State of Himachal Pradesh vs J.S. Parihar and Others

Rajiv Sharma, J.—State has filed this appeal against the judgment dated 25.06.2004, rendered by the learned Special Judge (Forest) in Corruption Case No. 25-S/7 of 2003/96, whereby Respondents J.S. Parihar, Prem Chand Thakur, Mohan Singh, Pawan Kumar, who were charged with and tried for offences, under Sections 420, 467, 468, 471, 218, 120-B of the Indian Penal Code, Section 13(2) read with Section 13(1)(d) of the P.C. Act, 1988 and Sections 4, 5 & 6 of the H.P. P.S.C. Act, 1983 have been acquitted.

Case of the prosecution, in a nut-shell, is that Respondent No. 1 J.S. Parihar, working as Executive Engineer, Respondent No. 2 Prem Chand Thakur, working as Junior Engineer and Respondent No. 3 Mohan Singh, Head Draughtsman, allotted the work for Rs. 99451/-, which was in excess of 58.44 above the estimated cost of Rs. 62,500/- for the construction of additional water supply scheme from Gasoh to Jhakri by earth work cutting for changing the course of Daj Khud. The work was to be executed by the contractor Pawan Kumar Sood. During the course of investigation of case F.I.R. No. 25/90, the Investigating Officer noticed certain irregularities and accordingly, he referred the matter to the superior officer. The H.P. State Electricity Board, on the basis of the request made by the Police, has constituted a committee to visit the spot and inspect all the works carried out in Jhakri Division. A copy of the report is Ex. PW-2/3. According to the conclusion drawn by the committee, inadequate work was carried out and the officials have made the wrong entry in the Measurement Book and the excess payment was released to the Contractor, i.e., Respondent No. 4 Pawan Kumar Sood. The ruka Ex. PW-10/A was prepared and the same was sent to the S.P. Enforcement South Zone, Shimla, on the basis of which, F.I.R. Ex. PW-10/B was registered.

On completion of investigation, report u/s 173, Code of Criminal Procedure was filed. Learned Special Judge, after complying with the provisions of Section 207, Code of Criminal Procedure and hearing the learned Public Prosecutor and learned defence counsel, felt that a prima-facie case under the aforesaid penal provisions of Indian Penal Code, P.C. Act, 1988 and H.P. P.S.C. Act, 1983, was made out. Respondents were charged accordingly. They pleaded not guilty.

Prosecution examined twelve witnesses to prove its case. Respondents were also examined u/s 313 of the Code of Criminal Procedure. The Respondents have also examined two DWs. Learned Special Judge (Forest), Shimla acquitted the Respondents on 25.06.2004.

Mr. J.S. Guleria, learned Assistant Advocate General has strenuously argued that the prosecution has proved its case. According to him, learned Special Judge (Forest) has not correctly appreciated the oral as well as documentary evidence.

Mr. Satyen Vaidya, learned Counsel for the Respondents has supported the judgment dated 25.06.2004, passed by the learned Special Judge (Forest), Shimla.

We have heard the learned Counsel for the Respondents and gone through the record meticulously.

According to the prosecution case, the quantum of work allegedly executed by the contractor was 2517.25 m3 and the quantum of work found as per the report of the committee was 2018.80 m3. Thus, there was loss Rs. 19,688.78 to the H.P.S.E.B.

PW-1 is V.L. Gupta, Assistant Engineer. According to him, the work was to be carried out for providing Additional Water Supply Scheme from Gasoh to Jhakri by changing the course of Daj Khad. According to him, the entire work was not found to have been executed at the site, as mentioned in the site plan, Ex. PW-1/1. In his cross-examination, he has deposed that he had not issued any notice to the accused to be present at the spot. He also admitted that RD marks were present and they had not tried to ascertain the same. The site was inspected by them after 3-4 months from the execution of the work. According to him, there was one foot deep water in Dhaj Khad at the time of inspection. The width of the Khad was 8 to 10 feet. He has also admitted categorically that as and when water level rises, soil erosin increases and the same decreases when the water level is low. He further admitted that there were heavy rains during March, 1991.

PW-2 is V.P. Gupta. According to him, the Technical Committee was constituted to assist the Investigating Agency. The work was allotted for Rs. 99451/- and necessary entries were also made in the MB No. 325/89 at pages 1,3, 4 and 5. They have submitted the report Ex. PW-2/3 to the D.I.G. Enforcement. According to him, the water at the time of inspection was one meter deep and the earth cutting work was in the shape of a curve. He also admitted that the work was inspected after one year of its execution. He also admitted that there were heavy rains in the area during 1990 and it could result in damage to the execution of the work. According to him, few Sections of CPWD Manual-II were adopted by the HPSEB only on 02.11.2000 and Section 25 of the CPWD Manual-II was made applicable to the H.P.S.E.B. on 14.05.1997. He further stated that the hand-written reports were handed over by the technical committee to the Enforcement Police about 15 times.

