CRL.A. 1238/2015 & conected maters Page 1 of 25 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Reserved on: 24 th April , 2025 Pronounced on: 28 th July, 2025 + CRL.A. 1238/2015 SANJAY KUM AR JAIN S/o Shri Darshan Lai Jain, R/o 48/11, M CD Flats, Bunglow Road, Delhi. ..Apellant Through: M r. D.S. Kohli, M r. Yash Kadyan, M s. M annat Kohli & M r. Raghav Kaushik, Advocates Versus STATE (THROUGH A.C.B) ...Respondent Through: M r. Yudhvir Singh Chauhan, AP State with Insp . Bharat + CRL.A. 1254/2015 C B SINGH S/o Shri Jhamman Singh, R/o D -831A, Gali No. 3, Ashok Nagar, Delhi. ...Apellant Through: M r. D.S. Kohli, M r. Yash Kadyan, M s. M annat Kohli & M r. Raghav Kaushik, Advocates Versus STATE ...Respondent Through: M r. Yudhvir Singh Chauhan, AP State with Insp. Bharat + CRL.A. 1255/2015 S N GOEL S/o Shri S. C. Goel, R/o F -26/69, Sector -7, Rohini, Delhi. ...Apellant Through: M r. D.S. Kohli, M r. Yash Kadyan, M s. M annat Kohli & M r. Raghav Kaushik, Advocates CRL.A. 1238/2015 & conected maters Page 2 of 25 Versus STATE (THROUGH CBI) ...Respondent Through: M r. Yudhvir Singh Chauhan, AP State with Insp. Bharat + CRL.A. 239/2016 THE STATE (NCT OF DELHI) ...Apellant Through: M r. Yudhvir Singh Chauhan, AP State with Insp. Bharat Versus 1. ASHOK KUM AR GUPTA S/o Sh. B.S.GUPTA R/o 26/87, SHAKTI NAGAR, DELHI - 110007 2. SATYA NARAYAN GOEL S/o SH. S.C.GOEL R/o F -26/69, SECTOR -7, ROHINI, DELHI ²110085 3. SANJAY KUM AR JAIN S/o SH. DARSHAN LAL JAIN R/o 48/6, M CD FLATS, BUNGLOW ROAD, DELHI ²110007 4. CHANDRA BHAN SINGH SH. JHAM AN SINGH R/o D -83 1A, GALl NO.3, ASHOK NAGAR, DELHI ²110093 ...Respondents Through: M r. D.S. Kohli, M r. Yash Kadyan, M s. M annat Kohli & M r. Raghav Kaushik, Advocates for R -2 & 3 CORAM : HON'BLE M S. JUSTICE NENA BA NSAL KRISHNA J U D G M E N T NENA BANSAL KRISHNA, J. CRL.A. 1238/2015 & conected maters Page 3 of 25 1. The aforesaid 03 Appeals arise from the Judgment dated 29.10.2015 whereby the Appellants -Sanjay Kumar Jain, C.B. Singh, S.N. Goel have ben convicted for the ofence punishable unde r Section 13(2) read with Section 13(1)(d) of the Prevention of Coruption Act (hereinafter referred to DVWKH³3&$FW´ and Section 420 read with Section 120B of the Indian Penal Code, 1860 KHUHLQDIWHUUHIHUUHGWRDV ; and the Order on Senten ce dated 02.11.2015 whereby the 03 Appellants have ben sentenced to undergo imprisonment for 02 years along with fine of Rs.5,000/ - under Sections13(1)(d) and 13(2) IPC while they have ben sentenced to 02 years RI along with fine of Rs.10,000/ -, each for the ofence punishable under Sections 420/120B IPC. 2. The Criminal Appeal No. 239/2016 has ben filed by the State for enhancement of the sentence awarded to the 03 Appellants. 3. Briefly stated two W ork Order s, namely, W ork Order No. 186 dated 10.07.1998 f or repair of road in F-Block, Shastri Nagar in CLZ, SH: M /P near F -1 to F -16 and F -47 to Nag M andir Road for Rs.33,569/ - and W ork Order No. 535 dated 24.12.1998 for repair of road in Shehzada Bagh in C - 120/CLZ, SH: Imp by patch repair on Subhdara Colony to In dralok in C - 120, CLZ for Rs.1,55,000/ -, were awarded to M /s Universal Sanitary Emporium, Delhi of which Ashok Kumar Gupta was the sole Proprietor. 4. Acording to the W ork Order s, the Contractor Ashok Kumar Gupta was required to use fresh Bitumen purchase d from Bharat Petroleum/Indian Oil/Hindustan Petroleum as approved by Engineer -in -Chief . It was to be aranged by the Contractor and the fresh receipt in original in proof thereof , was to be submitted to the M unicipal Corporation of Delhi (M CD) . CRL.A. 1238/2015 & conected maters Page 4 of 25 5. The case of the Prosecution was that Ashok Kumar Gupta , the Contractor used substandard unauthorised Bitumen for execution of the W ork Orders . T he Appellants - S.N. Goel, Junior Enginer (JE), Sanjay Kumar Jain, Assistant Enginer (AE) and C.B. Singh, Executive Engine r (EE), respectively in Division No. XVI, Civil Lines Zone, M unicipal Corporation of Delhi (M CD), entered into criminal conspiracy with M /s Universal Sanitary Emporium, Delhi through its Proprietor Ashok Kumar Gupta, and passed the bills and released the p ayments to Ashok Kumar Gupta thereby causing pecuniary gain to him and loss to M CD in discharge of their oficial duties by corupt means. By clearing the bills of Rs.1.75 Lacs without any Invoices from authorised Oil Company of Government of Indi a, these bills were passed and payments released to Ashok Kumar Gupta dishonestly by the 03 Oficers of M CD ; thereby they all committed ofence punishable under Sections 420/120B IPC and also committed ofence punishable under Sections 13(1)(d) read with Section 13 (2) PC Act. 6. On completion of investigations, Chargeshet was filed in the Trial Cour t. Charges were acordingly, framed on 08.04.2011 against the Appellants punishable under Section 13(1)(d) read with Section 13(2) PC Act and Section 420 read with Section 120B IPC. 7. Prosecution examined total 22 Prosecution witnesses in support of its case. 8. PW -1 ASI K.L. M ena registered the FIR Ex. PW -1/A. 9. PW -3 ACP Rajender Singh M anku deposed about the registration of FIR against the Appellants and Ashok Kumar Gupta on the basis of information received from reliable sources. Investigations were duly caried CRL.A. 1238/2015 & conected maters Page 5 of 25 out and the requisite information and statement of the witnesses were recorded. 