JUDGMENT : Rumi Kumari Phukan, J. As all the appeals arose from the same judgment in special case 15/2006 they are taken up together and being disposed with this common judgment. Heard Mr. B. M. Choudhury, learned counsel for the appellant in Crl. Appeal 02/2015; Mr. R. P. Singh, learned counsel for the appellants in Crl. Appeal 04/2015 and Mr. M. G. Singh, learned counsel for the appellant in Crl. Appeal 05/2015. Also heard Mr. S. C. Keyal, learned standing counsel, CBI. 2. During 1995-96 the Department of Telecommunications, here-in-after called DoT, Government of India, decided to provide Optical Fibre Cable (OFC) Communication link on Imphal Moreh route in the state of Manipur. A survey of the route was conducted; a Project Estimate was prepared & sanctioned. The total route length of the section is 108 kms. which was divided into 27 sub-sections of 4 kms length each. The tenders were invited and the work was executed through contractors separately for each sub-section. The terms, conditions & specifications of work are mentioned in the tender document. The agreement was executed with the successful contractors. The over-all in charge of the work was Divisional Engineer (DE) and the Government is represented by him. The Sub-Divisional Engineer represents the Government at the site of work. The JTO supervised the day to day work at site. The measurements were recorded by JTO in MB and bills were prepared by him. The cent percent work was checked by the Site Engineer (SDE). The bills were pre-checked by JAO, passed by the DE; counter signed by the Director and paid by the concerned Accounts Officer. 3. The depth and protection of the cable was verified as per route index diagram three times immediate after execution of the work. The cable was handed over to maintenance unit, coming to an end the responsibility of the OFC officials. After completion of trenching and laying of HDPE pipes in the year 1998, the route was given for acceptance testing in the year 1999. The route was found to be satisfactory. 4. As per the survey report, as the entire sub-section fell in the hilly and rocky area it is not possible to lay the cable at the standard department and hence the RCC protection had to be given over the cable. Hence acceptance testing of the OFC route had to be done by the T&D Circle. 4. As per the survey report, as the entire sub-section fell in the hilly and rocky area it is not possible to lay the cable at the standard department and hence the RCC protection had to be given over the cable. Hence acceptance testing of the OFC route had to be done by the T&D Circle. After successful completion of acceptance testing, the route was handed over to the Eastern Telecom Region for maintenance purposes. 5. An FIR was lodged by the Inspector of Police of the CBI, Silchar on 14.09.2001 to the effect that they got a reliable information that the accused public servants and different contractors while laying optic fibre cable which was awarded by the Divisional Engineer (OFC) to different contractors during 1995-96 for execution in different subsections of the Imphal-Moreh route by paying excess amount to those contractors against approved rates and the tendered quantities of the work. The excess payments were made on account of deviations and in quantity of works and increase in the quantity of the works including unauthorized payment against some items which were not tendered. Agreements were made without proper approval and against rules and guidelines. 6. It is alleged that appellants while working in their respective capacities by abusing their official position and in connivance with the other officials and the contractor (M. S. Deol was awarded the contract to execute the OFC laying in respect of SS 20) thereby caused undue loss to the exchequer by committing the following omissions and commissions. (1) Approval of tenders at exorbitant rates much higher than the estimated rates. (2) Deviations in the quantity of hard and rocky soil by increasing the same much more than the quantities indicated in the tenders, certifying the execution of increased quantities and causing payments accordingly by passing the questioned bills, apparently because the rates for these items were much higher than the estimated rates. (3) Deviations in the execution of quantities of works for soft soil by decreasing the same apparently to favour the contractors because the rates of these items were lower than the estimated rates. (4) Deviations in the concreting works by showing executions of increased quantities of concreting works against the tendered quantities. (5) Falsely certifying the unwarranted concreting works and RCC/GI pipes lying and causing payments by passing the bills of the contractors for these items. (4) Deviations in the concreting works by showing executions of increased quantities of concreting works against the tendered quantities. (5) Falsely certifying the unwarranted concreting works and RCC/GI pipes lying and causing payments by passing the bills of the contractors for these items. (6) Falsely certifying higher depth than the actual depths and excess payments against these items. (7) Payments in excess of expenditure sanctioned in violation of rules. 7. Further it is alleged that the accused public servants and the contractors conspired among themselves and in pursuance of the said conspiracy, excess quantity of some items in the works was shown to have been executed unauthorizedly without ex-post-facto approval from the competent authority and payments were made at the tendered approved rate instead of departmental rates causing wrongful gain to the accused persons, thereby causing wrongful loss to the department of Rs. 4,27,464/-. At the time of random technical checking conducted by the CBI during preliminary inquiry reveals that the appellants with collusion with the contractor have cheated the department by way of excess payment to the contractor towards execution of excess quantity of work without approval from the competent authority and that too at the approved rate instead of departmental rate and by making false entries in the MBs showing execution of various works which are not actually executed as recorded in the MB. 8. During investigation, the IO visited the spot, recorded statement of the witnesses, seized a number of documents and after obtaining necessary sanction against the public servants submitted charge-sheet u/s 120B/420/468/477A of the IPC read with Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988 against all the appellants. 9. The learned Trial Court accordingly took cognizance of the offence against appellants and framed charge under Sections 420/120(B)/477A IPC read with Section 13 (1) (d) (2) P.C. Act and explained to the accused appellants to which they pleaded not guilty. 10. Prosecution examined as many as 29 witnesses and defence examined none. The plea of defence is of total denial. Statement of accused persons u/s 313 Cr.P.C. was recorded wherein they have denied the allegations. 11. The learned Trial Court on conclusion of trial convicted and sentenced appellant A. C. Dey to r/i for 2 years with fine of Rs. 10,000/- u/s 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 with fine of Rs. Statement of accused persons u/s 313 Cr.P.C. was recorded wherein they have denied the allegations. 11. The learned Trial Court on conclusion of trial convicted and sentenced appellant A. C. Dey to r/i for 2 years with fine of Rs. 10,000/- u/s 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 with fine of Rs. 5,000/- and in default to s/i for 3 months. 12. Appellant Navendra Kumar is sentenced to r/i for 1 year with fine of Rs. 5,000/- u/s 120B of the IPC and r/i for 2 years u/s 420 of the IPC with fine of Rs. 10,000/- and r/i for 2 years with fine of Rs. 10,000/- u/s 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 with fine of Rs. 5,000/- and in default to s/I for 3 months. 13. Appellant D. Sundaramurthy and S. Kumar Singh are sentenced to r/i for 1 year with fine of Rs. 5,000/- each u/s 120B of the IPC and in default to s/i for 3 months and r/i for 2 years with fine of Rs. 5,000/- each u/s 420/477A of the IPC and in default to s/i for 3 months and sentenced to r/i for 2 years with fine of Rs. 5,000/- each u/s 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and in default to s/i for 3 months. All the sentences are directed to be run concurrently. 14. Aggrieved by the aforesaid order and judgment of the conviction present appeals are preferred. Appellants in criminal appeal 2/2013 was working as the Director (OFC) and the appellants in criminal appeal 4/2015 as SDE (OFC) and the appellant in criminal appeal 5/2015 as JTO(OFC) in the department. 15. I have heard the argument of learned counsels for both the parties at length and there is deliberation from both the sides on the evidence on record and the appreciation thereof. It has been vehemently contended by the learned counsel for the appellants that without proper appreciation of entire evidence on record, the learned Trial Court has come to a conclusion on the basis of surmises and conjecture, which is not sustainable in law. It has been vehemently contended by the learned counsel for the appellants that without proper appreciation of entire evidence on record, the learned Trial Court has come to a conclusion on the basis of surmises and conjecture, which is not sustainable in law. Per contra, according to the learned standing counsel, CBI, in view of apparent findings of excess payment by the appellants to the contractors for the work in question, as per the joint inspection report, against the estimated amount in the tender document, the appellants are rightly held guilty by the Trial Court which calls for no interference. Contention raised by appellants (officials): 16. At the very outset, it is submitted that none of the appellant was associated in the execution of the work relating to digging of trenches and laying of cable. Since they did not execute any work, there is no question of their causing any loss to the department or gain to the contractor. It is pointed out that the Director OFC has no field duties; but, in accordance with the provisions contained in Clause 132 of the tender document, he can inspect the work during its progress. The same is reproduced here-in below for the ready reference of this Hon'ble Court:- "All work under or in course of execution or executed in pursuance of the contract shall at all times to open to the inspection and supervision of the Engineer-in-Charge and his authorized subordinates, and the contractor shall at all times during the usual working hours, and at all other times at which reasonable notice of the intention of the Engineer-in-charge or his subordinate, to visit the works, shall have been given to the contractor, either himself be present to receive orders and instructions, or have a responsible agent duly authorized in writing present for that purpose. Orders given to the contractor's agent shall be considered to have the same force as if they has been given to the contractor himself. The work during its progress can also be inspected by Director, Telecommunications and Chief General Manager Telecom." 