Dharam Pual Grover vs State of Himachal Pradesh

Bhawani Singh, J.—These appeals, by the accused, arise out of the same judgment of the Special Judge (2), Shimla, in Sessions trial No. 12-S/7 of 1985 decided on 16-12-1985/18-12-1985 by the same judgment. They being common are being taken up for decision together.

By this judgment, the accused have been convicted for offences under Sections 420, 120B, and 477A of the Indian Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947 and have been sentenced to rigorous imprisonment for various terms in addition to fine and further imprisonments in case the same is not paid. The accused have a grievance against this judgment and, therefore, assail the same by these appeals.

The prosecution case, in brief, is that in the year 1978 accused Kartar Singh, a registered contractor in the Public Works Department, was given a contract for the repairs of Government buildings in Tutikandi and Nabha areas. He was to fix some down pipes, bends etc. by way of repairs in the Government Middle School, Tutikandi, and in the residential estate known as Marlin Estate. The repairs were to be carried out in the main Marlin estate building, Marlin cottage and out-houses attached with the Marlin Cottage. The total value of the repairs to be carried out by accused Kartar Singh was Rs. 10,200/-. A written work order was given to him for this purpose by the Executive Engineer, Public Works Department, Division No. 3. Accused Dharam Pal was the Junior Engineer in this beat. It was his duty to get the work done by the contractor, check it and enter the same in the Measurement Book. He made certain entries in this Book from 31-8-1978 to 16-9-1978. According to these entries certain down-pipes, bends and P.G.I, caps were fitted in Government Middle School, Tutikandi, the main building of Marlin estate, Marlin Cottage and out-houses attached to the main building of Marlin estate known as Marlin Park and the total material shown to be used in these entries along with labor charges was Rs. 10,000/-, Accused Dharam Pal certified the work to have been done in accordance with the specifications given in the work order and the terms of the contract. Thereafter a running bill was prepared by accused Dharam Pal and he certified at the foot of that bill that the work had been done in accordance with the specifications of the Central Public Works Department and this bill was to the tune of Rs. 9683.11 paise. The Assistant Engineer, to whom it was submitted, made payment of the bill to accused Kartar Singh and due entry in the cash book was made. "Someone reported the matter to the Vigilance Department that no work had been executed on the spot and the entries made in the Measurement Book by accused Dharam Pal were false and wrong payment has been made to the contraction and, therefore, the department had been cheated by the accused. A case was registered and after investigation, challan was filed in the Court of Special Judge (2), Shimla. Accused Dharam Pa) was charged for offences punishable under Sections 420, 468, 471, 477A of the Indian Penal Code and Section 5(1)(d) of the Prevention of Corruption Act and 120B of the Indian Penal Code. Accused Kartar Singh was charged for offences under Sections 420, 120B, 468, 471, 477A of the Indian Penal Code and Section 5(l)(d) of the Preve ntion of Corruption Act, 1947. Both pleaded not guilty to the charge and, therefore, they were tried accordingly. Accused Dharam Pal submitted that he made the entries on the instructions of Assistant Engineer Shri Dayal Singh (PW-11), who was his immediate boss. It is, however, stated by him that several down pipes, bends and caps had been fixed on the spot but did not remain in existence by the time the raiding party visited the spot which did not see them at the spot. He further submits that although they were fixed but they were removed and seen stacked in the laboratory Block of Government Middle School, Tutikandi. This is the defense of the accused and has been put to the prosecution witnesses during cross-examination. The trial culminated into the aforesaid conviction and sentences of the accused and they challenge this decision by way of this appeal.

The prosecution intends to substantiate the allegations against the accused by a reference to the Measurement Book, statements of number of witnesses, spot inspection and a few other documents. Perusal of the record shows that the proposal for effecting repairs was initiated and sanctioned somewhere on 26-4-1978. On this basis, tenders were invited for various items and ultimately it was found, vide Ex. PW-3/F that the rates quoted by accused Kartar Singh were the lowest. Obviously the work was to be allotted to him. So this happens on 31-3-1978 when the work order Ex. PW-3/C was allotted by the Assistant Engineer with the approval of the amount to be spent on this work by the Executive Engineer, as this document shows. The work had commenced on 1-9-1978. Thereafter first running bill Ex. PW-3/H was prepared. On this date, the work was in progress. Measurement was taken on 19-9-1978 by the accused (Dharam Pal Grover), vide Measurement Book No. 114, pages 11 to 14. This bill was approved by the Assistant Engineer, Shri Dhian Singh. A complaint appears to have been filed by someone, which has not been produced on the record, wherein it is stated to have been alleged that no work, as required, was executed by the accused and the entries in the Measurement Book and the ultimate payment to the contractor was wrong. It was on the basis of that complaint that the present case was initiated.

