Shri Nar Bahadur Bhandari vs State <BR> Shri P.K. Pradhan Vs State of Sikkim

S.P. Wangdi, Actg. C.J.

This batch of appeals are taken up together, as they pertain to offences arising out of works from the same set of schemes under the Rural Development Department, Government of Sikkim, under one charge-sheet and, therefore, had been tried in one case and disposed of by a common judgment.

There are altogether 10 accused persons who have been convicted and they have chosen to file separate appeals.

The Appellant in Criminal Appeal No. 6 of 2008, is Mr. Nar Bahadur Bhandari, the former Chief Minister of Sikkim, who was the accused No. 1 in S.T. (CBI) Case No. 2 of 2004 before the learned Special Judge, P.C. Act, East and North Sikkim at Gangtok. In Criminal Appeal No. 3 of 2008, the Appellant is Mr. P.K. Pradhan, the former Secretary of the Rural Development Department, Government of Sikkim, accused No. 2, in the said case. In Criminal Appeal No. 7 of 2008, the Appellant is Norbu Tshering Bhutia, Government Contractor, accused No. 14 in the said case. In Criminal Appeal No. 8 of 2008, the Appellant is Sonam Wangdi Bhutia, Government Contractor, who was accused No. 15 in the said case. Criminal Appeal No. 9 of 2008 has been filed by the Appellant, Sriniwas Agarwal, Government Contractor, 6 accused No. 11 in the said case and Criminal Appal No. 10 of 2008, by the Appellant, A. B. Gurung, Government Contractor, who was accused No. 13 and in Crl. Appeal No. 12 of 2008, the Appellants are Harka Singh Chewan, Hari Prasad Rai, Ratna Bahadur Subba and Hari Prasad Sharma, accused Nos. 5, 6, 7 and 8 respectively, in the said case.

In the appeals, the Appellants seek to assail the judgment dated 25-10-2008, passed by the learned Special Judge, Prevention of Corruption Act, East and North Sikkim at Gangtok, in S.T. (CBI) Case No. 2 of 2004, by which the accused No. 1, Mr. Nar Bahadur Bhandari and Mr. P. K. Pradhan, accused No. 2, have been convicted for having committed offence u/s 120B of the Indian Penal Code along with other Appellants being accused Nos. 5, 6, 7, 8, 11, 13, 14 and 15, and, also for abusing their position as public servants, thereby obtaining pecuniary advantages to the accused Nos. 5, 6, 7, 8, 11, 13, 14 and 15, under Sections 5(2) read with Section 5(1)(d) of the of the Prevention of Corruption Act, 1947 (in short "P.C. Act, 1947").

For the sake of convenience, Criminal Appeal No. 6 of 2008 shall be taken up for adjudication, as the finding in this case shall be sufficient also to dispose of the other appeals. For brevity and identification, the Appellants shall be referred to as A1, A2, A5, A6, A7, A8, A11, A13, A14 and A15 in order of their names appearing in the impugned judgment.

The prosecution case in brief, is that, Mr. Ved Prakash Chaudhary, Dy. SP/CBI/CIU-(A), New Delhi, had lodged a first information report (in short "FIR") against Mr. Nar Bahadur Bhandari, Mr. P.K. Pradhan and M/s. Kumar Traders of Jorethang, South Sikkim, and Ors. alleging that the State Cabinet of Sikkim had decided to implement 36 Rural Water Supply Schemes (in short ''RWSS'') in the State of Sikkim, under Minimum Needs Programme during 198384, for a total cost of Rs. 1,62,31,630/-. Out of these schemes, in 19 of them sealed tenders were invited from approved contractors to be submitted by 18-01-1984. It was alleged in the FIR that A1 and A2, while functioning as Chief Minister of State of Sikkim and Secretary, Rural Development Department, Government of Sikkim respectively, and, therefore, public servants, by corrupt or illegal means or otherwise, by abusing their positions as such public servants and in conspiracy with certain contractors of their choice, awarded contract to them on rates higher than the much lower biddings available and thereby caused pecuniary advantage to the said contractors and corresponding loss to the State of Sikkim.

The investigation of the case was entrusted to the complainant, Shri Ved Prakash Chaudhary, Dy. SP/CBI/CIU-(A), New Delhi, but before filing the report u/s 173 of the Code of Criminal Procedure, 1973, he was transferred, and, as such, it was made over to Shri Ganesh Verma, the then Dy. SP/CBI/SPE/ACU(V), New Delhi, who ultimately filed the charge-sheet. In the charge-sheet, the prosecution case is that, the Government of Sikkim had approved a proposal for implementation of 36 Rural Water Supply Schemes under the Minimum Needs Programme at a cost of Rs. 1,62,31,630/- through a Cabinet Decision dated 24-11-1983. As per the decision, works worth more than Rs. 1 lac were to be carried out by issuing tenders except for the North District of Sikkim and those less than Rs. 1 lac through panchayat nominees. This was communicated to the Secretary, Rural Development Department, for necessary action vide Memo No. 1168/CAB/83 dated 07-12-1983. In response to the said decision, 15 numbers of Water Supply Schemes were to be put up on tender by inviting sealed tenders from enlisted contractors having resources and experience in such government works through open advertisements by issuing a tender notice No. 4/RDD/83-84 on 19-12-1983 under the signature of Divisional Engineer (in short ''DE''). The last date for receipt of such tenders was 1200 hours on 18-01-1984. According to the tender notice, the contractors who were residents of villages where the Water Supply Schemes were to be implemented would be given preference. In response thereto, various tenders were received and were opened on 18-01-1984 by a Tender Committee. Out of the 15 schemes, investigations were carried out in respect of the following works:

(i) Rural Water Supply Scheme at Upper Tintek under Rakdong Gram Panchayat in East District.

(ii) Rural Water Supply Scheme at Malbasey under Malbasey Gram Panchayat in West District.

(iii) Rural Water Supply Scheme at Upper Raley and Khasey within Samdong Kambel Gram Panchayat in East District.

(iv) Rural Water Supply Scheme at Zerung within Berfung, Zerung Gram Panchayat in South District.

(v) Rural Water Supply Scheme at Biring under Biring within Linkey Thakabung Gram Panchayat Unit in East District.

(vi) Rural Water Supply Scheme at Samdong under Samdong Gram Panchayat in West District.

(vii) Rural Water Supply Scheme at Sadam under Sadam Gram Panchayat in South District.

viii) Rural Water Supply Scheme at Khamdong under Khamdong Gram Panchayat in East District.

ix) Rural Water Supply Scheme at Patuk under Simik Linzey Gram Panchayat in East District.

x) Rural Water Supply Scheme at Budang Thangsing within Khamdong Gram Panchayat in East District.

xi) Rural Water Supply Scheme at Pachak under East Pendam Gram Panchayat in East District.

xii) Rural Water Supply Scheme at Singyang in West District.

The comparative statements of the rates quoted by the tenderers in each of the schemes showed that there were bidders who had offered rates much below the approved rates. When the matter was thus being processed, A1, Mr. N.B. Bhandari, the then Chief Minister of Sikkim, and A2, Mr. P. K. Pradhan, the then Secretary, Rural Development Department, Government of Sikkim, entered into a criminal conspiracy to issue work orders in favour of the contractors/accused Nos. 3 to 17, for the execution of the 12 schemes and, in furtherance of their common object, A2 in consultation with A1, issued the work orders in the names of the contractors who had not quoted the lowest rates, ignoring the recommendations of the officers of the concerned department for awarding the contract work to the lowest tenderers. Thus, by awarding contract work in favour of the accused contractors who had quoted higher rates, A1 and A2 caused pecuniary advantages to them, and corresponding pecuniary loss to the State of Sikkim.

It was thus stated that a prima facie case had been made out against all the 17 accused persons for having committed offences u/s 120B of the Indian Penal Code and Section 5(1)(d) read with Section 5 (2) of the Prevention of Corruption Act, 1947, corresponding to Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. Further, against A1 and A2 for commission of substantive offences u/s 5(1)(d) read with Section 5(2) of the P.C. Act, 1947.

It is also pertinent to mention here that during the trial, 4 out of the 12 schemes, namely, Rural Water Supply Schemes at Biring, Sadam, Pachak and Singyang, were dropped for various reasons and the trial was confined only to the remaining 8.

The prosecution in support of its case, examined 21 witnesses, which included the Investigating Officers, PWs 20 and 21. The learned trial Court, upon consideration of the materials and evidence on record, framed charges u/s 120B and Section 5(1)(d) read with Section 5(2)of the P.C. Act, 1947, against Mr. Nar Bahadur Bhandari, A1, Mr. P. K. Pradhan, A2 and 17 others, and substantive charges under Sction 5(1)(d) read with Section 5(2) under the said Act against A1 and A2, to which they pleaded not guilty and preferred to go to trial.

The records reveal that 5 out of the 15 private accused persons, namely, H. P. Karki, A3, Nar Bahadur Rawat, A4, S.D. Tamang, A9, Chetan Das Ghimirey, A12 and N.P. Bhandari, A16, who were connected with the Rural Water Supply Schemes of Upper Tintek, Malbasey, Upper Raley & Khasey, Biring and Pachak respectively, died during the proceedings of the trial, and, therefore, charges against them stood abated. Apart from these accused persons, Bhim Bahadur Gurung, A10, Minzur Bhutia, A17, who were connected with Sadam and Singyang Rural Water Supply Schemes respectively, were acquitted at the stage of their examination, u/s 313 of the Code of Criminal Procedure, 1973. The charges were, therefore, confined to A5, A6, A7, A8 connected with Malbasey Scheme, A11 with Zerung, A13 with Khamdong, A14 and A15 with Patuk, along with A1 and A2.

The learned trial Court on consideration of the evidence on record, having found the accused persons guilty in each of the 8 schemes for having committed the offences charged against them, convicted and sentenced them by the impugned judgment. It is against this that the present appeals have been preferred.

While pressing the appeal, Mr. B. R. Pradhan, learned senior counsel representing A1, at the outset, raised certain preliminary objections, namely:

(i) As is evident from the FIR, the complainant is Mr. Ved Prakash Chaudhary who investigated the case but was transferred just before submission of his report u/s 173 of the Code of Criminal Procedure, 1973, resulting in the case being handed over to Mr. Ganesh Verma, who ultimately filed the charge-sheet. In other words, the investigation was conducted by the very officer who was the complainant and the case is, therefore, vitiated on this account.

(ii) There is a fundamental fallacy in instituting the case, because from the nature of the works that were launched by the Government, it was basically welfare schemes, which is obvious from the NIT that provided for preferential treatment to the contractors of the local areas where the works were to be executed. That apart, concededly the schemes were strictly time bound to be completed within a specified time as per the guidelines provided therefor by the Central Government and, that there was an incentive in the form of bonus provided for the States achieving their timely completion. Under such circumstances, inherent in the nature of the schemes was a discretion that could be exercised by the Government for reasons to be recorded in public interest.

(iii) That the prosecution had most erroneously atttributed criminality to the bona fide executive actions of A1 and A2 exercised in the normal course of their duties, as was manifest from the 14 records which were placed before the Court and duly exhibited.

(iv) That the basis of the charge that A1 and A2 had ignored the recommendations of the Junior Engineer (in short ''J.E.''), Divisional Engineer (in short ''D.E.'') and Chief Engineer (in short ''C.E.'') for awarding work to the lowest bidders and chose to award the work to persons at higher rates, thereby causing pecuniary loss to the State, has been established to be totally false and, therefore, the case ought to be dismissed on this account alone.

14.1 Elaborating his submission, Mr. Pradhan placed his arguments by making reference to the evidence appearing on the records indicated in brackets, as shall follow hereafter. It was stated that the Rural Water Supply Scheme was a centrally sponsored scheme (DE, Mr. K.K. Rai, PW2). It was a national program to be completed by 1985 and a bonus was earmarked for successful and timely completion of the schemes. There was, therefore, a race amongst states to receive the bonus and Sikkim had received the bonus (Mr. K. C. Pradhan, PW1, the then Secretary Finance). Time was the essence and specific time period was notified both in the Notice Inviting Tender as well as the Tender documents in the General Directions and Conditions of Contract (DE, Mr. K.K. Rai, PW2 and JE, Mr. K. P. Pothen, PW3). Local participation through Panchayats was encouraged (Mr. K.C. Pradhan, PW1, the then Secretary Finance, GOS and DE, Mr. K.K. Rai, PW2). The schemes were to be handed over to the local bodies after completion. The villagers were to be the beneficiaries of the said schemes (DE, Mr. K.K. Rai, PW2 and Mr. T.P. Koirala, PW4, u/s (Accounts) Panchayat and Rural Works Department). The villagers had to donate their land without compensation for the purposes of the said scheme. A specific clause, i.e., Clause 6, giving preference to local contractors was inserted in the NIT (Ext.2), (Mr. K. C. Pradhan, PW1, the then Secretary Finance, Government of Sikkim and DE, Mr. K.K. Rai, PW2). The Water Supply Scheme was implemented not only for one particular village but for surrounding villages also, which was the reason for the contractors from adjoining villages also being recommended and for the DE recommending contractors from adjoining areas (DE, Mr. K. K. Rai, PW2). This was done with the view of accountability of the local contractors. The preference clause was such that even if there was lowest contractor, the authorities could grant the contract to a local contractor as against the lowest contractor. The Divisional Engineer, Mr. K.K. Rai, PW2, has not only confirmed this position but also admitted in his cross-examination that he himself had recommended local contractors in various schemes although there existed contractors who had bidded lower (DE, Mr. K.K. Rai, PW2). It was with this view that both in the NIT and the "General Direction and Conditions of Contract" a specific Clause 6 contained in the Tender Documents that the Department reserved its rights to reject any one or all the tenders without assigning any reason and, that the accepting authority would not be bound to accept either the lowest tenderer or any of the tenderers, was inserted (DE, Mr. K.K. Rai, PW2, JE, Mr. K.P. Pothen, PW3 and Mr. T.P. Koirala, PW4, u/s (Accounts), Panchayat and Rural Works Department). The NIT was widely published and each participating tenderer were made aware of this right of the Department, vide Clause VI (DE, Mr. K.K. Rai, PW2 and Mr. T. P. Koirala, PW4, u/s (Accounts), Panchayat and Rural Works Department). The consideration in selecting a tenderer by the competent authority was not based solely on who the lowest tenderer was, but also on various other factors, like the policy of the Government behind the schemes, beneficiaries of the schemes, terms and conditions of Notice Inviting Tender, time fixed for completion of the work, background of the contractor, cost of materials and successful completion of similar schemes, (JE, Mr. K. P. Pothen, PW3). This was in consonance with the settled position of law as laid down by the Apex Court and also confirmed by prosecution witnesses, Mr. K.K. Rai, PW2 and Mr. K.P. Pothen, PW3.

14.2 It was further argued that on examination of the files pertaining to the schemes in question, it is amply clear that the authorities at the first instance sought to choose a local tenderer in line with the policy designed. In some cases, where the local tenderers were not found to be competent, some other tenderers were selected on fair and reasonable considerations. It is, therefore, seen that either a competent local contractor was selected or, by reasoned orders, selected tenderers having past experience, financial stability, Panchayat recommendations, by following a process of selection that was transparent and well-deliberated in the note sheets contained in the respective files.

14.3 It was further submitted that there was a race amongst the various States for early completion of the schemes, as is evident from the statements of various witnesses, namely, PW1, Secretary Finance, Government of Sikkim, PW2, DE and PW3, JE. From the evidence on record, it is clear that time was the essence of the scheme. It has also been established from the evidence that there was wide publicity of the NIT, as a consequence of which several contractors participated and the ultimate award of the contract was based upon the essential preferential clause of the NIT, Exhibit 2, other factors stated above and the necessity of timely completion of the schemes. The NIT conditions and the General Direction and Conditions of the Contract, Exhibit A1, vested in the department the right to reject any of the tenderers without assigning any reason. It is stated that it was in exercise of this for reasons duly recorded that the works were awarded in preference to those who had tendered at lower rates.

14.4 Mr. Pradhan submitted that the entire investigation of the case is apparently quite unfair and tainted. It is submitted that all the files pertaining to the RWSS were re-constructed by the Investigating Agency and appear to be tampered with, which is established by the statement of JE, Mr. K.P. Pothen, PW3, when he states that "it is true that for each scheme there is a file before this Hon''ble Court which has been constructed taking out the documents and notings from different files" and further that "it is true the notings of the said file have been tampered."

14.5 Although FIR dated 07-08-1984, Exhibit 153, was signed by Mr. R.N. Kaul, SP/CBI/CIU(A), New Delhi, he was not examined, and that, although Mr. v. P. Chaudhary, PW20, the I.O., has been mentioned as the informant in the FIR, it has not been signed by him, which is evident from the statement of PW20 himself and PW21, Mr. Ganesh Verma, the other I.O., both Dy. S.P./CBI. Moreover, the FIR was never forwarded to the nearest Magistrate as required u/s 157 of the Code of Criminal Procedure, 1973, which as per Mr. Pradhan is fatal for the prosecution case. The enquiry report and the documents that were seized during investigation, which included the measurement books of different schemes, were withheld from the Court, as admitted by the I.O., PW20 and the other I.O., PW21. It was further submitted that Mr. Sarvjit Singh, Inspector of Police, CBI/SPE/CIU(A), New Delhi, who is stated to have seized the document vide Exhibit 141, was not produced in Court for examination, as revealed in the statements of PWs 20 and 21. The said Inspector had no. authorisation from any Court to take part in the investigation as per the I.O., PW20. While there were No. witnesses to the seizure vide Seizure Memos 141 and 144, Seizure Memo Exhibit 142 has only one witness, as also admitted by the I.O., PW20. It was then submitted that the investigation of the case was conducted by an Investigating Officer who had No. knowledge about the guidelines prescribed by the Central Government to the State Government for implementation of the RWSS, about the time frame for its implementation, the incentives and bonus set aside by the Central Government, who did not familiarise with the policies behind the implementation, who had No. knowledge as to how Government fixes schedule rates or try to find out when it was fixed or did not know the prices of materials or the escalation of prices of materials, who did not go through the manual of the Department to 20 find out whether JE had the authority to make the recommendations, as admitted by the I.Os., PWs 20 and 21.

14.6 Mr. Pradhan went on to submit that during the examination of the prosecution witnesses, the prosecution has relied upon and exhibited isolated and selected notings in the files pertaining to each of the schemes giving version suitable to the prosecution, when the law requires that the notings in the file in each of the schemes and the documents related thereto, must be read in its entirety. In this regard, the statements of Mr. T. P. Koirala, the then Under Secretary, Accounts, Panchayat and Rural Works Department, examined as PW4, was specifically referred to, the relevant portion of which are reproduced below:

...It is true yesterday in my examination-in-chief I was shown some comparative statements and selective notings and I did not go through the entire notings of the file before my examination-in-chief.

...It is true that I have made this statement on being asked by the Ld. P.P. present in the Court....

14.7 It was submitted that in such manner the prosecution had sought to mislead the Hon''ble Court for the sole purpose of securing conviction of innocent persons at any cost. It was submitted that such instances of manipulative examination of witnesses is manifest in all the depositions of prosecution witnesses in their examination in chief. That a false charge-sheet had been filed in the case, as it contains incorrect allegations, a fact that was admitted by the prosecution witnesses in their cross-examination which remained unrebutted, which as per the learned senior counsel, are evident from the following:

PW20 - Shri Ved Prakash Chaudhary, the first I.O.

...

... I cannot say about the policies behind the preference clause injected in notice inviting tender. It is true that I do not have case diary of this case in my hand today. I cannot say at present in which local papers the notice inviting tenders were published. I do not know whether there was any Cell called Chief Minister''s Complaint and Grievances Cell at the Chief Minister''s Secretariat at Gangtok although I know that such cells exist in all States. I do not remember whether I have seized and filed some documents submitted to the Chief Minister''s Complaint and Grievances Cell officially and which in turn forwarded to the Rural Development Department. I have No. knowledge to which authority the RWSS schemes was going to be handed over after the completion for its future maintenance. ... It is true that the allegation made by me in the charge sheet relating to RWSS Malbasey that K. K. Rai (PW 2) had recommended for awarding the work to the lowest tenderer Shri K.K. Pradhan is not correct. It is true that neither the Div. Engineer Shri K.K. Rai (PW 2) nor the Chief Engineer Shri N. S. Lepcha has recommended awarding the work to the lowest tenderer Prem Prakash Agarwal in respect of RWSS at Upper Raley Khasey..... It is true the allegation in the charge sheet relating to Upper Raley Khasey RWSS to the effect that P.K. Pradhan, accused No. 2 overruled the recommendation of the officials of his Department who had recommended the name of the lowest tenderer Shri Prem Prakash Agarwal for acceptance is incorrect and against the record. .... It is true that I did not go through the manual of the Department to find out whether JE I had the authority of making recommendation in such cases.

It is true that Mr. K.P. Pothen, JE had not recommended for awarding of the work to the lowest tenderer in RWSS at Zerung. It is true that neither the JE Shri K.P. Pothen (PW 3) nor the D.E. Shri K. K. Rai (PW 2) have recommended for awarding the work to the lowest tenderer in respect of RWSS at Zerung. It is true there is a noting of Chief Engineer Shri N.S. Lepcha being Exbt. 67 to the effect that "In this event, we may cancel the work order to him previously vide CP 51 and award the work to anyone of the remaining five contractors whose statement of tenders is at CP 43, please. Thereafter we shall initiate action against the contractor as found necessary".... It is true that the allegation in the charge sheet relating to Zerung RWSS that accused No. 2 ignoring the recommendation of JE I and Chief Engineer awarded the work to Srinivas Agarwal (accused No. 11) is incorrect.

... It is true that the allegation in the charge sheet relating to Biring RWSS that ignoring the recommendation of JE I the work was awarded to one Chetan Das Ghimirey (accused No. 12) by accused No. 2 is incorrect.

... It is correct that allegation in the charge sheet that accused No. 2 ignoring the recommendation of JE and Chief Engineer ordered the work to be awarded to A.B. Gurung (accused No. 13) is incorrect.

It is true that there is No. clear recommendation of Divisional Engineer for awarding the work to the lowest tenderer. It is not a fact that JE I has not recommended award of work to the lowest tenderer. It is correct that there is No. unanimous recommendation for award of the work in favour of the lowest tenderer in respect of Sadam RWSS. It is not true that the allegation in the charge sheet relating to Sadam RWSS to the effect that accused No. 2 in utter disregard of the laid down norms and contrary to the unanimous recommendation awarded the work in favour of Kashi Nath Sharma is not incorrect.

... It is correct that the allegation in the charge sheet in respect of Budang Thangsing RWSS that there was unanimous recommendation of JE, DE and Chief Engineer in favour of the lowest tenderer and ignoring the same the accused No. 2 awarded the work in favour of accused No. 14 Shri Norbu Tshering is incorrect.

It is true that Divisional Engineer (PW 2) Shri K.K. Rai vide his noting Exbt. 122 had specifically disapproved awarding of the contract work to the lowest tenderer Shri Tsewang Dorjee who had quoted at 20% below the schedule rate on the ground that the rate quoted is too far below for successful implementation plus Mr. Dorjee has RWSS Sangmo at his hand though the work is at its final phases and therefore the allegation in the charge sheet to the effect that the JE, DE and CE had unanimously recommended the name of the lowest tenderer is incorrect. As such the further allegation in the charge sheet that accused No. 2 ignoring the unanimous recommendation of the JE, DE and the CE awarded the work to Ratan Kumar Goyal is also incorrect.

....

Cross-examined by accused No. 1 through Ld.Counsel on s.a.

It is true that relating to Patuk RWSS there is No. recommendation as alleged in the charge sheet in favour of the lowest tenderer Dalu Ram Sarda.

Volunteers to say that although the word recommendation has not been used but it has been pointed out that lowest tenderer is Shri Dalu Ram Sarda and file was placed for necessary action and orders which amounts to recommendation. ....

It is true that the application placed vide flag A and mentioned in the EXbt.72 is not found in the file relating to Patuk RWSS. It is incorrect to suggest that the evidence has been tampered with. It is incorrect to suggest that the application flag A mentioned in Exbt. 72 is purposely removed from the concerned file.

It is true that in respect of Singyang RWSS the DE (PW 2) after rejecting the lowest tenderer of 20% below the schedule rate had indicated the name of one Sonam Dadul as the best choice for award of the work who had quoted 8% above the schedule rate therefore allegation in the charge sheet that the work was awarded to R.K. Goyal by accused No. 2 ignoring the unanimous recommendation of JE (PW 3), DE (PW 2) and Chief Engineer is totally incorrect. ....

It is correct that relating to Singyang RWSS the Chief Engineer has not recommended anybody including the lowest tenderer for award of the contract work. It is true that in the charge sheet by mistake it has been mentioned that CE, alongwith JE and DE had recommended for awarding of work to the lowest tenderer Chewang Dorjee Bhutia. ....It is true that the allegation in the charge sheet that JE (PW 3), DE (PW 2) and CE had unanimously recommended the name of the lowest tenderer and the accused No. 2 ignoring the said recommendation awarded the contract work to Ratan Kumar Goyal is totally incorrect.

In respect of Upper Tintek RWSS also there is No. recommendation of Chief Engineer for awarding of work to the lowest tenderer as such the allegation made in the charge sheet is incorrect. Volunteers to say that the Chief Engineer had noted that "Reference above and notes endorsed by the HCM in the petition submitted by the GP of Rakdong Tintek and the public vide CP flag A submitted for kind perusal and order please".

In respect of Upper Raley Khasey RWSS also the Chief Engineer has not recommended the name of the lowest tenderer but the witness volunteers to say that the Chief Engineer vide his noting Exbt. 43 has recommended the award of work to the 5th who is of Samdong and has executed water supply schemes satisfactorily. Therefore the allegation in the charge sheet that accused No. 2 awarded the contract work to N. P. Tamang ignoring the recommendation of JE, DE and CE is false.

It is correct that CE in respect of Patuk RWSS has recommended for awarding of work to the third lowest tenderer and not to the lowest tenderer as alleged in the charge sheet therefore the allegation that CE had recommended for awarding of work to the lowest tenderer is incorrect and false.

It is not a fact that I have not applied my mind carefully and gone through the files correctly.

In respect of Samdong RWSS also the Chief Engineer has not recommended the name the lowest tenderer. Therefore the allegation in the charge sheet that alongwith JE and DE the CE had recommended for awarding the work to the lowest tenderer is incorrect and false. Further the allegation that the accused No. 2 had ignored the unanimous recommendation for awarding the work in this water supply scheme to the lowest tenderer R.K. Goyal and awarded the work to Shri A.B. Gurung is also incorrect and false.

It is true that accused No. 16 of the charge sheet is one N.P. Bhandari and he has been made accused in connection with Pachak RWSS. (The case against the accused has abated on account of his death). It is true N.P. Bhandari has been made an accused in this case on the allegation that this N.P. Bhandari had rented out a portion of his building situated at Pakyong Bazar to accused No. 1 for running his Party Office and the accused No. 1 not having paid any rent from the very beginning of the tenancy to the said accused, the accused No. 1 in lieu thereof showed favour thereof by awarding the rural water supply scheme contract work of Pachak to the said accused N.P. Bhandari. It is correct that in all water supply schemes in question notice inviting tenders was issued on 19.12.1983 and the tenders were opened on 18.1.1984. In this month i.e. July 2006 I came to know that this N.P. Bhandari had died in the year 1977. ....

