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Judgment
This appeal is directed against the judgment of the learned Special Judge, CBI, Assam dated 30.12.2014 in special case 5/2006. Heard Mr. D. S.
Choudhury, learned counsel for the appellants. Also heard Mr. S. C. Keyal, learned standing counsel, CBI.
During 1995-96 the Department of Telecommunications, here-in-after called DoT, Government of India, decided to provide Optical Fibre Cable
(OFC) Communication link on Imphalâ€"Moreh route in the state of Manipur. A survey of the route was conducted; a Project Estimate was prepared
& sanctioned. The total route length of the section is 108 kms. which was divided into 27 sub-sections of 4 kms length each. The tenders were invited
and the work was executed through contractors separately for each sub-section. The terms, conditions & specifications of work are mentioned in the
tender document. The agreement was executed with the successful contractors. The over-all in-charge of the work was Divisional Engineer (DE) and
the Government is represented by him. The Sub-Divisional Engineer represents the Government at the site of work. The JTO supervised the day to
day work at site. The measurements were recorded by JTO in MB and bills were prepared by him. The cent percent work was checked by the Site
Engineer (SDE). The bills were pre-checked by JAO, passed by the DE; counter signed by the Director and paid by the concerned Accounts Officer.
The depth and protection of the cable was verified as per route index diagram three times immediate after execution of the work. The cable was
handed over to maintenance unit, coming to an end the responsibility of the OFC officials. After completion of trenching and laying of HDPE pipes in
the year 1998, the route was given for acceptance testing in the year 1999. The route was found to be satisfactory.
As per the survey report, as the entire sub-section fell in the hilly and rocky area it is not possible to lay the cable at the standard department and
hence the RCC protection had to be given over the cable. Hence acceptance testing of the OFC route had to be done by the T&D Circle. After
successful completion of acceptance testing, the route was handed over to the Eastern Telecom Region for maintenance purposes.
An FIR was lodged by the Inspector of Police of the CBI, Silchar on 14.09.2001 to the effect that they got a reliable information that the accused
public servants and different contractors while laying optic fibre cable which was awarded by the Divisional Engineer (OFC) to different contractors
during 1995-96 for execution in different subsections of the Imphal-Moreh route by paying excess amount to those contractors against approved rates
and the tendered quantities of the work. The excess payments were made on account of deviations and in quantity of works and increase in the
quantity of the works including unauthorized payment against some items which were not tendered.
It is alleged that appellants while working in their respective capacities by abusing their official position and in connivance with the other officials
and contractors (Sh. B. C. Agarwal was awarded the contract to execute the OFC laying in respect of SS 10 & 11 of Imphal Moreh route) thereby
caused undue loss to the exchequer by committing the following omissions and commissions.
(1) Approval of tenders at exorbitant rates much higher than the estimated rates.
(2) Deviations in the quantity of hard and rocky soil by increasing the same much more than the quantities indicated in the tenders, certifying the
execution of increased quantities and causing payments accordingly by passing the questioned bills, apparently because the rates for these items were
much higher than the estimated rates.
(3) Deviations in the execution of quantities of works for soft soil by decreasing the same apparently to favour the contractors because the rates of
these items were lower than the estimated rates.
(4) Deviations in the concreting works by showing executions of increased quantities of concreting works against the tendered quantities.
(5) Falsely certifying the unwarranted concreting works and RCC/GI pipes laying and causing payments by passing the bills of the contractors for
these items.
(6) Falsely certifying higher depth than the actual depths and excess payments against these items.
(7) Payments in excess of expenditure sanctioned in violation of rules.
Further it is alleged that the accused public servants and the contractors conspired among themselves and in pursuance of the said conspiracy,
excess quantity of some items in the works was shown to have been executed unauthorizedly without ex-post-facto approval from the competent
authority and payments were made at the tendered approved rate instead of departmental rates caused wrongful pecuniary loss to the department and
the Govt. with corresponding wrongful gains to the accused persons in the tune of Rs. 11,28,329/-. At the time of random technical checking
conducted by the CBI during preliminary inquiry reveals that the appellants with collusion with the contractor have cheated the department by way of
excess payment to the contractor towards execution of excess quantity of work without approval from the competent authority and that too at the
approved rate instead of departmental rate, by making false entries in the MBs showing execution of various works which are not actually executed
as recorded in the MB.
During investigation, the IO visited the spot, recorded statement of the witnesses, seized a number of documents and after obtaining necessary
sanction against the public servants submitted charge-sheet against all the appellants u/s 120B/420/477A of the IPC read with Sections 13(2) read
with Section 13(1)(d) of the Prevention of Corruption Act, 1988.
The learned Trial Court accordingly took cognizance of the offence against appellants and framed the charges u/s 120B/420/477A of the IPC read
with Sections 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988 against the appellants to which they pleaded not guilty.
Prosecution examined as many as 32 witnesses and defence examined none. The plea of defence is of total denial. Statement of accused persons
recorded under Section 313 Cr.P.C., wherein, they have denied all the allegations.
The learned Trial Court on conclusion of trial convicted and sentenced appellants M L Sharma, Navendra Kumar and Ram Prasad to r/i for 2
years with fine of Rs. 10,000/- each and in default to s/i for 3 months to be run concurrently.
All the appellants were working as DE(OFC) at the time of execution of the work.
Aggrieved by the aforesaid order and judgment of the conviction present appeal is preferred.
I have heard the argument of learned counsels for both the parties at length and there is deliberation from both the sides on the evidence on record
and the appreciation thereof. It has been vehemently contended by the learned counsel for the appellants that without proper appreciation of entire
evidence on record, the learned Trial Court has come to a conclusion on the basis of joint inspection and surmises and conjecture, which is not
sustainable in law. Per contra, according to the learned standing counsel, CBI, in view of apparent findings of excess payment by the appellants to the
contractors for the work in question, as per the joint inspection report, against the estimated amount in the tender document, the appellants are rightly
held guilty by the Trial Court which calls for no interference.
Contention raised by appellants:
At the very outset, it is submitted that the learned Trial Court has not appreciated vital evidence on record and has ignored material evidence on
record which needs consideration. The learned counsel for the appellant has led this Court towards the various aspects of the witnesses which they
divulged during the cross examination which is totally inconsistent with the allegation raised in the charge-sheet.
It is pointed out that the Director OFC has no field duties; and as per provisions contained in Clause 132 of the tender document, he can inspect the
work during its progress as provided below:-
“All work under or in course of execution or executed in pursuance of the contract shall at all times to open to the inspection and supervision of the
Engineer-in-Charge and his authorized subordinates, and the contractor shall at all times during the usual working hours, and at all other times at which
reasonable notice of the intention of the Engineer-in-charge or his subordinate, to visit the works, shall have been given to the contractor, either himself
be present to receive orders and instructions, or have a responsible agent duly authorized in writing present for that purpose. Orders given to the
contractor’s agent shall be considered to have the same force as if they has been given to the contractor himself. The work during its progress
can also be inspected by Director, Telecommunications and Chief General Manager Telecom.â€
Sh. S.N. Malakar (PW-17) was specially deputed for repairing work and in cross-examination he stated as follows:-
“I was called specially to repair OFC on Imphal Moreh and Imphal Churachandpur routes. The OFC cables had been damaged as a result of
clearing of debris, accumulated from landslides, by JCB and excavation of the drain by the side of the hills by JCBs and also as a result of widening of
road by the PWD. After repairing, the cable was offered for A/T (Acceptance & Testing). It is correct that A/T team verified the depth of the cable
and protection over the cable from the Route Index Diagram (R.I.D.). It is correct that the OFC could not be commissioned unless it was
accepted/approved by the AT team. AT had raised some objection at the first instance. After removing all those objections, I offered the OFC again
for AT. AT had sought relaxation of depth of OFC trenches from the CGM NETR. It is correct that AT had sought relaxation of depth of cable
because the cable was not laid at the standard depth of 1.65 metres. The CGM accorded the relaxation of depth the OFC. I had offered the cable,
after approval of AT, to the maintenance organization. Thereafter, a joint team of 5 officers of executing and maintenance organization consisting of
(1) Ashok Kumar, DETP/NETF, Guwahati (2) E. Swer, DE Maintenance, ETR, Imphal (3) S.N. Malakar, DETP/NETF, Guwahati (PW-20 himself)
(4) Maria Pragasam, SDE, OFC, NETF, Imphal and (5) W. Inaopi, JTO Maintenance ETR, Imphal, was constituted. It is correct that the joint
inspection team again verified the depth of the cable and protection.
It is correct that a memo was prepared with regard to the sample test check of OFC with regard to the depth of the cable and protection over the
OFC. It is correct that during joint inspection, the random test check was conducted in each sub-section of the entire route. The depth and protection
was found correct as per Route Index Diagram. I was present during joint inspection and I had signed the memo. It is also correct that a joint
inspection was again conducted at the Director level on both the routes i.e. Imphal Moreh and Imphal Churachandpur. Sri Sailendra Agarwal, Area
Director, NETF, Guwahati and myself were present from OFC side and Director (Maintenance) ETR, Shillong was also present there. I had singed
that memo. The depth and protection noted by A/T was checked at the Director level during joint inspection. After full satisfaction with regard to the
depth and protection over the OFC as per Route Index Diagram, the maintenance organization took over the charge of the OFC and I had handed
over the charge of the cable to the maintenance. This exercise was done both at Imphal Moreh route and Imphal Churachandpur route. I had signed
the joint inspection memo prepared by maintenance organization and executing staff. The responsibility of the executing staff with regard to depth and
protection of the OFC came to an end and thereafter it became the responsibility of the maintenance organization.â€
He has further deposed that “During repairing work I had replaced cables in the same trench at many places. I had prepared a separate route
index diagram. Old route index diagrams are available on the record which were repaired at the time of laying of the cables initially.†… “In
many places cables were found exposed to the air and were found damaged due to widening of the roads and construction of drains, bridge, culverts
by PWD. All these cables were found to be dislocated in some areas and accordingly condition of soil, protection and depth of trenches had
undergone changes at some places before commissioning of the route.â€
In his cross-examination, Sh. B. Nag Chaudhary (PW-16) has stated as follows:-
“The status of the soil excavated from the trench cannot be same as that of the soil where trench was originally made for laying the cable. It may
or may not be possible during monsoon that the soil, protection and many times cable is also washed away. AT of OF cable is mandatory before the
cable is commissioned. The AT team verifies depth and protection of the cable as per route index diagram. The AT team accept the cable only after
its satisfaction in accordance to their parameter. On the basis of the report of the AT officers the cable is commissioned. I am not aware if the joint in
section was conducted of the OFC laying work after AT. Joint inspection was not done in all case but in this case joint inspection was conducted by
the officers of maintenance and OFC jointly. It is correct that the joint team again verify the depth protection of the cable. Thereafter the cable is
handed over to the maintenance staff by OFC NETF. After the handing over the cable to maintenance unit, the responsibility of OFC officers comes
to an end. It is correct that the OF cable was under the charge of the officers of the maintenance unit during joint inspection. None of the officers of
the maintenance unit was present at the joint inspection conducted by CBI. It is correct that the maintenance unit many times shift the cable due to
road widening or diverts the cable route for rectification of faults.â€
The IO (PW-32) M.T. Mang has admitted all these facts in his cross-examination in the following terms:-
“It is correct that the A/T was conducted by the office T&D (Technical & Development) circle. The controlling officer of the AT is the CGM,
T&D Circle Jabalpur. It is correct that CGM NETF has no control over them. It is correct that the officers of AT verified the depth and protection of
the cable as per Route Index Diagram. It is correct that the officers of AT team commissioned the cable only when they found it correct. It is correct
that I had seized AT report. It is correct that after AT, a joint inspection was conducted by the officers of OFC and ETR (maintenance). It is correct
that they also verified the depth and protection of the cable as per Route Index Diagram. It is correct that I had seized the joint inspection report. It is
correct that a depth check report was also prepared at the Director level in presence of the Additional Director and Director (Maintenance), Shillong.
