Kumar Jain, C.B. Singh, S.N. Goel have ben convicted for the ofence punishable unde r Section 13(2) read with Section 13(1)(d) of the Prevention of Coruption Act (hereinafter refered to as the —P.C. Act") and Section 420 read with Section 120B of the Indian Penal Code, 1860 (hereinafter referred to as ; and the Order on Senten ce dated 02.1.2015 whereby the 03 Apelants have ben sentenced to undergo imprisonment for 02 years along with fine of Rs.5,0/ - under Sections13(1)(d) and 13(2) IPC while they have ben sentenced to 02 years RI along with fine of Rs.10,0/ - , each for the ofence punishable under Sections 420/120B IPC.

¶2The Criminal Apeal No. 239/2016 has ben filed by the State for enhancement of the sentence awarded to the 03 Apelants.

¶3Briefly stated two Work Order s, namely, Work Order No. 186 dated

10.07.198 f o r repair of road in F - Block, Shastri Nagar in CLZ, SH: M/P near F - 1 to F - 16 and F - 47 to Nag Mandir Road for Rs.3,569/ - and Work Order No. 535 dated 24.12.198 for repair of road in Shehzada Bagh in C - 120/CLZ, SH: Imp by patch repair on Subhdara Colony to In dralok in C - 120, CLZ for Rs.1,5,0/ - , were awarded to M/s Universal Sanitary Emporium, Delhi of which Ashok Kumar Gupta was the sole Proprietor.

¶4Acording to the Work Order s , the Contractor Ashok Kumar Gupta

was required to use fresh Bitumen purchase d f rom Bharat Petroleum/Indian Oil/Hindustan Petroleum as aproved by Enginer - in - Chief . It was to be aranged by the Contractor and the fresh receipt in original in prof thereof , was to be submited to the Municipal Corporation of Delhi

(MCD) .

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¶5The case of the Prosecution was that Ashok Kumar Gupta , the Contractor used substandard unauthorised Bitumen for execution of the Work Orders . T he Apelants - S.N. Goel, Junior Enginer (JE), Sanjay Kumar Jain, Asistant Enginer (AE) and C.B. Singh, Executive Engine r

(E), respectively in Division No. XVI, Civil Lines Zone, Municipal Corporation of Delhi (MCD), entered into criminal conspiracy with M/s Universal Sanitary Emporium, Delhi through its Proprietor Ashok Kumar Gupta, and pased the bils and released the p ayments to Ashok Kumar Gupta thereby causing pecuniary gain to him and los to MCD in discharge of their oficial duties by corupt means. By clearing the bils of Rs.1.75 Lacs without any I nvoices from authorised Oil Company of Government of Indi a, these bils were pased and payments released to Ashok Kumar Gupta dishonestly by the 03 Oficers of MCD ; thereby they al comited ofence punishable under Sections 420/120B IPC and also comited ofence punishable under Sections 13(1)(d) read with Section 13

(2) PC Act.

¶6On completion of investigations, Chargeshet was filed in the Trial Cour t . Charges were acordingly, framed on 08.04.201 against the Apelants punishable under Section 13(1)(d) read with Section 13(2) PC Act and Section 420 read with Section 120B IPC.

¶7Prosecution examined total Prosecution witneses in suport of its case.

¶8PW - 1 ASI K.L. Mena registered the FIR Ex. PW - 1/A.

¶9PW - 3 ACP Rajender Singh Manku deposed about the registration of FIR against the Apelants and Ashok Kumar Gupta on the basis of information received from reliable sources. Investigations were duly caried

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out and the requisite information and statement of the witneses were recorded.

10.

PW - 6 Pradep Sharma , the Tender Clerk in the year 198 - 9 proved the copy of the Work Order No. dated . 07 .198 along with the bils, which were Ex.PW - 6 /A and Ex.PW - 6 /B, colectively .

1.

PW - 7 Narender Kumar Sharma , the Tender Clerk in the year 198 - 9 proved the copy of the Work Order No. 535 dated 24.12.198 alon g with the bils, which were Ex. PW - 7/A and Ex. PW - 7/B, colectively.

12.

PW - 8 HC Krishna Dasan deposited the exhibits/signature samples of the Apelants in FSL, Rohini.

13.

PW - 9 Vinay Kumar Tyagi was the witneses to the signature samples of the Apelants taken by the IO .

14.

PW - 10 Lokn ath Sahu was the witnes to the arest of the Apelants.

15.