17. Attention has been drawn to the various aspect of evidence on record which has not been considered or discussed by the learned Trial Court. Sh. The work during its progress can also be inspected by Director, Telecommunications and Chief General Manager Telecom." 17. Attention has been drawn to the various aspect of evidence on record which has not been considered or discussed by the learned Trial Court. Sh. S.N. Malakar (PW-23) who was specially deputed for repairing work, has stated in his cross-examination as follows:- "I was called specially to repair OFC on Imphal Moreh and Imphal Churachandpur routes. The OFC cables had been damaged as a result of clearing of debris accumulated from landslides by JCB and excavation of the drain by the side of the hills by JCBs and also as a result of widening of road by PWD. I had repaired the damaged portions of the Imphal Moreh and Imphal Churachandpur routes. After repairing, the cable was offered for A/T. The AT is directly under the control of CGM (T&D) with its head quarter at Jabalpur. It is correct that A/T team verified the depth of the cable and protection over the cable from the Route Index Diagram. It is correct that the OFC could not be commissioned unless it was accepted/approved by the AT team. AT had raised some objection at the first instance. After removing all those objections, I offered the OFC again for AT. AT had sought relaxation of depth of OFC trenches from the CGM NETF. It is correct that AT had sought relaxation of depth of cable because the cable was not laid at the standard depth of 1.65 metres. The CGM accorded the relaxation of depth the OFC. I had offered the cable, after approval of AT, to the maintenance organization. Thereafter, a joint team of 5 officers of executing and maintenance organization consisting of Ashok Kumar, DETP/NETF, Guwahati,) E. Swer, DE Maintenance, ETR, Imphal, S.N. Malakar, DETP/NETF, Guwahati, Maria Pragasam, SDE, OFC, NETF, Imphal and W. Inaopi, JTO Maintenance ETR, Imphal, was constituted. It is correct that the joint inspection team again verified the depth of the cable and protection. It is correct that a memo was prepared with regard to the sample test check of OFC with regard to the depth of the cable and protection over the OFC. It is correct that during joint inspection, the random test check was conducted in each sub-section of the entire route. The depth and protection was found correct as per Route Index Diagram. It is correct that during joint inspection, the random test check was conducted in each sub-section of the entire route. The depth and protection was found correct as per Route Index Diagram. I was present during joint inspection and I had signed the memo. It is also correct that a joint inspection was again conducted at the Director level on both the routes i.e. Imphal Moreh and Imphal Churachandpur. Sri Sailendra Agarwal, Area Director, NETF, Guwahati and myself were present from OFC side and Director (Maintenance) ETR, Shillong was also present there. I had signed that memo. The depth and protection noted by A/T was checked at the Director level during joint inspection. After full satisfaction with regard to the depth and protection over the OFC as per Route Index Diagram, the maintenance organization took over the charge of the OFC and I had handed over the charge of the cable to the maintenance. This exercise was done both at Imphal Moreh route and Imphal Churachandpur route. I had signed the joint inspection memo prepared by maintenance organization and executing staff. The responsibility of the executing staff with regard to depth and protection of the OFC came to an end and thereafter it became the responsibility of the maintenance organization. " The IO (PW-29) M.T. Mang has admitted all these facts in his cross-examination, in the following terms:- "It is correct that the A/T was conducted by the office T&D (Technical & Development) circle. The controlling officer of the AT is the CGM, T&D Circle Jabalpur. It is correct that CGM NETF has no control over them. It is correct that the officers of AT verified the depth and protection of the cable as per Route Index Diagram. It is correct that the officers of AT team commissioned the cable only when they found it correct. It is correct that I had seized AT report. It is correct that after AT, a joint inspection was conducted by the officers of OFC and ETR (maintenance). It is correct that they also verified the depth and protection of the cable as per Route Index Diagram. It is correct that I had seized the joint inspection report. It is correct that a depth check report was also prepared at the Director level in presence of the Additional Director and Director (Maintenance), Shillong. It is correct that I had seized this report also. It is correct that I had seized the joint inspection report. It is correct that a depth check report was also prepared at the Director level in presence of the Additional Director and Director (Maintenance), Shillong. It is correct that I had seized this report also. Since I did not feel that these documents i.e. A/T report, joint inspection report, I did not enlist them in the list of documents enclosed with the charge sheet." It is submitted that the testimony of Sh. S.N. Malakar (PW-23) and the admission of the same by IO (PW-29), reveals that the work executed by the OFC staff/the appellants was verified three times as per Route Index Diagram in respect of the depth of the cable and the protection applied to it. Each time, it was found correct as recorded on Route Index Diagram and the Measurement Book. The IO had admittedly seized all those documents; but, he deliberately did not place those documents on record, obviously because no cases made out against the appellant in view of the said reports. The responsibility of the appellants, thereafter, came to an end and further responsibility shifted on the Maintenance organization to maintain the cable. It is pointed out that the CBI did not associate any person from the Maintenance organization during investigation. On this ground alone, the impugned judgment is liable to be set aside and the appellants are entitled to acquittal. 18. The Ld. Trial Court wrongly relied upon the joint inspection report of CBI. The witnesses to the joint inspection memo stated as follows:- "PW-14, W. Sunil Singh has stated that he could not co-relate any point of the joint inspection with the corresponding point on route index diagram/MB. He also couldn't tell the figures mentioned in joint inspection memo as per bill/MB/RID. He stated that IO mentioned all the figures. He further stated that the report was prepared on the spot. PW-19 Sh. B. Nag Choudhury has stated that he co-related the points; but, the figures do not tally. The status of soil in the joint inspection memo was that of the soil excavated from the trenches which cannot be the same as it was at the time of digging the initial trench for laying the cable. He further stated that due to heavy rainfall, the protection is washed away and many times, cable is also washed away. The status of soil in the joint inspection memo was that of the soil excavated from the trenches which cannot be the same as it was at the time of digging the initial trench for laying the cable. He further stated that due to heavy rainfall, the protection is washed away and many times, cable is also washed away. He stated that he did not know as to who prepare the report and where it was prepared. Nobody was present when he signed the memo except IO who had brought to him for his signature in a hotel in Imphal where he was staying. He clearly stated that it was not prepared in his presence and he signed the same on the following day." PW-21 Sh. Y. Ibomcha Singh has stated that the area, where inspection was conducted, was hilly and rocky. The road widening work had been done. He didn't know if the cable was shifted due to road widening. He stated that there were drains over the trench. He signed the report in CBI office after 10 days of the spot verification. He stated that S.M. Singh signed in Imphal. S.M. Singh did not sign at Silchar. The report was not prepared in his presence. He does not know where and how it was prepared. He signed at the instance of the IO. PW-22 Sh. Y. Rajo Singh has stated that he does not know who prepare the report and where it was prepared. It was not prepared in his presence. CBI did not read out its contents to him. He had not been told about the measurement/figure. The report was not prepared on the spot. He had not seen tender document, MB, RID etc. on the site. PW-25 Sh. S.M. Singh has stated that he does not know if the report relates to Imphal Churachandpur or Imphal Moreh route. He did not see what was written by the IO. He overheard the conversation about measurement. He had not seen the observations noted by the IO. The nature of soil was not decided in his presence. He could not read the contents of the report shown to him on the date of evidence without spectacles. He signed it in the office of the DE. The DE did not explain its contents. The IO had come to office of DE, after completion of the