It is correct that I had seized this report also. Since I did not feel that these documents i.e. A/T report, joint inspection report, I did not enlist them in
the list of documents enclosed with the charge sheet.â€
It is submitted that from the testimony of Sh. S.N. Malakar (PW-19) and the admission of the same by IO (PW-32) that the work executed by the
OFC staff/the appellant was verified three times as per Route Index Diagram in respect of the depth of the cable and the protection applied to it. Each
time, it was found correct as recorded on Route Index Diagram and the Measurement Book. The IO had admittedly seized all those documents; but,
he deliberately did not place those documents on record, obviously because no case was made out against the appellants in view of the said reports.
The responsibility of the appellants came to an end and thereafter it became the responsibility of the Maintenance organization to maintain the cable. It
is pointed out that the CBI did not associate any person from the Maintenance organization during investigation. On this ground alone, the impugned
judgment is liable to be set aside and the appellant is entitled to acquittal.
The entire case is based on presumption and assumption. The IO (PW-32) himself has admitted in cross-examination, it is correct that the actual
depth of cable and the protection applied to it cannot be ascertained without reopening the entire trench. He further deposed that “I had mentioned
on assumption in the charge sheet that the findings of the random technical checking mentioned above, it was found that about 1972 meters length
between 362 KMP to 364 KMP shown, claimed and paid as hard soil was not hard soil but soft soil only as per the classification of soil mentioned in
the tender documents.†The sample checking was conducted only at 7 points of about 1 metre length each in a span of 4 Kms. It has been admitted
by the IO that only 0.35% of the work was tested. It is negligible quantity and that too cannot remain intact after 7 years of the execution of the work
particularly, in a hilly area.
IMPROPER ESTIMATION OF WORK
It has been admitted by the IO (PW-32) that “no sub-section wise detailed estimate was prepared and without detailed estimate for each sub-
section, the cost and quantities cannot be worked out.†The PW-19 Sh. S.N. Malakar has stated that “the estimated cost shown for each sub-
section could not be correctly evaluated since no detailed estimate was prepared sub-section wise. He has further stated that “the figures/quantities
mentioned in the tender document are not according to survey report.†The IO has also admitted that the figures and quantities as per tender
document are not according to survey report. It is, therefore, evident that the estimated figures mentioned in the tender document are incorrect.
Consequently, they are bound to change.
JOINT INSPECTION BY CBI
The joint inspections, conducted by CBI, are the backbone/basis of the entire case. The CBI has pointed out discrepancies in the depth of cable and
type of soil. As pointed out earlier, the alleged Joint Inspections were conducted by CBI, in the year 2002-2003 i.e. after a gap of more than 6-7 years
of the execution of work in the year 1996. The Ld. Trial Court misdirected itself by merely placing reliance on the same at the instance of IO ignoring
the evidence of the other members of joint inspection team, who deposed as follows:-
(i) Preparation and signing of Joint Inspection Memo:-
• Sh. B.Nagchaudhary (PW-16) had deposed that “It is correct that the Joint Inspection memo was not prepared at site by the CBI. The Joint
Inspection memo was not prepared in my presence. I signed on the joint inspection memo on the following day. I am not aware as to who prepared
the joint inspection memo and where it was prepared. No member of the joint inspection team was present when I signed the joint inspection memo,
except Mr. Mang who had brought the joint inspection to me for obtaining my signature in a hotel at Imphal where I had stayed.â€
• He further deposed that “It is correct that the OF cable was under the charge of the officers of the maintenance unit during joint inspection.
None of the officers of the maintenance unit was present at the joint inspection conducted by CBI. It is correct that the maintenance unit many times
shifts the cable due to road widening, construction of drains or diverts the cable route for rectification of faults.â€
• Sh. Y.Rajo Singh (PW-22) deposed that “I am not aware of the contents of the Ex-57 and 58. Two to three days after inspection CBI person
had came to the office of DE, BSNL Imphal to obtain my signature on Ex-57 and Ex-58. I do not know who prepared this memo and where it was
prepared. It was not prepared in my presence. CBI did not read out the contents of the Ex-57 and Ex-58 to me.â€
• Sh. S.M Singh (PW-23) deposed that “I do not remember if the joint inspection memo was written at site or not. I signed the joint inspection in
the office of DE. I signed at the instance of my Divisional Engineer as ordered.†He further states that “Insp. Mang had come to the office of the
DE after the completion of inspection on Imphal Moreh and Imphal Churachandpur route. I have not read the contents of the joint inspection memo.
DE did not explain the contents of the joint inspection memo.â€
• IO Sh. M.T. Mang (PW-32) deposed that “I did not associate any employee / Officer of ETR (Maintenance) during investigation or during
joint inspection conducted by CBI. During Joint Inspection the cable was in working condition and was under the control of ETR staff and the officer
of OFC had no role to play in the maintenance of cable at that time.†He further admits “It correct that the road was widened by that time.â€
From the above depositions/admission made by the prosecution witnesses, the joint inspection becomes completely doubtful and cannot be relied upon.
(ii) Co-relating Joint Inspection observations with Route Index diagram
• Sh. B. Nagchaudhary (PW-16) has admitted that “No other measurement except depth of the cable was taken in his presence.†… “The
figures mentioned in the joint inspection memo with regard to depth, category of soil and protection as per MB/bill were not verified from the
MB/route index diagram in my presence. I have correlated the points of joint inspection memo on route index diagram but the measurements do not
tally with route index diagram.†He further deposed at page 164 that “The joint inspection team had wrongly recorded as hard soil as per
MB/Drawing as well as the actual findings were also wrongly recorded as soft soil. Same with SS-10 also where none of the points I have seen on
joint inspection report co-relate with route index diagram of said subsection.â€
• Sh. W. Sunil Singh (PW-20) deposed that “I cannot co-relate the points of joint inspection on Route Index diagram or MB. I cannot tell any
figure mentioned in the joint inspection memo as per bill/MB/diagram.†He further deposed that “The depth was measured by me with steel tape
about 5-10 feet length and I did not take any other measurement. I do not know who measure the length.â€
• Sh. B.N Mallick (PW-24) who was a joint inspection team member, deposed that “The reference points shown in the joint inspection memo
nowhere appear in the route index diagram. It is correct that points on joint inspection cannot be located at the route index diagram without any
reference points. On perusal of the Joint Inspection memo and route index diagram I cannot say that the joint inspection memo pertains to the same
subsection which is available on the record of this case.†He further admitted that “I cannot correlate the points on route index diagram on the
joint inspection memo.
When Sh. M. T. Mang IO (PW-32) was asked to co-relate the observations of Joint inspection memo with their respective position on cable route
Index diagram then he deposed that “It is correct that landmarks mentioned in the joint inspection memo nowhere appears in the route index
diagram.†He has further admitted that “The location of pits in the joint inspection memo have been wrongly indicated.â€
Thus, it is clearly evident from the above depositions that the locations in joint inspection memo with respect to MB/Bill were wrongly recorded and
not even a single witness including IO Inspector M. T. Mang could co-relate the inspected pits with their respective position on the cable route index
diagram. It is pertinent that the length of the pit from the reference point was not measured and the categorical admission by PW-16 Sh. B.
Nagchaudhary that no measurement except depth was taken then the question arises as to how length measurements were recorded in the joint
inspection memo with reference to reference points.
(iii) About Category of Soil:-
As per clause 220 of tender document, the site engineer is the competent to decide the depth of trench and category of soil. This fact has been
admitted by the IO Insp. M.T. Mang (PW- 32) in his cross-examination in the following words “It is correct that the site engineer is the competent
authority to ascertain the depth, size of trench and the category of soil.â€
• Sh. B. Nagchaudhary (PW-16) deposed that “Inspector Mang had decided the location of pits and also the category of soil .I did not give any
comment about the category of soil.†He has further stated that “The status of soil recorded in joint inspection memo is that of soil excavated
from the trench in which OFC cables were laid. The status of the soil excavated from the trench cannot be same as that of the soil where trench was
originally made for laying the cable.â€
• Sh. B. N. Mallick (PW-24) stated that “Dr Herojit Singh, Assistant Professor Soil Science Central Agriculture University Imphal was present
as soil expert and no any other person except the soil expert had any say in the determination of the type of soil during joint inspection.†but Dr
Herojit Singh was neither a member of joint inspection team in present case and nor was he cited as witnesses in this case.
• Sh. L. Nishikant Singh (PW-27) stated that “A person from ICAR decided the category of soil.â€
In the present case there are two persons Sh. Promin Singh (PW-30) and Sh. S. Kanahai Singh (PW-31) are from ICAR and they both have deposed
that they have not decided the category of soil and they do not know who decided the category of soil.â€
• Insp. Joseph Krelo (PW-29) deposed that “S.Kanhai Singh and Promin Kumar from ICAR decided the nature of soil.â€
Whereas both Sh.Promin Singh (PW-30) and Sh.S.Kanahai Singh (PW-31) during deposition stated that they have not decided the category of soil and
they do not know who decided the category of soil.
• Sh. M. T. Mang (PW-32) deposed that “Category of soil was decided by B. Nagchaudhary, myself and other team members jointlyâ€
Whereas as stated earlier, Sh. B. Nagchoudhary (PW-16) deposed that Inspector Mang has decided the location of pits and category of soil and he
did not give any comment about category of soil.
Thus, there is serious contradiction among the witnesses with regard to the assessment of category of soil. From the above evidences available on
record, it is clear that none of them has decided the type of soil and the same has been mentioned in the joint inspection memo on assumption.
(iv) Number of Pits:-
• In the joint inspection memo Ex-57, the IO has recorded that 18 pits were made in a day which is contradicted by the other members of the joint
inspection team. Sh. B. Nagchaudhary (PW-16) deposed that in a day only 3 or 4 pits were made whereas Sh.W.Sunil Singh (PW-20) deposed that
around 4 to 6 pits had been made in each subsection and Sh. S. M. Singh (PW-23) deposed that Maximum 3-4 pits were made in day and eighteen
(18) pits could never have been made in a day.
• The Ld. Trial Court in the impugned judgment has itself observed that none of the team members could prove the contents of the Joint Inspection
Memo still relied upon the same.
The observations of the Ld. Trial Court are extracted herein below:-
“However, from their cross examination It is evident that none of them has been able to through light as to the contents of the joint inspection
memo specifically and as to whether the locations on the joint inspection correlated with the corresponding spots in the route index diagram for RA
bills.â€
Payment of excess quantities at tender approved rates.
It is submitted that the appellants (DE) have got no role in approval of tender rates. Further it is nowhere mentioned in the tender document that in the
case of excess quantity the payment should be made on the basis of departmental rate or tendered rate whichever is less, In fact the payment to the
contractor was made for the actually executed quantities at the approved tender rates as per the clauses 46 & 47 of the Tender Document which are
reproduced as below:
“46. The quantities/figures indicated in the tender schedule are approximate and are subject to change. Any change effected shall be binding on the
tenderer/contractor as though included in the original tender schedule and any such change will not make the agreement void and it is therefore
essential that the tenderers binding all the documents carefully and not commit any mistake in analyzing the rates quoted and remain binding
notwithstanding any changes as aforesaid. No revision of tendered rates shall be considered on any ground whatsoever.
