Jharkhand High Court

Sunil Kumar Sinha vs The Union Of India Through C.B.I on 14 September, 2023

    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            ---------

(Against the Judgment of conviction and order of sentence dated 29.03.2019 passed by the Special Judge, CBI, Ranchi in R.C. No.16(A)/2009-R)

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            Cr. Appeal (S.J.) No. 403 of 2019
  Sunil Kumar Sinha                   ...         ...     ...Appellant
                       Versus
  The Union of India through C.B.I.   ...         ...     ...Respondent
                       With
            Cr. Appeal (S.J.) No. 378 of 2019
  Satyadeo Prasad Jaiswal             ...         ...     ...Appellant
                       Versus
  The Union of India through C.B.I.   ...         ...     ...Respondent
                       With
            Cr. Appeal (S.J.) No. 391 of 2019
  Sudershan Kumar Jaiswal             ...         ...     ...Appellant
                       Versus
  The Union of India through C.B.I.   ...         ...     ...Respondent
                       With
            Cr. Appeal (S.J.) No. 398 of 2019
  Rajbali Ram                         ...         ...     ...Appellant
                       Versus
  The Union of India through C.B.I.   ...         ...     ...Respondent
                       ---------
                       PRESENT
      HON'BLE MR. JUSTICE SUBHASH CHAND

For the Appellants : Mrs. Anjana Prakash, Sr. Advocate : Mr. Manu Tripurari, Advocate.

: Mr. Pankaj Kumar, Advocate : Mr. Chandan Tiwari, Advocate [in Cr. Appeal (S.J.) No. 403 of 2019] : Mr. Rahul Kumar, Advocate : Miss. Apoorva Singh, Advocate : Mr. Shailesh Kumar Singh, Advocate [in Cr. Appeal (S.J.) No. 378 of 2019] : Mrs. Vani Kumari, Advocate [in Cr. Appeal (S.J.) No. 391 of 2019] For the C.B.I. : Mr. Anil Kumar, Sr. Advocate (A.S.G.I.) : Ms. Chandana Kumari, Advocate : Mr. Nitish Parth Sarthi, Advocate

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C.A.V. on 21.08.2023 : Pronounced on 14.09.2023

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Since all the Cr. Appeals arise out of the same impugned

Judgment, they are taken up together and are being disposed of by

this common Judgment.

2. The instant Criminal Appeals are directed against the

Judgment of conviction and order of sentence dated 29.03.2013

passed by the learned Special Judge, CBI Ranchi in R.C. No.

16(A)/2009-R/CNR-JHRN01-00516-2009 whereby and

whereunder the learned Special Judge has convicted the

appellants under Sections 420, 468 and 471 of I.P.C. as well as

under Section 120B r/w 420, 468, 471 of I.P.C. r/w under Section

13(2) r/w 13(1) (d) of P.C. Act, 1988 and convicted the appellants

Sunil Kumar Sinha and Rajbali Ram under Sections 13(2) r/w

13(1) (d) of P.C. Act, 1988 and sentenced as under:

Sentence

Convict Offence Imprisonment Fine Default

SatyadeoPrasad Jaiswal Section 420 IPC 3 Years R.I. Rs. 20,000 6 Months R.I.

Section 469 IPC 3 Years R.I. Rs. 20,000 6 Months R.I.

Section 471 IPC 2 Years R.I. Rs. 20,000 6 Months R.I.

Section 120B r/w 420,468, 2 Years R.I. Rs. 20,000 6 Months R.I. 471 IPC r/w Section13(2) r/w 13(1)(d) P.C Act Sudershan Kumar Jaiswal Section 420 IPC 3 Years R.I. Rs. 20,000 6 Months R.I.

Section 468 IPC 3 Years R.I. Rs. 20,000 6 Months R.I.

Section 471 IPC 2 Years R.I. Rs. 20,000 6 Months R.I.

Section 120B r/w 420, 468, 2 Years R.I. Rs. 20,000 6 Months R.I. 471 IPC r/w Section 13(2) r/w 13(1) (d) P.C. Act Sunil Kumar Sinha Section 420 IPC 3 Years R.I. Rs. 20,000 6 Months R.I.

Section 468 IPC 3 Years R.I. Rs. 20,000 6 Months R.I.

Section 471 IPC 2 Years R.I. Rs. 20,000 6 Months R.I.

Section 120B r/w 420, 468, 2 Years R.I. Rs. 20,000 6 Months R.I. 471 IPC r/w Section 13(2) r/w 13(1) (d) P.C. Act Section 13(2) r/w 13(1) (d) P.C. 3 Years R.I. Rs. 20,000 6 Months R.I. Act Rajbali Ram Section 420 IPC 3 Years R.I. Rs. 20,000 6 Months R.I.

Section 468 IPC 3 Years R.I. Rs. 20,000 6 Months R.I.

Section 471 IPC 2 Years R.I. Rs. 20,000 6 Months R.I.

Section 120B r/w 420, 468, 2 Years R.I. Rs. 20,000 6 Months R.I. 471 IPC r/w Section 13(2) r/w 13(1) (d) P.C. Act

Section 13(2) r/w 13(1) (d) P.C. 3 Years R.I. Rs. 20,000 6 Months R.I. Act

The sentences of imprisonment shall run concurrently

2. The brief facts leading to these Cr. Appeals are that in

compliance of the order dated 30.06.2019 passed by the Hon'ble

High Court of Jharkhand, Ranchi in Writ Petition (PIL) No. 803 of

2009, the preliminary enquiry vide No. PE03(A) of 2009(R) was

taken up by the C.B.I. into the alleged large scale irregularities

committed by the Engineers of Road Construction Department,

Govt. of Jharkhand, contractors and other persons in the matter

of purported procurement of bitumen for construction of roads by

private contractors. The enquiry prima facie revealed the

criminality in the matter.

3. It is alleged that Laxman Ram, Navin Kumar, Surendra

Prasad the then Executive Engineers, R.E.O., Simdega during the

period 2004-2006 entered into a criminal conspiracy with

contractor Satyadeo Prasad Jaiswal and other unknown persons

and in pursuance of that conspiracy Satyadeo Prasad Jaiswal,

contractor had submitted false/bogus invoices showing the

procurement of bitumen for the execution of contractual work

awarded in his favour causing wrongful gain to the contractor and

corresponding wrongful loss to the Government of Jharkhand. It

was also learnt that the works exceeding rupees 10,00,000/- the

construction material like bitumen, cement, steel etc. was

required to be supplied by the contractors and the contractors

were required to procure bitumen from Public Sector

Undertakings like Indian Oil Corporation Ltd. (IOCL), Bharat

Petroleum Corporation Ltd. (BPCL), Hindustan Petroleum

Corporation Limited (HPCL) etc. and before using such bitumen

in the contractually awarded work, the contractors were required

to submit the invoice for procurement of the bitumen and a

certificate regarding quality of bitumen procured. The procured

materials were supposed to be allowed to put to use in

construction work by the contractors only after verification of the

quality of the bitumen and other materials from the Departmental

Quality Control Unit.

3.1 It was also further learnt that Satyadeo Prasad Jaiswal,

Latehar was awarded with the contract vide agreement No.

9F2/04-05 for maintenance and repair of Garja-Rangari Path (KM

4.16 to KM 7.54) at the contractual value of Rs. 29,26,442/-. The

contractor submitted total 08 number of invoices showing the

procurement of bitumen against the aforesaid work which were

purportedly issued by IOCL., Namkum Depot.

3.2 It was also alleged that out of 8 invoices showing the

procurement of bitumen from the I.O.C.L. Depot, Namkum, 03

invoices covering 23.788 M.T. packed bitumen were not actually

issued by I.O.C.L. Depot, Namkum. Hence the same were false

and fabricated which were dishonestly and fraudulent submitted

by contractor Satyadeo Prasad Jaiswal. Bitumen purportedly

procured against the said false invoices were shown to have been

used in above contract awarded in favour of Satyadeo Prasad

Jaiswal.

3.3 It is further alleged that 03 numbers of the invoices

submitted by Satyadeo Prasad Jaiswal pertaining to procurement

of bitumen were false and fabricated and the accused public

servants Laxman Ram, Navin Kumar and Surendra Prasad the

then Executive Engineers in strict abuse of official positions

dishonestly and fraudulently certified the bills of the contractor

for payment.

