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2017 DIGILAW 375 (GAU)

Pankaj Das v. Central Bureau of Investigation

2017-03-24

AJIT BORTHAKUR

body2017
JUDGMENT AND ORDER : Ajit Borthakur, J. 1. This is an appeal under Section 374 (2) of the Cr.P.C. and Section 27 of the Prevention of Corruption Act, 1988 (for short 'P.C. Act.') against the judgment of conviction dated 07.07.2014 under Section 420/471/120-B IPC and Section 13(2) R/W Section 13(1)(d) of the P.C. Act, 1988 passed by the learned Special Judge, CBI, Assam, Additional CBI Court No. 2, Guwahati in Special Case No. 162/2004. Prosecution Case, Trial & Conviction: 2. The allegation as contained in the FIR dated 07.11.2002 is that for supply of light vehicles in Nagaon Telecom District 'Notice Inviting Tender' (NIT) was shown published vide letter dated 11.09.2002 in three newspapers, namely, 'Purbanchal Prahari', 'Sentinel' and 'Kavaz'. Accordingly, tenders were submitted by (1) M/s. B.D. Tours & Travels, (2) M/s. Green Drive Travels and (3) M/s. Glen View Travels, but the NITs seemed to have been originated from the same source, and the Bank draft deposited towards security deposit by the above three parties were also purchased from the same bank on the same date under consecutive numbers. 3. It was also alleged that Sri Biswajit Das, the proprietor of M/s. B.D. Tours & Travels is the own brother of the appellant and out of the vehicles so supplied to BSNL by M/s. B.D. Tours & Travels, one each belonged to Sri S.C. Tapadar and the sister of the appellant. The appellant and Sri S.C. Tapadar in criminal conspiracy with each other allegedly awarded the contract of supply of light vehicles to M/s. B.D. Tours & Travels at exorbitant rates to their own relations by abusing their official positions causing financial loss to the BSNL. 4. Based on the above FIR, the CBI registered a case being No. RC-GWH 2002(A)0026 under Sections 120-B/420 IPC and Sections 13(2) R/W Section 13 (1) (d) of the P.C. Act and held investigation into the case. During investigation, the I.O. recorded the statements of the witnesses and seized the relevant documents, obtained prosecution sanction against the appellant and on completion of investigation submitted charge-sheet against the appellant and his brother Biswajit Das under Section 120-B/420/468/471 IPC and Section 13(2) R/W Section 13(1)(d) of the P.C. Act. 5. During investigation, the I.O. recorded the statements of the witnesses and seized the relevant documents, obtained prosecution sanction against the appellant and on completion of investigation submitted charge-sheet against the appellant and his brother Biswajit Das under Section 120-B/420/468/471 IPC and Section 13(2) R/W Section 13(1)(d) of the P.C. Act. 5. On hearing the learned counsel for both the sides and perusal of the materials placed, the learned Trial Court framed charges under Section 120-B/420/471 IPC and Section 13(2) R/W Section 13(1)(d) of the P.C. Act against the appellant. The charges were read over and explained to the accused appellant to which he pleaded not guilty and claimed to be tried. 6. In order to prove the above charges, the prosecution examined as many as 37 witnesses including the Investigating Officer. The defence cross examined them. After closure of the evidence of the prosecution side, the statement of the appellant was recorded under Section 313 Cr.P.C. The appellant pleaded not guilty and inclined to examine witnesses in defence. Accordingly, the appellant examined 7 witnesses including himself, while prosecution cross-examined them. 7. Thereafter, upon hearing the arguments advanced by the learned counsel for both the sides and appreciation of evidence led by both the sides, the learned Trial Court held the appellant guilty under Section 420/471/120-B IPC and convicted and sentenced him to undergo R/I for one year and a fine of Rs. 1000/- under Section 420 IPC and R/I for 6 months and a fine of Rs. 1000/- under Section 471 IPC and R/I for one year and a fine of Rs. 1000/- under Section 120-B IPC. The appellant was further sentenced to suffer R/I for one year and a fine of Rs. 1000/- under Section 13 (2) R/W Section 13 (1)(d) of the P.C. Act, 1988. It may be mentioned here that the appellant's brother/co-accused Biswajit Das was also held guilty under Section 468/420/471 and 120 IPC and convicted and sentenced accordingly. Grounds of Appeal: 8. The appellant has assailed the above impugned judgment and order of conviction, inter-alia, on the following grounds: (a) That the evidence tendered by the defence witnesses and the enquiry report vide Ext. Grounds of Appeal: 8. The appellant has assailed the above impugned judgment and order of conviction, inter-alia, on the following grounds: (a) That the evidence tendered by the defence witnesses and the enquiry report vide Ext. G(1) have not been taken into consideration; (b) That the appellant constituted two independent committees, without him, namely, Tender Opening Committee (TOC) and Tender Evaluation Committee (TEC) for tender processing and recommendation of the suitable firm; (c) That there is no evidence to show any dishonest or oblique intention on the part of the appellant, which could have led to an inference of abuse of his position as public servant so as to rope him into the offence under Section 13 (1) (d) of the P.C. Act, 1988; (d) That besides the recommendation of the TOC and TEC, the independent financial adviser had also given concurrence for acceptance of the tender submitted by M/s. B.D. Tours & Travels of which the appellant's brother Biswajit Das was the proprietor; (e) That the evidence on record indicates that earlier to the tender under dispute in the year 2001, the contracts for hiring of vehicles were made with the individual private vehicle owners and (f) That the appellant had been living separately to his brother Biswajit Das and both the brothers did not have any family relation since 1997 as he married the first cousin i.e. within the prohibited degree of relationship and therefore, it cannot be said that he was a family member of the appellant under Rule 2 (iii) of the CCS (Conduct) Rules, 1964. 9. I have heard Mr. P. Sharma, learned Sr. Counsel for the appellant and Mr. P.N. Choudhury, learned Sr. Retainer Counsel, CBI and considered the submissions made by the learned counsel for the parties and have also gone through the materials on record including the evidence adduced by the parties. Arguments: 10. Mr. P. Sharma, learned Senior Advocate appearing for the accused-appellant fairly submitted that for the grounds of appeal mentioned in the memo of appeal, the prosecution has miserably failed to prove the case beyond reasonable doubt. Mr. Sharma submitted that the accused-appellant cannot be held guilty of the charges, based on conjectures or suspicion as held by the Apex Court in Sujit Biswas v. State of Assam, reported in (2013) 12 SCC 406 . 