The quantities indicated in tender schedule shall not be considered as representing firm/final quantities. All works shall be measured by Divisional
Engineer or his authorized representatives. Amount payable to contractor shall be on the basis of actual work done by him at the rate approved by
department.â€
• PW-18, Ashok Kumar Chanda in his examination in chief itself had deposed that “ If the quantity of soil exceeds the provisions given in tender
and if the rates are higher than departmental rates then payments for excess work is to be made as per tendered rate.â€
• PW-19 S.N.Malakar deposed that “It is correct the tendered/estimated cost and quantities may not remain same and It is correct that the
additional quantities are deemed to have been included in the tendered quantity as per clause 46 of tendered document and It is also correct that
payment to the contractor is made on the basis of actual executed quantity as per clause 47.â€
• PW- 9 S.K.Sikidhar confirmed that “The payment to the contractors is made on actual work carried out by the contractors as per tender
approved rates.â€
• I.O M.T.Mang PW-32 confirmed that “It is correct that the payment to the contractor is made on the basis of the actually executed quantities
at the approved tendered rates.â€
• The Ld. Trial Court has ignored the above vital evidences which are very well available on the record and wrongly held that the payment of the
excess quantities is to be made on departmental rates.
Approval of Excess Quantities
• The Ld. Trial Court has mentioned in his judgment that Though DE Ramprasad, Navendra Kumar and M.L.Sharma had not been associated with
the execution of work at the site but all of them had passed the bills without any permission from director having been obtained for the execution of
the excess work in item no 10.2 and 10.7 and claimed in the bills which is proved to have been falsely shown in MB and RID. Thus above accused
persons are proved to have obtained pecuniary advantage to the contractor by abusing their official powers as DE by passing the bills for excess
quantity of work in 10.2 and 10.7 without approval from competent authority when the excess work in 10.2 and 10.7 is proved to have been shown
falsely in the MB, RID and claimed in the bills.
The ld trial court has ignored the vital fact that the AO, who is the payment authority has made the payment after pre-checking by JAO and after
observing all formalities as per terms and condition of tender document.
• I.O M.T.Mang PW-32 has admitted that “It is correct that I had seized the subsection files of SS 10 and SS 11 of Imphal Moreh Route vide
seizure memo dated 05/11/2001. It is correct that the approval of excess quantities is obtained in the sub-section file.â€
The IO did not produce the file, in which the approval was taken and deliberately withheld the same. When he was asked as to why he did not
produced the same on record despite having seized. He gave a peculiar reply, in the following words “I had not placed the subsection file in record
as it was not required for the purpose of prosecution approval of excess quantity is obtained in subsection file and he did not place subsection file in
record as it was not required for the purpose of prosecution.â€
When the subsection file in which approval of competent authority for excess quantity of work was taken is not on record and not single evidence is
on record which confirm that approval of excess quantities was not taken, then it’s not known on what basis the ld. Trial court arrives at the
conclusion that approval of competent authority was not taken.
TEST CHECK BY DIVISIONAL ENGINEER(DE)
• The Ld. Trial Court has wrongly held that the DE has passed the bills without conducting the required 10% test check.
It is submitted that the DE has the discretion to conduct the test check, if required, as per the Para 192 of the tender document and it is not mandatory,
which is quoted below:
“The Divisional Engineer before passing the bill for sections covered by each set of measurements, will carry out test-check by re-opening trench
at intervals if necessary and bill will be passed only when he is personally satisfied of the correctness of entries in the measurement book and also
when he is satisfied of other aspects of the work as per the terms of the contract. The contractor shall provide the necessary assistance or labour for
re-opening of trench for test check by the Divisional Engineer. Separate payment shall not be made to the contractor excavation of trench and refilling
or reinstating the complete length, depth and width of the trench test-checked.â€
• PW-7, Dharmeshwar Das confirmed that “According to clause 192, DE will conduct test check at site by reopening the trenches if he
considers it necessary, it is the discretion of the DE as per tender condition. There is no mandate that he will conduct test check in every case.â€
• PW-18, Ashutosh Kumar Chanda confirmed that “There is no reference of 10% check by DE in clause 192 of the tender document. If
necessary the DE will conduct test check.â€
• PW-19, S.N. Malakar confirmed that “It is correct that DE will conduct test check as per clause 192 only if he considers necessary. It is his
discretion and not a mandatory provision.â€
• I.O M.T. Mang PW-32 confirmed that “I have gone through the tender document. I do not find any mandatory provision for DE to conduct
test check on every 100 meters or 10% of the work or to furnish test check certificate before passing the bills by D.E.â€
From the above depositions it is abundantly clear that neither the test checks by DE is mandatory nor any certificate by him to that effect is
required.The ld trial court has ignored the above vital evidences which are very well available on record.
LOSS CALCULATION
• The Ld. Trial Court in concluding that the loss has been caused to the department has relied upon Ex-56, Loss calculation sheet. Whereas the
same cannot be considered as valid evidence of loss because the same is based on assumptions only and the alleged loss is imaginary.
• PW-10, S.C. Paul, who is alleged to have calculated the loss has categorically admitted that “There were no specific documents on the basis
of which loss calculation had been made, these losses are hypothetical. It is not real loss but imaginary.â€
• The IO M.T. Mang PW-32 has also admitted that he has mentioned the alleged loss in the charge sheet on assumption. He has further gone to
the extent saying that “The loss calculation made on the basis of aforesaid assumption is best known to Sh. S.C. Paul A.O who made the
calculation. I have no Knowledge about the same.â€
DEVIATION STATEMENT
As regards the furnishing of deviation statement is concerned, the same is not mandatory and this fact has been admitted by the IO that “There is
no provision in the tender document for submitting deviation statement with the final bill.â€
In accordance with the provisions contained in clause 220 of the tender document, the site in-charge is the competent authority to decide the
category of soil and the depth of the trench. He will also decide the protection to be used over the cable under the prevailing circumstances.
According to the geological survey, about 91% of the area of Manipur is hard rock. According to survey report conducted by PW-5 Sh. R.N.
Singh, the entire route is hilly and rocky. It will not be possible to lay cable at the standard depth of 1.65 metre. Hence, the protection of GI/RCC pipe
and RCC is to be provided over the cable. The IO has also admitted that according to Survey reports, the entire route is hilly and rocky.
As per clause 73E of Tender document, it is the obligation of the DE to pass the bills and make payment to the contractor through the paying
authority.
THE PROCEDURE OF PASSING THE BILLS is as follows:-
(i) Bills are prepared by JTO and SDE (Site Engineers) on the basis of MB and Route Index Diagrams.
(ii) Bills are submitted in the office of DE and JAO (Junior Accounts Officer) posted in the office of DE pre-checks the bill by comparing the same
with the MB, Route Index Diagrams, approved tender rates, quantities and approval of excess quantities etc. After finding all the above in order, as
per terms and conditions of the tender, he put up the bills before the DE for passing the same.
(iii) The DE, after perusing the remarks of the JAO and MB and Route Index Diagram, passes the bills.
(iv) After passing, the bills are forwarded to Director for approval.
(v) After the approval of the Director, the bills are forwarded to AO. The AO rechecks the MB, Route Index Diagrams, approved tender rates,
quantities and approval of excess quantities etc. Finding each and everything in order, he makes payment to the contractor.
In this way, the bills before coming to the DE and after the passing by DE are thoroughly checked at various stages and only thereafter, the payment
is made. It is noteworthy that the persons before (JAO) and after (AO) the DE have been given clean chit by CBI by approving the bills by them.
Hence, the appellant cannot be faulted. The payment to the contractor has been made proportionately since the cable has not been laid at the standard
depth of 1.65 meter.
The Head Quarter of the DE was at Guwahati whereas the work was executed in the State of Manipur. The execution of work is to be
supervised by the site engineer who represents the government at site of work as per clause 72.
The Hon’ble Supreme Court in the case of Abdulla Mohammed Pagarkar etc, V State (Union Territory of Goa, Daman and Diu) 1980
CRI.L.J.220, while dealing with a case where a public servant and a contractor were prosecuted under the Prevention of Corruption Act and Ss,
420,468,471 IPC for defrauding the Government by submitting false bills of the work done. Though the work was to be done departmentally it was
alleged that in-fact the public servant got the work done through the contractor whose tender was not accepted, held, Though the work was got
executed in flagrant disregard of the relevant rules and even of ordinary norms procedural behavior of governmental officials and contractors, such
disregard did not amount to any of the offences alleged against them. The onus of proof of the existence of every ingredient of the charge always rest
on the prosecution and never shift.
It was further held, No doubt there were several irregularities giving rise to a strong suspicion in regard to the bona fides of the accused in the matter
of the execution of the work but suspicion, however strong, could not be a substitute of proof.
The Ld. Trial Court did not appreciate that there is no proper sanction from the competent authority to prosecute the appellants. Particularly in
view of the fact (DOT) had refused sanction twice.
Evidence on record:
As the whole case revolve around the joint inspection report made by the IO in presence of other witnesses, so let us start with the IO PW-32/Sh.
M.T. Mang. Without narrating about the illegalities and irregularities that has been committed by each of the accused persons, he has stated seizure of
various documents in connection of the case from the officials of the department concerned which is large in number, he has stated about joint
inspection as below:-
“During investigation, joint inspection was conducted on 30.05.2003, 09.06.2003 and 31.01.2001 in presence of independent witnesses namely B.
Nag Chaudhury, S. M. Singh, Nishikanta Singh, Y. Ibo Mucha, W. Sunil Singh, Y. Rajo, b. N. Mullick, Promin Kumar, S. Kanhai, Joseph and myself
in respect of SS 10 and SS 11 of Imphal Moreh route on NH 39. Joint inspection memos vide Ext. 57, 58 & 59 were prepared on the spot which was
signed by all the team members as a proof of its authenticity. During inspection, it was found that the nature of soil was soft soil without RCC
protection instead of hard soil/rocky soil as claimed in the MB, route index diagram and bills which are reflected in the joint inspection memos.â€
Some relevant portion of his cross-examination is reproduced herein below:-
“Myself and B. Nag Chaudhury had decided the locations where pits were to be dug. Category of soil was decided by B. Nag Chaudhury, myself
and other team members jointly. I am not aware whether at the time the commission of the alleged offence the officers of BSNL, MTNL had been
empowered to accord sanction for prosecution of the accused persons. As per survey report entire route of Imphal Moreh falls in hilly, land erosion,
landslide prone area however SS 3A falls within the town area of Thoubal. As per tender document the figures and quantities mentioned are not
according to survey report. The cost of OF cable laying cannot be same for all the 27 subsections i.e. Rs. 3 lakhs, as mentioned in the tender
document. It is correct that the contractor is paid at the approved tendered rates. It is correct that the site engineer is the competent authority to
ascertain the depth, size of the trench and category of soil. It is correct that it is the discretion of the DE to conduct test check or not. It is not
mandatory.
It is correct that no subsection wise detailed estimate had been prepared. Without detailed estimate for each subsection, cost and quantities cannot be
worked out. It is correct that the A/T was conducted by the office T & D circle. The controlling officer of the AT is the CGM, T & D Circle
Jabalpur. It is correct that CGM NE Task force has no control over them. It is correct that the officers of AT verified the depth and protection of the
cable as per route index diagram. It is correct that the officers of AT team commissioned the cable only when they found it correct. It is correct that I
had seized AT report. It is correct that after AT, a joint inspection was conducted by the officers of OFC and ETR (maintenance). It is correct that
they also verified the depth and protection of the cable as per route index diagram. It is correct that I had seized the joint inspection report. It is
correct that a depth check report was also prepared at the director level in presence of the additional director and director Maintenance, Shillong. It is
correct that I had seized this report also. Since I did not feel that these documents i.e. AT report, joint inspection report, I did not enlist them in the list
of documents enclosed with the charge sheet.