3.4 It was also further learnt that against the contract discussed

here-in-above Satyadeo Prasad Jaiswal had received payment of

Rs. 27,66,828/- on the basis of the false certificate by the above

noted public servants.

4. Since the allegations mentioned disclosed the commission of

cognizable offence under Section 120B r/w Section 420, 467, 468

and 471 of IPC and Section 13(2) r/w 13(1) (d) of P.C. Act, 1988 a

Regular Case vide No. RC16(A) 2009-R was registered under the

above Section of the Law against Laxman Ram, Navin Kumar and

Surendra Prasad then Executive Engineers, REO, Simdega and

Satyadeo Prasad Jaiswal, Latehar and unknown other persons

and investigation of the case was handed over to R.K.Gupta

Inspector of Police, C.B.I. ACB, Ranchi.

5. The Investigating Officer filed charge-sheet for the offence

under Section 120B r/w Section 420, 468 and 471 of IPC and

Section 13(2) r/w Section 13(1) (d) of P.C. Act, 1988 against

the accused Raj Bali Ram, Laxman Ram, Navin Kumar, Surendra

Prasad, Sunil Kumar Sinha, Sudharshan Kumar Jaiswal and

Satyadeo Prasad Jaiswal.

6. The trial court framed charge against the accused persons

Sunil Kumar Sinha, Raj Bali Ram for the offence under Section

120 B r/w Section 420, 468, 471 of IPC and also under Section

13(2) r/w Section 13(1) (d) of P.C. Act, 1988; while against the

accused Satyadeo Prasad Jaiswal and Sudarshan charge was

framed for the offence under Section 120B r/w Section 420,

468 and 471 IPC.

7. On behalf of prosecution to prove the charge against the

accused persons in oral evidence examined altogether 12

witnesses P.W.1 Rajesh Prasad, P.W.2 Dhanesh Kumar, P.W.3

Ram Kumar Mahto, P.W.4 Oscar Joseph Beck, P.W.5 Shiv Kumar,

P.W.6 Niraj Kumar, P.W.7 Maghi Oraon, P.W.8 Murrahu Prasad,

P.W.9 Sunil Bose, P.W.10 Prabodh Kumar, P.W.11 Smt. Kanan

Bala Jena, P.W.12 Rakesh Kumar Gupta, I.O.

8. In documentary evidence on behalf of the prosecution filed

Ext. 1 General rule and directions for guidance of contractors,

Ext. 2 Measurement book, Ext. 3 to 3/7 signature of Rajbali Ram

in 8 invoices of IOCL, Ext. 4 to 4/7 signature of Sunil Kumar

Sinha in 8 invoices of IOCL, Ext. 5 Production cum seizure list

dated 16.11.2009, Ext. 6 Sanction order, Ext. 7 to 7/4 5 bills in

two sheets related with Garja to Rangari Road, Ext. 8 Letter No.

549 of Executive Engineer, Rural Engineering Organization,

Simdega, Ext. 8/1 Letter no. 666 issued from the office of

Executive Engineer, Rural Engineering Organization, Simdega,

Ext. 9 Estimated book of road Garja to Rangari, Ext. 10

Agreement for item rate tender and contract for work, Ext. 11

Details statement of payments (with objection), Ext. 12 to 12/7

Signature of contractor in 8 invoices of IOCL corrected vide order

dated 15.03.19, Ext. 12 (A) Seizure memo dated 16.6.2010

corrected vide order dated 15.03.19, Ext. 12/1(A) Letter No. 611

dated 14.6.2010 of Executive Engineer to CBI for sending original

record corrected vide order dated 15.03.19, Ext. 13 Report

concerned the life cycle of different types of bitumen surfacing,

Ext. 14 to 14/2 Three letters vide dated 15.10.2009, 13.11.2009

and 12.11.2009 respectively, Ext. 15 Seizure memo dated

4.12.09, Ext. 16 Letter no. 1317 dated 14.4.10(with objection),

Ext. 17 Report of GEQD (PW11) with objection, Ext. 17/1

Forwarding letter no. 4135 dated 28.12.10 (with objection), Ext.

18 Basis of the opinion report (Ext. 17) submitted by P.W. 11 (with

objection), Ext. 19 F.I.R. in six pages, Ext. 20 Seizure list dated

13.10.09, Ext. 21 to 21/6 Specimen signature and writing of

Sudershan Kumar Jaiswal in seven pages S-10 to S-16 encircled

with blue pencil, Ext. 22 Authority letter in two pages for lifting of

bitumen in favour of Sudershan Kumar Jaiswal with his signature

and photograph encircled with blue/red pencil marked A1 & A2,

Ext. 23 Letter No. 391(Anu) dt. 31.03.2010 of Chief Engineer,

Rural Works Department with enclosure Xerox copy of letter no.

718(S) dt. 21.3.2001 & Jharkhand Government Sankalp 1830 (S)

dt. 26.3.2002 (with objection). Mat. Ext. I Register of issuance of

measurement book.

9. The statements of accused were recorded under Section 313

of Cr.P.C. in which all the accused persons denied the

incriminating circumstances against them.

10. In defence evidence examined D.W.1 Md. Mahmood, D.W.2

Anil Kumar Das, P.W. 3 Anil Prasad and D.W.4 Ramji Prasad.

11. In documentary evidence filed Ext.A- Report of the

committee of norms for maintenance of roads in India, Ext. B-

Forwarding letter No. 786 (W.E) dt. 8.9.2009 for submission of

report regarding road, Ext.C-Copy of Bihar PWA Code Rules 245-

246 of page 81, Ext. D Copy of Bihar PWA Code Rules, 19-22 of

page 13, Ext.E Appendix-6 of Bihar PWA Code, Ext. F- Forwarding

letter no. 2048 dt. 12.08.2004 of Regional Engineering

Organization, Ranchi, Ext.G- Para 71 of page no. 351 of Bihar

Public Welfare Account Code, Ext.H- Letter dt. 22.06.2010 of R.C.

20(A)/09-R of HPCL, Ext.I- Letter no.4 (such a-22) 10033 dated

9.10.17 with annexure 3 pages, Ext. I/I- Letter no. Conf. cell-AU-

RTI-SKS/154/342 dated 24.10.18 along with annexure 3 pages

including Circular no. 6191(S) dated 8.9.2001 of PWA Code, Ext.

I/2- Letter no. 54 dated 22.1.2010 of Executive Engineer, REO

Simdega related to agreement no. 9F2/2004-2005, Ext. I/3-

Letter no. 189 dated 24.2.2010 of Executive Engineer, Simdega to

S.I. Rakesh Kumar Gupta, CBI/ACB/Ranchi related to

information about Garja-Rengari Path.

12. The learned trial court after hearing the rival submission of

learned Counsel of the parties passed the Judgment of

conviction and sentence on 29.03.2019.

13. Aggrieved from the impugned of conviction and sentence on

behalf of Ram Bali Ram preferred the Cr. Appeal No. 398 of

2019, on behalf of Shudershan Kumar Jaiswal filed Cr. Appeal

No.391 of 2019, on behalf of Satyadeo Prasad Jaiswal filed Cr.

