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2013 DIGILAW 965 (HP)

State of Himachal Pradesh v. Ashok Kumar Sondhi

2013-11-18

RAJIV SHARMA, SANJAY KAROL

body2013
JUDGMENT : Rajiv Sharma, J. - This appeal is directed against the judgment dated 29.7.2011 passed by learned Special Judge, Kangra at Dharamshala, H.P., in Corruption Case No. 3-D/2008, whereby the respondents, who were charged with and tried for offences punishable under Sections 120-B, 409, 420, 467, 468, 471 IPC, Section 6 of the H.P. Prevention of Specific Corrupt Practices Act, 1983 and under Sections 7, 13 (2) of Prevention of Corruption Act, 1988 were acquitted. 2. The case of the prosecution, in a nutshell, is that the accused Ashok Kumar Sondhi was appointed as Junior Engineer in BDO Office Rait. He was entrusted the work of construction of rain shelter near Guna Mata Temple. A sum of Rs. 78250/- was sanctioned by the Tourism Department. The accused allegedly carried out work assessed at Rs. 12,279/- and misappropriated a sum of Rs. 49,661/-. It was also alleged that the accused Ashok Kumar Sondhi entrusted fiber glass sheets, angle irons and channels worth Rs. 36,400/- to accused Narinder Singh, who was the Pradhan of the Panchayat. However, these were not produced by the accused Narinder Singh and were subsequently impounded from the BDO Office compound at Rait. PW1, Naveen Kumar Sharma, who was posted as B.D.O. Rait Block in the year 2002, had received a letter from Deputy Commissioner, Kangra regarding construction of rain shelter in Gram Panchayat Kareri. He handed over the case to Enforcement Wing of Police. PW17, Baldev Ram, Inspector, Police Station SV & ACB, Dharamshala after receiving the complaint, conducted the inquiry and he finally submitted report, Ext.PW17/A. During inquiry, he had taken into possession two samples on the spot on 28.5.2003 in the presence of Junior Engineer - one sample below the plinth and another above the plinth in the presence of Up Pradhan and Kishori Lal. 3. Thereafter, FIR Ext.PW17/D was registered. PW1 Naveen constituted a committee consisting of P.L. Thakur, Addl. J.E., Trilok Dhiman and Ashok Tiwari, J.E. to make assessment of the work carried out at the spot as per letter, Ext.PW1/A and the committee prepared the report Ext. PW1/B. The Investigating Officer seized the record of Muster roll, MBs, MAS register etc. from PW4 Ajay Kumar SDO. PW7 Bir Singh, Senior Assistant, BDO Office produced photo copy of the letter dated 12.1.1998 Ext.PW7/A-1 with respect to work at Gunna Mata Temple, attested copy of original and cash book of DRDA. PW1/B. The Investigating Officer seized the record of Muster roll, MBs, MAS register etc. from PW4 Ajay Kumar SDO. PW7 Bir Singh, Senior Assistant, BDO Office produced photo copy of the letter dated 12.1.1998 Ext.PW7/A-1 with respect to work at Gunna Mata Temple, attested copy of original and cash book of DRDA. It was alleged that Kabir Pal Rana, PW8, Assistant Engineer, RDD Zonal Office, Dharamshala, in the year 2007, on the asking of Vigilance Dharamshala gave technical opinion Ext.PW8/A after examining estimate, drawing and detail of measurement of the spot. There was variance with the original drawing and work executed at the spot. It was further alleged that Ashok Kumar Tiwari, JE had taken the charge from accused Ashok Kumar Sondhi and at the time of handing over the charge, unused material along with MAS register and MBs was handed over. Ashok Tiwari was told by the accused Ashok Kumar Sondhi that fiber glass, channels, angle had been given to the accused Narinder Kumar Pradhan. Specimen thumb impression of both the hands of Fojju Ram were taken before the Executive Magistrate, R.D. Harnot, PW5. Specimen signatures of accused Narinder Kumar and Ashok Kumar Sondhi were also taken before the Executive Magistrate. The Investigating Officer, Oma Pati Jamwal, PW33, found that Ashok Kumar Sondhi had spent around Rs. 61940/- on the construction of rain shelter, whereas on assessment total work was found to be around Rs. 12,000/-. The Investigating Officer also recorded statements of the witnesses under Section 161 Cr.P.C. 4. The investigation was completed and the challan was filed in the Court after completing all codal formalities. 