JUDGMENT : Rumi Kumari Phukan, J. As all the appeals arose from the same judgment in special case 11/2006 they are taken up together and being disposed with this common judgment. Heard Mr. D. S. Choudhury, learned counsel for the appellant in Crl. Appeal 402/2013; Ms. M. S. Sundi, learned counsel for the appellant in Crl. Appeal 04/2014 and Mr. B. M. Choudhury, learned counsel for the appellant in Crl. Appeal 03/2014. 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. 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. 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 26.10.2002 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 woriks 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/the appellant (Abed Hussain was awarded the contract to execute the OFC laying in respect of SS 22 and 25 of Imphal Moreh route) 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 laying 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 laying 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 pecuniary loss to the department and the Govt. with corresponding wrongful gains to the accused persons in the tune of Rs. 17,50,198/-. 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 against all the persons 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. 9. The learned Trial Court accordingly took cognizance of the offence against accused/appellants and charges 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 framed and explained to the accused persons to which they pleaded not guilty. 10. Prosecution examined as many as 27 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 Navendra Kumar to r/i for 1 year with fine of Rs. 10. Prosecution examined as many as 27 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 Navendra Kumar to r/i for 1 year with fine of Rs. 5,000/- u/s 120B of the IPC and r/i for 1 year with fine of Rs. 5,000/- u/s 420 of the IPC and r/i for 2 years with fine of Rs. 10,000/- u/s 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and in default to s/i for 3 months. 12. Appellant Abed Hussain is convicted and sentenced to r/i for 1 year with fine of Rs. 10,000/- u/s 120B of the IPC and r/i for 1 year with fine of Rs. 10,000/- u/s 420 of the IPC and in default to s/i for 3 months. 13. Appellant P. K. Bagchi is convicted and sentenced to r/i for 1 year with fine of Rs. 5,000/- u/s 120B of the IPC and r/i for 1 year with fine of Rs. 5,000/- u/s 420 of the IPC and r/i for 2 years u/s 477A of the IPC with fine of Rs. 5,000/- and r/i for 2 years with fine of Rs. 5,000/- u/s 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and in default to s/I for 3 months. 14. All the sentences are directed to run concurrently. 15. Aggrieved by the aforesaid order and judgment of the conviction present appeals are preferred. Appellants in criminal appeal 402/2013 and 3/2014 were working as DE(OFC) and SDE(OFC) respectively in Department of Telecommunication and appellant in criminal appeal 4/2013 was a contractor. 16. 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 joint inspection memo and 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 joint inspection memo and 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): 17. At the very outset, it is submitted that the learned Trial Court has not appreciated vital evidence on record and has ignored material evidence on record which needs consideration. The learned counsel for the appellant has led this Court towards the various aspects of the witnesses which they divulged during the cross examination which is totally inconsistent with the allegation raised in the charge-sheet. It is pointed out that the Director OFC has no field duties; and as per provisions contained in Clause 132 of the tender document, he can inspect the work during its progress as provided below:- "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." 18. Attention has been drawn to the evidence of Sh. S.N. Malakar (PW-25) was specially deputed for repairing work and in cross-examination he stated as follows:- "I was called specially to repair OFC on Imphal Moreh and Imphal Churachandpur routes. The work during its progress can also be inspected by Director, Telecommunications and Chief General Manager Telecom." 18. Attention has been drawn to the evidence of Sh. S.N. Malakar (PW-25) was specially deputed for repairing work and in cross-examination he stated 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. I was present during joint inspection and I had signed the memo. 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." 19. The IO (PW-26) 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 from the testimony of Sh. S.N. Malakar (PW-25) and the admission of the same by IO (PW-26) it 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 appellant, 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 appellant is entitled to acquittal. 