Appeal No. 378 of 2021 and on behalf of Sunil Kumar Sinha

filed Cr. Appeal No. 403 of 2019 on the grounds that the

impugned Judgment of conviction and sentence passed by the

court-below is on the wrong appreciation of the evidence on

record. Except the fake invoices, no material surfaced to show

that the road was sub-standard even the signature on those fake

invoices could not be established by the prosecution. The I.O. has

stated that the lesser of quantity of the bitumen used in the

construction of the road was shown by him on the basis of

surmises. From the evidence on record, it is found that whatever

the correspondence was done outside the Division was to be done

by the Executive Engineer neither by the Junior Engineer nor by

the Assistant Engineer. The witness P.W.3 Ram Kumar Mahto in

para 20 had stated that the bitumen which was supplied prior to

2009 its verification was not done through the Oil Company but

the Junior Engineer used to physically verify the stock. In para

29 this witness admitted that the payment to the contractor was

not made on the basis of invoices rather it was made on the basis

of finished work. There was no complaint in regard to the material

being of lesser quantity. The quality and quantity of the bitumen

which was used by the contractor same was checked by the

Junior Engineer and the Assistant Engineer and the witness

P.W.4 has stated that there was no circular that the Junior

Engineer and the Assistant Engineer had the duty to check the

invoice relating to the bitumen. P.W.9 Sunil Bose who was the

expert witness in regard to quality of the road adduced on behalf

of the prosecution has stated that the life of the premix carpeting

was between 4 to 5 years. The condition of the road was good even

after four years. The presumption would be raised that the work

was done as per specification. P.W.11 Deputy Director and

Scientist-D CFSL, Kolkata had stated that she had not given any

opinion in regard to the handwriting of the appellant Sunil Kumar

Sinha. In para 62 the witness Investigating Officer had received

the letter by C.B.I. sent by the Executive Engineer wherein it was

stated that no any complaint in regard to the road work was ever

received. After completion of the road, the riding surface was in

good condition and used by the local people. There was no loss

caused to the State exchequer. In para 98 I.O. had also admitted

in his examination that the letter of I.O.C.L. showed that the

bitumen was the free trade product since 1998.

13.1 There is no evidence in regard to the dishonest intention on

the part of the appellants to cause wrongful gain to them and

wrongful loss to the State Government of Jharkhand and the

prosecution sanction against the appellants Sunil Kumar Sinha

and Raj Bali Ram has also not been proved. The prosecution had

miserably failed to prove the charge against the

appellants/convicts and therefore prayed to allow all these

appeals and to set aside the impugned Judgment of conviction

and sentence and to acquit all the accused persons from the

charge levelled against them.

14. I have heard the learned Counsel of the appellants in all the

above four appeals and also learned A.S.G.I. for the C.B.I. and

perused the material on record.

15. In order to decide the legality and propriety of the impugned

Judgment of conviction and sentence passed by the court-below,

I avert to the evidence oral and documentary adduced on behalf

of the prosecution which is reproduced here-in-below:

16. On behalf of prosecution in oral evidence examined

altogether 12 witnesses.

16.1 P.W.1 Rajesh Prasad in his Examination-in-chief stated

that in the year 2004-05 he was posted as Treasurer in Gramin

Karya Vibhag. The agreement was executed between the then

Executive Engineer Navin Kumar of Gramin Karya Vibhag and the

contractor Satyadeo Prasad Jaiswal for the repair of the road

Garja to Rangari second part 4.16 km to 7.54 km. This agreement

is in 76 pages and it bears the signature of Navin Kumar and then

Executive Engineer and the Contractor Satyadeo Prasad Jaiswal.

The Measurement Book No. 677 is in the handwriting and

signature of Raj Bali Ram, Junior Engineer and Sunil Kumar

Sinha, Assistant Engineer. It also bears the signature of then

Executive Engineer Navin kumar. He identified the signature of

them marked Ext.2. Out of the 8 invoices whose serial number

are 607778388, 607862330, 607861810, 607661810,

607778388, 607661810, 607604720 and 607642956. On them it

is mentioned (verified and found correct) in the hand writing of

Junior Engineer Raj Bali Ram. It also bears the signature of Raj

Bali Ram it is marked Ext. 3 to 3/7. All the 08 invoice also bears

the counter signature of Assistant Engineer Sunil Kumar Sinha

which he identified and marked Ext. 4 to 4/7. The seizure memo

is in the handwriting of Rajesh Kumar Gupta which bears

signature of Rajesh Kumar Gupta. He identifies the same marked

Ext.5. The register of the seizure is marked material Ext.1.

In cross-examination this witness says in Ext.2 he identifies

the signature of Sunil Kumar Sinha but which of the entry or

verification is wrong he cannot say the same. The Ext. No. 1 was

prepared in his presence and he is not witness of the same. In

preparing the Measurement Book there is no role of him and he

also not the witness of Ext. 5. He is also not aware how much

bitumen was allocated and how much was received through the

invoices.

16.2 P.W.2 Dhanesh Kumar in his Examination-in-chief says

that he was in Law Department in the year 2010. He is familiar

with Mr. Girindra Kishore Verma who was the Law Secretary-

cum-Legal Remembrancer (L.R.) in the year 2010. Recently he had

died. He had done work under his subordination. He identified his

signature. The prosecution sanction No. 62 dated 18.11.2010 for

Sunil Kumar Sinha then Assistant Engineer and Rajbali Ram then

Junior Engineer, Gramin Karya Pramandal, Simdega was given

by the signature of Girindra Kishore Verma. He had accorded the

sanction on behalf of his Excellency Governor of State of

Jharkhand, the same is marked Ext. 6.

In cross-examination this witness says he cannot say the

person according the sanction what documents had been gone

through by him.

16.3 P.W.3 Ram Kumar Mahto in his Examination-in-chief says

from 2002 to 2013 he was posted in Graim Karya Vibhag,

Simdega. Rajbali Ram, Junior Engineer, Sunil Kumar Sinha,

Assistant Engineer were posted there. He had worked with them

and he is familiar with their signature. All the five bills which

relate to Garja-Rangari road. Each bill is in 2 pages which were

prepared from the original in carbon process are handwriting and

signature of Sunil Kumar Sinha and Rajbali Ram. He identifies

them marked Ext. 7 to 7/4. The Measurement Book on which

Ext.2 had already been marked which bears the signature of Raj

Bali Ram Junior Engineer and also the signature of Assistant

Engineer of Sunil Kumar Sinha at page No. 29 to 30 the amount

of Rs. 4,32,221/- page No. 21 Rs. 7,03,883/-, Page No. 40 and 41

Rs. 4,43,484/-, page No. 44 Rs. 7,34,472/- page No.53 and 54

Rs. 4,52,768/- was disbursed by Raj Bali Ram then Junior

Engineer and Assistant Engineer Sunil Kumar Sinha which is

marked Ext. 7 to 7/4. The 8 invoice which were earlier marked

Ext. 3 to 3/7 and 4 to 4/7 are in the signature and writing of Raj

Bali Ram, Junior Engineer and Sunil Kumar Sinha, Assistant

Engineer. Garja Rengari road of which total length was 7.54 k.m.

its repairing estimate is in 225 pages. This estimate was prepared

by him. It bears the signature of Assistant Engineer Sunil Kumar

Sinha, Executive Engineer Rajeev Kumar Roy. He had identified

them and marked Ext.9. In the Division whatever the work was

done same was under the control and power of Executive

Engineer. The responsibility of the 100% supervision of the work

was of Junior Engineer. 50% responsibility was of the Assistant

Engineer and 10% responsibility was of the Executive Engineer.

In cross-examination this witness says that in all the

documents on which he had verified the signature he cannot say

whether those documents are correct or wrong. He does not know

the basis in regard to the responsibility 100% of Junior Engineer,

50% of Assistant Engineer and 10% of Executive Engineer. Ext.

8/1 is the direction issued by the Executive Engineer to the Indian

Oil Corporation Limited that in regard to the bitumen supplied to

the contractor. The details of the same be furnished to his Office.

Before the year 2009 the bitumen which was supplied its

verification being done by the Oil Company was not entered in the

Measurement Book stated suo motu that it was verified physically

at the site the bitumen which was in the drum, the number of the

drums were to be counted in which the quantity of the bitumen

was also mentioned. The bitumen was to be lifted from the Govt.

company and information of the same was to be given by the

Junior Engineer and the Assistant Engineer within 48 hours to

the Executive Engineer. He is not aware that the contractor had

given the information of the same within 48 hours or not. The

payment was to be done to the contractor on the basis of the

finished work not on the basis of the invoice. The invoice of the

bitumen was issued by the Company. Payment was not made on

the basis of the invoice rather it was made on the basis of

Measurement Book and on the basis of the same the bill was also

prepared.

16.4 P.W.4 Oscar Joseph Beck in his Examination-in-chief says

that in the year 2006 he was Sub-divisional Auditor in R.E.O.,

Simdega. This agreement Ext.1 was executed in his tenure. The

five bills which are already marked as Ext. 7 to 7/4. The invoice

with them is necessary. Raj Bali Ram Junior Engineer and Sunil

Kumar Sinha Assistant Engineer had put their signature on all

the five bills. All the eight invoices are in the handwriting and

signature of Junior Engineer Raj Bali Ram and Assistant Engineer

Sunil Kumar Sinha. He identified them.

