Delhi High Court
Pankaj Goel vs State ( Through Cbi) on 15 April, 2024
Author: Sudhir Kumar Jain
Bench: Sudhir Kumar Jain
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: January 04, 2024
Decided on: April 15, 2024
+ CRL.A. 1202/2015
PANKAJ GOEL ..... Appellant
Through: Mr. D. S. Kohli, Mr. Yash
Kadyan, Mr. Himanshu
Dahiya, Mr. Mannat Kohli,
Advocates.
V
STATE (THROUGH CBI) ..... Respondent
Through: Mr. Yudhvir Singh
Chauhan, APP for State with
SI Naresh Kumar, P.S. Anti-
Corruption Branch.
CORAM
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
1. The present criminal appeal is filed under section 374 of the Code
of Criminal Procedure, 1973 (hereinafter referred to as "the Code")
to set aside the judgement dated 29.10.2015 (hereinafter referred to
as "the impugned judgment") and order on sentence dated
02.11.2015 (hereinafter referred to as "the impugned sentence
order") passed by the court of Ms. Poonam Chaudhry, Special Judge
Signing Date:16.04.2024 CRL.A.1202/2015 Page 1
- 07, (PC Act Cases of ACB), GNCTD Central District, Tis Hazari
Court, Delhi (hereinafter referred to as "the trial court") bearing
CC no. 04/2012 titled as State V Pankaj Goel and another arising
out of FIR bearing no 0023/2004 registered under sections
467/468/471/420 read with section 120 B IPC along with sections
13(1)(d) and 13(2) of the Prevention of Corruption act, 1988
(hereinafter referred to as "PC Act") at P.S. Anti-Corruption Branch,
Delhi.
2.The brief facts of the case are that M/s Aruna Builders and
Suppliers, Shakti Nagar, Delhi was awarded four work orders bearing
no 254, 255, 256 and 257 dated 07.08.1998 amounting to Rs.6.8 lacs
pertaining to improvement of roads in the area of Jahangir Puri. The
fresh bitumen as per terms and conditions of the work orders was to
be procured by the contractor from any of the Government Oil
Companies which are M/s IOCL, BP and HP for execution of the
work orders and receipt issued by the government Oil Company was
to be deposited with MCD, Delhi and no receipt of any other dealer
was allowed to be submitted. Pankaj Goel (hereinafter referred to as
"the appellant") was serving as a Junior Engineer and C.B. Singh,
Signing Date:16.04.2024 CRL.A.1202/2015 Page 2
the co-convict was serving as an Executive Engineer in Division No.
XVI, Civil Lines Zone, Municipal Corporation of Delhi (MCD) on or
before 07.08.1998 and they entered into a criminal conspiracy with
M/s Aruna Builders & Suppliers, 26/87, Shakti Nagar, Delhi through
its proprietor/contractor Arun Kumar Bansal (who was stated to be
died during the investigation) along with Naresh Gupta, Assistant
Engineer/co-accused (who also died in 2006 during the investigation)
to defraud MCD with aim to pass bills and release payment to the
contractor resulting in a pecuniary gain of Rs. 6.8 lacs through the
use of forged invoices. Arun Kumar Bansal in furtherance of
conspiracy used substandard/unauthorised bitumen in execution of
work orders and submitted bills amounting to Rs.6.8 lacs along with
forged vouchers/invoices regarding the purchase of bitumen from
M/s Indian Oil Corporation Ltd. and said bills were cleared by the
engineers of Division No. XVI MCD by abusing their official
position as public servant thereby causing pecuniary benefit to M/s
Aruna Builders and Suppliers.
2.1 Rajinder Singh Manku (PW16) in May, 2004 was posted as
Inspector in ACB, GNCT Delhi and received source information to
Signing Date:16.04.2024 CRL.A.1202/2015 Page 3
said effect. ACP Rajinder Singh Manku verified veracity of
information and thereafter prepared a detailed report and submitted to
Senior Officer regarding commission of offences under section 120B
IPC read with section 420/468/471/467 IPC and section 13(2) read
with section 13(l)(d) of PC Act. ACP Rajinder Singh Manku with the
approval of Senior Officers prepared a rukka dated 25.05.2004
(Ex.PW16/A) and accordingly FIR bearing no 23/2004 (Ex. PW1/A)
was got registered and investigation was assigned to PW20 Inspector
S.S. Sandhu posted in Anti-Corruption Branch.
2.2 PW20 S.S. Sandhu during investigation received files (Ex.
PW3/A to Ex. PW3/H from PW3 Pushkar Raj, Head Clerk, MCD
which were seized vide seizure memo Ex.PW3/J. PW20 S.S. Sandhu
sent a letter Ex.PWI5/B to the General Manager (Sales), IOCL,
Mathura and received reply Ex. PW15/A from the Chief Engineer,
Chief Refinery Coordinator wherein it was mentioned that in the year
1998 there was no customer in their record by the name of M/s Aruna
Builders and Suppliers and invoices prepared by IOCL were
computer generated but the invoices submitted by the M/s Aruna
Builders and Suppliers were manually prepared. PW20 S.S. Sandhu
Signing Date:16.04.2024 CRL.A.1202/2015 Page 4
also sent one letter to Executive Engineer, Division no. XVI, MCD to
provide measure books/registers bearing no 1766 Ex. PW13/A and
1769 Ex. PW13/B relating to work orders no. 254 to 257 and work
order no. 186 and 535 and received measurement books Ex. PW13/A
(as exhibited in another case) and Ex. PW13/B (as exhibited during
trial arising out of FIR no 24/04) vide letter Ex. PW17/A from PW17
Ashok Drabu, Executive Engineer.PW20 S.S. Sandhu interrogated
the appellant co-convict C.B. Singh and co-accused Naresh. PW19
Inspector K.L. Meena was entrusted with further investigation on
22.11.04 and interrogated co-accused Naresh Gupta and the
appellant. PW19 Inspector K.L. Meena called Head Clerk K.P. Singh
and PW4 Khazan Singh, UDC of Account Section during
investigation who informed that tender files and account files of the
work orders Ex. PW3/A to Ex. PW3/H bear the signatures of the
appellant, co-accused Naresh Gupta (since deceased), co-convict
C.B. Singh and Arun Kumar Bansal (since deceased). The further
investigation was transferred to PW21 Inspector Santosh Kumar on
13.12.2005.