11. Mr. P.N. Choudhury, learned Sr. Mr. Sharma submitted that the accused-appellant cannot be held guilty of the charges, based on conjectures or suspicion as held by the Apex Court in Sujit Biswas v. State of Assam, reported in (2013) 12 SCC 406 . 11. Mr. P.N. Choudhury, learned Sr. Retainer counsel, based his argument on the reasons recorded in the trial Court's impugned judgment for holding the accused-appellant guilty of the charges and focused on the fact that the appellant failed to discharge his burden of proof of innocence as required under the P.C. Act, and further, that the Enquiry Report in departmental proceeding whereby no charge was reportedly not established against the appellant, has no relevance in criminal trial. Evidence: Now, let us look into the evidence on record. 12. P.W.-1 Mahindar Singh was the Director, Vigilance, in the department of Telecom, New Delhi and he issued the prosecution sanction order u/s 19(1) of the P.C. Act, dated 28.10.2004, vide Ext.1, to prosecute the appellant, who was a Group 'A' Officer, Indian Telecom Service. 13. P.W.-2 Rupjyoti Mahanta was the Senior Superintendent of Taxes, Guwahati. His evidence is that he issued Ext.2, dated 05.08.2004, certifying that M/s. Green Drives Travels had not obtained any clearance certificate from their office. 14. P.W.-3 Nishankar Roy was the Senior Accounts Officer, (SAO), office of the CGMT, BSNL, Guwahati, during the period 2003-06. His version is that as per procedure, during the year 2001, the Chief General Manager (CGM) was the competent authority to approve the hiring of vehicles for Secondary Switching Areas (SSA). No financial power was delegated to the head of SSA for hiring vehicles. During that period, TDM had no financial power regarding hiring of vehicles. According to him, as per procedure, TDM of the SSA initiates the requisition to the CGM regarding number of vehicles required, whereupon, the CGM scrutinises the requisition and if he finds the proposal justified, he communicates written sanction to the TDM for doing the needful. Thereafter, TDM issues NIT through newspapers quoting rates. A committee is constituted for scrutiny of the tender papers and the committee only notifies the lowest rate bidder and further, settles the contract in his favour. Another requirement is that only half of the number of vehicles, required for a particular circle, can be hired through requisition. Thereafter, TDM issues NIT through newspapers quoting rates. A committee is constituted for scrutiny of the tender papers and the committee only notifies the lowest rate bidder and further, settles the contract in his favour. Another requirement is that only half of the number of vehicles, required for a particular circle, can be hired through requisition. He recognised Ext.3, the relevant file maintained in the office of the TDM, Nagaon during the period 2001-02, which relates to hiring of vehicles, Ext.3(1) is the NIT, dated 11.09.2001, issued by the Divisional Engineer (DE), office of the TDM, Nagaon for hiring motor vehicles. He also recognised Exts. 3(2), 3(3), 3(4), the tender papers, submitted by M/s. Green View Travels, a Partner of M/s. Green Drive Travels and M/s. B.D. Tours and Travels respectively. Thereafter, the said contract was awarded to M/s. B.D. Tours & Travels vide Ext.3(5), the agreement, dated 01.11.2001, entered into between the DE and proprietor of M/s. B.D. Tours & Travels. He recognised Ext. 172, the schedule of financial powers of the department of Telecommunications. Document marked 'Z' contains the detail procedures of tendering and further, Ext.173 is the General Financial Rules. He also recognised Ext. 196, the forwarding letter, dated 17.02.2004 of the then GM, BSNL. He recognised Ext.56, the delegation of Revised Financial powers of the BSNL and Ext.57, the procedure of hiring vehicles for operational needs. He further recognised Ext.58, the revised norms of commission of vehicles. The appellant Pankaj Das furnished his family particulars showing Biswajit Das as his brother which he forwarded to the Inspector, CBI, ACB, Guwahati by Ext. 197. 15. P.W.-4 Divakar Chakravarty was the Income Tax Officer (ITO) in Ward-3(1), during the period August, 2001 to 11.07.2005. His evidence is that by Ext.4, the letter, he informed the Inspector, CBI that for the financial year 2000-01, no ITR was submitted by M/s. Green Drive Travels, Bhangagarh, Guwahati and therefore, no income tax clearance certificate was issued in the name of the said firm. Ext-4 was not seized and the documents were not shown to him. 16. P.W.-5 Diganta Hazarika deposed that during the period 1996-2001, he was a contractor and he opened a company named M/s. Raj Transport, Panbazar, Guwahati. He has no idea about any firm, namely, M/s. Green View Travels. He recognised Exts. 5 to 10, photocopy of the documents, pertaining to his vehicle, bearing Regd. No. AS-25-C-1981. 17. 16. P.W.-5 Diganta Hazarika deposed that during the period 1996-2001, he was a contractor and he opened a company named M/s. Raj Transport, Panbazar, Guwahati. He has no idea about any firm, namely, M/s. Green View Travels. He recognised Exts. 5 to 10, photocopy of the documents, pertaining to his vehicle, bearing Regd. No. AS-25-C-1981. 17. P.W.-6 Parama Dulia has recognised Ext.11, the photocopy of registration certificate of his Maruti Van, bearing registration No. AS-01-H-0644, purchased in the year 1999, Ext-12, the photocopy of challan showing payment of Tax to the DTO's office, Ext.14, photocopy of insurance certificate, Ext.15, photocopy of pollution control certificate and Ext.16, photocopy of permission to use the said vehicle as a taxi. He has no idea about M/s. B.D. Tours and Travels. He gave those documents to neighbour Jyotirmoy Sinha, on request, to submit as tender papers. 18. P.W.-7 Ravi Das, inter-alia, stated that he has no personal knowledge about M/s. Green Drive Travels. In the year 2001-2002, he did not make any agreement in respect of his Maruti Van bearing registration No. AS-01-F-1644, with any travel agency. He cannot say how the photocopies of his said vehicle vide Exts. 17 to 21, came to the possession of M/s. Green Drive Travels. 19. P.W.-8 Dhrubendra Lal Mukherjee was the Manager (Personal), Banking Division, SBI, Nagaon Branch during the year 2001. By Ext.22, the forwarding letter, he delivered photocopy of some duly certified instruments to the Inspector, CBI, on request. He recognised Exts. 23, 24, 25, 26, 28 and 29, the cheques issued to the BSNL (SAO), Nagaon against applications to the Sr. Accounts Officer, BSNL, Nagaon. In cross-examination, he, inter-alia, stated that Exts. 23 to 28 were not certified, as per Bankers Book of Evidence Act and those were not mentioned in Ext.22, the forwarding letter. 