It is true that all the scheme files in this case are official documents. It is true that all the notings in the respective scheme files are official notings made in the usual course of official business.

....

[emphasis supplied]

14.8 It was then submitted that PW21, the second I.O. persisted upon pressing the false charges, in spite of the fact that the notings of the file indicated to the contrary. A few of such statements referred to by the Ld. Counsel are reproduced below:

PW21 - Mr. Ganesh Verma, the second I.O.

...I have written in my chargesheet in para IV at page 8 the following words "Although he did not even belong to the area where the work was to be carried out." I have written these words knowing fully well that the notice inviting tender had a preference clause which gave preference to contractors/tenderers who belonged to the area where the work was to be carried out. It is incorrect to suggest that the statement made by me in the said paragraph in the said chargesheet with regard to Zerung Water Supply Scheme that the award of work to Srinivas Agarwal was granted ignoring the recommendation of the Chief Engineer is false and misleading. I hold this view even after having been shown the note of the Chief Engineer Exbt. 63 and Exbt. 67. Although it is true that Exbt. 67 dated 18.02.84 of the Chief Engineer which has been shown to me specifically states that the award of work may be granted to any one of the remaining five contractors. ....

... It is correct that the allegation in the charge sheet that Shri P. K. Pradhan-(A.2) overrulled (sic) the recommendations of the Officials of his department who had recommended the name of the Lowest Tenderer Shri P. P. Agarwal for acceptance is incorrect. Not supported by the record. Witness volunteered to say that the officials had rejected the Lowest Tenderer. ....

After going through the noting Ext.73 I can say the notings marked Ext.74 is of Chief Engineer. It is true that in Ext.74 C.E has specifically pointed out that Mr. Daluram Sarda is the Tenderer in Budang Thangsing W.S. Scheme also. Therefore he has not recommended the name of Mr. Daluram Sarda for Patuk W.S. Scheme. It is true that the C.E has not recommended the work to the Lowest Tendererer (sic) for Patuk W.S. Scheme. Therefore my allegation in the charge sheet that the C.E had recommended the work to be awarded to the Lowest Tenderer is a mistake. Witness volunteered to say that the Lowest tenderer has been ignored. I filed the charge sheet in the year 1994 and after lapese (sic) of 12 years for the first time I am saying that it was a mistake. It is true that I never tried to correct the mistake. But I admit C.E. has not recommended awarding of the work to the Lowest tenderer.

I repeat that I did not simply put my signature on the charge sheet prepared by the former I.O. Mr. v. P. Choudhury.

...

... It is correct that the allegation in the charge sheet prepared and submitted by me with regard to Upper Tintek at page 4 in paragraph (i) to the extent it states that the Chief Engineer had made the recommendation is not borne from the records. I volunteered to say that this was a mistake on my part to have mentioned the same in the charge sheet. It is true that although I submitted the charge sheet prepared by me in the year 1994 I have even to this day not made any effort to correct the same I volunteered to say that the Lowest have been ignored. ....

..."

Cross-examined by accused Mr. P.K. Pradhan through Ld. Counsel Sh. D.K. Singh.

The said clause -6 reads as follows "The accepting authority reserves the right to reject any or all the tenders without assiging (sic) any reasons and he will not be bound to accept either the lowest tender or any of the tenders". It is true that in the charge sheet I have not mention any rule that the lowest tender has to be accepted in an absolute and straight manner. It is true that in this case all these scheme files are official documents maintained in the official course of business. It is true that in official capacity the notes were written in the note sheets by the different officials i.e. J.E., D.E., E.S.D., C.E. and O.S.D. and Secretary R.D.D. (A-2) in discharge of the official duties. It is true that I find on perusal of the charge sheet that I have No. where mentioned therein that the award of works was done by A-2 without mentioning reasons. ....

...

14.9. It was submitted that from the above there could be No. manner of doubt that the case filed by the prosecution is a false one.

Mr. Pradhan thereafter took us through the evidence in each of the 8 schemes and drew the attention of the Court to the various evidence on the record to show that A1 had either No. role or limited role to play in the award of the works and that the entire procedure that was followed were in discharge of his normal course of official duties, for which No. criminality could be attached.

On the conspiracy theory alleged by the prosecution, Mr. Pradhan placed the following submissions:

A. The learned Special Judge has framed 2 charges against A1 vide order dated 04-06-2003;

B. The first charge relates to the allegation of conspiracy between the accused persons of having awarded the contract works to others at higher rates, ignoring the recommendations of the Engineers in favour of the lowest tenderers, thereby causing pecuniary loss of Rs. 3,10,500/-to theState with corresponding pecuniary advantage to A5 to A8, A13, A14 and A15, thereby committing the offence u/s 120B of the Indian Penal Code read with section 5 (2) and Section 5(1)(d) of the P.C. Act, 1947.

C. It is, therefore, clear that the act alleged is of criminal conspiracy to commit the offence of criminal misconduct as defined u/s 5 (1) (d) of the P. C. Act, 1947. Criminal conspiracy is a distinct offence and punishable separately. Prosecution, therefore, was required to establish the offence by applying the same legal principles which are otherwise applicable for the purpose of bringing a criminal misconduct on the part of A1 and A2. The gist of the offence as alleged would be the forming of the scheme or agreement between the A1, A2 and other accused persons. There must be evidence to show that the acts or conduct of the accused persons are conscious and clear to infer their concurrence as to the common design and its execution. No. evidence having been led by the Prosecution to establish a meeting of mind between all the accused persons to commit the offence of criminal misconduct as stated above, the first charge, therefore, must necessarily fail.

D. The present appeal relates to eight different rural water supply schemes for which tenders were floated under a single NIT for implementation of water supply schemes in different parts of Sikkim. It has been established from the records that the tenderers for each scheme were different and, in each of the said schemes the authorities involved had considered and recommended the tenderers, keeping in view the unique fact situation subsisting when the tenders were quoted for the particular schemes. The charge of criminal conspiracy must also fail, since in the present case the Prosecution has failed to prove the offence of criminal misconduct u/s 5(1)(d) of the P.C. Act, 1947.

16.1 In support of this submission, Mr. Pradhan relied upon the decision of State of Madhya Pradesh Vs. Sheetla Sahai and Others, , and referred the following portion:

Criminal conspiracy is an independent offence. It is punishable separately. Prosecution, therefore, for the purpose of bringing the charge of criminal conspiracy read with the aforementioned provisions of the Prevention of Corruption Act was required to establish the offence by applying the same legal principles which are otherwise applicable for the purpose of bringing a criminal misconduct on the part of an accused.

A criminal conspiracy must be put to action in as much as so long a crime is generated in the mind of an accused, it does not become punishable. What is necessary is not thoughts, which may even be criminal in character, often involuntary, but offence would be said to have been committed thereunder only when that take concrete shape of an agreement to do or cause to be done an illegal act or an act which although not illegal by illegal means and then if nothing further is done the agreement would give rise to a criminal conspiracy. Its ingredients are

(i) an agreement between two or more persons;

(ii) an agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means.

What is, therefore, necessary is to show meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means. While saying so, we are not oblivious of the fact that often conspiracy is hatched in secrecy and for proving the said offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence.

[emphasis supplied]

On the offence u/s 5(1)(d) of the P.C.Act, 1947, which is the second charge framed against A1 for criminal misconduct punishable u/s 5(2) of the said Act, it was submitted that the said charge alleges that A1 being a public servant functioning as Chief Minister cum Minister-in-charge of Rural Development Department, agreed with A2, the then Secretary, Rural Development Department, by use of corrupt or illegal means or by abusing their positions as public servants, obtained pecuniary advantage in favour of A5 to A8, A11, A13, A14 and A15 by recommending award of contract works in their names at higher rates, ignoring the recommendations of Engineers for awarding the contracts works in favour of the lowest tenderer in each scheme, thereby committing offence u/s 5(1)(d) read with Section 5(2) of the P.C. Act, 1947.

It was submitted that in the present case the allegation is that A1 "abused" his position as a public servant and "obtained" for other persons, namely, A5 to A8, A11, A13, A14 and A15 "pecuniary advantage" but the prosecution has failed to produce any evidence even to infer that A1 had "dishonestly abused" his position and "obtained" any "pecuniary advantage" in favour of the above accused contractors.

In support of his submission, Mr. Pradhan referred to the various decisions of the Apex Court, some of which are as follows:

19.1 In the case of Major S.K. KALE Vs. State of Maharashtra, , it has been held that -

We are satisfied that the judgment of the High Court runs counter to the principles laid down by this Court in the case cited above, and the High Court does not appear to have applied that principle in deciding the truth of the case presented by the prosecution against the Appellant. In the instant case it is not alleged that the accused had used any corrupt or illegal means. It has not been shown that the accused himself accepted any illegal gratification or pecuniary benefit nor has it been shown that he violated any statutory rule or order. Thus, even on the prosecution allegation the case of the Appellant falls only within the second part of Section 5 (1)(d), namely, abusing his position as public servant. The abuse of position, as held by this Court, must necessarily be dishonest so that it may be proved that the Appellant caused deliberately wrongful loss to the Army by obtaining pecuniary benefit for P.W. 2.

[emphasis supplied]

19.2 In the case of S.P. Bhatnagar Vs. State of Maharashtra, , the Apex Court while interpreting Section 5(1)(d) has held that -

Following the decision in M. Narayanan Nambiar v. State of Kerala (supra), it was held by this Court in Major S. K. Kale v. State of Maharashtra (supra) that the abuse of position in order to come within the mischief of the section must necessarily be dishonest so that it may be proved that the accused caused deliberate loss to the department. It was further held in this case that it is for the prosecution to prove affirmatively that the accused, by corrupt or illegal means or by abusing his position, obtained any pecuniary advantage for some other person. It would, therefore, be necessary to find out in this case as to whether the accused abused their position and acted dishonestly or with a corrupt or oblique motive in having the contract in question entrusted to A-4. As the courts below have rested their judgments on a constellation of circumstances, it would be well to bear in mind the fundamental rule relating to the proof of guilt based on circumstantial evidence which has been settled by a long line of decisions of this Court. The rule is to the effect that in cases depending on circumstantial evidence, there is always the danger that conjecture or suspicion may take the place of legal proof. In such cases the mind is apt to take pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely it is, considering such matters, to over-reach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.

In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.(See Hanumant Vs. The State of Madhya Pradesh, ; Palvinder Kaur Vs. The State of Punjab (Rup Singh-Caveator), and Charan Singh Vs. The State of Uttar Pradesh, ).

19.3 In the case of Abdulla Mohd. Pagarkar and Anr. v. State (Union Territory of Goa, Daman and Diu): (1980) 3 SCC 110, the Apex Court held as under:

...The onus of proof of the existence of every ingredient of the charge always rests on the prosecution and never shifts....

The mind of the learned Special Judge in coming to the finding about the value of the work done being No. more than Rs. 32,287.75 appears to have been influenced by the gross irregularities committed by the Appellants in the execution of the work, specially their failure to prepare vouchers relating to all the payments as also a proper muster roll. These irregularities No. doubt furnish a circumstance giving rise to a strong suspicion in regard to the bona fides of the Appellants in the matter of the execution of the work but suspicion, however strong, cannot be a substitute for proof. and it is certainly not permissible to place the burden of proof of innocence on the person accused of a criminal charge. ....

Learned Counsel for the State sought to buttress the evidence which we have just above discussed with the findings recorded by the learned Special Judge and detailed as items (a) to (e) in paragraph 9 and items (i) and (iii) in paragraph 10 of this judgment. Those findings were affirmed by the learned Judicial Commissioner and we are clearly of the opinion, for reasons which need not be restated here, that they were correctly arrived at. But those findings merely make out that the Appellants proceeded to execute the work in flagrant disregard of the relevant rules of the G.F.R. and even of ordinary norms of procedural behaviour of government officials and contractors in the matter of execution of works undertaken by the government. Such disregard however has not been shown to us to amount to any of the offences of which the Appellants have been convicted. The said findings No. doubt make the suspicion to which we have above averted still stronger but that is where the matter rests and it cannot be said that any of the ingredients of the charge have been made out.

[emphasis supplied]

19.4 In the case of State by Inder Singh Vs. State of Punjab and others, , it has been held as under:

...The language of Section 5 (1) (d) of the Prevention of Corruption Act, 1947 is clear and unambiguous in the sense that if a public servant by whatever means, be they corrupt or illegal, obtains for himself or any other person any valuable thing or pecuniary advantage must, in any event, doing so, abuse his position as a public servant. (emphasis supplied) If such abuse of his position as a public servant, is lacking in the prosecution case, and there is evidence barely to the effect, that he has by some means, be they illegal or corrupt, obtained for himself or any other person any valuable thing or pecuniary advantage, that by itself would not be enough. If thus appears to us that instantly the charge against the Respondent was rightly quashed by the High Court. There is No. merit in this appeal which is ordered to be dismissed.

[emphasis supplied]

Summarising his arguments, Mr. Pradhan submitted that the 8 RWSS schemes under consideration, were part of a socially beneficial policy under the International Drinking Water Supply Program launched by the Government of India under the Accelerated Rural Program. The tenders were floated keeping in mind the need of the hour for supply of at least one potable drinking water to every village in need. Therefore, the price and lowest tender were not the sole consideration. In the present case, A1 had nothing to do with the tenders in issue, as he was neither the Accepting Authority nor involved in the process of tender nor with the award of the works. That specific disputes when brought to his notice were dealt with by him in his capacity as the Minister-in-charge of the concerned department and that he had approved the reasoned recommendations of A2, the then Secretary of the concerned Department, in respect of one of the schemes. As seen from the relevant files in all the cases, the works were awarded at the level of the Secretary of the concerned department and below.

That it is a settled law that when after the tenders have been invited, the Government remains free to reject all the tenders received and enter into direct negotiations with any person, including one of the tenders. Further, like in all works under the Rural Development Department, the General Directions and Conditions of Contract for Works on Item Percentage Rate Tender, General Rules and Conditions applies, Clause 6 of which provides that "The accepting authority reserves the right to reject any or all the tenders without assigning any reasons and he will not be bound to accept either the lowest tender or any of the tenders."

The Notice Inviting Tender also clearly stipulated that (i) "Preference shall be given to those contractors who are residents of the villages where the Water Supply Schemes are to be implemented"; and (ii) "The Department of Rural Development reserves the right to reject any or all tenders without assigning any reasons."

That from the unambiguous conditions of the NIT, it is clear that there was No. mandate in awarding the works to the lowest tenderers only, as is the case of the prosecution and, that considering the nature of the scheme; the present NIT conditions are a departure from the general principle. It is thus submitted that on a close examination of the entire materials produced by the prosecution, the unescapable conclusion is that, the State Government acted fairly and in accordance with the law provided therefor. In the entire records and the evidence that have emerged, there is neither any allegation nor any evidence nor illegality committed by A1 in the process of tender with regard to the 8 schemes. It is a settled principle of law that even if there is violation and blatant disregard to the applicable rules, that alone is not enough to bring in the element of criminality. In fact in the present case, the authorities including A1 have acted fairly for reasons that were duly recorded within the permissible limits of law.

Mr. D. K. Singh appearing on behalf of A2, generally supported the submission made by Mr. B. R. Pradhan and re-emphasised the fact that the I.O. of the case being the complainant himself, the entire case of the prosecution has to fail in view of the decision of the Hon''ble Supreme court in Megha Singh Vs. State of Haryana, where it has been held as follows:

...It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses u/s 161, Code of Criminal Procedure Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation.

[emphasis supplied]

24.1 Apart from this, Mr. Singh urged most vehemently that having regard to the established fact that the impugned actions taken by A2 were in discharge of his normal course of his duties as the head of the Rural Development Department, it was mandatory for the prosecution to have obtained sanction u/s 197 of the Code of Criminal Procedure, 1973. Relying upon the decision of the Hon''ble Supreme Court in P.K. Pradhan Vs. The State of Sikkim represented by the Central Bureau of Investigation, , it was submitted that the necessity of obtaining such sanction has been amply established during the course of the trial.

24.2 That by the above decision of the Hon''ble Supreme Court, opportunity had been left open for A2 to establish that he did not abuse his position as a public servant and that the works were awarded in favour of the contractors at a rate permissible under law and not low rates. In pursuance of this liberty provided to A2, sufficient evidence have been brought on record to prove that he did not abuse his position as a public servant and that the works were awarded at rates that were considered permissible under the law and not necessarily low rates. In order to substantiate this submission, Mr. Singh drew the attention of this Court to the following portions of the evidence of different witnesses:

PW21 (I.O.)

It is true that in Clause 6 of the standard form contract of each of the schemes it is mentioned that the accepting authority will not be bound to accept the lowest tender.

It is true that in the charge-sheet I have not mentioned any rule that the lowest tender has to be accepted in an absolute and strict manner.

PW2 (D.E.)

It is correct that even if a Tenderer is found to be the lowest, another Tenderer found more competent due to the preference clause injected in the N.I.T. could be awarded the contract on negotiation even after opening of the Tender.

It is true that the contenders from the adjoining areas are also considered and preference given in cases where contenders from the village does not exist or does not participate in the Tender even if they were not the Lowest Tenderer.

24.3 It was submitted that similar have been the statements in respect of official prosecution witnesses while being examined in respect of each of the 8 schemes, that it was not necessarily the lowest tenderer that was awarded with the work but, in most of the cases to those bidders who fulfilled the parameters laid down as a policy of the Government and in the spirit of the NIT condition already alluded to in detail above. Moreover, the evidence of the prosecution is replete with the proof that in none of the schemes, objections were raised from the audit, both State and the Central and, that there were No. losses incurred to the State, but rather the State had benefited in terms of savings. For the sake of convenience, some of the statements to this effect referred to by Mr. Singh are reproduced below:

PW3

I have carefully perused the Notice Inviting Tender Clauses -(N.I.T. Clauses), and the Preferential Clauses therein, and I state that the Secretary has given reasons, although different reasons, in the Schemes under consideration and the same is consistent with the Notice Inviting Tender (N.I.T. Clauses)."

Singyang -"It is true that the Note of the Secretary is consistent with the Notice Inviting Tender and reasons have been given adequately and specifically." Budang - "It is true that the Secretary has indicated reasons for awarding the work to Shri Norbu Tshering Bhutia and the same is consistent with the N.I.T. Clauses."

Patuk -"I find from the record that the Secretary has given reasons for award of work and the same is consistent with the N.I.T. Clauses."

Khamdong -"It is true that the Secretary has duly recorded his reasons and the same is consistent with N.I.T."

Sadam - "It is true Secretary has given reasons for award of the work and the same is consistent with Notice Inviting Tender Clauses."

"It is true that the reasons given by A-2 in Ext.58 is in conformity with the preferential clause injected in the N.I.T. under my signature."

Samdong -"These reasons (given by the Secretary) are consistent with the Notice Inviting Tender."

Biring -"It is true that only after taking into consideration the observation of the different Officials, the Secretary gave his reasons for the award of work in Ext. 34 and the same is consistent with the Notice Inviting Tender - (N.I.T.)"

Zerung -"It is true that the reasons given are consistent with the Notice Inviting Tender Clauses."

"It is true I find from the record of each of the schemes under consideration that the Secretary R.D.D. has given reasons for the award of work and the same are consistent with the Notice Inviting Tender Clauses."

PW2

"My recommendation of awarding the work to the lowest tenderer was ignored in this case because in the N.I.T. there is a clause that preference should be given to the local contractor of that area."

PW21 (I.O.)

Sadam - "It is true that none of the Officials of the R.D.D. raised any objection that the work should not be given to the Local Tenderer - Shri K.N. Sharma. As per N.I.T. Clause, the work should have been preferentially given to the Local Tenderer."

Samdong - "Secretary has recorded that the rate offered by A.B. Gurung is accepted as he is from the nearest locality .... As per the Comparative Statement, A.B. Gurung is from Kaluk. ... As per the N.I.T. Preferential Clause, the work should have been awarded to the Local Tenderer.

24.4 It was, therefore, submitted that the finding of the learned trial Court in paragraph 53 of the impugned judgment, that the facts and circumstances have shown that A1 and A2 while awarding contract works to the accused contractors have acted most illegally without following any official norms, is grossly contradictory and in conflict with the glaring evidence, instances of which have been set out above, thereby deserving outright rejection. That it has been established that A2 did not abuse his position as a public servant and that the works were awarded in favour of the contractors at rates permissible under the law and not low rates, thereby attracting the provisions of Section 197 of the Code of Criminal Procedure, 1973, making sanction to prosecute him mandatory. This having not been done, the case against him has to fail solely on this account.

24.5 It was further submitted that there was a serious defect in the procedure followed during the investigation, in as much as, the provision of Section 157 of the Code of Criminal Procedure, 1973, was violated for not having sent forthwith a report to a Magistrate empowered to take cognizance of the offence, and, therefore, the entire investigation stands vitiated.

Mr. A. K. Upadhayaya, learned senior counsel representing the other Appellants, in rest of the appeals filed by the contractors/others, reiterated the submissions with regard to the facts in each of the schemes and placed the following submissions:

The accused/contractors have been charged only u/s 120B of the Indian Penal Code read with Section 5(2) and 5(1)(d) of the P.C. Act, 1947 and they have been convicted u/s 120B of Indian Penal Code for criminal conspiracy.

To establish criminal conspiracy, there must be meeting of minds between A1, A2 and the other Appellants being A5, A6, A7, A8, A11, A13, A14 and A15.

Without establishing meeting of minds, if any favour is shown by either A1 or A2 to thecontractors, the contractors cannot be prosecuted and punished for criminal conspiracy.

A5, A6, A7, A8, A11, A13, A14 and A15 cannot be held responsible for the offence as:

(a) The contractors/Appellants were awarded the works at Schedule Rates of department and not higher.

(b) If the rates of the accused were higher than the Schedule Rates, it was brought down at par with Schedule Rates.

(c) If the rate quoted by Appellants were lower than the schedule of rates, they were awarded theworks at the lower rate and not at Schedule Rates.

(d) Though charge against the Appellants/contractors is for criminal conspiracy, No. evidence has been adduced by the prosecution to establish such charge against them. As such they are entitled to be acquitted from the charge of criminal conspiracy.

(e) It is in the evidence of the prosecution witnesses that by awarding the works to the accused contractors either at Schedule Rates or below the Schedule Rates, as the case may be, the Government has not suffered any financial loss.

(f) The schedules of rates were prepared in the year 1979 and the notice inviting tenders, Exhibit 2, was published in the year 1983.

(g) It is an admitted position that the price index had risen manifold during the period 1979-83 and, as such, the cost of materials and labour had also risen manifold.

(h) There is a preference clause in the NIT to the effect that local contractors should be given preference.

25.1 Mr. Upadhayaya further submitted that No. criminality could be attached to the procedure that was followed in awarding the work, and that, from what has been revealed from the evidence; it could at best be an instance of irregularity in the procedure. The fact that the State may have suffered financially due to the action of the Appellants, would not by itself establish commission of criminal offences as alleged against them. In support of this submission, reference was made to the case of C. Chenga Reddy and Others Vs. State of Andhra Pradesh, , the relevant portions of which are reproduced below:

On a careful consideration of the material on the record, we are of the opinion that though the prosecution has established that the Appellants have committed not only codal violations but also irregularities by ignoring various circulars and departmental orders issued from time to time in the matter of allotment of work of jungle clearance on nomination basis and have committed departmental lapse yet, none of the circumstances relied upon by the prosecution are of any conclusive nature and all the circumstances put together do not lead to the irresistible conclusion that the said circumstances are compatible only with the hypothesis of the guilt of the Appellants and wholly incompatible with their innocence. In Abdulla Mohd. Pagarkar v. State (Union Territory of Goa, Daman and Diu),: (1980) 3 SCC 110 under somewhat similar circumstances this Court opined that mere disregard of relevant provisions of the Financial Code as well as ordinary norms of procedural behaviour of government officials and contractors, without conclusively establishing, beyond a reasonable doubt, the guilt of the officials and contractors concerned, may give rise to a strong suspicion but that cannot be held to establish the guilt of the accused. The established circumstances in this case also do not establish criminality of the Appellants beyond the realm of suspicion and, in our opinion, the approach of the trial court and the High Court to the requirements of proof in relation to a criminal charge was not proper. That because of the actions of the Appellants in breach of codal provisions, instructions and procedural safeguards, the State may have suffered financially, particularly by allotment of work on nomination basis without inviting tenders, but those acts of omission and commission by themselves do not establish the commission of criminal offences alleged against them. ....

[emphasis supplied]

25.2 Referring to Rules 27(7) and 27(8) of the Sikkim Financial Rules, 1979, Mr. Upadhyaya submitted that the actions of the Appellants are in conformity with the said Rules, and that, the decisions to award the works to the contractors A5, A6, A7, A8, A11, A13, A14 and A15 were taken after due deliberations at various levels and for reasons duly recorded by A1 and A2.

25.3 It was further submitted by Mr. Upadhayaya that-

a) In all the cases the preference clause of NIT has been resorted to by the authority in awarding works to the contractors.

b) Following Rule 27(8) of Sikkim Financial Rules, 1979, the authority had duly considered the financial status of the contractors and their performance in similar contracts before awarding the works.

c) The authority has also given reasons for accepting a tender other than the lowest one in terms of Section 27(7) of Sikkim Financial Rules, 1979.

In the above facts and circumstances, it was submitted that the charge held against the Appellants could not be sustained and the impugned judgment of the learned trial Court convicting and sentencing them, deserves to be set aside.

