Gurpreet Singh vs State (Union Territory, Chandigarh)

M.L. Singhal, J.

This order will dispose of Criminal Misc. Nos. 19628 and 19595M of 1998 filed by Gurpreet Singh, Sub Divisional Engineer, Municipal Corporation, Chandigarh and Harsh Kumar, Executive Engineer, Municipal Corporation, Chandigarh respectively claiming bail, as they have arisen from one and the same FIR i.e. FIR No. 1 dated 3.2.1998 under Sections 13(1)(a) (b) (c) (d) and 2 of the Prevention of Corruption Act read with Sections 406, 409 and 120B of the Indian Penal Code registered at Police Station Vigilance Cell, Chandigarh.

Facts of the case which culminated in the registration of the aforesaid case briefly stated are that search was conducted on the premises of K.K. Jerath, Chief Engineer, Union Territory, Chandigarh, some other officers of Engineering Department, Union Territory, Chandigarh as well as contractors and suppliers by the Investigation Wing of the Income Tax Department on 20/21.11.1997. As a result of search conducted at the house of K.K. Jerath, huge amount of cash, gold and jewellery and documents were recovered. The search was conducted in consequence of some information received by the CBI. During those raids, books of account/diaries were also recovered from the house of Dinesh Sharma, Suresh Sharma and Sunil Kalia coaccused. Examination of those diaries revealed that those persons were acting as middle men between K.K. Jerath and the Firms which were on DGS & D rate contract, supplying electrical and some public health goods to be Engineering Department, Union Territory, Chandigarh. Cash, jewellery and documents recovered from the house of K.K. Jerath were pointing to his possessions in disproportion to the known sources of this income. Diaries were found to contain entries in respect of kickbacks paid to K.K. Jerath and other officers/officials and diaries also contained records of the receipts and expenditures of those persons (Sharmas) during the period under reference and were more or less in the form of cash book. Huge amount was shown to have been paid to K.K. Jerath, his personal Assistant, Peon and other officials of the Engineering Department at various levels as commission. Investigation revealed that kickbacks to the tune of 32220/ was offered to Harsh Kumar, who surrendered on 19.6.1998 and was remanded to judicial custody. Harsh Kumar was Executive Engineer with the Municipal Corporation then.

It was submitted on behalf of Harsh Kumar that only evidence on which the prosecution is focussing is that in the diaries recovered from the middle men of K.K. Jerath, his name was figuring. Two diaries are said to have been recovered from the brothers namely, Sarvshri Dinesh Sharma and Suresh Sharma, working jointly and one Sunil Kalia. According to the prosecution these diaries reveal that they were acting as middle men between K.K. Jerath and a number of firms borne on DGS and D rate contract for the supply of electrical and some public health goods. According to the prosecution diary recovered from the premises of Sharma brothers is an extremely important document in which entries in respect of kickbacks made to K.K. Jerath and other officers/officials have been recorded for the period 8.9.1995 to 26.3.1997. This diary also contains record of receipts and expenditures of Sharma brothers during the period under reference and is a cash book. According to the prosecution receipts and expenditures are of professional and personal character and interalia contain documentary evidence of heavy kickbacks made to K.K. Jerath, his Personal Assistant, Peon and other officials of the Engineering Department at various levels as commission. According to the prosecution, entries of the said diary are very clear and straight forward and can be easily decoded. The diary has 12 horizontal headings which are as under:

Date

Detail

H.H. (House Hold Expenses)

Petrol/TA (Petrol and Travelling expenses)

Salary/Sales (Salary and petty business expenses)

S.O. Expenses/Commission to supply order

I. Note

Office Expenses

Transfer (Transfer of Funds)

Loan/Advance

Receipt

Balance.

The entries contain a record of payments (illegal gratification) paid to K.K. Jerath, his Personal Assistant Shri Vashisth, Peon and certain other officials of the Engineering Department on different dates for different supply orders during the period 8.9.1995 to 26.3.1997. The names of the firms on which supply orders have been placed have been indicated to K.K. Jerath and others. The names of the officials appear repeatedly in the diary. Payments made to K.K. Jerath and his personal staff are shown in the diary alongwith their dates. The total payment made to K.K. Jerath as per this diary is Rs. 43,35,800/. The companies mentioned in the diary at the time of recording payments to officials are firms borne on DGS & D rate contract. According to the prosecution supply orders to these firms were actually given around the dates on which commission finds recorded in the diary against the supply orders. Learned counsel for the petitioner submitted that the name of the petitioner does not figure in the First Information Report. For the purpose of making purchases, the Chandigarh Administration had constituted a purchase committee. That committee was headed by Chief Engineer, Union Territory, Chandigarh, while Superintending Engineer, Union Territory, Chandigarh concerned, Director, Industries, Union Territory, Chandigarh and Executive Engineer concerned were nominated as Chairman, Member Secretary and Members respectively. It was submitted that the petitioner had no role whatsoever to play in the purchase process. He was only to send requisition to the purchase committee by making forwarding note of it and it was up to the purchase committee whether to go in for purchase or not. It was submitted that the petitioner was not member of the said purchase committee, which is constituted every year by the Chandigarh Administration. It was further submitted that the alleged diaries have been recovered from the premises of Suresh Sharma, Dinesh Sharma and Sunil Kalia. The only allegation against the petitioner is that his name figures in the diary. In L.K. Advani v. Central Bureau of Investigation, 1997(4) RCR(Crl.) 26 : 1997 Criminal Lal Journal 2559 it has been held that diaries are not admissible as evidence. It was also submitted that coaccused A.K. Sachdeva has already been granted bail by the Special Judge, Chandigarh. According to the prosecution, Harsh Kumar accepted kickbacks amounting to Rs. 32,200/ through the middle men against the supply orders from time to time. In this case besides entries in the diaries there is other evidence also against the petitioner. A.K. Sachdeva, Superintending Engineer, who was posted in the office of Chief Engineer has turned approver after having accepted the pardon tendered to him by the Chief Judicial Magistrate, Chandigarh. In the statement made by him before the Chief Judicial Magistrate, he connected Harsh Kumarpetitioner for the acceptance of kickbacks through the middle men. He stated that Harsh Kumar was actively conniving with the Chief Engineer K.K. Jerath and the middle men for all those bargains. Allegation against the petitioner is that he was a participant in the kickbacks case in which Chief Engineer K.K. Jerath is the principal actor. According to the prosecution petitioner enriched himself at the cost of the society. He is holder of a public office. He abused his office.