work, for his signature. He could not read the contents of the report shown to him on the date of evidence without spectacles. He signed it in the office of the DE. The DE did not explain its contents. The IO had come to office of DE, after completion of the work, for his signature. PW-26 Sh. B.N. Malik has stated that the reference point shown in the CBI report are not appearing in the route index diagram. The points of inspection by CBI cannot be located without reference points. On perusal of the report and RID, he could not say if this report pertains to this subsection. The route index diagram was not seen during inspection. It may be with IO. He perused the route index diagram and found that the KMP reference is there but he could not co-relate the points of inspection memo on the route index diagram. PW-27 Addl. SP/CBI, T. Thangzalian has stated that in most of the places, the State PWD had constructed concrete drains over trench and it was very difficult to get OFC. He stated that in some other places, road was widened over OFC trench. OFC was laid along the road. Random checking was not possible in the absence of permission from State Govt. for road cutting. As mentioned in the report, the portion where random checking was conducting in the diagram itself and signed by all but the same is nowhere available on record, meaning thereby, the original report of inspection was nowhere available on record and a fabricated report was placed on record. PW-29 IO, Sh. M.T. Mang has stated that 5 points were inspected while total 9 points were inspected. 3 points were inspected on 01.02.2002 and 6 points were inspected on 31.05.2003. The actual depth of the cable and protection over it cannot be ascertained without reopening the entire trench. No report was sought about shifting of cable or any damage caused to it from the maintenance staff and none of them was associated during investigation. He clearly stated that he is not aware if the cable was shifted or it was in its original position. No report was sought about shifting of cable or any damage caused to it from the maintenance staff and none of them was associated during investigation. He clearly stated that he is not aware if the cable was shifted or it was in its original position. He further stated that the protection is to be provided if the standard depth is not achieved." Thus, the Trial Court evidently committed an error in relying upon the joint inspection report of CBI which is full of contradictions and inconsistencies the same cannot be relied upon. Thus, the Trial Court cannot rely upon the same without any evidence on record. 19. It has been admitted by the IO (PW-29) that no sub-z wise detailed estimate was prepared and without detailed estimate for each sub-section, the cost and quantities cannot be worked out. The PW-23 Sh. S.N. Malakar has stated that the estimated cost shown for each subsection could not be correctly evaluated since no detailed estimate was prepared sub-section wise. He has also stated that the figures/quantities mentioned in the tender document are not according to survey report. The IO has also admitted that the figures and quantities as per tender document are not according to survey report. It is, therefore, evident that the estimated figures mentioned in the tender document are fictitious. Consequently, they are bound to change. 20. In accordance with clause 46 of the tender document, the figures/quantities mentioned in the tender document are not firm and final. They are subject to change. The changed quantities will be deemed to have been included in the tender schedule. In accordance with the clause 47 of the tender document, the payment to the contractor will be made according to the actually executed quantities at the approved tender rates. It has been done in the present case. The said clauses are reproduced here-in-below for the ready reference of the Court: "46. The quantities/figures indicated in the tender schedule are approximate and are subject to change. Any change effected shall be binding on the tenderer/contractor as though included in the original tender schedule and any such change will not make the agreement void and it is therefore essential that the tenderers binding all the documents carefully and not commit any mistake in analyzing the rates quoted and remain binding notwithstanding any changes as aforesaid. Any change effected shall be binding on the tenderer/contractor as though included in the original tender schedule and any such change will not make the agreement void and it is therefore essential that the tenderers binding all the documents carefully and not commit any mistake in analyzing the rates quoted and remain binding notwithstanding any changes as aforesaid. No revision of tendered rates shall be considered on any ground whatsoever. 47. The quantities indicated in tender schedule shall not be considered as representing firm/final quantities. All works shall be measured by Divisional Engineer or his authorized representatives. Amount payable to contractor shall be on the basis of actual work done by him at the rate approved by department." It is, therefore, submitted that no excess payment has been made to the contractor. The excess payment alleged to have been made to the contractor is merely the difference between the estimated cost and the actually executed cost. The estimated cost can never remain same in any case. 21. In accordance with the provisions contained in clause 220 of the tender document, the site in-charge is the competent authority to decide the category of soil and the depth of the trench. He will also decide the protection to be used over the cable under the prevailing circumstances. 22. There is no provision of law or rules or any instructions or any clause in the tender document which requires DE to conduct test check at every 100 metre or 10% of the work. However, clause 192 provides that the DE will test check only if he considers necessary. It is not mandatory and this fact has also been admitted by the IO (PW-29), PW-9 (Sh. S.K. Sikidhar) and PW-23 (Sh. S.N. Malakar). 23. According to the geological survey, about 91% of the area of Manipur is hard rock. According to survey report conducted by PW-18 Sh. R.N. Singh, the entire route is hilly and rocky. It will not be possible to lay cable at the standard depth of 1.65 metre. Hence, the protection of GI/RCC pipe and RCC is to be provided over the cable. This fact has also been stated by PW-9 and PW-23. The IO has also admitted that according to Survey reports, the entire route is hilly and rocky. 24. It will not be possible to lay cable at the standard depth of 1.65 metre. Hence, the protection of GI/RCC pipe and RCC is to be provided over the cable. This fact has also been stated by PW-9 and PW-23. The IO has also admitted that according to Survey reports, the entire route is hilly and rocky. 24. The payment to the contractor has been made proportionately since the cable has not been laid at the standard depth of 1.65 metre. Evidence on record. 25. As the entire case revolve around the joint inspection report made by the IO in presence of other witnesses, let us start with the evidence of the IO. Relevant portion of evidence of PW-29 the IO, Sri M. T. Mang is quoted below: During inspection we have found that nature of soil was hard soil without RCC with depth of 60 cm where as in the bill claim was for rocky soil with RCC and depth of 80 cm. Ext. 45 is the joint inspection memo 29.08.2001 which was prepared in presence of all the witnesses wherein Ext. 45(8)(9), signature of K. Lokeshor Singh. Again on 01.02.2000, joint inspection of trenching and laying in SS 20 of the said route was conducted by the then CBI inspector J. Kerlo in presence of other officials and during inspection it was found nature of soil was hard soil without RCC at two spot and hard soil with RCC at one spot where as the claim as per MB was of rocky soil with RCC works vide Ext. 46 with the joint inspection memo and he was one of the signatory to the said memo along with other witnesses. On 31.05.2003, a joint inspection OFC trenching and laying works in SS 20 and SS 19 of Imphal Moreh route on MS 37 was conducted again by team of CBI officials in presence of witnesses and during the said inspection it was found that the nature of soil was soft without RCC where as the claim was made for trenching in rocky soil with RCC works vide Ext. 42 with the joint inspection memo prepared by him and signed by the witnesses including him. In cross examination he has stated as below: Myself and B. Nag Chaudhury had decided the locations where pits were to be dug. 42 with the joint inspection memo prepared by him and signed by the witnesses including him. In cross examination he has stated as below: Myself and B. Nag Chaudhury had decided the locations where pits were to be dug. I had the route index diagram, bills, MB and tender documents of SS 20 with me. We made pits, measured the depth of the trench and nature of the trench. Category of soil was decided by B. Nag Chaudhury, myself and other team members jointly and the same was decided by visual inspection. As per survey report entire route of Imphal Moreh falls in hilly, land erosion, landslide prone area however SS 20 falls within the town area of Thoubal. As per tender documents the figures and quantities mentioned are not according to survey report. The cost of OF cable lying cannot be same for all the 27 subsections i.e. Rs. 3 lakhs, as mentioned in the tender documents. It is correct that the contractor is paid at the approved tendered rates. It is correct that the competent authority to ascertain the depth, size of the trench and category of soil. It is correct that it is the discretion of the DE to conduct test check or not. It is not mandatory. It is correct that no subsection wise detailed estimate had been prepared. Without detailed estimate for each subsection, cost and quantities cannot be worked out. It is correct that the A/T was conducted by the office T&D circle. The controlling officer of the AT is the CGM, T&D Circle Jabalpur. It is correct that CGM NE Task force has no control over them. It is correct