Delhi High Court
Nihal Chand & Ors. vs Cbi on 7 May, 2019
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: April 25, 2019
Pronounced on: May 07, 2019
(i) + CRL. A. 18/2013
NIHAL CHAND & ORS.
(ii) + CRL.A. 21/2013
GULSHAN KUMAR ...........Appellants
Through: Mr. Roopansh Purohit,
Advocate
Versus
CBI .....Respondent
Through: Mr. Anil Grover, Special Public
Prosecutor with Ms. Noopur
Singhal, Advocate with Inspector
Vinod Gandhi, EOW
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
1. Impugned judgment of 19th December, 2012 holds appellants-
Nihal Chand (Executive Engineer Civil), RC Bansal AE (Civil), Anil
Kumar( Jr. Engineer) and Gulshan Kumar (Contractor) guilty for the
offences under Sections under Sections 420/468/471 IPC r/w 120B IPC;
Section13(2) r/w Section 13(1) (d) of Prevention of Corruption Act, 1988
(henceforth referred to as the „PC Act‟) and Section 120B IPC r/w
Section 420/468/471 IPC and Section 13(2) r/w Section 13(1) (d) of PC
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Act in RC No. 69(A)/03. Vide impugned order of 20th December, 2012,
the aforesaid appellants have been sentenced as under:-
"CC 31/11
Convict Nihal Chand
u/S 120B IPC: Rigorous Imprisonment for 02
years and fine of Rs.10,000/- in
default SI for 06 months
u/S 420 IPC: Rigorous Imprisonment for 02
years and fine of Rs.10,000/- in
default SI for 06 months
u/S 468 IPC: Rigorous Imprisonment for 02
years and fine of Rs.10,000/- in
default SI for 06 months
u/S 471 IPC: Rigorous Imprisonment for 02
years and fine of Rs.10,000/- in
default SI for 06 months
u/S 13(1) (d)
r/w 13 (2) PC Act : Rigorous Imprisonment for 03
years and fine of Rs.20,000/- in
default SI for 06 months
Convict RC Bansal
u/S 120B IPC: Rigorous Imprisonment for 02
years and fine of Rs.10,000/- in
default SI for 06 months
u/S 420 IPC: Rigorous Imprisonment for 02
years and fine of Rs.10,000/- in
default SI for 06 months
u/S 468 IPC: Rigorous Imprisonment for 02
years and fine of Rs.10,000/- in
default SI for 06 months
u/S 471 IPC: Rigorous Imprisonment for 02
years and fine of Rs.10,000/- in
default SI for 06 months
u/S 13(1) (d)
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r/w 13 (2) PC Act : Rigorous Imprisonment for 03
years and fine of Rs.20,000/- in
default SI for 06 months
Convict Anil Kumar
u/S 120B IPC: Rigorous Imprisonment for 02
years and fine of Rs.10,000/- in
default SI for 06 months
u/S 420 IPC: Rigorous Imprisonment for 02
years and fine of Rs.10,000/- in
default SI for 06 months
u/S 468 IPC: Rigorous Imprisonment for 02
years and fine of Rs.10,000/- in
default SI for 06 months
u/S 471 IPC: Rigorous Imprisonment for 02
years and fine of Rs.10,000/- in
default SI for 06 months
u/S 13(1) (d)
r/w 13 (2) PC Act : Rigorous Imprisonment for 03
years and fine of Rs.20,000/- in
default SI for 06 months
Convict Gulshan Kumar
u/S 120B IPC: Rigorous Imprisonment for 02
years and fine of Rs.10,000/- in
default SI for 06 months
u/S 420 IPC: Rigorous Imprisonment for 02
years and fine of Rs.10,000/- in
default SI for 06 months
u/S 468 IPC: Rigorous Imprisonment for 02
years and fine of Rs.10,000/- in
default SI for 06 months
u/S 471 IPC: Rigorous Imprisonment for 02
years and fine of Rs.10,000/- in
default SI for 06 months
All the sentences shall run concurrently."
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2. The facts as noted in the impugned judgment are as under:-
"1.0 RC No. 69(A)/03/ACB/CBI was registered on
30/12/03 on the basis of an information that accused
persons namely Nihal Chand Executive Engineer (Civil),
RC Bansal, AE (Civil), Anil Kumar Jr. Engineer had
entered into a criminal conspiracy with Gulshan Kumar
Contractor (co accused proprietor of M/s Sarvodaya
Constructions Pvt. Ltd.) during the year 2003-04 to
defraud MTNL by way of making bogus payments to M/s
Sarvodaya Constructions Company to the tune of
Rs,3,92,131/- against agreement No.