In cross-examination this witness says all the five bills are

the running bill. The final payment was not made. Whenever the

final bill is prepared, the amount paid by way of the running bill

are adjusted. If the empty drum of the bitumen were not

deposited, the cost of the same was deducted at the time of final

bill. The five bills were found during process correct by him in

Audit Department. The construction of Garja Rengari path was

done. The N.I.T. was conducted of the same in the office of

Executive Engineer. After N.I.T. the agreement was executed

between the Executive Engineer and the contractor. After

agreement D.O. letter was issued to the I.O.C.L. Its copy was not

given to the Junior Engineer or the Assistant Engineer. The

bitumen which was brought by the contractor at the site, the

same was to be checked by the Assistant Engineer and the Junior

Engineer. All the invoices relating to the bitumen were to be

checked by the Junior Engineer and the Assistant Engineer of

which there is no circular. During his tenure he did not receive

any complaint pertaining to the construction of the road in

question.

16.5 P.W.5 Shiv Kumar in his Examination-in-chief says that

he was Audit Clerk in R.E.O., Simdega during the year 1987 to

2007. This witness identified the signature of Executive Engineer

and contractor on the agreement Ext.10. He also identified the

signature of Junior Engineer Raj Bali Ram and Assistant Engineer

Sunil Kumar Sinha on the invoices Ext. 4 to 4/7 and Ext. 12 to

12/7. He also identified the signature of Raj Bali Ram Junior

Engineer and Assistant Engineer Sunil Kumar Sinha on

Measurement Book Ext.2.

In cross examination this witness says that the five bills were

the running bills. The final payment of the work was not done

during his tenure. The five bills and the Measurement Book

related to the work is not in his signature. The payment of the bill

was to be made to the contractor by the Executive Engineer. The

bills were prepared on the basis of the work done. The invoices of

the bitumen were to be annexed with the bills. Whatever the

bitumen was lifted the counting of the same was done by the

Junior Engineer and the Assistant Engineer. He is not aware

whether I.O.C.L. had made any correspondence with then

Executive Engineer, R.E.O., Simdega. Measurement Book,

Agreement, Bitumen invoice and Cheque Book were in his

custody. Whenever required, the same was provided by him. The

letter No. 2048 dated 12.08.2004 bears the direction that the

bitumen was to be lifted from the Government company by the

contractor and information of the same was to be given within 48

hours by the contractor to the Executive Engineer.

16.6 P.W.6 Niraj Kumar the Deputy General Manager I.O.C.L.

stated that in October, 2004 he was Deputy Manager in Namkum

Depot. The invoice of the bitumen was issued by the Company it

is known as A.C.4. The invoices were the computer generated. The

invoices were bearing the signature of the person who had issued

the bitumen. Every invoice has its unique number. No one unique

number of any invoice could match to the another. The three

invoice which are Ext. 3/3 to 3/5 and 4/3 to 4/5. All the three

invoices have the one and same unique number which is

200623458006382 on all these three invoices do not bear either

of his signature or the signature of the officer/official who had

issued the bitumen. All these three invoices were not issued by

the Namkum Depot. In these invoices no quantity of the bitumen

issued is mentioned. All these three invoices are the forged

invoices.

In cross-examination this witness says that the register of all

the officers and officials of the year 2004 was neither handed over

by him to the Investigating Officer nor he has brought Today in

the court. Likewise, the duty chart from 18.10.2004 to

22.10.2004 was not handed over by him to the Investigating

Officer of this case nor has been brought by him in the court. He

did not tell the name of the any official to the Investigating Officer

who had issued the bitumen during the period 18.10.2004 to

22.10.2004. He did not put his signature on all the invoice related

to the bitumen issued. In the office in stock register the quantity

of the bitumen in the stock and the quantity of the bitumen which

was sold was maintained in the office. No document or register he

handed over in regard to the existing quantity of the bitumen and

the bitumen sold in the stock during the period 18.10.2004 to

22.10.2004 to the Investigating Officer of the case nor he has

brought the same in the court. I.O.C.L. has the separate

Consumer Department of which responsibility is to inform how

much bitumen was issued to the contractor. The bitumen is

manufactured by the Petroleum Company. Private company may

also purchase the same from the Govt. Company.

16.7 P.W.7 Maghi Oraon in his Examination-in-chief says that

by the order of the Executive Engineer dated 16.06.2010 he had

handed over the document in regard to the seizure memo to the

Inspector, C.B.I. Rakesh Kumar Gupta that seizure memo is in

writing and signature of Rakesh Kumar Gupta. He identified the

same marked Ext. 12. It also bears the letter which was along with

the documents bears the signature of Executive Engineer which

he identifies marked Ext. 12/1.

In cross-examination this witness says that the Ext.12 does

not bear his signature.

16.8 P.W.8 Murrahu Prasad in his Examination-in-chief says

that he was Executive Engineer in the year 2010 in P.M.G.S.Y

Pariyojan Anchal Kendriya Lok Nirmal Vibhag. The road work was

done of the year 2005-2006. No opinion could be given in regard

to the quantity and quality of the bitumen used in construction of

the road.

In cross-examination this witness says that he had given

this statement to the C.B.I. that " On being asked whether, from

the road referred above, samples can be drawn and exact quantity

of bitumen actually utilized in the subject work grade of bitumen

utilized amount of other materials used can be derived. I state

that since the work under reference was undertaken during the

year 2005-06, more than 04 years have passed since then and in

the circumstances, it would not be possible to provide any

authentic opinion on the issues like quantity, grade of bitumen

and quality of the executed work due to the following reasons:-

(a) Long time have passed since the work was executed.

(b) The content/amount of bitumen gets reduced due to

various conditions like wear and tear, excessive traffic,

exposure weather conditions etc."

16.9 P.W.9 Sunil Bose in his Examination-in-chief says that he

was posted as Head Flexible Pavement Division, CRRI, New Delhi

in 2010. This is the mail sent by Abhishek Mittal Scientist in the

Flexible Pavement Division, CRRI, New Delhi to CBI Ranchi on

dated 22.07.2010 which he identified marked Ext.13. This report

concerned the life cycle of different types of bituminous surfacing.

Normally the life of premix carpet is between 4 to 5 years

depending on rainfall and life of semi dence bituminous concrete

depending on rainfall. Since majority of the roads is over so

inferences cannot be drawn regarding binder grade since

oxidation and age hardening.

In cross-examination this witness says that the sample of

the bitumen of this road which was sent for examination it was

after 04 to 05 years. Therefore, the grade and binder of grade was

difficult to assess. The wearing life cycle of the premix carpet is

04 to 05 years. In that road there was provision of wearing coat in

the form of premix carpet and seal coal as well. The bitumen

surface renewal ought to be done within four years. If after

construction of the four year the road is in good condition. The

conclusion is drawn that it was done in accordance with the

specification. The conclusion is that the road was constructed in

accordance with the specification.

16.10. P.W.10 Prabodh Kumar in his Examiation-in-chief stated

that he was Senior Manager, Depot, Namkum, Ranchi in May,

2009. The letter C.B.I./B.I.T./09 dated 15.10.2009 which is in

reply of the letter No.90/03, 16A/9-R dated 25.09.09 was sent by

him to C.B.I. Inspector, Ranchi. It was in two pages. It bears his

signature. This letter was typed by him marked Ext.14. In this

letter there is description of the 09 invoices out of which three

invoice at the Sl. No.4, 5, 6 were not issued by the Depot and no

bitumen was supplied against these three invoices. The letter

dated 12.11.2009 and 13.11.2009 were also typed by him and

marked Ext. 14/1, 14/2.

In cross-examination this witness stated that before sending

the letter Ext. 14 to 14/2 to C.B.I. he had consulted the senior

officer Mr.A.N.Jha. During the relevant period how much bitumen

was lifted he had no information of the same. What information

was required by the C.B.I. in response of the same the documents

were made available to them.