that the officers of AT verified the depth and protection of the cable as per route index diagram. It is correct that the officers at AT team commissioned the cable when they found it correct. It is correct that I had seized AT report and a joint inspection was conducted by the officers of OFC and ETR (maintenance). It is correct that they also verified the depth and protection of the cable as per route index diagram. It is correct that I had seized the joint inspection report. It is correct that a depth check report was also prepared at the director level in presence of the Additional Director and Director Maintenance, Shillong. It is correct that I had seized this report also. It is correct that I had seized the joint inspection report. It is correct that a depth check report was also prepared at the director level in presence of the Additional Director and Director Maintenance, Shillong. It is correct that I had seized this report also. Since I did not feel that these documents i.e. AT report, joint inspection report, I did not enlist them in the list of documents enclosed with the charged sheet. It is correct that as per survey report SS 22 and SS 25 falls along hilly and rocky area and protection has to be provided on hilly and landslide prone area. RCC/GI pipe protection is to be provided over OFC as the standard depth cannot be achieved in these areas. It is correct that the quantities and figure shown in the tender documents are not in the survey report. It is correct that estimate quantities are not final. The cost of execution may increase when there is an excess quantity of work and there may be changes in the soil condition with the passage of time. It is correct that there may be changes in the depth of the trench with the passage of time and there may be changes in depth with the passage of time. It is correct that the distance of each SS is 4 KM. This case relate to SS 20 from 396 to 400 metres. The pits for joint inspection was made between 397 and 398 because there was no land mark or route indicators in the remaining portion i.e. 396 to 397 KMP as well as between 398 and 400 KMP, hence it was not possible for the team members to correlate any point with the corresponding point in the route index diagram. It is correct that the observations of joint inspection team are only for a span of 1 KM length in the entire subsection of 4 KMs. It is correct that the loss calculation has also been calculated only for 1 KM length by the department officials and not for the whole sub-section. It is correct that the cable route indicators are removed at the time of road widening and shifting the cable. The standard depth of cable is 165 CM but if the standard depth could not be obtained due to any reason then RCC protection is to be provided. It is correct that the cable route indicators are removed at the time of road widening and shifting the cable. The standard depth of cable is 165 CM but if the standard depth could not be obtained due to any reason then RCC protection is to be provided. The OF cable has not been laid at the standard depth at any case. It is correct that there is provision of RCC protection in the tender documents of only 500 meters whereas the cable trenching is rocky soil is provided for 1380 meters. I do agree that there is always difference between estimated quantum of work and the actual work executed. When there is excess quantum of work at the time of execution a detailed note is prepared at the end of the DE's level. The same is forwarded to Director OFC (P) for according necessary approval. The office of the Director, OFC is situated at Guwahati and the work in question was executed in Imphal Moreh section which is far away place from the office of the Director, OFC and as such on the basis of the detailed note given by the DE, the necessary approval is given by Director. At the time of joint inspection, the same was done only on visual inspection and no scientific methods/procedures were followed. 26. Pw-14/Sh. W. Sunil Singh (Head Constable, CBI); PW-19/Sh. B. Nag Choudhury (SDE); PW20/Sh. Rajendra Singh (JTO); PW-21/Sh. Ibo Mucha Singh (Regional Manager); PW-22/Sh. Y. Rajo Singh (Regional Manager) and PW-25/Sh. Shoibam Momon Singh(Technician), all were witnesses to the joint inspection dated 31.05.2003, Vide Ext. 42, and they have simply stated about the joint inspection without narrating anything about the findings. They have stated that during the inspection random checking the trenches where the OFC was laid was excavated, the depth nature of soil used was visually examined and findings were noted down. In cross examination they have admitted that they were not shown any documents during inspection. They cannot correlate the point of joint inspection with route index diagram for MB, it was mentioned by the IO. On being further tested in the cross examination they could not say anything about the depth and breadth of the pits, they dug. As it appears that all the witnesses mechanically signed the said reports, without proving the content of the same. 27. Pw-24/Sh. On being further tested in the cross examination they could not say anything about the depth and breadth of the pits, they dug. As it appears that all the witnesses mechanically signed the said reports, without proving the content of the same. 27. Pw-24/Sh. S. R. Bali, Deputy Director General, TEC, prepared the project estimate in respect of OFC laying work in Imphal Moreh route, in the year 1995 and it was forwarded to the CGM Task Force for approval, which was sanctioned after his transfer to Dehradun. He came to know about this case in the year 2003. He has exhibited document pertaining to the project estimate Ext. 26 at the cost of Rs. 6,77,80,000/- and it was proposed to be completed in the year 1995-96 financial year, Ext. 31 is the forwarding letter and the sanction was accorded for the project estimate of Rs. 4,17,83,582/-, vide Ext. 29 is the survey report and Ext. 33 is the tender document and he does not know who floated the same, he was declared hostile by prosecution and he denied any statement before the IO about awarding contract at exorbitant rate etc. In cross-examination, he has stated that he has no knowledge about the terrain of OFC. He had not made the subsection wise detail estimate. He does not know whether detail estimate based on the project estimate sanctioned by CGM prepared for each subsection. He has admitted that the estimated cost of each subsection cannot be ascertained without preparing the detail estimate in subsection wise. Thus, his evidence is not supportive of prosecution case. 28. Pw-26, B.N. Malik, who was a witness to the other joint inspection carried out on 29.08.2001 and on 01.02.2002 has also stated about his signature in the joint inspection memo, vide Ext 45 and 46, without narrating about the nature of inspection and finding thereof. As has been stated by other set of witnesses, he has also stated in cross examination that he simply accompanied the CBI team and cannot remember the role he played during inspection except that he seen the labourers digging the trench. He had not seen the route index diagram during the inspection which was in the custody of the inspector. The reference point shown in the joint inspection memo nowhere appear in the route index diagram. He had not seen the route index diagram during the inspection which was in the custody of the inspector. The reference point shown in the joint inspection memo nowhere appear in the route index diagram. On perusal of the joint inspection memo and route index diagram he cannot say that this joint inspection memo pertains to the same subsection which is available to the records nor he can correlate the points in the route index diagram on the joint inspection memo. 29. The another witness to the joint inspection dated 01.02.2002 was PW-27 Addl. SP/CBI, T. Thangzalian, who has stated that he went along the IO and other staff on that day while the joint inspection of SS 20 was made, following 3 (three) pits were dug, 1. 5 Metres from KMP 398 towards Imphal as noted MB/Bill, 2. 100 Metres from KMP 398 towards Imphal as noted MB/Bill and 3. 250 Metres from KMP 396 towards Imphal as noted MB/Bill. Findings of joint inspection were recorded in the joint inspection memo Ext 46 and he put his signature therein. His evidence also fails to highlight anything about the irregularities that was detected at the time of inspection. 30. It is evident that although IO has carried out 3 (three) joint inspection on 29.08.2001, 01.02.2002 and 31.05.2003, but none of the witnesses including the IO himself could not specifically brought on record as to the deviation of the work like to what extent nature of soil was found different, to what extent RCC protection was not provided having regard to the relevant tender documents, route index diagram to the said subsection, concerned MB and they even could not correlate the point of joint inspection with route index diagram for MB. The witnesses were not at all aware about the relevant documents pertaining to the contact. 31. Pw-28/Sh. Joseph Krelo, Deputy S. P., CBI, one of the IO, only seized three numbers of documents from one Accounts Officer, O/o DGM, Task Force through Ext. 9 and he was not associated with other part of investigation. 32. On the other hand, the evidence of PW-1/J. Biswas, PW-2/D. Das and PW-3/D. Dey, relates to the seizure of various documents by the IO. The PW-4/M. Singh, PW-5/S. K. Jain, PW-8/A. K. Girotra and PW-12/Anil Chanda Davnath have stated about the prosecution sanction against the officials. 9 and he was not associated with other part of investigation. 32. On the other hand, the evidence of PW-1/J. Biswas, PW-2/D. Das and PW-3/D. Dey, relates to the seizure of various documents by the IO. The PW-4/M. Singh, PW-5/S. K. Jain, PW-8/A. K. Girotra and PW-12/Anil Chanda Davnath have stated about the prosecution sanction against the officials. The PW-4 has stated that the department was not inclined to grant prosecution sanction on three occasion lastly on the approach by CBI to Central Vigilance Commission (CVC) the sanction was granted. Similarly, PW-6/Sh. K. K. Das, an officer of the Telecom office, O/o the Directorate of Microwave working as a Sr. Telecom Office Assistant, has stated all about the documents from the file and has exhibited certain documents like tender document, containing notice inviting tender, agreement between the officer and the contractor, awarding of tender to the contractor in respect of the route in question, different work order containing the signature of the officer concerned and his evidence is totally silent all about the allegations. 