PW - 1 Khazan Singh , the Acounts Clerk/UDC produced the copy of the Work Order No. 186 dated 10.07.198 and Work Order No. 535 dated

24.12.198, which were exhibited as Ex.PW - 6/A and Ex.PW - 6/B and Ex.PW - 7/A and Ex. PW - 7/B, respectively. PW - 12 Nirmal Bansal , Audit Oficer deposed that the Work Orders were opened on 06.05.198 and the tender file bears his signatures. PW - 13 Ramesh Kumar Behl , Acountant in MCD in the year 198 - 9, deposed that the Wor k Orders Ex. PW - 6/A and Ex. PW - 6/B and Ex. PW - 7/A and Ex. PW - 7/B bear his signatures. He also testified that he was shown the Measurement Bok (MB) registered Ex. PW - 13/A and MB Bok Ex. PW - 13/B, which bears his signatures on the pasing of the bils as an Acountant.

16.

PW - 14 Rajni Narula produced the posting O rders of the Apelants

Sanjay Kumar Jain and C.B. Singh as Ex.PW - 14/A and Ex.PW - 14/B and

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that of S.N. Goel as Ex.PW - 14/ D. PW - 15 Anand Singh Chauhan produced the posting and transfer O rders of S.N. Goe l, which are Ex.PW - 15/A and Ex.PW - 15/B, respectively.

17.

PW - 16 Sajan Kumar , Chief Re f inery Cordinator (CRC) in Mathura Oil Refinery deposed that leter Ex.PW - 16/B was received in his ofice from Insp. S.S. Sandhu seking information as to whether M/s Univer sal Sanitary Emporium, Delhi had purchased Bitumen from their refinery for execution of Work Orders No. 186 and 585 during the period 10.07.198 to

31.03.19. The reply Ex.PW - 16/A was given stating that on verification of the records, no such customer mas ter was found. Thus, as per their record, no suply of Bitumen had ben made from their refinery to M/s Universal Sanitary Emporium, Delhi.

18.

PW - 17 Pushkar Raj , Head Clerk, Vigilance Department, MCD handed over the files of T ender and A counts of two Work O rders to the IO, which was seized vide memo Ex.PW - 17/A.

19.

PW - 18 K.S. Mehra , acorded sanctions for prosecution of the 03 Apelants.

20.

PW - 19 Ashok Drabu , who was posted as Executive Enginer in MCD , on 20.07.204, deposed that pursuant to the leter of IO, he forwarded Original MB/Register No. 176 Ex.PW - 13/A and MB/Register No. 1769 Ex.PW - 13/B pertaining to Work Orders No. 254/257 dated 07.08.198 and Work Order No. 535 dated 24.12.198 to the IO vide forwarding leter Ex.PW - 19/A.

21.

PW - 20 S.S. Sandhu

was the I O, who had conducted the investigations by colecting the requisite documents and recording of the statements. PW - 21 SI K irori L al Mena and PW - 2 Insp. S antosh K umar

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Singh w ere the subsequent IO, who conducted the investigations and thereafter, filed the Chargeshet in the Court.

2.

The statement of the Apelants were also recorded under Section 313 Cr.P.C. in which, they denied al the incriminating evidence. They examined 05 witneses in their defence .

23.

DW - 1 Pradip Kapor who was posted as Technical Oficer s in the year 198 - 19 has deposed as to the quality of the material used and the required tests conducted in the MCD Lab . DW - 2 Ram Niwas , who was posted as LDC, Maintenance deposed regarding the Bil register pertaining to the year 204 - 205 to 206 - 207 of Apelant CB Singh. DW - 3 J.B. Bhatia who retired as Executive Enginer had deposed with regards to the technical specifications of the projects. DW - 4 S. Venkataramanan who was posted as Acounts oficer has deposed with regards to the record pertaining

to diference of pay of Apelant CB Singh. DW - 5 Kiran Sharma , who was posted as Head Clerk has deposed with regards to the Pay Bil Register for the Apelant SB Singh.

24.

The Ld. Special J udge considered the entire Prosecution evidence and concluded that the Prosecution had sucesfuly proved that the Bitumen of the qualit y specified in the Work Order , had not ben used by Ashok Kumar

Gupta , Contractor despite which the payment of the submited B ils, was cleared by the Apelants, who were the JE, AE and E, respectively in the MCD Department and thereby convicted them under the charged Sections and also sentenced the m acordingly .

25.

Agrieved by the said conviction, the aforesaid thre Apeals have ben prefered by the Apelants wherein the conviction a nd sentence has ben chalenged on the grounds that the J udgment dated 29.10.2015 is

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based on inferences and presumptions and not on any cogent evidence. Pertinently, the alege d incriminating evidence have not even ben put to the Apelants under Section 313 Cr.P.C., which has caused serious prejudice to them. The requirement of sanctions under Section 197 Cr.P.C. has also ben ignored as the law mandates that the sanctions be gran ted only if the facts aleged against public servant , has nexus to the disc harge of their oficial duties.

26.