20. The Ld. Trial Court wrongly relied upon the joint inspection report of CBI. The witnesses to the joint inspection memo in cross examination has stated as follows:- "PW-4, W. Sunil Singh has stated that he could not read the joint inspection memo. He stated that he did not have much knowledge. He categorically stated that he could not co-relate any of the pits with the corresponding point on route index diagram. PW-13 Sh. S.M. Singh has stated that he had no role to play in this case. He signed the memo as a token of his presence in the office of CBI at the instance of the IO in DE office. The inspection continued for a month. After completion of the inspection, he signed the memo. He does not know if memo was prepared at site. He did not sign there. The CBI had already prepared the memo before it was send by him. The inspection continued for a month. After completion of the inspection, he signed the memo. He does not know if memo was prepared at site. He did not sign there. The CBI had already prepared the memo before it was send by him. He was summoned by CBI three years ago but he returned as he did not agree to make a false statement at the instance of the CBI officer. PW-14 Sh. Y. Ibomcha Singh has stated that the measurements were recorded by M.T. Mang in his presence; but, he does not know what measurement has taken. He had not been told about the measurement taken. The locations where inspection were conducted were hilly and rocky. The cable was laid along the highway between highway and the hill. There had been road widening work. He does not know if the cable was shifted during road widening. Along the cable trench, there were drains also. He put his signature on the memo in CBI office 10 days later. He signed in the presence of IO and PW-4; but, Sh. S.M . Singh and two RMs did not sign at Silchar. He does not know where the memo was prepared; but, it was not prepared in his presence. PW-16 Sh. B.Nag Choudhury has stated only by reading joint inspection memo. The location mentioned in the joint inspection memo is not as per correct measurements. At the time of joint inspection, there was neither any measuring tape nor roado-meter. No measurements were taken at the site. The documents were available with CBI officers but no documents e.g. MB, route index diagram were shown to us. The tender document was shown to him for the first time on that day. Only CBI officers decided the category of soil and location of pits. Nobody compared the location of pits with MB, bill, RID. He could not say if the soil would remain same after 6 years of its execution. He could not say if it was the same cable which was laid in the year 1997. He stated that the cables may be damaged due to road widening. He clarified that the CBI had enquired from him only about his name, father's name, official address, present address, designation; but, did not ask him anything about the case. He could not say if it was the same cable which was laid in the year 1997. He stated that the cables may be damaged due to road widening. He clarified that the CBI had enquired from him only about his name, father's name, official address, present address, designation; but, did not ask him anything about the case. PW-17 Balai Das has stated that there was a small measuring tape of 3 mtrs for measuring the pits. No other measuring tape was available at the spot. He is not aware who had decided the type of soil. Two to three days after the inspection, IO brought the record to the office of DE. He had been asked to sign thereof. He was not aware of the contents of Ext. 32. He signed merely because he was preset there. The contents of Ext. 32 were not explained to him. PW-18 Prakash Kapur has stated that he is not aware about the contents of the Ext. 32. He did not ask the CBI officer about the contents of Ext. 32; but, IO had told him that since he has dug the pits, he had to put signature. He had only made the pits and not taken any measurement. There was a measuring tape of 5 mts. There was no other measuring instrument available on the spot. Only depth was measurement and no other measurement was taken. CBI had decided the location of the pits. PW-19 Sh. Y. Rajo Singh has stated that he was not aware about the contents of the Ext. 32. After 2-3 days of inspection, the IO had come to the office of DE/BSNL to obtain his signature. He does not know where it was prepared and by whom. It was not prepared in his presence. CBI did not read out the contents of Ext. 32 to him. CBI personally had taken measurement. He was not told about figures in respect of measurements. He had not seen any document e.g. MB, tender document, RID etc. PW-26 IO, Sh. M.T. Mang has stated that the category of soil was decided by B. Nag Choudhary, he himself and other team members jointly. But the other witnesses including B. Nag Choudhury has stated that only the CBI officers have decided the category of soil, which is contradictory. PW-26 IO, Sh. M.T. Mang has stated that the category of soil was decided by B. Nag Choudhary, he himself and other team members jointly. But the other witnesses including B. Nag Choudhury has stated that only the CBI officers have decided the category of soil, which is contradictory. None of the witnesses were shown the relevant documents by the IO while taking such measurement." Thus, it is contended that the Trial Court evidently committed an error in relying upon the erroneous joint inspection report of CBI which is full of contradictions and inconsistencies. It is very ridiculous that without any reference of KMP on the RID, how IO could correlate any point of inspection with the corresponding point on RID. PW-5 (Sh. S.K. Sikidar) and PW-25 (Sh. S.N. Malakar) have also stated that none of the points of joint inspection memo can be correlated with the corresponding point on the RID. The whole case of CBI is based on this unreliable report. 