JUDGMENT 1. This judgment shall also govern the disposal of Criminal Appeal No. 2253 of 2000 (Trilok Singh v. State of Mdhya Pradesh) and Criminal Appeal No. 2254 of 2000 (A.K. Gupta and two others v. State of Madhya Pradesh) as all the appeals arise out of the common judgment passed by the trial Court. 2. These appeals have been preferred by the appellants against the judgment dated 30th August, 2000 passed by the Special Judge (Prevention of Corruption Act), Damoh, in Special Case No. 2 of 1997 whereby the appellants have been convicted under section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 and sections 120B and 420 of the Indian Penal Code and sentenced to rigorous imprisonment for two years, simple imprisonment for two years and rigorous imprisonment for three years with fine of Rs.5,000/- on each count respectively. All the sentences to run concurrently. 3. The prosecution case is that the appellants A.K. Gupta, K.M. Asati, B.P. Rai and Trilok Singh were posted at Damoh as public servants in the Public Health Engineering Department before the year 1988-89. A.K. Gupta was Executive Engineer, K.M. Asati was Assistant Engineer, B.P. Rai and Trilok Singh were Sub Engineers in the department. Other accused viz., Bhola Sharma, Gangaram and Mohanlal were partners of M/s. B.M.G. Drilling Company at the relevant time. B.M.G. Drilling had submitted tenders for digging the gravel pack tube wells in Batiyagarh, Hata and Pathariya blocks of district Damoh. Their tenders were accepted as they were the lowest. According to prosecution, all the accused persons had entered into a conspiracy wherein the B.M.G. Drilling Co. had not dug the tube wells in the gravel pack system and instead had dug it by fast rig procedure and that the tube wells were dug to the depth of around 120 meters with ulterior motive though the water was available at the level of the depth of 50 meters. On the complaints being made at political level, departmental enquiry was made and it was found that the appellants had put the Government to a loss of Rs.5,31,168/- and thereby the contractors earned profit of Rs.5,31,168/-. It is said that the aforesaid public servants had received illegal gratification from the contractors and caused wrongful loss to the State Government. On the complaints being made at political level, departmental enquiry was made and it was found that the appellants had put the Government to a loss of Rs.5,31,168/- and thereby the contractors earned profit of Rs.5,31,168/-. It is said that the aforesaid public servants had received illegal gratification from the contractors and caused wrongful loss to the State Government. As such the appellants had committed an offence punishable under section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act and also under section 120B and 420 of the Indian Penal Code. After requisite investigation charge sheet was filed by the Special Police Establishment of Lokayukt Office, Sagar Division. 4. Learned Special Judge framed the charges against the public servants-accused persons under section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 and sections 420 and 120B of the Indian Penal Code and against the contractors under sections 420 and 120B of the Indian Penal Code. The appellants denied the commission of the offence and submitted that they have been falsely implicated. According to them, the tube wells were got sunk by gravel pack method as per the specifications given in the tender. According to them, the enquiry conducted by the Departmental Officers was cursory and they claimed trial. 5. To bring home the charges prosecution examined as many as eight witnesses viz., PW1 C.L. Kurmi, Assistant Engineer, PHE; PW 2 Abdul Sameer, Inspector in Divisional Office Lokayukt, Sagar; PW3 Mohd. Kuddus, Executive Engineer, PHE, Damoh; PW4 T. Nathenian, Under Secretary, PHE Department; PW5 K.C. Pathak, Superintending Engineer, PHE, Damoh Division; PW 6 P.R. Barsena, Inspector, Special Police Establishment, Sagar; PW7 B.G. Bange, Head Clerk, PHE Office, Damoh and PW 8 V.K. Jain, Law and Legislative Department, Bhopal. The prosecution also exhibited 28 documents in the trial. 6. In defence the accused exhibited Ex.D1 and Ex. D2, which are specifications and schedule of the rates for drilling of the tube wells. 