Mr. I.D. Vaid, learned Special Public Prosecutor for the CBI, on the other hand, defended the impugned judgment and made succinct submissions as regards the case of the prosecution, gist of which have been set out in the synopsis of arguments filed by him. Placing his arguments, Mr. Vaid submitted that a preliminary inquiry No. 2/84/CIU(A)/CBI, New Delhi, registered on source report was converted into a regular case and R.C.8/84-CIU(A)/CBI was registered by Mr. R.N. Kaul, the then SP/CBI/CIU(A), New Delhi on 07-08-1994 against A1, A2, M/s. Kumar Traders, Jorethang and Ors. u/s 120B of the Indian Penal Code read with Section 5(1)(d) of the P.C. Act, 1947. The case was investigated by Mr. v. P. Chaudhary, the then DSP who examined the prosecution witnesses, collected the documents and the investigation resulted in the filing of present charge-sheet on 14-09-1994 by Mr. Ganesh Verma, the then DSP/CBI/SPE/ACU(V), CBI, New Delhi, on the transfer of Mr. v. P. Chaudhary. I may not repeat what have been stated in the charge-sheet, as it has already been dealt with in detail in the beginning of this judgment, but suffice it to say that as per the decision of the Cabinet, 17 of the 36 works had been decided to be awarded on negotiation, leaving the remaining 19 to be put on tender, of which also 4 had been removed leaving only 15. Out of the 15 schemes, 12 schemes were investigated into by the CBI, details of which have been elucidated in the earlier part of this judgment. It was further submitted that pursuant to the decision of the Cabinet communicated to A2, the Secretary, Rural Development Department, for necessary action vide Memo No. 1168/CAB/83 dated 07-12-1983, resulting in the issuance of NIT, Exhibit 2, inviting sealed tenders from enlisted contractors having resources and experience in such works to be executed in the East, South and West Districts of the State. That the tender notice was published on 19-12-1983 fixing 18-01-1984 as the last date for the receipt of the tenders and that one of the conditions mentioned in the NIT was that, preference would be given to the contractors who were residents of the villages where the Water Supply Schemes were to be implemented. Tenders received in the Rural Development Department of the Government of Sikkim were opened on 18-01-1984 by the Tender Committee, followed by preparation of comparative statements of rates quoted by each tenderer in respect of each scheme. That the statements showed that the eligible contractors in different schemes had offered to execute the works at rates much below the approved rates. That A1, Mr. N.B. Bhandari, the then Chief Minister of Sikkim, and A2 Mr. P.K. Pradhan, the then Secretary, Rural Development Department, Government of Sikkim, in connivance with each other, entered into a criminal conspiracy to issue work orders to their favoured contractors for the execution of the work, when the files were being processed to award works in the names of the lowest tenderers. In furtherance of their common object, A2 in consultation with A1, issued work orders to such contractors, ignoring the recommendations of the officers of the concerned department for awarding them to the lowest tenderers. Thus, by awarding contract works in favour of the contractors who quoted higher rates, A1 and A2 caused pecuniary advantages to the accused contractors with corresponding pecuniary loss to the State of Sikkim. Scheme No. Xl as aforesaid, along with its connected statements of witnesses u/s 161 of the Code of Criminal Procedure, 1973 and the documents, has since been deleted by the trial Court vide order dated 04.10.2002 from the charge-sheet, on the request of the prosecution, as N.P. Bhandari, the accused contractor had died before the case was registered and his brother N. M. Bhandari had impersonated as N.P. Bhandari, got the contract, executed and received payments. As per Mr. Vaid, the omission to mention that the record relating to the scheme had stood deleted vide his order dated 04-10-2002, does not militate against the fact that this scheme has been deleted altogether in this case. As per the learned Special Public Prosecutor, the gist of the allegation against the accused persons is that, Mr. N.B. Bhandari and Mr. P.K. Pradhan, the then Chief Minister and Secretary, Rural Development Department, being public servants, abused their official positions, and by corrupt and illegal means awarded the contracts to accused contractors by ignoring the tenderers, thereby providing pecuniary advantages in favour of the contractors in 8 schemes viz. Zerung, Samdong, Budhang Thangsing, Patuk, Upper Tintek, Upper Raley Khasey, Khamdong and Malbasey. Mr. Vaid drew the attention of this Court to the various notings in the files pertaining to the 8 schemes and also the relevant portions of the evidence of the prosecution witnesses. Analysing the prosecution evidence, Shri Vaid submitted as follows:

(i) PW19, Tashi Wangdi Bhutia, one of the tenderers in Zerung Water Supply Scheme, has deposed that his tender was the lowest but the contract was not given to him, while PW2 (DE) has proved all the records of the scheme and PW3 (JE) has deposed that a loss of Rs. 14,816/- has been caused to the State Exchequer by not awarding the contract to the lowest.

(ii) PW17, Ratan Kumar Goyal has stated that although he was the lowest in Samdong WSS, the contract was not awarded to him. The records have been proved by PW2 and, PW3 has said that loss of Rs. 14,302/- has been caused to the State Exchequer by not awarding the contract to the lowest.

(iii) PW12, Dalu Ram Sarda, has deposed that his rates were lowest in Budhang Thangsing and Patuk WSSs being 16.11% and 17.11% below respectively, but the contracts were not awarded to him. Records have been proved by PW2 and, PW3 has said that a loss of Rs. 45,015/- and Rs. 69,073/- respectively, has been caused to the State Exchequer by not awarding the contract to the lowest.

(iv) With respect to Upper Tintek, PW5, G.D. Sarda, the lowest tenderer being totally hostile could not even recognise his signature on the tender, but, all the documents including his signature and the comparative statement have been proved by PW2 and PW3 and it has also been proved that a loss of Rs. 40,388/- has been caused to the State Exchequer by not awarding the contract to the lowest.

(v) PW10, P.P. Agarwal, the lowest tenderer in Upper Raley Khasey, although hostile has stated that his rates were the lowest, he was not awarded the contract, and he filed Writ Petition No. 19 of 1984 in the High Court of Sikkim challenging the action. PW3 has deposed that a loss of Rs. 37,601/- has been caused to the State Exchequer by not awarding the contract to the lowest.

(vi) In its judgment, the High Court of Sikkim held that the contract with respect to upper Raley Khasey ought to have been awarded to the lowest. This judgment was upheld by the Hon''ble Supreme Court and carries weight and, the principle laid down has to be considered in all the questioned schemes.

(vii) Although the lowest bidders in Khamdong and Malbasey could not be produced as they died before they could be examined, the documents and the statement of PW2 show that the lowest tenderers were not awarded the work and the same were awarded to Karki Bhutia and R K. Goyalalthough they are not accused. PW3 has deposed that loss of Rs. 17,980/-and Rs. 17,286/- respectively, was caused to the State Exchequer by awarding the contracts to them ignoring the lowest tenderers.

(viii) The concluding portion of the statement of PW2, Mr. K. K. Rai, who was Divisional Engineer in RDD, incharge of schemes in question, viz., Zerung, Samdong, Budhang, Patuk, Upper Tintek, Upper Raley Khesey, Khamdong and Malbasey, relied upon by the learned Counsel as being relevant, are reproduced below: -

(a) With respect to Zerung WSS at page - 9, the PW has stated, "On approval of accused No. 1 this work order was issued in favour of Shri Shrinivas Agarwal".

(b) With respect to Samdong WSS at page - 4, the PW has stated, "my recommendation of awarding the work to the lowest tenderer was ignored in this case because in the notice inviting tender there is a clause that preference should be given to local contractors of that area".

(c) With respect to Budhang Thangsing WSS at page -14, the PW has stated, "accused No. 2 on 4.2.1984 overruled the recommendation of Chief Engineer by recording a note to the effect that in view of Panchayats representation, award the work at scheduled rate to Shri N.T. Bhutia."

(d) With respect to Patuk WSS at page - 12, the PW has stated, "the Chief Engineer vide his note dated 1.2.1984 has given his comments that accused No. 15 should agree to execute the work at the rate between 12% below to 17.11% below to avoid the audit objection in future and marked the file to Secretary, RDD." This note of the Chief Engineer is marked as Exhibit 80 under his signature 80 (a). Accused No. 2 vide his note dated 4.2.1984 overruled the recommendation of the Chief Engineer and "Ordered in view of the Panchayat recommendation award the work at scheduled rate to Mr. S. Wangdi."

(e) With respect to Upper Tintek WSS at page - 3, the PW has stated, "that there after the work order dated 23.2.1984 was issued to H.P. Karki. The work order is marked Exhibit 15 and my signature on the work order is 15(a). This work order was issued because of the orders of accused No. 1."

(f) With respect to Upper Raley Khasey WSS at page - 8, the PW has stated, "that Accused No. 2 had ordered to award the work to Shri N.P. Tamang vide exhibit 51 instead of the lowest tenderer P.P. Agarwal."

(g) With respect to Khamdong WSS at page - 18, the PW has stated, "that Shri N. S. Lepcha, recorded his note at page NSP-12 and 13 mentioning that "Mr. Karki Bhutia has petitioned for award of work at scheduled rate but when the lowest tenderers rate is 15.75% below awarding the work at scheduled rate to Shri Karki may invite audit objection in future. We may therefore, ask Mr. Karki to execute the work at a rate lower than the scheduled rate please." This note was marked Exhibit - 115 and his signature Exhibit -115 (a). The file was thereafter marked to accused No. 2, who on 4.2.1984 observed in view of the Panchayat recommendation award the work at scheduled rate to Shri Karki Bhutia." The witness also mentioned at page - 4, that the "four tenders were received and the rate of Shri K. B. Pradhan at 15.75% below was found to be lowest and the rate quoted by Shri Karki Bhutia was 5% above."

(h) With respect to Malbasey WSS, PW 2 has stated at page 15 of his statement that "On 6.12.1983 accused No. 4 -8 addressed a letter to accused No. 1 requesting that the work relating to Malbasey be awarded on negotiation to them. The Accused No. 1 marked the letter to Accused No. 2 who in turn marked the letter to DE, Water Supply on 8.12.1983 and thereafter I being the DE, Water Supply, recorded a note mentioning, "on file please"...". I have seen another application dated 18.1.11984 submitted by accused No. 4, 5 and 6 and one Ratna Bahadur Limbu requesting to accused No. 1 to award the work to Shri T. Tshering ...............". In this contract A-2 released the TDR of Shri B.S. Lama without any reason and awarded the work in favour of Shri R.K. Goyal. The lowest rates of Shri K.K. Pradhan at 4.51% below were ignored and a loss of Rs. 17,286/- has been caused to the State exchequer. PW2 has further stated at page - 16 that "there is No. record as to why the TDR of Shri B.S. Lama one of the tenderers who had quoted the second lowest rate at 3.55% below was ordered to be released. I endorsed the file to Under Secretary, Accounts. My endorsement is Exhibit 102. Thereafter on 4.2.1984 accused No. 2 examined the matter and recorded a note at NSP 11 mentioning "Shri K.K. Pradhan has works in hand for Mangalbaria WSS and Shri B.S. Lama has withdrawn his S.D. Shri T. Tshering has also withdrawn the tender and Shri C.B. Chewan has not undertaken any work with the Department. Hence, please find out whether Shri R. K. Goyal is prepared to execute the work at scheduled rate and if he does so issue work order.

27.1 Thus, it was submitted that the oral as well as documentary evidence of the prosecution witnesses highlighted above, clearly establish the fact that financial loss has been caused to the State Exchequer by awarding the questioned contracts to those other than the lowest tenderers. Shrinivas Agarwal, A11 in Zerung WSS, A.B. Gurung, A13 in Samdong WSS and N.T. Bhutia, A14 in Budhang Thangsing WSS and Sonam Wangdi, A15 in Patuk WSS have been awarded the contracts, when the lowest rates were of PW19, Tashi Wangdi Bhutia, PW17 Ratan Kumar Goyal and PW12, Dalu Ram Sarda respectively. By such action, financial loss has been caused to the State Exchequer and pecuniary advantage to the contractors/accused persons. The contract awarding authority was A2 and A1 was the Minister in charge. PW2 has clearly mentioned in his statement at Page - 21 that the principle of awarding the work to the lowest tenderer was not followed in any of the aforesaid schemes.

27.2 With respect to Upper Tintek WSS, Upper Raley Khasey WSS, Khamdong WSS and Malbasey WSS, the works have not been awarded to the lowest tenderers viz. Mr. G.D. Sharma, Mr. P.P. Agarwal, Mr. K.B. Pradhan and Mr. K.K. Pradhan respectively and, PW-3 has stated that due to this reason, loss of Rs. 40,388/-, Rs. 37,601/-, Rs. 17,980/- and Rs. 17,286/- respectively, have been caused to the State Exchequer. Work orders in these schemes have been ordered by A2 ignoring the lowest rates and in Upper Tintek, Upper Raley Khasey and Malbasey and the role of A1 quite clearly figures as per evidence on record.

27.3 Mr. Vaid urged that the acts of A1 and A2 come within the ambit of the offence of criminal misconduct as defined u/s 5(2) read with 5(1)(d) of the P.C. Act 1947 as they have abused their official positions as public servants and obtained pecuniary advantage in favour of the private persons. The case of M. Narayanan Nambiar Vs. State of Kerala, was referred to by the learned Special Public Prosecutor where it has been held that any benefit obtained by a public servant either for himself or for any other person by corrupt or illegal means or by otherwise abusing the position as a public servant falls within the mischief of criminal misconduct.

27.4 That when the Government is trading, it has to be fair and impartial as much as it expects from its citizens. The judgment of this Court in Writ Petition No. 19 of 1984 which has been upheld by the Hon''ble Supreme Court, clearly lays down that when tenders are floated, the work has to be awarded to the lowest tenderer. If there is preference clause in the tender, the preference can be given only to the similarly situated persons, otherwise the very purpose of floating the tender becomes meaningless.

27.5 It was further submitted that apart from the offence of criminal misconduct, the accused persons have also been charged for the offence of conspiracy u/s 120B of the Indian Penal Code and that direct evidence to prove such offence is rarely available and the Court has to draw the inferences from the proved facts. All the decisions to award the contracts to the tenderers other than the lowest, have been taken by A2 and there are recommendations of A1 in some schemes and there are circumstances to infer the commission of the offence of conspiracy. That the offence of conspiracy stand proved against A1, A2, A5 to A8 and A11, A13, A14 and A15 and against A1 and A2, the offence of criminal misconduct is clearly established by the evidence elaborately set out above.

27.6 With respect to the contentions of learned defence counsel that the I.O. in his deposition has made statements contradictory to the records, the learned Special Public Prosecutor sought to clarify that although the recommendations of engineers were not unanimous as set out in the charge-sheet in some of the schemes, it does not alter the fact that the contracts were not awarded to the lowest tenderers, which is the subject matter of charge as framed by the trial Court which stands proved against the accused persons and the alleged discrepancy is not such as to displace the entire prosecution case. That the principles of falsus unus jalsus omnibus does not apply to criminal trials. Reference was made in this regard to the case of Keshoram Bora Vs. State of Assam, where it has been held as follows:

...It is now well settled that the principle Falsus in uno falsus in omnibus does not apply to criminal trials and it is the duty of the court to disengage the truth from falsehood, to sift the grain from the chaff instead of taking an easy course of rejecting the prosecution case in its entirety merely on the basis of a few infirmities. ....

[emphasis supplied]

27.7 That the comparative statements, notings and recommendations of the Engineers and the work orders for awarding the work are themselves on the record based upon which the Court is required to sift the grain from chaff. PW2 who, as per the Ld. Public Prosecutor is the custodian of the records, has proved the documents and exhibited.

27.8 That the other contention of the defence counsel that Inspector, C.B.1. was not authorised to seize the records is incorrect in view of Section 5-A of Prevention of Corruption Act, 1947, which authorises Inspector of D.S.P.E. to conduct the investigation in a case under the Act.

27.9 On the point of want of sanction u/s 197 of the Code of Criminal Procedure, 1973, is concerned, Mr. Vaid submitted that it would be necessary only when the act is of a public servant in question has been performed in discharge of his official duty. It was argued that the awarding of the contracts come within the ambit of official duty, but entering into conspiracy and awarding contracts on exorbitant rates do not as has been rightly held by the trial Court. It was submitted that contrary to what had been submitted by Mr. D.K. Singh, Ld. Counsel for A2, in the case of P.K. Pradhan (supra), the Hon''ble Supreme Court has not held that in this case it was necessary to obtain sanction. Under the facts and circumstances, No. sanction u/s 197 of the Code of Criminal Procedure, 1973, was required for prosecuting Mr. P.K. Pradhan.

Therefore, considering the aforesaid situation and the oral arguments advanced, it was submitted that the offence u/s 120B of the Indian Penal Code read with Section 5(2) read with Section 5(1)(d) of the P.C. Act, 1947, against A1, A2, A5 to A8, A11, A13, A14 and A15 and the substantive offence against A1 u/s 5(1)(d) read with Section 5(2) stand proved against them and their appeals deserve to be dismissed.

In reply to the point raised by the learned Counsels for the Appellants as regards the I.O. being the complainant ought not to have investigated the case himself and, because of this the investigation would be under a cloud of suspicion as to its fairness, it was submitted that law did not prohibit the complainant taking up the investigations. Sections 154 to 157 of the Code of Criminal Procedure, 1973, do not contain such prohibitory provision and nothing contrary has been shown on behalf of the Appellants. It was submitted that this point has been set at rest by the decision of the Hon''ble Supreme Court in the case of State rep. by Inspector of Police, Vigilance and Anti-Corruption, Tiruchirapalli, Tamil Nadu Vs. V. Jayapaul, , wherein it has been held as follows:

We have No. hesitation in holding that the approach of the High Court is erroneous and its conclusion legally unsustainable. There is nothing in the provisions of the Code of Criminal Procedure which precluded the Appellant (Inspector of Police, Vigilance) from taking up the investigation. The fact that the said police officer prepared the FIR on the basis of the information received by him and registered the suspected crime does not, in our view, disqualify him from taking up the investigation of the cognizable offence. A suo motu move on the part of the police officer to investigate a cognizable offence impelled by the information received from some sources is not outside the purview of the provisions contained in Sections 154 to 157 of the Code or any other provisions of the Code. The scheme of Sections 154, 156 and 157 was clarified thus by Subba Rao, J. speaking for the Court in The State of Uttar Pradesh Vs. Bhagwant Kishore Joshi, (AIR p.223, para 8).

"Section 154 of the Code prescribes the mode of recording the information received orally or in writing by an officer in charge of a police station in respect of the commission of a cognizable offence. Section 156 thereof authorizes such an officer to investigate any cognizable offence prescribed therein. Though ordinarily investigation is undertaken on information received by a police officer, the receipt of information is not a condition precedent for investigation. Section 157 prescribes the procedure in the matter of such an investigation which can be initiated either on information or otherwise. It is clear from the said provisions that an officer in charge of a police station can start investigation either on information or otherwise."

In fact, neither the High Court found nor was any argument addressed to the effect that there is a statutory bar against the police officer who registered the FIR on the basis of the information received taking up the investigation.

[emphasis supplied]

As regards the non-compliance of the provision of Section 157 of the Code of Criminal Procedure, 1973, urged on behalf of the Appellants, it was submitted by Mr. Vaid that a copy of the FIR, Exhibit 153 dated 07-08-1984, had been endorsed to the District and Sessions Judge, Sikkim at Gangtok, as is clearly visible at the end of the letter which is substantial compliance of the provision. It is thus submitted that the point raised on behalf of the Appellant on this account had No. substance and deserves to be rejected.

Mr. Vaid strongly argued that although the impugned decisions of A2 appears to have taken in the files of the respective schemes, it cannot be said that the entire process was above board but was tainted with illegality and the decision quite arbitrary and discriminatory and, for the reasons already stated, falls within the ambit of Section 5 (1) (d) of the P.C. Act, 1947. It was submitted that in case of Prem Prakash Agarwal v. State of Sikkim and Ors. in Writ Petition No. 19 of 1984 reported in 1985 Sikkim Law Journal 92 referred to earlier pertaining to Rural Water Supply Scheme at Upper Raley and Khasey within Samdong Kambel Gram Panchayat in the East District of Sikkim, the decision to award the work in favour of one Nar Prasad Tamang (N.P. Tamang) in preference to Mr. Prem Prakash Agarwal, the lower bidder, was held to be arbitrary and unreasonable.

It was submitted that in view of the settled principle as laid down in the case of Karam Chand Ganga Prasad and Another Vs. Union of India (UOI) and Others, , the decision of a Civil Court is binding upon a Criminal Court.

Mr. Vaid placed a copy of the Order dated 23-09-1985 of the Hon''ble Supreme Court in Petition for Special Leave to Appeal (Civil) No. 4298 of 1985 in the matter of State of Sikkim & Anr. v. Prem Prakash Agarwal wherein it has been held as follows:

... The directions of the High Court is confirmed subject to the clarification that the Govt. will fix the liability on the person or person whosoever will be responsible for the losses, if any.

33.1 It was submitted that the 2 conditions laid down in the NIT was unfair and unreasonable. Reference in this regard was made to the case of Rashbihari Panda etc. Vs. State of Orissa, , wherein it has been held as under:

17... The right to make offers being open to a limited class of persons it effectively shut out all other persons carrying on trade in Kendu leaves and also new entrants into that business. It was ex facie discriminatory, and imposed unreasonable restrictions upon the right of persons other than existing contractors to carry on business. In our view, both the schemes evolved by the Government were violative of the fundamental right of the Petitioners under Article 19(1)(g) and Article 14 because the schemes gave rise to a monopoly in the trade in Kendu leaves to certain traders, and singled out other traders for discriminatory treatment.

The classification based on the circumstance that certain existing contractors had carried out their obligations in the previous year regularly and to the satisfaction of the Government is not based on any real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved i.e., effective execution of the monopoly in the public interest. Exclusion of all persons interested in the trade, who were not in the previous year licensees is ex facie arbitrary: it had No. direct relation to the object of preventing exploitation of pluckers and growers of Kendu leaves, nor had it any just or reasonable relation to the securing of the full benefit from the trade, to the State.

Validity of the law by which the State assumed the monopoly to trade in a given commodity has to be judged by the test whether the entire benefit arising there from is to ensure to the State, and the monopoly is not used as a cloak for conferring private benefit upon a limited class of persons. The scheme adopted by the Government first of offering to enter into contracts with certain named licensees, and later inviting tenders from licensees who had in the previous year carried out their contracts satisfactorily is liable to be adjudged void on the ground that it unreasonably excludes traders in Kendu leaves from carrying on their business. The scheme of selling Kendu leaves to selected purchasers or of accepting tenders only from a specified class of purchasers was not "integrally and essentially" connected with the creation of the monopoly and was not on the view taken by this Court in Akadasi Padhan''s case [(1963) Supp. 2 SCR 691] protected by Article 19(6)(ii): it had therefore to satisfy the requirement of reasonableness under the first part of Article 19(6). No. attempt was made to support the scheme on the ground that it imposed reasonable restrictions on the fundamental rights of the traders to carry on business in Kendu leaves. The High Court also did not consider whether the restrictions imposed upon persons excluded from the benefit of trading satisfied the test of reasonableness under the first part of Article 19(6). The High Court examined the problem from the angle whether the action of the State Government was vitiated on account of any oblique motive, and whether it was such as a prudent person carrying on business may adopt.

[emphasis supplied]

33.2 It was further submitted that the award of works at the rates agreed to by A1 and A2 were not reasonable and that the various notings, more particularly the Cabinet Decision, NIT Exhibit 2 and the award of work to the Appellants/contractors were all pre-arranged as a consequence of the meeting of their minds. It was submitted that in the facts and circumstances, the Appellants were rightly held to be guilty of the offences and sentenced by the learned trial Court. Reference in this regard was made to the case of Ghulam Din Buch etc. etc. Vs. State of Jammu and Kashmir, wherein it has been held as under:

Nothing further remains to be said to come to the conclusion that these Appellants were rightly found guilty of the charges, which qua them were commission of offences u/s 5(2) of the Act and Sections 120-B/109/116/119 Ranbir Penal Code. At this stage we say something about the submission made by Shri Jethmalani, who had appeared for two of the contractors namely Hafizullah and Farooq Ahmed Qurashi, that the charge having only mentioned about Section 5(2) was not quite explicit inasmuch as it did not spell out which particular misconduct specified in Sub-section (1) of Section 5 was being attributed to. The learned Counsel further submitted that of all the four types of misconducts taken care of by Sub-section (1) in its four clauses, it is the one mentioned in Clause (d) which could apply, which speaks of abuse of the position by a public servant by "corrupt or illegal means". The contention as to this clause was that No. corrupt or illegal means had been adopted by the public servants because the contract had been given following invitation to submit tenders which is a known and legal mode of giving contracts; it was in also not a corrupt means. There is No. force in this contention, as the undertaking given to the aforesaid two contractors that they would be allowed to carry poles at the lowest tendered rates followed by how the NIT was issued and what happened thereafter, there can be No. dispute that the public servants in question did abuse their position. It so deserves to be noted that Clause (d) does not speak only about "corrupt or illegal means" but also takes within its fold obtaining by public servant for himself or for any other person any pecuniary advantage "otherwise" as well. We, therefore, do not find any infirmity in the charges as framed.

[emphasis supplied]

33.3 Mr. Vaid also referred to the case of A. Wati AO Vs. State of Manipur, and submitted that in the present case the involvement of the Appellant in the conspiracy is apparent from the facts and materials which have been placed on record.

33.4 The case of State of Madhya Pradesh and Others Vs. Shri Ram Singh, was also referred to and emphasis was laid on the following:

It may be noticed at this stage that a three Judge Bench of this Court in H.N. Rishbud and Inder Singh Vs. The State of Delhi, had held that a defect or illegality in investigation, however, serious, has No. direct bearing on the competence or the procedure relating to cognizance or trial. Referring to the provisions of Sections 190, 193, 195 to 199 and 537 of the Code of Criminal Procedure (1898) in the context of an offence under the Prevention of Corruption Act, 1947, the Court held (Para 9 of AIR, Cri L.J):

A defect or illegality in investigation, however serious, has No. direct bearing on the competence or the procedure relating to cognizance or trial. No. doubt a police report which results from an investigation is provided in Section 190, Cr. P.C. as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190, Cr. P.C. is one out of a group of sections under the heading "Conditions requisite for initiation of proceedings." The language of this section is in marked contrast with that of the other sections of the group under the same heading, i.e., Sections 193 and 195 to 199.

....

34.On the question of appreciation of evidence, the law laid down by the Hon''ble Supreme Court in the case of Sucha Singh and Another Vs. State of Punjab, was relied upon by Mr. Vaid and the following passage was referred to:

... Stress was laid by the accused- Appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has No. application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that, it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. ...Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted with care. ...As observed by this Court in State of Rajasthan Vs. Smt. Kalki and Another, , normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party''s case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi and Ors. v. State of Bihar etc. ( 2002 (4) JT (SC) 186). Accusations have been clearly established against accused-Appellants in the case at hand. The Courts below have categorically indicated the distinguishing features in evidence so far as acquitted and convicted accused are concerned.

[emphasis supplied]

To the same effect, Mr. Vaid referred to the case of Rizan and Another Vs. State of Chhatisgarh, through The Chief Secretary, Govt. of Chhatisgarh, Raipur, Chhatisgarh, .

35.1 In so far as the issue with regard to the controversy of scheme No. XI is concerned, it was submitted that the matter has been looked into by the Hon''ble High Court in the case of Nar Bahadur Bhandari etc. Vs. State, etc., which is evident from the following:

On 27-2-1995, the learned trial Court observed : "Seen the written report filed by the prosecution stating that on verification by the I.O. the accused was found to be dead. Since the death is confirmed the case against him stands abated." Subsequently, an application dated 26-7-2002 was filed by accused No. 1-Shri N.B. Bhandari stating inter alia that Shri N.P. Bhandari had died on 17-7-1977 and praying for a direction to the I.O. to enquire as to the exact date, month and year of death of Shri N.P. Bhandari. Thereafter, reply was filed by Shri Vipin Kumar, Inspector, ACU (V) dated 5-10-2002 to the effect that the verification conducted by the I.O. had revealed that accused No. 16-Shri N.P. Bhandari had died sometime in July/August, 1977 and that he had neither submitted that tender nor executed the work nor received the payments and the proceedings against him also abated much earlier vide order dated 27-2-1995. It was further stated in the reply that verification had further revealed that actually Shri Nandmani Bhandari the real brother of late N.P. Bhandari "used his card of contractorship, forged his signature in the tender documents and other documents related to this scheme, by impersonating as N.P. Bhandari and cheated the department by getting the contract and receiving the payments. He also cheated the I.O. by impersonating before him as N.P. Bhandari," for which separate charge-sheet will be filed. ....

35.2 It was thus submitted that there was No. reasonableness in awarding the work to other bidders by ignoring the lowest tenderers. It was submitted that even assuming the preference clause contained in the NIT is to be accepted as valid, it has to be applied in a situation where all things remain equal and even amongst the local contractors'' it would not be permissible to select one who has bidded higher. It was, therefore, submitted that there was No. merit in the appeals filed by the Appellants and the impugned judgment of the learned trial Court deserves to be upheld.