Signing Date:16.04.2024 CRL.A.1202/2015 Page 5
2.3 PW21 Inspector Santosh Kumar during investigation he arrested
co-accused Arun Kumar Bansal (since deceased) vide arrest memo
EX.PW6/A. PW21 Inspector Santosh Kumar took the specimen
signatures of the contractor, the appellant and co-convict C.B. Singh
Ex.PW8/Al to A10 and PW8/B1 to B11 respectively on 12.03.2009
and specimen signatures of the co-accused (since deceased)
PWIO/AI to A10 on 09.03.2009 and sent specimen signatures and
questioned documents to FSL through PW7 HC Dasan and obtained
FSL report Ex.PW21/A. PW21 Santosh Kumar obtained sanctions
Ex. PW14/A and Ex. PW13/A for prosecution against the appellant
and co-convict C.B.Singh respectively. PW21 Santosh Kumar also
obtained bio data Ex. PW2/A and Ex. PW2/B and posting orders of
the appellant and co-convict C.B. Singh. PW21 Inspector Santosh
Kumar also arrested the appellant and co-convict C.B. Singh vide
arrest memos and personal search memos Ex. PW5/A to Ex. PW5/D.
PW21 Inspector Santosh Kumar also sent a letter Ex. PW21/B to
Superintendent Engineer, MCD regarding the procedure for
procurement bulk bitumen from Indian Oil Corporation for
construction work and received reply Ex. PW17/B from concerned
Signing Date:16.04.2024 CRL.A.1202/2015 Page 6
official. The charge sheet after completion of investigation was filed
against the appellant and co-convict C.B Singh for offences
punishable under sections 120B/420/467/468/471 IPC read with
sections 13(1)(d)/13(2) of the PC Act.
2.4 The court of Sh. Rakesh Siddhartha, Special Judge: (PC ACT) -
6, Delhi vide order dated 08.04.2011 framed charges for the offences
punishable under sections 120B/420/467/468/471 IPC read with
sections 13(1)(d) and 13(2) of the PC Act against the appellant and
the co-convict C.B. Singh to which they pleaded not guilty and
claimed trial. The prosecution in support of its case examined 21
witnesses.
2.5 The appellant and co-convict C. B. Singh were examined under
section 313 of the Code wherein he denied incriminating evidence
and pleaded false implication and innocence. The appellant stated
that a junior engineer is not involved in process of award of work
orders. The investigation was not fair and proceedings were
manipulated. The sanction Ex. 13/A was not given by a competent
person. The co-convict stated that he was not involved in the process.
It was responsibility of the contractor regarding genuineness of the
Signing Date:16.04.2024 CRL.A.1202/2015 Page 7
documents. The investigation was not fair and proceedings were
manipulated. The documents submitted by the contractor were to be
examined by the account department. The appellant and co-convict
C.B. Singh preferred to lead defence evidence and examined three
witnesses.
2.6 The appellant and co-convict CB Singh were convicted for the
offences punishable under sections 120B IPC, sections 13(1)(d) and
13(2) of the PC Act read with section 120B IPC and under section
420 IPC read with section 120B IPC vide impugned judgment dated
29.10.2015.
2.6.1 The appellant along with co-convict C.B. Singh vide impugned
order on sentence dated 02.11.2015 were sentenced to undergo
rigorous imprisonment for 02 years each with fine of Rs. 5,000/- each
for the offence punishable under section 120B IPC and in default of
the payment of fine to further undergo simple imprisonment for three
months. The appellant and co-convict were also sentenced to undergo
rigorous imprisonment for 02 years each with fine of Rs. 10,000/-
and in default to further undergo simple imprisonment for three
months for the offence punishable under section 420 IPC read with
Signing Date:16.04.2024 CRL.A.1202/2015 Page 8
section 120B IPC. The appellant and co-convict were also sentenced
to undergo rigorous imprisonment for 02 years each with fine of Rs.
5,000/- each and in default to further undergo simple imprisonment
for three months for the offence punishable under sections 13(1)(d)
and 13(2) of the PC Act read with section 120B IPC. All the
sentences were ordered to be run concurrently. The benefit under
section 428 of the Code was extended to the appellant and co-convict
CB Singh. The appellant has paid the fine.
