Delhi High Court
J P Singh vs Central Bureau Of Investigation on 23 November, 2015
Author: Indermeet Kaur
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 19.11.2015
Judgment delivered on : 23.11.2015
+ CRL.A. 975/2015
J P SINGH
..... Appellant
Through Mr. Siddharth Luthra, Sr. Adv.
with Mr. Pramod Kumar Dubey,
Ms. Supriya Juneja, Mr. Aditya
Singla, Mr. Shiv Chopra and Ms.
Pallavi Garg, Mr. Satyam Threja
and Mr. Saumya Sayal, Advs.
Versus
CENTRAL BUREAU OF INVESTIGATION
..... Respondent
Through Mr. Narender Maan, SPP with
Mr. Anand and Ms. Utkarsha
Kohli, Advs
+ CRL.A. 987/2015
OM PRAKASH MAHLA
..... Appellant
Through Mr. R.M. Tufail and Ms. Raavi
Birbal, Advs.
Versus
CENTRAL BUREAU OF INVESTIGATION
..... Respondent
Through Mr. Narender Maan, SPP with
Mr. Anand and Ms. Utkarsha
Kohli, Advs
Crl. Appeal Nos.975/2015, 987/2015 & 1087/2015 Page 1 of 13
+ CRL.A. 1087/2015
GURCHARAN SINGH
..... Appellant
Through Mr. Pramod Kumar Dubey, Ms.
Pinky Dubey and Mr. Amit
Rathore, Advs.
Versus
CBI
..... Respondent
Through Mr. Narender Maan, SPP with
Mr. Anand and Ms. Utkarsha
Kohli, Advs
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J.
Crl. M. (B) No.7747/2015 in CRL.A. 975/2015
Crl. M. (B) No.7765/2015 in CRL.A. 987/2015
Crl. M. (B) No.7973/2015 in CRL.A. 1087/2015
1 There are three appellants before this Court. Applicant J.P. Singh
was the Director of M/s Sweka Power Tech Engineers Private Limited;
Om Prakash Mahla was the Executive Engineer (Electrical)-V, MCD
and Gurcharan Singh was the UDC (Tender Clerk) of the MCD. All
three are convicts under Section 120-B//467/468/471 of the IPC and
Section 13 (1)(d) of the Prevention of Corruption Act. Convicts Om
Prakash Mahla and Gurcharan Singh have been separately convicted for
the substantive offence under Section 420 of the IPC. Each of them has
been sentenced to undergo RI for a maximum period of 4 years besides
fine for the separate convictions. Sentences were to run concurrently.
2 The nominal roll of the appellants has been requisitioned. Their
nominal roll reflect that as on date, each of them has undergone
incarceration of about 1 year and 2 months which includes the
remissions earned by them.
3 The version of the prosecution is that M/s Sweka Power Tech
Engineers Private Limited through its Managing Director T.P. Singh and
its Director J.P. Singh along with other public servants who were
employees of the MCD had in a concerted conspiracy (in the years
2007-2008) cheated the MCD and in furtherance of this conspiracy,
certain alterations/over-writings were made in the rate list of the items
of the tender documents which were submitted on 14.05.2008; these
forgeries were effected in the tender documents by T.P. Singh but this
dishonest and fraudulent act was in conspiracy with other co-accused.
Thereby, a wrongful loss of about Rs.1,42,83,000/- was caused to the
public exchequer and a benefit had accrued to the accused.
4 Evidence both oral and documentary had been led before the Trial
Judge. The Trial Judge had convicted the three appellants (before this
Court) as aforenoted; this Court is not dealing with the plea of any other
person and as such there is no necessity to note their convictions or their
sentence.
5 Learned senior counsel appearing for J.P. Singh submits that there
are substantial improvements made in the version of the prosecution and
the star witnesses of the prosecution (namely PW-4 and PW-6) in their
statements recorded under Section 161 of the Cr.PC had nowhere stated
that they had seen T.P. Singh making any alterations in the tender
documents on 14.05.2008; it was only in their version on oath in Court
that this has been uttered by them for the first time; this destroys the
credibility of these witnesses and thus the version of the prosecution that
alteration in the tender documents had been carried by T.P. Singh stands
nullified. Attention has been drawn to the documentary evidence which
is a part of the record. Submission being that even as per the
prosecution, there were three entries which were the subject matter of
dispute; qua the overwriting and cutting in the tender documents of
entries at Sr. No. 20 (a) and 20 (b) of the tender documents, the Trial
Judge has himself exonerated the accused and para 96 of the judgment
holds that since these entries had not been sent to the CFSL for
examination, it could not be established that the rates in these entries Sr.