I do not remember whether prosecution sanction draft was also forwarded in this case also. Insurgency was there at the time of execution of the
cable laying work on Imphal Churachandpur and Imphal Moreh route. It is correct that revolutionary people’s front of Manipur is an underground
group which operates in Manipur. I am not aware whether such groups demanded money from executing authority, both contractors and officers. I
am not aware whether JTO, S. R. Das was beaten to death. I am not aware whether one of the militants had also killed a DE. That apart, since the
source information was not marked to me, I cannot say that it discloses commission of cognizable offence straight away. I do not remember when I
received the source information. I cannot recollect whether the PE was registered on 19.05.2001. It is correct that the actual depth of cable and the
protection applied to it entire trench cannot be ascertained without reopening the entire trench. It is correct that after conducting joint inspection
between OFC officers and ETR officers, the cable was handed over to ETR officer for maintenance.
I did not associate any employee/officer of ETR (maintenance) during investigation or during joint inspection conducted by CBI. During joint
inspection the cable was in working condition and was under the control of ETR staff. The officer of OFC had no role to play in the maintenance of
cable at that time I had conducted the joint inspection and carried out the investigation. I did not seize any report from any agencies such as PWD,
Electricity department, local telephone, local cable maintenance telephone officers and from the officers of ETR maintenance about the damages
caused to the cable due to militancy, landslide, land erosion, heavy rains or widening of road etc. I did not include any of the staff of the ETR in the list
of witnesses. It is not a fact that I had not correlated any of the points in the joint inspection memo with that of the corresponding point in route index
diagram. Myself and other team members correlated the points in the joint inspection memo with that of the corresponding point in route index
diagram. Myself and other team members collectively decided the type of soil. Location of pits for joint inspection had been ascertained by myself and
other team members. It is correct that the site engineer is the competent person to decide the type of soil and nature of soil. It is correct that the
payment to the contractor is made on the basis of the actually executed quantities at the approved tendered rates. It is correct that the government is
represented by site engineer at the site.
The head quarter of DE was at Guwahati whereas the work was executed in the state of Manipur. It is correct that the quantities and figures shown
in the tender document are not in the survey report. It is correct that estimated quantities are not final. The cost of execution may increase when there
is an excess quantity of work. It is not a fact that the investigation was done perfunctorily. It is correct that the route index diagram of 1st RS bill was
prepared by SDE, P. K. Bagchi. It does not bear the signature of M. L. Sharma. The KMP post numbers are not marked on the route index diagram.
It is correct that the joint inspection was conducted after 7 or 8 years of the execution of the OFC works. It is correct that the road was widened by
that time. I cannot say if the cable was shifted from its original position or not. I cannot say if the route indicators are also shifted over the cable when
the cable was shifted due to road widening. Thus, only 0.3% of the works was tested. It is correct that M. L. Sharma had no role in the tender
process such as Eg, invitation of tenders, tender opening, tender evaluation and approval of tenders. It is correct that the land marks mentioned in joint
inspection memo nowhere appear in the route index diagram.
Looking at the route index diagram reflecting 360 KMP, I see that location No. 7 of joint inspection dated 30.05.2003 appears to have been wrongly
indicated. The points tally but figures do not tally from pit No. 7 to 18. The fifth point of the joint inspection memo, ext- 58 relates to the route index
diagram for 1st RA bill for SS 11. There appears KMP 364 at the beginning and I see that for first 60 meters at the depth 1.55 meters from 364
KMP, there is soft soil. It is recorded in the joint inspection memo, hard soil at the depth of 155 cm on the said spot. Similarly in pit No. 4, similar
observation had been made in the joint inspection memo, ext-58. It is correct that no trenching work is involved in pit No. 3 of joint inspection dated
09.06.2003 of SS 11. No payment was made to the contractor. It is wrongly mentioned as hard soil as per bill and soft soil as per observation of joint
inspection team.
It is correct that exact location of 363 KMP cannot be ascertained due to 32 meter extra length as per diagram. It is correct that the pits in reference
to 363 KMP cannot be correctly co-related as per the diagram. It is correct that 361 KMP is not marked in cable route index diagram. Hence pit No.
2 and 3 of joint inspection dated 31.01.2002 cannot be located as per the diagram. Similarly pit No. 4 and 5 of joint inspection dated 31.01.2002 cannot
be located as 359 KMP is not marked on route index diagram. It is correct that the loss calculation had been done on the basis of joint inspection
report of CBI and AT of T & D circle. I am not aware of AT report as mentioned in the calculation sheet. I had seized AT report of Imphal Moreh
route but did not paste in the record. It is no where mentioned in loss calculation sheet that it was prepared on basis of MB and route index diagram.
It is also correct that no trial pit was made over a stretch of 720 meters between 363 and 364 KMP. It is correct that no pit was made over a stretch
of 1720 meters out of 2000 meters between 362 to 364 KMP in SS 11. I had mentioned on assumption in page 12 of charge sheet that from the
findings of the random technical checking mentioned above, it was found that about 1972 meters length between 362 KMP to 364 KMP shown,
claimed and paid as hard soil was not hard soil but soft soil only as per the classification of soil mentioned in the tender documents. It is wrongly
mentioned at page 13 of charge sheet that there is distance of 1495 meters length between 360 KMP and 361 KMP. The loss calculation made on the
basis of the aforesaid assumption is best known to Sri S. C. Paul, AO who made the calculation. I have no knowledge about the same. It is correct
that Sri M. L. Sharma, Navendra Kumar and Ram Prasad had no role in the approving of tender rates.
It is correct that only 0.35% of the total work was checked by CBI and that to after 7 years and that to without obtaining any report from PWD,
BSNL, DOT, Electricity and Water department, DRTF and about the landslide and sinking of roads during the intervening period. It is correct that the
road had been widen in some places after laying of cable and before joint inspection. I am not aware if 91.09% of area in the State of Manipur is hard
rocky area as per report of Geological Survey of India. It is correct that there is not provision in tender document to submit the deviation statement
with the final bill. It is correct that I had seized the subsection filed of SS 10 and SS 11 of Imphal Moreh route vide seizure memo dated 05.11.2001. It
is correct that the approval of excess quantity is obtained in the Subsection file. I did not place the subsection file in record as it was not required for
the purpose of prosecution.â€
PW-16/Sh B. Nag Chaudhury, PW-20/Sh. W. Sunil Singh, PW-22/Sh. Y. Rajo Singh, PW-23/Sh. Shoibam Momom Singh, PW-24/Sh. B. N.
Mallick, PW-27/Sh. L. Nishikanta Singh, PW-30/Sh. Promin Singh, PW-31/Sh. S. Kanhai Singh all were witnesses to the joint inspection dated
30.05.2003, 09.06.2003 and 31.01.2001 and they have stated that the joint inspections, vide Ext. 57, 58 & 59, were written by CBI inspector Sh. M. T.
Mang and they were present at the time of excavation of the OFC laying trenches in the subsection 10 & 11 on NH 39 and they have signed the joint
inspection reports as directed by the I.O./Sh. M. T. Mang. Save and except signing of the said verification report they have not stated anything about
the findings of joint inspection report.
PW-16/Sh. B. Nag Chaudhury, in his cross-examination, has stated that he measured the depth of the cable in one or two pits only and Sh. M. T.
Mang took the measurement of the depth of the cable in his presence. The measurement of the depth was taken from the top of the HDPE pipe and
in most of the pits, the measurements were taken by M. T. Mang only. Mr. Mang recorded the depth of the trenches in a diary. He further stated that
the measuring tape was around 3 meters long and there was no other measuring tape or Roadometer to measure the trench. No other measurement
except depth of the cable was taken in his presence and no documents such as measurement book, route index diagram, tender documents were
shown to him nor it was shown to anybody else in his presence. Inspector Mang had decided the location of pits and the category of soil. He did not
give any comment about the category of soil. The figures mentioned in the joint inspection memo with regard to depth, category of soil and protection
as per MB/bill were not verified from the MB/route index diagram in his presence. He has co-related the points of joint inspection memo on the route
index diagram but the measurements do not tally with the route index diagram.
He further stated that the area where cables were laid was hilly about 20-25 kilometer from Imphal towards Moreh and it was a plain area and rest of
the area was found hilly. The status of the soil excavated from the trench cannot be same as that of the soil where trench was originally made for
laying the cable. It may or may not be possible during monsoon that the soil, protection and many times cable is also washed away. AT of OF cable is
mandatory before the cable is commissioned. The AT team verifies depth and protection of the cable as per route index diagram and the AT team
accept the cable only after its satisfaction in accordance to their parameter. On the basis of the report of the AT officers the cable is commissioned.
He also stated that the joint inspection was conducted by the officers of maintenance and OFC jointly. The joint team again verify the depth protection
of the cable and thereafter, the cable is handed over to the maintenance staff by OFC NETF. After the handing over the cable to maintenance unit,
the responsibility of OFC officers comes to an end. He further admitted that the OF cable was under the charge of the officers of the maintenance
unit during joint inspection. None of the officers of the maintenance unit was present at the joint inspection conducted by CBI. The maintenance unit
many times shift the cable due to road widening or diverts the cable route for rectification of false. He was not aware if it was done in that case or
not.
He further stated that the joint inspection memo was not prepared at the site by the CBI and it was not prepared in his presence. He signed on the
joint inspection memo on the following day and he was not aware as to who prepared the joint inspection memo and where it was prepared. No
member of the joint inspection team were present when he signed the joint inspection memo, while except Mr. Mang, who had brought the joint
inspection memo to him for obtaining his signature in a Hotel at Imphal where he had stayed.
PW-20/Sh. W. Sunil Singh, in his cross-examination, has stated that he cannot not co-relate the points of joint inspection on Route Index Diagram
or MB and cannot tell any figure mentioned in the joint inspection memo as per bill/MB/Diagram. Whatever is written in the joint inspection memo, it
was explained by IO and he has no any personal knowledge about that figures and also do not know who decided the category of soil.
PW-22/Sh. Y. Rajo Singh has stated that he was not aware of the contents of inspection memo, vide Ext. 57 & 58, prepared by the IO and has
stated that after several days the CBI officials came to his office and obtained signature in the joint inspection memo. He does not know who
prepared that memo and where it was prepared and that was not prepared in his presence. The CBI also did not read out the contents of the
inspection memo to him. He had dug the pits only and CBI personnel had taken the measurements and did not tell about the figures in respect of
measurements taken. He further stated that only depth of the pits was measured and there was no long tape also. Ext. 57 & 58 were not prepared on
the spot and he had not seen any documents i.e. tender document, MB, Route Index Diagram etc on the spot during inspection.
PW-23/Sh. Shoibam Momom Singh, in his cross-examination, has stated that he does not remember that for how many days he had accompanied
the CBI team for inspection of the OFC laying trenches and also he does not remember whether the joint inspection memo in this case relates to
Imphal Churachandpur or Imphal Moreh route. His duty was only to arrange the labour and make arrangement for inspection. He signed the joint
inspection at the instance of DE in his office as ordered. He does not know how many days were taken in completing the work and Inspector Mang
had come to the office of DE after the completion of inspection on Imphal Moreh and Imphal Churachandpur route. He has not read the contents of
joint inspection memo and the DE also did not explained the contents of the joint inspection memo.