3. The appellant being aggrieved filed the present appeal to challenge
the impugned judgment dated 29.10.2015 and impugned order on
sentence dated 02.11.2015 primarily on the grounds that the
impugned judgment is against the law and contrary to the facts and
circumstances. The trial court has not considered the inherent
inconsistencies and contradictions in the prosecution case and the
evidence and benefit of doubt ought to have been extended to the
appellant. The appellant was not under obligation to insist for invoice
from the contractor as an evidence of procurement of bitumen from
authorized source or to verify genuineness of invoice. There is no
evidence to draw an inference regarding the appellant arrived at any
Signing Date:16.04.2024 CRL.A.1202/2015 Page 9
agreement to do any legal act through illegal means. The prosecution
has failed to prove that the appellant had any knowledge about the
invoices being fabricated document and as such the appellant could
not have been convicted for having committed offences of
conspiracy, cheating or misconduct. The trial court has erred in
concluding that MCD has suffered any wrongful loss in relation to
the work orders subject matter of present case as MCD never
received any complaint regarding quality of work and too much
weight was given to the invoice and payments were released against
the actual work executed at site. The responsibility as per work order
of procuring bitumen from authorized source was on the contractor
only and the appellant being a Junior Engineer had no role in
procurement of bitumen. The appellant was one of the supervisory
officer to ensure execution of the work in consonance with the
quality stipulated under the work order. The trial court has committed
grave illegality in rejecting testimony of the defence witnesses. The
trial court has wrongly relied upon sections 91 and 92 of the Indian
Evidence Act to brush aside Ex. DW 6/DA. The trial court has
ignored serious infirmities in the investigation which cumulatively hit
Signing Date:16.04.2024 CRL.A.1202/2015 Page 10
at the root of the case of the prosecution. The trial court has wrongly
invoked section 106 of the Indian Evidence Act to shift the burden of
proof upon the appellant. The impugned judgment suffered from
various legal defects. The appellant also raised various other grounds
to challenge impugned judgment and impugned order on sentence.It
was prayed that the impugned judgment and order on sentence be set
aside.
4. The perusal of impugned judgment reflect that the trial court
considered argument advanced on behalf of the appellant that the
present case was registered on the basis of a source information as
deposed by PW16 but the source of the said information was not
disclosed. The prosecution neither examined informer as a witness
nor inquiry report stated to be conducted by PW16 was placed on
record. It was also argued that PW16 submitted detailed report to
seniors and a criminal case was got registered with the approval of
senior officers but the approval of senior officers was not placed on
record. It was also argued on behalf of the prosecution that PW16
conducted secret enquiry before registration of FIR and PW16 after
being satisfied that the appellant and other accused were guilty of
Signing Date:16.04.2024 CRL.A.1202/2015 Page 11
serious misdemeanour registered against them. The trial court opined
and held that non-disclosure of source of secret information was not
fatal to the case of prosecution as prosecution is not bound to disclose
the source of its information and purpose of secret enquiry was to
find out whether criminal proceedings can be resorted to save honest
public servants from vexatious prosecution.
4.1 The counsel for the appellant argued that registration of case
without conducting preliminary enquiry was fatal for the prosecution.
The perusal of rukka Ex. PW16/A reflected that no effort was made
by PW16 to conduct enquiry before registration but rukka
Ex.PW16/A was drawn by PW16 pursuant to the receipt of the secret
information on 25.05.2004 and within 5 minutes thereof FIR bearing
no 23/2004 Ex. PW1/A was registered.
4.2 The impugned judgment reflects that PW16 Inspector Rajinder
Singh Manku in May, 2004 received source information that M/s
Aruna Builders and Suppliers, Shakti Nagar, Delhi was awarded four
work orders bearing numbers 254, 255, 256 and 257 dated
07.08.1998 amounting to Rs.6.8 lacs pertaining to improvement of
roads in the area of Jahangir Puri and as per terms and conditions of
Signing Date:16.04.2024 CRL.A.1202/2015 Page 12
the work orders fresh bitumen was to be procured by the contractor
from any of the Government Oil Companies for execution of the
work orders. The engineers of Division No XVI MCD, Delhi while
executing work entered into a criminal conspiracy with accused Arun
Kumar Bansal with the intention to cheat MCD and in furtherance of
said conspiracy accused Arun Kumar Bansal used
substandard/unauthorised Bitumen. Subsequently bills amounting to
Rs.6.8 lacs along with forged vouchers/invoices submitted by the
contractors regarding the purchase of bitumen from M/s Indian Oil
Corporation Ltd. were cleared by the engineers of Division No. XVI
MCD including the appellant by abusing their official position as
public servant thereby caused pecuniary benefit to M/s Aruna
Builders and Suppliers. PW16 after verification of veracity of
information submitted a detailed report to his Senior Officer and with
approval of senior officer present case was registered. It is
established that PW16 conducted preliminary secret enquiry before
registration of case and if said preliminary enquiry report is not
placed on record, it is not fatal to case of the prosecution. The trial
court was justified in holding that that non-disclosure of source of
Signing Date:16.04.2024 CRL.A.1202/2015 Page 13
secret information was not fatal to the case of prosecution as
prosecution is not bound to disclose the source of its information.
5. The trial court also considered argument advanced on behalf of the
appellant and co-convict C.B. Singh that there was nothing on record
to show that substandard quality of bitumen was used by the accused
Arun Kumar Bansal, proprietor of M/s Aruna Builders and Suppliers
in execution of work orders in question except from bald allegations
in FIR. PW20, the first Investigating Officer in cross examination
deposed that he had not received any complaint in respect of the
work carried out with regard to work orders in question and further
deposed that he had not visited the sites nor collected the samples
from the site and as such samples could not be sent to the laboratory.
It was further argued that DW5 also deposed that the material used
for road works in question was in conformity with the technical
specifications and proved the lab test reports of the work orders as
Ex. DW5/A to DW5/P. The trial court noted that DW5 in cross
examination deposed that the reports were notprepared in his
presence and accordingly opined that authenticity of the reports Ex.
DW5/A to Ex. DW5/P was not proved did not find much substance
Signing Date:16.04.2024 CRL.A.1202/2015 Page 14
in the said argument as the work orders stipulated that original receipt
of bitumen procured from an authorized government refinery was to
be submitted to MCD which was not done.
5.1 The counsel for the appellant argued that it was obligation of the
contractor to furnish original invoice for proving fresh receipt of
bitumen and referred stipulation 6 and 7 of work orders Ex. PW3/A,
3/C, 3/E & 3/G to establish that it was obligation of the contractor
and no corresponding responsibility was assigned to the junior
engineer to ascertain the genuineness of the documents furnished by
the contractor. The appellant being a junior engineer was responsible
for adhering to the quantitative and qualitative work executed at site
and the prosecution has not pointed out any deficiency in respect of
the measurements of the work actually executed at site and relied
upon the lab test reports independently carried out by the independent
laboratory set up by the MCD to prevent any defiance from the
specifications in the work actually executed at site.