10. PW -6 Pradep Sharma , the Tender Clerk in the year 1998 -99 proved the copy of the W ork Order No. 186 dated 10 .07 .1998 along with the bills, which were Ex.PW -6/A and Ex.PW -6/B, collectively . 11. PW -7 Narender Kumar Sharma , the Tender Clerk in the year 1998 - 99 proved the copy of the W ork Order No. 535 dated 24.12.1998 alon g with the bills, which were Ex. PW -7/A and Ex. PW -7/B, collectively. 12. PW -8 HC Krishna Dasan deposited the exhibits/signature samples of the Appellants in FSL, Rohini. 13. PW -9 Vinay Kumar Tyagi was the witnesses to the signature samples of the Appellants taken by the IO . 14. PW -10 Lokn ath Sahu was the witness to the arest of the Appellants. 15. PW -11 Khazan Singh , the Acounts Clerk/UDC produced the copy of the W ork Order No. 186 dated 10.07.1998 and W ork Order No. 535 dated 24.12.1998, which were exhibited as Ex.PW -6/A and Ex.PW -6/B and Ex.PW -7/A and Ex. PW -7/B, respectively. PW -12 Nirmal Bansal , Audit Oficer deposed that the W ork Orders were opened on 06.05.1998 and the tender file bears his signatures. PW -13 Ramesh Kumar Behl , Acountant in M CD in the year 1998 -99, deposed that the W or k Orders Ex. PW -6/A and Ex. PW -6/B and Ex. PW -7/A and Ex. PW -7/B bear his signatures. He also testified that he was shown the M easurement Book (M B) registered Ex. PW -13/A and M B Book Ex. PW -13/B, which bears his signatures on the passing of the bills as an Acountant. 16. PW -14 Rajni Narula produced the posting Orders of the Appellants Sanjay Kumar Jain and C.B. Singh as Ex.PW -14/A and Ex.PW -14/B and CRL.A. 1238/2015 & conected maters Page 6 of 25 that of S.N. Goel as Ex.PW -14/ D. PW -15 Anand Singh Chauhan produced the posting and transfer Orders of S.N. Goe l, which are Ex.PW -15/A and Ex.PW -15/B, respectively. 17. PW -16 Sajjan Kumar , Chief Re finery Coordinator (CRC) in M athura Oil Refinery deposed that letter Ex.PW -16/B was received in his ofice from Insp. S.S. Sandhu seking information as to whether M /s Univer sal Sanitary Emporium, Delhi had purchased Bitumen from their refinery for execution of W ork Orders No. 186 and 585 during the period 10.07.1998 to 31.03.1999. The reply Ex.PW -16/A was given stating that on verification of the records, no such customer mas ter was found. Thus, as per their record, no supply of Bitumen had ben made from their refinery to M /s Universal Sanitary Emporium, Delhi. 18. PW -17 Pushkar Raj , Head Clerk, Vigilance Department, M CD handed over the files of Tender and Acounts of two W ork O rders to the IO, which was seized vide memo Ex.PW -17/A. 19. PW -18 K.S. M ehra , acorded sanctions for prosecution of the 03 Appellants. 20. PW -19 Ashok Drabu , who was posted as Executive Enginer in M CD , on 20.07.2004, deposed that pursuant to the letter of IO, he forwarded Original M B/Register No. 1766 Ex.PW -13/A and M B/Register No. 1769 Ex.PW -13/B pertaining to W ork Orders No. 254/257 dated 07.08.1998 and W ork Order No. 535 dated 24.12.1998 to the IO vide forwarding letter Ex.PW -19/A. 21. PW -20 S.S. Sandhu was the I O, who had conducted the investigations by collecting the requisite documents and recording of the statements. PW -21 SI K irori Lal M ena and PW -22 Insp. S antosh Kumar CRL.A. 1238/2015 & conected maters Page 7 of 25 Singh were the subsequent IO, who conducted the investigations and thereafter, filed the Chargesheet in the Court. 22. The statement of the Appellants were also recorded under Section 313 Cr.P.C. in which, they denied all the incriminating evidence. They examined 05 witnesses in their defence . 23. DW -1 Pradip Kapoor who was posted as Technical Oficer s in the year 1998 -1999 has deposed as to the quality of the material used and the required tests conducted in the M CD Lab . DW -2 Ram Niwas , who was posted as LDC, M aintenance deposed regarding the Bill register pertaining to the year 2004 -2005 to 2006 -2007 of Appellant CB Singh. DW -3 J.B. Bhatia who retired as Executive Enginer had deposed with regards to the technical specifications of the projects. DW -4 S. Venkataramanan who was posted as Acounts oficer has deposed with regards to the record pertaining to diference of pay of Appellant CB Singh. DW -5 Kiran Sharma , who was posted as Head Clerk has deposed with regards to the Pay Bill Register for the Appellant SB Singh. 