PW-24/ Sh. B. N. Mallick, in his cross-examination, has admitted that he signed the joint inspection memo on the spot, which was prepared at the
office of the CBI but does not remember where he had received the copy. He further stated that although the whole process of joint inspection was
carried out in his presence but he had no role in digging the pits and he simply accompanied the CBI team. He also stated that on perusal of the joint
inspection memo and route index diagram, he cannot say that joint inspection memo pertains to the same subsection which is available on the record of
this case. He had not seen the route index diagram during joint inspection but it may have been in the custody of the IO. He has perused the route
index diagram and joint inspection memo and find that KMP reference appears in the route index diagram but he cannot co-relate the points on route
index diagram on the joint inspection memo.
PW-27/L. Nishikanta Singh, who is another witness to the joint inspection, has also stated that the joint inspection memo was not prepared at site
and he signed it on several days, sometimes in the office of CBI or Microwave Station. He also stated that maximum two to three pits were made in a
day and it take minimum 6 days to make 18 pits. No question arises to make 18 pits in a day. The size of pits was 5 feet/ half feet. CBI official had
told them to make pits after seeing diagrams, whereas, neither he nor anybody else had seen the diagram. He had worked in one section of OFC and
does not know much about OFC work. The pits were made on the either side of the road in a hilly area. The area was hilly and rocky. He further
stated that the PWD uses JCB machines for widening of road, for construction of drains and removal of debris accumulated due to landslides. The
RCC protection is also damaged by JCB. He also admitted that due to heavy rainfall the protection of the cable gets washed away and sometimes
cable also gets washed away. Local telephone employees were working and digging the trench over the OFC cable in valley area. The maintenance
organization shift the OF cable to a safer side at the time of widening of the road. CBI has recorded his statement.
PW-30/Sh. Promin Singh, in his cross-examination, has stated that the IO had not recorded his statement and also the IO had not come to him.
The statement that has been shown to him on that day, supposed to have been made by him is not his statement. He went for joint inspection for two
three times in this case, later he again stated that he does not remember in connection with which case he had gone as a witness. He admitted that he
was present during joint inspection and observed the process of joint inspection and put his signature on it. Pits were made, however, he does not
remember whether pipe was measured. He did not decide the type of soil and also did not know who decided the category of soil. He does not know
who had written the joint inspection memo and also cannot explain what is written in it and the contents there of.
PW-31/Sh. S. Kanhai Singh has also stated that the IO did not recorded his statement. During joint inspection, he was accompanied by Raghumoni
Singh since expired and he also might has signed along with him as they both had gone there. He had gone only once for joint inspection in this case.
He did not do anything but only watched the joint inspection. He further stated that he did not decide the type of soil and also did not know who
decided the category of soil. No documents were available at site with anybody. The joint inspection memo might have been written by CBI official in
Imphal. He had signed joint inspection memo at CBI office in Imphal after it was written. He has also stated that he does not know what was inside
the pit and the measurement of pits were taken by labourers and Raghumoni along with CBI officials. Only depth was measured and hard soil was
there. Raghumoni had decided the type of soil with CBI officials.
As is evident, none of the witnesses has supported the joint inspection report as prepared by the IO (PW-26) M. T. Mang and his evidence. He
himself played the role in carrying the inspection and he recorded all the findings without consulting the all necessary documents like MBs, route index
diagram, subsection file etc., so as to correlate his findings along with those documents to give accuracy to his findings. Most importantly, none of the
officials of the department concerned has supported such findings of the IO which goes to the root of the case. Regarding the findings of different
category of soils at the time of inspection after several years of execution of works is not doubtful. On the other hand, some deviation in the depth of
trench and RCC protection also appears to be inevitable if the findings of the survey report and the explanation given in the cross examination by the
witnesses themselves. As per the survey report the whole area was rocky and hilly and expected depth cannot be achieved due to the hard and rocky
nature of soil. The witnesses in their evidence has admitted that findings of different nature of soil, depth, RCC protection may be caused due to
passage of time, widening of road, hilly terrain etc.
So far as the other evidence concern, PW-1/Sh. Mohinder Singh, PW-2/Sh. Shriyans Kr. Jain, PW-4/ Sh. Sh. K. C. Gupta and PW-8/Sh. A. K.
Girotra, it relates to the prosecution sanction order passed by them. PW-1 and PW-2, however, in their cross-examination, have stated that initially
department rejected the prosecution sanction but for the third time when the CBI approach CVC (Central Vigilance Commission) prosecution was
granted. They also stated that draft of the prosecution sanction was received from the CBI and thereafter, the same draft was returned after
signature. The other two witnesses could not recollect whether if the CBI forwarded the draft prosecution sanction order to them or not.
PW-6/Govinda Kalita, Cashier, O/o CGM, Task Force; PW-10/ Sh. Satyendra Ch. Paul, Accounts Officer, O/o Chief General Manager Task
Force; PW-11/Sh. Kaushal Kumar Mishra, Jr. Accounts Officer; PW-12/Sh. Jibotosh Biswas, Chief Accounts Officer; PW-17/Sh. Debobrata Dey,
Chief Accounts Officer, BSNL, all of them have exhibited several related documents relating to work order, payment made to the contractor, the
different bills prepared in respect of work in question, entries in the MBs, cash book and the calculation sheet prepared on the basis of the joint
inspection report, wherein difference between the payment actually made as per MB/RA bills and report of joint inspection team in respect of
different SS of the Imphal Moreh route. But save and except exhibiting those documents, they have not uttered a single word about the irregularities
or illegalities crept into by in any of the documents they referred to implicate any of the accused persons regarding criminal liability. Their simple
assertion is that they verified the bills which were duly checked by the official concerned, passed by the DE and counter signed by the Director and
they passed the bills and issued the cheques under their signature.
PW-10, in cross-examination, has stated that all the OFC bills were duly checked by the JAO OFC, passed by DET, counter signed by director
OFC. Bills used to come to him with a forwarding letter to effect payment and accordingly payment is made. Before making the payment the bill is
checked with reference to the MB etc, the bills were usually pre-checked by JAO and he verified the bills on the basis of MBs. Before passing and
approving the bills by the director, he has to ensure that all objections raised by him has been cleared. The loss calculation has been made as per ext.
55 & 56, calculation sheets on the basis of tentative figures at the office of CBI. Only the CBI persons were present at the time of preparation of
calculation sheets to ascertain the loss. There were no specific documents on basis of which loss calculation had been made. These losses are
hypothetical. It is not real loss but imaginary. Only joint inspection memo was given to me for calculating the loss on OFC work. He was not a
member of joint inspection team and he cannot say whether the figures noted down in the joint inspection memo were correct or not. Subsection 11 is
from 360 to 361 km. He cannot say how the loss had been calculated for the span of 360 KMP to 361 KMP (1495 meters). Since the inspection was
done at random the figures reached after the inspection were not specific. No inspection was carried out between 362 and 363 KMP. The inspection
was carried out only over a span of 280 meters between 363 and 364 KMP. So these figures had also been taken wrongly as 1972 meters instead of
280 meters. He has also stated that no measurements were taken by joint inspection team over a span of 3 KM from 356 KMP to 360 KMP. The
measurements were taken only after 360 KMP. The losses calculated for SS 10 are also equally incorrect. He has no personal Knowledge about the
correctness of the measurements taken during joint inspection.
PW-11, in his cross-examination, has stated that whatever statement he has made before the Court after going through the MBs and the bills
shown to him and he has no personal knowledge about the work involved in the case. The PW-12 simply handed over six cheques which was issued
in favour of Hazarika & Company, issued by Sr. Accounts Officer, to the CBI Inspector, which was seized by the IO through Ext. 23 to Ext. 26.
Thus, it reflects that although the witnesses have stated long detail about the documents related to the work in question but their cross-examination
reveals that they have simply stated about the documents and they have no knowledge about the whole affairs. The way loss calculation was prepared
(as stated by PW-10), itself lost its credibility as well as the veracity of the joint inspection memo is at shake. Mere reading of a documents and
exhibiting the same, will not amount to proof of content. As discussed above, the witnesses who checked and passed the bills has not indicated about
the illegal part that has been played by the appellants. Loss calculation/excess payment were made on the basis of joint inspection report of CBI, while
the joint inspection memo prepared by the IO lacks support from its own witnesses and the measurement of trench, assessment of soil, depth etc.
were not taken as per relevant documents like MBs, tender document, route index diagram and AT report, which vitiated the finding of whole
inspection report.
PW-9/ S. K. Sikidar has stated all about OFC laying project and he was posted as SDE, Survey from 1997 to 2001 and supervise the work of
trenching, laying of OFC and OFC route survey on Imphal Moreh route. He also stated that the survey report give details of the OFC route on NH 39
but there was possibility of variation after actual execution of OFC. Further, he stated that if the quoted rate is found more than 25% above the
estimated cost, the Director of the company will take the decision whether quoted amount could be approved by taking into account the cost of
executing work and the remoteness of the worksite, if the Director find the approved rate as exorbitant, he may not approved it and he may direct the
DE to go for re-tendering and if he found the amount being justified considering the remoteness of the location and escalation of cost of material, he
may approved the same after negotiation. He has exhibited lot amount of documents like tender document in respect of each of the subsection, report
of the tender evaluation committee, communication between the contractor and the authority(DE) and the agreement entered between the contractor
and the DE regarding the execution of the work in question, different bills, calculation sheet, route index diagram in respect of the SS 10 & 11 and
comparative statement. Further, he stated that TEC recommended for awarding of work to M/s Power Max as per Ext. 9 for SS 10 and 11 vide Ext.
9(5) and Ext. 9(6).
As per tender document the rate quoted by the contractor was not in higher side for SS 10 and for SS 11 the rate quoted by the contractor was
although in higher side but the TEC recommended the rate considering the remoteness of location of the subsection. During execution of work the
amount was increased because of additional work carried out by the contractor as per the bill without re-tendering. During the tendering of this route,
Sri B. R. Attri was the DE and overall in-charge of the execution. Mr. M. L. Sharma, DE, OFC later joined in the division as DE OFC II under
director OF(P). Director is an administrative officer without whose approval the work could not be taken up. SDE and JTO are responsible for overall
site supervision. They are responsible for preparing the MB and preparation of bills. Pre-checking of the bills before payment is done by JAO. For
excess or additional work during execution of any project approval is to be obtained from director OF(P) for OFC laying work.
In his cross-examination, he has stated that his earlier statement in examination-in-chief before the Court was based on the documents made
available to him. He has no personal knowledge about it. He has more than 15 years of experience in the execution of OFC laying work in different
routes during his service period up to 31.03.2012. the cable route cannot be commissioned unless accepted by the AT as per their parameters. The
AT party checked the depth and protection of the cable laid in the route. After completion of AT route is handed over to maintenance organization.
The maintenance organization after joint inspection with execution division check the route in all aspects of the execution after that they are satisfied
they take over the route. Once the route is handed over to the maintenance organization the responsibility of executing division comes to an end. The
estimate prepared before execution of the work is only a estimation and it is subject to change. The payment to the contractors is made on actual
work carried out by the contractor as per the tender approved rates. As per tender process site engineer is authorized to decide the depth of trenches
and type of soil. In normal circumstances it is required to obtain the measurement of standard depth in plain areas and in difficult areas the depth
would be decided by the site engineer and in that case site engineer is to obtain relaxation from the competent authority. The category of soil and the
quantity of different type of soil are included into tender document as per the survey carried out by the survey division. But during execution this may
change particularly in hilly areas where the site engineer is authorized to take the decision. There is no special training imparted to SDE/JTO in regard
to testing of soil. There is no such practice followed by the department to send the soil for testing for determination of the classification of soil. Site
engineer is to take the decision as per his experience and as per terrain condition.