Replying to the arguments placed by the learned Special Public Prosecutor, Mr. B.R. Pradhan, the learned Senior Advocate for A1, while re-emphasising his submissions placed earlier, submitted that the prosecution arguments were without any foundation, being dehors the evidence on record. In the first instance, there was No. evidence at all to establish that before registering the case, a preliminary inquiry had been conducted, except to state so in the charge sheets. Therefore, the mandatory pre-requisite condition not having been met, the entire charge sheet has to fail. That the inference that was sought to be drawn against the Appellants, more particularly A1 and, therefore, naturally A2, as regards the offence of conspiracy u/s 120B of the Indian Penal Code, read with Sections 5(1)(d) and 5 (2) of the Prevention of Corruption Act, 1947, were far fetched and conjectural. It was submitted that the case was concededly founded upon circumstantial evidence, but the prosecution has failed to establish and prove any of the circumstances against A1 or the other Appellants. The insertion of the preferential clause in the NIT considered as one of the circumstances against the Appellants, was an argument put forth for the first time in the appeal, and therefore, was an after thought. In any event, this circumstance was never put to the Appellants while recording their statements u/s 313 Code of Criminal Procedure Relying upon paragraph 53 of the case of Ghulam Din Buch v. State of J&K (supra), it was submitted that as the circumstance was considered as one of the pivots of the prosecution case against the Appellants, it was mandatory in law for the Appellants to have been provided with opportunities to explain. This having not done, it would not be permissible for the prosecution to rely upon the circumstance.

As per Mr. Pradhan, the entire case of the prosecution was based upon falsehood and is a unique one where from the evidence it is clear that the Investigating Officers, PWs 20 and 21, have turned hostile in Court by admitting that the basis of the charge that the unanimity of the recommendations made by the JE, DE and the Chief Engineer to award works in question in favour of the lowest bidders was overruled by A1 and A2 was incorrect and false. It was also conceded that the decisions in awarding the works was in discharge of official duties by following the official procedure and based upon inputs provided by their subordinates in the concerned files. That reliance placed by the prosecution in the case of Prem Prakash Goyal (supra) was misplaced, as it was a decision passed by this Court in exercise of its writ jurisdiction. The Writ Petition had been dismissed on account of the delay on the part of the Petitioner to take immediate steps and for having failed to implead Nar Prasad Tamang as party to the writ petition. No. doubt, in paragraph 25, this Court had directed the State Government to fix liability on those who had made the mistake for deliberate action, but such decision cannot be treated as a direction in launching criminal prosecution. The Hon''ble Supreme Court, in the SLP being Petition for Special Leave to Appeal (Civil No. 4298 of 1985) vide order dated 23.09.1985, clarified that the Government will fix liability on the person or persons who-soever will be responsible for the loss, if any. Therefore, the responsibilities were to be fixed only if losses were caused to the State. It has been well established from the depositions of the prosecution witnesses that No. losses were incurred in the works and had rather saved in most of the works. In any case, reliance placed by Mr. Vaid on the decision of Karam Chand Ganga Prasad (supra) is erroneous, in as much as, it has been overruled by the decision of Kishan Singh (D) through LRs. Vs. Gurpal Singh and Others, , in which it has been inter alia held as follows: -

In Karam Chand Ganga Prasad v. Union of India this Court, while dealing with the same issue, held as under: (SCCp. 695, para 4)

"4. ...... It is well-established principle of law that the decisions of the civil courts are binding on the criminal courts. The converse is not true."

"17. In Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.) this Court considered all the earlier judgments on the issue and held that while deciding the case in Karam Chand, this Court failed to take note of the Constitution Bench judgment in M.S. Sheriff and, therefore, it remains per incuriam and does not lay down the correct law. A similar view has been reiterated by this Court in Vishnu Dutt Sharma v. Daya Sapra, wherein it has been held by this Court that the decision in Karam Chand stood overruled in K.G. Premshanker."

"18. Thus, in view of the above, the law on the issue stands crystallied to the effect that the findings of fact recorded by the civil court do not have any bearing so far as the criminal case is concerned and vice versa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject-matter and both the cases have to be decided on the basis of the evidence adduced therein. However, there may be cases where the provisions of Sections 41 to 43 of the Evidence Act, 1872, dealing with the relevance of previous judgments in subsequent cases may be taken into consideration.

[emphasis supplied]

It was submitted that while examining the witnesses, the prosecution instead of placing the entire sequence of various notes of the authorities in the contract files, chose to place only selected and isolated portions, thereby providing incomplete facts for appreciation of the Court, compelling the Appellants to bring on record the entirety of the files for consideration. It was submitted that reliance upon the case of Ghulam Din Buch (supra) in support of the prosecution, assertion of the conspiracy having been provided against the Appellants was misplaced, in as much as, the decision was rendered on the facts of the case in lis before the Courts which are widely different from the case at hand. Specific reference was made in paragraph 15 to 22 of that case by Mr. Pradhan to illustrate his submission on this account. Mr. Pradhan asserted that so far as the law laid down in other decisions cited by Mr. Vaid is concerned, they are well settled, but have to be applied in the facts and circumstances of each case. In the present case, this ratio would not be applicable, the facts being quite different. The prosecution has failed to establish the offence u/s 120B of the Indian Penal Code read with Section 5(1)(d) and 5(2) of the Prevention of Corruption Act, 1947, against the Appellants A1, A2 and the Appellant contractors and the substantive offence u/s 5 (1) (d) of the Prevention of Corruption Act, 1947 for commission of criminal misconduct against A1. It was submitted that the decisions having been taken by A1 in exercise of his official duties without any dishonest intentions, the impugned judgment had been wrongly passed, apart from the fact that the prosecution had completely failed to bring home the charge against him.

I have carefully considered the records of the case, the evidence both oral and documentary and the rival submissions made on behalf of the parties. The substance of the arguments placed by Mr. Vaid, learned Special Public Prosecutor, is that the comparative statements of the bids in all the works clearly show that the lowest bidder has been ignored in preference to the ones bidding higher, which clearly establish the infraction committed by the Appellants, more particularly, A1 and A2, thereby incurring losses to the Public Exchequer to the extent of the amounts stated by the PWs 2 and 3. That conspiracy has to be inferred from the proved circumstances as there can be No. direct evidence of conspiracy and that in the present case, as the circumstances clearly indicate that there was a meeting of the minds of A1, A2 and other accused persons, they fall within the mischief of Sections 5(1)(d) read with 5(2) of the P.C. Act, 1947, and 120B of the Indian Penal Code.

Section 5(1)(d) of the P.C. Act, 1947, may be read as follows:

Criminal misconduct in discharge of official duty.-(1) ....

(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself, or for any other person any valuable thing or pecuniary advantage, or

....

This provision has been analysed in most lucid terms in the very case of M. Narayanan Nambiar (supra) relied upon on behalf of the prosecution, the material portions of which are reproduced below:

....................... As it is a socially useful measure conceived in public interest, it should be liberally construed so as to bring about the desired object i.e. to prevent corruption among public servants and to prevent harassment of the honest among them.

A decision of the Judicial Committee in Dyke v. Elliot, The Gauntlet, 1872-4 AC 184 cited by the learned Counsel as an aid for construction neatly states the principle and therefore may be extracted: Lord Justice James speaking for the Board observes at p. 191:

"No doubt all penal Statutes are to be construed strictly, that is to say, the Court must see that the thing charged as an offence is within the plain meaning of the words used, and must not strain the words on any notion that there has been a slip, that there has been a casus omissus, that the thing is so clearly within the mischief that it must have been intended to be included and would have been included if thought of. On the other hand, the person charged has a right to say that the thing charged, although within the words, is not within the spirit of the enactment. But where the thing is brought within the words and within the spirit, there a penal enactment to be construed, like any other instrument, according to the fair commonsense meaning of the language used, and the Court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument."

In our view this passage, if we may say so, restates the rule of construction of a penal provision from a correct perspective. As we will presently show the case of the Appellant on the facts found clearly falls not only within the words of Clause (d) but also within its spirit. Indeed if his argument be accepted not only we will be doing violence to the language but also to the spirit of the enactment. First taking the phraseology used in the clause, the case of a public servant causing wrongful loss to the Government be benefiting a third party squarely falls within it. Let us look at the clause "by otherwise abusing the position of a public servant", for the argument mainly turns upon the said clause. The phraseology is very comprehensive. It covers acts done "otherwise" than by corrupt or illegal means by an officer by abusing his position. The gist of the offence under this clause is that a public officer abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage. "Abuse" means mis-use i.e. using his position for something for which it is not intended. That abuse may be by corrupt or illegal means or otherwise than those means. The word ''otherwise'' has wide connotation and if No. limitation is placed on it, the words ''corrupt'', ''illegal'', and ''otherwise'' mentioned in the clause become surplus age, for on that construction every abuse of position is gathered by the clause. So some limitation will have to be put on that word and that limitation is that it takes colour from the preceding words along with which it appears in the clause, that is to say something savouring of dishonest act on his part. The contention of the learned Counsel that if the clause is widely construed even a recommendation made by a public servant for securing a job for another may come within the clause and that could not have been the intention of the Legislature. But in our view such innocuous acts will not be covered by the said clause. The juxtaposition of the word ''otherwise'' with the words "corrupt or illegal means" and the dishonesty implicit in the word "abuse" indicate the necessity for a dishonest intention on his part to bring him within the meaning of the clause. Whether he abused his position or not depends upon the facts of each case; nor can the word ''obtains'' be sought in aid to limit the express words of the section. ''Obtain'' means acquire or get. If a corrupt officer by the said means obtains a valuable thing or a pecuniary advantage, he can certainly be said to obtain the said thing or a pecuniary advantage; but it is said that in Clauses (a) & (c) the same word is used and in the context of those clauses it can only mean getting from a third party other than the Government and therefore the same meaning must be given to the said word in Clause (d). ''Obtains'' in Clause (a) & (b) in the context of those provisions may mean taking a bribe from a third party, but there is No. reason why the same meaning shall be given to that word used in a different context when that word is comprehensive enough to fit in the scheme of that provision. Nor can we agree that as dishonest misappropriation has been provided for in Clause (c), the other cases of wrongful loss caused to the Government by the deceit practised by a public officer should fall outside the section. There is No. reason why when a comprehensive statute was passed to prevent corruption, this particular category of corruption should have been excluded there from because the consequences of such acts are equally harmful to the public as acts of bribery. On a plain reading of the express words used in the clause, we have No. doubt that every benefit obtained by a public servant for himself, or for any other person, by abusing his position as a public servant falls within the mischief of the said clause.

[emphasis supplied]

It, therefore, follows from the above that although the phraseology "by otherwise abusing the position of a public servant" is very comprehensive, certain limitation has to be placed on it and has to be given it a colour from the preceding words along with which it appears in the clause, that is to say, something savouring of dishonest act on his part. Dishonesty is implicit in the word "abuse" which indicates the necessity for a dishonest intention on his part to bring him within the ambit of the clause.

In the case of D. Krishnamurthy (supra) it has been held that-

...The language of Section 5 (1) (d) of the Prevention of Corruption Act, 1947 is clear and unambiguous in the sense that if a public servant by whatever means, be they corrupt or illegal, obtains for himself or any other person any valuable thing or pecuniary advantage must, in any event, for doing so, abuse his position as a public servant. (emphasis supplied) If such abuse of his position as a public servant, is lacking in the prosecution case, and there is evidence barely to the effect, that he has by some means, be they illegal or corrupt, obtained for himself or any other person any valuable thing or pecuniary advantage, that by itself would not be enough. It thus appears to us that instantly the charge against the Respondent was rightly quashed by the High Court. There is No. merit in this appeal which is ordered to be dismissed.

[emphasis supplied]

43.1 In other words, as per the ratio laid down in the above case, the essential requirement of the provision is ''abuse'' of his position by a public servant. If this is lacking, the mere fact that he has by some means obtained for himself or any other persons any valuable thing or pecuniary advantage, would by itself not be sufficient to bind him within the purview of Section 5(1)(d) of the P.C. Act, 1947.

In order to arrive at a finding as to whether (i) A1 and A2 have abused their positions as public servants in the present case; (ii) as to whether there was any corrupt or illegal means practiced by them to obtain for themselves or for the other Appellants, namely, A5, A6, A7, A8, A11, A13, A14 and A15; and (iii) whether there was any dishonesty on their parts, it would be necessary firstly to go through the files of the respective schemes and examine and consider the deliberations of the various authorities contained in those files. For clarity and convenience, they are taken up scheme-wise hereunder:

Rural Water Supply Scheme at Malbasey under Malbasey Gram Panchayat in West District.

The comparative statement, Exhibit 95, of the bidders reads as under:

Comparative Statement for the Implementation of Rural Water Supply Scheme at Malbasey within Malbasey Gram Panchayat (Unit No. 38) in the West District.

Date of Tender: 18.1.84

Sl. No.

Name of Tender

Rate Quoted

1.

Mr. K.K. Pradhan

4.51% Below Lowest

2.

Mr. R.K. Goel

5.00% Above

3.

Mr. T. Tshering

5.00% Above

4.

Mr. C.B. Chewan

2.5% above

5.

Mr. B.S. Lama

3.55% Below

The relevant proceedings of the notes are as follows:

The Govt has given the administrative approval for implementation of R.W.S.S. at Malbasey at an estimated cost of Rs. 995,050/- and civil work DE W/S of this scheme is Rs. 382412/- The work was put to tender on 18-1-1984 and five tenders were received out of which Shri K.K. Pradhan quoted rate 4.51; Below the schedule is found lowest and may kindly be seen the application received vide flag ''A''. File submitted for favor of issue of work order to the lowest tender. If approved we may work out financial implementation against the lowest tender. Sd/-27/1/84 Five tenders have been received for the work w/s scheme at Malbasey within Malbasey Gram Panchayat in w. Dist. The tenders offered here is comparatively narrow in the margin different ie. Ranging from 4.51% Below lowest to 5% above highest. The lowest has been quoted by Mr. K. K. Pradhan of Soreng. Mr. Pradhan is presently executing (i) UNICEF aided Mangalbarey w/s Scheme & (ii) Miyong w/s scheme. 2nd lowest is that of Mr. B.S. Lama of Soreng @ 3.55% below.

This particular tender has produced one

ESD ____

C/E

contractor of the village itself. Mr. C.B. Chewan (address Malbasey block) has quoted @ 2.5; above there is also another contender viz. T.

Tshering of Kaluk who has quoted at 5% above. It is to pointed out here that an application was made by the Panchayat to the Hon''ble C.M. for consideration of their nomination ie. Work to be given on Negotiation to the contractors of their village. Mr. T. Tshering, a competitor in this tender also insists that a recommendation by HCM of their petition has been forwarded to the Deptt. However one whole day''s search revealed nothing in the w/s Div.

I believe the party who brought the application/petition did not submit the same in the Division office.

The work if it is to be awarded to the local man by virtue of our N.I.T. clause of preference, then there exists No. comment from the Div. as there''s No. record of Mr. C. B. chewan having executed work in the w/s section since 1982. Whereas M. t. Tshering who claims to be of surrounding area has successfully completed Hindam Legship w/s scheme during 1983, pl.

Submitted

Sd/-28/1/84

Ref above, the applications vide flag (A) & (B) may

kindly seen for awarding the work to a contractor.

Sd/-28/1/84

May release the T.D.R. of Sri B.S. Lama.

Sd/-2/2/84

Sd/-2/2/84

Secretary

D.E.(w.s)

Us(ac)

K.K. Pradhan has work in hand for Mangalbarey W.S.S. and B.S. Lama has withdrawn his S.D. t. Shring has also withdrawn the tender and C.B. Chewan has not undertaken any work with the Deptt.

Hence pl. find out whether R. K. Goel is prepared to execute the work at Sch. Rate and if he does issue W/O.

C.E./

Us a/c

C.E.

ESD

DE(w/s)

JE I

Sd/-4/2

Please examine.

Sd/-4/2/84 R. K. Goel, Contractor is here. He is prepared to execute the contraction of Malbasey, Water Supply Scheme at the Scheduled rate please.

Sd/-4/2/84 For n.a. pl.

Sd/-4/2 Pl. issue the w.o. as desired above.

Sd/-6/2/84

Sd/-6/2/84

We find from the correspondence pages that there are two representations submitted to A1 as the Chief Minister by the public of Malbasey area. The first one dated 06-12-1983, Exhibit 96, which is submitted to the Complaint Cell of the Chief Minister''s Secretariat requesting for grant of Water Supply Scheme work to the contractors of the local area on negotiation, which A1 has marked to the Secretary, RDD, A2. Second one dated 18-01-1984, Exhibit 92, has sought for the work to be awarded to one T. Tshering which has been endorsed to C.E., R.D.D., by A1 with remarks "please put up after tender". Therefore, going by the allegations of the prosecution, Tashi Tshering ought to have been awarded with the work but it was awarded to R.K. Goel on 06-02-1984. It is evident from the note of DE (W/S) at page 11 of the note sheet which, is much after the representation dated 04-02-1984, that the bid of K. K. Pradhan who was the lowest tenderer was not accepted as he had similar work at hand at Mangalabarey. B. S. Tamang and Tashi Tshering the other lower tenderers had withdrawn their security deposits and the bid of C. B. Chewan was not accepted as he had not undertaken any work of the department. R.K. Goel although was not from the area was chosen but, at par the schedule rates by reducing it from 5% above the estimated value bidded, by ignoring K.K. Pradhan, a local contractor who had offered the lowest rates for reasons that were extraneous to the tender condtions.

The persons charged in the above work are A4 (since deceased and charge abated against him), A5, A6, A7 and A8, who are the Appellants in Criminal Appeal No. 12 of 2008 respectively. The allegation against them, is that, T. Tshering, the third lowest contractor, had withdrawn his offer after being paid a sum of Rs. 5,000/- by them, and that this amount had been handed over to A6 by R.K. Goyal and that the work had been awarded to R.K. Goyal at their instance. That although R. K. Goyal had promised to pay Rs. 50,000/- to these Appellants, but paid only Rs. 30,000/-besides the amount of Rs. 5,000/- paid to T. Tshering. However, we find that the prosecution has failed to lead any evidence on this and No. evidence is found available to substantiate such allegations.

Some of the relevant statements by the above witnesses and Ors. are reproduced below:

Mr. K.K. Rai, DE, PW 2 Cross-examined by the accused No. 1 through counsel "...

It is true that General Directions and Conditions of contract for works on item persentage (sic) Tender General Rules and conditions issued by the Department were applicable to all 15 Schemes.

I feel Clause 2 and Rule 6 of general direction and conditions of contracts are within the parameter of law having been framed by the competent authority and approved by the Government. Superior Officers are not bound by the recommendation of Junior Officers. It is true that there was a cell known as ''Chief Minister''s Complaint and Grievances Cell'' at the Chief Minister''s Secretariat at Gangtok.

It is obvious that the said grievances cell was meant for receiving applications, complaints, representations and grievances of any kind in respect of any matters from the general public addressed to the Hon''ble C.M.

... It is true while examining the tenders the concerned officers have to examine the feasibility and workability of the tenders offered by the Contractors. ..."

[emphasis supplied]

... It is true that the estimate report contained a paragraph which states, "The work after completion will be entrusted with the concerned Block Panchayat for its maintainence (sic) with the help of the Government."

....

It is true that in RWSS relating to Malbasay, Upper Ralay Khesay, Jerung, Sadam, Budang Thangsing within Khamdong, and Singhyang Gram Panchayat Units I had not recommended awarding the work to the lowest tenderers.

..."

Further Cross-examination on S.A. by the accused No. 1....

"It is correct that as per my marking in pencil in Ext.95 Shri C.B. Chawan was the only contractor from Malbasey where work was to be executed. It is true that I cannot identify the signatures of the signatories of Ext.96. It is true that the Ext.96 was forwarded by the accused No. 1 without any orders or directions. It is true that Ext.96 was seen by me also. It is correct that Ext.96 bears the stamp of the complaint cell Chief Minister''s Secretary, Govt. of Sikkim and also bears RR No. 265 dated 8.12.1983. It is correct that Ext.96 also bears the stamp of Rural Development Deptt. Govt. of Sikkim with BR No. 816 and dated 8.12.1983. It is a true that vide Ext.96 the signatories have assured to execute the work honestly, timely if the same is awarded to them. It is correct that Ext.96 was submitted to the complaint Cell of Chief Ministers Secretary in normal process. It is true that I cannot identify the signatures of the signatories and the handwriting of the person who wrote the said ext.97. It is correct that Ext.97 does not contain any order or direction of the accused No. 1 to award the contract work. It is correct that Ext.97 never reached the table of accused No. 1. It is correct that in Ext.98 in the notings of J.E. Shri K.P. Pothan he did not point out the fact that Shri C. B. Chawan was the only contractor from Malbasey where the RWSS work was to be executed. It is correct that in his noting Ext.98 Junior Engineer Shri K.P. Pothan did not point out the fact that the lowest tenderer Shri K.K. Pradhan was at the time executing UNICEF aided Mangal Barey Water Supply Scheme and Meyong Water Supply Scheme. It is correct that in this project also approval was sought for the estimated cost of Rs. 9,95,050/- and the same amount was sanctioned and therefore, there was No. extra financial burden in the implementation of the Water Supply scheme. It is correct that in my noting Ext.99 at NSP.9 and 10 I had pointed out the fact that the lowest rate has been quoted by Mr. K.K. Pradhan of Soreng but he was at that time executing UNICEF aided Mangal Barey Water Supply Scheme and Meyong Water Supply Scheme.

It is correct that I did not recommend the lowest tenderer Shri K.K. Pradhan for the award of work. Infact (sic) my noting is a plain statement of facts and I did not recommend anyone. It is correct that keeping in mind the preference clause injected in NIT I had pointed out that the particular tender has produced one contender of the village itself which Mr. C.B. Chawan addressed Malbasey block and he has quoted 2.5% above. ....................................T.D.R. stands for Temporary Deposit receipt. It is correct that vide his noting Ext.100 the accused No. 2 directed me to release the TDR of Shri B.S. Lama. It is correct that file was marked to me for the release of TDR of Shri B.S. Lama I in turn marked the same to the u/s ecretary, Accounts. It is correct that Ext.103 shows that the TDR was withdrawn. It is correct that withdrawal of TDR indicates that Shri B. S. Lama had withdrawn from the tender competition. It is true that since TDR was withdrawn voluntarily Shri B.S. Lama did not make any complaint. It is correct that the reason given by accused No. 2 in Ext.103 that Shri K.K. Pradhan has work in hand for Mangalbarey Water Supply Scheme is the same reason given by me in the first paragraph of my noting Ext.99. It is also true that the reason given by accused No. 2 in his noting Ext. 103 as Shri C.B. Chawan has not undertaken any work with the department is the same reason as given by me in the last paragraph of my noting Ext.99. It is correct that this file was never put up to the accused No. 1 for award of work in favour of any contractor. It is correct that there is nothing to show that accused No. 1 had recommended the award of work in favour of Shri R.K. Goyal.

..."

[emphasis supplied]

Further Cross-examination by accused No. 2 through learned Counsel

"It is true that I find from the note of the J.E Ext.98 that he has not recommended the lowest. It is true that the C.E. vide Ext.101 has also not recommended the lowest and I find that I have also not recommended the lowest. It would be incorrect or false to say that the J.E and D.E were unanimous in their recommendation of the lowest tenderer. It is true that the T.D.R as a general rule is always in the name of the depositer (sic) and the depositers (sic) name will appear there on.

It is true that the T.D.R may be withdrawn by the depositer (sic) at his pleasure before finalization of the tender process. On perusal of the note the the (sic) then Secretary accused No. 2 at NSP.11 dated 4.2.1984 Ext.103 I find that the secretary has given reasons for the award of work to Shri R.K.Goyal. Wherein he has stated that - Please find out whether R.K. Goyal is prepared to execute the work at schedule rate and if he does issue work order. I find from the scheme file that the concerned officer confirm the willingness of Shri R.K. Goyal contractor to execute the work at schedule rate. Thereafter, the file was processed by different officials of the department and ultimately the work order was issued.

...."

[emphasis supplied]

Mr. K.P. Pothen, JE, PW 3 Cross-examined by the learned counsel for the accused No. 1 on s.a. ...

... It is true that in R.W.S. Schemes of Malbasey, Upper Raley Khasey, Zerung, Sadam, Budang-Thangshing within Khamdong and singyang the Divisional Engineer Shri K.K. Rai has not recommended the award of work to the lowest tenderer. It is true that R.W.S. Schemes of Zerung, Bering, Samdong, Sadam, Patuk, BudangThangshing, Singyang I have not recommended award of work to the lowest tenderer.....

[emphasis supplied]

Cross-examined by the learned counsel for the accused No. 1 on S.A.

"It is true that I sought financial sanction of Rs. 9,95,050/- against the administrative approved amount of Rs. 9,95,050/- for the implementation of Malbasey RWSS. It is true nowhere in the file nor in my notings I pointed out any loss suffered or likely to be suffered by awarding the work to Mr. R.K. Goyal. ...It is true for the first time and that too in this Hon''ble Court in my examination-in-chief I depose that by not awarding the work to the lowest tenderer as per the recommendation of the engineer a loss of Rs. 17,246/- was caused to the state exchequer in Malbasey Scheme. It is true that in my notings marked Exbt. 98 I did not highlight the fact that C.B. Chauhan was the only tenderer from the village where the RWSS work was to be implemented. I do not know whether Kaluk is closer to Samdong than Malbasey.....

[emphasis supplied]

Mr. R.K. Goel, PW16

Since the year 1965-66 I have been doing contract work. Since 1980 I am enlisted as Class I A contractor with the SPWD. I have executed the contracts of RDD, Sikkim also. I know accused Nos. 4 to 8 who are residents of Malbasey, Soreng. I have seen tender form alongwith the tender document for the water supply scheme at Malbasey in which I have quoted my rate as 5% above and submitted the tender. Tender form is marked Exbt.146 under my signatures Exbt. 146 (a) to (x). 18.1.84 was the date of opening of the tender and I was present when the tenders were opened. Accused Nos. 4 to 8 were not present at the time when the tenders were opened. (Accused Nos. 4 to 8 had come to me before the opening of the tenders and had told me to put the tender and that if the work is awarded to me they would help me in executing the work as they had enough of materials like sand, stone and timber. I do not remember as to when the accused Nos. 4 to 8 met me after opening of the tender. ...I was asked by the Department to execute the work at schedule rate to which I agreed.

[emphasis supplied]

Cross-examined by the learned Special P.P.

"It is not true that the Malbasey Water Supply Scheme contract work was awarded to me by manipulation of accused Nos. 4 to 8. It is not a fact that accused Nos. 4 to 8 had approached me during December 1983 at Jorethang and informed that tenders for construction of Rural Water Supply Scheme at Malbasey are going to be called by the RDD shortly and they were very much interested in getting the said contract and also informed that they had already contacted accused No. 1 who belongs to their village to award the said work to them and also informed that accused No. 1 had told them that they were very small contractors and the RDD will not be in a position to award the said work to them as the cost of the construction of the said scheme was higher and contractor of higher category are eligible to submit the tenders for the said water supply scheme....."

[emphasis supplied]

Cross-examined by the accused No. 1 through learned Counsel "

It is true that infact accused Nos. 4 to 8 has suggested that if I get the work they can sell the materials which were excess and were lying with them. It is true that besides this understanding I had No. other connection with accused Nos. 4 to 8 regarding the water supply scheme at Malbasey for which I submitted my tender. It is true that after the contract work was awarded to me they supplied their leftover materials to me.(They meaning accused Nos. 4 to 8). It is true that Exbt. Marked 147 (c) and Exbt. 147 (b) relate to payment against the supply of materials by accused Nos. 4 to 8.