20. P.W.-9 Naba Kanta Bora stated, inter-alia, that in the year 2001, he was running the firm M/s. Green Drive Travels. He recognised Ext.30, the letter, addressed to the Divisional Engineer (P&A), TDM, Nagaon, submitted in the name of Naba Kanta Bora, C/o Green Drive Travels, Guwahati for issuing tender papers for hiring of vehicles. The said exhibit was not written and signed by him. He also recognised its related photocopy of documents, Exts. 32 to 34. He further recognised Ext. He recognised Ext.30, the letter, addressed to the Divisional Engineer (P&A), TDM, Nagaon, submitted in the name of Naba Kanta Bora, C/o Green Drive Travels, Guwahati for issuing tender papers for hiring of vehicles. The said exhibit was not written and signed by him. He also recognised its related photocopy of documents, Exts. 32 to 34. He further recognised Ext. 35, the letter addressed to DE (P&A), TDM, Nagaon for release of the earnest money in favour of M/s. Green Drive Travels. 21. P.W.-10 Rohini Das was the SDE, BSNL, Dispur. He recognised Ext.36, the file maintained in the office of the SDO (Phone-iv), Zoo Road, Guwahati relating to hiring of vehicle No. AS-01-J-2413 and Ext.37, the file relating to correspondences made for hiring of vehicles, maintained in the office of the SDE (Cable Construction), Ulubari. He stated that necessary approval for hiring of vehicles in favour of M/s. B.D. Tours & Travels was granted by the GM, Kamrup and the supply order was awarded by the Area Manager, Kamrup Telecom Department, Guwahati, namely, Pijush Kanti Sarma. He further recognised Ext. 38, dated 20.12.2000, the photocopy of a bill relating to the said firm for Rs. 10,948/-, passed by S.B. Chandra, the then DE (Phone), Dispur. He stated that the rate shown in the said Ext.38 was applicable to Kamrup Telecom District. He further stated that for hired vehicle, a certain rate was given such as, upto 1000 km Rs. 8500/-, per month and above 1000km Rs. 4/- was given per extra km. 22. P.W.-11 Banabir Sinha was the owner of a tourist taxi in the years 2000-2002. In the year 2001, he purchased a Tata Sumo Taxi and he never entered into any agreement with Biswajit Das, in respect of his said vehicle, but the latter took his documents of the vehicle for tender bid/business purpose, which as he later on came to know, was not successful. He recognised the photocopy of the documents Exts. 39 to 42, relating to the said vehicle. 23. P.W.-12 Jyotir Sinha, who engaged himself in transport business during the period 2000-2002, inter-alia, stated that one Raj Sekhar Gogoi took his vehicle related documents for tender purpose. He recognised Exts. 43, 44, 45, 46, the photocopy of the documents relating to his vehicles. 24. P.W.-13 Dharanidhar Boro was the Junior Engineer, Telecom. 23. P.W.-12 Jyotir Sinha, who engaged himself in transport business during the period 2000-2002, inter-alia, stated that one Raj Sekhar Gogoi took his vehicle related documents for tender purpose. He recognised Exts. 43, 44, 45, 46, the photocopy of the documents relating to his vehicles. 24. P.W.-13 Dharanidhar Boro was the Junior Engineer, Telecom. According to him from August 1999 to December, 2002, he was S.D.E., Cables (Extn.), Ulubari, Guwahati, under Area Manager Ram Pratap Singhal and DE, Extn., P.D. Sonowal. He recognised Ext. 37, the correspondence file of hired vehicles of the office of the SDE (Cable Extn.), Guwahati for the period from 20.12.2001 to 2002, which was maintained by him. He stated that he was provided with a hired vehicle along with other vehicles by the GM, Kamrup Telecom District. The rent in respect of the said vehicle was given as per the rent floated in the tender. 25. P.W.-14 Deben Inzal was the U.D. Assistant in the office of the Guwahati Municipal Corporation from November, 1999 to 2006 in its legal cell and on request of the CBI, prepared Ext.47 regarding trade license No. 38530, which was issued in the name of M/s. Just, owner-Raj Sekhar Gogoi. He recognised Ext. 48, the envelop, through which Ext. 47 was sent to the Inspector, CBI, ACB, Guwahati. 26. P.W. 15 Hitanshu Sekhar Sen was the Income Tax Officer (ITO) in Ward No. 2 (1), from June, 2003 to September, 2006. He stated that no income tax clearance certificate was issued to M/s. Glen View Travels, Guwahati. He issued letter vide Ext. 49 to the Inspector, CBI, ACB, Guwahati, in this regard covering the period 2000-01. 27. P.W.-16 S.K. Kashyap, inter-alia, stated that in the year 2001, no agreement was made with M/s. Green Drive Travels in connection with his wife's Tata Mobile vehicle. CBI did not record his wife's statement. 28. P.W.-17 Pritam Singh stated, inter-alia, that he did not enter into any agreement with M/s. Green View Travels for running his Maruti Van vehicle, which was looked after by his driver. 29. P.W.-18 Harendra Nath Medhi was the Executive Engineer, PWD (Mech.) till August, 2000. He had purchased a Maruti Van in the year 1999 and delivered its documents to Biswajit Das, the proprietor of M/s. B.D. Tours & Travels, Guwahati on their request vide Ext. 29. P.W.-18 Harendra Nath Medhi was the Executive Engineer, PWD (Mech.) till August, 2000. He had purchased a Maruti Van in the year 1999 and delivered its documents to Biswajit Das, the proprietor of M/s. B.D. Tours & Travels, Guwahati on their request vide Ext. 50, the letter, which, it was learnt, was hired by TDM, Nagaon, but he did not participate in the tender process. 30. P.W.-19 Iqbal Hussain, a Pan Masala shop owner, stated, inter-alia, that he gave on rent one Tata Sumo and Maruti Van to the BSNL, on hire contract, though he was not a registered travel agent. However, he learnt that his said vehicles were hired from M/s. B.D. Tours & Travels. The prosecution has declared this witness as hostile. He has not seen any document showing that any rent was paid to the said travel agency for hiring his vehicles. 31. P.W.-20 Ainul Haque Laskar was the SDO (T), Dispur Division in the year 2001. He recognised Ext. 36, the file related to hired vehicle No. AS-01-J-2413 which was utilised under the Area Manager and it was rented out by M/s. B.D. Tours & Travels in the month of June, 2001. He also recognised Ext.38, the triplicate copy of the original bill of the said travel agency, showing the rate Rs. 8500/-, per 1000 km and beyond that Rs. 4/- extra per km. Total bill amount being Rs. 10,948/- only was paid. The granting of vehicles on hire falls within the power of the GM and Area Manager. He also stated that the rate of hire of vehicles was, as per the rate of Kamrup Telecom District. 32. P.W.