16.11 P.W.11 Smt. Kanan Bala Jena in her Examination-in-

chief has stated that in the year 2010 she was posted ot the post

of Deputy Govt. Examiner of Question Documents in C.F.S.L.,

Kolkata. She had 18 years experience in regard to question

document and around twenty thousand documents had been

examined by her and opinion was also given therein. The letter

No. 1317 dated 14.04.2010 sent by the C.B.I. Inspector, A.C.B.,

Ranchi to G.E.Q.D, Kolkata. The question document, specimen

writing, admitting writing were sent for examination and after the

examination this conclusion was given that the writing which is

shown in the blue circle S10 to S16 and A1 to A2 are of the same

person of which writing is in red circle Q3, Q6, Q9, Q12, Q15, Q20

and Q23. This report was prepared by Subir Chatterjee. Mr.

B.P.Mishra had examined all these documents and had given the

conclusion therein. She identified her signature and also

signature of B.P.Mishra marked Ext. 17 with objection.

In cross-examination this witness stated that in regard to

the educational qualification and experience which she has stated

no certificate for the same has been placed by her in the court.

She had not brought the details of the reasoning in regard to the

opinion given by Mr. B.P.Mishra. She did not give any opinion in

regard to Sunil Kumar Sinha. In Ext. 17 it is mentioned that a few

more specimen obtained by dictation along with

contemporaneous writings and signatures written by Shri

Rambati Ram and Sunil Kumar Sinha are required.

16.12 P.W.12 Rakesh Kumar Gupta in his Examination-in-

chief stated that the F.I.R. which is in six pages bears the

signature of Incharge, S.P. Shri D.C.Dwevedi marked Ext.19. The

investigation was taken over by him. Certain documents were also

seized by him. He also got the specimen signature writing of

Sudershan Kumar Jaiswal in the 07 pages which is shown by the

blue circle in blue colour marked S 10 to S 16. This specimen was

taken in presence of Upendra Kumar Srivastava. The specimen

are Ext. 21 to 21/6. The Authority for lifting bitumen is in two

pages. It is in name of Sudershan Kumar Jaiswal. He had sent the

specimen and admitted signature of Sudershan Kumar Jaiswal

along with questioned documents to G.E.Q.D., Kolkata forwarding

letter bears his signature marked Ext. 16. After collecting the

evidence on oral and documentary he filed charge-sheet against

Satyadeo Prasad Jaiswal, Sudershan Kumar Jaisawal, Sunil

Kumar Sinha and Raj Bali Ram under Section 120B read with

420,468,471 I.P.C. and 13(2) r/w 13(1) (d) P.A. Act, 1988. The

prosecution sanction was also got by him against Sunil Kumar

Sinha and Raj Bali Ram from the competent officer and charge-

sheet was filed in the court concerned.

In cross-examination this witness says that before lodging

the F.I.R. the preliminary enquiry was also made. This

preliminary enquiry was made by Mr. P.K.Pandey then Police Dy.

S.P., C.B.I., A.C.B., Ranchi. Mr. P.K.Pandey is not witness in this

case. He did not record the statement of Mr. P.K.Pandey who

made the enquiry. In this case authority letter and D.O. letter for

the bitumen was issued by the Executive Engineer Mr. Surendra

Prasad. It was among the other conditions in the agreement that

the bills will be disbursed after the enquiry. The payment of the

bills was made by the signature of then Executive Engineer Shri

Navin Kumar, Shri Surendra Prasad and Shri Laxman Ram. It

was also among the conditions of the agreement that the empty

drums of the bitumen were to be returned. In case the empty

drum was not returned the cost of the same was to be deducted

from the payment of the bills. He is not aware whether the

bitumen is free sale or not. In the investigation in regard to the

invoice issued by different dates I.O.C.L., Namkum Depot. He did

not investigate in regard to the attendance of the officials in the

depot and no attendance register was taken in custody by him.

No stock register was also taken in regard to issuance of the

bitumen and also issuance of the invoice by I.O.C.L., Namkum

Depot. No complaint was received by him during investigation in

regard to the quality of the road. The road was found motorable.

All the exhibits as the agreement invoice bills etc. all were received

by him from the office of Executive Engineer, Simdega. Shri

Willion Kujur then Executive Engineer, R.W.D.(W) Division,

Simdega had given report to Dy.S.P., C.B.I., A.C.B., Ranchi. In his

report it is stated that no complaint regarding anything received

in the road work after completion of road riding surface was good

condition and used by local people. The agreement in regard to

repair of the road is in 12 pages. He also recorded the statement

of Murrahu Prasad Executive Engineer, Pradhanmantri Gramin

Sandak Yojna, Kendriya Lok Nirman Vibhag, Pant Bhawan, Patna

who stated that since more than 4 years had lapsed after the

completion of the road. During that period on account of the

weather or running of the motors, the road becomes weak. The

bitumen used and other material in the construction of road in

regard to the bitumen and other material used in the road no

opinion could be given. He also recorded the statement of Sunil

Bose who had mailed a letter to C.B.I. S.P. in which it was

mentioned "The road sections taken up for investigation are about

3.5 to 7.5 years old. As per the accepted norms of Ministry

Publication (report of the committee for maintenance of roads in

India) the life cycle of different surfacing in India are (a) 4-5 years

in case of Premix Carpet and Seal Coat depending on rainfall

(Table No. 6.10.2, Page 38) (b) 4-5 years in case of Semi Dence

Bituminous Concrete depending on rainfall (Table No. 6. 10.2,

Page 38). The invoice which he presumed to be fake no payment

of the same was made by the Executive Engineer. As per

stipulations laid down in the agreement, no complaint in regard

to the construction and no scientific report was found against

them. It was his surmise and conjecture that the fake invoice the

material pertaining to the fake invoice was not used in

construction. On the basis of the conjecture in column of less

bitumen 24,85,582/- rupee was shown. All the powers were

vested in the Executive Engineer to disburse the bills. The full

form of N.I.T. is Notice Inviting Tender. When it was published he

did not make any investigation. Junior Engineer or Assistant

Engineer have no financial power. In his case diary he did not

make any entry that the prosecution sanction was granted after

perusal of want document. He did not mention in the case diary

what documents were produced by him for obtaining the

prosecution sanction.

17. The following point of determination is being framed for

disposal of this appeal.

Whether the impugned Judgment of conviction and sentence passed against the appellant/convict for the charge under Section 120B r/w Section 420, 468, 471 of I.P.C. r/w under Section 13(2) r/w 13(1)

(d) of Prevention of Corruption Act is sustainable.

18. To decide this point of determination, this Court avert to

appraise or analyze the evidence oral and documentary adduced

on behalf of the prosecution.

19. As per prosecution case in brief Laxman Ram, Navin Kumar,

Surendra Prasad then Executive Engineers, R.E.O., Simdega

during a period of 2004-2006 entered into a criminal conspiracy

with Satyadeo Prasad Jaiswal Contractor and other unknown

persons. In pursuance of that conspiracy Satyadeo Prasad

Jaiswal, contractor had submitted bogus invoices showing the

procurement of bitumen for execution of contractual work

awarded in his favour causing wrongful gain to the contractor and

corresponding wrongful loss to the Govt. of Jharkhand. It was also

learnt that work exceeding Rs. 10,00,000/- the construction

material like bitumen, cement, steel etc. was required to be

supplied by the contractor. The contractor was required to procure

bitumen from the Public Sector Undertakings like Indian Oil

Corporation Limited, Bharat Petroleum Corporation Limited,

Hindustan Petroleum Corporation Limited etc. But before using

such bitumen in contractually awarded work, the contractors were

required to submit the invoice for procurement of bitumen and

certificate regarding the quality of the bitumen procured. The

procured material was supposed to be allowed to put to use to

construction work by the contractor, only after verification of

quality of the bitumen and other material from the Departmental

Quality Control Unit.

20. It is also alleged that the contractor had submitted 08

invoices showing the procurement of bitumen against the

work awarded which were purportedly issued by Indian Oil

Corporation Limited, Namkum Depot. Out of the 08 invoices,

03 invoices covering 23.788 M.T. packed bitumen was not

actually issued by I.O.C.L. Depot, Namkum. As such Satyadeo

Prasad Jaiswal, contractor had fabricated the false documents and

had with fraudulent intention submitted the same for payment.

The accused Sunil Kumar Sinha & Rajbali Ram i.e. A.E. and J.E.

respectively in strict abuse of official position have dishonestly and

fraudulently certified the bills. The contractor has also received

payment of Rs. 27,66,828/- on the basis of false certificate issued

by the public servant.