5.2 There is factual force in argument advanced by the counsel for
the appellant that it was obligation of the contractor to furnish
invoices regarding purchase of bitumen from government agency and
Signing Date:16.04.2024 CRL.A.1202/2015 Page 15
there is nothing on record to establish that the appellant being a
junior engineer was under such obligation for producing original
invoices regarding procurement of bitumen from government agency.
It is also established on record as deposed by DW5 that material used
for road work in question was in conformity with the technical
specifications and proved the lab test reports of the work orders as
Ex. DW5/A to DW5/P. The trial court was not justified in rejecting
lab test reports Ex. DW5/A to Ex. DW5/P merely on ground that
these reports were not prepared in presence of DW5.
6. The trial court in impugned judgment considered argument that Sh.
Sant Lal, the Chief Engineer, MCD had sent a written statement with
a circular Ex. PW20/DA to the investigating officer PW20 in
pursuance of a notice for joining investigation wherein stated that the
work orders were executed as per the terms and conditions stated
therein. PW18 also stated that no complaint was received with
respect to the quality and quantity of the work orders. The
investigating officer PW19 also deposed that he had not verified from
MCD regarding the deficiency in execution of work orders. PW19
also did not conduct investigation as to the source from where
Signing Date:16.04.2024 CRL.A.1202/2015 Page 16
bitumen was purchased. The first investigating officer PW16 also
stated that no complaint was received regarding the quality and
quantity of the four work orders and also deposed that he did not
make enquiry regarding the process of sale supply of bitumen from
IOCL. Accordingly the prosecution has failed to prove deficiency in
the work orders or that bitumen was not purchased from an
authorized government oil company. It was further argued that
invoice was of no significance as DW6 Shri K.S. Sandhu, retired
Director, MCD deposed that invoice was a document submitted by
the contractor as proof of his claim as regards the quality and
quantity of material and the claim ofthe contractor was not binding
on the department. DW6 also deposed that for release of payment, the
account division had to verify the entries in MB/register and
laboratory test reports. DW6 further deposed that CPWD manual Ex.
DW6/A applicable to MCD provides that the role of engineers was
only inspection of work at site, recording entries in MB/register and
there was no mechanism available to engineers to verify the invoices
submitted by the contractor and the contractor was responsible for the
correctness of the documents submitted by him. The trial court noted
Signing Date:16.04.2024 CRL.A.1202/2015 Page 17
that DW6 in cross examination stated that in case a complaint was
received regarding submission of fake invoices by contractor then it
could be sent to the police. It was also argued that the investigating
officer neither seized any document nor inspected site. However the
trial court did not agree with these arguments by observing that
PW16 received source information in 2004 whereas the work of
repair under the work orders in question were carried out in 1998 and
during this period roads in question might have repaired more than
once and with regard to non seizure of documents during enquiry, the
trial court observed that it was not incumbent upon investigating
officer to do so as it was not an investigation but only a preliminary
inquiry. The trial court under given facts and circumstances of case
has rightly observed in this regard.
7. It was also argued on behalf of the appellant and co-convict C. B.
Singh before the trial court that the prosecution has failed to prove
that the invoices were forged. The invoices were to be submitted by
the contractor and it was not the duty of the appellants and co-convict
C.B. Singh being engineers to verify the invoices. The contractor was
responsible for the genuineness and correctness of the documents.
Signing Date:16.04.2024 CRL.A.1202/2015 Page 18
The investigating officer PW20 was confronted with Ex.PW20/DA
which was statement/report of Chief Engineer, MCD, addressed to
PW20 wherein it was stated that the responsibilities of the engineers
of MCD was restricted to the execution of work and not to ascertain
the correctness and genuineness of the documents furnished by the
contractors. It was also argued that the circular Mark PW12/B of
MCD also provided that the contractor was solely responsible for the
correctness and genuineness of the invoices and documents submitted
by him. DW1 also deposed that it was the duty of contractor to
purchase bitumen and furnish invoice and the engineers get work
executed as per the contract. DW2 K.P. Singh, Superintendent
Engineer also deposed that it was the contractor who was responsible
for the correctness of documents submitted by him and the accounts
department had to scrutinize the documents.
7.1 It was argued on behalf of the prosecution that DW2 on being
questioned with regard to Mark C to C of circular Mark 12B admitted
that as per the said circular the contractor had to attest the documents
to be submitted in the presence of the Engineer in charge or
divisional accountant and Ex.PW20/DA was dated 06.07.04 and
Signing Date:16.04.2024 CRL.A.1202/2015 Page 19
circular Mark 12B was dated 24.05.01 whereas the work orders were
dated 07.08.98 and as such Ex. PW20/DA and Mark 12/B had no
relevance to the agreements/contracts work orders as they could not
be retrospective in operation. DWl in cross examination deposed that
Executive Engineer can return the bills in case of any discrepancy in
the bills.
7.2 The trial court observed that the engineers have also to verify the
genuineness of the bills. The trial court also noted that the original
work orders were primary evidence of documents and oral evidence
could not be led to contradict its terms and referred sections 61 and
62 of the Indian Evidence Act, 1872. The trial court also referred
section 91 and 92 of the Indian Evidence Act to dispel contention of
the defence counsel with regard to Ex. PW20/DA and Mark 12/B.
The trial court also observed that fresh bitumen was to be purchased
by the contractor as per the terms and conditions of the work orders
and original receipt of purchase of same was to be submitted to
MCD. The trial court ultimately held that it was incumbent on the
accused including the appellant to comply with the terms of the work
orders and documents Ex. PW20/DA and Mark 12/B relied upon by
Signing Date:16.04.2024 CRL.A.1202/2015 Page 20
accused including the work orders of no significance in view of the
express terms of the work orders and agreements.