5. The prosecution examined as many as 36 witnesses to prove its case. Statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence and examined one witness, DW1 HC Rakesh Kumar, in their defence. 6. Mr. R.S. Verma, learned Additional Advocate General has vehemently argued that the prosecution has proved its case against the accused persons. 7. Mr. Ashok Sharma, learned Advocate appearing for accused persons has supported the impugned judgment dated 29.7.2011. 8. We have heard learned counsel for the parties and have gone through the impugned judgment and record carefully. 9. PW1, Naveen Kumar Sharma, BDO, testified that he had received a letter from the Deputy Commissioner, Kangra, vide which it was intimated that there was a case regarding construction of rain shelter in Gram Panchayat Kareri. 8. We have heard learned counsel for the parties and have gone through the impugned judgment and record carefully. 9. PW1, Naveen Kumar Sharma, BDO, testified that he had received a letter from the Deputy Commissioner, Kangra, vide which it was intimated that there was a case regarding construction of rain shelter in Gram Panchayat Kareri. He handed over the case to Enforcement Wing of Police. The work in question was undertaken in the year 1998-99 by the accused Ashok Kumar, JE. According to him, as per assessment got done, the work was found to be executed worth Rs. 18,886/-, though in MBs the accused had entered the work worth Rs. 61,940/-. According to him, the accused Ashok Kumar Sondhi had shown certain material to be purchased, but it was not found. This witness was declared hostile. He admitted that the work was done departmentally. He also found that the accused Ashok Kumar Sondhi had purchased fiber glass sheets, angle irons and channels worth Rs. 36,400/-, but this material was neither used at the spot nor was it handed over in the charge of succeeding JE, Ashok Tiwari PW18. He had constituted a technical committee on asking of Vigilance Wing of Police consisting of P.L. Thakur Additional JE PW32, Trilok Dhiman JE PW2 and Ashok Tiwari JE PW18 as per letter Ext.PW1/A. It prepared its assessment Ext.PW1/B and site plan Ext.PW1/C, which was also counter signed by the witness. According to him, till the time he remained at Rait Block till November 2003, no material was available in the Rait BDO Office or store. He admitted that he had not issued any notice to the accused Ashok Kumar Sondhi during the enquiry. He also admitted that the JE had mentioned material at site register, but he had not checked entries therein. He could not tell whether the accused Ashok Kumar Sondhi had handed over the material to his successor. 10. PW2, Tarlok Chand, deposed that at the instance of PW1, he along with PW18 Ashok Tiwari and PW32 Pritam Thakur had done the assessment work after inspecting the spot and he had assessed it to be worth Rs. 18,886/-. He also turned hostile and was cross-examined by the Public Prosecutor. 10. PW2, Tarlok Chand, deposed that at the instance of PW1, he along with PW18 Ashok Tiwari and PW32 Pritam Thakur had done the assessment work after inspecting the spot and he had assessed it to be worth Rs. 18,886/-. He also turned hostile and was cross-examined by the Public Prosecutor. He admitted that he had not signed the report Ext.PW1/B. He also admitted that there was no store or Chowkidar at the site and the accused was not taken to the spot at the time of the inspection. 11. PW3 Fouju Ram, deposed that he had worked at rain shelter for about 10-12 days and he had also put his thumb impression on the muster roll Mark M. This witness also turned hostile. 