No. in 20 (a) and 20 (b) were changed or altered. Submission of the
learned senior counsel qua entry No. 21 being that the evidence of PW-
10 who was the handwriting expert has not been appreciated correctly
by the Trial Judge to hold that this entry had been over-written or
altered. Attention has been drawn to certain parts of his cross-
examination to substantiate this argument. It is submitted that a
conviction based solely on the expert evidence is also a faulty finding.
Additional submission being that the version of the prosecution, that
certain rough notes were prepared by PW-5 who was the competitor
(tender documents of Spaceage Switchgears Ltd.) is also doubtful as
admittedly the so called offence had occurred in the year 2007-2008 but
this document i.e. the so called rough sheet (Ex.PW-5/B) was recovered
after more than two years i.e. on 29.04.2011 and the production-cum-
seizure memo shows that this recovery had not been effected from PW-5
but from the company M/s Spaceage Switchgears Ltd. This also creates
a doubt on the veracity of this document. It is additionally pointed out
that the appellants have suffered incarceration of almost 1 year and 2
months out of the total period of 4 years of imprisonment; the appeals
are not likely to be heard in the near future, the appellants be granted
suspension of sentence.
6 The arguments propounded by the learned senior counsel
appearing for J.P. Singh have been adopted by the counsel appearing for
Gurcharan Singh.
7 Learned counsel appearing for appellant Om Prakash Mahla in
addition has pointed out that the sanction qua Om Prakash Mahla is bad
and for this purpose attention has been drawn to the testimony of the
sanctioning authority (PW-1). Submission being that if the sanction is
bad, it is liable to be set aside and to support this argument learned
counsel appearing for Om Prakash Mahla has placed reliance upon a
judgment of a coordinate Bench in Crl. M.C. No.2695/2010 titled G.S.
Matharaoo Vs. CBI decided on 25.01.2012.
8 Needless to state that these arguments have been refuted by the
CBI.
9 Before adverting to the arguments on merit, this Court shall
answer the query raised by the learned counsel appearing for Om
Prakash Mahla on the question of sanction.
10 Section 19 of the Prevention of Corruption Act deals with the
sanction for prosecution. Section 19 (3) is relevant and reads herein as
under:-
19. Previous sanction necessary for prosecution.--
(1) xxxxxx
(2) xxxxxx
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2
of 1974),--
(a) no finding, sentence or order passed by a special Judge shall be reversed or
altered by a court in appeal, confirmation or revision on the ground of the absence
of, or any error, omission or irregularity in, the sanction required under sub-section
(1), unless in the opinion of that court, a failure of justice has in fact been
occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground of any error,
omission or irregularity in the sanction granted by the authority, unless it is satisfied
that such error, omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other ground and no
court shall exercise the powers of revision in relation to any interlocutory order
passed in any inquiry, trial, appeal or other proceedings.
11 The explanation is also relevant and the relevant extract of which
reads herein as under:-
"(a) error includes competency of the authority to grant sanction;"
12 The testimony of PW-1 has also been perused. Apart from a
single line suggestion that PW-1 who was the then Commissioner of the
MCD was not competent to accord sanction (which suggestion has been
denied), there is no other cross-examination of this witness on this score.
The failure of justice which has been suffered by the appellants has
neither been propounded and nor argued. Section 19 (3) which is
worded as a non-obstante clause section read with the Explanation
suggests that no sentence passed by a Special Judge shall be reversed or
altered in appeal only on an error (which error includes the competency
of the authority to accord sanction) unless the party concerned has been
able to show that any failure of justice has in fact been occasioned. At
the cost of repetition, this has not been propounded. The judgment relied
upon by the learned counsel for the appellant is wholly inapplicable. In
that judgment, the Court had gone into the question of the competency
of the authority to accord sanction when the trial had not yet started.
12 This argument is thus negatived.
13 The version of the prosecution that T.P. Singh had made the
alterations/changes in the entries in the tender document on 14.05.2008
was largely sought to be substantiated in the versions of PW-4, PW-5
and PW-6.
14 PW-4 who was the Deputy Manager of M/s Spaceage
Switchgears Ltd. has deposed that he heard PW-5 tell PW-6 that the file
of M/s Sweka Power Tech Engineers Private Limited has been taken to
the PS room and PW-6 should go there to find out what is happening; he
heard PW-6 tell PW-5 that something was being written in the file. This
part of the version of PW-4 did not find mention in his statement
recorded under Section 161 of the Cr.PC.