64/EE(CM)N/MTNL/03-04. The payment related to the
repair of damaged flooring at Sanchar Haat, Telephone
Exchange, Shakti Nagar, Delhi, wherein no such work was
carried out. The accused persons in conspiracy with each
other forged the record and the bill was passed by
Executive Engineer Nihal Chand in conspiracy with co-
accused and payment was made to the M/s Sarvodaya
Construction company vide cheque No.7319555 dated
12/9/03. The physical inspection revealed that infact no
such work was carried out during last one year. RC No.
69(A)/03 was registered u/S 120B IPC r/w 420/468/471
IPC r/w 13(2) r/w 13(1) (d) of PC Act against the accused
persons.
1.1 Investigation revealed that accused Anil Kumar in
pursuance to the conspiracy, made fake entries at page
No.25-29 of Measurement Book 373 regarding execution
of the work and the same was countersigned by RC Bansal,
AE and Nihal Chand Executive Engineer. CBI also came
across another bill of Rs.1.09 Lacs duly paid on 21/1/03 to
M/s Sarvodaya Constructions Pvt. Ltd. in respect of the
repair to damaged tiles at Sanchar Haat, Shakti Nagar,
whereas no such work was carried out. This bill was not
supported by entries in the measurement book nor was
accompanied by the original technical sanction letter
order. The photocopy of the sanction order attached was
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also found to be forged by tampering with the dates on
signatures of Sh. Kashmira Singh.
1.2 The premises of Sanchaar Haat at Shakti Nagar was
commissioned on 30/03/2001. During site inspection, Sh.
PR Charan Babu, AE, Representative of CPWD in his
report after examining the measurement book opined that
the work of the dismantling of the originally fixed tiles,
which were damaged in refixing of the new tiles as
recorded by Sh. Anil Kumar, JE, in the Measurement Book
was highly improbable to be done on the same day i.e.
8.8.03. During inspection, videography of the premises
was carried out and the same was recorded in a video
cassette.
The investigation revealed that the documents essentially
required to be prepared and maintained in connection with
the execution of any civil work, was neither prepared nor
maintained by the Division Head. Sh. Rajinder Pal,
Executive Engineer i.e. successor of Nihal Chand
confirmed that no such records are available in his office
nor were handed over to him by his predecessor. Sh. SPS
Grewal, SEM also made a corroborative statement.
Investigation revealed that photocopy of Technical
Sanction, dated 11/12/2002 was attached with the bill and
was sent for pre-check before payment. It purportedly
bears signature of Sh. Kashmira Singh, AGM dated
12/12/2002 whereas, Sh. Kashmira Singh, had handed
over the charge to his successor on 24/1/2001. Sh.
Kashmira Singh, informed that photocopy of the technical
sanction attached with the bill was a forged and tampered
document and has been forged on the strength of the
sanction executed by him on 11/12/2000, when he held his
office as AGM (MM). The original sanction order issued
by Sh. Kashmira Singh had memo No.NZ/AA/C-19/2000-
01 dated 11/12/2000 which was changed to NZ/AA/C-
19/2002-03. GEQD Simla have a positive opinion
regarding alterations of the dates and has stated it to be
"Intended Manipulations", and also gave positive opinion
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regarding the writings and signatures of the accused
public servants as well as the private parties on the said
bills and the documents.
1.3 CBI filed the chargesheet u/Ss 120B r/w
420/468/471 IPC and Sec. 13(2) r/w 13(1) (d) of PC Act,
1988 concluding inter alia that all the rules regarding the
tendering procedure were grossly and blatantly flouted by
the officers of Civil Wing, Rohini including Nihal Chand,
PK Bhalla, RC Bansal and Sh. Anil Kumar alongwith Sh.
Gulshan Kumar, proprietor M/s Sarvodaya Constructions
Pvt. Ltd., which resulted in unauthorized payment of
Rs.3,98,936 for two works to the contractor whereas no
such work was actually carried out."