33. Pw-7 goes on speaking all about the preparation of bills relating to OFC and about the process of checking of bills by different persons. He has duly issued the cheques after examination of bills and other documents and has submitted the bill were passed by the DE, OFC counter signed by Director OFC etc., etc., and accept narrating all details about making such payments he has not alter a whisper as to what sort of illegality carried out by respective accused persons, either the officials or the contractors. He duly passed all the bills, issued the cheques without there any sort of objections on his part. In cross examination he has also stated that payment to the contractor was made on the basis of actual executed quantity, it has nothing to do with the estimated quantity. Site engineer is the authority to decide the trenches and types of the soil. Test check are done as per the clause 192 of NIT. In cross examination he has also stated that payment to the contractor was made on the basis of actual executed quantity, it has nothing to do with the estimated quantity. Site engineer is the authority to decide the trenches and types of the soil. Test check are done as per the clause 192 of NIT. As per this clause the Divisional Engineer before passing the bill for section covered by each sets of measurement, will carry out test check by the opening trench at intends if necessary and bill will be passed only when he is personally satisfied of the correctness of the entire in the MB and also when he is satisfied with regard to other aspects of the work as per term of the contract. The site engineer represent the DE. Generally measurements are taken by the site engineers. Excess quantity and amount paid to the contractor is the difference between the estimated cost and the executed cost. The payment has been made for actual executed work. An amount of Rs. 2,00,330/- has been shown as excess payment without any estimate and is merely the difference between estimated cost and executed cost. As per the survey report with regard to Bishanpur-Churachandpur OFC route it is mentioned "it may be noted here it will be very much difficult to dig cable trench to the depth f 1065 meters, hence RCC/GI pipes have to be laid for the protection f SDPE pipes which are almost more than of the distance in this section. The provision of RCC protection is nil as per the estimates given the tender document". 34. The PW-9 S. K. Sikidar, retired DE has stated all about the OFC lying project in respect of SS 20 and has also stated about the comparative statement of SS 20 vide Ext. 25 by Tender Evaluation Committee (TEC) and certain other communication on letter and the recommendation of TEC about the approved tenderer except exhibiting large number of documents pertaining to the awarding of contract till the preparation of the running bill of the contract, his evidence is silent about the discrepancy/illegality while awarding the contract or even the preparation of bills. He has however stated as per Ext. He has however stated as per Ext. 34 calculation which was made on the basis of joint inspection difference found in the payment of bill was 4,27,957/-, the estimated cost of SS 20 was 3 (three) lakhs and the approved rate was Rs. 7,44,000/-. He further states that out of total 11 point jointly checked as per the joint inspection memo there are three points, the depth is found less and in 8 point the depth was found more than the depth recorded in MB. The variation of depth after4/5 years after the work is completed is possible as other agencies are also work in site by site along the NH. In the tender document there is no mentioned about the depth of trenches in a particulars subsections and the type of soil in a particular spot. The route was not commissioned immediately after completion of work because of so many damages in this route which was commissioned in 2002 after six years of completion of work. After restoration of OFC route the route was offered for AT (acceptance and testing). In the AT and T&D circle, Test check, depth and protection of the cable route and if found fir for commissioning declares commissioned. The department is not doing the Anti Termite treatment in the cable route for keeping protection of RCC concreting. Without anti termite treatment the concreting might or might not be spoil after leap of some year. Re in statement of trenches are done as per the instruction available in the tender document. In SS 32 and SS 33 falls in hilly terrain of Dimapur Kohima OFC route. During executing if there is any extra or additional work carried out by the contractor the amount payable to the contractor would be on the basis of the rate approved by the department. The SS 32 and SS 33 falls in Nagaland State and hence within insurgency porn area no security was provided by the department the contractor is to maintained of the arrange there own security whatever way it is possible. 35. Pw-10 Govinde Kolita (cashier), PW-11 K. K. Mishra (accounts officer) and PW-13 Central Bank Employee simply state about the first and second running bills, cheque book, cash book pertaining to the work in question and PW-13 stated about the accounts maintains by the contractor M.S. Doel. 35. Pw-10 Govinde Kolita (cashier), PW-11 K. K. Mishra (accounts officer) and PW-13 Central Bank Employee simply state about the first and second running bills, cheque book, cash book pertaining to the work in question and PW-13 stated about the accounts maintains by the contractor M.S. Doel. They have neither stated about the joint inspection report nor about the irregularities in preparing the bills, MB etc. PW-11 admitted that he did not know about the content of MB bills as he was a casual labour and he prepared the paper work as instructed by JTO, SDE, JAO and DET. 36. The evidence of PW-15 K. S. Manoharan, PW-16 Tomy Kurian PW-17 A. K. Chanda and PW-18 Raghunath Singh relates to the all detail about the project in question and about the survey report and procedure of checking, and the allotment of the work to the contractor without expressing any sort of irregularity that may have crept into while awarding the contract by the officials. The evidence which go to show that it was the duty as to exhibit the documents and reveal all detail about the project without narrating the role played by the each of the officials or contractors while awarding the contract. FROM THE DEPOSITIONS OF THE AFORESAID VITAL PROSECUTION WITNESSES, IT REVEALS THAT Before inviting the tender, no sub-section wise survey, project estimate was prepared. After completion of tender process and after issuing the work order to the contractor, physical survey was conducted by the authority and on the basis of such survey report, project estimates were prepared. The estimated quantities are not firm and final, that are subjected to change during the time of execution of the work as per clause 46 & 47 of the tender documents. It may be increased or it may be decreased. Any excess quantity required at the execution of the work would be deemed to have been included in the tender quantity and the payment to the contractor is made on the basis of the actual work done, it may be less, it may be more. The entire Imphal Moreh route is hilly, rocky, landslide, soil erosion and sinking zone. It was extremely difficult to make the trench upto the standard depth of 165 cm. It was therefore essential to provide RCC/GI pipes and RCC protection of OF cable over the entire route. The entire Imphal Moreh route is hilly, rocky, landslide, soil erosion and sinking zone. It was extremely difficult to make the trench upto the standard depth of 165 cm. It was therefore essential to provide RCC/GI pipes and RCC protection of OF cable over the entire route. The AT team had sought relaxation of depth of OFC trenches from the CGM, NEFT because the cable was not laid at the standard depth of 1.65 meter. The CGM accorded the relaxation of depth the OFC. Such facts have been stated none other than the prosecution witnesses. As the entire route is hilly and rocky area, therefore the project cost increases and therefore, a revised estimate was prepared and the same was duly approved by the CGM, Task force. The work was executed in the year 1996. After completion of the work, the cable was offered to the AT team for inspection and as the AT team detected some defect at the first instance in the year 1999, therefore, the contractor was asked to rectify the same. After rectification of the defects, the cable was again offered to the AT team and the AT approved the same. Thereafter the cable was handed over to the maintenance organization. After handing over the cable to the maintenance organization, a team of 5 officers from the AT and the Maintenance organization was constituted and accordingly, they carried out the joint inspection as per the Route Index Diagram and after inspection, as everything was in order, the said team approved the same. Thereafter, another inspection was carried out at the directorate level and the said team also inspected the cable as per the Route Index Diagram and after inspection, they accepted the cable and accordingly, the cable was formally handed over to the maintenance organization. Thereafter, the SDE prepared the MB on the basis of the route index diagram and the bills and the same were rectified by the DE. The MBs had been countersigned by the Director OFC (P) and duly pre checked by the JAO, OFC (P) and finally the Accounts officer, Microwave project passed the bills and accordingly payment was made to the contractor. The CBI conducted the investigation in the year 2003 till that time more than 7 years have