[emphasis supplied]

Mr. v. P. Chaudhary, I.O., PW20

Cross-examined by accused No. 1 through learned Counsel

... I do not know whether there was any cell called Chief Minister''s Complaint and Grievances Cell at the Chief Minister''s Secretariat at Gangtok although I know that such cells exist in all States. ....

... I have No. knowledge to which authority the RWSS Schemes was going to be handed over after the completion for its future maintenance. It is true that the Divisional Engineer Shri. K.K. Rai (PW 2) has not recommended awarding of work to the lowest tenderer in respect of Malbasey RWSS.

... It is true that the allegation made by me in the charge sheet relating to RWSS Malbasey that K.K. Rai (PW 2) had recommended for awarding the work to the lowest tenderer Shri K.K. Pradhan is not correct....."

[emphasis supplied]

Mr. Ganesh Verma, I.O., PW21

Cross-examined by accused No. 2

"I find from the note of the Secretary dated 4.2.84 at c.p.11 exbt.103 wherein he has given reason for award of the work. It is true that the D.E. vide his note dated 28.1.84 has suggested the name of Mr. T. Tshering who as per comparative statement is the highest being 5; above.

[emphasis supplied]

49.A curious feature of this work, therefore, is that, A5, A6, A7 and A8 have been charge-sheeted on the allegation that they are the actual beneficiaries of the work having manipulated the work in favour of R.K. Goyal in the manner stated above, an arrangement which was allegedly the creation of A1 and A2. Surprisingly, R.K. Goyal instead of being arrayed as an accused has been made a prosecution witness (PW16) in the case. The evidence that has emerged from the statements of PW2, PW3 and PW16, R. K. Goyal, clearly indicates that the allegation has No. substance. Clearly, therefore, these accused persons have been implicated in the case for No. reason and have been kept under a cloud for more than 26 years.

50.On perusal of the records of the learned trial Court, we find that the question as to whether R.K. Goyal ought to be made an accused had been raised by Mr. D.K. Singh, learned Advocate for A2, as is revealed from the order dated 28.1.2002 of the trial Court, which had been heard and disposed vide order dated 19.3.2002, whereby it has been held that -"99.

19.3.02 ....

Thus in view of the legal position, the question whether PW.Sri Goyal should be impleaded as an accused person, shall be considered at appropriate stage in accordance with law. Hence, in view of the above question whether there is material on record on the basis of which this Court can reasonably conclude that PW.11 Sri R. K. Goyal is in any manner connected to the present case need not detain us for the present.

Now for consideration of charge.

To: 24, 25 and 26, April 02

Sd/-

Special Judge,PC Act

51.However, we find that this issue was never taken up thereafter and even while finally disposing of the matter, the learned trial Court has not considered this aspect at all and has completely overlooked these vital features, as the impugned judgment is blissfully silent on them. A5 to A8 who are Appellants in Criminal Appeal No. 12 of 2008, therefore deserve acquittal.

Rural Water Supply Scheme at Zerung within Berfung, Zerung Gram Panchayat in South District.

52.From the comparative statement, Exhibit 60, altogether 6 persons had bidded, the details of which are as under:

Comparative Statement for the Implementation of Rural Water Supply Scheme at Zerung within Berfung Zerung Gram Panchayat (Unit No. 7) in South District:

Date of Tender: 18.1.84

Sl. No.

Name of Tender

Rate Quoted

1.

Mr. Arap Lama

At par Scheduled Rate

2.

Mr. Suraj Kr. Khartam

1.00% Below

3.

Mr. Sriniwas Agarwal

9.51% Below

4.

Mr. T. Tshering

1.00% Below

5.

Mr. Tashi Wangdi Bhutia

15.00% Below Lowest

6.

Mr. Rameshwarlall Kandoi

12.00% Below

52.1 Going by the above, Tashi Wangdi Bhutia ought to have been awarded with the work, but he was not and admittedly, Sriniwas Agarwal who was the third lowest was chosen. The reason for such action may be found out from the note sheets contained in file, the relevant portions of which are reproduced below:

Page No. 8

"The Govt has given the administrative approval for implementation of R.W.S.S. at Zerung at an estimated cost of Rs. 9,28,040/- and civil work is Rs. 269885.

DE W/S

Page No. 9

ESD ____

C.E.

The work was put to tender at on 18-1-1984 and six tenders were received out of which Shri Tashi Wangdi Bhutia quoted rate 15% below the schedule is found lowest May kindly be seen the application vide flag ''A''. File submitted for favour of orders pl.

Sd/-27/1/84

Tender opened on 18th Jan 84 unfolded six number of tenders for the work w/s scheme at Zerung within Barfung Zerung Gram Panchayat. Three lowest quotes for this work as under:

1) Tashi Wangdi Bhutia of Rabongla - 15% Below 2) Rameshwarlall Kandoi of Gangtok - 12% Below 3) Sriniwas Agarwala of Jorethang - 9.51% Below Among the six competitors, however, there is one contractor belonging to the village Shri Suraj Kr. Khartam, of Barfung has tendered his rate at 1% Below.

An Application requesting for preference plus Panchayat''s selection in his favour is also in the file flagged ''A'' should the Deptt. Take into consideration the preference clause injected into the NIT then Mr. Khartam has in his favour the experience. There is No. adverse assertion recorded against him.

The civil works put to tender amounts to Rs. 2,69,885/- Lowest quotation of 15% below means savings, to the Govt., of Rs. 40,483/- 1% below would be Rs. 2699 i.e. different of Rs. 37,784 between 15% below (Lowest) and that of Mr.

Khartam, a localite.

Submitted Sd/-28/1/84

Page No. 10

Ref prepage the lowest tender of Mr. Tashi Wangdi

Bhutia may kindly accepted.

Sd/-30/1/84

In view of x at prepage and with a view to give more responsibility to the Local Body not only during implementation but maintenance thereafter the rate tendered by Sri Khartam is accepted and w/o may be issued.

Sd/-31/1/84 Sd/-31/1/84

Sd/-31/1/84 Pl. process w.o.

Sd/-2/2/84 Pl. fair w.o.

Sd/-3/2/84

Page No. 11 Faired pl.

Mr. Pothen

Secretary

C.E usA/c Sd/-31/1 ESD DE(w/s)

RK/JE I

Mr. ____

Sd/-3/2/84

As per pre page order work order has been

DE(w/s)

Dspt.

prepared in favour of Shri Suraj Kumar Khartam and submitted for favour of signature pl.

Sd/-3/2/84 Pl. issue and place file to ESD.

Sd/-3/2/84

91

E.S.S.

C.E.

Page No. 12

Issued vide No. 114/Rdd on 3.2.84 and submitted the file for information please.

Sd/-3/2/84 Issued the letters to CE-cum-Secy. (Roads) Gangtok. Vide memo No. 4096/RDD on 3rd Feb 84.

File submitted to CE with W.T. Message for n.a.

pls.

Sd/-3/2/84

Please see action taken vide CP at last two pages. We may await reply from SPWD.

Sd/-4/1/84 To pl. keep it in abeyance till further instruction.

Sd/-4/1

Sd/-6/2

Mr. Suraj Kumar Khartam has brought all documents supporting his enlistment as Class II(A) contractor. He has with him documents of registration both under S.P.W.D. and G.M.C. In view of this we shall have to send W.T. message to A.E. (Namchi) to commence the work pl. Mr.

Khartam has been instructed to produce his papers in person pl.

Sd/-13/2/84 Page No. 13

ESD

DE(w/s)

RK

ESD

Shri S.K. Khartam has brought the documents of registration etc. personally. He has been directed to submit the same for kind perusal of CE also.

Submitted for kind information of further advice pl.

CE Sd/-13/2

92

A doubt was raised as to the authority of the attested copy of form of identity submitted by Mr.

S. K. Khartam of his registration as Class II A Contractor of S.P.W.D. As a result, although the W.O. was issued formal handing over of site for construction was kept in abeyance.

Simultaneously we had written to SPWD vide CP flag A but No. reply has been received. Meanwhile Mr. Khartam has submitted the original form of identity. On the basis of this we have to agree that he is a Class II A contractor and allow for work to start, pl.

Sd/-13/2/84

Secretary

Page No. 14

Discussed with the Secretary and it was decided we must wait for the confirmation from the SPWD.

Sd/-13/2

Issue letter.

Despatcher Sd/-18/2

Issued vide No. RWSS/124/SD/82-83/100/RDD dt. 18.2.84 please.

Sd/-18/2

With reference our letter to the Chief Engineer, (Road & Bridges), S.P.W.D., at CP 59, Chief Engineer-cum-Secretary has now confirmed vide his letter at CP 63 that Sri. Suraj Kr. Khartam is Class III Contractor of the SPWD and not Class II A contractor as per identity card submitted by the contractor.

In this event, we may cancel the work-order issued to him previously vide CP 51 and award the work to any-one of the remaining 5 contractors. The statement of tenders is at CP 43, please.

Thereafter, we shall initiate action against the contractor as found necessary.

Sd/-18/2/84 Chief Engineer.

SECRETARY

93

Page No. 15

Water Supply Scheme for Zerung in South District with an estimated cost of Rs. 9,.95 lakhs was put on tender during January 1984. The Govt. had accepted the tender offered by Sri. S. K. Khartam of Zerung-Berfung, South Sikkim and even the work-order was issued.

However, the department received complaint against this contractor alleging that he was not Class II ''A'' contractor eligible to put tender. AS he was SPWD enlisted contractor the matter was verified with P.W.D. vide CP 59. on which the Chief Engineer, SPWD, has confirmed vide CP 63 that Sri. Khartam is a Class III contractor and not Class II contractor.

The documents submitted by Sri. Khartam is at CP 60 & 62.

Since Sri. Khartam is not eligible to put tender for the present work as the work is much above his eligibility, question of accepting his tender does not arise and a such:

I;

(a) the approval already accorded and work-

order already issued has got to be withdrawn

and cancelled.

(b) Since Sri. Khartam has manupulated in claiming his enlistment as Class II contractor which is found not to be true, it is proposed to forfeit his Earnest money amounting to Rs. 18,561/- as penalty. If in case, he succeeds in disproving allegation the Government may consider refunding it later on.

(c) He should be debarred from putting tender in this department from now and onwards unless he is exonerated of the charge about the alleging offence committed by him in attempting to mislead and cheat the Government.

(d) In claiming enlistments of higher class than the actual one the matter should be forwarded to SPWD for verification and necessary action since the documents produced by him and enlistment as well concerns that department.

II: If the cancellation of his tender is approved and than this work has to be awarded to another tenderer, the list of which may kindly be seen at CP 53. To ensure timely and quality execution of the work I recommend the rate offered by

94

Sri. Sriniwas Agarwal of Jorethang at 9.51 % below the schedule of rate. He is recommended in view of his satisfactory past execution of similar schemes is (sic) various parts of the State, and he is very reliable and resourceful contractor.

Submitted for approval, please.

Sd/-20/2/84 Secretary HON''BLE CHIEF MINISTER

Approved.

Sd/-

20/2/84

PA

Secy.

PA

Secy.

page No. 17

For discussion. Before taking action as above let us give a chance to him as to what he has to say in the form of a ''show cause'' notice.

Sd/-

20/2/84 Show cause notice is place below F/o sign. pl.

Pl. issue.

No. 5084/RDD 21.2.84

The show cause was posted on 21st February, 1984 and he was to reply within 24 hours which he has not done uptill now. We cannot withhold implementation of the scheme any further and accordingly the following action should be taken:

As approved by HCM the work order may be awarded to contractor Sri Sriniwas Agrawal whose rate of 9.51% below the schedule rate is

95

approved and he should be directed to deposit the earnest money immediately and start the work on priority.

Issue letter to contractor duly rejecting the tender offered by him, forefeiture of the earnest money and bebarring him from putting tender in this Department from now onwards.

Since he is an enlisted contractor of SPWD letter to CE, SPWD may also be issued to take appropriate action for the alleged manipulation in producing a document which is found not be authentic.

Sd/-1/3

CHIEF ENGINEER US A/c ____

For necessary action urgently.

ESD Sd/-2/3 DE (w/s) Sd/-2/3

Sd/-2/3/84

AE (w/s) W.T. message is prepared and is being issued as per instruction pl. issue letter.

Sd/-6/3/84

53.From the correspondence pages of the file pertaining to this work, we find that there is a representation dated 19.01.1984, marked Exbt. 66, submitted by S.K. Khartam, requesting for award of work to him as he belonged to the same place where the work was to be executed. Although the representation is found to be addressed to the Chief Engineer, marked Exbt.66B, it is quite evident that it was submitted to A1 who has marked it to A2 with the remarks "Secretary RDD please see as he is correct and the department should award." A2, however, has marked it to DE (W/S) with the remarks "Please report his performance of Berfung WSS and report." Exbt.66C. We also find one note written by A1 in the letter head of the Chief Minister, marked Exbt.65, with the following note dated 08.02.1984, marked Exbt.65A "Secretary RDD please see the work awarded to Mr. Khartam." As revealed from the evidence, S.K. Khartam did not belong to Zerung village, but Berfung, a nearby locality. From the comparative table, we find that there is one more person, namely, Tashi Wangdi Bhutia, who is in fact the lowest tenderer at 15% below the schedule rate, who hailed from Rabong, which is also a nearby locality. If the preferential clause was to be applied on the principle of fairness and equality, it ought to have been Tashi Wangdi Bhutia to have been awarded the work, but was not. When it was later revealed that S.K. Khartam was not a Class IIA contractor but Class III, the work order issued in his favour was cancelled and instead of being awarded to Tashi Wangdi Bhutia, it was awarded to Sriniwas Agarwal, A11, who hails from Jorthang a town far from Zerung, the place of execution of the work. The representations dated 03.12.1983 and 02.12.1983 to A1 by the beneficiaries and the Panchayat prior to 19.12.1983, the date of issue of tender notice found in the correspondence pages of the file, representation, Ext.63, to the Chief Engineer on the very day of the NIT and the decision taken by A2 in favour of S.K. Khartam, clearly indicate a pre-determined decision of A1 to award the work in favour of S.K. Khartam, thereby clearly establishing that A1 had abused his official position to obtain benefit in favour of S.K. Khartam. Although it has been submitted that those were forwarded by the Grievance Cell of the Chief Minister, the endorsement by A1 and A2 on those representations cannot be overlooked. This is confirmed by the note on the letter head of the Chief Minister, Ext.65, containing the direction "Secy. RDD, please see the work awarded to Mr. Khartam" marked Ext.65A, is a clinching piece of evidence that it was A1 who took the decision and A2 simply complied with the order.

53.1. Going by the above, it can be reasonably inferred that a decision taken on 30.01.1984 in the note of A2 for acceptance of offer of S.K. Khartam was in compliance of the order of A1 dated 26.01.1984 marked Exbt.66B.

On the disqualification of S.K. Khartam, the work ought to be offered even at this stage to Tashi Wangdi Bhutia, if truly the preferential clause in the NIT was to be applied. But in disregard to this, it decided to offer it to A11 purportedly for his experience and resourcefulness. While doing so, we do not find from the record that the other local contractor, Tashi Wangdi Bhutia was not as experienced or resourceful as A11. Considering the manner in which A1 had issued the directions to award the work to S.K. Khartam, it can be reasonably inferred that the later decision in favour of A11 was also taken at his instance. A11 appears to be selected suo moto in an arbitrary exercise of authority. He appears to be beneficiary fortuitously, as the notes indicate that he was called for and handed over with the work order.

We may also refer to the following which are some of the relevant statements of the witnesses:

Mr. K.K. Rai, DE, PW 2 Cross-examined on SA by accused No. 1

... It is true that Suraj Kumar was the only local contractor of the village Barphung where RWSS was going to be implemented. It is true that Shriniwash Agarwal had quoted 9.51% below the schedule rate. It is true that J.E. in his noting dated 27.1.1984 Ext. 61 at nsp 8 has not mentioned the fact that Suraj Kumar Khartam who had quoted 1; below was the only local tenderer having from Barphung within Jerung Gram Panchayat. It is true that in Ext. 61 J.E. has also noted that "May kindly be seen the application vide Flag ''A'' ''''. It is true that the government had given administrative approval for implementation of RWSS at Jerung at an estimated cost of Rs. 9,28,040/-. It is true that vide noting dated 9.4.1984 at note sheet page 20 the concerned officer had sought administrative sanction of Rs. 9,02,372.00 against the administrative approved amount of Rs. 9,28,040/- for the award of work to Shriniwas Agarwal. It is true that the said administrative sanction accorded at NSP 21. It is correct that the government had saved Rs. 25,668/-awarding this work. It is correct that in Ext.62 at NSP.9 I have noted that, "Among the 6 competitors, however there is one contractor belonging to the village, Shri Suraj Kumar Khartam of Barphung has rendered his rate at 1% below. An application requesting for preference plus Panchayat selection in his favour is also in this file, flagged ''A'' should the department take into consideration preference Clause injected into the NIT then Mr. Khartam has in his favour the experience. There is No. adverse assertion recorded against him". It is true that by the above mentioned noting I highlighted the plus points in awarding this contract work to Shri Suraj Kumar Khartam. It is correct that the C.E. in his noting Ext. 63 at NSP 10 has ignored the fact that S.K. Khartam is the only local tenderer which was highlighted by me and the fact that he had the requisite experience and there was No. adverse assertion recorded against him.

It is correct that the accused No. 2 in his noting dated 30.1.1984 marked Ext.64 at NSP 10 has started his noting with the sentence. "In view of ''x'' at prepage......". It is correct that in fact accused No. 2 had referred to the portion marked ''x'' by him in my noting Ext.62. It is correct that the noting of accused No. 2 Ext. 64 was under the influence of my noting Ext.62 and specially the portion marked ''x''. It is true that Ext.65 is dated 18.2.84 i.e. after the award of work by the accused No. 2 in favour of Shri Khartam vide his note dated 30.1.1984 marked Ext.64. It is true that in my examination-in-chief I have not pointed out the fact that the Ext.65 came into existence after the award of work by accused No. 2 in favour of Mr. Khartam vide his noting Ext.64. It is correct that to participate in the tender process Shri Khartam has made mis-representation that he is an eligible Class IIA contractor whereas he was found to be the Class III Contractor and not eligible to participate in the tender process. It is true that in Ext. 68 detailed reasons are given for cancellation of work order issued to Mr. Khartam and awarding of the same work to Shriniwas Agarwal. It is true that Shriniwas Agarwal''s name was recommended for award of work to ensure timely and quality execution of work at 9.51% below the schedule rate. The recommendation was also supported by the view that in the past he had executed similar schemes in various parts of the state satisfactorily and he was also found very reliable and resourceful contractor. It is correct that in the noting of Chief Engineer Ext.67 at NSP 14 he has noted that, "In this event, we may cancel the work order issued to him previously vide CP.51 and award the work to any one of the remaining 5 contractors. The statement of tender is at C.P. 43, please. Thereafter we shall initiate action against the contractor as found necessary."

[emphasis supplied]

Mr. K.P. Pothen, JE, PW 3

Cross-examined by the Learned Counsel for the accused No. 1 on s.a.

... It is true that in R.W.S. Schemes of Malbasey, Upper Raley Khasey, Zerung, Sadam, Budang-Thangshing within Khamdong and singyang the Divisional Engineer Shri K.K. Rai has not recommended the award of work to the lowest tenderer. It is true that R.W.S. Schemes Zerung, Bering, Samdong, Sadam, Patuk, Budang-Thangshing, Singyang I have not recommended award of work to the lowest tenderer.

[emphasis supplied]

Cross-examined by the Learned Counsel for the accused No. 1 on s.a.

"It is true that back page of 17 and from page of 18 are pasted. Therefore some notings have been concealed, in the file relating to Zerong Water Supply Scheme. It is true the notings of the said file have been tampered. ....

... It is true in the entire file and my notings I have not pointed out any loss suffered or going to be suffered by the Government in awarding the work to Mr. Sriniwas Agrawal. It is true that in the entire file or in of notings none of the officers has pointed out that the Government may suffer any loss for not awarding the work to the lowest tenderer in respect of Zerung R.W.S.S. It is true that none of the officers has pointed out that the Government may suffer financial loss by awarding work to Mr. Srinivas Agrawal in their notings. It is true that for the first time and that too before this Hon''ble Court during my examination-in-chief I stated that by not awarding the work to the lowest tenderer a loss of Rs. 14,816/- was caused to the State exchequer.....

... It is correct in this scheme the Government had saved Rs. 25,668/- against the administrative approved amount of Rs. 9,28,040/-.....

... It is true that in my notings marked Exbt. 61 I have not indicated the facts that Suraj Kumar Khartam who had quoted 1% below the scheduled rate was the only local tenderer hailing from Berfung within Zerung Gram Panchayat. It is true that Exbt. 64 clearly indicates that while recording notings dated 30.1.84 marked Exbt. 64 the accused No. 2 was guided by portion of notings marked X in Exbt. 62 of the Divisional Engineer Shri K.K. Rai. It is true in my examination-in-chief I suppressed the fact that while recording Exbt. 64 accused No. 2 was guided by the notings of Divisional Engineer marked X by him in Exbt. 62.

...."

[emphasis supplied]

Cross-examined by the Learned Counsel for the accused No. 2 on s.a.

... It is true that the Secretary RDD accused No. 2 has given reasons for cancellation of the work and he has also given reasons for award of the work. The reasons for awarding the work are:

1) Ensure timely and quality execution of the work:

2) Contractors past execution of similar schemes in various parts of the states:

3) The Contractor is very reliable and resourceful.

It is the true that the reasons given are consistent with the notice inviting tender clauses."

[emphasis supplied]

Mr. Tashi Wangdi Bhutia, PW19

Cross-examined by the accused No. 1 through Learned Counsel.

"... It is true in comparative statement marked Exbt. 60 my address is shown as Rabong and that is my correct address. It is true that the place where the water supply scheme had to be implemented was Barfung Zerung Gram Panchayat. It is true that one Suraj Kumar Khartam was the only candidate from Barfung Zerung Gram Panchayat."

[emphasis supplied]

Mr. v. P. Chaudhary, I.O., PW20

Cross-examined by the accused No. 1 through Learned Counsel.

"...It is true that Mr. K.P. Pothen, JE had not recommended for awarding of the work to the lowest tenderer in RWSS at Zerung. It is true that neither the JE Shri K.P. Poten (PW 3) nor the D.E. Shri K.K. Rai (PW 2) have recommended for awarding the work to the lowest tenderer in respect of RWSS, Zerung. It is true there is a noting of Chief Engineer Shri N.S. Lepcha being Exbt. 67 to the effect that "In this event, we may cancel the work order to him previously vide CP 51 and award the work to anyone of the remaining five contractors whose statement of tenders is at CP 43, please. Thereafter we shall initiate action against the contractor as found necessary." It is true that Chief Engineer also has not made any recommendation in favour of any particular contractor or the lowest tenderer. It is true that the allegation in the charge sheet relating to Zerung RWSS that accused No. 2 ignoring the recommendation of JE I and Chief Engineer awarded the work to Srinivas Agarwal (Accused No. 11) is incorrect. ...."

[emphasis supplied]

Mr. Ganesh Verma, I.O., PW21

Cross-examined by the Learned Counsel for accused No. 1.

"...It is true the recommendation of Chief Engineer in respect of Zerung Water Supply Scheme is to award the contract work to any one of the remaining five contractors. It is true that I have in my chargesheet alleged that the work ultimately was awarded to Shri Srinivas Agarwal (A-11) ignoring the recommendation of the Chief Engineer. It is true that from Exbt. 63 which is dated 30.01.84 the Chief Engineer had recommended the lowest tender of Mr. Tashi Wangdi Bhutia. It is also true that vide Exbt. 67 which is subsequent to Exbt. 63 which is dated 18.02.84 the same Chief Engineer who had earlier recommended Mr. Tashi Wangdi Bhutia clearly stated and recommended that the award of work in the present scheme may be awarded to any one of the remaining five contractors. It is true that it is on the basis of Exbt. 67 dated 18.02.84 that the file has moved to the accused No. 2 and based on the said Exbt. 67 the note Exbt. 68 dated 20.02.84 of the accused No. 2 has been prepared. The meaning of the word ultimately means all earlier. I may not be able to explain the meaning of the word recommendation. It is incorrect to suggest that the earlier note of the Chief Engineer vide Exbt. 63 held No. longer good in view of the said Chief Engineer''s subsequent note Exbt.67. I have written in my charge sheet in para IV at page 8 the following words "Although he did not even belong to the area where the work was to be carried out". I have written these words knowing fully well that the notice inviting tender had a preference clause which gave preference to contractors/tenderers who belonged to the area where the work was to be a carried out. It is incorrect to suggest that the statement made by me in the said paragraph in the said chargesheet with regard to Zerung Water Supply Scheme that the award of work to Srinivas Agarwal was granted ignoring the recommendation of the Chief Engineer is false and misleading. I hold this view even after having been shown the note of the Chief Engineer Exbt. 63 and Exbt. 67. Although it is true that Exbt. 67 dated 18.02.84 of the Chief Engineer which has been shown to me specifically states that the award of work may be granted to any one of the remaining five contractors. I have been in service of the Government for more than 30 years. I am aware of how the file moves from one Officer to the other. It is true that views of officers may change in time and in change of circumstances. It is true that in Zerung Water Supply Scheme earlier the award of work had been granted in favour of Shri S.K. Khartam vide a note of the accused No. 2 dated 30.01.84 being Exbt. 64. I have been shown the said Exbt. 64 and I have perused the same it is true that Exbt. 63 of the Chief Engineer dated 30.01.84 appearing in page NSP 10 being Exbt. 63 by which the Chief Engineer had recommended the lowest tenderer was prior to the award of work to Mr. S.K. Khartam vide Exbt. 64. It is also true that I find from the records that the award of work to Shri S.K. Khartam was ultimately cancelled and there after due to the said cancellation the work awarded to S.K. Khartam, the Chief Engineer vide note dated 18.2.84 appearing in NSP 14 being Exbt. 67 recommended the award of work to any one of the remaining five contractOrs. According to me Exbt. 67 dated 18.2.84 is not a recommendation to award the work to any one of the remaining five contractors but only a note of the said Chief Engineer this I say inspite of reading the words "In this event, we may cancel the work order issued to him previously vide c.p. 51 and award the work to any one of the remaining five contractors." I say this merely because the word recommendation is missing from the said Exbt. 67 dated 18.2.84 of the Chief Engineer. I also find in Exbt. 63 dated 30.01.84 of the Chief Engineer that the word "recommendation" is not there inspite of this however I say that the lowest tenderer has been recommended by the said note Exbt. 63 because the words "may kindly be accepted" is written therein.

... "

[ emphasis supplied]

Cross-examined by accused No. 2

D-10 (Zerung)

"My attention has been drawn to exbt. 68 wherein he has given the reasons for award of work to Sriniwas Agarwal to ensure timely and quality execution of work in view of his satisfactory passed execution of similar scheme in various parts of the State and he is very reliable and resourceful contractor. The Secretary has recommended this for approval and accordingly action was taken by the department.

...."

[emphasis supplied]

Rural Water Supply Scheme at Samdong under

Samdong Gram Panchayat in West District.

The comparative statement, Exhibit 16, reads as under:

Comparative Statement for the Implementation of Rural Water Supply Scheme at Samdong within Samdong Gram Panchayat (Unit No. 28) in West District.

Date of Tender: 18.1.84

Sl. No.

Name of Tender Rate Quoted 1.

Mr. P.R. Subba Not submitted 2.