12. PW4, Ajay Kumar, had produced the record, i.e. MB Ext. PW4/A-1, which was maintained by the JE. He also produced the MAS register Ext.PW4/A-2, bill Ext.PW4/A-3 regarding purchase of 40 bags of cement, which was issued by PW14 Gopi Chand, bill of Narindera Hardware Ext.PW4/A-7, quotation of the items Ext.PW4/A-8, comparative statement Ext.PW4/A-9 and muster roll Ext.PW4/A-10. In his cross-examination, he admitted that he had not visited the site of the work. He also admitted that the material was kept in the houses of the people with their consent or even in the open. 13. PW5 R.D. Harnot, Executive Magistrate had taken the specimen thumb impression of Fouju Ram, Ext.PW5/A-1 to Ext.PW5/A-6, specimen signatures of accused Narinder, Ext. PW5/B-1 to Ext.PW5/B-6, specimen handwritings Ext.PW5/B-7 to Ext.PW5/5-12 and Ext.PW5/B-13 to Ext.PW5/B-24. 14. PW6 Ram Partap is a formal witness. 15. PW7 Beer Singh, Senior Assistant from the office of BDO Office, deposed that the consolidated cheque amounting to Rs. 1,69,950/- was received, which included the cost of construction of rain shelter amounting to Rs. 78,250/-. 16. PW8, Kabir Pal Rana deposed that there was difference in original drawing and the work executed at the spot. The cost of construction of stone masonry was more. Less construction material like cement was used in the concrete as per the report. He prepared his report Ext.PW8/A and handed over the same to the vigilance police. He made categorical admission in his cross examination that he had not visited the site of the construction, but had only seen the record for coming to conclusion. 17. Less construction material like cement was used in the concrete as per the report. He prepared his report Ext.PW8/A and handed over the same to the vigilance police. He made categorical admission in his cross examination that he had not visited the site of the construction, but had only seen the record for coming to conclusion. 17. PW9, Rajiv Kumar, JE, BDO Office Rait, deposed that on 17.8.2006, Vigilance Police visited Rait and he was asked by the BDO Nirmal Singh to assist the police and in his presence, the police seized 24 iron angles, 2 channels and 19 fiber glass sheets, which were lying in the compound of the BDO. He further deposed that the material was handed over in his custody vide memo Ext.PW9/A. 18. PW10 Omi, deposed that he worked as mason for 10- 12 days for the construction of rain shelter. He denied that he had worked for 10 days and was paid only Rs. 400/-. 19. PW11 HC Suresh Kumar, deposed that Ajay Kumar had produced one register-F, Ext.PW11/A-1 without certificate in a torn condition, which was seized vide memo Ext.PW11/A in his presence. 20. PW12 Constable Mohinder Singh deposed that he had deposited one envelope containing documents at FSL Junga. The valuation/assessment of work of rain shelter Mark-1, Mark-2 and Ext.PW1/A was taken into possession vide memo Ext.PW12/A in his presence. 21. PW13 Ranjit Singh deposed that the sale supervisor had ordered to destroy the entire record of Rait Depot upto to 10.1.2003 vide Ext. PW13/A-1. 22. PW14 Gopi Chand, deposed that he had sold 40 bags of cement to the office of BDO Rait amounting to Rs. 5840/- vide bill Ext.PW4/A-3. 23. PW15 ASI Madan Lal is a formal witness. 24. PW16 ASI Kuljit Singh deposed that on 15.7.2003, he had sent the parcels vide RC No. 15/03 at FSL Bharari through PW26 HHC Sultam Singh. 25. PW17 Baldev Ram Inspector, Police Station SV & AC, Dharamshala deposed that on the basis of the complaint, Ext.PW1/D, he prepared detailed enquiry report, Ext.PW17/A.. He had visited the spot along with one JE from the BDO Office and taken two samples. He had received the report of Laboratory regarding the samples. He had prepared his report and sent it to the Superintendent of Police Vigilance and subsequently, FIR Ext.PW17/D was registered. He could not tell whether he had directed the accused to join inquiry. He had visited the spot along with one JE from the BDO Office and taken two samples. He had received the report of Laboratory regarding the samples. He had prepared his report and sent it to the Superintendent of Police Vigilance and subsequently, FIR Ext.PW17/D was registered. He could not tell whether he had directed the accused to join inquiry. He admitted that some sand and bajri were lying at distance of 60-70 metres from the spot. He had not verified whether 16 bags of cements were lying in the verandah of Madho Ram. He also admitted that there was no store or Chowkidar at the spot. He could