elapsed. The MBs had been countersigned by the Director OFC (P) and duly pre checked by the JAO, OFC (P) and finally the Accounts officer, Microwave project passed the bills and accordingly payment was made to the contractor. The CBI conducted the investigation in the year 2003 till that time more than 7 years have elapsed. During this period of seven years, the condition of the cable has been changed due to land slide, soil erosion, damaged caused by the PWD etc, which has been corroborated by several prosecution witnesses, but the CBI has neither collected any report from such organization nor exhibited the same. That CBI has made the joint inspection without the route index diagram inasmuch as the same has not been exhibited in the case. The CBI has also not exhibited the AT report, Joint inspection report prepared by the officers of the AT and the maintenance organization and the joint inspection report prepared at the Directorate level. The sub-section file which contained about the deviation statement and the approval from the authority although seized by the IO but not produced. Due to such serious lapse on the part of the IO, the authenticity of the joint inspection report is itself at shake. The CBI had not made the JAO, the ETR personal, CGM, Task Force NER, as witness and/or accused in the case, under whose supervision, the work was executed and who had verified and/or inspected the work. The CBI had prepared the joint inspection memo at their office and the signatures of the witnesses were taken at their office as well as in the hotel after two days that too without allowing them to verify the figure recorded at the time of the inspection. The witnesses to the joint inspection has not supported the content of the said report save and except their signature in the report. At the time of carrying such joint inspection by the IO, no soil testing expert was with him nor any comparative chart was prepared having regard to the route index diagram to show the actual amount tendered and about the deviation as regard the nature of soil, depth of trench etc. The only verbal evidence of the IO which was not supported by documentary evidence and not corroborated by his own witness is not enough to prove such serious charges against the appellants. The only verbal evidence of the IO which was not supported by documentary evidence and not corroborated by his own witness is not enough to prove such serious charges against the appellants. The official witnesses so far examined by prosecution except exhibiting the documents has not brought anything on record to reflect that the officials entered into conspiracy with the contractor while awarding the contract, rather evidence reveals that the contract was awarded in due manner after evaluation by tender evaluation committee. No any witness has stated about the irregularities in the tender process. The joint inspection report prepared by the IO is highly disputed documents as the witnesses to the same has totally fail to prove the authenticity of the said report, where as the whole prosecution case is projected only on the basis of the said inspection report. The assessment made and shown in the joint inspection report cannot at all be held to be proper as it was not made on the basis of extremely relevant documents i.e. the tender documents, route index diagram, MBs. The said report lost its credibility due to lack of supporting evidence to its content. Findings of nature of soil, depth, RCC protection etc., after long years of execution of the work, that too after repairing works carried by the department, widening of roads and natural calamity etc., appears to be natural which has been admitted by the witnesses in their cross examination. Nothing has been brought on records that tender documents, MBs etc., has been manipulated for the purpose of illegal gain. Survey report indicates the area where the works are carried out hilly and rocky area and it is extremely difficult to reach the required depth of 1.65 metres which has resulted that while executing the work, the estimated depth in all the sections could not be achieved. No subsections wise estimate was prepared at the time of joint inspection by IO to get the exact report of the locations. The measurements taken by the IO could not co-relate with the route index diagram. In such eventuality no explicit reliance can be given to the joint inspection report. FINDINGS 37. No subsections wise estimate was prepared at the time of joint inspection by IO to get the exact report of the locations. The measurements taken by the IO could not co-relate with the route index diagram. In such eventuality no explicit reliance can be given to the joint inspection report. FINDINGS 37. In view of all what have been discussed above, the deviation that has been found by the IO at the time of his inspection after 7 years of execution of the work will not itself indicate the criminal liability of the officials as well as the private contractors. Evidence indicates prior approval was taken for such deviation of work by the site engineer which is in the sub-section file that the said important file was withdrawn from producing before the Court. The tender document says that estimated amount is not final, survey report says that the standard depth cannot be acquired, witnesses said due to natural calamity like heavy rain fall, soil erosion as well as broadening of road many a times disrupted the places of cables. Despite the cables were found at the time of joint inspection at their places and certainly the change of nature of soil and damage to the protection etc. is natural due to the above reasons. It reflects that the MBs have been countersigned by the Director, OFC, duly pre-checked by JAO, OFC (P) and finally passed by Account Officer, Microwave Project and thereafter payment was made to the contractor on the basis of actually executed quantities and at the approved tender risk. The prosecution witnesses as discussed above that the work in question was completed as per tender document and under the supervision of the authority and none of the witnesses speak about any illegality except some deviation of amount in respect of soil and depth of the trench. 38. The notable aspect of the case is that the case was registered on source information by CBI but source is not disclosed. 38. The notable aspect of the case is that the case was registered on source information by CBI but source is not disclosed. The higher authority of the department has not come forward with allegation and the case was independently investigated by the CBI officials and has conducted the joint inspection by the IO in presence of the police officials and the officials from the BSNL but none of the witnesses have supported the evidence of the IO on material aspect, rather they show ignorance about the findings made by the IO, whereas, the whole case revolves around the joint inspection made by the IO. No implicit reliance can be made upon such joint inspection report, the authenticity of which is itself clouded by shadow of doubts. More so, the witnesses reveals that the loss calculation has been made on the basis of such report, the content of which is not at all proved. Similarly, the depth of the trench and deviation of soil have also been calculated having regard to the findings of the joint inspection report and comparison of the findings with the original status of the project obviously cannot be the same. The findings of the survey report indicates that the projected area was hilly and rocky and prone to the landslide, couple with the oral evidence (particularly in cross-examination) reveals stoutly that condition of soil and depth of trench cannot remain same for variety of reasons as has been discussed above. 39. The department concerned was reluctant to accord sanction to prosecution as has been stated by own witnesses of the department and they mechanically accord the sanction for the third time on the basis of the CBI report (draft prosecution sanction was prepared by CBI as stated by one of the witness) as the CBI approach to CVC. It reveals that while awarding sanction, there was no application of mind to the relevant documents as well the status of the officials, whether they can be removed by the person who has accorded the sanction. 40. It reveals that while awarding sanction, there was no application of mind to the relevant documents as well the status of the officials, whether they can be removed by the person who has accorded the sanction. 40. According to the learned Standing counsel for the respondent/CBI excess quantity of work was executed without taking prior approval of the competent authority and payment was made for those excess quantity of work whereas according to the clause 78 of the tender document, contractor shall not make any change of any work under the contract without written instruction from the site engineer, i.e. the DE. Refuting the said allegation, the learned counsel for the appellant pointing towards the evidence of IO as well as other witnesses, it has been urged that the witnesses said that the prior approval was taken for the excess work done for which excess payment has been made which aspect has entered in the subsection file and the same is not produced before the Court, despite seizure being made by the IO. 41. It has also been argued from the side of the respondent that supervising authority, i.e., the DE has to conduct test check of the OFC trenches and protection of cable which is not done contrary to the provision rendering them liable for such illegality. Referring to the clause 132 of the tender document, the learned counsel for the appellant has submitted that the said submission is not true as the said provision is not mandatory but a discretionary and for non-compliance of the same, it may amounts to irregularity but not an illegality and same cannot be attributed any criminal liability on the part of the official concerned. It has been submitted that the Accounts Officer, who checked the bill, found the same correct and passed the bill without any objection. 