Mr. A.B. Gurung 0.05% below 3.

Mr. Ratan Kr. Goel (LOWEST) 7.51% below 4.

Mr. Sonam Dadul 6.51% above 5.

Mr. Sherab Gyatso 5.00% below 6.

Mr. L.P. Subba Not submitted 7.

Mr. Chewang Dorjee Not submitted

Going by the comparative statement, R.K. Goel ought to have been awarded with the work, but was not, and A.B. Gurung, A13, was awarded with the work in preference to others. The reason as to why such preference was given would be revealed from the notes of the various authorities contained in the file which I may reproduce below: -

Page No. 8

"The Govt has given the administrative approval for implementation of RWSS at Samdong in West District at an estimated cost of Rs. 454200/-and civil work of this scheme is Rs. 191722/-. The

DE W/S

Sd/-28/1

work was put to tender on 18-1-1984. Four tenders were received out of which Shri Ratan Kr. Goel quoted rate 7.51% below is found lowest.

Submitted for favour of order pl.

Sd/-27/1/84

In this particular case the lowest tender received out of four is that of Mr. Ratan Kr.

Goel of Jorethang @ 7.51% below. The 2nd lowest

105

offer is from Mr. Sherab Gyatso of Rayong @ 5;

ESD ____

C.E

Page No. 9

Secretary

C.E.

US A/c sd/-ESD 31/1 DE (w/s)

JE I RK

Mr. ___

Mr. Pothen

below.

The other two offer stands at 0.05; below from Mr. A.B. Gurung of Kaluk and 6.51; above from Sonam Dadul of Gyalsing. It may be pointed out that Mr. Sherab Gyatso of Rayong who is the 2nd lowest contender received his work order for implementation of G.R.W.S.S. of Lamaten on

8/11/1983. Reference flagged X may be seen. Mr. Goel''s offer is recommended pl.

Sd/-27/1/84

Ref. above and order endorsed in the representation submitted by Mr. A.B. Gurung the case is submitted for kind perusal and order pl.

Sd/-28/1/84 Rate offered by A.B. Gurung is accepted as he is from the nearest locality. But timely and quality implementation through local beneficiaries be ensured.

Sd/-30/1

Sd/-31/1/84 Sd/-31/1/84 Sd/-31/1 Sd/-2/2/84

Pl. fair work order.

Sd/-2/2/84 Faired pl.

106

Sd/-2/2/84

DE W/S

As per above order work order prepared in favour of Shri A.B. Gurung and submitted pl.

Sd/-2/2/84"

In the correspondence pages of the file, I find that there is a representation, Exbt. 19, dated 18.1.1984, submitted by A13 to A1, by which he has stated that he being the only local tenderer for the scheme, he be awarded with the work at the rate bidded by him. We find that A1 has endorsed the representation to A2 with the remarks "please put up with comparative statement". The endorsement is marked as Exhibit 19/A.

Mr. K.K. Rai, DE, PW2, in his notes addressed to the Chief Engineer, Exhibit 18, has recorded that tender submitted by R.K. Goyal at 7.51% below the schedule rate is the lowest, the next lowest is that of Sherab Gyatso of Rayong at 5% below, that of Sonam Dadul of Gyalshing was 6.51% above the schedule rates and of A.B. Gurung, A13, at 0.05% below the schedule rate. The bid of R.K. Goel being the lowest was recommended by him. The offer of Sherab Gyatso of Rayong was considered and rejected as he had already been awarded another work at Lamaten on 08-11-1983. However, the Chief Engineer by his note Exhibit 20 drew the attention of A2 of the representation of A13, Exhibit 19 and the endorsement of A1, Exbt. 19/A and submitted the case for perusal and order of A2. We find that A2 proposed that the rate offered by A. B. Gurung be accepted, as he was from the nearest locality where work is being done, on the condition that timely and quality implementation through local beneficiaries be ensured. This was approved by A1, and, accordingly, work order issued, as is apparent by the note of PW3, marked as LLL(1).

Thus it appears from the above that the decision to award the work in favour of A.B. Gurung, A13, was firstly based upon his representation, Ext.19, dated 18.01.1984 which is evident from the remarks of A1 marked to A2 on the body of the representation, and secondly, because ostensibly he was a contractor from the nearest locality where the work was to be executed. From the facts set out above, it is quite apparent that the entire sequence of events has been so well choreographed that on its first brush it looks as if the preferential clause in the NIT has been resorted to. However, when we take a deeper look into the matter, we find that the representation, Ext.19 was submitted by A13 on 18.01.1984, which is the date of opening of the tender which A1 marked to A2 with the remarks as indicated above. That the innocuous remarks was in fact an order hidden in the fa�ade of the remarks can be reasonably inferred from the fact that work was awarded to A13. The undeniable facts on the record clearly establish that A1 had already taken a decision to award the work to A13 by ignoring the entire tender process. No. criminality can be attached to A13 as he, though enlisted as a contractor but nevertheless a rustic villager, had applied to A1 for being awarded with the work. The element of meeting with the mind between him, A1 and A2 for commission of offence appears to be wanting. The culpability lies in the action of A1 in taking an arbitrary decision in directing award of the work to A13. The role of A2 was the compliance of the directions to A1. In my view, this is a gross case of abuse of power by resorting to illegal means by arbitrary manner on the part of A1, thereby attacting the provisions of Section 5 (1) (d) of the P.C.Act, 1947. Rural Water Supply Scheme at Budang Thangsing within Khamdong Gram Panchayat in East District.

The comparative statement, Exhibit 83 of the bids in respect of the above work is reproduced below:

Comparative Statement for the Implementation of Rural Water Supply Scheme at Budang Thangsing within Khamdong Gram Panchayat (Unit No. 36) in East District.

Date of Tender: 18.1.84

Sl. No.

Name of Tender Rate Quoted 1.

Mr. Norbu Tshering Bhutia 5% above

109

2.

Mr. Om Prakash Sarda 10.55% below 3.

Mr. Kedar Somani 9.51% below 4.

Mr. L.N. Sarda not submitted 5.

Mr. G.D. Sarda 2.0% below 6.

Mr. Daluram Sarda 16.11% below 7.

Mr. B.S. Lama 1.11% below Lowest 8.

Mr. Rameshwarlall Kandai 12.0% below 9.

Mr. Pintso Wangyal Bhutia 7.55% below"

From the above, it can be seen that Dalu Ram Sarda''s bid is the lowest at 16.11% below the schedule rates and that of Norbu Tshering Bhutia, A14 is the highest, yet he was awarded with the work. Let us examine the notes contained in the file as to the reason why such a decision was taken:

Page No. 8

"The Govt. has given the administrative approval for implementation of R.W.S.S. at Budang-Thangsingh an estimated cost of Rs. 9,11,565/- and civil work of the scheme is Rs. 2,79,427/-The work was put to tender at (sic) on 18-11984. Seven tenders were received out of which Shri Daluram Sarda quoted rate 16.11.% below the schedule is found the lowest. He has executed the work of A. RWSS at Semlik Merchok during 81-82 in our Department.

File submitted for favour of orders pl.

Sd/-27/1/84

Page No. 9

Budang Thangsing W/S Scheme within Khamdong Gram Panchayat was notified for tender. The amount of Civil Works was valued at Rs. 2,79,427/-

110

Sd/-28/1

ESD ____

C.E.

Page No. 10

Eight numbers of tenders was received. Only one contractor quoted above i.e. of Mr. Norbu Tshering Bhutia @ 5% above. It is seen from the comparative statement of rates quoted that there are two contractors of Khamdong P. Unit. They are Mr. Norbu Tashering (5% above) and Pintso Wangyal Bhutia @ 7.55% below. However, these two locals have not managed to be the lowest. The lowest quoted is by Mr. Daluram Sarda (16.11% below) of Sang, a place very near to Khamdong. This work is the second one on tender invited on 18th Jan 84, that Mr. Daluram Sarda has quoted the lowest.

The other work where his offer is recommended is Patuk - Simik Linzey. It would not be wise to accept & award more than one wok to the same contractor at the same time, as such, the lowest rate quoted in this case cannot be recommended. From financial point of view the 2nd lowest offer at 10.55% below quoted by Mr. Om Prakash Sarda of Gangtok is reasonable. However preference could still be given to Mr. Phintso Namgyal Bhutia of Khamdong (7.55% below) a localite pl.

Sd/-27/1/84

Ref prepage and the tender statement. The lowest tenderer is Mr. Daluram Sarda (@ 16.11% Below) who is also lowest tenderer in Patuk W/S schemes whereas in Patuk W/s scheme the acceptance has been recommended in favour of Mr. Nimchey Shenga therefore this work be awarded to the lowest Mr. Daluram Sarda pl.

Sd/-28/1/84 The Panchayat and beneficiaries wanted the work to be executed through Norbu Tsh. But his rate is higher than others. Call him to office.

Sd/-30/1/84 Sd/-31/1/84 Sd/-31/1/84

Secretary

C.E usA/c ESD DE(w/s)

111

AE W/S May kindly be seen the application of Mr. Norbu Tshering Bhutia. He has agreed

Page No. 11

to execute the work of Budang Thangsing at schedule rate.

Submitted for favour of information and na pl.

Sd/-1/2/84

Placed below is the file for the work of E.S.D. Implementation of Water Supply Scheme at Budang Thangsing within Gram Panchayat Khamdong. As per the desire of the department to allot work at schedule to Mr. Norbu Tshering Bhutia, the concerned Contractor in an application forward to the C.E. has showed his willingness to execute the said work at Schedule. In the absence of D.E. (w/s) the file has been forwarded to you for release of work order as the Contractor wants to begin work very early. The same has been submitted for approval and necessary action, please.

Sd/-1/2/84

Shri Norbu Tshering Bhutia has quoted at 5% above the schedule rates for the work under reference. Now he has agreed to execute the work at schedule rates vide his letter dated 1.2.84 (flag A).

If approved the work will be awarded to him.

C.E.

Sd/-1/2

Page No. 12

Reference note prepage the petition submitted by Mr. Norbu Tshering Bhutia may kindly be seen vide C.P. flagged x. He is agreeable to do the work at scheduled rate. But considering the rates of the lowest tenderes and the rate quoted by one of the resident of Khamdong itself viz. Mr. Pintso Wangyal Bhutia being @ 7.55% below, Mr. Nobu Tshering should agree to do the work at a rate between 16.11% below to 10.55% below pl. This will avoid any audit objection in future also, pl.

112

Sd/-1/2/84

In view of Panchayat''s representation award the work at sch. Rate to N. Tshering Bhutia.

Sd/-4/2 ......................................................"

Secretary

CE

In the correspondence pages of the file pertaining to the work in question, I find a representation Exhibit 84 dated 03.02.1984 after the NIT submitted by the Gram Panchayat of the area, whereby they have stated that as per the policy adopted by the department to give preference to the contractors hailing from the village, A14 be awarded with the work being enlisted contractor from the locality. From the notings in the the file, I find that the bid of Dalu Ram Sarda, although the lowest bidder, had not been accepted, as he had been awarded with another work at Patuk Simik Linzey. The bid of Om Prakash Sarda at 10.55% below the schedule rates was the second lowest, but in view of the preference clause, a local contractor, namely, Phintso Namgyal Bhutia at 7.55% below the schedule rates ought to have been chosen. This is obvious from the note of DE but, A2 considering the representation of the Gram Panchayat, Exhibit 84, directed the award of work in favour of A14 on the condition that his bid be reduced and brought at par with the schedule rates to which A14 had agreed by his letter dated 31-01-1984, marked Exhibit 93. Reference in this regard may be made to the note of A2 dated 20-01-1984 marked Exhibit 88 and the subsequent notings of the officers, more particularly, that of JE dated 01-02-1984, marked Exhibit 89, that of the ESD dated 01-02-1984, Exhibit 90, the Chief Engineer dated 01-02-1984, marked Exhibit 91, and finally that of A2 dated 04-08-1984, marked Exhibit 92.

The sequence of events clearly indicates that representation, Exbt.was handed over to A2 by A1 resulting in the award of work to A14. Exbt. 84 does not contain any endorsement by A1, but since it was addressed to him, the reasonable inference would be that it was he who had handed it over to A2. A14 is also fortuitous beneficiary as he was awarded the work not at his instance but at the behest of the Panchayat. Most evidently this is gross abuse of power by A1. We may refer to some of the depositions of PWs, the relevant portions of which are set out below:

Mr. K.K. Rai, DE, PW 2

Cross-examined on S.A. by accused No. 1

"...It is correct that since Rameshwarlall Kondoi had not submitted TDR he was disqualified to participate in the tender process. It is true that in my examination in chief I have not mentioned the fact that Norbu Tshering Bhutia of Khamdong was from the area where water supply scheme of Budang Thangsing within Khamdong Gram Panchayat was being implemented. It is correct that Ext. 84 addressed to the accused No. 1 does not bear his signature or endorsement. It is also correct that it is not possible to say that Ext. 84 was ever seen by accused No. 1. It is true that the entire note sheets do not show that Ext. 84 was put up to the accused No. 1. It is correct that in Ext. 85 at NSP 8 the Junior Engineer has not pointed out the fact that there was a local contractor by the name of Norbu Tshering Bhutia from Khamdong who had also participated in the tender. It is correct that in Ext. 85 the Junior Engineer had not recommended the name of the lowest tenderer Shri Daluram Sarda for the award of work. It is correct that by representation Ext.84 the Panchayat president,Secretary and Vice President has requested for the award of the work in favour of Shri Norbu Tshering Bhutia on the ground that he was the local contractor where work had to be implemented as per the N.I.T. clause of preference. It further inform that he was the only class - I/A contractor to implement the work of that village. It is correct that I did not recommend the name of the lowest tenderer Shri Daluram Sarda in my note Ext.86. In Ext.86 I pointed out that the other work where his offer is recommended is Patuk Simiklingzey and it would not be wise to accept any award more than one work to the same contractor at the same time. It is correct that in Ext. 87 there is No. mention of the fact that the local contractor Shri Norbu Tshering Bhutia of Khamdong had participated in the tender process by the Chief Engineer. It is correct that there is No. noting to indicate that any officer had pointed out to accused No. 2 as to why the work could not be awarded to Norbu Tshering Bhutia. It is true that vide Ext.89 the Junior Engineer has pointed out at NSP 10 and 11 that Norbu Tshering Bhutia had agreed to execute the work at schedule rate.

It is true that vide Ext. 91 at NSP. 12 the Chief Engineer has pointed out that Norbu Tshering Bhutia should agree to do the work at a rate between 16.11% below to 10.55% below. It is correct that in Ext. 88 and Ext. 92 at NSP. 10 and 12 the accused No. 2 has given the reasons for awarding the work to accused No. 14 Norbu Tshering Bhutia. ... It is correct that financial sanction for Rs. 9,11,565/- was accorded and as such there was No. extra financial burden on the government with regard to RWSS Budang Thangsing. It is correct that the entire notesheets relating to RWSS Budang Thangsing including the extract of the note sheets from the main file appended to the note sheet relating to this scheme does not contain the signature or endorsement of accused No. 1. It is correct that the extract appended to the note sheet is a syclostyle copy. This does not contain the signature of the accused No. 1 or any of the officers'' signature since this is only a copy. It is correct that the entire file relating to Budang Thangsing RWSS do not contain the signature or endorsement of accused No. 1."

[emphasis supplied]

Cross-examined by accused No. 2 through Learned Counsel on S.A.

"... It is true that I find from the scheme file that at this stage the department is actually seeking the approval of E.S.D. It is true that I find from the noting of this E.S.D. that he has processed the said application vide his noting at NSP.11 Ext.90 to the effect that Shri Norbu Tshering Bhutia had quoted at 5% above the schedule rate for the work under reference. Now he has agreed to execute the work at schedule rate. It is true that thereafter the application was processed by the Chief Engineer vide his note at NSP.12 Ext.91 wherein he has stated that the petition submitted by Norbu Tshering Bhutia may kindly be seen. He has also stated that he is agreeable to do the work at schedule rate.....". It is true that thereafter the file was submitted to the Secretary accused No. 2 who made the noting at NSP.12 Ext.92 which reads: ''In view of the panchayat representation award the work at schedule rate to N. Tshering Bhutia. ''It is true that the notes of the Secretary itself indicates the reasons for awarding the work to Norbu Tshering Bhutia accused No. 14. It is true that the reason spelt out and indicated in the note of accused No. 2 is the representation of the Panchayat.

..."

[emphasis supplied]

Mr. K.P. Pothen, JE, PW 3

Cross-examined by the Learned Counsel for the accused No. 1 on S.A.

"...

... It is true that involvement of panchayat and local contractor where the unique and important considerations of the Water Supply Scheme in question. It is true that the main policy of the government in these schemes in question was to involve local conractor where the work had to be implemented the reason being that in case of sub-standard work the contractor will be questioned by the residents of the village for whose benefit these schemes were implemented. Further the maintenance of the schemes after its completion was entrusted to the local block panchayat with the help of the government. It is correct that specification of the schemes in question was as per approved rate of S.P.W.D. It is true that in R.W.S. Schemes of Malbasey, Upper Raley Khasey, Zerung, Sadam, Budang-Thangshing within Khamdong and singyang the Divisional Engineer Shri K.K. Rai has not recommended the award of work to the lowest tenderer. It is true that R.W.S. Schemes Zerung, Bering, Samdong, Sadam, Patuk, BudangThangshing, Singyang I have not recommended award of work to the lowest tenderer.

..."

[emphasis supplied]

Cross-examined by the Learned Counsel for the accused No. 1 on S.A.

"...It is true the financial sanction sought for was duly accorded by the Government. It is true there was No. loss or extra financial burden on the Govt. in awarding the work to Shri R.K. Goyal.

The Govt. did not suffer any loss.

..."

[emphasis supplied]

Mr. Kedar Somani, PW 7

Cross-examined by the accused No. 1 through Learned Counsel "

I am a resident of Gangtok. At the time I submitted my tender I was residing at Gangtok."

Mr. Dalu Ram Sarda PW 12

Cross-examined by accused No. 1 through Learned Counsel

"...It is true that the comparative statement marked Exbt. 71 and Exbt. 83 are seen by me for the first time today. It is true that I was not the resident of the villages where water supply scheme were going to be executed and for which I had submitted my tenders. It is true that I do not know when the schedule rates was fixed by the Department. It is true that when I submitted my tender form I had not inquired or realized about the prices of cement, rods etc. required for the work. I do not know reasons as to why I was not awarded the work but the Department awards the work if it is justified. It is true Norbu Tshering Bhutia (accused No. 14) and Sonam Wangdi (accused No. 15) were the local residents of the villages where water supply schemes in question were to be implemented. It could be that accused No. 14 Norbu Tshering Bhutia was only Class - I contractor at that time."

Cross-examined by the accused No. 2 through Learned Counsel

"...It is true I did not file any protest petition with the Department for not awarding the contract work to me. ...

...."

[emphasis supplied]

Mr. v. P. Chaudhary, I.O., PW20

Cross-examined by accused No. 1 through Learned Counsel

"... In Budang Thangsing RWSS the Divisional Engineer vide his noting Exbt. 86 has specifically recommended not to award work to the lowest tenderer Shri Dalu Ram Sarda. It is correct that the allegation in the charge sheet in respect of Budang Thangsing RWSS that there was unanimous recommendation of JE, DE and Chief Engineer in favour of the lowest tenderer and ignoring the same the accused No. 2 awarded the work in favour of accused No. 14 Shri. Norbu Tshering is incorrect.

...."

[emphasis supplied]

Mr. Ganesh Verma, I.O., PW21

Cross-examined by accused Shri P.K. Pradhan through Learned Counsel

D-16 (Budang Thangsing) "...

It is true I find from the note of the D.E. exbt.86 that the lowest rate in this case can not be recommended. It is true I find from perusal of the scheme file that all the officials of the department have ommitted from there collective consideration the recommendation of the Panchayat.

It is true that I find that there was No. audit objection. It is true the financial sanction in this scheme was duly obtained being approved by the cabinet.

..."

[emphasis supplied]

From the above statements and the facts and circumstances revealed from the file pertaining to the work as set out above, role of A1 being the person having taken the decision for the others to comply can be reasonably inferred as submitted by Mr. Vaid and I do not find any reasons to discard this proposition. However, as already observed above, A14 appears to be a fortuitous beneficiary of the arbitrary decision of A1 and A2 a Government Servant who carriout out the orders of his Minister who was also the Chief Minister.

Rural Water Supply Scheme at Patuk under Simik Linzey Gram Panchayat in East District.

We may examine the comparative statement marked Exhibit 71.

3 out of 13 bidders, namely, Norbu Tshering Bhutia, Nar Prasad Tamang and Nim Tshering Lepcha, did not submit their tender forMs. The comparative statement reads as under:

Comparative Statement for the Implementation of Rural Water Supply Scheme at Patuk within Simik Linzey Gram Panchayat (Unit No. 38) in East District.

Date of Tender: 18.1.84 Sl. No.

Name of Tender Rate Quoted 1.

Mr. Norbu Tshering Bhutia -

2.

Mr. Nar Prasad Tamang -

3.

Mr. Nim Tshering Lepcha -

4.

Mr. Sonam Wangdi Bhutia 5% Above 5.

Mr. P.B. Rai -

6.

Mr. Samdup Shenga 11.57% Below 7.

Mr. Pintso Wangyal Bhutia 8.55% Below 8.

Mr. L.N. Sarda 7.51% Below 9.

Mr. B.N. Pradhan -

Mr. Rinchen Wangyal Bhutia 3.01% Below 11. Mr. Daluram Sarda 17.11% Below LOWEST 12. Mr. B.S. Lama 5.00% Above 13. Mr. Rameshwarlall Kandoi 12.00% Below

From the above, the work ought to have been awarded to Dalu Ram Sarda having bidded the lowest at 17.11% below the schedule rates but Sonam Wangdi Bhutia, 119 A15, who had bidded 5% above was preferred. We may search for the reason, for the decision in the notes contained in the file pertaining to the scheme which are reproduced as under:

Page No. 8

"The Govt has given the administrative approval for implementation of R.W.S.S. at Patuk at an estimated cost of Rs. 8,76,390/- and civil work is

DE W/S

Page No. 9

Sd/-28/1

ESD ____

C.E.

Rs. 4,03,701/-.

The work was put to tender on 18-1-1984 and eight tenders were received out of which Shri Daluram Sarda quoted 17.11% below the schedule is found the lowest. May kindly be seen the application placed below vide flag ''A''. File submitted for favour of na orders pl.

Sd/-27/1/84

W/s scheme at Patuk within Simik Linzey Gram Panchayat put to tender on 18th has bidded eight tenders. The rates quoted are from 5; above to 17.11% below. The interesting aspect of competition for this w/s scheme is that all the contenders are from Sang Khamdong areas (adjacent) The lowest has been quoted by Daluram Sarda @ 17.11% below. of the competitors, besides Samdup Shenga (11.57%) below none of them have secured any w/s work of the Deptt. Since 1982 (November). Mr. Shenga on the other hand was awarded Singbel w/s scheme on 29/10/1983.

Since all the contractors viewing for this work are from adjacent areas Sang Khamdong the lowest quoted by Shri Daluram Sarda @ 17.11% below is recommended for acceptance pl.

Sd/-27/1/84

Page No. 10

Ref notes at prepage. In this tender

120

1st Lowest Mr. Daluram Sarda - 17.11;

2nd Lowest Mr. Rameshwarlall Kandoi - 12.00;

3rd Lowest Mr. Samdup Senga - 11.5;

Mr. Daluram Sarda is lowest in Budang Thangsing w/s scheme and is recommended for that scheme.

Mr. Rameshwarlall Kandoi the 2nd lowest has already been recommended for Pachak w/s scheme.

Therefore the third lowest tenderer is Mr. Samdup Shenga of Sang. Mr. Shenga was awarded with the w/s scheme of the adjoin area Singbel which he is doing progressively. It is therefore recommended that the rate of the third lowest be considered pl.

Sd/-28/1/84 Secretary

The Panchayat and beneficiaries wanted the work C.E to be executed through Sonam W. Bhutia but his rate is higher than others.

Pl. call him to office.

usA/c ESD Sd/-Sd/-31/1 30/1 DE(w/s) Sd/-31/1

Page No. 11

Mr. Sonam Wangdi Bhutia is here, he is asked to see you.

Sd/-CE Secy.

AE W/S

E.S.D.

30/1/84 May kindly be seen the application of Mr. Sonam Wangdi Bhutia (flag B). He has agreed to execute the work of Patuk at schedule rate. Submitted for favour of information and na pl.

Sd/-1/2/84

Placed below is the file for the work of Implementation of Water Supply Scheme at Patuk within Simik Linzey Gram Panchayat unit No. 38.

As per the notings of the Chief Engineer, the

121

concerned contractor, Mr. Sonam Wangdi Bhutia has forwarded an application, showing his willingness to execute the said work as per schedule. Mr. Sonam Wangdi Bhutia wants to execute the said work at an early date. Hence, in the absence of D.E. (w/s) the file has been submitted to you for an early release of work order; and necessary action, please.

Sd/-1/1/84 Page No. 12

Shri Sonam Wangdi Bhutia had earlier quoted his rate at 5% above the schedule rates for the work of implementation of Rural Water Supply Scheme at Patuk within Simik Linzey Gram Panchayat (Unit No. 38). Now he has agreed to execute the work at schedule rates vide his letter dated 1.2.84 (flag A).

Submitted for approval pl.

Sd/-1/2 Ref note above, the petition submitted by the contractor Mr. Sonam Wangdi Bhutia is placed below vide flag B. He has petitioned that he shall execute the work at the scheduled rate. But considering the trend of the lowest tenderes he must agree to execute the work at a rate between 12% to 17.11% below. This will avoid audit objection in future also, pl.

Sd/-1/2/84 In view of Panchayat recommendation award the work at sch. Rate to S. Wangdi.

Sd/-4/2 Please note & take na.

Sd/-4/2"

CE

Secretary

CE

U/S a/c

68.In the correspondence pages of the file, I find that there are two representations submitted by the Panchayat of the area dated 14-01-1984, marked Exhibit 75 and the other dated 02-02-1984, marked Exhibit 76, both addressed to A1 as the Chief Minister. By the first representation, request had been made to award the work in favour of A15 in preference to the others, as he belonged to

that area where the work was to be executed.By the second representation, it was again reiterated that the work should be awarded in favour of A15, for the reason already given in the first representation Exhibit 75.The representation, Exhibit 75, dated 14-01-1984 of the Panchayat, was endorsed by A1 directly to AE (W/S) with the remarks "please put up the file after Tender". The second one being Exhibit 76, although does not contain any endorsement by him but appears to have been dealt with by A2 on being handed over by A1. A2 could not have directly dealt with the representation as it was addressed to A1, the Chief Minister.

69.Although the DE, vide his note Exhibit 73, dated 27-01-1984, recommended Dalu Ram Sarda being the lowest bidder at 17.11%, the Chief Engineer, vide his note Exhibit 74, proposed that Dalu Ram Sarda and Rameshwarlall Kandoi had been recommended for other works and the third lowest Samdup Shenga be awarded. A2, vide his note Exhibit 77, noted that the Panchayat and the beneficiaries wanted the work to be executed by A15, but his rate was higher and therefore, directed that he should be called to his office. From the note of the JE, Exhibit 78, I notice that A15 by his letter dated 01-02-1984, Exhibit DD/1, had agreed to execute the work at par with the schedule rates. On this condition, A2 by his note Exhibit 81, recommended and approved the award of work to A15.