not tell whether angle irons, channels and fiber glass sheets were lying in the Block Office, Rait, which were kept there at the instance of BDO. 26. PW18, Ashok Tiwari, who was the member of the Committee, deposed that he had taken over the charge from the accused Ashok Kumar Sondhi JE in the year 2001. According to him, the charge was physically handed over to the successor and the unused material along with MAS register was handed over along with MBs. He also visited the site and found that sand, bajri and stones were scattered there, but the fiber glass, channels, angle irons were not handed over to him. He was told by the accused Ashok Kumar Sondhi and Pradhan Narinder Kumar that these articles were lying in the BDO residence. According to him, in MAS register Ext.PW4/A-2 at page 116, the accused Ashok Kumar Sondhi had signed as the person handing over the charge but he had not signed it as the material was not handed over to him physically regarding which he also mentioned in red circle in the said page of this register. According to him, regarding the work done at the spot, JE had made entry in MB Ext.PW4/A-1 at pages 78 to 81, in which the material purchased was also entered. The accused Ashok Kumar Sondhi had given receipt Ext.PW18/A stating therein that the material was kept in the safe custody of Narinder Singh, Ex-Pradhan, which was also signed by the accused Narinder Singh, though the material was not given to him. He admitted that as per report Ext.PW1/B, the work was assessed at Rs. 12,279/-. This witness also turned hostile and was cross-examined by the Public Prosecutor. He admitted that as per report Ext.PW1/B, the work was assessed at Rs. 12,279/-. This witness also turned hostile and was cross-examined by the Public Prosecutor. He admitted that he had told the accused that since he was transferred, he did not take the material in his charge subsequently. He also admitted that had the assessment been done when the work was in progress, the valuation may have been more. He further admitted there was no departmental store or Chowkidar at the site of the construction and the material was used to be kept in the houses of people with their consent or in the open. He admitted that BDO had also signed the MAS Register regarding sand, bajri, cut stones, fiber glass sheets etc., after proper verification. He could not explain entries mentioned in Mark D1 regarding handing over and taking over the charge. He was not in a position to explain that whether document Mark D1 was properly prepared or not. 27. PW19, Hans Raj, Executive Magistrate, had taken the specimen handwritings of accused Ashok Kumar Sondhi vide Ext. PW19/A-1 to Ext.PW19/A-13 and specimen signatures vide Ext.PW19/A-14 to Ext.PW19/A-19. He had also taken the specimen signatures of accused Narinder vide Ext. PW19/A-20 to Ext.PW19/A-35 and specimen signatures vide Ext. PW19/A-36 to Ext.PW19/A-47. 28. PW20, Sanjay Sharma, had produced the record regarding the estimate of development work Ext.PW20/A-1, detail of measurement Ext.PW20/A-2, estimate of rain shelter Ext.PW20/A-3, expenditure sanction of Rs. 78,250/- Ext.PW20/A-4 and the photo copy of letter Ext.PW20/A-5, vide which the amount was sent to BDO. 29. PW21 Madho Ram deposed that 14-15 bags of cement were kept in his house and 15-20 bags of cement were used at the site. 2-3 bags remained unused due to setting. This witness also turned hostile. 30. PW22 HC Satpal is also a formal witnesses. 31. PW23, Kishan Chand, had also worked for the construction of rain shelter. 32. PW24 Balam Ram, PW25 Narinder Verma and PW26 Sultan Singh are also formal witnesses. 33. PW27, Madan Lal, Accountant, BDO Office, deposed that the Junior Engineers were made in-charge of different Panchayat areas and the work was being carried out by them. He had also checked the MAS register, MBs, work register and recorded a pass order on the bill, Ext.PW4/A-3 qua purchase of cement. He had also entered pass order in bill Ext.PW4/A-4. 