So far as Gurpreet Singh is concerned, he was Sub Divisional Engineer with the Municipal Corporation, Chandigarh. It is a racket involving huge dimensions. Funds allocated to the Engineering Department by the Chandigarh Administration were not utilised properly by K.K. Jerath as the principal theme of the prosecution case is that he used government money for his personal gain and earned huge commission by way of kickbacks by procuring more and more material even when it was not required and further gave contracts to his favourite firms and got kickbacks through his middle men.

Learned counsel for the petitionerGurpreet Singh submitted that there is no evidence that he was connected with the prime suspect namely Sh. K.K. Jerath and others in placing any order with any firm nor was he member of the purchase committee constituted by the Engineering Wing of the Union Territory, Chandigarh for carrying on any purchase on their behalf. His name does not figure in the FIR, though the FIR was registered after conducting a through probe into the diaries recovered during the raids by the Income Tax Department. It was submitted that it was only after 41/2 months of the registration of the case that he was arrayed as an accused at the instance of third party who wanted to shift burden to the employees of the Municipal Corporation. Against the name of the petitioner, according to the prosecution, there is some entry for the sum of Rs. 11,900/ in the diary. It was submitted that without there being corroborative evidence, mere entry cannot constitute proof. In Central Bureau of Investigation and others v. V.C. Shukla and others, 1998(2) RCR(Crl.) 17 : 1998 Crl. Law Journal (SC) 1905 it was held that liability cannot be fixed on mere entries in the books of account in the absence of independent corroboration. According to the prosecution Rs. 11,900/ was paid as kickback to Gurpreet Singhpetitioner by the Sharma brothers when he was posted as SDO Municipal Corporation. After decoding the book of account recovered from Sunil Kalia, it was further revealed that a sum of Rs. 15,150/ was paid as kickback to Gurpreet Singh petitioner. Total amount of kickbacks received by him from the said middle men as per the diaries recovered is Rs. 27,050/.

As regards Harsh Kumar, allegation against him is that as per diary/book of accounts recovered from Sharma brothers, a sum of Rs. 17,400/ was paid as kickback to Harsh Kumarpetitioner for procuring supply orders in favour of certain firms. After decoding of the book of accounts recovered from Sunil Kalia, it was revealed that a sum of Rs. 14,800/ was paid as kickbacks to Harsh KumarExecutive Engineer (petitioner). Total amount of kickbacks received by him from the said middle men as per the diaries recovered is Rs. 32,200/

Learned counsel for the Union Territory, Chandigarh submitted that apart from the entries in the diaries, investigating agencies have recorded statements of officials of the firms by whom kickbacks were given through middle men. Those witnesses also stated in their statements that kickbacks were given through middle men.

Gurpreet Singh, and Harsh Kumarpetitioners do not figure in the forefront so far as these kickbacks are concerned involving Shri K.K. Jerath prime suspect and others. Custodial interrogation of the petitioners is over. Now they are in judicial custody. Trial of such cases as is proverbial will not reach logical conclusion in a year or so. Trial of such a scam spreading its tentacles on a number of persons, it appears, will be a long drawn process. Coaccused Dinesh Kumar Sharma and Suresh Kumar Sharma were allowed bail by S.C. Malte, J. vide order dated 23.7.1998 in Criminal Misc. No. 14044M of 1998 in view of the fact that there was no prospect of the charge sheet being submitted before the expiry of 90 days of their arrest. On 23.7.1998 when they were allowed bail, it was 88th day of their arrest. Coaccused Jagdish Mittar was allowed bail by S.C. Malte, J. vide order dated 5.8.1998 in Criminal Misc. No. 19330M of 1998.

Keeping in view that the petitioners are not occupying a position of prominence in this scam and they are statedly occupying low key positions in this scam, it would not be just and proper to keep them incarcerated in jail during the entire period of trial which may take years long. So, they are allowed bail in the cash amount of Rs. 20,000/ each together with surety bond of the said amount, which will not be cash amount. Amount of personal bond i.e. Rs. 20,000/ shall be deposited by each of the petitioners in the name of the Court of Special Judge, Chandigarh trying cases under the Prevention of Corruption Act, 1988, which shall remain in Fixed Deposit for a period of three years and renewable thereafter if the trial remains unconcluded. The said amount alongwith interest shall be paid to the concerned petitioner if in between the whole or any part thereof is not forfeited to the State on account of nonappearance of said the petitioner without any justifiable cause. As to whether there was or there was not any justifiable cause for nonappearance of the petitioner that shall be determined by the Special Court.

Application allowed.