7. According to prosecution evidence, tube wells were required to be sunk by the gravel pack method but the accused persons under the conspiracy got it sunk in the ordinary manner and payments were received for digging the tube wells by gravel pack method. Thus, the Government had suffered loss of Rs.5,31,168/-. The learned trial Court on appreciation of evidence held the appellants guilty of the offences charged against them. 8. Thus, the Government had suffered loss of Rs.5,31,168/-. The learned trial Court on appreciation of evidence held the appellants guilty of the offences charged against them. 8. Learned counsel for the appellants contended that the evidence adduced by the prosecution in the case was wholly unreliable and insufficient for proving the charges. It was contended that the enquiry which was conducted by PW5 K.C. Phatak and PW3 Mohd. Kuddus was cursory and without application of any technical method. Their conclusions were based on their estimations and presumptions. On the basis of that enquiry, it could not have been said with certainty that the tube wells were dug by gravel pack method as it was not possible to find out without digging or reopening the tube wells by mere superficial inspection that the gravel pack method was utilized or not because the gravel pack would be under the ground at about the depth of 30 to 45 meters. Learned counsel also submitted that the evidence of PW3 Mohd. Kuddus and PW 5 K.C. Pathak was discrepant and unreliable. It is submitted that the documents though exhibited by the prosecution during the trial were not proved according to law. Learned counsel further submitted that the offence under section 13(1)(d) read with section 13(2) of the Prevention of the Corruption Act, 1988, is not proved since there is total lack of evidence with respect to the fact that the accused (public servants) obtained any valuable thing or pecuniary advantage either by corrupt or illegal means or by abusing their position as public servants. According to him, the element of demand is also missing in the evidence. He submitted that the learned trial Court did not appreciate the evidence on the record properly in holding the appellants guilty, hence, the judgment of conviction deserved to be set aside. Per contra, learned Government Advocate contended that from the evidence of PW 1 C.L. Kurmi, PW 3 Mohd. Kuddus and PW 5 P.C. Pathak, the offences are amply proved and the judgment of conviction required no interference. 9. I have heard the counsel of both the sides and carefully perused the evidence and other material on the record. 10. Per contra, learned Government Advocate contended that from the evidence of PW 1 C.L. Kurmi, PW 3 Mohd. Kuddus and PW 5 P.C. Pathak, the offences are amply proved and the judgment of conviction required no interference. 9. I have heard the counsel of both the sides and carefully perused the evidence and other material on the record. 10. The main question and the essence, on which the decision of this case depends, is as to whether the impugned tube wells were dug as per the terms of the contract and specifications in the gravel pack manner or not. A perusal of the tender submitted by B.M.G. Drillers (Ex. P-18) and the acceptance letter issued by the Chief Engineer, PHE (Ex. P-19) shows that the tender of B.M.G. Drillers for drilling work of 300/150 dia. gravel pack tube wells in Batiyagarh block was accepted and the agreement (Ex. P-20) was signed. It is not disputed that the B.M.G. Drillers had to drill tube wells by gravel pack method. From the evidence of Mohd. Kuddus (PW3) it appears that the cost of digging tube well by gravel pack system comes to be around Rs.70,000/- to Rs.80,000/- per tube well and the cost of simple tube well comes around Rs. 30,000/-. This witness has stated that in gravel pack method the drilling is in 12" bore and a pipe of the diameter between 4" to 5" (casing) is inserted in the bore and the gap between the bore and the outer side of casing is filled by gravels. According to him, this method is utilized in the areas where there is collapsible strata. 11. From the evidence of PW 3 Mohd. Kuddus it also transpires that he was posted as Executive Engineer is PHE Department, Damoh, in the year 1987-90. According to him, during his tenure, in connection with a question before the Legislative Assembly it was asked whether there had been corruption with respect to drilling of tube wells in district Damoh, whereupon he had replied that the tube wells, which purported to have been dug by gravel pack manner were, in fact, dug in the ordinary manner but the payments were made at the rates of gravel pack method, thereafter high officers had directed an enquiry and K.C. Pathak, Superintending Engineer (PW 5) was appointed the Enquiry Officer. He and K.C. Pathak had made an enquiry about the tube wells, which were dug by B.M.G. Drilling Co. He stated that in the enquiry it was found that though the payment was made for gravel pack tube wells but, in fact, they were simple tube wells and an over payment of Rs.5 lacs was made to contractor. He said that he recovered the said excess amount from the amount of security deposit. In para 7 this witness admitted that in reply to the Legislative Assembly question he had not made any enquiry but he had sent information on the physical verification from the official documents. In para 10 he said that in the enquiry he had guessed that the tube wells were not dug by gravel pack manner because the casing was not full up to the depth of tube well. Except this, there was no ground for holding that the gravel pack method was not applied. He admitted that in the enquiry he did not see it by reopening or digging the tube well. According to him, in gravel pack system the casing should be put up to the full depth of tube well. Since he did not find casing up to the depth of boring, he guessed that the tube wells were not dug by gravel pack system. In para 11 this witness stated that K.C. Pathak, Superintending Engineer was ordered to hold the enquiry but since he was in-charge of that region, therefore, he had accompanied him. In para 24 of his statement this witness stated that in gravel pack system slotted pipe should be put from beginning to end because this was the only technique for the system. He also stated that in the region of Damoh, according to hydrogeological survey, there was no collepsible strata, therefore, there was no necessity for digging the tube wells by gravel pack system. 