21. On behalf of prosecution P.W.1 Rajesh Prasad then

Treasurer in Gramin Karya Vibhag in the year 2004-2005 has

proved the agreement executed between the Executive Engineer,

Gramin Karya Vibhag and contractor Satyadeo Prasad Jaiswal as

Ext.1. He has also proved the Measurement Book as Ext.2 and he

has proved all the eight invoices as Ext. 3 to 3/7 and 4 to 4/7.

In his cross-examination this witness has stated that in

Ext.2 Measurement Book he identified the signature of Sunil

Kumar Sinha but cannot say which of the entry in the

Measurement Book is wrong. He has also stated that the agreement

was not executed in his presence and he is not witness of the same.

He has also stated in Ext.2 Measurement Book there is no role of

him.

22. P.W.3 Ram Kumar Mahto has stated that he was working

in Gramin Karya Vibhag, Simdega from the year 2000 to June,

2013. He has worked with Raj Bali Ram, Junior Engineer and Sunil

Kumar Sinha, Assistant Engineer and is familiar with his signature

and he identified signature of Junior Engineer Raj Bali Ram and

Assistant Engineer Sunil Kumar Sinha on all the eight invoices Ext.

3 to 3/7 and Ext. 4 to 4/7. He has also stated that the Executive

Engineer is the head of the Sub-Division whatever work is done in

the Sub-Division, the same are being done at the behest of

Executive Engineer. The 100% responsibility of supervision of any

work is of the Junior Engineer. 50% responsibility is of Assistant

Engineer and 10% responsibility is of Executive Engineer.

In cross-examination this witness says that he has no source

of this knowledge in regard to the responsibility for any work done

of the Junior Engineer, Assistant Engineer and Executive Engineer.

This witness has also stated that in Ext. 8/1 the Executive

Engineer had directed to the I.O.C.L. to give the details of the

supply of the bitumen to contractor to his office. Before the year

2009 no entry was made in the Measurement Book in regard

to the supply of the bitumen by the Oil Company. He is not

aware whether any information was given in regard to supply

of bitumen by the Oil Company to the Executive Engineer.

23. P.W.4 Oscar Joseph Beck stated that in the year 2006 he

was Sub-Divisional Audit Officer in R.E.O., Simdega. He has

stated that five bills were running bills. No final bill of the work

was submitted of the work done. He also admitted that if the

drum of the bitumen utilized were not produced, the cost of

the empty drum was deducted and the same was adjusted in

the final bill and the five bills were found by the Audit

Department to be correct and genuine. He has admitted that

there is no circular in regard to checking the quality of the

bitumen utilized in any work by the Assistant Engineer or the

Junior Engineer. He also admitted that during his tenure he

did not receive any complaint in regard to the construction of

the road in question.

24. P.W.5 Shiv Kumar is also the Audit clerk in R.E.O.,

Simdega from the year 1987 to 2007. This witness has

admitted that the invoices of the bitumen were to be deposited

along with the bill. The payment to the contractor is made on

the basis of the work done not on the basis of the purchase of

the material utilized in the work. He admitted that Measurement

Book agreement, bitumen invoice, Cheque Book all were in his

custody. Whenever anyone was required, same was provide by him.

He has shown his unawareness whether any correspondence was

made by I.O.C.L. to the Executive Engineer, R.E.O., Simdega.

25. P.W.6 Niraj Kumar is the Deputy General Manager,

I.O.C.L. Manmad, Nasik. This witness has stated that he was

Deputy Manager of Namkum Depot in the year 2004. The

invoices of the bitumen were computer generated. Each invoice

had its own unique number. The unique number of one invoice

cannot match to the unique number of another invoice. Ext.

3/3 to 3/5 and 4/3 to 4/5 these three invoices have the one

and same unique number. On this invoice there is no signature of

the officer or official issuing bitumen. These three invoices

neither were issued by the Namkum Depot nor the quantity of

the bitumen is mentioned in these three invoices. These three

invoices are forged.

In cross-examination this witness says that he has not

brought the register of the year 2004 in regard to the officer

and officials in the Court in regard to the duty of them nor he

had handed over the same to the Investigating Officer. He did

not tell to the Investigating Officer in regard to the name of

any official issuing bitumen. The stock register was available

in his office in which the quantity of the bitumen in stock and

also for the bitumen supplied record was maintained. From

18.10.2004 to 22.10.2004 in what quantity on what dates the

bitumen was supplied no such document was made available

by him to the I.O. The bitumen is manufactured by the

Petroleum Company and it is also purchased by any private

party.

26. P.W.8 Murrahu Prasad is the Executive Engineer, CPWD,

New Delhi. He has stated that road in question which was

constructed in the year 2005 to 2006 the maximum years have

lapsed, so he was not able to give any opinion in regard to the

quality and quantity of the bitumen used in the construction

work. Since the work was done in the year 2005-06 and more than

four years had passed so no opinion could be given by him in regard

to quality of the bitumen.

27. P.W.9 Sunil Bose is the retired as Head Flexible Pavement

Division, CRRI, New Delhi. This witness has stated that the

sample of the bitumen was sent to him after 04 to 05 years.

Therefore, it was not possible to tell the grade and binder of

the grade of the bitumen. He also further submitted that the

wearing life cycle of the premix carpet or the seal coat is 04 to

05 years. If the 04 years have lapsed after the construction, it

would be concluded that the condition of the road was good

and was in accordance with the specification.

28. P.W.10 Prabodh Kumar is the senior Depot Manager,

Ranchi Depot Namkum, Ranchi. He has stated that in the

relevant period how much bitumen was lifted he has no

information for the same and no such information was given by

him to the Investigating Officer.

29. P.W.12 is the Investigating Officer Rakesh Kumar Gupta.

This witness has stated that before registering the F.I.R. the

preliminary enquiry was made by P.K.Pandey then Deputy

S.P., C.B.I. A.C.B., Ranchi. Mr. P.K.Pandey Deputy S.P., C.B.I.,

A.C.B., Ranchi is not the witness in this case. He has not recorded

his statement during investigation. Preliminary Enquiry

report is also not made part of the charge-sheet by him. During

investigation he did not take in his custody the stock register

of the bitumen from I.O.C.L., Namkum Depot nor he took the

Namkum Depot during the relevant period. During

investigation he got no complaint in regard to the

construction of the road. The road was in motorable condition.

He has also admitted that in the report of Williom Kujur then

Executive Engineer, RWD (W) Division, Simdega in which it

was stated that no complaint regarding anything in the road

work was received. No complaint regarding anything received in

the road work after completion of the road and riding surface was

good condition and used by local people. He also recorded the

statement of Sunil Bose and Murrahu Prasad. Both have stated

that since more than 4 years have lapsed so no opinion could

be given in regard to the bitumen and other material used in

the construction of the work if after completion of 04 years,

the road was motorable and good. The conclusion would be

drawn that the material used in the construction work was in

accordance with the specification. He has also stated that the

three invoices which he found fake no payment of the same was

made by the Executive Engineer. The scientific report was not

against the construction work of the road. On the basis of the

surmises he concluded that the less bitumen was used in

construction work. The prosecution sanction was received but

nowhere mentioned which documents were produced for the

prosecution sanction.

30. From the evidence adduced on behalf of the prosecution

there is no evidence in regard to cheating. There is no evidence

in regard to fraudulent or dishonest intention on the part of

the contractor in receiving the three invoices upon any

person. From the bare perusal of the three invoices, it is found

that the same were issued by I.O.C.L., Namkum Depot. The

burden of proof lies upon the prosecution to prove that these

three invoices were forged or false since these three invoices

were issued by the Namkum Depot, Ranchi of I.O.C.L. From the

bare perusal of all the eight invoices, it is found that all these

invoices are computer generated. On all these invoices there is

signature of the Issuing Authority.