He further stated that the Imphal Moreh route is hilly and rocky area and the route is also landslide prone and there are also sinking zones which were
also shown in survey report. There is no such practice to make anti termite treatment before RCC work is taken up. There are various departments
which use the same route for laying cables/water pipes and sometimes over the OFC cables. During heavy rain there is every possibility of the soils
and protections getting washed out. Sometimes cables do get damaged. After commissioning of the OFC route there is every possibility of cables
getting damaged in the hilly areas particularly in rainy seasons. It is also stated that he has perused the route index diagram and joint inspection report
and find that none of the points of inspection in the joint inspection report of the CBI co-relates with the route index diagram. As per joint inspection
report observation in some portions of SS 11 HDPE pipe has been found without any protection at the average depth of 60 cm as the trench had been
dug out by local cable works for laying their cables over the same trench of OFC cable.
Sh. S. N. Malakar (PW-19), Retd. DGM, BSNL and in the year 1998-2000 he was DE in the officer of Director, OFC and he was specially
deputed for the repairing work of the Imphal Moreh and Imphal Churachandpur routes. The repairing work was undertaken in October’ 1999 to
December’ 1999. In his evidence, he has stated that when he took over the charge DE/TP on Imphal Moreh route in June 1998 all the works had
already been completed and payments had also been made except in few cases where the payment of SD money was withheld. At the relevant time
the process of handing over of the OFC route to maintenance division was going on. There was some pending cases for correction of the OFC route.
He had been entrusted to look after the work of repairing of the damaged cables and low depth of the trenches. In this regard, he had intimated the
contractors concerned with regard to discrepancies found in the execution of the work. The contractor had replaced the damaged cables in few
sections and in the remaining sections of the route was restored departmentally by deducting SD money of the contractors concerned since the
contractors of these subsections did not turn up. He has exhibited different documents pertaining to the work in question like tender documents, project
estimate etc. etc. He, however, stated that the amount quoted by the contractor was much higher than the estimated cost.
In his cross-examination, he has stated that he was called specially to repair OFC on Imphal Moreh and Imphal Churachandpur routes. The OFC
cables had been damaged as a result of clearing of debris accumulated from landslides by JCB and excavation of the drain by the side of the hills by
JCBs and also as a result of widening of road by the PWD. He had repaired the damaged portions of the Imphal Moresh and Imphal Churachandpur
routes and after repairing, the cable was offered for AT. The AT is directly under the control of CGM (T & D) with its headquarter at Jabalpur. He
admitted that the AT team verifies the depth of the cable and protection over the cable from the route index diagram. The OFC could not be
commissioned unless it was accepted/approved by the AT team. At had raised some objection at the first instance. After removing all those
objections, he offered the OFC again for AT. AT had sought relaxation of depth of OFC trenches from the CGM NETF (North East Task Force).
The AT had sought relaxation of depth of cable because the cable was not laid at the standard depth of 1.65 meters. The CGM accorded the
relaxation of depth the OFC. He had offered the cable after approval of AT to the maintenance organization.
He further stated that at that point joint inspection team again verifies the depth of the cable and protection. It is correct that a memo was prepared
with regard to the sample test check of OFC with regard to the depth of the cable and protection over the OFC. During joint inspection the random
test check was conducted in each subsection of the entire route. The depth and protection was found correct as per route index diagram. He was
present during joint inspection and he signed the memo. He also stated that a joint inspection was again conducted at the director level on both the
routes i.e. Imphal Moreh and Imphal Churachandpur. Sri Sailendra Agarwal, area Director, NETF, Guwahati and he were present from OFC side and
Director (Maintenance) ETR, Shillong was also present there. He had also signed that memo. The depth and protection noted by AT was checked at
the Director level during joint inspection. After full satisfaction with regard to depth and protection over the OFC as per route index diagram, the
maintenance organization took over the charge of the OFC and he had handed over the charge of the cable to the maintenance. That exercise was
done both at Imphal Moreh route and Imphal Churanchandpur route. He had signed the joint inspection memo prepared by maintenance organization
and executing staff. The responsibility of the executing staff with regard to depth and protection of the OFC came to an end and thereafter, it became
the responsibility of the maintenance organization.
He further stated that he prepared a revised project estimate on actual expenditure basis for the work of OFC laying on Imphal Moreh and Imphal
Churanchadpur route. He never seen any detailed estimate of each subsection of OFC on Imphal Moreh and Imphal Churachandpur route. The
revised estimate is prepared only if estimated cost of the execution of the work exceeds by 10%. He admitted that the estimated cost of each
subsection cannot be ascertained without preparing detailed estimate of the subsection. The estimated cost shown for each subsection could not be
correctly evaluated since no detailed estimate was prepared subsection wise. The entire Imphal Moreh route is hilly and rocky. The work was initially
executed in the year 1996-97. He also stated that after a period of 7 years, the depth and protection of the cable cannot remain same. The depth of
the cable will be reduced due to soil erosion and also due to use of JCB machine. Landslides occur frequently in this area due to rainfall and due to
heavy rainfall, the soil protection and many times cable is washed away and communication is disrupted. The category of soil may not remain the
same. The tendered/estimated cost and quantities may not remain same. The additional quantities are deemed to have been included in the tendered
quantity as per clause 46 of the tender document. The payment to the contractor is made on the basis of the actual executed quantity as per clause 47.
The site engineer is the competent authority to decide the depth of cable and the category of soil. The DE will conduct test check as per clause 192,
only if he considers necessary and it is his discretion and not mandatory provision.
He further stated that during repairing work, he had replaced cables in the same trench at many places. He had prepared a separate route index
diagram and the said route index diagram is not seen on the record on that day, whereas, old route index diagrams were available on the record which
were prepared at the time of laying of the cables initially. He had prepared route index diagram in respect of the locations where repairing had been
done on both Imphal Moreh and Imphal Churachandpur route. As per survey report, the route is erosion prone area. He has also stated that in case of
any difficulty in execution of the work, the JTO and SDEs take approval from the higher authority through fax or telephonic message as the head
office is located in Guwahati which is quite far away from work. He had never worked in the execution of the OFC laying work on the Imphal Moreh
and Imphal Churachandpur route. In the year October 1999, he was deputed for the restoration work of the entire cable route, i.e. Imphal Moreh and
Imphal Churachandpur route. In many places cables were found exposed to the air and were found damaged due to widening of the roads and
construction of drains, bridge, culverts by PWD. All these cables were found to be dislocated in some areas and accordingly condition of soil,
protection and depth of trenches had undergone changes at some places before commissioning of the route.
PW-13/Sh. S. R. Bali, Deputy Director General, TEC, prepared the project estimate in respect of OFC laying work in Imphal Moreh route, in the
year 1995 and it was forwarded to the CGM Task Force for approval, which was sanctioned after his transfer to Dehradun. He came to know about
this case in the year 2003. He has exhibited document pertaining to the project estimate Ext. 38 at the cost of Rs. 6,47,99,300 and it was proposed to
be completed in the year 1995-96 financial year, Ext.
39 is the forwarding letter and the sanction was accorded for the project estimate of Rs. 3,96,04,147, vide Ext. 41 is the survey report and Ext. 42 is
the tender document and he does not know who floated the same, he was declared hostile by prosecution and he denied any statement before the IO
about awarding contract at exorbitant rate etc. In cross-examination, he has stated that he has no knowledge about the terrain of OFC. He had not
made the subsection wise detail estimate. He does not know whether detail estimate based on the project estimate sanctioned by CGM prepared for
each subsection. He admitted that the estimated cost of each subsection cannot be ascertained without preparing the detail estimate in subsection
wise. Thus, his evidence is not supportive of prosecution case.
PW-18/Sh. Ashutosh Kr. Chanda, an Officer of BSNL, has stated all about the procedure for trenching work of OFC, preparation of project,
project estimates, financial approval of the works, floating of tenders and awarding of works to the contractor etc. He has exhibited several
documents connected to the project to the Imphal Moreh route, SS 10 & 11. He has stated that test check was done after completion of the work by
the department personnel to see whether the work is done properly or not. He, however, stated that estimated cost in respect of SS 10 & 11, rates
were approved higher than the estimated cost. It is stated that DE is the absolute authority for making changes in the work provided in the tender
document. The same witness, in cross-examination, has stated that he has no role to play in the instant case and has no personal knowledge of the
case. His cross-examination is reproduced below â€
“It is correct I have no personal knowledge about this case. I had given my statements to the IO on the basis of documents which had been
produced before me at the relevant point of time. I do not remember the documents which had been shown to me during interrogation. I had never
dealt with the documents which have been shown to me today in the Court. It is correct that I had identified the signatures on the documents today
since their names had been typed written below the signatures. I was not posted in OFC but in a different unit. The record of TEC (Tender Evaluation
Committee) has been shown to me today during examination and on seeing it I find that the names of M. L. Sharma and N. Kumar are not there in
the TEC. It is correct that the director is the sole authority to approve the rate of the tenders. So far my knowledge goes 10% of the check of the
trenching work is to be done by DE. It is correct that the AT (Acceptance Testing) units verifies the depth and protection of the cable as per route
index diagram and At declares commissioning of the cable after a satisfaction as per route index diagram. It is correct that a joint inspection was
conducted by officers of OFC project and maintenance organization. During joint inspection, the depth and protection of OFC is again verified as per
route index diagram. The maintenance unit accepts the OFC only after their satisfaction about the depth and protection of the cable as per route index
diagram. After handing over the cable to maintenance unit, the responsibility of OFC officers comes to an end.â€
The evidence of PW-3/Sh. Md. Kamrul Hoque, PW-5/Sh. Kamala Kanta Das and PW-7/Sh. Dharmeswar Das are formal in nature who have
simply exhibited the various documents pertaining to the work in question regarding awarding of work to the contractor, execution of the agreement
between the parties and undertakings given by the contractors, special power of attorney etc. PW-7 was declared hostile who denied any statement
before the IO that “it is the duty of the DE to see and ensure that the NIT is followed in later and spirit by the contractor etc.†In cross-
examination, PW-7 has stated that DE does not supervise the work of contractor directly, he does it through SDE and JTO and as per clause 192, it is
discretionary on the part of DE to conduct test check. He has no knowledge about the work of OFC.
PW-14/Sh. P. K. Das has exhibited only the special power of attorney and the partnership deed between the contractors furnished at the time of
awarding work. PW-15/Sh. Raghunath Singh, conducted the survey of the Imphal Moreh route along with other officials and submitted the survey
report vide Ext. 41. Going by the Ext. 41, he stated that the Imphal Moreh route was mostly hilly and the soil was hard and rocky in nature and that is
why the excavation of the cable to depth of 1.65 meters was extremely difficult, therefore, RCC/GI pipes were required to be laid for the protection of
SDE pipe cable. It was not possible to dig more than 50 cm deep due to rocks.
In his evidence, PW-21/K. S. Manoharan has stated that at the relevant time 1994-96, while he was working as Accounts Officer, Director
Microwave Project and his duty was financial advisor to the Director Microwave project as at the time there was no disbursing unit for Optical Fiber
Cable project. The process verifying and passing the bill is that bills are paid after verifying entries in the MB and comparing the same with that of bill
presented and processed. Entries in the MBs are done by field staff and verified by DE with the help of Assistant Accounts Officer. Director OFC is
competent authority to approve the excess quantity executed in each subsection based on site requirement. He was also the member of the Tender
Opening Committee and has stated that after opening the tenders after observing all the formalities and after preparation of evaluation, the tender was
awarded to the lowest bidder, M/s Power Max, Guwahati. He has not stated about any irregularities while tender was awarded nor he has any
knowledge about the rest of the matter.