7.3 The counsel for the appellant argued that the appellant that being
a junior engineer has to supervise execution of work at site and was
not under obligation to ascertain the veracity of the invoices
furnished by the contractor and his actual job was to record the
activities of execution in the measurement book and furnish the
details regarding the actual execution of work at site. It was further
argued that this prevailing practice was codified by the department in
terms of the circular dated 24.05.2001 EX-PW20/A. The counsel for
the appellant relied on testimonies of DW2 K.P. Singh and DW6 K.S.
Sandhu. It was further argued that verification of genuineness of the
invoice was the sole responsibility of the contractor and the engineers
were not under obligation to verify the same.
7.4 It is correct that it was duty of the contractor as per terms and
conditions of work orders to procure bitumen from the government
agency and thereafter to submit original invoices. The contractor has
to submit the bills and was responsible for genuineness of the
documents which are required to be verified by the account
Signing Date:16.04.2024 CRL.A.1202/2015 Page 21
department. The engineers including the appellant were required to
verify the bills as per terms and conditions of work orders but it does
not mean the engineers including the appellant were responsible to
ensure that the bitumen was actually purchased by the contractor i.e.
Aruna Contractor and Suppliers. The document Ex. PW20/DA
although issued subsequent to work orders should not be over looked
by the trial court which cast duty on contractor regarding genuineness
of the bills/invoices. The document Ex.PW20/DA was prepared by
MCD itself.
8. The defence counsel before trial court argued that the invoices
were genuine. The Public Prosecutor argued that the accused C.B.
Singh EE (co-covict), Pankaj Goel JE (the appellant) and Naresh
Gupta (AE, since deceased) in furtherance of conspiracy with Arun
Kumar Bansal, contractor (since deceased) to cheat MCD passed the
bills on forged invoices and released payments to Arun Kumar
Bansal thereby causing pecuniary gain to the contractor to the tune of
Rs.6.8 lacs and the appellant and co-convict C.B. Singh by abusing
their position as public servants dishonestly and fraudulently cheated
MCD by permitting withdrawal of payment for the bills on forged
Signing Date:16.04.2024 CRL.A.1202/2015 Page 22
invoices. It was also argued that it was for the prosecution to prove
affirmatively that accused by corrupt or illegal means and by abusing
their position obtained pecuniary advantage for themselves or any
other person. It was for the prosecution to show that accused with
oblique motive departed from the terms of the work orders and knew
that the contractor had not purchased fresh bitumen from authorized
government Oil Company. The defence counsel relied on Major
S.K. Kale V State of Maharashtra, 1977 SCC Crl356.
8.1 The trial court observed that to establish the offence of
conspiracy, the prosecution relied on the testimony of PW16
Inspector Rajinder Singh Manku who deposed that he had received
source information to the effect that M/s Aruna Builders and
Suppliers, Shakti Nagar, Delhi had been awarded 4 (four) work
orders bearing no. 254, 255, 256 and 257 dated 7.8.98 Ex. PW3/A to
Ex. PW3/H pertaining to improvement of road in the area of Jahangir
Puri amounting to Rs.6.8 lacs by the Engineering Division of MCD,
Delhi. PW16 further deposed that as per the terms and conditions of
the work orders, fresh bitumen had to be purchased by the contractor
from any government refinery and the original receipt of the same
Signing Date:16.04.2024 CRL.A.1202/2015 Page 23
was to be submitted to the MCD. PW16 further deposed that the
Engineers of Division no. XIV, MCD while executing the work
orders entered into a criminal conspiracy with the contractor Arun
Kumar Bansal, proprietor of M/s Aruna Builders & Suppliers to cheat
MCD by using sub-standard/unauthorized bitumen. PW16 further
deposed that in furtherance of the said conspiracy, the contractor
Arun Kumar Bansal used sub-standard unauthorized bitumen and
submitted bills amounting to Rs.6.8 lacs pertaining to four work
orders along with forged invoices vouchers relating to purchase of
bitumen from Indian Oil Corporation which were cleared by
Engineer of Division No XVI by abusing their official position as
public servants and thereby causing pecuniary benefit to M/s Aruna
Builders and Suppliers and loss to MCD.
8.2 The trial court also considered arguments advanced on behalf the
prosecution that the first investigating officer PW20 deposed that
during investigation he had sent a letter Ex. PW15/B to the General
Manager, Sales of IOCL, Mathura Refinery to verify and report
regarding the cash memos and gate passes produced by contractor
Arun Kumar Bansal regarding sale and dispatch of bitumen and to
Signing Date:16.04.2024 CRL.A.1202/2015 Page 24
confirm whether the bills/cash memos and gate passes were genuine
or otherwise. PW20 received reply Ex.PW15/A stating that on
verification of record pertaining to the relevant period, it was found
that there was no customer by the name of M/s Aruna Builders &
Suppliers in their customer master record. IOCL also intimated that
during the relevant period the challans were computer generated and
at no point of time manual challans were issued to parties regarding
the supply of bitumen from their terminal. The defence counsel on
other hand argued that the testimony of PW20 could not be relied
upon as he did not join any official from Bitumen Section of IOCL,
Mathura in the investigation and also did not seize record of Bitumen
Section of IOCL, Mathura. The trial court also relied on sections 101
and 106 of the Indian Evidence Act.