31. On behalf of the prosecution though P.W.6 Niraj Kumar the

Deputy General Manager, I.O.C.L., Manmad, Nasik who was

posted in Namkum Depot in October, 2004 has stated that the

three invoices 3/3 to 3/5 and 4/3 to 4/5 all the three bear

one and same unique number were not issued by the Namkum

Depot, yet in cross examination this witness has stated that he

had not made available the register in regard to the duty of

the officer and officials in the year 2004 nor he made the

available same to the I.O. He did not tell the name of the

officials during the period 18.10.2004 to 22.10.2004 who were

issuing the bitumen during that period. He even also did not

make available the stock register of the bitumen in the Depot

and also the bitumen sold for which the record was maintained

but the same was not made available by him. He has also

stated that from 18.10.2004 to 22.10.2004 what quantity of

bitumen on which date was sold by the Depot he is not aware.

He cannot tell nor he made the record available of the same.

32. P.W.10 Prabodh Kumar Senior Manager, Ranchi Depot,

Namkum has also stated that in the relevant period how much

bitumen was lifted the information of the same was not given

by him to the I.O. during investigation.

33. P.W. 12 Rakesh Kumar Gupta, the Investigating Officer

also admits that no stock register in regard to the quantity in

Namkum Depot nor the register in regard to the duty of the

official and officers supplying the bitumen was provided to

him in order to ascertain how much bitumen was supplied in

the relevant period by the Namkum Depot.

34. Therefore, these three invoices which were issued by the

Namkum Depot and also bear the signature of the Issuing

Authority; but merely denying by the prosecution witnesses that

these were not issued by Namkum Depot is not sufficient unless

and until it is proved by the prosecution that the invoice which

was issued by the Namkum Depot was not in signature of any

official of Namkum Depot.

35. Unless and until the prosecution has proved that these three

invoices were forged and were not issued by them beyond

reasonable doubt, the same cannot be said to be forged even if

these three invoice had the one and same unique number. There

is no evidence on record to prove who prepared these three

invoices. From the testimony of P.W. 6 Niraj Kumar and P.W.10

Prabodh Kumar it is not proved beyond reasonable doubt that

these three invoices were not issued by the Namkum Depot.

36. It was the contractor i.e convict/appellant Satyadeo Prasad

Jaiswal who has adduced these invoices and these two invoices

were also verified by the Junior Engineer Raj Bali Ram and

Assistant Engineer Sunil Kumar Sinha. Admittedly no payment

was made of these three invoices. Though the invoices were

to be produced along with the bills for payment, yet the

payment was to be done on the basis of the Measurement Book

in which entry of the work done was made. So the payment was

made on the basis of the work done. There is no evidence in

regard to the conspiracy between the contractor and the

Junior Engineer Ram Bali Ram and the Assistant Engineer

Sunil Kumar Singh in regard to sharing dishonest intention to

play fraud by using these three invoices to get payment from

the Department concerned. There is no evidence on behalf of

the prosecution that Ram Bali Ram Junior Engineer and Sunil

Kumar Sinha Assistant Engineer had prior knowledge that

these three invoices were fake. Neither there is the evidence in

regard to the conspiracy nor there is any evidence that the convict-

appellant Satyadeo Prasad Jaiswal, contractor, Sudershan Jaiswal

the agent of the contractor, Ram Bali Ram Junior Engineer and

Sunil Kumar Sinha Assistant Engineer had played any deception

by using these three invoice as knowing them to be fake. There is

no evidence in regard to the wrongful gain obtained the

appellants/convicts corresponding wrongful loss to the Govt.

of State of Jharkhand.

37. Herein it would be relevant to mention that the work

assigned in the agreement was for construction of the road from

Garja to Rengari (4.16 k.m to 7.5 k.m.) and even on the date of

lodging the F.I.R. i.e the year 2009-10 the road was in

motorable condition and no complaint was ever received by

any authority in regard to the construction of the road from

the year 2004-05 to till the year 2009-10.

38. On behalf of prosecution, the prosecution witness P.W.8

Murrahu Prasad, Executive Engineer, CPWD, New Delhi has

stated that the construction of the road was completed in the year

2005-06. Since more than 04 years have lapsed from the

construction of the road so no opinion could be given in regard

to the quantity and quality of the bitumen utilized in the road.

He also stated that no authentic opinion can be given on the issue

like quality, quantity of bitumen and quality of the work executed

due to the reason that long time had passed since the work was

executed. The cement/amount of the bitumen gets reduced due to

various conditions like wear and tear, excessive traffic, exposure

weather condition etc.

39. P.W.9 Suni Bose is the retired as Head Flexible Pavement

Division, CRRI, New Delhi. This witness has stated that in this

case the sample of the bitumen was sent to him after 4 to 5

years. Therefore, it was not possible to opine the grade and binder

of the grade. He also stated that the wearing life cycle of the premix

carpet and seal coat is 4 to 5 years. He also opined that if after

lapse of the four years, the road is in good condition, it shall

be concluded that it was in accordance with the specification.

40. P.W. 12 Rakesh Kumar Gupta the Investigating Officer has

also stated that during investigation he received no kind of

complaint in regard to the road and the road was in motorable

condition even in the year 2009-10 which was constructed in

the year 2004-05.

41. Therefore, in view of the opinion of the expert witnesses

adduced on behalf of the prosecution, the prosecution has failed

to prove that the quantity and quality of the bitumen and

other material in construction of the road was not in

accordance with the specification made in the agreement

between the contractor and the Executive Engineer, R.E.O.,

Simdega. Moreover, there is no evidence in regard to any loss

caused to the Govt. of State of Jharkhand in construction of

the road since the road was in good and motorable conditions

even after lapse of 5 to 6 years; while as per expert opinion

the life of a road is only 04 years.

42. To make out the offence under Section 471 read with

420 of I.P.C it is necessary that which of the accused had

committed forgery. There is no evidence on behalf of

prosecution who had committed forgery in preparing these

three invoice and there is also no evidence in regard to the

mens rea on the part of the appellant/convicts to use these

three invoices as genuine knowing them to be fake. Neither

the contractor Satyadeo Prasad Jaiswal nor his agent

Sudershan Jaiswal nor the Junior Engineer, Raj Bali Ram nor

the Assistant Engineer Sunil Kumar Sinha have shown to have

the prior knowledge in regard to these three invoices to be

fake. The Junior Engineer Raj Bali Ram and the Assistant

Engineer Sunil Kumar Sinha who verified these three invoices

adduced on behalf of the contractor Satyadeo Prasad Jaiswal

were verified in an official process.

43. When neither the forgery is proved nor the intention on the

part of the appellants/convicts to use these three invoices as

genuine knowing them forged is proved therefore the charge under

Section 420, 468, 471 r/w Section 120B of I.P.C. is not made out

against all the appellants.

44. So far as the charge against the appellant Sunil Kumar

Singh and Raj Bali Ram for the offence under Section 13(1) (d)

and 13(2) of Prevention of Corruption Act, 1988 is concerned,

there is no evidence against these two appellants in regard to

abusing their position as a public servant that they obtained any

valuable thing or pecuniary advantage by corrupt or illegal means

against the interest of public. There is no evidence that the

contractor Satyadeo Prasad Jaiswal or his agent Sundershan

Jaiswal had given any pecuniary benefit to these appellants

Raj Bali Ram or Sunil Kumar Sinha. Even there is no evidence

in regard to knowledge on the part of the appellant Sunil

Kumar Sinha and Raj Bali Ram that these three invoices were

fake. They had verified them in an official process.

Consequently, from the evidence adduced on behalf of the

prosecution it cannot be accepted that the criminal

misconduct was on the part of the appellant Raj Bali Ram

Junior Engineer and Sunil Kumar Sinha Assistant Engineer.

As such no ingredient of the offence under Section 13(1) (d) read

with Section 13(2) of the P.C., 1988 is made out from the

evidence adduced on behalf of prosecution.

45. The relevant statutory provisions and legal propositions of

law as laid down by Hon'ble Apex Court are being reproduced here-

in-below:

Section 420- Cheating and dishonestly inducing delivery of property.- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Section 468- Forgery for purpose of cheating.- Whoever commits forgery, intending that the 1[document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description a term which may extend to seven years, and shall also be liable to fine.

Section 471- Using as genuine a forged 3[document or electronic record].- Whoever fraudulently or dishonestly uses as genuine any 3[document or electronic record] which he knows or has reason to believe to be a forged 3[document or electronic record], shall be punished in the same manner as if he had forged such 3[document or electronic record]. Section 13 of Prevention of Corruption Act, 1988-

13. Criminal misconduct by a public servant.- 2 [ (1) A public servant is said to commit the offence of criminal misconduct,-

(a) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or any property under his control as a public servant or allows any other person so to do; or

(b) if he intentionally enriches himself illicitly during the period of his office.