3. The aforesaid appellants were put on trial for the offences under
Sections 420/468/471 IPC r/w Sec.120B IPC; Section 13(2) r/w Section
13(1) (d) of PC Act, 1988 and Section 120B r/w Sections 420/468/471
IPC and Section 13(2) r/w Sec.13(1) (d) of the PC Act, 1988. Trial court
has relied upon evidence of thirty witnesses and has discarded the stand
of aforesaid appellants-accused persons and has thereafter convicted the
aforesaid appellants, as noticed hereinabove, while holding as under-
"7.2 The members of the inspection team have made
a consistent and corroborative statement on oath. The
defence has made an attempt to discard these testimonies on
the ground that all the witnesses were the officials. I consider
that such arguments cannot be accepted. PW3 Sh. Bal Kishan
Kaushik, PW4 Smt. Ganga Kumari, PW6 Sh. HR Tohan,
PW9 Smt. Chandra Kanta Khera, PW10 Ms. Anju
Harikishan, PW11 Sh. Sanjeev Kumar Sharma, PW18 Smt.
Madhu Gaur and PW26 Sh. Satish Kumar have made
consistent and corroborative statement on oath. The
inspection reports Ex. PW5/A and Ex. PW7/A have also been
proved beyond any shadow of doubt. The accused persons
were the senior officials of MTNL. They were entrusted with
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the job of executing civil work from public exchequer. The
prosecution has successfully proved that they entered into
conspiracy and raised the false bill Ex. PW2/B regarding
repair to damaged floor at Sanchar Haar TE Building, Shakti
Nagar. The bill Ex. PW2/B was duly prepared by AE RC
Bansal and passed by XEN Nihal Chand. Accused Anil
Kumar JE was the concerned JE at that time. The work in
question was awarded to A5 Gulshan Kumar, proprietor M/s
Sarvodaya Constructions."
4. The challenge to the impugned conviction and sentence awarded to
appellants Nihal Chand (EE Civl), R.C.Bansal (AE Civil), Anil Kumar
(JE) and Gulshan Kumar (Contractor) is on the ground that the two bills
Ex.PW2/A and Ex.PW2/B relating to repair of the damaged flooring at
Sanchar Haat, TE Building, Shakti Nagar, Delhi are justified in the light
of MB No.373 as from perusal of inspection report of MBs, it stands
established that tiles in 25 sqm area at Sanchaar Haat; 25 sqm area in
toilet at Sanchaar Haat and 50.74 sqm at passage of battery room in
Sanchaar Haat were laid and painting work of ₹42,000/- was carried out
at Sanchaar Haat. It was pointed out that prosecution has relied upon
evidence of P.R.Charan Babu (PW7) to assert non execution of work at
battery room and in toilet of Sanchaar Haat, as in his chief examination,
he has stated that all the work was done on 8th August, 2003. It was
submitted that when Niranjan Singh (PW-1) was confronted with MB No.
373, he admitted that the work had started in Sanchaar Haat on 18 th July,
2003 and it was completed on 8th August, 2003 and to this effect is the
deposition of Mukesh Kapoor (PW-16).
5. It was submitted by appellants' counsel that the videography of 31st
December, 2003 has revealed that R.K.Rishi, Investigating Officer (PW-
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29) was scolding the employees of MTNL when the said employee had
informed him that the new tiles in the passage and battery room in
Sanchaar Haat were fixed three to four months back. It was pointed out
that G.B.Singh (PW-5) in cross-examination has admitted that the repair
work was done at the Sanchaar Haat. It was submitted that prosecution
case of fake bills being prepared is without any basis as D.S.Negi (PW-2),
H.S.Sharma (PW-20), Mukesh Kapoor (PW-16), Swaran Lata (PW-23)
from the accounts wing of MTNL have duly proved the bills Ex. PW-2/A
and Ex. PW-2/B after the verification of work done was obtained. It was
submitted that execution of remaining tile work was duly carried out in
Sanchaar Haat and toilet and this stands proved from the evidence of
H.R. Tohan (PW-6), Bal Kishan Kaushik (PW-3), Ganga Kumari (PW-4)
and Satish Kumar (PW-26). It was further pointed out that evidence of
P.R.Charan Babu (PW-7) and Rakesh Dutt (PW-8) stands contradicted by
the measurement book and the bill Ex.PW-2/B. Attention of this Court
was drawn to the evidence of R.K.Rishi, Investigating Officer (PW-29) to
point out that he had found the tiles in place in the hall of Sanchaar Haat.