42. Further contention raised by the learned counsel for the respondent that even after lapse of 7 (seven) years from the execution of the work, the protection of the cable cannot be washed away and vanished neither the soil condition cannot turn into soft soil from hard/rocky soil that was found at the time of joint inspection and the joint inspection report is proved by the witnesses. The same submission has also been refuted by the learned counsel for the appellant that witnesses to the joint inspection itself reveals that the cable was found in the working condition and all the protection work was not vanished but found damaged condition. It is vehemently contended by the learned counsel for the appellant that in view of the evidence on record itself regarding the land condition and other various factors, the RCC protection as well as the soil condition cannot remain the same as the area was prone to the landslide also. 43. Another piece of argument by the learned counsel for the respondent that the accused appellant has raised the bills for the excess quantity of work which was never executed by them and there is violation of provision of different clauses 60 (F), 73 (D), 78, 192, 220. In reply, the learned counsel for the appellant has strenuously contended that such a piece of argument has no basis to rely as evidence on record never speak about violation of such conditions and the witnesses have admitted in their cross-examinations that the work was executed as per tender document and payment was made on the basis of the work actually executed by them. 44. On the case of the evidence on record, which has already been discussed, I found no force in the contention of the learned counsel for the respondent rather the submission of the appellant got support in terms of the evidence on record. Moreover, the veracity of the joint inspection report is itself at shake and not a proved document. 45. In view of the charge/allegations leveled, it was for the prosecution to prove affirmatively that the accused appellants by corrupt or illegal means or over abusing their positions obtained pecuniary advantage by making conspiracy with each other. But in the instant case, upon scrutiny of the evidence, it would go to show that save and except mechanically exhibiting the documents related to the work in question, the witnesses have not divulged anything on the above aspect. The prosecution cannot prove its case by mere exhibiting documents but authenticity and correctness of said documents also to be proved by the witnesses, which is absolutely lacking in this case. 46. Let us discuss the law pertaining to exhibiting of documents in evidence. The prosecution cannot prove its case by mere exhibiting documents but authenticity and correctness of said documents also to be proved by the witnesses, which is absolutely lacking in this case. 46. Let us discuss the law pertaining to exhibiting of documents in evidence. In a landmark judgment, the law laid down by the Hon'ble Supreme Court in Sait. T. Khimsand and Ors. Vs. Yelamarti Satyam & Ors, (1971) AIR SC 1865 is Mere marking of an exhibit does not dispense with the proof of documents. Further, in Sudhir Engineering Co. Vs. NEEPCO Roadways Ltd., (1995) 34 DRJ 86 , the entire law relating to the marking of exhibits and tendering documents in evidence has been dealt with. It has been held that mere marking and exhibit on a document does not dispense with the formal proof thereof. Relevant para is extracted below "Let me now look at the law. Any document filed by either party passes through three stages before it is held proved or disproved. These are : First stage : when the documents are filed by either party in the Court; these documents though on file, do not become part of the judicial record; Second stage: when the documents are tendered or produced evidence by a party and the Court admits the documents in evidence. A document admitted in evidence becomes a part of the judicial record of the case and constitutes evidence. Third stage: the documents which are held 'proved, not proved or disprove' when the Court is called upon to apply its judicial mind by reference to Section 3 of the Evidence Act. Usually this stage arrives the final hearing of the suit or proceeding. I am of firmly opinion that mere admission of document in evidence does not amount to its proof. Admission of a document in evidence is not to be confused with proof of a document. When the Court is called upon to examine the admissibility of a document it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved, disproved or not proved the Court would look not at the document alone or only at the statement of the witness standing in the box; it would take into consideration probabilities of the case as emerging from the whole record. When called upon to form a judicial opinion whether a document has been proved, disproved or not proved the Court would look not at the document alone or only at the statement of the witness standing in the box; it would take into consideration probabilities of the case as emerging from the whole record. It could not have been intendment of any law, rule or practice direction to expect the Court applying its judicial mind to the entire record of the case, each time a document was placed before it for being exhibited and form an opinion if it was proved before marking it as an exhibit. The marking of a document as an exhibit, be it in any manner whatsoever either by use of alphabets or by use of numbers, is only for the purpose of identification. While reading the record the parties and the Court should be able to know which was I he document before the winless when it was deposing. Absence of putting an endorsement for the purpose of identification no sooner a document is placed before a witness would cause serious confusion as one would be left simply guessing or wondering while was the document to which the witness was referring to which deposing. Endorsement of an exhibit number on a document has no relation with its proof. Neither the marking of an exhibit number can be postponed till the document has been held proved; nor the document can be held to have been proved merely because it has been marked as an exhibit. This makes the position of law clear. Any practice contrary to the above said statement of law has no sanctity and cannot be permitted to prevail." In LIC of India & Another. Vs. Rampal Singh Bisen, (2010) 4 SCC 491 it has been held as below - "Mere admission of document in evidence does not amount to its proof. In other words, mere marking of exhibits on a document does not dispense with its proof, which is required to be done in accordance with law. Under the law of evidence also it is necessary that content of documents are required to be proved either by primary and secondary evidence. At the most admission of document may amounts to admission of content but not its truth. Content of the documents cannot be proved by merely filing in the Court." 47. Under the law of evidence also it is necessary that content of documents are required to be proved either by primary and secondary evidence. At the most admission of document may amounts to admission of content but not its truth. Content of the documents cannot be proved by merely filing in the Court." 47. Although the learned counsel for the CBI in firm vehemence has contended that looking into the allegations leveled against the public servants and the findings of the Trial Court needs to be confirmed, but looking into the manner in which the case was conducted by the IO and non-appreciation of the relevant evidence by the Trial Court and discussion only one portion of evidence ignoring the entire evidence on record amounts to cause prejudice to the case of the defence. Miserably, the learned Trial Court has not discussed the relevant cross-examination of the witnesses and we may say so that even in their examination-in-chief, except exhibiting the documents to the work in question, their evidence is not specific to the allegations leveled. It is the cardinal principles of the criminal jurisprudence that prosecution case is to proof the each and every charges leveled against the accused to the heel and Court is to appreciate the entire evidence either oral or documentary in the touchstone of the authenticity. The Court is not expected to pick and choose one portion of evidence to arrive its conclusion by ignoring the other aspect as to whether said portion of documents is proved or substantiated as per law, which is found missing in this case. So far as the revealment by the witnesses, plausibility of involvement of accused persons with the offence alleged is not forcefully made out, rather it indicates another view that the work in question was carried out without any illegality. There may be some irregularity here and there for raising the cost of soil without having proper sanction at relevant time but in view of the evidence surfaced, it also indicate on the basis of actual finding in the field the status of soil as well as depth of trench may differ which has resulted the variation of cost against the estimate. As there is no clear picture depicted by the prosecution itself, the Court is not obliged to carry out own exercise to arrive at a conclusion which is not otherwise proved. 48. As there is no clear picture depicted by the prosecution itself, the Court is not obliged to carry out own exercise to arrive at a conclusion which is not otherwise proved. 48. Now, in the instant case, the impugned judgment reveals that the learned Trial Court counted the content of different exhibits regarding the bills, MBs etc., whereas, the said documents were not proved by the witnesses themselves. Most of the witnesses in their cross-examination has stated that they have no personal knowledge about those exhibited documents and they have marked the document in the Court as shown to them and this was the evidence of the officials of the department concerned and in such pretext, it will be more vulnerable to decide the case on such unproved documents. 