33. PW27, Madan Lal, Accountant, BDO Office, deposed that the Junior Engineers were made in-charge of different Panchayat areas and the work was being carried out by them. He had also checked the MAS register, MBs, work register and recorded a pass order on the bill, Ext.PW4/A-3 qua purchase of cement. He had also entered pass order in bill Ext.PW4/A-4. He had passed the bill, ext.PW4/A-7 amounting to Rs. 36400/- regarding purchase of fiber glass sheets, angle irons and channels from Narindera Hardware. According to him, muster roll Ext.PW4/A-10 was passed by him for Rs. 5750/- and all these documents along with other bills were submitted by the accused Ashok Kumar Sondhi and were finally passed by the BDO. He admitted that before making any payment of the work, BDO gets himself fully satisfied about the work and he also verifies the work. He also admitted that fiber glass sheets, angle irons and channels were stored by the accused in front of the store of BDO Complex Rait. 34. PW28, Amarjeet Singh, deposed that work in question was to be executed by the Block as the funds were given by the Tourism Department. According to him, whenever the payment is to be released against a Bill, the document are presented to the BDO, who marks it to the Accountant and JE and after verification of the bill from the MB, MAS register and work register, a pass order is recorded by the Accountant and thereafter, BDO signs the bills. The concerned Assistant prepares the cheque in the name of the recipient of the bill, which is also signed by the BDO. The bills, Ext. PW4/A-3, Ex.PW4/A-7 and muster roll, Ext.PW4/A-10 were submitted by the accused Ashok Kumar Sondhi and after following the procedure, these were passed for payment by him. He had checked the MB and relevant registers, though he had not seen the work register. In cross-examination, he deposed that the work in question was going on around 45 kms away from his office. He had not visited the spot. 35. PW29 Balram Sharma has testified that on the basis of investigation report and documents attached therewith, he was satisfied that the matter was required to be presented in the court under H.P. Prevention of Specific Corrupt Practices Act. He was authorised to submit the report under the H.P. Prevention of Specific Corrupt Practices Act, vide Ext. PW29/A. 36. 35. PW29 Balram Sharma has testified that on the basis of investigation report and documents attached therewith, he was satisfied that the matter was required to be presented in the court under H.P. Prevention of Specific Corrupt Practices Act. He was authorised to submit the report under the H.P. Prevention of Specific Corrupt Practices Act, vide Ext. PW29/A. 36. PW30 Prithi Chand Palia, Superintending Engineer, PWD Palampur, deposed that he had granted prosecution sanction vide Ext.PW30/A against the accused Ashok Kumar Sondhi. 37. PW31 Prithi Pal has testified that on 25.4.2006 HC Manoj Kumar handed over one docket and parcel which was having five seals of seal impression B, which he took to FSL Phillaur and deposited there as per RC No. 5/06 dated 25.4.2006. 38. PW32, Pritam Singh JE, was also associated in the inquiry conducted by PW2 and PW18 on the instructions of PW1 BDO Naveen. According to him, the work was assessed by him at Rs. 12,279/-. In cross-examination, he stated that for taking the samples, hammer and chisel were brought by the police and the samples were taken by some villagers in his presence. He denied that their assessment was not based on factual position at the spot. He also admitted that it was a hilly area and the site was to be developed by cutting the rocks. 39. PW33 Umapati Jamwal, Investigating Officer, deposed that a sum of Rs. 78,250/- was provided for the construction of rain shelter near Gunna Devi Temple by the Tourism Department. The work was entrusted to accused Ashok Kumar Sondhi. As per the record, an amount of Rs. 61,940/- was spent, whereas the assessment of the total work done was found to be worth Rs. 12,000/-. The material shown to be purchased was not available during the enquiry and thus, an amount of Rs. 50,000/- was found to be misappropriated. According to him, labourers did not receive the payment. He admitted in his cross-examination that after registration of the FIR, he