Evidence of PW-25 speaks about the special power of attorney given by M/s Hazarika and Company whereby partners have appointed another
person to execute the OFC laying in the name of M/s Hazarika and Company and about the work order issued to said M/s Hazarika and Company for
the work in SS 10 & 11. Thus, his evidence is of formal in nature. PW-26/Sh. Joydip Dey & PW-28/ Sh. Babul Mukherjee have simply stated about
the statement of accounts maintained in the name of M/s Hazarika and Company. Both the witnesses exhibited the related documents accordingly.
Joseph Krelo/PW-29, who conducted one part of the investigation has stated about seizure of number of documents from the Office of the DGM,
Task Force, BSNL through the seizure list vide Ext. 17 and he was also a part of the joint inspection conducted on 31.01.2002 in SS 10 & 11 of
Imphal Moreh route and he signed the joint inspection memo Ext. 59. Save and except stating about his signature in the joint inspection memo, he has
not spells about the discrepancies found. His cross-examination is relevant while he says that he could not locate the KMP and pits on the route index
diagram.
FROM THE DEPOSITIONS OF THE AFORESAID VITAL PROSECUTION WITNESSES, IT REVEALS THAT â€
Ø Before inviting the tender, no sub-section wise survey, project estimate was prepared. After completion of tender process and after issuing the
work order to the contractor, physical survey was conducted by the authority and on the basis of such survey report, project estimates were prepared.
Ø The estimated quantities are not firm and final, that are subjected to change during the time of execution of the work as per clause 46 & 47 of the
tender documents. It may be increased or it may be decreased. Any excess quantity required at the execution of the work would be deemed to have
been included in the tender quantity and the payment to the contractor is made on the basis of the actual work done, it may be less, it may be more.
Ø The entire Imphal Moreh route is hilly, rocky, landslide, soil erosion and sinking zone. It was extremely difficult to make the trench upto the
standard depth of 165 cm. It was therefore essential to provide RCC/GI pipes and RCC protection of OF cable over the entire route.
Ø The AT team had sought relaxation of depth of OFC trenches from the CGM, NEFT because the cable was not laid at the standard depth of 1.65
meter. The CGM accorded the relaxation of depth the OFC. Such facts have been stated none other than the prosecution witnesses. As the entire
route is hilly and rocky area, therefore the project cost increases and therefore, a revised estimate was prepared and the same was duly approved by
the CGM, Task force.
Ø The work was executed in the year 1996. After completion of the work, the cable was offered to the AT team for inspection and as the AT team
detected some defect at the first instance in the year 1999, therefore, the contractor was asked to rectify the same. After rectification of the defects,
the cable was again offered to the AT team and the AT approved the same. Thereafter the cable was handed over to the maintenance organization.
After handing over the cable to the maintenance organization, a team of 5 officers from the AT and the Maintenance organization was constituted and
accordingly, they carried out the joint inspection as per the Route Index Diagram and after inspection, as everything was in order, the said team
approved the same.
Ø Another inspection was carried out at the directorate level and the said team also inspected the cable as per the Route Index Diagram and after
inspection, they accepted the cable and accordingly, the cable was formally handed over to the maintenance organization.
Ø The SDE prepared the MB on the basis of the route index diagram and the bills and the same were rectified by the DE. The MBs had been
countersigned by the Director OFC (P) and duly pre checked by the JAO, OFC (P) and finally the Accounts officer, Microwave project passed the
bills and accordingly payment was made to the contractor.
Ø The CBI conducted the investigation in the year 2003 till that time more than 7 years have elapsed. During this period of seven years, the condition
of the cable has been changed due to land slide, soil erosion, damaged caused by the PWD etc, which has been corroborated by several prosecution
witnesses, but the CBI has neither collected any report from such organization nor exhibited the same.
Ø That CBI has made the joint inspection without the route index diagram inasmuch as the same has not been exhibited in the case. The CBI has
also not exhibited the AT report, Joint inspection report prepared by the officers of the AT and the maintenance organization and the joint inspection
report prepared at the Directorate level. The sub-section file which contained about the deviation statement and the approval from the authority
although seized by the IO but not produced. Due to such serious lapse on the part of the IO, the authenticity of the joint inspection report is itself at
shake.
Ø The CBI had not made the JAO, the ETR personal, CGM, Task Force NER, as witness and/or accused in the case, under whose supervision, the
work was executed and who had verified and/or inspected the work.
Ø The CBI had prepared the joint inspection memo at their office and the signatures of the witnesses were taken at their office as well as in the hotel
after two days that too without allowing them to verify the figure recorded at the time of the inspection. The witnesses to the joint inspection has not
supported the content of the said report save and except their signature in the report.
Ø At the time of carrying such joint inspection by the IO, no soil testing expert was with him nor any comparative chart was prepared having regard
to the route index diagram to show the actual amount tendered and about the deviation as regard the nature of soil, depth of trench etc. The only
verbal evidence of the IO which was not supported by documentary evidence and not corroborated by his own witness is not enough to prove such
serious charges against the appellants.
Ø The official witnesses so far examined by prosecution except exhibiting the documents has not brought anything on record to reflect that the
officials entered into conspiracy with the contractor while awarding the contract, rather evidence reveals that the contract was awarded in due
manner after evaluation by tender evaluation committee. No any witness has stated about the irregularities in the tender process.
FINDINGS
In view of all what have been discussed above, the deviation that has been found by the IO at the time of his inspection after 7 years of execution
of the work will not itself indicate the criminal liability of the officials as well as the private contractors. Evidence indicates prior approval was taken
for such deviation of work by the site engineer which is in the sub-section file that the said important file was withdrawn from producing before the
Court. The tender document says that estimated amount is not final, survey report says that the standard depth cannot be acquired, witnesses said that
due to natural calamity like heavy rain fall, soil erosion as well as broadening of road many a times disrupted the places of cables. The cables were
found at the time of joint inspection at their places and certainly the change of nature of soil and damage to the protection etc. is natural due to the
above reasons. It reflects that the MBs have been countersigned by the Director, OFC, duly pre- checked by JAO, OFC (P) and finally passed by
Account Officer, Microwave Project and thereafter payment was made to the contractor on the basis of actually executed quantities and at the
approved tender risk. The prosecution witnesses as discussed above that the work in question was completed as per tender document and under the
supervision of the authority and none of the witnesses speak about any illegality except some deviation of amount in respect of soil and depth of the
trench.
The notable aspect of the case is that the case was registered on source information by CBI but source is not disclosed. The higher authority of
the department has not come forward with allegation and the case was independently investigated by the CBI officials and has conducted the joint
inspection by the IO in presence of the police officials and the officials from the BSNL but none of the witnesses have supported the evidence of the
IO on material aspect, rather they show ignorance about the findings made by the IO, whereas, the whole case revolves around the joint inspection
made by the IO. No implicit reliance can be made upon such joint inspection report, the authenticity of which is itself clouded by shadow of doubts.
More so, the witnesses reveals that the loss calculation has been made on the basis of such report, the content of which is not at all proved. Similarly,
the depth of the trench and deviation of soil have also been calculated having regard to the findings of the joint inspection report and comparison of the
findings with the original status of the project obviously cannot be the same. The findings of the survey report indicates that the projected area was
hilly and rocky and prone to the landslide, couple with the oral evidence (particularly in cross-examination) reveals stoutly that condition of soil and
depth of trench cannot remain same for variety of reasons as has been discussed above.
The department concerned was reluctant to accord sanction to prosecution as has been stated by own witnesses of the department and they
mechanically accord the sanction for the third time on the basis of the CBI report (draft prosecution sanction was prepared by CBI as stated by one
of the witness) as the CBI approach to CVC. It reveals that while awarding sanction, there was no application of mind to the relevant documents as
well the status of the officials, whether they can be removed by the person who has accorded the sanction.
According to the learned Standing counsel for the respondent/CBI excess quantity of work was executed without taking prior approval of the
competent authority and payment was made for those excess quantity of work whereas according to the clause 78 of the tender document, contractor
shall not make any change of any work under the contract without written instruction from the site engineer, i.e. the DE. Refuting the said allegation,
the learned counsel for the appellant pointing towards the evidence of IO as well as other witnesses, it has been urged that the witnesses said that the
prior approval was taken for the excess work done for which excess payment has been made which aspect has entered in the subsection file and the
same is not produced before the Court, despite seizure being made by the IO.
It has also been argued from the side of the respondent that supervising authority, i.e., the DE has to conduct test check of the OFC trenches and
protection of cable which is not done contrary to the provision rendering them liable for such illegality. Referring to the clause 132 of the tender
document, the learned counsel for the appellant has submitted that the said submission is not true as the said provision is not mandatory but a
discretionary and for non-compliance of the same, it may amounts to irregularity but not an illegality and same cannot be attributed any criminal liability
on the part of the official concerned. It has been submitted that the Accounts Officer, who checked the bill, found the same correct and passed the bill
without any objection.
Further contention raised by the learned counsel for the respondent that even after lapse of 7 (seven) years from the execution of the work, the
protection of the cable cannot be washed away and vanished neither the soil condition cannot turn into soft soil from hard/rocky soil that was found at
the time of joint inspection and the joint inspection report is proved by the witnesses. The same submission has also been refuted by the learned
counsel for the appellant that witnesses to the joint inspection itself reveals that the cable was found in the working condition and all the protection
work was not vanished but found damaged condition. It is vehemently contended by the learned counsel for the appellant that in view of the evidence
on record itself regarding the land condition and other various factors, the RCC protection as well as the soil condition cannot remain the same as the
area was prone to the landslide also.
Another piece of argument by the learned counsel for the respondent that the accused appellant has raised the bills for the excess quantity of work
which was never executed by them and there is violation of provision of different clauses 60 (F), 73 (D), 78, 192 , 220. In reply, the learned counsel
for the appellant has strenuously contended that such a piece of argument has no basis to rely as evidence on record never speak about violation of
such conditions and the witnesses have admitted in their cross-examinations that the work was executed as per tender document and payment was
made on the basis of the work actually executed by them.
On the case of the evidence on record, which has already been discussed, I found no force in the contention of the learned counsel for the
respondent rather the submission of the appellant got support in terms of the evidence on record. Moreover, the veracity of the joint inspection report
is itself at shake and not a proved document.
In view of the charge/allegations leveled, it was for the prosecution to prove affirmatively that the accused appellants by corrupt or illegal means
or over abusing their positions obtained pecuniary advantage by making conspiracy with each other. But in the instant case, upon scrutiny of the
evidence, it would go to show that save and except mechanically exhibiting the documents related to the work in question, the witnesses have not
divulged anything on the above aspect. The prosecution cannot prove its case by mere exhibiting documents but authenticity and correctness of said
documents also to be proved by the witnesses, which is absolutely lacking in this case.
Let us discuss the law pertaining to exhibiting of documents in evidence. In a landmark judgment, the law laid down by the Hon’ble Supreme
Court in AIR 1971 SC 1865, Sait. T. Khimsand and Ors. Vs. Yelamarti Satyam & Ors, is â€" Mere marking of an exhibit does not dispense with the
proof of documents.