24. The Ld. Special Judge considered the entire Prosecution evidence and concluded that the Prosecution had successfully proved that the Bitumen of the qualit y specified in the W ork Order , had not ben used by Ashok Kumar Gupta , Contractor despite which the payment of the submitted Bills, was cleared by the Appellants, who were the JE, AE and EE, respectively in the M CD Department and thereby convicted them under the charged Sections and also sentenced the m acordingly . 25. Aggrieved by the said conviction, the aforesaid thre Appeals have ben preferred by the Appellants wherein the conviction a nd sentence has ben challenged on the grounds that the Judgment dated 29.10.2015 is CRL.A. 1238/2015 & conected maters Page 8 of 25 based on inferences and presumptions and not on any cogent evidence. Pertinently, the allege d incriminating evidence have not even been put to the Appellants under Section 313 Cr.P.C., which has caused serious prejudice to them. The requirement of sanctions under Section 197 Cr.P.C. has also ben ignored as the law mandates that the sanctions be gran ted only if the facts alleged against public servant , has nexus to the disc harge of their oficial duties. 26. The Prosecution has failed to justify the basis on which it has been concluded that wrongful loss to the extent of Rs.1.75 Lacs has ben caused to M CD when in fact the total bill value, which stood released to the Contractor was of Rs. 1,77,662/ -, out of which the tentative cost of Bitumen was Rs.39,275/ -. No basis has been given on which it has ben concluded that a loss of Rs.1.75 Lacs , was caused. 27. Furthermore, it has emerged in the evidence that it was not the duty of the A ppellants to pass the Bills or in any manner, require the release of the payment to the Contractor. In the absence of any cogent evidence, conviction of the Appellants for committing misconduct in permitting passing of Bills or release of payments , is unju stified. 28. The Ld. Special Judge has committed a grave ilegality in holding that the preliminary enquiry was conducted by the IO before the registration of the case. It is asserted that bare perusal of Ex.PW -3/A, exposes the frivolity of the version of the informant ; in fact , the manner in which false averments have been made during the cross -examination, the Appellant has ben successfully impeached the creditworthiness of the witnesses. The Ld. Special Judge was unjustified in returning or finding the gui lt of the Appellants, which is contrary to the settled principles of law. CRL.A. 1238/2015 & conected maters Page 9 of 25 29. It is submitted that the evidence of the Prosecution was required to be meticulously examined, which the Ld. Special Judge has failed to do . The findings of gui lt as returned by the Ld. Trial Court are completely unsubstantiated by any document or ocular evidence. 30. There is no ofence prove d by the Prosecution against the Appellants and they are entitled to be acquitted. 31. The Prosecution in the Status Report has reiterated the investi gations caried out by IO and also that the Appellants have ben rightly convicted and sentenced for the ofences . It is acordingly prayed that the present Appeal be dismissed. 32. The written submissions have also ben filed on similar lines as the grounds raised in the Appeal. Reliance has been placed on Central Bureau of Investigation, Hyderabad v. K. Narayana Rao (2012) 9 SC 512, wherein, the Apex Court has observed that an ofence of conspiracy cannot be demed to have ben established on mere suspicion and surmises or inference which are not supported by cogent and aceptable evidence. Similar view has ben taken by the Apex Court in P.K. Narayanan v. State of Kerala (1995) 1 SC 142 and Sherimon v. State of Kerala AIR 2012 SC 493. 33. Reliance has also be en placed on State of Kerala v. P. Sugathan and Anr. (2000) 8 SC 203, wherein the Apex Court has observed that for proving the ofence of criminal conspiracy , it is important to show that all means adopted and illegal acts done , were in furtherance of the object of conspiracy hatched. 34. The Appellants has also placed reliance on P. Sirajuddin etc v. State of M adras (AIR 1971 SC 520), wherein in was observed that whenever a CRL.A. 1238/2015 & conected maters Page 10 of 25 public servant is charged with the acts of dishonestly which amounts to serious misde meanour or misconduct of the type of alleged in the case of first information is lodged against him, there must be some suitable Preliminary Enqu iry into the allegations by a responsible officer. The same has ben reiterated by the Apex Court in Ashok Tshe ring Bhutia v. State of Sikkim , AIR 2011 SC 1363. 35. Reliance has also ben placed on State of Goa v. Babu Thomas , 2005 (8) SC 130, wherein the Apex Court has held that Sanction issued by the incompetent Authority is a fundamental eror which invalidates t he cognizance as without jurisdiction. The same view has ben taken by this Court in G.S. M atharoo v. CBI , Crl M .C. 2695/2010. Similar reliance has also ben placed on C.B.I. v. Ashok Kumar Aggarwal, 2014 CRI.L.J. 930 and Nanjappa v. State of Karnataka , M A NU/SC/0788/2015. 