70.As in the case of the previous scheme pertaining to Budang Thangsing RWSS, we find A15 was not a beneficiary by choice but on the orders of A1` at the behest of the Panchayats, as can be made out from the remarks contained in Exbt. 75 which was marked directly by A1 to the Assistant Engineer, i.e., AE (W/S) and Exbt. 76.

Nevertheless he had accepted the offer. However, the abuse of their positions as public servants by A1 and A2 stand established.

Rural Water Supply Scheme at Upper Tintek under Rakdong Gram Panchayat in East District.

The comparative statement of bidders, Exhibit 3, shows the following:

Comparative Statement for the Implementation of Rural Water Supply Scheme at Upper Tintek within Rakdong Gram Panchayat at (Unit No. 41) in East District.

Date of Tender: 18.1.84

Sl. No.

Name of Tender

Rate Quoted

1.

Mr. NimTsheringLepcha

NOT SUBMITTED

2.

Mr. Keshar Singh Chhetri

7% Below

3.

Mr. D.B. Rai

5% Below

4.

Mr. OmPrakashSarda

13.11% Below

5.

Mr. H.P. Karki

.02% Below

6.

Mr. L.N. Sarda

5.55% Below

7.

Mr. G.D. Sarda

15% Below

8.

Mr. B.S. Lama

7% Above

9.

RameshwarlallKandoi

12% below

It can be seen that out of the 9 bidders, one Nim Tshering Lepcha did not submit his tender and from amongst the rest, the lowest is that of G.D. Sarda, and in the normal circumstances, he ought to have been awarded with the work. However, it was awarded to H.P. Karki, A3 (since deceased). The reason for this decision would be revealed from the note sheet, pages of the file pertaining to the work in question which are reproduced below: -

Page No. 8

"The Govt has given the administrative approval for implementation of R.W.S.S. at Upper Tintek at an estimated of Rs. 741325/- and civil work of this scheme is Rs. 269619/-.

The work was put to tender on 18-1-1984 and DE W/S eight tenders were received out of which Shri G.D.

Sarda quoted rate 15% below the schedule is found

the lowest. Hence submitted for favour of approval

to award the work to lowest tender. Pl & may kindly

be seen the application received vide flag ''A''.

Sd/-27/1/84

This tender for R.W.S.S. upper Tintek within Rakdong Gram Panchayat has been keenly contested the three lowest offer stands as below:

1) Lowest .... G.D. Sarda of Gangtok @15% Below

2) 2nd Lowest Om Pr. Sarda '''' '''' @ 13.11; 3) 3rd '''' Rameshwarlall Kandoi '''' @ 12;

In this contex Panchayats representation in fav. of

125

Page No. 9

Sd/-28/1

ESD ____

C.E.

Secy.

C.E.

U/s a/c ESD DE (w/s) JE I RK

Page No. 10

Shri D. B. Rai of Samdong ''flagged''

may pl. be seen. However Samdong village does not fall within Rakdong Tintek also there is a second man Mr. H.P. Karki from Samdong. The quotation of Mr. D.B. Rai is 5% below and of H.P.

Karki at 0.02% below. The lowest offer of Mr. G.D.

Sarda, considering that there are No. actual residents of Tintek, is recommended for acceptance pl.

Sd/-28/1/84 Ref. above and notes endorsed by the HCM in the petition submitted by C.P of Rakdong and the public vide CP flagged A submitted for kind perusal and orders pl.

Sd/-28/1/84 The rate offered by the local Contractor H.P. Karki is accepted in view of the scheme to be maintained by the local Body and beneficiaries.

Sd/-30/1 Sd/-31/1/84 Sd/-31/1/84 Sd/-31/1 Sd/-2/2

May kindly be seen the application placed below from the Gram Panchayat and may kindly be seen the remarks of the Secy. In the body of the letter.

DE W/S As per order of the Secy. The work order will be issued only after settle of the dispute pl.

Sd/-2/2/84

126

Ref. nsp flagged ''X'' Secretary''s instruction may pl.

be seen. W.O. withheld pl.

Sd/-2/2/84

May like to see.

Sd/-2/2

Seen pl.

Sd/-3/2 Sd/-3/2

Page No. 11

In abeyance.

RK

E.S.D.

C.E

ESD DE

Sd/-4/2

C.E.

ESD/D.E.(W.S.)

RK

D.E. W/S

Discussed with H.C.M. today. Pl. issue w/o as instructed at page 9.

Sd/-13/2

Sd/-13/2

In abeyance till confirmation by Secretary.

Sd/-13/2 May kindly be seen the letter of the Hon''ble Chief Minister dtd. 22-2-84 and remarks of the Secy. R.D.D.

As instructed work order submitted pl.

Sd/-22/2/84

127

Page No. 12

Pl. issue

Sd/-22/2 ............................................................"

Dspt.

Amongst the correspondence pages, I find two representations submitted by the Gram Panchayat of the area. In the first one addressed to A2, marked Exhibit 7, dated 01-02-1984, it had been requested that the work be awarded to A3, a contractor of the locality and, by the second one addressed to A1, dated 16-01-1984, marked Exhibit 8, request had been made for awarding the work to D.B. Rai, another contractor of the locality, who had quoted 5% below the rates as compared to A3 at 0.02% below. The second representation, Exhibit 8, was endorsed by A1 to A2 with the remarks "please put up after tender". We also find a note dated 22-02-1984 on the official letter head of A1 to A2 which reads as "Please award the work order to H.P. Karki, Rakdong, E. Sikkim" marked Exhibit 9.

Upon consideration of the notes of the various authorities, it will be apparent that the DE had noted that although G.D. Sarda, Om Prakash Sarda and Rameshwarlall Kandoi, were the first, second and lowest tenderers, there were Panchayat recommendations of which one of them was in favour of D.B. Rai and the other in favour of H.P. Karki. D.B. Rai appears to be of Samdong which does not fall under Upper Tintek where the work was being executed, but H.P. Karki hailed from that place, which we get from the various documents available in the file, viz., the R.A.R. (although not exhibited but forms a part of the record), the representation of the Panchayat, Exhibit 7 and the note Exhibit 9 of A1. However, considering the endorsement of A2 to DE on the representation of the Panchayat, Exhibit 7, with the remarks "withhold issue of w/o till this dispute is disposed off", the matter was kept on hold. Later, by the note of A2, dated 13-02-1984 Exhibit 12, which reflects discussion with A1, order was issued for awarding the work to A3. It was carried out only on 22.02.1984 on receipt of the direction of A1 contained in the note, Exbt.9, issued on that date.

The sequence of events noted above, the significant part of which is the note dated 22.02.1984 on the official letter head of A1 to A2, marked Exbt. 9 that ultimately culminated in the issuance of work order in favour of A3 are sufficient to draw a reasonable inference of a pre-determined decision of A1 to award the work to A3 by clearly ignoring the lower bidders. If the preferential clause was to be applied the work ought to have been offered to Keshar Singh Chettri, who had bidded 7% below the schedule rates or to D.B. Rai having bidded 5% below, but they chose to award the work in favour of A3 who had bidded 0.02% below schedule rates which was higher. Therefore, the plea that the NIT conditions were meant to enable the local contractors to execute the works falling within their localities, is a plea to camouflage illegal and arbitrary decisions of A1 which were imposed upon A2 and his subordinate officers. Rural Water Supply Scheme at Upper Raley and Khasey within Samdong Kambel Gram Panchayat in East District.

The comparative statement Exhibit 40 of the bidders in the above work are as under:

Comparative Statement for the Implementation of Rural Water Supply Scheme at Upper Raley Khesey within Samdong Kambel Gram Panchayat (Unit No. 40) in East District.

Date of Tender: 18.1.84 Sl. No.

Name of Tender Rate Quoted 1.

Mr. Nim Tshering Lepcha 2.00% below 2.

Mr. Keshar Singh Chhetri 5.00% below 3.

Mr. Kedar Somani 8.00% below 4.

Mr. L.N. Sarda 6.31% below 5.

Mr. N.P. Tamang 9.00% above 6.

Mr. Prem Prakash (LOWEST) 12% below

From the above, it would appear that out of 6 bidders, Prem Prakash Agarwal who had bidded at 12% below the schedule rates, ought to have been awarded with the work, but N.P. Tamang was preferred even over the rest of the bidders bidding lower than him.

In order to appreciate such decision, it would be necessary to peruse the records contained in the file. The relevant notes of the various officers in the file are reproduced below:

Page No. 8

"The Govt has given the administrative approval for implementation of R W S S at Upper Raley & Khasey at an estimated cost of Rs. 10,29,320/- and civil work of this scheme is Rs. 3,13,343/-.

DE W/S

Page No. 9

Sd/-28/1

ESD ____

C.E.

The work of this scheme was put to tender on 18-1-1984 and six tenders were received. Out of which Shri Prem Prakash Agarwall quoted rate 12; below the schedule is found the lowest. No. adverse remarks is against this contractor.

The file submitted for favour of approval the lowest tender pl.

Sd/-27/1/84

W/s scheme at Upper Raley Khasey tendered on 181/84 has contested by six contractors. There is only one quotation at above rate (9% above) The five other offers range from 2% below to 12% below. of the six tenderers here, Mr. Nim Tshering Lepcha has given his address as Samdong. His offer stands at 2% Below which is the 2nd highest among the lot. Mr. Prem Prakash Agarwals with his 12% below is the lowest.

However it is pointed out that Mr. Prem Prakash Agarwala has been the lowest contender for the scheme R.W.S.S. Sadam tendered alongwith.

The 2nd lowest tender is that of Mr. N.P. Tamang of Singtam at 9% below pl.

Sd/-28/1/84 Ref. above.

The lowest tenderer Mr. P.P. Agarwal is also the lowest tenderer in Sadam w/s scheme where his offer is recommended. The 2nd, 3rd, 4th are of Singtam, Gangtok and Singtam respectively. The 5th is of Samdong and has executed w/s scheme

131

satisfactorily at Samdong and at Regue. His offer is recommended for acceptance.

Secy.

Page No. 10

Sd/-28/1/84

Tenderer N.P. Tamang may be called and his rate may be negotiated comparable to others, if he really wants to take up this work as endorsed by the beneficiaries.

Sd/-30/1/84 For n.a. The endorsement of the beneficiaries be also found out, pl.

Sd/-31/1/84 Sd/-31/1/84 Sd/-31/1

Pl. pu letter to Mr. N.P. Tamang

Sd/-2/2/84

Draft letter placed below pl.

Sd/-2/2/84 May kindly be seen the application of Gram Panchayat and order of the Secy. submitted for favour of information.

Sd/-2/2/84

C.E US A/c ESD DE(w/s)

JE I

DE (W/S)

132

Page No. 11

W.O. withheld is per Secy''s instruction on P.U.C. below pl. for fav. of inf.

Sd/-2/2/84

CE

ESD

DE

RK

C.E.

E.S.D.

Page No. 12

CE may kindly see.

Sd/-2/2/84 Seen pl.

Sd/-2/2/84

Sd/-2/2/84

Sd/-2/2/84 Discussed with H.C.M. today. Pl. issue w/o as already ordered at page 10 after settling the rate with Mr. N.P. Tamang.

Sd/-2/2/84 Please negotiate.

Sd/-2/2/84

May kindly be seen the application of Mr. N.P.

Tamang. He has agreed to execute the work on DE W/S schedule rate. Submitted for favour of orders pl.

Sd/-13/2/84

133

Pl. pu w.o.

J.E I Sd/-14/2

Pl. fair w.o.

Sd/-14/2/84 Faired pl.

Sd/-15/2/84 As per prepage order w.o. has been prepared in favour of Shri N.P. Tamang and submitted for favour of signature pl.

Sd/-15/2/84 Pl. issue.

Sd/-15/2"

Mr. ____

Mr.

Pothen

DE(w/s)

Dspt

In the correspondence pages of the file pertaining to the work, we find amongst others, a representation dated 01-02-1984, Exhibit 46, submitted to the Rural Development Department by the Gram Panchayat of the area, whereby demand had been made for awarding the work to one Keshar Singh Chhetri, a resident of the village where the work was being undertaken. As per the Gram Panchayat, the demand had been made to A1 earlier also. From the notes of the various authorities, we find that the lowest bidder, Prem Prakash Agarwal''s bid was not accepted, as he was also the lowest contender for the scheme at RWSS at Sadam (note of the DE, PW2). Both him and the Chief Engineer recommended N.P. Tamang for acceptance, but on the condition that rate should be negotiated with him comparable with the others if he is to take up the work as endorsed by the beneficiaries. In the midst of the process of issuing the necessary work order, the Block Panchayat of the area recommended the name of another person, namely, Keshar Singh Chhetri, which resulted in A2 directing withholding of the issue of work order pending finalization by a note on the body of the representation Exhibit 46. However, as a result of the note of A2 dated 13-02-1984, which reads as "Discussed with HCM today. Pl. issue w/o as already ordered at page 10 after settling the rate with N.P. Tamang." decision was taken in favour of N.P. Tamang. The letter dated 13-02-1984, Exhibit 47, written by N. P. Tamang addressed to DE, PW2, of the department, and the note Exhibit 53 of the JE, PW3, shows that the offer was made to execute the work "at par" with schedule of rates which was accepted and accordingly, work order issued to him.

We find that the preferential clause and the NIT, even if considered to be legal and valid, does not appear to have been applied fairly. The comparative statement clearly shows the existence of two other local contractors, namely, Nim Tshering Lepcha and Keshar Singh Chettri, who have bidded 2% and 5% below respectively, and N.P. Tamang who had bidded 9% above, and therefore the highest bidder, had been selected by asking him to reduce the offer at par to the schedule rates, when it ought to have been Keshar Singh Chettri who had bidded the lowest amongst the local contractors, but he was ignored in preference to N. P. Tamang, the highest bidder amongst all, on being instructed by A1 as can reasonably be inferred from his note dated 13.02.1984. As stated earlier, the role of A2 appears to be of compliance of the orders of A1, his Minister, and not complicity.

In any case, we find that the name of A9, S.D.Tamang, since deceased, is conspicuously missing from the deliberations in the note sheets. The allegations in the charge sheet is that it was S.D. Tamang who had actually executed the work in the name of N.P. Tamang, being himself not eligible for the contract, but was favoured as he was a supporter of A1. This does not appear to have been proved at all by the prosecution and in fact do not find that the prosecution has made any effort to prove this. Notwithstanding this, on his death, during the course of the trial, the charge was declared to have been abated against S.D. Tamang. However, this does not in my view absolve A1 from the offence of abuse of his official positions in awarding the work to N.P. Tamang.

It is also worth noting that the unsuccesful contractor, Mr. Prem Prakash Agarwal had filed a Writ Petition in the High Court of Sikkim which has been strongly relied upon on behalf of the prosecution and asserted that the Hon''ble High Court had come to a finding that the action of awarding the work in the manner it was done was violative of Article 14 of the Constitution of India and, therefore, illegal. The relevant portion of the judgment in the case of Prem Prakash Agarwal (supra) specifically referred to is extracted below:

From the above discussion, it is clear that the State is entitled to refuse to enter into contract with any one, yet if it does so, it cannot arbitrarily choose any person it likes for entering into such relationship and discriminate between persons similarly circumstanced. Where any Government action fails to satisfy the test of reasonableness and public interest, as in the case in hand, it must follow that Government or its functionary cannot act in a manner which will benefit a private party at the cost of the State. In a developing country as that of ours, which has scarce resources, husbanding public funds has special onerousness. Government employees and high functionaries, while dealing with public exchequer act as trustees. A private individual is guided by economic considerations of self gain in any action taken by him. It is always open to him under the law to act contrary to his self interest or to oblige another in entering into a contract or dealing with his property. But the Government and its functionaries are not free to act as they like in granting largess, such as, awarding a contract or selling or leasing out State property (reference in this connection may be made with advantage to Kasturi Lal Lakshmi Reddy v. State of Jammu & Kashmir (supra, at page 11, paragraph 11)."

[emphasis supplied]

Relying upon the above finding of the High Court, Mr. I.D. Vaid, learned Special Public Prosecutor, submitted that the illegality of the action having been established, the charge against the Appellants would stick. He also referred to the judgment of Karamchand Ganga Pershad (supra) and submitted that a decision in a civil case would also be binding in a criminal proceeding, the relevant portion of which also is extracted below:

... It is a well established principle of law that the decisions of the civil courts are binding on the criminal courts. ...

[emphasis supplied]

The reliance placed by the learned Special Public Prosecutor on the above proposition of law in the present case, in my view, is misplaced, in as much as, the rigours of burden of proof in a criminal case is quite different from that of a civil proceeding, in as much as, in a criminal case the burden of proof upon the prosecution is proof beyond reasonable doubt, while in a civil case it is the preponderance of probability. The principle postulated by the Hon''ble Supreme Court is on the facts of the case that was in lis before its adjudication for decision. Apart from this, the decision in Karam Chand Ganga Prasad has since been overruled by a later decision in the case of Kishan Singh v. Gurpal Singh (supra) referred to by Mr. B.R. Pradhan. In any case, all that this Court has held in the case of Prem Prakash Agarwal (supra) is that the action was discriminatory and in violation of the rules and, therefore, invalid in law and that the decision is obviously an arbitrary in exercise of power by the executive and in violation of Article 14 of the Constitution of India. It may, however, be stated that the judgment in Prem Prakash Agarwal (supra) would be relevant to the extent that the manner of awarding the work in favour of N.P. Tamang was arbitrary and unreasonable having relevance to an offence under Sections 5(1)(d) read with Section 5(2) of the P.C. Act, 1947, as shall be dealt with later.

Rural Water Supply Scheme at Khamdong under Khamdong Gram Panchayat in East District.

The comparative statement of the bidders Exhibit D14 is reproduced below:

Comparative Statement for the Implementation of Rural Water Supply Scheme at Khamdong within Khamdong Gram Panchayat at (Unit No. 36) in East District.

Date of Tender: 18.1.84

Sl. No.

Name of Tender Rate Quoted 1.

Mr. Ramsarup Agarwala not submitted 2.

Mr. Karki Bhutia 5% Above 3.

Mr. Sang Dorjee Bhutia not submitted 4.

Mr. Tashi Chopel Bhutia not submitted 5.

Mr. Phintso Wangyal Bhutia not submitted 6.

Mr. Sarnath Kr. Chhetri 10.99% Above 7.

Mr. Urgen Lama 6% Above (LOWEST) 8.

Mr. K.B. Pradhan 15.75 % Below

It can be seen from the above that out of 8 bidders, those at serial Nos. 1, 3, 4 and 5, did not submit their tenders. Out of the remaining 4 bidders, the bid of K.

B. Pradhan is the lowest, but the work was awarded to Karki Bhutia at serial No. 2, the second lowest bidder at 5% above the schedule rate. We may now examine the records of the case in order to find out as to the reason for arriving at such a decision. For convenience, the relevant note sheets containing the notes of the various authorities are reproduced below:

Page No. 8

"May kindly be seen the application received from Mr. P.B. Lamichhaney of Khamdong requesting to award the work of R W S S at Khamdong to his name on negotiation. Total cost of this scheme is comes to Rs. 3,33,180/- civil work is only Rs. 1,14,164/- May kindly be seen the remarks of

DE W/S

JE I

Page No. 9

C.E.

the Hon''ble Chief Minister.

Cabinet of Sikkim decided to put this work on tender. Submitted for favour of orders pl.

Sd/-15/12/83 I have asked Mr. Lamichaney to see me after opening up the file but he has disappeared. When he comes to office direct him to my chamber, pl.

Sd/-16/12/83

Representation of P.B. Lamichaney for award of w/s scheme of Khamdong may pl. be seen. If this case is considered then correction in cancellation from N.I.T. list is to be made.

I do not know this man personally and whether he''s a contractor or not has to be proved by him pl.

also this case may kindly be discussed with Secretary as there could be direction from the Ministry.

140

Discussed with Secy.

DE (W/S) Please put it to tender.

Sd/-17/12/83

As directed this scheme has also included NIT

Sd/-19/12/83

The work was put to tender on 18.1.1984 and four tenders were received. Out of which DE (W/S)

Page No. 10

Shri K.B. Pradhan quoted rate 15.75% below the schedule is found lowest Hence if approved we may award the work to to (sic) the lowest tender pl and financial implication against the lowest tender will be worked out pl

Sd/-27/1/83

From the tenders received for the work w/s at Khamdong it appears that only four contractors have been interested. The striking point here is that all these four contractors are from the same village i.e. Sang and that three of them have quoted above. of the four Mr. K.B. Pradhan is the only one who has quoted below i.e. @ 15.75; Below. Mr. Pradhan has not secured any w/s works in our Deptt. Since Dec 1982.

Recommended for acceptance pl.

Sd/-27/1/83

Page No. 11

Sd/-28/1 ESD C.E.

Ref notes prepage the lowest tender Mr. K. B. Pradhan is of Sang which is an area adjacent to Khamdong. The lowest offer hence be accepted.

Sd/-28/1/84 The Panchayat and beneficiaries wanted

Secy

the work to be executed through Karki Bhutia but his rate is higher than others.

141

Pl. call him to office.

Sd/-C.E.

US A/c ESD DE(w/s)

AE (W/S)

Page No. 12

30/1 Sd/-31/1/83 Sd/-31/1 Sd/-31/1 May kindly be seen an application of Mr. Karki Bhutia. He has stated that he is willing to do the work of Khamdong at par.

Submitted for favor of information and na pl.

Sd/-1/2/84

ESD Placed below is the file for the work of Implementation of Water Supply Scheme at Khamdong within Khamdong Gram Panchyat. As per discussions with the C.E. (R.D.D.) the concerned contractor Mr. Karki Bhutia has put forward an application to the C.E. showing his willingness to execute the said work at ''schedule'' as desired by the department.

In the absence of the D.E. (w/s) the file has been forwarded to you for the release of work order as Mr. Karki Bhutia wants to begin the work early. The same has been submitted for approval and necessary action, please.

Sd/-1/2/84

After discussion with CE Shri Karki Bhutia has submitted his reduced offer in writing and he has

agreed to execute the work at schedule rates.

If approved we shall award the work to him.

Sd/-1/2/84

C.E

Mr. Karki Bhutia has petitioned for award of work at schedule rate. But when the lowest tenders''s rate is 15.75% below awarding the work at scheduled rate to Mr. Karki may invite audit objection in future. We may, therefore, ask

Page No. 13

Mr. Karki to execute the work at a rate lower than

Secretary

C.E.

the scheduled rate pl.

Sd/-1/2/84 In view of Panchayats representation award the work at sch. Rate to Karki Bhutia.

Sd/-4/2 .......................................................................

From the note of the JE, Exhibit 28, we find that A1, the Chief Minister, had directed the work to be put on tender. After this, it appears that P.B. Lamichaney had represented to A1 requesting for award of work on negotiation to him. The note of the same JE, Exhibit 109, indicates that the work was put on tender. From the note of DE, Exhibit 110, it is revealed that all the 4 bidders were from Sang village and that the lowest bidder, K.B. Pradhan, had not executed any water supply works in the department since 1982. Although by note Exhibit 111, the Chief Engineer had remarked that K.B. Pradhan being from Sang, an area adjacent to Khamdong and was the lowest offerer, his bid be accepted. But note Exhibit 112 of A2 indicates that the Panchayat and the beneficiaries wanted the work to be executed through Karki Bhutia and remarked that his rate is higher than the others and directed that he be called to his office. Obviously, as a result of negotiation as can be gathered from the note Exhibit 113 of the JE, Karki Bhutia had agreed to execute the work at par the rates by an application, Exhibit 117, submitted by him to that effect.

We find from the correspondence pages of the file pertaining to the work, a representation Exhibit G2, submitted by the Gram Panchayat of the area to A1, whereby it has been stated that the works executed by the contractors bidding below the schedule rates having found to be of low quality, the work in question be awarded to Karki Bhutia if he agrees to execute it at par with schedule rates. It can, therefore, be seen that sole basis for the decision to award the work to Karki Bhutia was the representation G2. Although there is No. endorsement made by A1, the fact that it was processed in the file would be sufficient to infer that it was passed on the instruction of A1.

Another aspect of this scheme is that though it is the allegation in the charge sheet that although the work was awarded to Karki Bhutia, it was actually executed by A14. We find that the prosecution far from proving this charge has not led any evidence at all to establish it. Karki Bhutia has not been made an accused which is revealed from the statement of PW21 (the second I.O.) extracted above, but has rather been arrayed as a witness for the prosecution as PW13. In his cross-examination on being declared hostile, PW13 has categorically denied that A14 had anything to do with the work in question. We may refer to the relevant portion of his deposition which is reproduced below: -

...It is not a fact that the said water supply scheme contract work was managed by accused No. 14 Norbu Tshering Bhutia to be awarded in my name and that the said contract work was executed by him (accused No. 14)....

In the circumstances stated above, I hold that as the prosecution having failed to establish the charge against A14, he is entitled to be acquitted.

Having thus examined and analysed the records and other evidence in respect of each of the schemes, we may now proceed to summarise the findings recorded against them. The details of the notings in the files pertaining to each of the schemes have been set out and the relevant portions of the depositions of the prosecution witnesses reproduced at the cost of prolixity of this judgment, as the case hinges on the materials on the records which were necessary to be examined, in order to appreciate as to how the impugned decisions were arrived at. However, before summarizing the findings, we may record the further submissions placed by the learned Counsels on both the sides.

Mr. B.R. Pradhan submitted on behalf of A1 that Rural Water Supply Scheme was a Centrally Sponsored Scheme to be completed by 1985 with bonus offered to the States for completion of the schemes successfully on time, as time was the essence of the scheme, notified both in the tender notice and in the tender documents. It was further stated that local participation through local Panchayats were encouraged as the schemes were to be handed over to the local bodies on completion and the villagers were to be beneficiaries. Apart from this, the people were required to donate their land free of cost. It was for these reasons that the preferential clause in the NIT was inserted. It was further stated that, under Clause 6 of the General Conditions of Contract, the department has the right to accept or reject any of the tenders without giving any reasons. That further, Rules 27(7) and 27(8) of the Sikkim Finance Rules, 1979, permit the department to accept a tender other than the lowest for reasons to be recorded. We may for convenience reproduce the provisions referred to by the learned Counsel as under: -

Rule 27(7)

Whenever practicable and advantageous contracts should be placed only after tender have been openly invited. Whenever a tender other than the lowest is to be accepted, the reasons therefore should be recorded and decisions taken only after such reasons have been accepted by the authority competent to approve the contracts."

Rule 27(8)

In selecting the tender to be accepted the financial status of the individual and firms tendering as also their performance in similar contracts must be taken into consideration in addition to all other relevant factOrs.

NIT Conditions

" ...

Perference (sic) shall be given to those contractors who are resident of the villages where the Water Supply Schemes are being implemented.

The Department of Rural Development reserves the right to reject any or all tenders without assigning any reason thereof."

General Conditions

"6. The accepting authority reserves the right to reject any or all the tenders without assigning any reasons and he will not be bound to accept either the lowest tender or any of the tenders.

No doubt, the scheme sponsored by the Government of India was a laudible one but it was not a licence for the authorities to indulge in rampant violation of the laid down procedure at the whims and caprice in the guise of their efforts to achieve the object of the scheme. In the present case, arbitrariness and illegality are gross. It has already been noted that by the Cabinet Decision 17 of the works had already been awarded on nomination and the rest were to be put on tender. The preferential clause in the NIT conflicts with the decision of the Cabinet and obviously makes the decision of the Cabinet a mockery. In the garb of taking resort to that clause, the accepted and well settled principles of tender has been violated rampantly in a most atrocious manner. Therefore, the noble object being canvassed, in my view, is an ingenious argument to camouflage the illegalities committed. The defence taken on the above premises does not appear to be convincing.