PW-3 K.R. Verma, one of the members of the Technical Committee, has appeared as PW-3. According to him, the Technical Committee has inspected 755 works executed during 1978 to 1990.

N.C. Sharma has appeared as PW-4, who was also the member of the Technical Committee. He has admitted in his cross-examination that due to heavy rains, the RDs. were disturbed.

PW-6 is Ramesh Chand, who was posted as Junior Engineer in Nathpa Jhakri Project. According to him, there was water at the time of inspection of Dhaj Khad. He also admitted that due to heavy rains, silt usually gets accumulated in the banks of the river.

PW-10 Rama Nand was posted as Deputy Superintendent of Police, who was investigating the F.I.R. No. 25 of 1990. He found certain irregularities in the work. He reported the matter to the D.I.G. Thereafter, a technical committee was constituted for the inspection of the site. The report was submitted to the D.I.G., Enforcement vide Ex. PW-2/3. Thereafter, ruka Ex. PW-10/A was prepared and the same was sent to the S.P. Enforcement South Zone, Shimla, on the basis of which, F.I.R. Ex. PW-10/B was registered.

PW-11 N.C. Sood, Deputy Government Examiner of Questioned Documents has examined the questioned handwritings of the accused and submitted his report Ex. PW-8/A and Ex. PW-11/B.

Respondent No. 4 was awarded the work for providing Additional Water Supply Scheme from Gasoh to Jhakri from RD-0 to RD-20. However, on the site, the work was found inadequate, though the entries about the work were made in the M.B. at Sr. No. 51 at page 53. According to the technical committee''s report, the work executed by the contractor was inadequate and, thus, the payments could not be released to him.

What emerges from the statements of PW-1, PW-2, PW-3 and PW-4, is that there were heavy rains at the time when the work was undertaken by the Respondent No. 4 for providing Additional Water Supply Scheme from Gasoh to Jhakri from RD-0 to RD-20. It has also come in the evidence that erosin will increase with the rise in the water level and the same will decrease when the water level is low. It has also come on record that the silt used to accumulate on the river''s bank. The prosecution has mainly relied upon technical report Ex. PW-2/3, prepared by the technical committee. The technical committee has visited the spot after a period of one year. There were bound to be changes within a period of one year as far as alignment and flow of the water is concerned. In case of flash floods, there will be more erosin and accumulation of silt.

Mr. Satyen Vaidya, learned Counsel for the Respondents has vehemently argued that the accused were not associated during the course when the site was visited by the technical committee. Mr. J.S. Guleria, learned Assistant Advocate General submits that the Respondents were associated with the inquiry, however, their signatures could not be obtained.

We are of the considered view that the Respondents ought to have been associated during the course of inquiry. It has come in evidence that as and when the short-comings are noticed, the same are brought to the authorities to rectify the same. This procedure has also not been followed in the present case. There is also variance in the statements of PW-1 and PW-2 with regard to the depth of the water. According PW-1, at the time of inspection, the level of water was one foot and according to PW-2, it was one meter deep. The technical committee has also not tried to ascertain the RDs. It was necessary for the technical committee firstly to identify the RDs. and thereafter to inspect the same. In the absence of the identification of RDs., it can not be said that the report pertains to RD 0 to RD-20, though PW-2 tried to explain it his cross-examination by stating that the R.Ds. were shown by the concerned Junior Engineer. The Respondent No. 4 has been assigned only the work of earth cutting. Since this work was being carried out on the banks of the Khud, there was bound to be erosin and land slides while executing the work. The CPWD Manual-II has been adopted by the HPSEB only on 02.11.2000 and the work had been undertaken in 1990. Section 25 of the CPWD Manual-II was made applicable to the HPSEB on 14.05.1997. Thus, there is no merit in this contention of Mr. J.S. Guleria, learned Assistant Advocate General that the work has not been undertaken as per CPWD Manual-II. Prosecution has also not placed on record copies of hand-written reports which were supplied to the Enforcement Police. There is no explanation why these handwritten notes have been withheld by the prosecution. Accused have also produced DW-1 and DW-2, namely, Shri Roshan Lal and Satish Kumar Gupta. They have produced on record Ex. DW-1/A, Ex. DW-1/B, Ex. DW2/A-1 to Ex. DW2/A-42 to prove that the Nathpa Jakri area was sinking zone and other construction works were also damaged during the course of heavy rains. The reports do not specifically deal with the site in question except Ex. DW2/A-13. Reports Ex. DW-1/A, Ex.DW-1/B, DW2/A-1 to Ex. DW2/A-42 probablises the defence taken by the Respondents that there were heavy rains during the period when the work in question was undertaken and completed.

In view of the abovestated position, we see no reason to interfere with the judgment of acquittal passed by the trial Court. Hence, the appeal is dismissed.