36. The State in its Appeal No. 239/2016 has sought enhancement of the sentence on the ground that the Appellants are public servant, who are found guilty of misuse of their Ofice position in conspiracy to case pecuniary gain to the Contract or, Ashok Kumar Gupta . It has not been appreciated that huge los has ben caused to M CD/public at large. 37. Reference has ben made to State of M adhya Pradesh vs . Shambhu Dayal, (2006) 8 SCC 693 wherein it had ben noted that the coruption committed by the public servants ha s become a gigantic problem. The Coordinate Bench of this Court in State vs . Vishal S Yadav & Anr., in Cr. Appeal no. 958/ 2008 , observed that sentencing justice is the facet of social justice, even as redemption of a crime -doer in the a spect of restoration of a whole personality. CRL.A. 1238/2015 & conected maters Page 11 of 25 38. Reliance has also been placed on Shyam Narain vs. State (NCT of Delhi), (2013) 7 SCC 77 wherein it has ben emphasized that it has to be borne in mind that primarily sentencing for an ofence has a social goal. It must make the Acused realise that the crime committed by him, has not only created a dent in his life but also a concavity in the social fabric. 39. Likewise, the Apex Court in Shailesh Jasvantbhai vs. State of Gujarat, (2006) 2 SC 359, held that in ope rating the sentencing system, law should adopt corective machinery or deterence based on factual matric. Similar observations have ben made in Gopal Singh vs. State of Uttrakahand, (2013) 7 SC 545, Sevaka Perumal vs. State of T.N, (1991) 3 SC 471, Raj Bala vs. State of Haryana & Ors. in Criminal Appeal no. 1049 -1050 of 2015 , State of Chattisgarh vs. Bhugdev & Ors, 2001 (3) M PHT 16 CG. 40. It is, therefore, prayed that the sentence as awarded to the 03 Appellants may be enhanced . 41. Subm issions heard and the record perused. 42. This case indeed is indeed intriguing as it has its genesis in the information received through µreliable sources ¶ on 25.05.2004 by ACP Rajender Singh M ank u, who was Inspector in Anti Coruption Branch, that M /s Universal Sanitary Emporium , Delhi had ben awarded two W ork Orders of a total amount of Rs.2 Lacs in the year 1998 by the Enginers, Division XVI of M CD, Delhi wherein as per the terms and conditions of the W ork Order, Contractor was to purchase fresh Bitumen from one of the author ized oil companies of Government of India and the fresh Receipts in original were to be submitted to the Department as proof of purchase. CRL.A. 1238/2015 & conected maters Page 12 of 25 However, no such Receipt of any order was placed on record thereby reflecting that the Bitumen of specified standard h ad not ben utilized . 43. M /s Universal Sanitary Emporium, Delhi submitted bills of Rs.1.75 Lacs without any documentary proof, which was cleared by the Government oficials of M CD by abusing their oficial position and causing pecuniary benefit to the Contra ctor , Ashok Kumar Gupta . 44. Consequently, the present FIR was registered against the 03 Appellants namely, Sanjay Kumar Jain, SN Goel and CB Singh as well as Ashok Kumar Gupta, Proprietor, M /s Universal Sanitary Emporium, Delhi. 45. The first striking fact is t hat the information was received after about six years in the year 2004 for the work completed in the year 1998 -99 . There was no cogent basis on which the said allegations were made and were not supported apparently by any document as the same have not be n placed on record by PW -3 ACP Rajender Singh M anku, who got the FIR Ex.PW -1/A registered through PW -1 ASI K.L. M ena, the duty Oficer . 46. Though PW -3 ACP Rajender Singh M anku in his testimony has claimed that prima facie cognizable ofence of cheating and a buse of the oficial position of the M CD oficials were made out , but it not understandable as to how and o n the basis of some uncorroborated information , after about six years, , the PW -3 got this insight of registering the FIR in the first place. 47. He in his cross -examination, states that he made enquiry prior to registration of the case , but such alleged enquiry does not find its way to the Chargeshet and is not placed on record. He further admits that he did not conduct any physical verification of the fact as to whether the roads for which contract was given, were laid, he was also not able to state if there CRL.A. 1238/2015 & conected maters Page 13 of 25 was any Complaint in regard to the executed work. He himself did not verify whether Bitumen was used at the site or not. He also did not find out the process or manner in which Bitumen was to be received at the end of M CD. He also did not come across any M easurement Book during his enquiry , despite being aware that such M B s are maintained by M CD. He was also unable to state if during his enquiry, he came across the Laboratory Test caried out by the Department for the quality and quantity of Bitumen used in the laying of roads. 