12. PW5 K.C. Pathak, who had conducted the enquiry, in his examination-in-chief said that he did not find the tube wells dug by gravel pack system. Tube wells were dug in the ordinary manner. In para 3 of his statement he said that he had measured the length of the casing pipe and also the depth of the tube wells and both were found to be correct. Tube wells were dug in the ordinary manner. In para 3 of his statement he said that he had measured the length of the casing pipe and also the depth of the tube wells and both were found to be correct. This statement runs counter to the accusation made in the charge that the drilling was done in excess than the required depth. In para 10 of the statement he said that during his service tenure he had never got the tube wells dug in collepsible strata. He also said that he did not remember that he had ever got drilling done by gravel pack system. It is noteworthy that this witness, who is said to have conducted the enquiry, was totally inexperienced person with respect to digging of tube wells by gravel pack system. In para 19 of his statement this witness had said that within two days he had checked all the tube wells of the area though he could not say as to how many tube wells he had checked in one day. According to him, he had checked the depth of the tube well by a thread and depth of casing by the magnet and by examining the depth and the diameter of the casing he had "guessed" that the tube wells were not drilled by gravel pack system. He has also stated that in the gravel pack system casing should be upto the bottom of the boring. He stated that he did not make any detailed enquiry but he submitted his report after inquiring from the neighbouring persons. In para 20 of the statement he admitted that he had conducted the superficial enquiry because he had expected that the Chief Engineer would get the enquiry done by some technical experts, as the Government recognizes only those persons for such kind of technical enquiry, but as no technical expert was appointed for the enquiry, he had conducted the cursory enquiry and had sent his report. He has admitted that he did not reopen or dig the tube wells to see as to whether the gravel pack system was applied. He did not apply any technical manner though some tube wells were covered by platforms but he did not get the platforms removed for inspection and he inspected them only in superficial manner. 13. Contrary to the evidence of Mohd. He did not apply any technical manner though some tube wells were covered by platforms but he did not get the platforms removed for inspection and he inspected them only in superficial manner. 13. Contrary to the evidence of Mohd. Kuddus (PW3), in para 21 of his statement, this witness has said that the casing in the tube wells is put according to the terms and conditions of the schedule of NIT. He said that he had seen the schedule of work of the NIT and that there was no condition in the schedule for fixing the casing pipe upto the depth of tube well. The only condition was that the drilling should be done upto the depth of 45 meters and the provision for putting the pipe was only upto 10 meters. He has gone to the extent of saying that in his opinion there ought to have been a provision for putting the pipe upto the depth of 45 meters, therefore, the accepted schedule was not correct. He said that the schedule in this case was signed by the Chief Engineer himself. In para 22 he admitted that during his tenure when tube wells were dug in the area of Semar Kacchhar and Kariya Pipal by gravel pack system then, as per the terms of the contract, the depth of tube well was prescribed 45 meters and the casing was put upto only 10 meters. In para 24, this witness admitted that, according to his report, there were 7 tube wells in which the depth of tube well and the casing was similar. 