49. In Abdullah Mohammad Pagarkar etc. Vs. State, (1980) CriLJ 220, (Union Territory of Goa Daman Dieu), where a public servant and contractor were prosecuted under prevention of corruption act and Section 420, 468, 471 IPC for defrauding the government by submitting false bills of the work done, it has held that thought the work was got executed in flagrant disregard to the relevant rules and even ordinary norms of procedural behavior of governmental official, contractor such disregard did not amount to say any of the offences alleged against them. The onus of proof of existence of every ingredient of the charge always rest on prosecution and never shift. It was incumbent therefore on the State to bring out beyond all reasonable doubt that the number of labourers actually employed in carrying out the work was less than that stated in the summaries appended to the bills paid by the government, the accused could not be convicted relying on the mere impression of prosecution witnesses regarding the number of labourers employed from time to time. No doubt there several irregularities giving rise to strong suspicion in regard to the bonafide of accused in the matter of execution of the work but suspicion however strong, could not be substitute for proof. And it was not permissible to place the burden of proof of innocence on the person accused of criminal charge. 50. It has been held in Sujit Bishwas VS. State of Assam, (2013) 8 JT 570 the suspicion however great it may be, cannot take place of proof and there is a large difference between something that will be proved. And it was not permissible to place the burden of proof of innocence on the person accused of criminal charge. 50. It has been held in Sujit Bishwas VS. State of Assam, (2013) 8 JT 570 the suspicion however great it may be, cannot take place of proof and there is a large difference between something that will be proved. In criminal trial suspicion no matter how strong cannot and must not be permitted to take place of proof. This is for the reason that the mental distance may be and must be quite large and divides vague conjectures from sure conclusions. In a criminal case, the Court has a duty to ensure that mere conjecture and suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produce by prosecution before an accused is condemn as convict and the basic and golden rule must be applied. An adverse inference can be drawn against accused only if the incriminating materials stands fully established and the accused is not able to furnish any explanation for the same. 51. The present case is required to be examined in the light of the aforesaid settled legal propositions. The work in question was completed in the year 1995-96 and the IO made a joint inspection in the year 2003 and come up with the allegation regarding deviation of soil in the work place, non finding of RCC protection, non having of required depth of the trench in the work in question and while arriving such finding, the prosecution has failed to brought all the necessary documentary as well as oral evidence for arriving such conclusions, so the said finding in the joint inspection is conjecture and summarizes. The evidence that has been surfaced indicates the reasons for non achieving the required depth of the trench and also the change of nature of soil and RCC protection as well. Already three level inspection was carried out after completion of said work at the time of delivery the work in question to the maintenance department and as such the say of maintenance department on the subject was very much crucial but no such person was associated at the time joint inspection carried by the IO. Already three level inspection was carried out after completion of said work at the time of delivery the work in question to the maintenance department and as such the say of maintenance department on the subject was very much crucial but no such person was associated at the time joint inspection carried by the IO. The difficult terrain where the OFC was laid couple by different factors that arose at the time of the execution of work has made the authority to change the quantum of works, nature of soil on the basis of practical finding in the field which has been indicated by the evidence itself. In the given circumstances raising of bill for excess amount cannot be solely attributed as criminality while for such deviation, approval of the higher authority (the same was entered in the sub-section file, but not produced). 52. The official witness that has been examined by prosecution has not supported the allegation as leveled in the FIR and except mentioning about some excess in the running bills, their evidence is silent while about the unfair means adopted by the officials or the contractor while awarding the work and the execution. The bills were duly prepared and pre-checked by all the authorities having regard to the MBs and the Accounts Officer finally passed the bill without recording any sort of discrepancy on record. The learned Trial Court centered around his discussion only on the running bills which shows some excess amount but has not at all discussed all the material evidence on record. The appreciation of all evidence on record is a must prior to reaching a conclusion. As has been held in Sujit Biswas, in criminal case charge has to be proved by clear, cogent and unimpeachable evidence and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based on the comprehensive appreciation of all features of the case as well as the quality and credibility of the evidence brought on record. The Court must ensure that the miscarriage of justice is avoided and in the facts and circumstances of the case so demand, that the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, prevail or nearly a probable doubt but a fair doubt that is based upon reason and common sense. Further it is held that in the circumstances proved in a case consistent either with the innocence of the accused or with his guilt, that the accused is entitled to benefit of doubt. The Section 415 of the IPC defines cheating as under : . "Section 415 - Cheating - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat'. An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied : (i) deception of a person either by making a false or misleading representation or by other action or omission; (ii) fraudulently or dishonestly inducing any person to deliver any property; or (iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit. For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out. One of the ingredients of cheating as defined in Section 415 of the Indian Penal Code is existence of an intention of making initial promise or existence thereof from the very beginning of formation of contract." 53. None of the ingredient of cheating is proved in the instant case against any of the accused. The Section 13 (1) (d) and Section 13 (2) of Prevention of Corruption Act read as follows "13. Criminal misconduct by a public servant - (1) A public servant is said to commit the offence of criminal misconduct, - ................................................. None of the ingredient of cheating is proved in the instant case against any of the accused. The Section 13 (1) (d) and Section 13 (2) of Prevention of Corruption Act read as follows "13. Criminal misconduct by a public servant - (1) A public servant is said to commit the offence of criminal misconduct, - ................................................. (d) if he, - (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than (four years) but which may extend to (ten years) and shall also liable to fine." 54. The learned counsel for the appellants strenuously argued that to convict an accused for an offence under Section 13 (1) (d) and 13 (2), the prosecution must establish that by corrupt and legal means the accused has obtained for himself or for any other person any valuable things or pecuniary advantage but in the present case there is no evidence on record the appellants/the public servants obtained any amount by corrupt or illegal means and conviction of the public servants/the two appellants is not sustainable in absence of such requisite evidence. The decision of Subash Parbat Sonvane Vs. State of Gujarat, (2002) 5 SCC 86 is relied on the aspect. 55. In the aforesaid decision, para 6, it has been held that for convicting the person under Section 13 (1) (d) that there must be evidence on record that the accused obtained for himself or others any valuable things or pecuniary advantage either by corrupt or illegal means or by adducing his position as a public servant without any public interest. In the present case, there is a lack of evidence on the above aspect. 56. On the next, the appellants have relied upon the decision rendered by the Hon'ble Apex Court in B. Jayaraj Vs. In the present case, there is a lack of evidence on the above aspect. 56. On the next, the appellants have relied upon the decision rendered by the Hon'ble Apex Court in B. Jayaraj Vs. State of A.P., (2014) 3 JCC 1552 wherein it has been held that the presumption under Section 20 of the P.C. Act can be drawn only in respect of offence under Section 7 and not the offences under Section 13 (1) (d) (i) (ii) of the Act. In any event it is only on the proof of acceptance of illegal gratification presumption can be drawn under Section 20 of the Act that such gratification was received or doing or for bearing any official act. Applying the proposition laid by the aforesaid decision, the statutory presumption also cannot be drawn against the public servant/the appellants herein. The upshot of the forgoing discussions will be (1) The prosecution did not laid down any foundational facts to arrive at a finding of dishonest intention on the part of the appellants nor any such findings have been arrived at by the Trial Court. (2) The prosecution evidence does not establish neither the conspiracy nor any criminal misconduct on the part of the accused appellants as per the allegation. (3) None of the charges leveled is proved beyond all reasonable doubts. For the aforementioned reasons the impugned judgment and order being unsustainable is set aside. The appeals are allowed and accused are acquitted from the charge. Appellants are on bail, their bail bonds stands discharged. Return the LCR.