48. It is clearly evident from his testimony that though firstly he claimed that there was a reliable source through which he go t the information about improper release of money to the Contractor , Ashok Kumar Gupta for the work done about 0 6 years back but secondly, his alleged enquiry was also an eyewash as he never did anything to first confirm even prima facie any truth in the a llegation before getting the FIR registered. Clearly, there was no authentic information or any evidence even prima facie to show that the W ork Orders were not executed by Ashok Kumar Gupta in accordance with the terms of the W ork Orders. Be that as it may , the case of the Prosecution may be considered on its own merits. 49. Admittedly, it is not in dispute that M /s Universal Sanitary Emporium, Delhi through its Proprietor Ashok Kumar Gupta, was awarded two W ork Orders for execution of road work for a total am ount of Rs.2 Lacs in the year 1998 by the Division XVI of M CD. The details of the two W ork Orders are as under: - S. No. W ork Order with date Nam e of the W ork 1. 186 dated 10.07.1998 R/R cut made by M TNL Deptt. In F -Block, Shastri Nagar in C -120/CLZ Sh. M /P near CRL.A. 1238/2015 & conected maters Page 14 of 25 F-1 to F -16 and F -47 to Nag M andir Road. 2. 535 dated 24.12.1998 R/R cut made by M TNL Deptt. In Shahzada Bagh in C -120/CLZ Sh. Imp to Road by patch repair on Subhadra Colony to Inderlok in C -120/CLZ. 50. The two W ork Orders No. 1 86 dated 10.07.1998 and W ork Order No. 535 dated 24.12.1998, Ex.PW -7/A and Ex.PW -7/B, respectively have ben proved by PW -6 Pradep Kumar, Tender Clerk and PW -7 ACP Narender Kumar Sharma, Tender Clerk, respectively. 51. As per the terms and conditions of the W ork Order s, the Contractor , Ashok Kumar Gupta was to purchase fresh Bitumen from one of the authorized oil companies of Government of India viz. IOC, HP and BP. Further, the conditions stated that the fresh receipt in original be submitted to the Departme nt of M CD as proof of purchase of fresh Bitumen from any of the authorized Companies. 52. Acording to the Prosecution , there was cheating done by Ashok Kumar Gupta insomuch as he failed to use fresh Bitumen for the road repair as was specifically provided und er the W ork Orders. The sole basis for claiming cheating, conspiracy and misconduct are that the Bitumen used was not as per the specification of the Tender . Further allegations of the Prosecution were that no Receipts were produced by Contractor, Ashok Kumar Gupta about hi m having purchased fresh Bitumen from any of the authorized Company of Government of India in proof thereof , was furnished to the M CD , despite which the 03 Appellants in conspiracy with him , cleared his bills amount ing to Rs.1.75 Lacs. CRL.A. 1238/2015 & conected maters Page 15 of 25 53. The sole material witness for proving this fact is PW -16 Sajjan Kumar, DGM , IOCL, Bombay . He has deposed that on 24.06.2004, he was posted as Chief Refinery Coordinator (CRC) in M athura Refinery Terminal, M athura and a Letter dated 15.06.2004 Ex. PW -16/B was received from the PW 20 Inspector S.S. Sandhu, IO re quiring a confirmation as to whether ³M /s Universal Sanitary Emporium, Delhi had purchased any quantity of Bitumen from your Oil Refinery betwen 10.07.1998 and 31.01.1998 or otherwise ´. If so , the d etails of the same along with the copies of relevant Cash M emos or Gate Pass be supplied to his Ofice through the bearer of th e Letter. 54. The Reply dated 24.06.2004 Ex. PW -16/A was given by PW -16 wherein it was stated that as the matter pertains to the pe riod 19.07.1998 to 31.03.1999, and extensive checking of the record room , was required . On verification of the available record s pertaining to this period, it wa s noticed that no such customer by the name of M /s Universal Sanitary Emporium, Delhi was avai lable in their Customer M aster (sic). This response led PW - 20 S.S. Sandhu to conclude that no supply of Bitumen had ben made to the above party from out Refinery Terminal of IOCL . 55. PW -16 in his cross -examination, admitted that he cannot say regarding th e status of M /s Universal Sanitary Emporium, Delhi and whether it was a Proprietorship concern or a Company. He made certain pertinent admissions that h e was also not able to say if Invoice No. 0167348 was the Invoice vide which Bitumen was supplied by IOC to the customer as this number was not reflected in the aforesaid Letter Ex.PW -16/B . 56. W hat thus , emerges is that the PW 20 Insp. S.S. Sandhu, IO, during the investigations, had tried to confirm if the fresh Bitumen had ben CRL.A. 1238/2015 & conected maters Page 16 of 25 purchased in the year 1998 -99 b y Ashok Kumar Gupta through IOCL for which purpose, he wrote the letter Ex. PW -16/B. Interestingly, as has also emerged from the cross -examination of Ex. PW -16, the Letter merely sought a confirmation that if any fresh Bitumen during the relevant period, was sold to M /s Universal Sanitary Emporium, Delhi. Admittedly, the Invoice number with which PW -16 Sajjan Kumar was confronted , was never indicated in the said Letter. 