Another argument placed by Mr. B.R. Pradhan was that the plea on behalf of the prosecution that the insertion of the NIT was one circumstance in the chain of circumstances against the Appellant A1 cannot be raised, as it was never put to the Appellant while examining him u/s 313 Code of Criminal Procedure This is No. doubt a generally accepted position of law, but in the facts and circumstances of the present case, it is inapplicable, as we find that even taking the NIT to be validly inserted, it was grossly abused. Under such circumstances, the pleas raised on behalf of the Appellant, A1 stand rejected.

So far as the non-compliance of Section 157 is concerned, in my view, there has been substantial compliance of the provision as a copy of the FIR had been endorsed by the I.O. to the District and Sessions Judge, East and North Sikkim at Gangtok, a fact which has not been denied. The District and Sessions Judge, East and North Sikkim at Gangtok having received a copy of the FIR under such endorsement, fulfils the requirement of the provision of him being informed of the investigation of the offence. Therefore, the contention stands rejected.

Another plea raised strongly on behalf of A1 was that the allegation that there was unanimity in the recommendations by the JE, PW3, DE PW2 and the Chief Engineer in favour of the lowest bidder which was ignored by A1 and A2 have been proved to be false by the I.Os. PWs. 20 and 21 in their depositions. However, this would not alter the established fact that apart from the lowest bid being indeed ignored, the preference clause provided in the NIT was rampantly flouted in an arbitrary exercise of authority.

Therefore, the abuse of powers by A1 and A2 has been clearly established. Therefore, even if the evidence of the Investigating Officers belies the allegations in the charge sheet, the case of the prosecution cannot be vitiated on that count.

It was next contended that although the charge sheet reflects a preliminary enquiry having been made before registration of regular case, No. evidence has been led to establish that on behalf of the prosecution and that in a case of this nature, preliminary enquiry is a must to ensure that public servants are not put into unnecessary hardship. I do not think that this is a sustainable argument, as No. prejudice appears to have been caused to A1 or for that matter against the other Appellants for such inadequacy in the evidence. Law does not prescribe such requirement. Necessity of such a preliminary enquiry would depend on the facts and circumstances in each case. In the present case, it is an admitted position that a preliminary enquiry has indeed been made and this Court finds No. reason to doubt this.

It had further been submitted most vehemently that the entire prosecution case stand vitiated as investigation of the case was taken up by the very person who was the informant as revealed from the FIR. This contention, in my view, is an unacceptable proposition as would be evident from Sections 154, 156 and 157 of the Code of Criminal Procedure, 1973. The law in this regard has been well settled in the decision of the Apex Court in the case of State rep. by Inspector of Police, Vigilance and Anti-Corruption, Tiruchirapalli, Tamil Nadu Vs. V. Jayapaul, , the relevant portion of which is reproduced below: -

We have No. hesitation in holding that the approach of the High Court is erroneous and its conclusion legally unsustainable. There is nothing in the provisions of the Code of Criminal Procedure which precluded the Appellant (Inspector of Police, Vigilance) from taking up the investigation. The fact that the said police officer prepared the FIR on the basis of the information received by him and registered the suspected crime does not, in our view, disqualify him from taking up the investigation of the cognizable offence. A suo motu move on the part of the police officer to investigate a cognizable offence impelled by the information received from some sources is not outside the purview of the provisions contained in Sections 154 to 157 of the Code or any other provisions of the Code. The scheme of Sections, 154, 156 and 157 was clarified thus by Subba Rao, J. speaking for the Court in State of U.P. v. Bhagwant Kishore Joshi: (AIR p. 223, para 8)

"Section 154 of the Code prescribes the mode of recording the information received orally or in writing by an officer in charge of a police station in respect of the commission of a cognizable offence.Section 156 thereof authorises such an officer to investigate any cognizable offence prescribed therein. Though ordinarily investigation is undertaken on information received by a police officer, the receipt of information is not a condition precedent for investigation.

Section 157 prescribes the procedure in the matter of such an investigation which can be initiated either on information or otherwise. It is clear from the said investigation that an officer in charge of a police station can start investigation either on information or otherwise.

[emphasis supplied]

97.1 In view of the position of law postulated above, the contention raised by the Learned Counsel cannot be sustained.

The contention of Mr. Pradhan that investigation was unfair and tainted because, as admitted by PW3 that the notings of the file have been tampered with and that the scheme files placed before the court had been reconstructed, in my view, does not appear to be of substance. On perusal of each of the scheme files, we find that there is continuity in the handwritten deliberations as regards the substantive portions relevant to the schemes and do not appear to have been tampered with which is manifest from the extracts of the notings in the file reproduced above. Therefore, even if the files had been reconstructed, it is found that the essential parts of the deliberations appear to have been retained. Therefore, the allegation of tampering in the sense that there were interpolations is not substantiated, and, therefore, the contention stands rejected.

The further contention that the prosecution had relied upon and exhibited isolated and selected notings in the files giving versions suitable to the prosecution, even if true, in my view, does not vitiate the case of the prosecution, as on examination of the entirety of the files by this Court, it does not reveal anything to the contrary. This is quite evident on perusal of the extracts of the note sheets in respect of each of the schemes reproduced above.

The case of the prosecution is that, A1, A2 and the Appellant contractors A5, A6, A7, A8, A13, A14 and A15, in conspiracy with each other had awarded the works by ignoring the lowest tenderer and, therefore, A1 and A2 had abused their positions as public servants, thereby causing pecuniary gain to the accused contractors causing corresponding loss to the Government, thereby committing offences u/s 120B of the Indian Penal Code and Section 5(1)(d) read with Section 5(2) of the P.C.Act, 1947, as also the substantive offence u/s 5(1(d) read with Section 5(2) of the said Act.

As per the prosecution, the fact that there has been gross arbitrariness and indiscretion in the action of A1 and A2, has been settled by the finding of this Court in the case of Prem Prakash Agarwal (supra) the principle of which would be applicable in all the schemes. That the arbitrariness on the part of A1 and A2 having been established, the abuse of their power is a natural corollary and such action can be clearly inferred to be a consequence of a conspiracy that was hatched between A1 and A2 and the contractors. Mr. Vaid further submitted that the conspiracy between A1 and A2 has to be read in the preferential clause provided in the NIT itself, as the subsequent action in awarding the works to the other accused contractors followed from that provision. As per Mr. Vaid, the conspiracy theory stands well-established by virtue of the fact that out of the 36 contract works, 17 had already been decided by the Cabinet to be awarded on negotiation in favour of the contractors who had been named in that decision. The preferential clause which had been inserted in the NIT having not been contemplated in the decision of the Cabinet, it is to be inferred as being the handiwork of A2 in conspiracy with A1. I find substance in the arguments for the reasons that follow.

102.Criminal conspiracy is defined u/s 120A of the Indian Penal Code which is reproduced as under: -

120A. Definition of criminal conspiracy.- When two or more persons agree to do, or cause to be done,-

(1) an illegal act, or

(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:

Provided that No. agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

Explanation.- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.

103.The offence, therefore, involves:

(i) an agreement to do, (ii) an illegal act, (iii) by illegal means, or (iv) the agreement being followed by an over act.

104.The section also requires that there should be meeting of the minds of the conspirators, which would mean unity of purpose and, the agreement to do the illegal act may even be implied.

In the case of Jethsur Surangbhai v. State of Gujarat : 1984 SCC 207, it has been held that "Unless the prosecution proves that there was a close cohesion and collusion between all the accused which formed the subject matter of a conspiracy, it would be difficult to prove the dual charges against the Appellant (A1) ............In a criminal case of such a serious nature mens rea cannot be excluded and once the charge of conspiracy failed the onus lay on the prosecution to prove affirmatively that the Appellant was directly and personally connected with acts or omissions pertaining to items 2, 3 and 4. ............."

In the case of R. Balakrishna Pillai Vs. State of Kerala, , it has been held that the element of mental state of the persons involved is an important factor requiring consideration in order to conclude that there was criminal conspiracy amongst them. It is also a settled position of law that the offence of conspiracy is one which requires detailed and specific proof against each of the accused that individually participated in a particular design to do a particular criminal thing. In this regard, we may refer to the case of Emperor Vs. Aftab Mohd. Khan and Others, , where it has been held as follows: -

...The offence of conspiracy under S. 120B, Penal Code, is one which requires detailed and specific proof against each of the accused that he individually participated in a particular design to do a particular criminal thing....

107.Reference may also be made to the case of State of Madhya Pradesh v. Sheetla Sahai and Ors. (supra) referred to by Mr. B.R. Pradhan.

The nature of the offence of conspiracy and the extent of the burden of proof has been quite well laid down in the case of Sheetla Sahai (supra), where it has been held in paragraph 17 that criminal conspiracy is an independent offence which is punishable separately, and that the prosecution is required to establish the offence by applying the same legal principles applicable for the purpose of establishing criminal misconduct on the part of the accused.

In the case of Kehar Singh and Others Vs. State (Delhi Administration), , it has been, while emphasizing the burden of proof in respect of the offence of criminal conspiracy held as under: -

It will be thus seen that the most important ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act. The illegal act may or may not be done in pursuance of agreement, but the very agreement is an offence and is punishable. Reference to Ss. 120-A and 120-B, Indian Penal Code, 1860 would make these aspects clear beyond doubt. Entering into an agreement by two or more persons to do an illegal act or legal act by illegal means is the very quintessence of the offence of conspiracy.

Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must enquire whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy required some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. Gerald Orchard of University of Canterbury, New Zealand (Criminal Law Review 1974, 297 at 299) explains the limited nature of this proposition:

"Although it is not in doubt that the offence requires some physical manifestation of agreement, it is important to note the limited nature of this proposition. The law does not require that the act of agreement take any particular form and the fact of agreement may be communicated by words or conduct. Thus, it has been said that it is unnecessary to prove that the parties "actually came together and agreed in terms" to pursue the unlawful object; there need never have been an express verbal agreement, it being sufficient that there was "a tacit understanding between conspirators as to what should be done.

[emphasis supplied]

Thus having regard to the ratio set out above and upon consideration of the facts and circumstances alluded to in detail in respect of each of the schemes and the rival contentions, the brief summary of my views are as shall appear hereafter.

Analysis and findings on each of the schemes in question have been set out in detail while dealing with them individually. It may be observed that the findings arrived at would cover both the sets of offences as the evidence that have been analysed are comprehensive for that purpose and overlapping.

In the Malbasey RWSS, we have already noted that the allegation that A4 (since deceased), A5 to A8 had manipulated the work in favour of the contractor, R.K. Goyal has not at all been established. No. evidence appears to have been rendered at all to substantiate such charge. In fact, R.K. Goyal who ought to have been charged was rather arrayed as a witness and examined as PW16. In my view, failure on the part of the learned trial Court to notice these aspects has greatly prejudiced A14 and A5 to A8. There being absolutely No. finding against them, they ought to have been acquitted. However, selection of R.K. Goyal for award of the work in the manner it had been done was grossly illegal for having ignored K.K. Pradhan, the lowest tenderer who was a local contractor, for reasons dehors the NIT conditions, thus clearly establishing the culpability of A1 and A2.

In the Zerung RWSS, the arbitrary manner of award of work to S.K. Khartam by A2 on the clear and categorical direction of A1 fully establishes that the two had agreed to award the work to S.K. Khartam by ignoring Tashi Wangdi Bhutia who was the lowest tenderer and a local contractor. Although the work order issued to S. K.

Khartam was later withdrawn, the award of work to A11 again ignoring the lowest tenderer, Tashi Wangdi Bhutia by A2, is an instance of his gross abuse of power, although it can be reasonably inferred that it was done on the instructions of A1. Therefore, the offences stand fully established against A1, A2 and A11, A11 apparently being a fortuitous beneficiary.

In the Samdong RWSS, we have noticed that A1 had acted on the representation of A13 on the day of the tender and had communicated it to A2 for its compliance. The fault in A2 lies in his compliance of the unmistakable communication by A1 of his order, which is reflected in the seemingly innocous remark endorsed to him on the body of the report, Exbt.19. Gross abuse of power is clearly made out as against A1, illegality of which is manifest, thereby obtaining pecuniary advantage to A13. The conviction against A1, A2 and A13, therefore, is justified.

In Budang Thansing RWSS, it is fully established that A1 most arbitrarily acted on the representation, Exbt. 84 and A2 complied with his direction to award the work to A14, ignoring the lowest tenderer. A14 who is a fortuitous beneficiary accepted the award of the work on being offered. The convictions on A1, A2 and A14 are, therefore, justified.

In Patuk RWSS, although the DE had recommended the lowest tenderers, the work was offered to A15 and A1 had acted arbitrarily on the representation of the Panchayats, Exbts. 75 and 76, and A2 had complied with his directions. Although A15 who was not a beneficiary by choice he accepted the offer and executed the work.

Therefore, the conviction against these accused persons are justified.

In the Upper Tintek RWSS, upon consideration of the facts discussed under the scheme, we find that the work was awarded by A1 to A3 (deceased) on the clear direction of A1, which is manifest from his order contained in the note dated 22.02.1984, Exbt.9 on his letter head. Although we find that the decision to award the work to A3 (deceased) was taken on 31.01.1984, the fact that it was withheld until the order contained in his note, Exbt. 9 was issued, undoubtedly leads to the inference that the decision was taken under the orders of A1. There can be No. doubt that A2 had acted in compliance to the directions of A1, and therefore, had agreed to perform the illegal act although reluctantly and, therefore, they are guilty of the offence u/s 120B and Section 5(1)(d) read with Section 5 (2) cannot be held to have committed any offence. A3 the beneficiary of the illegal order having died, the charge stood abated against him.

In the case of Raley Khasey RWSS, we have noticed that the decision to award the work to N.P. Tamang was as a consequence of a discussion held between A1 and A2 which is found recorded in the note of A2 dated 02.02.1984. Thus it can be reasonably inferred that the decision to award the work to N.P. Tamang was taken under the orders of A1. This inference can be drawn also from the facts and circumstances in the other schemes. In any case, N.P. Tamang is not an accused, as it was alleged that it was actually one S.D. Tamang A9 who executed the work. Apart from the fact that No. effort was made by the prosecution to prove this fact, the said S.D. Tamang (A9) died during the trail and, therefore, the charge was declared to be abated against him. However, the culpability of A1 and A2 are quite apparent and, therefore, I hold that they are guilty of having committed the offence.

In Khamdong RWSS, one Karki Bhutia was awarded the work, on A1 having acted on a Panchayat representation, Exbt.G2, a decision which was communicated to A2 by ignoring the lowest tenderer for reasons quite alien to the tender conditions. Therefore, the culpability of A1 and A2 is quite evident justifying the conviction against them.

There is, however, a significant aspect of this scheme which calls for consideration. It has been alleged that although Karki Bhutia had been selected on the basis of the preferential clause, the charge is that it was A14 who had actually executed the work. However, the prosecution has failed to prove this charge. In fact No. evidence has at all been rendered to prove this. For these reasons, the conviction against A14 appears to be totally unsustainable and deserves to be acquitted in Criminal Appeal No. 7 of 2008.

We have noted while examining the individual schemes that the actions of A2 and his subordinates were triggered by the representations submitted by the various Panchayats to A1 that were passed on to A2 and in one case directly to the Assistant Engineer with clear direction to place for consideration in the files. From the evidence emerging in each of the schemes that we have alluded to above, there can be No. doubt of the fact that A2 was under compelling circumstances which resulted in him complying with the desire of A1. In other words, the compliance of A2 to the directions and command of A1 was not a spontaneous one but reluctant. However, even though reluctantly he did agree to the command of A1 to award the works to the Appellant contractors. In an offence of criminal conspiracy, the agreement which often is to be inferred from proved circumstances, followed by commission of an illegality are circumstances sufficient to make the persons culpable. It may be observed that all the prosecution witnesses have proved and corroborated the entire sequence of events of the deliberations in the individual scheme files. In their cross-examinations by the learned defence Counsels extracted above in extensio to the benefit of Appellants, efforts have been made to establish that the decisions taken in those schemes were in giving effect to the policy of the Government, the NIT Preferential Clause and the General Conditions of Contract and the decisions taken by A1 and A2 were in bonafide performance of their duties as public servants and further, that the basis upon which the charge sheet was filed against the Appellants that there was unanimity in the recommendations of the JE, DE and the CE in favour of the lowest bidder, which was ignored by A1 and A2, are false.

On going through the entire depositions of the witnesses, No. doubt we find that there are statements to that effect, but in my view, those do not in any manner discredit or contradict or displace the categorical statements made in their statements-in-chief which are borne out of the documentary evidence, namely, the notings in the note sheets of the scheme files, the representations by the Panchayats and the endorsements of A1 on those representations and specific directions contained in his separate letter heads referred to earlier. Those are established circumstances from which we can reasonably infer the culpability of A1 and the obvious compelling circumstances in which A2 had agreed to be part of the arbitrary decision of A1. So far as the Appellant contractors are concerned, the fact that they had accepted the award of the contract as a consequence of the orders of A1 is sufficient circumstance to infer that they were part of the conspiracy. Therefore, the inescapable conclusion in the circumstances is that, all the accused persons apart from the Appellant in Criminal Appeal No. 7 of 2008, in respect of Khamdong RWSS and the Appellants in Criminal Appeal No. 12 of 2008, are guilty of the offence u/s 120B read with Section 5(1)(d) and 5(2) of the P.C.Act, 1947.

Their convictions by the learned Special Court are, therefore, upheld.

As regards the charge of Section 5(1)(d) read with 5 (2) against A1 and A2 is concerned, it may be stated that there appears to be No. doubt as to their culpability. The principle of law as regards Section 5 (1) (d) has been well settled in a catena of decisions primary of which is the case of M. Narayanan Nambiar (supra) which have been discussed with in detail above but, notwithstanding that, a portion of it requires to be reproduced as under: -

..."Abuse" means mis-use i.e. using his position for something for which it is not intended. That abuse may be by corrupt or illegal means or otherwise than those means. The word ''otherwise'' has wide connotation and if No. limitation is placed on it, the words ''corrupt'', ''illegal'', and ''otherwise'' mentioned in the clause become surplusage, for on that construction every abuse of position is gathered by the clause. So some limitation will have to be put on that word and that limitation is that it takes colour from the preceding words along with which it appears in the clause, that is to say something savouring of dishonest act on his part. The contention of the learned Counsel that if the clause is widely construed even a recommendation made by a public servant for securing a job for another may come within the clause and that could not have been the intention of the Legislature. But in our view such innocuous acts will not be covered by the said clause. The juxtaposition of the word ''otherwise'' with the words "corrupt or illegal means" and the dishonesty implicit in the word "abuse" indicate the necessity for a dishonest intention on his part to bring him within the meaning of the clause....

[emphasis suppl.]

Similar are the views expressed in the case of S.

P. Bhatnagar and Anr. v. State of Maharashtra, Abdulla Mohd. Pagarkar and Anr. v. State (Union Territory of Goa, Daman and Diu) and State by Special Establishment v. D. Krishnamurthy which have been alluded to earlier.

The facts and circumstances discussed above clearly establish abuse of their official positions by A1 and A2 to obtain pecuniary benefits to the Appellant contractors. The discussion on the evidence is being avoided since it has already been fully dealt with while considering the offences u/s 120B and Section 5(1)(d) read with Section 5 (2) of the P.C.Act, 1947 and it has been observed before that the evidence overlaps the two distinct offences. Having regard to the evidence, abuse of position for commission of illegality to obtain pecuniary benefits to the Appellant contractors, stands fully established against A1. Mens rea for a politician in a case of the present kind cannot be far to fetch, as his action would be to ingratiate himself to the electorate for reasons that are quite obvious. Although such mens rea cannot be attached to government servants that includes A2, yet from the discussions with regard to each of the schemes, we can draw a clear conclusion that A2 had acted in compliance to the orders of A1, which were either communicated to him in his innocuous remarks contained on the body of the representations of the Panchayats or by direct means in his written orders on his letter heads. A1 being the Chief Minister of the State, particularly of the size of Sikkim, naturally had an overwhelming influence over A2, leaving him with No. choice but to bow to his commands. Therefore, inspite of this finding that A2 is a reluctant participant, yet he having agreed to comply with the arbitrary command of A1 to commit the offence by use of his official position, brings him within the ambit of the offence, and, therefore, he is also held to be guilty therefor. Under such circumstances, convictions against both A1 and A2 by the Ld. Trial Court stand upheld.

We may now consider the aspect of the requirement of sanction u/s 197 of the Code of Criminal Procedure, 1973, against A1 and A2, due to offence u/s 120B. This issue is being taken up in pursuance of the decision of the Hon''ble Supreme Court in the case of P.K. Pradhan Vs. The State of Sikkim represented by the Central Bureau of Investigation, , where it has been held as follows: -

In the present case, the accused is claiming that in awarding contract in his capacity as Secretary, Department of Rural Development, Government of Sikkim, he did not abuse his position as a public servant and works were awarded in favour of the contractor at a rate permissible under law and not low rates. These facts are required to be established which can be done at the trial. Therefore, it is not possible to grant any relief to the Appellant at this stage. However, we may observe that during the course of trial, the court below shall examine this question afresh and deal with the same in the main judgment in the light of the law laid down in this case without being prejudiced by any observation in the impugned orders.

Upon consideration of the circumstances and the undeniable facts revealed by the records, it stands fully established that A1 and A2 had entered into a criminal conspiracy and awarded works to the Appellant contractors by ignoring the lowest tenderers. It has also been established that in some of the schemes even the local contractors who had bidded lower than the Appellant contractors had been ignored. By doing so, they have most brazenly flouted and acted with scant regard to the well established tender procedure prescribed under the rules. It is clear that not only the Financial Rules 27(7) was violated, but also the preferential clause given in the NIT condition, as has already been discussed. No. doubt, the General Conditions of Contract vests the accepting authority with the power to reject any or all the tenders without assigning any reasons and that he will not be bound to accept either the lowest tenderer or any of the tenderers, but such power and discretion require to be exercised in a fair and reasonable manner which is glaringly lacking in the case at hand. It is rather noticed that the reasons given for ignoring the lowest tenderers and the others amongst the local tenderers who were lower than the Appellant contractors, are quite untenable and arbitrary.

In the case of Amrik Singh Vs. The State of Pepsu, , it has been held as under: -

If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction u/s 197(1) would be necessary; but if there was No. necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then No. sanction would be required.

[emphasis added]

In the case at hand, it is quite evident that the official position and status of A1 and A2 only furnished the opportunity to perform the acts because A1 as the Chief Minister of the State wielded all pervasive powers to enable him to commit the illegal action. A2, on the other hand, being the Secretary of the concerned department was in a position to give effect to the illegal and arbitrary decision of A1. To enter into a criminal conspiracy was not the duty of either A1 or A2. Under such circumstances, No. sanction was necessary for their prosecution and the cognizance taken by the Special Judge cannot be held as invalid.

On the question of sentence, however a different approach in my view, would be necessary for the reasons as shall be stated hereinbelow.

A1 has been proved to be the principle offender, as the entire design to commit the illegality was conjured up by him. A2 was a reluctant subordinate, but nevertheless agreed to the design, while the other Appellants were the beneficiaries of the design, and therefore, part of it. Under such circumstances, the culpability of A2 and the other Appellants are apparently not so severe for the reasons already indicated which I desist from repeating for the sake of brevity. All the accused persons/Appellants, except for one who is now about 60 years, are advanced and ailing septugenarians. More than 27 years have passed since the commission of the offence and during the interregnum the Appellants had No. doubt suffered in body and mind. In my view, therefore, having regard to the extent of the notional loss caused to State, it now would be too harsh to award even the minimum punishment at this length of time. Although the learned Trial Court also has reduced the sentence under the proviso to Sub-section (2) of Section 5 of the Act, considering the facts and circumstances of the case and the extent of involvement of each of the Appellants, justice would be met if the sentence is modified as follows: -

A.For the offence u/s 120B and Section 5(1)(d) of the Prevention of Corruption Act, 1947, the sentence shall be altered as under: -

(i) Against A1, who is the Appellant in Criminal Appeal No. 06 of 2008, the sentence of simple imprisonment shall stand reduced from 6 (six) months to 1 (one) month, but the sentence of fine shall remain unaltered.

(ii) Against A2, the Appellant in Criminal Appeal No. 03 of 2008, the Appellant in Criminal Appeal No. 7 of 2008 (in respect of Budang Thangsing RWSS), Appellant in Criminal Appeal No. 8 of 2008 (in respect of Patuk RWSS), the Appellant in Criminal Appeal No. 9 of 2008 (in respect of Zerung RWSS) and the Appellant in Criminal Appeal No. 10 of 2008, (in respect of Samdong RWSS), the sentences of imprisonment are set aside but the sentences of payment of fine of Rs. 5000/- (Rupees five thousand) shall remain unaltered.

(iii) Failure to pay fine shall entail further imprisonment of two weeks in the case of A1, i.e., the Appellant in Criminal Appeal No. 06 of 2008, and imprisonment of one week each in the cases of the rest of the Appellants.

B.For the substantive offence u/s 5(1)(d) read with Section 5(2) of the Prevention of

Corruption Act, 1947, the sentence passed by the Ld. Trial Court shall be altered as follows: -

(i) The sentence of simple imprisonment of 6 (six) months passed against A1 shall be altered to 1(one) month, but the sentence of fine shall remain unaltered.

(ii) Against A2, sentence of simple imprisonment is set aside but the sentence of fine shall remain unaltered.

(iii) Failure to pay fine shall entail further imprisonment of two weeks in the case of A1, the Appellant in Criminal Appeal No. 06 of 2008) and one week in the case of A2, the Appellant in Criminal Appeal No. 03 of 2008.

Both the sentences shall run concurrently.

C. The conviction and sentence against the Appellants A5 to A8, in Criminal Appeal No. 12 of 2008 (Harka Singh Chewan, Hari Prasad Rai, Ratna Bahadur Subba, and Hari Prasad Sharma) and the Appellant, Norbu Tshering Bhutia in Criminal Appeal No. 7 of 2008 (in respect of Khamdong RWSS) are set aside and hereby acquitted forthwith. Consequently, they stand discharged from bail.

The Appellants, Shri Nar Bahadur Bhandari, Shri P. K. Pradhan, Shri Norbu Tshering Bhutia, Shri Sonam Wangdi Bhutia, Shri Sriniwas Agarwal and Shri A.B. Gurung in Criminal Appeal No. 06 of 2008, Criminal Appeal No. 03 of 2008, Criminal Appeal No. 7 of 2008, Criminal Appeal No. 08 of 2008 and Criminal Appeal No. 10 of 2008 respectively, are directed to surrender before the learned Special Judge, Prevention of Corruption Act, East and North Sikkim at Gangtok, without fail by 10.30 a.m. tomorrow to face the process for execution of the sentence.

No order as to costs.

Let a copy of this judgment and order along with the original records be transmitted to the learned Court of the Special Judge, Prevention of Corruption Act, East and North Sikkim, Gangtok, forthwith for its due compliance in accordance with law.

Before parting, I must place on record the appreciation of this Court on the able assistance rendered by the Learned Counsels on both the sides, in particular Mr. B.R. Pradhan, whose articulation on both law and facts were most commendable.