There is sufficient time gap between the allotment of the work and the date of the inspection by the raiding party. It appears that by the time the spot was inspected by the members of this raiding party, nothing was found, as stated by Shri J.R. Kamth, Superintending Engineer (PW-2). It is, however, admitted by this witness that 50 per edit of the work done is checked by the Assistant Engineer, under whom the Junior Engineer works, and that it is only after this checking that the running bill is prepared and the payment is made after pre-audit. He has admitted that while making statement, he idiot make mention with regard to the discrepancies found in the building known as Marlin Park and that there are out-houses attached to this building and that only the main building was checked and not the out-houses but denies the suggestion that the accused, Shri Dharam Pal, had specifically pointed out that pipes >had been fixed in the outhouses of Marlin Cottage. It also denied that the accused had pointed out that some pipes were lying in the School at Tutikandi. However, it is admitted by him that whatever over payments are made in the running bill, they are j deducted when the final bill is prepared and that accused Kartar-s Singh was not present at the time of checking. It is clear from the statement of this witness that all the premises of Marlin Park were not checked although the accused had made a reference to the outhouses attached to this building. It is further clear that 50 per cent of the work done is checked by the Assistant Engineer that has been done'' in the present case.

Shri Dilbag. Singh (pW-3), Superintending Engineer, also looked into this matter but he also did not see the, out-houses attached to Marlin Cottage. He found this material stacked in the laboratory of the School.

Shri R.S. Bhatnagar (PW-4) also testifies about Marlin Park Cottage but does not know anything about the repairs, if any, carried out in the out-houses of Marlin Park estate which is fthub; building consisting of 50 rooms; at present in the occupation of SSB;

Shri I.S. Kingra (PW-5) is also ignorant as to whether there are any out houses in that estate.

Shri S. Padamnabhan (PW-10) is one of the Members of the raiding party. He states that these repairs had not - been carried out in these buildings although he admits thatin. MarHn Cottage old pipes were found affixed at the time of checking. He admits that there are some out-houses attached to Marlin Cottage but says nothing about the checking of that .part of the building. He does not remember anything about the use of old pipes in the Middle School, Tutikandi and that some Pipes were shown lying in the laboratory of the Middle School, Tutikapdi, at the tune of checking by accused phararnpal. He, however, admits that repair work was done in August and September, 1978 and he did not go to that place at that time.

Smt. Raj Dulari Gulati (PW-6), is the Headmistress in the Government Middle School, Tutjkandi she desires that any down-pipes were affixed in the School-by the-Public Works Department in the year, 1978. She states that material "was freight by someone and kept in her School. This fact was reported by; her to the authorities. She, denies that down-pipes were fixed in the School in August/September, 1978 and they again fell down and then stored in the School. However, she admits that some repairs were done by the Public Works Department in these months and she does not know whether the pipes, for, which she had given, receipts. Were alien stored in the laboratory of the School. This school, she states had already down pipes affixed when checking was fane wake were, old pipes. The repair work in the School was carried out for 10 to 15 days.

Shri Bhagwan Dutt Sharma (PW-3) states that the bill; Ex.P Wt8/H was prepared and passed by the Assistant Engineer, Shri Dayal Sjngh. jiff admits that this bill was prepared after the test check was done by the Assistant Engineer on the basis of the entries made in the Measurement Book. 3 he bill is prepared only after the Assistant Engineer has given the data in his office after test check for preparation of the bill. He also states that besides Marlin Cottage and Tutikandi Middle School, repairs of other buildings in the Nabha Estate were going on and this running Bill Ex. PW-3/H pertains to these works.

Now, the only important witness left is Shri Dayal Singh (PW-11), who is the Assistant Engineer under whom the accused, at that time worked and carried on these repairs; refer to his statement rather elaborately. He submits that he prepared the estimate for repairs regarding replacing of down-pipes at Nabha Estate, District Courts, Education Complex and Martin Park Complex, Shimla. He sent the annual repair estimate to the Executive Engineer vide letter Ex. PW-1 lf A under his signatures. This estimate was duly sanctioned (Ex. PW-11/B). Sanction estimate (Ex. PW-8/A), which bears his signatures, pertains to residential buildings at Nabha. The running Bill (Ex. PW-H/L) also bears his signatures at points ''A'' and ''BX This is for a sum of Rs. 9683.11 paise and Ex. PW 11/M is the work order under his signatures. The same was approved by the Executive Engineer as well. He proves the comparative statement contractors who had filled tenders before giving the work order to accused Kartar Singh; The work in question was allotted to accused Kartar Singh for providing and "fixing the down pipes, bends and caps at Nabha, Martin Park, School Building and District Courts. Shri Grover was the In charge of the work of Marlin Park and School Building at Tutikandi and out-houses and quarter also at Marlin Park. The measurement book was issued to accuse Dharam Pal by him on 11-8-1978 and the entry Ex. P/fa-2/P4 regard in fixing of down-pipes in Tutikandi was made ''by the accused. Similarly, entries of the; Marlin Cottage- are also made at portion Ex. PW 2/A, 5an4soalsothe entry regarding the fixing of down-pipe along with-bend at School building at Tutikandi as Ex. PW-2/A-4 and regarding caps in the TutiKandi, Marlin Cottage and Marlin Park is made at PW-2/A-5. All these entries are at pages 9, 10, 11 and 12, all made by the accused. He passed this bill as per entry at the reverse of page 12, that is, Ex. PW-2/A. He further states that his duty is to check 50 per cent of the value of the total work done. He admits that as per the perusal of Measurement Book, it can be said that he checked only Marlin Park quarters and not the Tutikandi School and the Marlin Cottage in respect of down-pipes, bend and caps. After this, he passed the running bill, pre-audited by the Divisional office. After about three months of the payment, a raid was conducted by the Vigilance Department on some complaint and made some observations regarding non-existence of pipes, caps and bends at that time in the Measurement Book. He admits that on the day of the raid down-pipe at Tutikandi was not in existence but the down-pipe in the Marlin Cottage was, existing as per entry in the Measurement Book at page 9 (Ex. PW-2/A), where his signatures are also found. Marlin Park Cottage area has many buildings. Main building is Marlin Park. There are Marlin Park Cottage out-houses. They are part of Marlin Cottage. He admits that Marlin Cottage estimate includes estimate in respect of out-houses also. The work was in progress according to the estimate. The sum of Rs. 9683.11 includes the price of material also. Major portion of this amount is towards the cost of material and some part towards the labor charges.