21. It has been admitted by the IO (PW-26) that no sub-section wise detailed estimate was prepared and without detailed estimate for each sub-section, the cost and quantities cannot be worked out. The PW-25 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 and has also stated that the figures/quantities mentioned in the tender document are not according to survey report. The IO has also admitted the said aspect that the figures and quantities in the 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. 22. 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 and it has been done in the present case. The said clauses are reproduced below:- "46. The quantities/figures indicated in the tender schedule are approximate and are subject to change. 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 and it has been done in the present case. The said clauses are reproduced below:- "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. 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, abundantly clear 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. 23. 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. 24. The DE will conduct test check as per provisions contained in clause 192 of the tender document which provides that the DE will test check only if he considers necessary and it is not mandatory and this fact has also been admitted by the IO (PW-26). He has clearly stated that the test check to be conducted by DE is not mandatory rather it is his discretion. The PW-5 (Sh. S.K. Sikidar) and PW-25 (Sh. S.N. Malakar) have also stated the same thing. 25. According to the geological survey, about 91% of the area of Manipur is hard rock. According to survey report conducted by PW-8 Sh. R.N. Singh, the entire route is hilly and rocky. The PW-5 (Sh. S.K. Sikidar) and PW-25 (Sh. S.N. Malakar) have also stated the same thing. 25. According to the geological survey, about 91% of the area of Manipur is hard rock. According to survey report conducted by PW-8 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-5 and PW-25. The IO has also admitted that according to Survey reports, the entire route is hilly and rocky. 26. The bills were pre-checked by JAO Sh. M.R. Dutta (PW-24). He verified all the necessary details including the entries made in the MB and on the RID. He also verified the rates approved by the Director and also the approval of the excess quantities of work. He clearly stated in cross examination as follows:- "I have gone though the subsection file. The approval of competent authority was obtained for excess quantities executed by the contractors. The query raised by the AO Sri S.C. Paul as per note sheet no. 2, ext-18(5) was clarified by the Director OFC indicating that the excess amount was due to extra item and there is noting to that effect on note sheet no. 2 which is as follows "excess amount is due to extra items of Rocky soil which has been physically checked by DE, OFC and certificate given. Rates approved previously for digging in rocky soil and RCC work very high, due to which abnormal increase with respect to tender cost in there. The matter has been brought to the notice of the CGM T/F GH and with his concurrence 3% deduction on overall amount may be done." It is correct that I had signed on pre-checking the bill and after my satisfaction that all the formalities as per rules and practice were complete." It is, therefore, submitted that there is no irregularity in making payment to the contractor. The payment to the contractor has been made proportionately since the cable has not been laid at the standard depth of 1.65 metre. Contention raised on behalf of the appellant/contractor 27. The payment to the contractor has been made proportionately since the cable has not been laid at the standard depth of 1.65 metre. Contention raised on behalf of the appellant/contractor 27. It has been contended that the contractor/the appellant can no way be attributed to the criminality as they have duly participated in the tender process and selected and there appears no any illegality as regards their role while awarding the contract. They have duly submitted the bid documents and after due evaluation, the TEC has selected them. The evidence reveals that bills were passed by the appropriate authority and they have no role to play in passing the bill. The MB was verified by the concerned Engineer and the bill was verified by the Site Engineer. By drawing attention to the evidence on record, it is submitted that the loss calculation sheet prepared in this case is based on the data provided by the CBI not from the office itself and as has been found above, data shown in the joint inspection report is itself not authentic or proved. The witness who prepared the loss calculation himself stated that they are not at all sure about the correctness of the loss calculation or they were also not aware if the work was awarded to the contractor at the departmental approved rate by the Director or has no idea about the correctness of the bill submitted by the contractor. 