-21 Raj Sekhar Gogoi, was the owner of a PCO cum Stationery and Travel Agency. His evidence is that in the year 2001, he started a Travel Agency. Biswajit Das used to hire vehicles from his travel agency. Biswajit did not contact him, in regard to any tender for hiring vehicles from his travel agency. Prosecution declared him as a hostile witness. 33. P.W.-22 Somnath Bora was the Branch Manager, Assam Gramin Vikash Bank, Nagaon Branch, in the year 2003. He has deposed that as per request vide Ext. 52, the letter, he delivered the ledger extract of the account of M/s. B.D. Tours & Travels to the C.B.I. He recognised Ext. 53, the account opening form of account No. C/D 319, Ext. P.W.-22 Somnath Bora was the Branch Manager, Assam Gramin Vikash Bank, Nagaon Branch, in the year 2003. He has deposed that as per request vide Ext. 52, the letter, he delivered the ledger extract of the account of M/s. B.D. Tours & Travels to the C.B.I. He recognised Ext. 53, the account opening form of account No. C/D 319, Ext. 54, photocopy of driving licence and Ext. 55, the certified copy of the ledger. The transactions were made by cheques. 34. P.W.-23 Jagannath Prasad Baghel was the Divisional Manager (DM) (P&A), TDM, Nagaon in the year 2003. According to him, justification of requirement of vehicles is submitted to the C.G.M., Assam Circle, Guwahati. C.G.M. considers the justification and if satisfied only, sanction is issued to hire vehicles. The tender is floated by the TDM. There are two committees, namely, Tender Opening Committee (TOC) and Tender Evaluation Committee (TEC). The Tender Opening Committee opens the tenders and scrutinises the documents and accordingly reports to the Tender Evaluation Committee, in comparative statement. The Tender Evaluation Committee, on the advice of the Finance Advisor (FA) of the District Office, recommends the suitable party. In the year 2001-02, as per Ext. 56, the financial powers were delegated to CGM, PGM, GM and TDM by the BSNL and CGM was given full power for supply of the vehicles. As per Ext. 58, the circular, the justification was to be submitted to the CGM who was the competent authority and after his sanction, TDM was to finalise the tender documents through either open tender, that is, through publication in news papers and limited tender, that is, by selection from the list of contractors or reputed firms. He stated that it is the duty of the Tender Evaluation Committee to go into details of the rates quoted by the tenderers, the validity and correctness of the documents provided by the tenderers and decides the lowest rate quoting tenderer. It is the duty of the said committee to consider the justification of the lowest rate. This witness further stated, after going through Ext.3, the office file of tenders of TDM, Nagaon, that it contains various letters and documents related to tender process for hiring four wheeler vehicles on contract and it shows that M/s. B.S. Tours and Travels was also among the bidders in response to news paper publications made in 'Purbanchal Prahari', 'The Sentinel' and 'Kavash'. The CGM, Telecom, Assam had conveyed sanction of the extension of 6 (six) vehicles and hire of additional 3 (three) vehicles to the TDM, Nagaon, on the advice of his Internal Financial Advisor (IFA). He has not found any document in Ext.3, the file, that the appellant made any intimation to his higher authority before making decision for awarding contract to his own brother-co-accused Biswajit Das (since convicted). He stated that M/s. B.D. Tours & Travels supplied vehicles, bearing registration Nos. AS-02-A-2751, AS-01-G-5654, AS-02-A-7177, AS-25-C-4510. As per the list enclosed with the tender documents, the registration No. of the vehicles were AS-01-H-0644, AS-25-B-9374, AS-01-J-2413, AS-01-H-8903 and AS-02-A-2751 vide Ext. 50. His cross-examination, inter-alia, reveals that by order, dated 25.09.2001, the time period for closing the tender submission was extended from 24.09.2001 to 27.09.2001 as there were only three tender papers submitted and in order to have more tenders and to obtain more rates. He recognised Ext.B, the said order, where Ext.B(1) is the signature of the appellant Pankaj Das. Mr. S.C. Tapadar, Chairman, Tender Evaluation Committee cum the Divisional Engineer (P&A) recommended for requisition of five vehicles and accordingly M/s. B.D. Tours & Travels, as per request, submitted the negotiated rates of hire of vehicles, which was in turn, submitted to said Mr. S.C. Tapadar. On 18.01.2001, the TDM, appellant herein had ordered that the rates may further be negotiated on the floated rate basis vide Ext.E. On 23.10.2001, the DE (P&A) put up a note for hiring 6 vehicles, 3 existing and 3 additional for the consideration of TDM, through the Chief Accounts Officer (CAO) and he had raised no objection for floating of tender notice. He did not find any procedural lapse committed by the appellant while floating tender and he had taken appropriate care to bring down the rates through negotiation and he also formed the tender Opening Committee and Tender Evaluation Committee for this purpose. The appellant passed orders twice to negotiate the rates with M/s. B.D. Tours and Travels and accordingly, the committee had negotiated. 35. P.W.-24 Khagen Baruah was the Junior Telecom Engineer (JTE) at the office of the CGM, Telecom, Assam Circle in the year 2001-02. His version is that as per the guidelines of the BSNL, for the purpose of hiring vehicles in the SSA, the requisition is put up before the CGM for necessary sanction. 35. P.W.-24 Khagen Baruah was the Junior Telecom Engineer (JTE) at the office of the CGM, Telecom, Assam Circle in the year 2001-02. His version is that as per the guidelines of the BSNL, for the purpose of hiring vehicles in the SSA, the requisition is put up before the CGM for necessary sanction. Thereafter, the requisition is put up before the AGM (G) and then before the Assistant Chief Accounts Officer (ACAO) and further, before the DGM. Thereafter, it is put up before the GM and DGM (Finance) and then before the CGM, who may grant sanction, on his satisfaction. He further stated that requisition for hiring vehicles is made by the Head of SSA to the CGM of the Circle, whose office verifies the documents thoroughly. The documents contain necessary particulars including number of vehicles required etc. The CGM sanctions vehicles to the extent of 75% of the requirement, with the consent of the Internal Financial Adviser (IFA), which is then communicated to the Head of SSA or TDM, who then hires the vehicles, as per procedure. After going through Ext. 3, the file, he further stated that approval of tender was given in favour of M/s. B.D. Tours and Travels, provided by the appellant on 09.10.2001, the appellant is not found giving intimation to his superior officer that Biswajit Das was his brother. According to him, as per Ext. 59, the forwarding letter of a circular vide Ext. 60, issued by the Vigilance Officer, near relatives of all BSNL employees either directly recruited or on deputation are prohibited from participating in tenders and execution of works. He contradicted stating that the final approval was accorded by TDM not by CGM. In cross examination, he stated that NIT for Nagaon SSA for hiring of vehicles was called on 11.09.2001 and the circular vide Ext.60 was issued on 11.09.2002. 