Explanation 1.- A person shall be presumed to have intentionally enriched himself illicitly if he or any

person on his behalf, is in possession of or has, at any time during the period of his office, been in possession of pecuniary resources or property disproportionate to his known sources of income which the public servant cannot satisfactorily account for. Explanation 2.- The expression "known sources of income" means income received from any lawful sources.] (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than 1[ four years] but which may extend to 1[ten years] and shall also be liable to fine. Section 13(d) reads as under:

Criminal misconduct by a public servant.- (1) A public

servant is said to commit the offence of criminal misconduct-

(d) if he-

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding offence as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or From the bare perusal of this provisions, it is found that if a public servant obtains for himself or any other person any valuable thing or pecuniary advantage by corrupt or illegal means; by abusing his position as public servant or without any public interest. This provision under Section 13 (1) (d) is somewhat similar to the offence under Section 5 (1) (d) of the Prevention of Corruption Act, 1947.

46. The Hon'ble Apex Court held in Devender Kumar Singla

vrs. Baldev Krishan Singla 2005 (9) SCC page 15:

The essential ingredients to attract Section 420 of I.P.C. are

(i) cheating.

(ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security; and

(iii) the mens rea of the accused at the time of making the inducement. The making of a false representation is one of the ingredients of the offence of cheating under Section 420 of I.P.C. It is not necessary that a false pretence should be made in express words by the accused. It may be inferred

from all the circumstances including conduct of the accused in obtaining the property.

47. The Hon'ble Apex Court held in V. Sujatha vrs. State of

Kerala, 1994 Supplement (3) SCC 436:

When the High Court was not sure as to who and which of the accused had committed forgery, it erred in attributing necessary mens rea for the user of forged document as genuine to the appellant alone. Acquittal for the charge under Section 471 and 420 I.P.C. was directed.

48. The Hon'ble Apex Court held in Rashida Kamaluddin Syed

& Anr. vrs. Shaikh Saheblal Mardan 2007(3) SCC 548:

Merely because a civil suit filed by the complainant against the appellant pending, held, jurisdiction of criminal court would not be ousted.

49. The Hon'ble Court held in Dasrathlal Chandulal Joshi

vrs. State of Gujrat, 1979 (4) SCC 338:

The appellant, accused neither shown to have knowledge that the receipts were forged nor shown to have derived any benefit from the funds so collected- that the appellant shared the fraudulent intention with the accused No.1 not proved. Conviction improper- merely going along with the principal accused not sufficient.

50. In Ram Narayan Popli vrs. C.B.I., 2003 (3) SCC 641 the

Hon'ble Apex Court held:

In order to constitute forgery, first essential is that the accused should have made false document. The false document must be made with an intent to cause damage or injury to the public or to any class of public or to any community. The questions are

(i) is the document false,

(ii) is it made by the accused, and

(iii) is it made with an intent to defraud If at all the questions are answered in affirmative, the accused are guilty for the offence under section 463,467,468,471 of I.P.C.

Para 367 and 369 Section 468 deals with forgery for the purpose of cheating. The offence is complete as soon as there was forgery with a particular intent.

Section 471 deals with using as genuine a forged document. For the purpose of convicting an accused under Section 467 read with Section 471 IPC, it has to be shown that an accused either knew or has the reason to believe that the document was forged.

51. The Hon'ble Apex Court held in Indrajit Singh & Ors.

Vrs. State of Punjab & Ors. 1995 Supplement (3) SCC 289

Para13. After giving our anxious consideration to the facts and circumstances of the case and the evidence adduced in the trials, it appears to us that simply on the basis of the reports of the Superintending Engineer that less work than what was stated in the records was done, the case of embezzlement by deliberately falsifying the records is not established. Until and unless by cogent and unimpeachable evidence about the factum of non-payment to labourers of the amount drawn in their names can be established, the case of embezzlement by the government officers and misappropriation of government fund cannot be sustained. The Superintending Engineer may be a responsible officer but it would not be safe to simply rely on his assessment of the work done and in our view, for basing the conviction, other convincing corroborative evidences about the quantum of work done is necessary. In the facts of the case, it will not be just and proper to accept the said report and deposition of Shri Saini to be conclusive about the quantum of work done.

That apart, Mr Jethmalani is justified in his contention that unless and until the factum of non-payment to the workers is established, overpayment to the workers on account of less work done cannot be held to be sufficient evidence to convict the accused for the offences alleged against them. Even if it is assumed that the local officers who were entrusted with the task of payment to the labourers were careless and did not actually ascertain the quantum of work executed by the labourers but made payments to the labourers on the basis of work as indicated in the bills, such local officers may be held guilty of dereliction of duty but they cannot be held to be guilty for the offences alleged against them. In the instant case, the chain of circumstantial evidence is far from being complete and the conviction, in our view, has been based more on surmise and conjecture than on the basis of convincing and

unimpeachable evidences. We, therefore, have no hesitation in dismissing Criminal Appeals Nos. 22-28 of 1986 and allowing all the other appeals preferred by the accused+appellants and setting aside the conviction and sentences passed against the said appellants [ Vide Corrigendum No. F3/Ed BJ/56/95 dated 25-8-1995]

52. The Hon'ble Apex Court held in State vrs Soundi

Rarasu 2022 Live Law (S.C.) 741:

Para 80. Section 13(1)(e) of the Act 1988 makes a departure from the principle of criminal jurisprudence that the burden will always lie on the prosecution to prove the ingredients of the offences charged and never shifts on the accused to disprove the charge framed against him. The legal effect of Section 13(1)(e) is that it is for the prosecution to establish that the accused was in possession of properties disproportionate to his known sources of income but the term "known sources of income" would mean the sources known to the prosecution and not the sources known to the accused and within the knowledge of the accused. It is for the accused to account satisfactorily for the money/assets in his hands. The onus in this regard is on the accused to give satisfactory explanation. The accused cannot make an attempt to discharge this onus upon him at the stage of Section 239 of the CrPC. At the stage of Section 239 of the CrPC, the Court has to only look into the prima facie case and decide whether the case put up by the prosecution is groundless.

53. The Hon'ble Apex Court held in A. Shiv Prakash vrs.

State of Kerala 2016 (12) SCC 273:

Para 19. It was not even the case set up by the prosecution that the appellant had taken that money from some person and had obtained any pecuniary advantage thereby. It was the obligation of the prosecution to satisfy the aforesaid mandatory ingredients which could implicate the appellant under the provisions of Section 13(1)(d)(ii). The attempt of the prosecution was to bring the case within the fold of sub-clause (ii) alleging that he misused his official position in issuing the certificate utterly fails as it is not even alleged in the charge-sheet and not even an iota of evidence is led as to what

kind of pecuniary advantage was obtained by the appellant in issuing the said letter.

54. The Hon'ble Apex Court held in C. Chenga Reddy &

Ors. vrs. State of Andhra Pradesh (1996) 10 SCC 193:

Para 21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the present case the courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence.

55. The Hon'ble Apex Court held in C.K. Jaffer Sharief

vrs. State (through C.B.I.) (2013) 1 SCC 205

Para 16- A fundamental principle of criminal jurisprudence with regard to the liability of an accused which may have application to the present case is to be found in the work Criminal Law by K.D.Gaur. The relevant passage from the above work may be extracted below:

"Criminal guilt would attach to a man for violation of criminal law. However, the rule is not absolute and is subject to limitations indicated in the Latin maxim, actus non facit reum, nisi mens sit rea......"

56. In view of the analysis of the evidence adduced on

behalf of the prosecution and also taking into consideration the

statutory provisions and the settled legal propositions of law as

laid down by Hon'ble Apex Court as given here-in-above, this

Court is of the considered opinion that the prosecution has

miserably failed to prove the charge against the

appellants/convicts beyond reasonable doubt and the impugned

Judgment of conviction and sentence passed by the court-below

needs interference. Accordingly these Cr. Appeals deserve to be

allowed.

57. The Cr. Appeals are hereby allowed. The impugned

Judgment of conviction and sentence passed by the court-below is