15 PW-6 Gaurav Bhalla who was also working with M/s Spaceage
Switchgears Ltd as Assistant Manager has deposed that M/s Spaceage
Switchgears Ltd was declared as L-1; when they were about to leave,
PW-5 told him that he should go and see what is happening outside; on
going outside, he saw that T.P. Singh was writing something in the file.
This part of the version of PW-6 did not find mention in his statement
under Section 161 of the Cr.PC.
16 In this context, PW-5 who was working as Vice President with
M/s Spaceage Switchgears Ltd had deposed that after the tender had
been opened and file had been taken out, he had asked PW-6 to check
what was happening outside; PW-6 came back and told him that
something was being written on the tender documents of M/s Sweka
Power Tech Engineers Private Limited and this was done by T.P. Singh.
This version of PW-5 was in conformity with his version recorded by
the CBI in the course of investigation.
17 Thus the submission of the learned senior counsel for the
appellant that the testimony of PW-4 and PW-6 amounted to an
improvement may be by and large correct qua the statements of PW-4
and PW-6 but not so qua the version of PW-5.
18 The further version of the prosecution is that PW-5 had written
rough notes on a piece of paper (Ex.PW-5/DA). The recovery of this
document was made on 29.04.2011 from the company (M/s Spaceage
Switchgears Ltd.). The offence relates to the year 2007-2008. Learned
counsel for the CBI submits that the delay in the seizure of this
document was for the reason that the charge-sheet had been filed only in
the year 2010. A large part of the finding of the Trial Judge has been
based on this document which as per the prosecution was
contemporaneously prepared at the time of opening of the tender. This
document was not recovered from PW-5 but from the company. The
explanation of the CBI on this count is that PW-5 had left the company
by that time. The delay in the seizure is however not wholly explained
by the Department.
19 There were three entries which were amiss in the tender
documents of M/s Sweka Power Tech Engineers Private Limited.
Entries at item No. 20 (a) and 20 (b) are not the subject matter of dispute
as the Trial Judge in his judgment had noted that since these entries had
not been sent to the CFSL for a scientific analysis, the
alterations/changes in these entries could not be established. Qua the
entry at serial No. 21, the highlighted version of PW-10 in this context is
to the effect that he could not say whether the questioned entries were
done at the same time i.e. at the time when the writings were executed at
the first instance or later on and although the CBI had queried them
from the angle of the making of corrections simultaneously or
subsequently but the same could not be determined.
20 Testimony of PW-11 who was the Chief Engineer in the
Electricity Department of the MCD had explained the process of
opening of tenders. Attention has been drawn to that part of his
deposition wherein he has deposed that comparative charts are prepared
on the basis of rates quoted in the tender which then becomes the basis
of payment; he had seen the comparative chart which has been prepared
in this case, which is prepared after the opening of the tender. Learned
senior counsel for the appellant submits that the entry at serial No. 21 of
the comparative chart relied upon by the Department (Ex.PW-1/D8)
matches his entry at serial No. 21 of his tender document and the figure
of 315 reflected in the comparative chart (Ex.PW-1/D8) is also reflected
in Ex.PW-10/A-E. Submission being all these facts have not been
considered in the correct perspective by the Trial Judge.
21 Noting all these submissions but without commenting on the
merits of the same and making it clear that any observation made in this
order will not influence the final judgment; the roles of each of the three
appellants being that they were a part of the conspiracy to commit the so
called forgery/alteration which was done by T.P. Singh; the additional
factum of the period of incarceration suffered by each of them having
been noted as also the fact that the appeals are not likely to be heard in
the near future, this Court deems it fit to suspend the sentence of the
appellants.
22 Accordingly, the substantive sentence of each of the three
appellants is suspended and they are admitted to bail on their furnishing
personal bond in the sum of Rs.50,000/- each with one surety each of
the like amount to the satisfaction of the concerned Trial Court with the
condition that they shall appear before the appeal Court as and when
their appeals are taken up for hearing; change of address, if any, shall be
intimated to the local SHO.
23 Applications disposed of.
CRL.A. 975/2015, CRL.A. 987/2015 & CRL.A. 1087/2015
24 Admit.
25 List in due course.
26 Order dasti under signatures of the Court Master.
INDERMEET KAUR, J
NOVEMBER 23, 2015
A