36. P.W. 25 Tankeswar Borah was the Divisional Engineer (Maintenance) (DE(M), BSNL, Nagaon during the period 2001-2002. According to him, TDM of SSA cannot hire private vehicles without permission of CGM. He recognised Ext. 61, the comparative statement of Tender Opening Committee, Ext. 62, the order of the Tender Evaluation Committee and Ext. 63, the recommendation of the latter committee, whereby the name of M/s. B.D. Tours and Travels was recommended. According to him, TDM of SSA cannot hire private vehicles without permission of CGM. He recognised Ext. 61, the comparative statement of Tender Opening Committee, Ext. 62, the order of the Tender Evaluation Committee and Ext. 63, the recommendation of the latter committee, whereby the name of M/s. B.D. Tours and Travels was recommended. In cross-examination by the prosecution, he stated that NIT, dated 11.09.2001 was issued under the signature of the Divisional Engineer (P&A) S.C. Tapadar and three firms participated in the tender process. 37. P.W.-26 Pramod Deka Doley was the Chief Section Supervisor (CSS), BSNL, in 2001-02. His evidence, inter-alia, is that Ext.3, the file shows that Biswajit Das was the owner of M/s. B.D. Tours and Travels and that S.C. Tapadar, the Divisional Engineer (P&A) issued NIT for hiring four wheeler vehicles on 11.09.2001 fixing 24.09.2001. Before publication of NIT, it was approved by the TDM Pankaj Das and it was published in two newspapers, namely, 'Purbanchal Prahari' and 'North East Times' in the issues, dated 13.09.2001. In cross-examination, he stated that NIT was issued on 13.09.2001 and a corrigendum was issued in the said two newspapers vide Exts. 68 and 69. Exts. 70 and 71 show that the processing was done by the department for publication of the advertisement. 38. P.W.-27 Pradyut Barkakaty stated that by Ext. 72, his wife executed an unregistered deed of agreement in favour of M/s. B.D. Tours and Travels, of which Biswajit Das was the owner for hiring of one vehicle. Biswajit Das was an independent businessman. 39. P.W.-28 Diganta Dutta is a contractor whose TATA Mobile vehicle was hired by the BSNL in 2002, through M/s. B.D. Tours and Travels and accordingly signed in an agreement on 06.11.2001. 40. P.W.-29 Jiban Chandra Bora was an employee of Telecom and he delivered certain documents to the Inspector, CBI, which were seized by Ext. 166, the seizure memo. 41. P.W.-30, Dilaur Rahman was the Branch Manager, Lakhimi Gaolia Bank, Nagaon Branch. He recognised Ext. 167 the cheque book issued by his bank in the name of M/s. B.D. Tours and Travels, bearing C/D account No. 319 and Ext. 53, the account opening form and also Ext. 95, the photocopy of the statement of account of the said firm. 42. P.W.-31 Ramendra Kumar Paul was the SDE, Telephone Directory in the year 2003. 167 the cheque book issued by his bank in the name of M/s. B.D. Tours and Travels, bearing C/D account No. 319 and Ext. 53, the account opening form and also Ext. 95, the photocopy of the statement of account of the said firm. 42. P.W.-31 Ramendra Kumar Paul was the SDE, Telephone Directory in the year 2003. His evidence is that the approving authority of publishing NIT is the GM, Kamrup and it was published in three local papers. In the year 2002, while he was working in the office of GM and CGM, BSNL, he dealt with files relating to hiring of vehicles. GM, BSNL, Nagaon was the in-charge of Nagaon SSA. He signed the agreement vide Ext.169 the photocopy thereof in regard to supply of vehicles on hire by M/s. B.D. Tours and Travels. Prior to the said agreement, NIT was published in three newspapers, after receiving the approval of GM, Telecom, Kamrup SSA. 43. P.W.-32 Makibur Rahman Chaudhury was the Senior Accounts Officer (SAO) (Cash) in the office of the TDM, Nagaon - the appellant. According to him, the NIT was published by DE, Planning and Administration, on approval of the Head Office, that is, TDM. A Tender Opening Committee (TOC) was formed which opened the tenders in presence of the bidders and after scrutinizing the tender papers forwarded the same to the Tender Evaluation Committee (TEC), which after scrutiny of the papers finalised the lowest bidder to whom the contract was to be settled. The work orders were issued under the signature of the DE. He recognised Ext. 163, the file relating to hiring of vehicles tender for the period 2000-01 of the TDM, Nagaon. The NIT was issued by DE, P&A and the work order was issued for hiring vehicles to M/s. B.D. Tours and Travels after due publication of the NIT in three news papers by S.C. Tapadar. The rates were settled after scrutiny. The bills were processed by DE M.K. Das and passed by J.P. Baghel. He passed all the bills and made payments after those got passed for payments. He recognised various bills and cash book exhibited in the proceeding. In cross examination, he, inter-alia, clarified that the appellant was not a member of the TOC and TEC and further, that the tender was floated after requisite sanction was obtained from the CGM by the TDM. He recognised various bills and cash book exhibited in the proceeding. In cross examination, he, inter-alia, clarified that the appellant was not a member of the TOC and TEC and further, that the tender was floated after requisite sanction was obtained from the CGM by the TDM. Sanction was accorded for hiring ten vehicles. 44. P.W.-33 Islam Ahmed was the Chief Accounts Officer (CAO) in the office of the TDM, Nagaon from 2002 to 2003. This witness stated about the procedure for floating NIT for hiring vehicles as other P.Ws stated above and thereafter settlement of the contract. According to him, after going through the file vide Ext. 3, it is not found whether with approval of CGM was obtained to publish NIT for the purpose of hiring vehicles in the office of the TDM, Nagaon, in the year 2001-02. In cross-examination, he, inter-alia, stated that the NIT was put up before him for all kinds of advice and after his recommendation, finally, the NIT was awarded to the party concerned. As per order of the then TDM, rates were negotiated with the lowest bidder and after negotiations, it was finally settled. The whole tendering process was carried out as per the norms and guidelines prescribed by the Telecom Department. 