8.3 The trial court observed that it was for the accused including the
appellant to explain that manually prepared invoices placed on record
were of the IOCL but the accused including the appellant did not
prove their defence by preponderance of probability and as such
adverse inference has to be drawn against them to effect that the
invoices were not of IOCL Mathura, Refinery. The accused including
Signing Date:16.04.2024 CRL.A.1202/2015 Page 25
the appellant were required to explain unusual practice of issuing
manual invoices by IOCL, Mathura, Refinery. No explanation was
given by the accused including the appellant regarding the
circumstances in which manual invoices were issued by IOCL,
Mathura which pointed towards the complicity of accused including
the appellant in the conspiracy to manipulate invoices and cause
wrongful loss to MCD and section 106 of the Indian Evidence Act is
applicable to the facts of the case and raises a strong presumption that
accused including the appellant were conspirators in the offences of
cheating MCD by abusing their official position. The trial court also
observed that the accused including the appellant in statements under
section 313 of the Code stated that original receipt of purchase of
bitumen from an authorized government oil company was to be
submitted by the contractor/proprietor of M/s. Aruna Builders &
Suppliers to MCD as per the terms and conditions of the work orders
and denied that the invoices submitted by the contractor were forged.
Accordingly the accused including the appellant had to prove their
defence that the invoices were genuine by preponderance of
probability.
Signing Date:16.04.2024 CRL.A.1202/2015 Page 26
8.4 The counsel for the appellant argued that there was no evidence
to establish conspiracy and trial court has committed grave illegality
holding the appellant guilty of conspiracy while observing existence
of conspiracy amongst the appellant and other accused for cheating
MCD and thereby the appellant in capacity of a public servant having
committed misconduct punishable under section 13 (2) read with
13(1) (d) of the PC Act. The prosecution cannot be absolved of the
responsibility of bringing sufficient circumstances pointing towards
existence of an agreement amongst the conspirators to do an 'illegal
act' or 'a legal act through illegal means'. The counsel for the
appellant placed reliance on Central Bureau of Investigation,
Hyderabad V K. Narayana Rao, (2012) 9SCC 512; P.K.
Narayanan V State of Kerala, (1995)1SCC 142; Sherimon V State
of Kerala, AIR 2012 SC 493; State of Kerala V P. Sugathan &
another, (2000)8SCC 203; SardarSardul Singh Caveeshar V State
of Maharashtra, MANU/SC/0063/1963.
8.4.1 The counsel for the appellant further argued that the trial court
has erred in taking aid of section 106 of the Indian Evidence Act to
shift the burden of proof upon the appellant. The procurement of the
Signing Date:16.04.2024 CRL.A.1202/2015 Page 27
Bitumen and furnishing of invoice from authorized refinery as a
token of purchase of fresh Bitumenwas sole obligation of the
contractor and the JE had no role to play in it and as such invocation
of section 106 of Indian Evidence Act to shift the burden of proof
merely on the premise that the appellant during statement under
Section 313 of the Code has denied that invoice was forged but,
failed to offer any explanation regarding the circumstances in which
the manual invoice was prepared by IOCL.
8.4.2 The counsel for the appellant argued that entire case of the
prosecution is resting on communication dated 24.06.2004 Ex.
PW15/A in response to communication dated 16.06.2004 Ex.
PW15/B and assumption that the invoice furnished by the contractor
was a fabricated document but the appellant was not having any
knowledge regarding fabrication of the documents. It was further
argued that there was no evidence to establish cheating or misconduct
of the public servant. It was also argued that there is no evidence in
respect of fraudulent and/or dishonest act attributable to the appellant
leading to inducement. The prosecution has failed to bring any
circumstance or any direct evidence pointing towards an overt act
Signing Date:16.04.2024 CRL.A.1202/2015 Page 28
committed by the appellant which was either dishonest or fraudulent
and has led to inducing the employer for fetching wrongful loss or
offering wrongful gain to the contractor. The work at site was
completed and except for the complaint which culminated into the
FIR, there was no complaint with respect to quality of work and/or
quantity of work actually executed at site. The bills as per the
procedure before release of payment to the contractor were placed
before the account clerk who scrutinizes before recommending bills
for realization. PW4 Khajan Singh scrutinized the bill of the
contractor and he did not find any irregularity or deficiency and
recommended for passing of the bill by the accountant PW18 R.K.
Bahal. The Additional Public Prosecutor defended the impugned
judgment during arguments.
9. Section 120A of IPC defines "criminal conspiracy"
which reads 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
Signing Date:16.04.2024 CRL.A.1202/2015 Page 29
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.
Section 120 B provides punishment for criminal conspiracy which
reads as under:-
120B. Punishment of criminal conspiracy.--(1) Whoever is a
party to a criminal conspiracy to commit an offence
punishable with death, imprisonment for life or rigorous
imprisonment for a term of two years or upwards, shall,
where no express provision is made in this Code for the
punishment of such a conspiracy, be punished in the same
manner as if he had abetted
(2) Whoever is a party to a criminal conspiracy other than
a criminal conspiracy to commit an offence punishable as
aforesaid shall be punished with imprisonment of either
description for a term not exceeding six months, or with
fine or with both.
9.1 The Supreme Court in State through Superintendent of Police
V Nalini & others, (1999) 5 SCC 253 discussed and summarized
ingredients to constitute a criminal conspiracy which are as follows:
i) Conspiracy is when two or more persons agree to do or
cause to be done an illegal act or legal act by illegal means.
ii) The offence of criminal conspiracy is an exception to the
general law, where intent alone does not constitute crime. It
is the intention to commit a crime and join hands with
persons having the same intention
iii) Conspiracy is hatched in private or in secrecy. It is
rarely possible to establish a conspiracy by direct evidence.
Signing Date:16.04.2024 CRL.A.1202/2015 Page 30
Usually, the existence of the conspiracy and its objects have
to be inferred from the circumstances and the conduct of
the accused.
iv) Where in pursuance of the agreement, the conspirators
commit offenses individually or adopt illegal means to do a
legal act that has a nexus to the object of the conspiracy, all
of them will be liable for such offenses even if some of them
have not actively participated in the commission of those
offenses.