This witness further states that Running Bills are prepared by the Sub-Divisional Clerk on the basis of the record entries in the Measurement Book and denies that running bill is prepared after full satisfaction of the Assistant Engineer regarding the work done. Payment is made according to the actual measurement and satisfaction. He used to check off and on the work. At the time of releasing the payment, he was satisfied that everything was according .to the Schedule. He did only 50 per cent checking. He does not remember whether the accused had stated at the time of checking that the out-houses should also be checked. Final bills have not been prepared. The final bill is prepared when the work is completed per terms of the contract by the contractor and since the work was in progress so the final bill was not prepared. The running bill is prepared on the work done. The purpose of test check is to verify the measurements and the same is not done after the completion of the work. He checked at random the work done to the extent of 50 percent. He was satisfied that the entries in the Measurement Book were correct. He found some pipes, bends and caps lying in the School laboratory after 4/5 days of the raid. He does not remember whether accused Dharam Pal had told the raiding party that the material was lying in the School laboratory. Although he had no information that the down-pipes were removed, however, they are removable. He states that the running bill is prepared when the work is in progress. Payment is made by the Assistant Engineer after passing of the bill and in this case he had made the payments. This witness admits his signatures on pages 9 and 10 of the Measurement Book Ex. PW-2/A).

By reference to the evidence on record, Shri S.S. Kan war, learned Counsel appearing for the Appellant, submits that the prosecution has not been able to prove any of the offences against the accused. There is no evidence of conspiracy. He further elaborates his submissions by asserting that there is, in facts, a conspiracy against the accused who executed the work as per the requirements. No benefit, he urges, has been taken by accused Dharam Pal from the contractor Shri Kartar Singh. Shri Kanwar contends that documents have not been forged. They are genuine and the witnesses who have deposed contrary to the documents have done so at the behest of the police which wanted to involve the Appellants in the case at the instance of the so-called complainant whose name and complaint has not seen the light of the day. He has been intentionally kept back by the prosecution which indicates that the prosecution has not placed correct version of the case before the court. On the other hand, Shri M.S. Guleria, Assistant Advocate General, assails these submissions of Shri S.S. Kanwar.

After hearing the learned Counsel for the parties, I am of the opinion that the prosecution has not been able to prove the case against the accused beyond all reasonable doubts. It is in evidence that there is a set pattern prevailing in the Department for the execution of the work right from the stage of requirement, preparation of estimates, its sanction, calling of tenders, acceptance thereof, allotment of work, its supervision by the Junior Engineer, Assistant Engineer, Executive Engineer and the Superintending Engineer. Everyone has to do his own part as prescribed under the Manual of Orders of the Public Works Department, Buildings and Roads Branch, Punjab, referred to by Shri S.S. Kanwar. If accused Dharampal had made a mistake, which I am not prepared to believe, the same could have been rectified by the Assistant Engineer and so on. It appears the work was done and a running bill for payment to the contractor was prepared, finalized and paid. The time gap between the allotment of work and the inspection by a team of officials from the Vigilance Department is so much that the possibility of the removal of these parts from the buildings in question cannot be ruled out. It is a common feature seen every now and then. It is further seen that it was a running bill and not a final bill. If any excess payment or inaccurate payment was made to the contractor, that could be adjusted while preparing the final bill and making the final payment of the work of the contractor. Before this stage could come, this issue'' crops up which is just an inchoate stage of the procedure. The explanation given by the accused that the material was laying in the School has not been appreciated nor was the fact carried out in the outhouses that repairs attached to Marlin Cottage.'' For what reason, cannot be ascertained. It was necessary for the raiding party to have looked to this aspect. Non-adherence to this has left a lacuna in the proper investigation of this case.

In view of the aforesaid examination of this case, the evidence adduced by the prosecution lacks those fundamental requirements on which the offences in issue are alleged to have been committed. The prosecution has miserably failed to conclusively prove them against the accused.

The result is, there is merit in the appeals, the same are allowed, the judgment of the trial court is set-aside and the accused are acquitted of the charges. Bail bonds and surety bonds", if any, executed by them are hereby discharged.