45. P.W. 34 Shyamal Chandra Dey was the Junior Assistant (Accounts) at NERAMAC Ltd. His evidence is that on 05.08.2003, the C.B.I. Officer obtained specimen writings of a person in his presence vide Ext. 176. 46. P.W.-35 Rupak Das deposed to have signed in Exts. 177 to 187 containing specimen handwriting of Biswajit Das. He recognised his signatures. 47. P.W.-36 Sanjay Saha is the handwriting expert, CFSL, Kolkata. He examined the questioned documents pertaining to case No. RC 26(A)/2002-GWH and rendered his opinions vide Ext. 180(3) to 180(4). His evidence relates to Biswajit Das and therefore, not stated in detail. 48. P.W.-37 Inspector Mrinal Sarma of CBI, ACB, Guwahati was one of the Investigating Officers in the case. Apart from recognising the seized exhibited documents, in cross examination, he stated, inter-alia, that the appellant was not a member of the Tender Evaluation Committee. The members of the TEC were not prosecuted. The TEC recommended the lowest bidder to the appellant. There was no conspiracy between the appellant and the TEC. Apart from recognising the seized exhibited documents, in cross examination, he stated, inter-alia, that the appellant was not a member of the Tender Evaluation Committee. The members of the TEC were not prosecuted. The TEC recommended the lowest bidder to the appellant. There was no conspiracy between the appellant and the TEC. He did not record the statement of CGM though he was the competent authority to grant permission to procure vehicles on hire by the TDM. He also did not record the statements of GM, Telecom. The notification vide Ext. 60 is dated 11.09.2002. This Ext. 60 does not show giving retrospective effect for compliance of CCS Conduct Rule 4. He did not seize Ext. 60. His charge-sheet based was on the photocopy of documents collected from the office of the TDM, BSNL, Nagaon. 49. D.W.-1 Pankaj Das is the appellant himself. His evidence, inter-alia, is that from 28.08.2001 to 07.03.2002, he was working as TDM, Nagaon. He floated NIT by following the prescribed procedure and as per the prevailing norms of BSNL. He was not a member of either the TOC or TEC. In Ext.B, the opening of the tender was extended from 24.09.2001 to 27.09.2001 to have more bidders. Sanction was received for NIT from CGM. There was slashing of rates after negotiations twice vide Ext.E, the relevant note, when the matter was put up before him after thorough scrutiny by the IFA. A departmental proceeding was initiated in view of institution of criminal case by the CBI. Ext.G is the order, dated 22.04.2010. He received various awards vide Exts-H and I, the copy. There was no restriction during the relevant period to award contract to independent relatives. Biswajit Das was not his dependent family member as per CCS Conduct Rules, 1964. Biswajit Das is his full blood younger brother. By Ext.G, the enquiry report, the department exonerated him from the charges. Ext.G is attested by the vigilance officer, BSNL for submission to the Court. In cross-examination, he admitted the suggestion of the prosecution that Ext.G was on the basis of absence of evidence regarding exorbitant rate or financial loss to the department. 50. D.W.-2 Shilpeeka Barman is the sister of the appellant and Biswajit Das. Since 1997, their family members have not been maintaining relationship with Biswajit as he married their own first cousin Minakshi Das. 50. D.W.-2 Shilpeeka Barman is the sister of the appellant and Biswajit Das. Since 1997, their family members have not been maintaining relationship with Biswajit as he married their own first cousin Minakshi Das. She stated that she does not have any knowledge about the relation between her brother Pankaj Das and Biswajit Das in their official and business capacity. 51. D.W.-3 Kanika Hazarika is another sister of Pankaj Das. She stated that as her younger brother Biswajit married their first cousin in the year 1997, since then they have no relation with him. In the year 1997, Pankaj Das was transferred to Gujarat as such since then he did not have any kind of relation with Biswajit. In cross-examination, she stated that she cannot say if Pankaj Das officially favoured Biswajit Das. 52. D.W.-4 Rajib Hazarika, a childhood friend of Pankaj Das, stated, inter-alia, that so far he knows, Biswajit Das has been living separately since 1997 from the entire family and even from Pankaj Das as he married his own cousin sister Minakshi Das. 53. D.W-5 Minakshi Das is the wife of Biswajit Das, who is her first cousin brother, that is, within the prohibited degree under the Hindu Law. They came out of their respective families and started living separately in Guwahati. Since the last part of 1997, till today, their relation between the two families has been cut off and their family is socially ostracized and boycotted. 54. D.W. 6 Badan Baruah is a businessman having acquaintance with Biswajit Das, when he was a bachelor and since the latter's marriage. Biswajit married Minakshi Das within their prohibited degree of relationship for which their family has been socially boycotted. No family member of Biswajit or his wife even visited his place of stay or enquired about their welfare. He admitted the suggestion that he has no knowledge about tours and visits of the family of Biswajit. 55. D.W.-7 Mridul Barman is a T.V. programmer and film producer. According to him, he hired vehicles from Biswajit Das and his relationship, thus, grew to a family relationship. One day in 2001, Biswajit told him that since he has married within the prohibited degree of relationship, so they have been socially boycotted and ostracized by both the families. Later on, his mother caused performance of all necessary rituals and ultimately, a girl was born to them, whose name is Ms. One day in 2001, Biswajit told him that since he has married within the prohibited degree of relationship, so they have been socially boycotted and ostracized by both the families. Later on, his mother caused performance of all necessary rituals and ultimately, a girl was born to them, whose name is Ms. Gungun Das. Their marriage function was not attended by any family members and even, thereafter, no family member visited their family. Appreciation of Evidence: 56. What it appears from the prosecution case and the evidence led by the prosecution is that while working as TDM, BSNL, Nagaon Telecom District, from 28.08.2001 to 07.03.2002, the appellant awarded the contract for hiring of vehicles to M/s. B.D. Tours & Travels, Guwahati, suppressing the fact that his brother Biswajit Das, the co-accused (since convicted) was the proprietor of the said firm, in violation of Rule 4 of the Central Civil Services (Conduct) Rules, 