The Prosecution has failed to justify the basis on which it has ben concluded that wrongful los to the extent of Rs.1.75 Lacs has ben caused to MCD when in fact the total bil value, which stod released to the Contractor was of Rs. 1,7,62/ - , out of which the tentative cost of Bitumen was Rs.39,275/ - . No basis has ben given on which it has ben concluded that a los of Rs.1.75 Lacs , was caused.

27.

Furthermore, it has emerged in the evidence that it was not the duty of the A pelants to pas the B ils or in any maner, require the release of the payment to the Contractor. In the absence of any cogent evidence, conviction of the Apelants for comiting misconduct in permiting pasing of B ils or release of payments , is unju stified.

28.

The Ld. Special Judge has comited a grave ilegality in holding that the preliminary enquiry was conducted by the IO before the registration of the case. It is aserted that bare perusal of Ex.PW - 3/A, exposes the frivolity of the version of the informant ; in fact , the maner in which false averments have ben made during the cros - examination, the Apelant has ben sucesfuly impeached the creditworthines of the witneses. The Ld.

Special Judge was unjustified in returning or finding the gui lt of the Apelants, which is contrary to the setled principles of law.

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29.

It is submited that the evidence of the Prosecution was required to be meticulously examined, which the Ld. Special Judge has failed to do . The findings of gui lt as returned by the Ld. Trial Court are completely unsubstantiated by any document or ocular evidence.

30.

There is no ofence prove d by the Prosecution against the Apelants and they are entitled to be acquited.

31.

The Prosecution in the Status Report has reiterated the investi gations caried out by IO and also that the Apelants have ben rightly convicted and sentenced for the ofences . It is acordingly prayed that the present Apeal be dismised.

32.

The writen submisions have also ben filed on similar lines as the grounds raised in the Apeal. R eliance has ben placed on Central Bureau of Investigation, Hyderabad v. K. Narayana Rao

(2012) 9 SC 512, wherein, the Apex Court has observed that an ofence of conspiracy canot be demed to have ben established on mere suspicion and surmises or inference which are not suported by cogent and aceptable evidence. Similar view has ben taken by the Apex Court in P.K. Narayanan v. State of Kerala

(195) 1 SC 142 and Sherimon v. State of Kerala AIR 2012 SC

493.

3.

Reliance has also be en placed on State of Kerala v. P. Sugathan and Anr.

(20) 8 SC 203, wherein the Apex Court has observed that for proving the ofence of criminal conspiracy , it is important to show that al means adopted and ilegal acts done , were in furtherance of the object of conspiracy hatched.

34.

The Apelants has also placed reliance on P. Sirajudin etc v. State of Madras (AIR 1971 SC 520), wherein in was observed that whenever a

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public servant is charged with the acts of dishonestly which amounts to serious misde meanour or misconduct of the type of aleged in the case of first information is lodged against him, there must be some suitable Preliminary Enqu iry into the alegations by a responsible oficer. The same has ben reiterated by the Apex Court in Ashok Tshe ring Bhutia v. State of Sikim , AIR 201 SC 1363.

35.

Reliance has also ben placed on State of Goa v. Babu Thomas , 205

(8) SC 130, wherein the Apex Court has held that S anction isued by the incompetent A uthority is a fundamental eror which invalidates t he cognizance as without jurisdiction. The same view has ben taken by this Court in G.S. Matharo v. CBI , Crl M.C. 2695/2010. Similar reliance has also ben placed on C.B.I. v. Ashok Kumar Agarwal, 2014 CRI.L.J. 930 and Nanjapa v. State of Karnataka , MA NU/SC/078/2015.

36.

The State in its Apeal No. 239/2016 has sought enhancement of the sentence on the ground that the Apelants are public servant, who are found guilty of misuse of their Ofice position in conspiracy to case pecuniary gain to the Contract or, Ashok Kumar Gupta . It has not ben apreciated that huge los has ben caused to MCD/public at large.

37.

Reference has ben made to State of Madhya Pradesh vs . Shambhu Dayal,

(206) 8 SC 693 wherein it had ben noted that the coruption comited by the public servants ha s become a gigantic problem. The Cordinate Bench of this Court in State vs . Vishal S Yadav & Anr., in Cr. Apeal no. 958/ , observed that sentencing justice is the facet of social justice, even as redemption of a crime - doer in the a spect of restoration of a whole personality.

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38.

Reliance has also ben placed on Shyam Narain vs. State (NCT of Delhi),

(2013) 7 SC 7 wherein it has ben emphasized that it has to be borne in mind that primarily sentencing for an ofence has a social goal. It must make the Acused realise that the crime comited by him, has not only created a dent in his life but also a concavity in the social fabric.

39.