57. The only fact which emerges from the testimony of PW -16 Sajjan Kumar is that no Bitumen was supplied to the Proprietorship Fir m but was not in a position to say if it was given in the individual name of Contractor Ashok Kumar Gupta. The surest way to disprove that the fresh Bitumen was not supplied to him was to confirm whether the Invoice wa s in fact , issued in the name of Ashok Kumar Gupta or whether the said Inv oice was a genuine document pertaining to the IOCL. Neither there has ben any verification sought of the Invoice number nor has the same been provided. In the absence of there being no evidence to confirm the authenticity of the Invoice B ill, there can be no presumption that no fresh Bitumen was purchased by Ashok Kumar Gupta for execution of the two W ork Orders. 58. This aspect assumes significance in the light of the testimony of PW - 13 Ramesh Kumar Behl, who was the Acountant in M CD in the year 1998 - 99 and on the requisition of the IO, had produced the Tender File and Bills of W ork Order No. 535 dated 24.12.1998, which is Ex. PW -7/A and Ex. PW -7/B, collectively . File And Document s pertaining to W ork Order No. 186 dated 10.07.1998 Ex. PW -6/A and Ex. PW -6/B, collectively. He further deposed that he was shown M B No. 1766/CLZ Ex. PW -13/A and M B No. CRL.A. 1238/2015 & conected maters Page 17 of 25 1769/CLZ Ex. PW -13/B to the IO, which bear his signatures on the Bills cleared by him as an Acountant. 59. He in his cross -examination , explained that the details of work done including procurement of Bitumen, rubber and stone, laying of road and also measurement of road , is done and reflected in the M B. Further, the Invoice Number is also reflec ted in the M easurement Book ( M B ) as is sen at M ark DA on Ex. PW -13/B and Receipt No. 0167348 dated 05.10.1998 at M ark DA on Ex. PW -13/B , was received from IOC. The Bitumen was received from IOC on 09.10.1998. The payment had ben released only on complet ion of work to the satisfaction of M CD. He further deposed that he had passed the Bills only after checking the Invoices and the quantity mentioned in the M B and tallying the same . He admitted in his cross - examination that he never visited the site and did not verify in any manner in which Bitumen was unloaded at the site. He did not verify what was the process or the manner in which Bitumen was received. He did not lift any sample from the site for checking in respect of quality and quantity. 60. In this regar d, it is pertinent to refer to the testimony of PW -20 S.S. Sandhu, retired ACP, who was the Inspector at the relevant time and had caried out investigations in the present case. He also admitted that he had only sought information from IOC, M athura Refine ry through letter Ex. PW -16/B if any Bitumen as supplied to M /s Universal Sanitary Emporium, Delhi and received a response in the negative. It is evident that no information vide the Invoice number which was available on record and found mention in M B Book , had ben sought by him. He also admitted that the M B Ex. PW -13/A and Ex. PW -13/B were seized by him during the investigations. He admitted that even though Invoice number was mentioned CRL.A. 1238/2015 & conected maters Page 18 of 25 at Entry No. 4 M ark DA in Ex. PW -11/DA, he never tried to get the sai d Invoice checked. He did not recollect if he had got this Invoice checked. 61. The M B Ex. PW -13/A and Ex. PW -13/B pertaining to the two W ork Orders had ben seized by the IO during the investigations. PW -13 Ramesh Kumar Behl in his cross -examination has expla ined that M B have the details of the work done including procurement of Bitumen , rubber and stone, laying of road and measurement of the work done in all. He also admitted that the Invoice number was reflected in the M B vide which Bitumen was received from IOC on 09.10.1998. 62. The Appellants in their defense , had examined DW -1 Pradep Kumar, Dy. Director (Technical), Quality Control Department, NDM C, Delhi), who deposed that he was posted in M CD as Lab Assistant in 1985 and promoted to the post of Technical A ssistant in the year 1989 and was promoted as Technical Oficer in M unicipal Lab in the year 1996. In 2012, he was promoted as Dr. Director (Technical) Quality Control Department. He explained that M CD has set up by a Lab for conducting independent Test fo r verification of material used for execution of diferent work. The tests are conducted in respect of different Tenders awarded by M CD , to various Contractors. During his tenure, he conducted various test of Bituminous work, stone aggregate, bricks, sand and C Cubes. For the purpose of testing, samples are required to be lifted in the presence of one