1964 and at an exorbitant rates without following the prescribed procedure. The prosecution contention is that the appellant abusing his position as a public servant obtained pecuniary advantage for his said brother and thereby committed cheating of the BSNL by fraudulent or dishonest intention. It is needless to say that the onus of proof of every ingredient of the charge always rests on the prosecution and it never shifts. In the instant case, the prosecution appears to have relied on the circumstantial evidence and therefore, a duty is cast on the prosecution to lead credible evidence with unerring certainty to the guilt of the accused appellant herein. In Babu v. State of Kerala, reported in (2010) 9 SCC 189 , the Apex Court dealt with the doctrine of innocence elaborately and held as under - "27. Every accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right. However, subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence. For this purpose, the nature of the offence, its seriousness and gravity thereof has to be taken into consideration. The courts must be on guard to see that merely on the application of the presumption, the same may not lead to any injustice or mistaken conviction. For this purpose, the nature of the offence, its seriousness and gravity thereof has to be taken into consideration. The courts must be on guard to see that merely on the application of the presumption, the same may not lead to any injustice or mistaken conviction. Statutes like the Negotiable Instruments Act , 1881; the Prevention of Corruption Act , 1988; and the Terrorist and Disruptive Activities (Prevention) Act, 1987, provide for presumption of guilt if the circumstances provided in those statutes are found to be fulfilled and shift the burden of proof of innocence on the accused. However, such a presumption can also be raised only when certain foundational facts are established by the prosecution. There may be difficulty in proving a negative fact. 57. Again in a catena of judgments, the Apex Court held that in case the prosecution case rests on circumstantial evidence (i) the circumstances from which the conclusion is drawn should be fully proved; (ii) the circumstances should be conclusive in nature; (iii) all the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence and (iv) the circumstances should, to a moral certainty exclude the possibility of guilt of any person other than the accused. Here it is necessary to borne in mind that where the circumstances are susceptible to two equally possible inferences, the court is to accept that inference, which favours the accused rather than the inference which goes in favour of the prosecution. 58. In the instant case, it is apparent from the evidence of P.Ws 3 and 4, the BSNL officials, that CGM, BSNL was the competent sanctioning authority to approve the hiring of vehicles for the Secondary Switching Areas (SSA) in the year 2001-02, as per the departmental guidelines and accordingly, before receiving approval of the proposal, the file moved on through various other senior authorities, such as AGM(G), ACAO and DGM. The proposal for requisition for hiring vehicles used to be initiated by the TDM, that is, the Head of SSA, mentioning therein the number of such vehicles required and thereafter, the sanctioning authority, that is, the CGM considered the justification and if he was so satisfied sanctioned the proposal. The sanction order was used to be communicated to the TDM for doing the needful in this regard. The sanction order was used to be communicated to the TDM for doing the needful in this regard. It may be noted that before approval is accorded, the documents in support of justification were thoroughly examined by the aforementioned authorities. The CGM was authorised to sanction only to the extent of 75% of the requirement with due consent of the IFA. As per the prevalent procedure, the TDM, BSNL used to issue NIT through newspapers circulating in the State and the received tenders were scrutinised by the independent TOC and TEC respectively constituted for the purpose before final recommendation of the lowest rate bidder for the contract was recommended, which was further negotiated before settlement. The detail tender procedure is laid in Ext.'Z'. 59. It is further noticed from Ext.3, the relevant file relating to hiring of vehicles, during the period 2001-02, maintained in the office of the TDM, BSNL, Nagaon that NIT, dated 11.09.2001, was issued by S.C. Tapadar, DE, BSNL, Nagaon and published in three newspapers, namely, Purbanchal Prahari, the Sentinel and Kavash for hiring nine vehicles. In response to the aforesaid NIT, issued by S.C. Tapadar aforementioned, M/s. Green View Travels and M/s. B.D. Tours & Travels submitted tenders. According to P.W. 26 Pramod Deka Doley, the CSS, BSNL, after obtaining approval by TDM, the appellant, NIT was published in 2 (two) news papers, namely, Purbanchal Prahari and North East Times in issues, dated 13.09.2001, followed by corrigendum issued in the said two newspapers vide Exts. 68 and 69, after departmental process was done for publication of the advertisement vide Exts. 70 and 71. It is further noticed that the tenders were opened by the TOC, in presence of the bidders and after scrutinising the tender papers forwarded the same to the TEC, which, after further scrutiny of the tender papers, finalised the lowest bidder, that is, M/s. B.D. Tours & Travels and rates were settled. The appellant, as it appears from the above evidence, was not a member either of the said two committees. It is the evidence of P.W. 32, then CAO, that the tender was floated after requisite sanction was obtained from the CGM for hiring the four wheeler vehicles. It is further apparent from the evidence of P.W. 33 that the whole tendering process was carried out as per the norms and guidelines prescribed by the Telecom Department. It is the evidence of P.W. 32, then CAO, that the tender was floated after requisite sanction was obtained from the CGM for hiring the four wheeler vehicles. It is further apparent from the evidence of P.W. 33 that the whole tendering process was carried out as per the norms and guidelines prescribed by the Telecom Department. It is seen that a disciplinary proceeding was drawn up against the accused-appellant and after due enquiry by the GM, Sangareddy Telecom District, it was reported vide Ex. 6(1), the Enquiry Report that the charges were not established. 