Likewise, the Apex Court in Shailesh Jasvantbhai vs. State of Gujarat,

(206) 2 SC 359, held that in ope rating the sentencing system, law should adopt corective machinery or deterence based on factual matric. S imilar observations have ben made in Gopal Singh vs. State of Utrakahand,

(2013) 7 SC 545, Sevaka Perumal vs. State of T.N,

(191) 3

SC 471, Raj Bala vs. State of Haryana & Ors. in Criminal Apeal no. 1049 - 1050 of 2015 , State of Chatisgarh vs. Bhugdev & Ors, 201 (3)

MPHT 16 CG.

40.

It is, therefore, prayed that the sentence as awarded to the 03 Apelants may be enhanced .

41.

Submisions heard and the record perused.

42.

This case inded is inded intriguing as it has its genesis in the

information received through "reliable sources ' on 25.05.204 by ACP Rajender Singh Mank u, who was Inspector in Anti Coruption Branch, that M/s Universal Sanitary Emporium , Delhi had ben awarded two Work Orders of a total amount of Rs.2 Lacs in the year 198 by the Enginers, Division XVI of MCD, Delhi wherein as per the terms and conditions of the Work Order, Contractor was to purchase fresh Bitumen from one of the author ized oil companies of Government of India and the fresh R eceipts in original were to be submited to the Department as prof of purchase.

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However, no such R eceipt of any order was placed on record thereby

reflecting that the Bitumen of specified standard h ad not ben utilized .

43.

M/s Universal Sanitary Emporium, Delhi submited bils of Rs.1.75 Lacs without any documentary prof, which was cleared by the Government oficials of MCD by abusing their oficial position and causing pecuniary benefit to the Contra ctor , Ashok Kumar Gupta .

4.

Consequently, the present FIR was registered against the 03 Apelants namely, Sanjay Kumar Jain, SN Goel and CB Singh as wel as Ashok Kumar Gupta, Proprietor, M/s Universal Sanitary Emporium, Delhi.

45.

The first striking fact is t hat the information was received after about six years in the year 204 for the work completed in the year 198 - 9 . T here was no cogent basis on which the said alegations were made and were not suported aparently by any document as the same have not be n placed on record by PW - 3 ACP Rajender Singh Manku, who got the FIR Ex.PW - 1/A registered through PW - 1 ASI K.L. Mena, the duty Oficer .

46.

Though PW - 3 ACP Rajender Singh Manku in his testimony has claimed that prima facie cognizable ofence of cheating and a buse of the oficial position of the MCD oficials were made out , but it not understandable as to how and o n the basis of some uncoroborated information , after about six years, , the PW - 3 got this insight of registering the FIR in the first place.

47.

He in his cros - examination, states that he made enquiry prior to registration of the case , but such aleged enquiry does not find its way to the Chargeshet and is not placed on record. He further admits that he did not conduct any physical verification of the fact as to whether the roads for which contract was given, were laid, he was also not able to state if there

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was any C omplaint in regard to the executed work. He himself did not verify whether Bitumen was used at the site or not. He also did not find out t he proces or maner in which Bitumen was to be received at the end of MCD. He also did not come acros any Measurement Bok during his enquiry , despite being aware that such MB s are maintained by MCD. He was also unable to state if during his enquiry, he came acros the L aboratory T est caried out by the Department for the quality and quantity of Bitumen used in the laying of roads.

48.

It is clearly evident from his testimony that though firstly he claimed that there was a reliable source through which he go t the information about improper release of money to the Contractor , Ashok Kumar Gupta for the work done about 0 6 years back but secondly, his aleged enquiry was also an eyewash as he never did anything to first confirm even prima facie any truth in the a legation before geting the FIR registered. Clearly, there was no authentic information or any evidence even prima facie to show that the Work Orders were not executed by Ashok Kumar Gupta in acordance with the terms of the Work Orders. Be that as it may , the case of the Prosecution may be considered on its own merits.

49.

Admitedly, it is not in dispute that M/s Universal Sanitary Emporium, Delhi through its Proprietor Ashok Kumar Gupta, was awarded two Work Orders for execution of road work for a total am ount of Rs.2 Lacs in the year 198 by the Division XVI of MCD. The details of the two Work Orders are as under: - S. No.

Work Order with date

Name of the Work

¶1dated

10.07.198

R/R cut made by MTNL Dept. In F - Block, Shastri Nagar in C - 120/CLZ Sh. M /P near

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F - 1 to F - 16 and F - 47 to Nag Mandir Road.

¶2dated

24.12.198

R/R cut made by MTNL Dept. In Shahzada Bagh in C - 120/CLZ Sh. Imp to Road by patch repair on Subhadra Colony to Inderlok in C - 120/CLZ.

50.