14. On minute appreciation of the evidence of the aforesaid two witnesses it appears that they had conducted the enquiry in the cursory manner. K.C. Pathak (PW 5) had no experience about the drilling of tube wells by gravel pack system. He himself had expected that the enquiry will be made by some other technical expert but since no technical expert was appointed, he after superficial and cursory enquiry submitted his report to the Chief Engineer. It is also noteworthy that at the time of enquiry, neither any notice was issued to the contractors of B.M.G. Drilling Co. nor they were even asked to explain or to be present at the time of alleged enquiry. Such type of enquiry, behind the back of the accused/contractors cannot be held to be a just or impartial enquiry. It is also noteworthy that at the time of enquiry, neither any notice was issued to the contractors of B.M.G. Drilling Co. nor they were even asked to explain or to be present at the time of alleged enquiry. Such type of enquiry, behind the back of the accused/contractors cannot be held to be a just or impartial enquiry. 15. It is also important to note that though, the enquiry report was produced in the case as ExP-23-C but it was not proved by the witnesses Mohd. Kuddus (PW3) or K.C. Pathak (PW 5). Alleged enquiry report was seized by the Investigating Officer, P.R. Barsena (PW6) during investigation and was simply filed in the case. In the absence of proof of the enquiry report according to law, by the person, who had signed it, it could not have been made use of in the trial. Even otherwise the report of enquiry, being the opinion of enquiry officer, does not form legal evidence by itself. 16. From the evidence of P.R. Barsena, Investigating Officer, it does not appear that he had himself made any investigation to verify the allegations or to collect evidence in the matter. What he did was simply that he seized the documents and produced them alongwith the charge sheet. He was not even able to say that as to in which village the tube wells were dug, because he did not enquire or verify himself. 17. In view of the admission made by K.C. Pathak (PW 5) in para 21 of his cross-examination that he did not mention in his report as to when he went to which village, from whom he enquired and before whom he measured the casing pipes and the fact that he presumed that the detailed enquiry about the tube wells would be made later on, he submitted his report after cursory inspection because he had to submit his report early, his evidence before the Court cannot be relied upon in proof of criminal charge. It is also strange that he did not submit his daily diary of his tour in the office because he did not claim any travelling allowance for the said tour. 18. It is also strange that he did not submit his daily diary of his tour in the office because he did not claim any travelling allowance for the said tour. 18. After carefully going through the entire material on record and the evidence adduced by the prosecution I am of the firm opinion that it cannot be held beyond reasonable doubt that the impugned tube wells were not drilled by gravel pack system. The enquiry report and other documents which purport to have been executed by others, though exhibited by the Investigating Officer, cannot be made use of in the absence of their proof according to law. In the absence of proof that the alleged tube wells were not dug in gravel pack manner and that the tube wells were dug in excess of the required depth, it cannot be held that the accused-appellants Bhola Sharma, Gangaram and Mohan Lal (contractors) committed the offence of cheating. Therefore, their conviction under section 420 and 120B of Indian Penal Code cannot be upheld. Since it is not found proved that the tube wells were not dug as per the terms and specifications of the contract, it cannot be upheld that the appellants A.K. Gupta, K.M. Asati, B.P. Rai and Trilok Singh had received illegal gratification from the contractors and had made extra payment of Rs. 5,31,168/- to them. There is absolutely no evidence on the record to show that they had made any effort or demand to obtain any valuable thing or pecuniary advantage by corrupt or illegal means or had otherwise abused their position as public servants. There is also no evidence to prove that the public servants and the contractors had hatched any conspiracy to cause any wrongful loss or damage to the Government. Suspicion arising from guess work or presumptions of witnesses cannot take place of proof. 19. Therefore, in view of the aforesaid discussion, I am of the opinion that the trial Court has erred in holding the appellants guilty under section 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988, and under section 420 and 120B of the Indian Penal Code. 20. Consequently, the appeals are allowed. The conviction of the appellants under the aforesaid sections is set aside and they are acquitted of the charge. The appellants are on bail, their surely bonds are discharged. The fine amount, if deposited, be refunded to the appellants. 20. Consequently, the appeals are allowed. The conviction of the appellants under the aforesaid sections is set aside and they are acquitted of the charge. The appellants are on bail, their surely bonds are discharged. The fine amount, if deposited, be refunded to the appellants. 21. Copy of this judgment be kept in Criminal Appeal No. 2253 of 2000 and Criminal Appeal No. 2254 of 2000.