28. Further it has been submitted that the evidence on record, runs counter to the allegation made against the appellant which is not at all suggestive of preparation of bill in excess manner. Most of the witnesses have stated that bill was paid on actual work done by the contractors which is at par with the terms of the tender agreement and as such there cannot be an allegation of raising false bill on the part of the contractor. Tender documents itself provide that final bill may vary subject to the actual work done by the contractor. Accordingly, it has been urged that in view of the evidence on record about the work site and the hilly condition etc. and in terms of the tender document, the variation of bill amount itself is not suggestive of criminality on the part of the contractor. Accordingly, it has been urged that in view of the evidence on record about the work site and the hilly condition etc. and in terms of the tender document, the variation of bill amount itself is not suggestive of criminality on the part of the contractor. It contends that there is absolutely lack of evidence suggestive of criminal conspiracy on the part of the contractor with the public servants at the time of awarding contractor nor there is requisite evidence to reflect the dishonest intention on the part of the accused appellant to cheat the government. But however, the learned Trial Court relying only on the evidence of IO and the joint inspection report that was made after 7 years has held the accused appellants guilty without proper appreciation of entire matters on record, hence, finding of guilt at the accused appellants is not sustainable. Evidence on record: 29. As the whole case revolve around the joint inspection report made by the IO in presence of other witnesses, so let us start with the IO PW-26/Sh. M.T. Mang. Without narrating about the illegalities and irregularities that has been committed by each of the accused persons, he has stated seizure of various documents in connection of the case from the officials of the department concerned which is large in number, he has stated about joint inspection as below:- During investigation, joint inspection was conducted on 05.06.2003 in presence of the independent witnesses namely B. Nag Chaudhury, S.M. Singh, Y. Rajo Singh, Ibomcha Singh, Prakash Kapur, Bolai Das, W. Sunil Singh and myself. A joint inspection memo was prepared on the spot which was signed by all the team members as a token of acceptance of the contents of memo. During inspection the trench where the OFC laid was dug out, nature of soil and protection used were visually examined. Five locations in respect of SS 22 and another five location were also inspected in SS 25 of Imphal Moreh route wherein the nature of soil, RCC protection shown and the depth mentioned in the bill/diagram were found false. In all five locations rocky soils with RCC protection were shown in the MB and route index diagram whereas during inspection hard soil without RCC protection were found. In all five locations rocky soils with RCC protection were shown in the MB and route index diagram whereas during inspection hard soil without RCC protection were found. During investigation it was found that the nature of soil and RCC protection shown to have been provided were found false but payment was made as per the bill/MB accordingly. Thereby causing substantial wrongful loss to the corporation and corresponding wrongful gain to the contractor/themselves. Considering all the above facts in toto, I find that prima facie case is made out against them and they were charged accordingly. Some relevant portion of his cross examination is reproduced 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 22 and SS 25 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. The category of soil was decided by visual inspection of the excavated soil and by seeing the area. As per survey report SS 22 and SS 25 falls in hilly, land erosion, landslide prone area. As per tender document the figure and quantities mentioned are not according to survey report. The cost of OF cable laying 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 site engineer is 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 AT was conducted by the office T&D circle. 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 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 Direction 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 charge-sheet. Insurgency was there at the time of execution of the cable laying work on Imphal Chaurachandpur and Imphal Moreh route. It is correct that revolutionary people's front of Manipur is an underground group which operates in Manipur. I am not aware whether such groups demanded money from executing authority, both contractor and officers. After taking over the OFC cable from OFC, the officers of ETR (maintenance) maintain the cables. I do not know the role of the officers of OFC after handing over the cable to ETR (maintenance staff). I do not know if the OFC officers can interfere in the working of the maintenance staff. I did not associate any employee/officer of ETR (maintenance) during investigation or during joint inspection conducted by CBI. During inspection cable was in working condition and was under the control of ETR staff. The officer of OFC had no role to play in the maintenance of cable at that time I had conducted the joint inspection and carried out the