The two Work Orders No. 1 86 dated 10.07.198 and Work Order No. 535 dated 24.12.198, Ex.PW - 7/A and Ex.PW - 7/B, respectively have ben proved by PW - 6 Pradep Kumar, Tender Clerk and PW - 7 ACP Narender Kumar Sharma, Tender Clerk, respectively.

51.

As per the terms and conditions of the Work Order s , the Contractor , Ashok Kumar Gupta was to purchase fresh Bitumen from one of the authorized oil companies of Government of India viz. IOC, HP and BP. Further, the conditions stated that the fresh receipt in original be submited to the Departme nt of MCD as prof of purchase of fresh Bitumen from any of the authorized C ompanies.

52.

Acording to the Prosecution , there was cheating done by Ashok Kumar Gupta insomuch as he failed to use fresh Bitumen for the road repair as was specificaly provided und er the Work Orders. The sole basis for claiming cheating, conspiracy and misconduct are that the Bitumen used was not as per the specification of the T ender . Further alegations of the Prosecution were that no R eceipts were produced by Contractor, Ashok K umar Gupta about hi m having purchased fresh Bitumen from any of the authorized C ompany of Government of India in prof thereof , was furnished to the MCD , despite which the 03 Apelants in conspiracy with him , cleared his bils amount ing to Rs.1.75 Lacs.

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53.

The sole material witnes for proving this fact is PW - 16 Sajan Kumar, DGM , IOCL, Bombay . He has deposed that on 24.06.204, he was posted as Chief Refinery Cordinator (CRC) in Mathura Refinery Terminal, Mathura and a L eter dated 15.06.204 Ex. PW - 16/B was received from the PW 20 Inspector S.S. Sandhu, IO re quiring a confirmation as to whether —M/s Universal Sanitary Emporium, Delhi had purchased any quantity of Bitumen from your Oil Refinery betwen 10.07.198 and 31.01.198 or otherwise ". If so , the d etails of the same along with the copies of relevant Cash Memos or Gate Pas be suplied to his O fice through the bearer of th e L eter.

54.

The R eply dated 24.06.204 Ex. PW - 16/A was given by PW - 16 wherein it was stated that as the mater pertains to the pe riod 19.07.198 to

31.03.19, and extensive checking of the record rom , was required . On verification of the available record s pertaining to this period, it wa s noticed that no such customer by the name of M/s Universal Sanitary Emporium, Delhi was avai lable in their Customer Master

(sic). This response led PW - 20 S.S. Sandhu t o conclude that no suply of Bitumen had ben made to the above party from out Refinery Terminal of IOCL .

5.

PW - 16 in his cros - examination, admited that he canot say regarding th e status of M/s Universal Sanitary Emporium, Delhi and whether it was a Proprietorship concern or a C ompany. He made certain pertinent admisions that h e was also not able to say if I nvoice No. 0167348

was the I nvoice vide which Bitumen was suplied by IOC to the customer as this number was not reflected in the aforesaid L eter Ex.PW - 16/B .

56.

What thus , emerges is that the PW 20 Insp. S.S. Sandhu, IO, during the investigations, had tried to confirm if the fresh Bitumen had ben

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purchased in the year 198 - 9 b y Ashok Kumar Gupta through IOCL for which purpose, he wrote the leter Ex. PW - 16/B. Interestingly, as has also emerged from the cros - examination of Ex. PW - 16, the L eter merely sought a confirmation that if any fresh Bitumen during the relevant period, w as sold to M/s Universal Sanitary Emporium, Delhi. Admitedly, the I nvoice number with which PW - 16 Sajan Kumar was confronted , was never indicated in the said L eter.

57.

The only fact which emerges from the testimony of PW - 16 Sajan Kumar is that no Bitumen was suplied to the Proprietorship Fir m but was not in a position to say if it was given in the individual name of Contractor Ashok Kumar Gupta. The surest way to disprove that the fresh Bitumen was not suplied to him was to confirm whether the I nvoice wa s in fact , isued in the name of Ashok Kumar Gupta or whether the said Inv oice was a genuine document pertaining to the IOCL. Neither there has ben any verification sought of the Invoice number nor has the same ben provided. In the absence of there being no evidence to confirm the authenticity of the Invoice B il, there can be no presumption that no fresh Bitumen was purchased by Ashok Kumar Gupta for execution of the two Work Orders.

58.

This aspect asumes significance in the light of the testimony of PW - 13 Ramesh Kumar Behl, who was the Acountant in MCD in the year 198 - 9 and on the requisition of the IO, had produced the Tender File and B ils of Work Order No. 535 dated 24.12.198, which is Ex. PW - 7/A and Ex. PW - 7/B, colectively . File And Document s pertaining to Work Order No. 186 dated 10.07.198 Ex. PW - 6/A and Ex. PW - 6/B, colectively. He further deposed that he was shown MB No. 176/CLZ Ex. PW - 13/A and MB No.