The Supreme Court in Yakub Abdul Razak Memon V State of
Maharashtra, (2013) 13 SCC 1 followed these principles and
reiterated that to establish conspiracy it is necessary to establish an
agreement between the parties and the offence of criminal conspiracy
is of joint responsibility, all conspirators are liable for the acts of each
of the crimes which have been committed as a result of the
conspiracy. The Supreme Court again in Sanjeev V State of Kerala,
Criminal Appeal No 1134 of 2011 decided on 09 th November, 2023
and Pavana Dibbur V The Directorate of Enforcement, Criminal
Appeal No 2779 of 2023 decided on 29.11.2023 again referred these
principles.
10. It is reflecting that M/s Aruna Builders and Suppliers, Shakti
Nagar, Delhi was awarded four work orders bearing no 254, 255, 256
and 257 dated 07.08.1998 Ex. PW3/A to Ex. PW3/H amounting to
Signing Date:16.04.2024 CRL.A.1202/2015 Page 31
Rs.6.8 lacs and as per terms and conditions of the work orders fresh
bitumen was to be procured by the contractor i.e. M/s Aruna Builders
and Suppliers from M/s IOCL, BP and HP which are Government Oil
Companies and the receipt only issued by the Government Oil
Company was to be deposited with MCD, Delhi. The appellant was a
Junior Engineer and co-convict C.B. Singh was Executive Engineer
in Division No XVI, Civil Lines Zone, MCD. PW16 Inspector
Rajinder Singh Manku in May, 2004 received source information that
the appellant and co-convict C. B. Singh entered into a criminal
conspiracy with M/s Aruna Builders & Suppliers through its
proprietor/contractor Arun Kumar Bansal along with co-accused
Naresh Gupta, Assistant Engineer to defraud MCD by passing bills
on forged invoice and thereafter to release payment to the contractor
resulting in a pecuniary gain of Rs. 6.8 lacs to the contractor. Arun
Kumar Bansal allegedly used substandard/unauthorised bitumen in
execution of work orders and submitted bills amounting to Rs.6.8
lacs along with forged vouchers/invoices regarding the purchase of
bitumen from M/s Indian Oil Corporation Ltd. The engineers of
Division No XVI MCD including the appellant cleared said bills.
Signing Date:16.04.2024 CRL.A.1202/2015 Page 32
Inspector Rajinder Singh Manku after verification and with approval
of senior officer prepared a rukka dated 25.05.2004 Ex.PW16/A and
accordingly FIR bearing no 23/2004 Ex. PW1/A was got registered.
The Chief Engineer, Chief Refinery Coordinator vide reply Ex.
PW15/A intimated that there was no customer in their record by the
name of M/s Aruna Builders and Suppliers in the year 1998 and
IOCL prepared computer generated invoices. PW20 S.S. Sandhu also
collected measure books/registers bearing no 1766 Ex. PW13/A and
1769 Ex. PW13/B relating to work orders no. 254 to 257.PW19
Inspector K.L. Meena who was entrusted with further investigation
was informed by the account officials/officers that tender files and
account files of the work orders Ex. PW3/A to Ex. PW3/H bear the
signatures of the appellant, co-accused Naresh Gupta (since
deceased), co-convict C.B. Singh and Arun Kumar Bansal (since
deceased.
11. The trial court to establish conspiracy against the appellant and
other accused in impugned judgment relied on the testimony of
PW16 Inspector Rajinder Singh Manku who received source
information that the appellant and other accused including contractor
Signing Date:16.04.2024 CRL.A.1202/2015 Page 33
M/s Aruna Builders and Suppliers entered into criminal conspiracy to
cause wrongful gain to the tune of Rs. 6.8 lacs to the contractor who
did not procure bitumen from any government refinery in execution
of work orders bearing no. 254, 255, 256 and 257 dated 7.8.98 Ex.
PW3/A to Ex. PW3/H and used sub-standard/unauthorized bitumen.
The contractor Arun Kumar Bansal submitted bills along with forged
invoices vouchers relating to purchase of bitumen from Indian Oil
Corporation amounting to Rs.6.8 lacs which were cleared by
Engineer of Division No XVI including the appellant by abusing
their official position as public servants and caused pecuniary benefit
to M/s. Aruna Builders and Suppliers and loss to MCD. The reply
Ex.PW15/A reflected that there was no customer by the name of M/s
Aruna Builders & Suppliers in the customer master record of IOCL
and challans were happened to be computer generated. The trial court
also relied on sections 101 and 106 of the Indian Evidence Act by
observing that the accused including the appellant could not explain
about manually prepared invoices which were placed on record and
led the trial court to draw adverse inference against the appellant and
other accused and to presume complicity of accused including the
Signing Date:16.04.2024 CRL.A.1202/2015 Page 34
appellant in the conspiracy to manipulate invoices and cause
wrongful loss to MCD. The trial court also referred statement of the
appellant under section 313 of the Code wherein the appellant denied
that the invoices submitted by the contractor were forged. The trial
also held that the accused including the appellant had to prove their
defence that the invoices were genuine by preponderance of
probability as per section 106 of the Indian Evidence Act. It has come
on record that the contractor i.e. Arun Kumar Bansal was responsible
to procure bitumen from government refinery in terms of work orders
Ex. PW3/A to Ex. PW3/H and was also responsible to submit
original invoices for payment of bills. The appellant being junior
engineer was not responsible for submission of original invoices
which was to be done by the contractor Arun Kumar Bansal as
proprietor of M/s Aruna Builders and Suppliers. The source
information received by the PW16 regarding alleged conspiracy
between the accused including the appellant is not sufficient to
presume existence of conspiracy between the accused including the
appellant. The trial court was not justified in applying section 106 of
the Indian Evidence Act once on basis of reply Ex. PW15/A wherein
Signing Date:16.04.2024 CRL.A.1202/2015 Page 35
it was stated that IOCL issued computer generated challan and it was
for the prosecution that manual invoices/challans allegedly issued by
IOCL were forged and fabricated and the accused including the
appellant were not obliged to prove genuineness of invoices/challans
submitted by the contractor on preponderance of probabilities with
application of section 106 of the Indian Evidence Act. The evidence
against the appellant is that he signed invoices and other documents
as verification, which were submitted by the contractor for payment,
which is not sufficient to establish misuse of public authority by the
appellant. There is no sufficient and convincing evidence that the
appellant entered into a conspiracy with other accused to cause
wrongful gain to the contractor amounting to Rs. 6.8 lacs as public
servant.