Further, in Sudhir Engineering Co. Vs. NEEPCO Roadways Ltd., Manu/DE/0401/1995 (1995 (34) DRLJ 86), the entire law relating to the marking of
exhibits and tendering documents in evidence has been dealt with. It has been held that mere marking and exhibit on a document does not dispense
with the formal proof thereof. Relevant para is extracted below â€
“Let me now look at the law. Any document filed by either party passes through three stages before it is held proved or disproved. These are :
First stage : when the documents are filed by either party in the Court; these documents though on file, do not become part of the judicial record;
Second stage: when the documents are tendered or produced evidence by a party and the Court admits the documents in evidence. A document
admitted in evidence becomes a part of the judicial record of the case and constitutes evidence. Third stage: the documents which are held ‘proved,
not proved or disprove’ when the Court is called upon to apply its judicial mind by reference to Section 3 of the Evidence Act. Usually this stage
arrives the final hearing of the suit or proceeding.
I am of firmly opinion that mere admission of document in evidence does not amount to its proof. Admission of a document in evidence is not to be
confused with proof of a document. When the Court is called upon to examine the admissibility of a document it concentrates only on the document.
When called upon to form a judicial opinion whether a document has been proved, disproved or not proved the Court would look not at the document
alone or only at the statement of the witness standing in the box; it would take into consideration probabilities of the case as emerging from the whole
record. It could not have been intendment of any law, rule or practice direction to expect the Court applying its judicial mind to the entire record of the
case, each time a document was placed before it for being exhibited and form an opinion if it was proved before marking it as an exhibit.
The marking of a document as an exhibit, be it in any manner whatsoever either by use of alphabets or by use of numbers, is only for the purpose of
identification. While reading the record the parties and the Court should be able to know which was I he document before the winless when it was
deposing. Absence of putting an endorsement for the purpose of identification no sooner a document is placed before a witness would cause serious
confusion as one would be left simply guessing or wondering while was the document to which the witness was referring to which deposing.
Endorsement of an exhibit number on a document has no relation with its proof. Neither the marking of an exhibit number can be postponed till the
document has been held proved; nor the document can be held to have been proved merely because it has been marked as an exhibit. This makes the
position of law clear. Any practice contrary to the above said statement of law has no sanctity and cannot be permitted to prevail.â€
In 2010 4 SCC 491, LIC of India & Anr. Vs. Rampal Singh Bisen it has been held as below â€
“Mere admission of document in evidence does not amount to its proof. In other words, mere marking of exhibits on a document does not dispense
with its proof, which is required to be done in accordance with law. Under the law of evidence also it is necessary that content of documents are
required to be proved either by primary and secondary evidence. At the most admission of document may amounts to admission of content but not its
truth. Content of the documents cannot be proved by merely filing in the Court.â€
Although the learned counsel for the CBI in firm vehemence has contended that looking into the allegations leveled against the public servants and
the findings of the Trial Court needs to be confirmed, but looking into the manner in which the case was conducted by the IO and non-appreciation of
the relevant evidence by the Trial Court and discussion only one portion of evidence ignoring the entire evidence on record amounts to cause prejudice
to the case of the defence. Miserably, the learned Trial Court has not discussed the relevant cross-examination of the witnesses and we may say so
that even in their examination-in-chief, except exhibiting the documents to the work in question, their evidence is not specific to the allegations leveled.
It is the cardinal principles of the criminal jurisprudence that prosecution case is to proof the each and every charges leveled against the accused to
the heel and Court is to appreciate the entire evidence either oral or documentary in the touchstone of the authenticity. The Court is not expected to
pick and choose one portion of evidence to arrive its conclusion by ignoring the other aspect as to whether said portion of documents is proved or
substantiated as per law, which is found missing in this case. So far as the revealment by the witnesses, plausibility of involvement of accused persons
with the offence alleged is not forcefully made out, rather it indicates another view that the work in question was carried out without any illegality.
There may be some irregularity here and there for raising the cost of soil without having proper sanction at relevant time but in view of the evidence
surfaced, it also indicate on the basis of actual finding in the field the status of soil as well as depth of trench may differ which has resulted the
variation of cost against the estimate. As there is no clear picture depicted by the prosecution itself, the Court is not obliged to carry out own exercise
to arrive at a conclusion which is not otherwise proved.
Now, in the instant case, the impugned judgment reveals that the learned Trial Court counted the content of different exhibits regarding the bills,
MBs etc., whereas, the said documents were not proved by the witnesses themselves. Most of the witnesses in their cross-examination has stated
that they have no personal knowledge about those exhibited documents and they have marked the document in the Court as shown to them and this
was the evidence of the officials of the department concerned and in such pretext, it will be more vulnerable to decide the case on such unproved
documents.
In 1980 Criminal Law Journal 220, Abdullah Mohammad Pagarkar etc. Vs. State (Union Territory of Goa Daman Dieu), where a public servant
and contractor were prosecuted under prevention of corruption act and Section 420, 468, 471 IPC for defrauding the government by submitting false
bills of the work done, it has held that thought the work was got executed in flagrant disregard to the relevant rules and even ordinary norms of
procedural behavior of governmental official, contractor such disregard did not amount to say any of the offences alleged against them. The onus of
proof of existence of every ingredient of the charge always rest on prosecution and never shift. It was incumbent therefore on the State to bring out
beyond all reasonable doubt that the number of labourers actually employed in carrying out the work was less than that stated in the summaries
appended to the bills paid by the government, the accused could not be convicted relying on the mere impression of prosecution witnesses regarding
the number of labourers employed from time to time. No doubt there several irregularities giving rise to strong suspicion in regard to the bonafide of
accused in the matter of execution of the work but suspicion however strong, could not be substitute for proof. And it was not permissible to place the
burden of proof of innocence on the person accused of criminal charge.
It has been held in JT 2013 (8) SC 570, Sujit Bishwas VS. State of Assam, the suspicion however great it may be, cannot take place of proof and
there is a large difference between something that will be proved. In criminal trial suspicion no matter how strong cannot and must not be permitted to
take place of proof. This is for the reason that the mentle distance may be and must be quite large and divides vague conjectures from sure
conclusions. In a criminal case, the Court has a duty to ensure that mere conjecture and suspicion do not take the place of legal proof. The large
distance between “may be†true and “must be†true, must be covered by way of clear, cogent and unimpeachable evidence produce by
prosecution before an accused is condemn as convict and the basic and golden rule must be applied. An adverse inference can be drawn against
accused only if the incriminating materials stands fully established and the accused is not able to furnish any explanation for the same.
The present case is required to be examined in the light of the aforesaid settled legal propositions. The work in question was completed in the year
1995-96 and the IO made a joint inspection in the year 2003 and come up with the allegation regarding deviation of soil in the work place, non finding
of RCC protection, non having of required depth of the trench in the work in question and while arriving such finding, the prosecution has failed to
brought all the necessary documentary as well as oral evidence for arriving such conclusions, so the said finding in the joint inspection is conjecture
and summarizes. The evidence that has been surfaced indicates the reasons for non achieving the required depth of the trench and also the change of
nature of soil and RCC protection as well. Already three level inspection was carried out after completion of said work at the time of delivery the
work in question to the maintenance department and as such the say of maintenance department on the subject was very much crucial but no such
person was associated at the time joint inspection carried by the IO. The difficult terrain where the OFC was laid couple by different factors that
arose at the time of the execution of work has made the authority to change the quantum of works, nature of soil on the basis of practical finding in
the field which has been indicated by the evidence itself. In the given circumstances raising of bill for excess amount cannot be solely attributed as
criminality while for such deviation, approval of the higher authority (the same was entered in the sub-section file, but not produced).
The official witness that has been examined by prosecution has not supported the allegation as leveled in the FIR and except mentioning about
some excess in the running bills, their evidence is silent while about the unfair means adopted by the officials or the contractor while awarding the
work and the execution. The bills were duly prepared and pre-checked by all the authorities having regard to the MBs and the Accounts Officer
finally passed the bill without recording any sort of discrepancy on record. The learned Trial Court centered around his discussion only on the running
bills which shows some excess amount but has not at all discussed all the material evidence on record. The appreciation of all evidence on record is a
must prior to reaching a conclusion. As has been held in Sujit Biswas (supra), in criminal case charge has to be proved by clear, cogent and
unimpeachable evidence and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based on the comprehensive
appreciation of all features of the case as well as the quality and credibility of the evidence brought on record. The Court must ensure that the
miscarriage of justice is avoided and in the facts and circumstances of the case so demand, that the benefit of doubt must be given to the accused,
keeping in mind that a reasonable doubt is not an imaginary, prevail or nearly a probable doubt but a fair doubt that is based upon reason and common
sense. Further it is held that in the circumstances proved in a case consistent either with the innocence of the accused or with his guilt, that the
accused is entitled to benefit of doubt.
The Section 415 of the IPC defines cheating as under :
“Section 415 - Cheating - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to
any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which
he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body,
mind, reputation or property, is said to ‘cheat’.
An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied :
i) deception of a person either by making a false or misleading representation or by other action or omission;
ii) fraudulently or dishonestly inducing any person to deliver any property; or
iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do
or omit.
For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the
time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his
promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code
can be said to have been made out. One of the ingredients of cheating as defined in Section 415 of the Indian Penal Code is existence of an intention
of making initial promise or existence thereof from the very beginning of formation of contract.â€
None of the ingredient of cheating is proved in the instant case against any of the accused. The Section 13 (1) (d) and Section 13 (2) of Prevention
of Corruption Act read as follows â€
“13. Criminal misconduct by a public servant - (1) A public servant is said to commit the offence of criminal misconduct, -
…………………………………………………………..
(d) if he, -
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than (four years) but
which may extend to (ten years) and shall also liable to fine.â€
The learned counsel for the appellants strenuously argued that to convict an accused for an offence under Section 13 (1) (d) and 13 (2), the
prosecution must establish that by corrupt and legal means the accused has obtained for himself or for any other person any valuable things or
pecuniary advantage but in the present case there is no evidence on record the appellants/the public servants obtained any amount by corrupt or illegal
means and conviction of the public servants/the two appellants is not sustainable in absence of such requisite evidence. The decision of (2002) 5 SCC
86, Subash Parbat Sonvane Vs. State of Gujarat, is relied on the aspect.
In the aforesaid decision, para 6, it has been held that for convicting the person under Section 13 (1) (d) that there must be evidence on record that
the accused obtained for himself or others any valuable things or pecuniary advantage either by corrupt or illegal means or by adducing his position as
a public servant without any public interest. In the present case, there is a lack of evidence on the above aspect.
On the next, the appellants have relied upon the decision rendered by the Hon’ble Apex Court in 2013 (3) JCC 1552, B. Jayaraj Vs. State of
A.P., wherein it has been held that the presumption under Section 20 of the P.C. Act can be drawn only in respect of offence under Section 7 and not
the offences under Section 13 (1) (d) (i) (ii) of the Act. In any event it is only on the proof of acceptance of illegal gratification presumption can be
drawn under Section 20 of the Act that such gratification was received or doing or for bearing any official act. Applying the proposition laid by the
aforesaid decision, the statutory presumption also cannot be drawn against the public servant/the appellants herein.
The upshot of the forgoing discussions will be â€
1) The prosecution did not laid down any foundational facts to arrived at a finding of dishonest intention on the part of the appellants nor any such
findings have been arrived at by the Trial Court.
2) The prosecution evidence does not establish neither the conspiracy nor any criminal misconduct on the part of the accused appellants as per the
allegation.
3) None of the charges leveled is proved beyond all reasonable doubts.
For the aforementioned reasons the impugned judgment and order being unsustainable is set aside. The appeals are allowed and accused are acquitted
from the charge. Appellants are on bail, their bail bonds stands discharged.