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1769/CLZ Ex. PW - 13/B to the IO, which bear his signatures on the B ils cleared by him as an Acountant.

59.

He in his cros - examination , explained that the details of work done including procurement of Bitumen, ruber and stone, laying of road and also measurement of road , is done and reflected in the MB. Further, the I nvoice N umber is also reflec ted in the Measurement Bok ( MB ) as is sen at Mark DA on Ex. PW - 13/B and R eceipt No. 0167348 dated 05.10.198 at Mark DA on Ex. PW - 13/B , was received from IOC. The Bitumen was received from IOC on 09.10.198. The payment had ben released only on complet ion of work to the satisfaction of MCD. He further deposed that he had pased the B ils only after checking the I nvoices and the quantity mentioned in the MB and talying the same . He admited in his cros - examination that he never visited the site and did not verify in any maner in which Bitumen was unloaded at the site. He did not verify what was the proces or the maner in which Bitumen was received. He did not lift any sample from the site for checking in respect of quality and quantity.

60.

In this regar d, it is pertinent to refer to the testimony of PW - 2 0 S.S. Sandhu, retired ACP, who was the Inspector at the relevant time and had caried out investigations in the present case. He also admited that he had only sought information from IOC, Mathura Refine ry through leter Ex. PW - 16/B if any Bitumen as suplied to M/s Universal Sanitary Emporium, Delhi and received a response in the negative. It is evident that no information vide the I nvoice number which was available on record and found mention in MB Bok , had ben sought by him. He also admited that the MB Ex. PW - 13/A and Ex. PW - 13/B were seized by him during the investigations. He admited that even though I nvoice number was mentioned

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at E ntry No. 4 Mark DA in Ex. PW - 1/DA, he never tried to get the sai d I nvoice checked. He did not recolect if he had got this I nvoice checked.

61.

The MB Ex. PW - 13/A and Ex. PW - 13/B pertaining to the two Work Orders had ben seized by the IO during the investigations. PW - 13 Ramesh Kumar Behl in his cros - examination has expla ined that MB have the details of the work done including procurement of Bitumen , ruber and stone, laying of road and measurement of the work done in al. He also admited that the I nvoice number was reflected in the MB vide which Bitumen was received from IOC on 09.10.198.

62.

The Apelants in their defense , had examined DW - 1 Pradep Kumar, Dy. Director (Technical), Quality Control Department, NDMC, Delhi), who deposed that he was posted in MCD as Lab Asistant in 1985 and promoted to the post of Technical A sistant in the year 1989 and was promoted as Technical Oficer in Municipal Lab in the year 196. In 2012, he was promoted as Dr. Director (Technical) Quality Control Department. He explained that MCD has set up by a Lab for conducting independent T est fo r verification of material used for execution of diferent work. The tests are conducted in respect of diferent T enders awarded by MCD , to various Contractors. During his tenure, he conducted various test of Bituminous

work, stone agregate, bricks, sand and C Cubes. For the purpose of testing, samples are required to be lifted in the presence of one authorized representative of Municipal Lab , f rom the actual site of execution of work . H e further deposed that in the year 198 - 9, there were around 7 - 8 Tec hnical Oficers posted in the Technical Lab along with him.

63.

The Municipal Lab is not conected to any Division and is an independent verifying A gency of Municipal Corporation. The witnes was

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shown the L ab Test Report bearing Proforma No. 1083 (Mark DE/Ex .DW1/D1) and Report bearing Proforma No. 46270 in the file Ex.PW - 7/B. He admited that Proforma No. 1083 is the Lab Test Report of premix bearing signatures of Technical Oficer Brahamanand, which he could identify as he had worked with him. As per this Re port, the sample of which the T est was conducted , was found to be in conformity with specifications.

64.

Likewise, the Proforma Report No. 46270 Ex.DW - 1/D2 was deposed to be pert aining to stone agregate T est Report , which had his signatures at Point A. The Test Report mentions conduc t ing of — Crushing Test " and —Impact Test ", which were conducted to as and whether it was in conformity with technical requirements. As per the R eport, the samples were found to be in conformity with technical specifications.

65.

The witnes was also shown the Proforma No. 1072 Ex. DW - 1/D3 and R eport ; Proforma No. 32192 and 32189 Ex. DW - 1/D4 and Ex. DW - 1/D5, respectively. The R eport bearing Proforma No. 1072 was the —Bituminous Extraction Test ", which was found to be in conformity with the technical specifications. It was explained that the sample is put in bitumen extraction machine to take out binder content of Bitumen from the sample. Likewise, Proforma No. 32192 and 32189 pertained to Stone Agregate T est Report in relation to metaling work, which had the signatures of H.L. Mendirata, Technical Oficer. As per the Test Reports , the samples were in conformity with the requirements.