6. It was pointed out by learned counsel for appellants that there was
no audit objection and as per evidence of G.B.Singh (PW-5), no
inspection of the battery room was carried out before 31st December,
2003 which belies the prosecution case of physical verification and so,
the report of no work being done stands falsified. It was further submitted
that the charge of incomplete work being done stands falsified from the
evidence of G.B.Singh (PW-5), who has proved the Inspection Report
(Ex. PW-5/A), which reveals that tiles were fixed and due measurement
of tiles was done. It was further submitted that repair work was done at
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Sanchaar Haat on two dates and it is so evident from the Inspection
Reports Ex.PW-5/A & Ex.PW-7/A. It was next submitted that the
deposition of Sanchaar Haat employees PWs-3, 4, 6, 9, 10,11, 18 and 26
of no civil work being carried out at Sanchaar Haat stands belied from
Inspection Report Ex.PW-5/A and their cross-examinations. It was
further submitted that no reliance can be placed upon Inspection Memo
(Ex.PW-7/A), as it is a unreliable document, because H.R.Tohan (PW-6)
had deposed that copy of agreement, schedule of quantity and copy of
bills were not shown to him when the Inspection Report (Ex.PW-7/A)
was prepared by him.
7. Learned counsel for appellants submitted that the entire case set up
against appellants is of technical nature and it is evident from the
deposition of PW-7, that the prosecution version stands demolished as
contrary version has been put-forth by him in his cross-examination. It
was pointed out that Inspection Report (Ex.PW-5/A) was prepared
without the site inspection and so, no reliance can be placed on it and that
the persons responsible for supervision or execution for the maintenance
work were S.E., C.E., Principal C.E., DGM(F) and CAO, who have not
come forward to prove the prosecution case. It was next submitted that all
bills of badarpur, cement, payment of labour etc. were provided to the
Investigating Officer but they were withheld and have been proved by the
defence witness DW-1. Attention of this Court was drawn to the evidence
of PW-3, PW-4, PW-7, PW-8, PW-28 and PW-29 to point out that
prosecution version stands demolished from the cross-examination of
aforesaid witnesses. Finally, it was submitted on behalf of appellants that
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whatever repair work was done, it is checked by the higher authorities
and monitored through Financial Monitoring System (FMS).
8. Learned counsel for appellants thus submitted that the impugned
conviction and sentence awarded is unsustainable as the basis of the two
bills i.e. Ex. PW-2/A and Ex. PW-2/B is the MB No.373 which has not
been duly proved on record and so, the very basis of the prosecution case
gets demolished. Attention of this Court was drawn to first Inspection
Report (Ex. PW5/A) to submit that this report is based upon the
information supplied by Anil Kumar( Jr. Engineer) but the said Jr.
Engineer has not signed this report nor has any official witness deposed
in respect of the contents of this inspection report. It was pointed out that
the evidence of G.B.Singh (PW-5) does not incriminate appellants
because in the inspection report (Ex.PW-5/A), it is recorded that Anil
Kumar J.E. had got the tiles fixed in the hall and battery room.
9. It was asserted that the Inspection Report Ex.PW-7/A deserves to
be discarded as in this very report, it is recorded that copy of agreement,
schedule of quantities or copy of bill paid were not made available and
even the copy of technical sanction estimate to access the actual
requirement was not available and so, the opinion expressed in this report
regarding there being no visible difference between the old flooring and
so called now flooring is without any basis. It was pointed that P.R.
Charan Babu (PW-7) who has proved the Inspection Report (Ex. PW-
7/A), has admitted in his evidence that Inspection Report in respect of
repair of damage flooring at Sanchar Haat, Shakti Nagar was prepared on
seeing M.B.No. 373. It was also pointed out that this witness has stated
that the total work mentioned has been done on the same date i.e. 8 th
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August, 2003 and it is highly improbable that the work could be done on
one day. It was further pointed out by petitioner's counsel that in cross-
examination, this witness P.R.Charan Babu (PW-7) has demolished the
prosecution case as after seeing the MB, he has disclosed the date of start
of construction was on 27th July, 2003 and another date which seems to
be the actual date i.e. 18th July, 2003.
10. It was next submitted by appellants' counsel that this witness
P.R.Charan Babu (PW-7) has admitted that he did not mention the date of
start of construction in this inspection report and no document except
measurement book was made available to him during inspection. It was
submitted that this witness has categorically admitted that copy of
agreement, copy of bill etc. were not shown to him at the time of
inspection. It was also submitted that this witness P.R.Charan Babu (PW-
7), did not use any scientific instrument to ascertain the age of tiles and
did not take any sample and so, the evidence of this witness could not be
relied upon. It was further pointed out that this witness P.R.Charan Babu
(PW-7) had not asked the in-charge of battery room about the date of
fixing of tile in the battery room. As regards other official witnesses are
concerned i.e. PW-3, 4, 6, 9, 10, 11, 18 and 26, it was submitted that
these witnesses in their cross-examination, have admitted that the tile
work was carried out in the hall and bathroom of Sanchaar Haat. Thus, it
was submitted that prosecution fails to prove its case and so, appellants
deserve to be acquitted.