11.1 The appellant should not be convicted for offence under section
420 IPC and was not justified in holding the appellant guilty of
cheating in pursuance of the conspiracy by getting bills passed on
false invoices with the dishonest intention to cheat MCD and release
of payment to the contractor/accused.
Signing Date:16.04.2024 CRL.A.1202/2015 Page 36
11.2 There is force in arguments advanced by the counsel for the
appellant that there was no evidence to establish conspiracy and trial
court has committed grave illegality holding the appellant guilty of
conspiracy and the trial court has erred in taking aid of section 106 of
the Indian Evidence Act to shift the burden of proof upon the
appellant.
12. The trial court in impugned judgment after considering and
analysing evidence led by the prosecution rightly observed that the
court does not sit in appeal over the sanction order and in believing
testimonies of PW13 and PW14 who deposed that sanction was
granted after application of mind. The trial court also observed that
protection under section 197 of the Code is available to a public
servant only when the alleged act alone by a public servant is
reasonably connected with the discharge of his official duty and
sanction is not necessary when the offence complained of has nothing
to do with the discharge of his public duty. The trial court rightly
observed that regarding charges of conspiracy and cheating, no
sanction was required for prosecution of the accused including the
appellant.
Signing Date:16.04.2024 CRL.A.1202/2015 Page 37
13. The trial court with regard to the offences under sections 467/468
IPC and 471 IPC observed that the burden of proving that invoices
were forged by accused including the appellant was not discharged
by prosecution. The trial court held that the prosecution has failed to
prove affirmatively that the accused including the appellant had
forged the invoices.
14. The trial court observed that to establish the offence under
Section 13(l)(d) of the PC Act, the prosecution had to establish that
the accused including the appellant being public servants abused their
position to obtain for themselves or any other person any valuable
thing or pecuniary advantage. The trial court considered argument
advanced on behalf of the accused including the appellant that
prosecution has failed to prove that they had abused their official
position to obtain for themselves or for any other person pecuniary
advantage or any valuable thing. It was evident that contractor had
submitted the invoices of bitumen to MCD and the duty of engineers
was only to verify the work at site and the engineers did not have any
role in the verification of bills. PW4 and PW9 had deposed that they
had verified the invoices with the entries in the MB/register. The
Signing Date:16.04.2024 CRL.A.1202/2015 Page 38
prosecution has failed to prove dishonest intention or mens rea on
part of accused including the appellant to cheat MCD in conspiracy
with contractor by cogent evidence. The trial court held that mens rea
is not an essential ingredient to constitute an offence U/S 13 (l)(d) of
the PC Act after relying on Runu Ghosh & Others V CBI, Crl. A.
482/2002, 509/2002 and 536/2002 decided by this Court on
21.12.2011. The trial court while holding the appellant guilty for
offence under section 13 (1) (d) read with section 13 (2) of PC Act
accepted argument advanced on behalf of the prosecution that a
report was already received from IOCL, Mathura Refinery that there
was no customer by the name of M/s Aruna Builders and Suppliers in
their customer record and PW15 had deposed that manual invoice
were never issued by IOCL, Mathura Refinery; the accused including
the appellant abused their official position to obtain pecuniary benefit
for contractor without public interest and the accused including the
appellant in conspiracy with the contractor to cause wrongful loss to
MCD and wrongful gain to the contractor passed the bills on forged
invoices while they were expected to act in public interest and fairly.
The trial court ultimately held that there is sufficient evidence
Signing Date:16.04.2024 CRL.A.1202/2015 Page 39
adduced by the prosecution to bring home the charge for the offence
punishable under section 13(l)(d) read with section 13(2) of the PC
Act read with section 120B IPC.
14.1 It has been established on record that the contractor as per terms
and conditions of work orders was responsible for procuring bitumen
from authorised government agency which is IOCL in present case
and the appellant being junior engineer was not responsible for
procurement of bitumen. The contractor also submitted
invoices/challans to account department of MCD for encashment of
bills. The prosecution could not prove existence of conspiracy
between the accused including the appellant. The incriminating
evidence against the appellant is that he along with other engineers
verified invoices along with bills which is not sufficient to hold the
appellant guilty for offence under section 13 (1) (d) read with section
13(2) of PC Act.
15. The trial court was not justified in holding guilty for offences
punishable under section 120B IPC, 420 IPC read with section 120B
IPC and under section 13(l)(d) punishable under section 13(2) PC
Act read with section 120 IPC. The impugned judgment and
Signing Date:16.04.2024 CRL.A.1202/2015 Page 40
impugned order on sentence cannot sustain in law and accordingly
set aside. The appeal is allowed and the appellant is accordingly
acquitted. However, nothing in this judgment be taken as opinion on
merit pertaining to co-convict C. B. Singh. The fine, if any, deposited
by the appellant is liable to be refunded.
16. The present appeal along with pending applications, if any, stands
disposed of.
DR. SUDHIR KUMAR JAIN
(JUDGE)
APRIL 15, 2024
N/ABK/HVK
Signing Date:16.04.2024 CRL.A.1202/2015 Page 41