6.

In his cros - examination, though he admited that the samples were not lifted in his presence and that the T est w ere not conducted by him or that

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the contents of the R eport were not filed by him , but the R eports Ex. DW - 1/D2 had his signatures. The contents of these Proforma Reports though

were already filed in , but was sign ed by him.

67.

The testimony of DW - 1, therefore, coroborate that at the time of execution of work, the samples of Bitumen were taken from the site and they were independently tested by the Department and were found to be in order. These facts are corespondi ngly reflected in the Measurement Bok , which interestingly was colected during the investigations but pertinently not refered to be Inspector S.S . Sandhu, revealing not only the lackadaisical investigations done by him but also reflect complete malafide with litle regard to the impact on the carer of thre Apelants.

68.

The other material witneses are DW - 3 J.B. Bhatia , a retired Executive Enginer, MCD, who deposed that during his service tenure in MCD from the year 1972 til October, 201, he had dealt with construction of bridges, buildings, road work and parking, etc. in regard to road work, he had ben asociated with execution of work in the nature of —metal l i n g, premix and dense carpets ". The ingredients required for execution of metal l i n g job are stone agregates of various sizes, red bazri, morum and earth. Bitumen is required for execution of premix work. Ingredients of premix are stone agregates, stone dust and bitumen.

69.

DW - 3 J.B. Bhatia , further deposed that t he I nvoice is a document submited by the Contractor , Ashok Kumar Gupta in lieu of his claim for storing Bitumen at site i.e. for quality and quantity of the Bitumen. The claim of the Contractor , Ashok Kumar Gupta is not binding on the Department. The oficials of MCD have to check indepen dently the quality and quantity of the material brought at site. After independent examination,

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the record entries are made in the MB/Register. In the event of any diference/variation in respect of the entries in the I nvoice and the actual measurement mad e at site, the measurement made at site would prevail over the I nvoice and the same shal be recorded in the MB. For the preparation of bil as wel as for payment in respect of execution of work, the I nvoice is of no significance. The payment is made aco rding to the actual work executed at the site. The bil has to be acompanied with the MB and Test Reports . The custodian of the acounts file is Acounts Clerk in Acounts Division.

70.

The CPWD Manual reflects the duties of the Enginer regarding the inspect ion of work in paragraph 5.1.1 and 7.3.2, photocopies of which are Ex. DW - 3/DA and Ex.DW - 3/DB, respectively. A Circular dated 24.05.201 was circulated by MCD in respect of dense carpet work wherein it was stated that the Contractor shal be responsible for the corectnes and genuinenes of al the documents. This Circular finds mention in the sanction Ex.PW - 2/DA in the leter dated 23.06.208 filed by the Prosecution. He further deposed that if the work is executed as per the technical qualifications i .e. quality and quantity , then there is no los to MCD.

71.

From the testimony of these two defence witneses DW - 1 and DW - 3, it emerges that the Invoice vide which the Bitumen is purchased by the Contractor is only with an objective of verifying the quality an d quantity of the Bitumen. The sample of Bitumen is taken from the site before the execution of the work and is tested in the MCD Lab. Furthermore, there is a constant monitoring of the work as it progreses and the quantity and the quality of the work exe cuted at the site is corespondingly reflected in the MB s . In the present case, the MB are Ex. PW - 13/A and Ex. PW - 13/B,

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which show that there is detailed description of the amount of work that ha d ben executed. As has already ben mentioned, it also conta ins a reference to I nvoice No. 0167348 vide which the Bitumen was purchased by the Contractor. Sample Bitumen was taken and it was tested in MCD Lab and was found to be of requisite quality.

72.

The evidence was led by the Prosecution, itself establishes that the Bitumen had ben purchased from IOCL and was of the requisite quality and was duly utilised for execution of the work. The documents of the Prosecution as contained in the Work Order Files Ex - 6/A & 6/B and Ex - 7/A & 7/B along with the MB, itself prove that Bitumen of specified quality and in the stated quantity , was used for completion of the Work Orders. There is no evidence whatsoever to show that the work was not done in acordance with the specifications of the Work Order.

73.

It may also be observed th at there is no evidence whatsoever to sugest that the I nvoice submited by the Contractor , Ashok Kumar Gupta

was fake or fabricated or that there was any conivance inter se the Contractor , Ashok Kumar Gupta and the Apelants in using inferior material o r clearing the B ils inapropriately for causing a benefit to the Contractor and coresponding los to MCD.

74.