himself did not get any fresh assessment done from any expert and took the expert opinion of PW8 Kabir Pal Rana. He also admitted that no sample of the alleged construction was taken during the investigation nor he visited the spot. Inspector Dharam Chand had not got the valuation of the material, i.e. sand, bajri, stones and cement lying near the spot. 40. He also admitted that no sample of the alleged construction was taken during the investigation nor he visited the spot. Inspector Dharam Chand had not got the valuation of the material, i.e. sand, bajri, stones and cement lying near the spot. 40. PW34, Sant Ram, Executive Magistrate, testified that he had taken the specimen handwriting of Accused Ashok Kumar Sondhi vide Ext.PW34/A-1 to Ext.PW34/A-13 and specimen signatures Ext.PW34/A-14 to Ext.PW34/A-19. 41. PW35, Jodha Mal, is a witness to the specimen signatures and handwritings of the accused persons having been taken before the Executive Magistrates. 42. PW36 Inspector Dharam Chand had partly carried out the investigation. 43. DW1 HC Rakesh Kumar, SV & ACB Police Station, Vigilance Dharamshala produced the road certificate, pertaining to document Mark 2 vide which two samples were sent to FSL Bharari, Shimla and letter DW1/A. 44. It has come on record that the work upto plinth level was executed by the accused. PW3 Fouju Ram, PW10 Omi, PW21 Madho Ram and PW23 Kishan Chand had carried out the construction work. It has also come on record that the construction material was being kept in the houses of the people with their consent or even in the open. There was no store or Chowkidar available on the spot. PW33 Oma Pati Jamwal, Investigating Officer, never visited the spot. He simply relied upon enquiry report of PW17 SI Baldev Ram. PW1, PW2, PW3, PW10, PW18, PW21 and PW23 were declared hostile. According to PW8 Kabir Pal Ranat, he had prepared report Ext.PW8/A. However, in cross-examination, he categorically admitted that had not visited the site of the construction, but had only seen the record coming to his own conclusion. It has also come on record that the construction material, i.e. sand bajri etc., were found lying on the site. Statement of the Investigating Officer is merely hearsay. PW2, Tarlok Chand, admitted that he had not signed the report Ext.PW1/B. In case Committee consisting of three Junior Engineers was constituted by PW1, report Ext.PW1/B should have been signed by all members of the committee. FIR Ext.PW17/D was registered on 9.12.2003. The Investigating Officer had not got any technical opinion from expert committee. The accused persons had not been associated in any of the inquires conducted by the police. The prosecution has also withheld the original charge list, Ext. D1. FIR Ext.PW17/D was registered on 9.12.2003. The Investigating Officer had not got any technical opinion from expert committee. The accused persons had not been associated in any of the inquires conducted by the police. The prosecution has also withheld the original charge list, Ext. D1. It has also come on record that foundation was never dug up to establish what was the height and breadth of the foundation below the ground level and to ascertain how much material was used in the construction of the foundation. Samples were also taken in contravention with the standard procedure. Samples were sent initially to CFSL Chandigarh and thereafter, to FSL Shimla. It has not been proved on record when samples were deposited by the Investigating Officer with the MHC Vigilance Police Station, Dharamshala and when these were sent to CFSL Chandigarh. It has also not come on record how the samples were brought back from CFSL Chandigarh and again sent to FSL Shimla. The iron angles, channels and fiber glass sheets were found in the compound of the BDO Rait. The prosecution has miserably failed to prove the case against the accused persons. 45. Accordingly, in view of the analysis and discussion made hereinabove, there is no merit in the appeal and the same is dismissed. Bail bonds are ordered to be discharged. Pending applications, if any, also stands disposed of. No costs. Appeal dismissed.