authorized representative of M unicipal Lab , f rom the actual site of execution of work . He further deposed that in the year 1998 -99, there were around 7 -8 Tec hnical Oficers posted in the Technical Lab along with him. 63. The M unicipal Lab is not connected to any Division and is an independent verifying Agency of M unicipal Corporation. The witness was CRL.A. 1238/2015 & conected maters Page 19 of 25 shown the Lab Test Report bearing Proforma No. 1083 (M ark DE/Ex .DW 1/D1) and Report bearing Proforma No. 46270 in the file Ex.PW -7/B. He admitted that Proforma No. 1083 is the Lab Test Report of premix bearing signatures of Technical Oficer Brahamanand, which he could identify as he had worked with him. As per this Re port, the sample of which the Test was conducted , was found to be in conformity with specifications. 64. Likewise, the Proforma Report No. 46270 Ex.DW -1/D2 was deposed to be pert aining to stone aggregate Test Report , which had his signatures at Point A. The Test Report mentions conduc tLQJ RI ³ Crushing Test ´ DQG ³,PSDFW 7HVW ´ ZKLFK ZHUH FRQGXFWHG WR DV and whether it was in conformity with technical requirements. As per the Report, the samples were found to be in conformity with technical specifications. 65. The witness was also shown the Proforma No. 1072 Ex. DW -1/D3 and Report ; Proforma No. 32192 and 32189 Ex. DW -1/D4 and Ex. DW - 1/D5, respectively. The Report bearing Proforma No. 1072 was the ³Bituminous Extraction Test ´ZKLFKZDV found to be in conformity with the technical specifications. It was explained that the sample is put in bitumen extraction machine to take out binder content of Bitumen from the sample. Likewise, Proforma No. 32192 and 32189 pertained to Stone Aggregate T est Report in relation to metalling work, which had the signatures of H.L. M endiratta, Technical Oficer. As per the Test Reports , the samples were in conformity with the requirements. 66. In his cross -examination, though he admitted that the samples were not lifted in his presence and that the Test w ere not conducted by him or that CRL.A. 1238/2015 & conected maters Page 20 of 25 the contents of the Report were not filled by him , but the Reports Ex. DW - 1/D2 had his signatures. The contents of these Proforma Reports though were already filed in , but was sign ed by him. 67. The testimony of DW -1, therefore, coroborate that at the time of execution of work, the samples of Bitumen were taken from the site and they were independently tested by the Department and were found to be in order. These facts are correspondi ngly reflected in the M easurement Book , which interestingly was collected during the investigations but pertinently not referred to be Inspector S.S .Sandhu, revealing not only the lackadaisical investigations done by him but also reflect complete malafide with liitle regard to the impact on the carer of thre Appellants. 68. The other material witnesses are DW -3 J.B. Bhatia , a retired Executive Engineer, M CD, who deposed that during his service tenure in M CD from the year 1972 till October, 2011, he had dealt with construction of bridges, buildings, road work and parking, etc. in regard to road work, he had ben associated with execution of work in the nature of ³PHWDO ling, premix and dense carpets ´ 7KH ingredients required for execution of metal ling job are stone aggregates of various sizes, red bazri, moorum and earth. Bitumen is required for execution of premix work. Ingredients of premix are stone aggregates, stone dust and bitumen. 69. DW -3 J.B. Bhatia , further deposed that t he Invoice is a document submitted by the Contractor , Ashok Kumar Gupta in lieu of his claim for storing Bitumen at site i.e. for quality and quantity of the Bitumen. The claim of the Contractor , Ashok Kumar Gupta is not binding on the Department. The oficials of M CD have to check indepen dently the quality and quantity of the material brought at site. After independent examination, CRL.A. 1238/2015 & conected maters Page 21 of 25 the record entries are made in the M B/Register. In the event of any difference/variation in respect of the entries in the Invoice and the actual measurement mad e at site, the measurement made at site would prevail over the Invoice and the same shall be recorded in the M B. For the preparation of bill as well as for payment in respect of execution of work, the Invoice is of no significance. The payment is made aco rding to the actual work executed at the site. The bill has to be acompanied with the M B and Test Reports . The custodian of the acounts file is Acounts Clerk in Acounts Division. 