It is also significant to observe that as per the charge, the los of Rs.1.75 Lacs had ben caused to MCD. However, from the MB and the B ils inclu ding the bil Ex. 6/A , it is evident that for the first Work Order No. 186 dated 10.07.198, the quantity of Bitumen required to be used was worth of Rs. 8025 / - . The quantity of Bitumen required and utilised for the second Work Order No. 535 dated 24.12.19 98 was worth of Rs. 1208 / - . The total Bitumen quantity in the two Work Orders as upto Rs. , 13 / - .

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75.

Even if the entire case of Prosecution is acepted that the Bitumen was not purchased from IOCL or that it was of inferior quality , then to it was only a smal component of the material utilised for completion of work aside from labour and other execution charges. By no stretch of imagination, can be said that there is any los of Rs.1.75 Lacs caused to MCD.

76.

In this regard, it is also pertinent to observe t hat there was no complaint whatsoever about the quality o f work by any A gency , when this secret information was received by PW 20 Insp. S.S. Sandhu in the year

¶204As already noted above, this secret information had no basis or any legs to stand on.

7.

The falsity of so - caled secret information , is also evident from the fact that an enquiry was conducted by PW 20 Insp. S.S. Sandhu and had sought the coment from the ofice of Chief Enginer, who had responded vide leter dated 06.07.204 Ex. PW - 2/DA wherei n it was clarified that M/s Universal Sanitary Emporium had bought the required quantity of Bitumen and submited the I nvoices in token of procurement from the authorized C ompany. The work had ben satisfactorily completed in the year 198 and the payment had ben made acordingly to the respected Contractor F irm s .

78.

It was further stated in detail that in the year 19, on receipt of C omplaint, the Vigilance Department which had al the records pertaining to these W orks from Division, forwarded them to CBI to enquire into the mater. Detailed investigations were conducted by CBI and no discrepancy was found on the part of Enginers of MCD and the same was send back to MCD to deal with these cases departmentaly.

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79.

With the aproval of the then Comisioner, a Comite was constituted under the Chairmanship of R.K. Mena, the then Chief Enginer, N.K. Sandhu and H.D. Sekri as Members and P.K. Jain, as Member Secretary. After deliberations, the Comite came to a conclusion that the oficials of MCD were not responsible for the corectnes/genuinenes of the documents submited by the Contractor for which t he Contractor alone

1 of * IN THE HIGH COURT OF DELHI AT NEW DELHI % Reserved on: th April , 2025 Pronounced on: th July, 2025 + CRL.A. 1238/2015 SANJAY KUMAR JAIN S/o Shri Darshan Lai Jain, R/o 48/1, MCD Flats, Bunglow Road, Delhi. .Apelant Through: Mr. D.S. Kohli, Mr. Yash Kadyan, Ms. Manat Kohli & Mr. Raghav Kaushik, Advocates Versus STATE (THROUGH A.C.B) .Respondent Through: Mr. Yudhvir Singh Chauhan, AP State with Insp . Bharat + CRL.A. 1254/2015 C B SINGH S/o Shri Jhaman Singh, R/o D - 831A, Gali No. 3, Ashok Nagar, Delhi. .Apelant Through: Mr. D.S. Kohli, Mr. Yash Kadyan, Ms. Manat Kohli & Mr. Raghav Kaushik, Advocates Versus STATE .Respondent Through: Mr. Yudhvir Singh Chauhan, AP State with Insp. Bharat + CRL.A. 125/2015 S N GOEL S/o Shri S. C. Goel, R/o F - 26/69, Sector - 7, Rohini, Delhi. .Apelant Through: Mr. D.S. Kohli, Mr. Yash Kadyan, Ms. Manat Kohli & Mr. Raghav Kaushik, Advocates 2 of Versus STATE (THROUGH CBI) .Respondent Through: Mr. Yudhvir Singh Chauhan, AP State with Insp. Bharat + CRL.A. 239/2016 THE STATE (NCT OF DELHI) .Apelant Through: Mr. Yudhvir Singh Chauhan, AP State with Insp. Bharat Versus 1. ASHOK KUMAR GUPTA S/o Sh. B.S.GUPTA R/o 26/87, SHAKTI NAGAR, DELHI - 107 2. SATYA NARAYAN GOEL S/o SH. S.C.GOEL R/o F - 26/69, SECTOR - 7, ROHINI, DELHI –1085 3. SANJAY KUMAR JAIN S/o SH. DARSHAN LAL JAIN R/o 48/6, MCD FLATS, BUNGLOW ROAD, DELHI –107 4. CHANDRA BHAN SINGH SH. JHAMAN SINGH R/o D - 83 1A, GALl NO.3, ASHOK NAGAR, DELHI –1093 .Respondents Through: Mr. D.S. Kohli, Mr. Yash Kadyan, Ms. Manat Kohli & Mr. Raghav Kaushik, Advocates for R - 2 & 3 CORAM: HON'BLE MS. JUSTICE NENA BA NSAL KRISHNA