60. It also appears that after settlement of the contract for hiring vehicles in favour of M/s. B.D. Tours & Travels, owned by the appellant's brother, the rates were further negotiated on the order of the appellant, on floated rate basis vide Ext. E. According to P.W. 23, then DM (P&A), he did not find any procedural lapse being committed by the appellant, while tender was floated and that the appellant took appropriate care, through the concerned committee to slash down the quoted rates through a series of negotiations and constituting TOC and TEC for settlement of the contract. Therefore, it is seen, the appellant did not get involve in the entire process of NIT till settlement of the said contract. However, as it appears from the evidence of P.W. 10, then SDE, BSNL, Dispur that the settled rates shown in Ext. 38 were of prevailing rates pertaining to Kamrup Telecom District. The prosecution has not exhibited any document showing the prescribed rates for hired vehicles in other Telecom Districts of Assam to infer a presumption that the settled rates were unreasonably inflated. P.W. 37, the investigating officer admitted in cross examination that the TEC recommended the lowest bidder to the TDM, Nagaon and did not find any clue to any pre-planned conspiracy between the TEC and the appellant in the process of settlement of the contract in favour of the appellant's brother's firm, namely, M/s. B.D. Tours & Travels. 61. So far the Ext. 60, the notification, dated 11.09.2002, is concerned, P.W. 37, the investigating officer stated that the said notification does not disclose that it was given retrospective effect for compliance of CCS conduct Rule 4. 61. So far the Ext. 60, the notification, dated 11.09.2002, is concerned, P.W. 37, the investigating officer stated that the said notification does not disclose that it was given retrospective effect for compliance of CCS conduct Rule 4. This fact has come in the evidence of P.W. 24, then JTE, who stated that the NIT for Nagaon SSA for hiring of vehicles was called on 11.09.2001 and the circular vide Ext.60 was issued on 11.09.2002. If it is so, it cannot be said that Ext. 60, the notification was in force, when the contract was settled vide Ext. 3(5), the agreement, dated 01.11.2001 between S.C. Tapadar and Biswajit Das. There is also no explanation from the prosecution side as to why the original copy of exhibited documents, such as Exts. 5, 6, 7, 8, 9, 10, 11, 12, 32, 33, 34, 39, 40, 41, 42, 43, 44, 45, 46, 54, 60, 95, 169 etc. as those have come, as a while, in the evidence of the P.Ws, could not be produced during trial of this criminal case. P.W. 13, the investigating officer stated that he submitted the charge-sheet vide Ext. 193, on the basis of the photocopy of the documents collected from the office of the TDM, BSNL, Nagaon. 62. Further, from the evidence of P.W.3, then SAO, the appellant furnished his firmly particulars showing Biswajit Das as his brother, which he forwarded to the Inspector, CBI, ACB, Guwahati by Ext. 97. The appellant in his statement under Section 313 Cr.P.C. stated that "the element 'brother' was not material under consideration at any stage in the tendering process. Also, under CCS (Conduct) Rule, it's beyond the purview, as Sri Biswajit Das was not a dependant member of my family at that period as also clarified by the I.O. P.W. 37." In this regard, D.W.1, the appellant stated that though Biswajit Das was his full blood younger brother, he was not his dependent and interested family member as per the CCS Conduct Rule, 1964. His (D.W.1) evidence, so far it relates to the dependency of the said brother, it appears from the evidence of D.Ws 2 and 3, his sisters, D.Ws 4 and 6, his friends, P.W.5, the wife of Biswajit Das and D.W. 7, a family friend of Biswajit that the family of Biswajit has been socially boycotted and ostracized by both the families as he married D.W. 5, who is within the prohibited degree of relationship. The prosecution appears to have not made any effort by leading some reliable evidence regarding dependency or interest of Biswajit on the appellant or eliciting any fact to the contrary of the defence claim of non-existence of such dependency of Biswajit on the appellant through cross-examination of the D.Ws. It is well settled that the evidence tendered by the defence witnesses cannot always be considered as unbelievable or unreliable one, rather the same should be treated at par with the prosecution witnesses. On the other hand, the aforesaid departmental circular, vide Ext. 60, dated 11.09.2002, was not in force during the period of undertaking of the tendering process and till the agreement was signed on 01.11.2001, between S.C. Tapadar and Biswajit Das vide Ext. 3(5). Therefore, upon careful consideration of the defence evidence, this Court is constrained to hold that Biswajit Das had no dependency interest on his elder brother-the appellant or otherwise existed any family relationship since the year 1997, when Biswajit entered into marital tie within the prohibited degree of relationship with D.W.5, beyond all reasonable doubt. Inferences: 63. Considered thus, this Court is further constrained to hold that there is no evidence of any effective involvement of the appellant, who was the TDM, BSNL, Nagaon, during the relevant period 2001-02, in the tendering process for hiring four wheeler vehicles for the SSA, Nagaon and settlement of the said contract at an inflated rates in favour of his non-dependent brother Biswajit Das, who was the proprietor of M/s. B.D. Tours & Travels, when the evidence clearly shows that the whole tendering process was carried out as per the norms and guidelines by the Telecom Department. Therefore, the allegations that the appellant entered into criminal conspiracy with his said brother in getting the said contract settled through illegal means, such as fraudulently using forged documents through Biswajit Das, the proprietor of M/s. B.D. Tours & Travels and also thereby cheating the BSNL to the tune of Rs. 10 lacs by way of payment of bills to his said brother are, in fact, not proved beyond all reasonable doubt. This court is further constrained to hold that for the aforesaid reasons, it cannot be inferred that the appellant in any manner abused his official position as public servant in fraudulently settling the contract in favour of his brother's firm beyond reasonable doubt. In Sujit Biswas v. State Assam reported in (2013) 12 SCC 406 , the Apex Court held that probabilities however strong and suspicion however grave can never take the place of proof. Conclusion: 64. For the above stated reasons, the impugned judgment and order, dated 07.07.2014 passed by the learned Special Judge, CBI, Assam, Additional Court No. 2 in Special Case No. 162/2004 is hereby set aside and the accused appellant, namely, Pankaj Das is acquitted under Section 420/471/120-B IPC and under Section 13(2) R/W Section 13(1)(d) of the P.C. Act, 1988 and set at liberty. Accordingly, the appeal stands allowed. Send back the LCR along with a copy of this judgment and order.