70. The CPW D M anual reflects the duties of the Enginer regarding the inspect ion of work in paragraph 5.11.1 and 7.33.2, photocopies of which are Ex. DW -3/DA and Ex.DW -3/DB, respectively. A Circular dated 24.05.2001 was circulated by M CD in respect of dense carpet work wherein it was stated that the Contractor shall be responsible for the corectness and genuineness of all the documents. This Circular finds mention in the sanction Ex.PW -22/DA in the letter dated 23.06.2008 filed by the Prosecution. He further deposed that if the work is executed as per the technical qualifications i .e. quality and quantity , then there is no loss to M CD. 71. From the testimony of these two defence witnesses DW -1 and DW -3, it emerges that the Invoice vide which the Bitumen is purchased by the Contractor is only with an objective of verifying the quality an d quantity of the Bitumen. The sample of Bitumen is taken from the site before the execution of the work and is tested in the M CD Lab. Furthermore, there is a constant monitoring of the work as it progresses and the quantity and the quality of the work exe cuted at the site is correspondingly reflected in the M B s. In the present case, the M B are Ex. PW -13/A and Ex. PW -13/B, CRL.A. 1238/2015 & conected maters Page 22 of 25 which show that there is detailed description of the amount of work that ha d ben executed. As has already ben mentioned, it also conta ins a reference to Invoice No. 0167348 vide which the Bitumen was purchased by the Contractor. Sample Bitumen was taken and it was tested in M CD Lab and was found to be of requisite quality. 72. The evidence was led by the Prosecution, itself establishes that the Bitumen had been purchased from IOCL and was of the requisite quality and was duly utilised for execution of the work. The documents of the Prosecution as contained in the W ork Order Files Ex -6/A & 6/B and Ex -7/A & 7/B along with the M B, itself prove that Bitumen of specified quality and in the stated quantity , was used for completion of the W ork Orders. There is no evidence whatsoever to show that the work was not done in acordance with the specifications of the W ork Order. 73. It may also be observed th at there is no evidence whatsoever to suggest that the Invoice submitted by the Contractor , Ashok Kumar Gupta was fake or fabricated or that there was any connivance inter se the Contractor , Ashok Kumar Gupta and the Appellants in using inferior material o r clearing the Bills inappropriately for causing a benefit to the Contractor and coresponding loss to M CD. 74. It is also significant to observe that as per the charge, the loss of Rs.1.75 Lacs had been caused to M CD. However, from the M B and the Bills inclu ding the bill Ex. 6/A , it is evident that for the first W ork Order No. 186 dated 10.07.1998, the quantity of Bitumen required to be used was worth of Rs. 8025 /-. The quantity of Bitumen required and utilised for the second W ork Order No. 535 dated 24.12.19 98 was worth of Rs. 12088 /-. The total Bitumen quantity in the two W ork Orders as upto Rs. 20 ,113 /-. CRL.A. 1238/2015 & conected maters Page 23 of 25 75. Even if the entire case of Prosecution is acepted that the Bitumen was not purchased from IOCL or that it was of inferior quality , then too it was only a small component of the material utilised for completion of work aside from labour and other execution charges. By no stretch of imagination, can be said that there is any loss of Rs.1.75 Lacs caused to M CD. 76. In this regard, it is also pertinent to observe t hat there was no complaint whatsoever about the quality o f work by any Agency , when this secret information was received by PW 20 Insp. S.S. Sandhu in the year 2004. As already noted above, this secret information had no basis or any legs to stand on. 77. The falsity of so -called secret information , is also evident from the fact that an enquiry was conducted by PW 20 Insp. S.S. Sandhu and had sought the comment from the ofice of Chief Enginer, who had responded vide letter dated 06.07.2004 Ex. PW -22/DA wherei n it was clarified that M /s Universal Sanitary Emporium had bought the required quantity of Bitumen and submitted the Invoices in token of procurement from the authorized Company. The work had been satisfactorily completed in the year 1998 and the payment had ben made acordingly to the respected Contractor Firm s. 78. It was further stated in detail that in the year 1999, on receipt of Complaint, the Vigilance Department which had all the records pertaining to these Works from Division, forwarded them to CBI to enquire into the matter. Detailed investigations were conducted by CBI and no discrepancy was found on the part of Enginers of M CD and the same was send back to M CD to deal with these cases departmentally. CRL.A. 1238/2015 & conected maters Page 24 of 25 79. W ith the approval of the then Commissioner, a Committee was constituted under the Chairmanship of R.K. M ena, the then Chief Enginer, N.K. Sandhu and H.D. Sekri as M embers and P.K. Jain, as M ember Secretary. After deliberations, the Committe came to a conclusion that the oficials of M CD were not responsible for the corectness/genuineness of the documents submitted by the Contractor for which the Contractor alone