11. On the contrary, learned special public prosecutor for respondent-
CBI refutes the aforesaid stand taken on behalf of appellants and supports
the impugned judgment and submits that from the evidence of G.B.Singh
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(PW-5) and P.R.Charan Babu (PW-7) the prosecution case stands proved
beyond reasonable doubt and so, these appeals deserve dismissal.
12. Upon hearing and on perusal of scrutiny of evidence on record, I
find that the trial court has concluded that the repair work was not done in
Sanchaar Haat while relying upon deposition of P.R.Charan Babu (PW-
7), because this witness had stated in evidence that the repair work at
Sanchaar Haat was purportedly done on 8th August, 2003. However, this
witness in his cross-examination has admitted that the repair work at
Sanchaar Haat had commenced on 18th July, 2003 and it was concluded
on 8th August, 2003. On this aspect, Mukesh Kapoor, Accounts officer,
Cash, (PW-16) has also deposed. It is relevant to note that G.B.Singh
(PW-5) in his cross-examination has admitted that repair work was done
at Sanchaar Haat. So, there is no basis to conclude that fake bills were
prepared regarding the repair works done at Sanchaar Haat. Infact,
D.S.Negi (PW-2), Mr. Mukesh Kapoor (PW-16), H.S.Sharma (PW-20)
and Swaran Lata (PW-23) from the accounts department of MTNL have
duly deposed in respect of the bills (EX. PW2/A & PW2/B) after the
verification of the work done was obtained.
13. From the cross-examination of Bal Kishan Kaushik (PW-3), Ganga
Kumari (PW-4) and Satish Kumar (PW-26) it stands established that the
repair work at Sanchaar Haat toilet and battery room was duly done.
G.B.Singh (PW-5) has deposed that no inspection of battery room was
carried out before 31st December, 2003 and thus, there was no basis to
conclude that no repair work was done in the battery room or in the toilet
at Sanchaar Haat. From the evidence of G.B.Singh (PW-5), the charge
of no work being done stands falsified, as the statements of PW-3, PW-4,
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PW-6, PW-9, PW-10, PW-11, PW-18 and PW-26 of no civil work being
carried out in Sanchaar Haat, stand negated from the Reports (Ex. PW-
5/A & Ex. PW-7/A). Otherwise also, Inspection Report (Ex. PW-7/A)
cannot be relied upon, as it was prepared without going through the copy
of agreement, schedule of quantity etc. Upon analysis of deposition of
PW-7, I find that the version put-forth by him in chief-examination,
stands demolished by him in the cross-examination. Trial court has erred
in relying upon the chief-examination only of above referred witnesses.
14. In the considered opinion of this Court, the trial court has erred in
relying upon the unreliable version putforth by P.R.Charan Babu (PW-7)
and above referred witnesses. This Court is constrained to observe that
the best evidence has been withheld. The Officer Superintendent
Engineer, Junior Engineer, Principle Chief Engineer, DGM (Finance) and
CEO (Accounts Officer) were relevant witnesses, who could have
conclusively proved the charge against the appellants. It has come in
evidence that bills regarding purchase of bricks, cement, payment of
labour etc were provided to the Investigating Officer but these bills have
not been proved on record. Another aspect, which needs to be
highlighted is that the bills (EX. PW-2/A & B) relating to the M.B. No.
373, have been duly proved on record. Thus, the substratum of the
prosecution case gets demolished. G.B.Singh (PW-5) has proved the
Inspection Report (EX. PW5/A) and it is clearly recorded that Anil Kumar
(Junior Engineer) had got the tiles fixed in the hall and the battery room.
15. Upon analysing the evidence of this crucial witness G.B.Singh
(PW-5), I find that his evidence does not incriminate appellants. Without
determining the age of tiles, it cannot be concluded that there was no
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visible difference between the old flooring and the new flooring. Upon
considering the crucial evidence of PW-5 and PW-7 and the entire
evidence on record, this Court is of the considered view that the
prosecution has failed to prove this case beyond reasonable doubt against
appellants.
16. Consequentially, impugned judgment and order on sentence cannot
be sustained and are hereby set aside, while extending the benefit of
doubt to the appellants.
(SUNIL GAUR)
JUDGE
MAY 07, 2019
r /v
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