investigation. I did not seize any report from any agencies such as PWD, Electricity department, local telephone, local cable maintenance telephone officers and from the officers of ETR maintenance about the damages caused to the cable due to militancy, landslide, land erosion, heavy rains or widening or road etc. I did not include any of the staff of the ETR in the list of witnesses. I did not include any of the staff of the ETR in the list of witnesses. The investigation was carried out with regard to irregularities in the trenching and laying of the cables which is done by OFC project not by maintenance. Myself and other team members correlated the points in the joint inspection memo with that of the corresponding point in route index diagram. Myself and other team members collectively decided the type of soil. Locations of pits for joint inspection had been ascertained by myself and other team members. It is correct that the payment to the contractor is made on the basis of the actually executed quantities at the approved tendered rates. It is correct that the government is represented by site engineer at the site. It is correct that M.L. Sharma did not pass any bill in SS 22. It is correct that M.L. Sharma passed only one bill i.e. 1st RA bill of SS 25. A sum of Rs. 2,66,045/- was paid to the contractor against 1st RA bill of SS 25. It is correct that M.L. Sharma had brought it to the notice of the Director OFC with remarks "total approved amount for 4 KM in SS 25 was Rs. 14,78,100/- whereas the bill prepared by SDE (i/c) of Imphal Moreh route for SS 25 for 499 meters is Rs. 3,29,572/-. In this subsection site (i/c) has allotted 393 meters of concreting out of the length of 499 meters ; whereas in NIT total length of concreting is 500 mts and out of 4 KM. Such a long heavy amount for mere 500 mts put up for your decision and approval Pl". The Director approved the said amount with the following remarks "SDE may be asked to take prior approval whenever deviation of any item is too much, before allowing the contractor to do. However this is approved as final approval only after DET's verification and recommendation." It is correct that Sri M. L. Sharma passed the bill only after approval of the director. M. L. Sharma has no role in this case except passing of this bill. It is correct that M.L. Sharma had no role in causing loss of Rs. 17,50,198/-. The loss caused by the accused persons individually was not worked out. There was no violation of rule as such but this action reflects commission of an offence. M. L. Sharma has no role in this case except passing of this bill. It is correct that M.L. Sharma had no role in causing loss of Rs. 17,50,198/-. The loss caused by the accused persons individually was not worked out. There was no violation of rule as such but this action reflects commission of an offence. The depth may undergo difference in passage of time but protection, nature of soil will remain same. It is correct that as per survey report SS 22 and SS 25 falls along hilly and rocky area and protection is to be provided over OFC as the standard depth cannot be achieved in these areas. It is correct that the quantities and figures 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. 30. Pw-4/Sh. W. Sunil Singh, PW-13/Sh. Shoibam Momom Singh, PW-14/Sh. Ibo Mucha Singh, PW-16/Sh. B. Nag Chaudhury, PW-17/Sh. Bolai Das, PW-18/Sh. Prakash Kapur and PW-19/Sh. Y. Raju Singh all were witnesses to the joint inspection dated 05.06.2003 and they have stated that the joint inspection vide Ext. 32 & 33 was written by CBI inspector Sh. M. T. Mang and they were present at the time of excavation of the OFC laying trenches in the subsection 22 and 25 on national high way 39 and they have signed the joint inspection report as directed by the I.O. Sh. M. T. Mang. Save and except signing of the said verification report they have not stated anything about the findings of joint inspection report. 31. In his cross-examination, PW-4 could not say as to the number of pits and the length of the dug as mentioned in the Ext. 32 & 33. He cannot co-relate any of the pits with the route index diagram. PW-13, in his cross examination, has stated the he has no role to play in the case and he signed the inspection memo as a token of presence and he put his signature in the CBI office as directed. 32 & 33. He cannot co-relate any of the pits with the route index diagram. PW-13, in his cross examination, has stated the he has no role to play in the case and he signed the inspection memo as a token of presence and he put his signature in the CBI office as directed. His further cross-examination has brought the whole inspection conducted by the IO under serious shadow of doubt while he said that he was called earlier by the CBI for recording his statement about 3 years but he returned without making statement as he did not agree to make false statement as instructed by CBI. Similarly, on being testified in cross-examination, PW-14 also could not say about the length and depth of the trench as well as the RCC protection and it appears that they have no any knowledge about the content of the inspection report except their signature thereon. They signed the said report after several days which were already prepared by the IO in the CBI office. 32. Pw-16, in his evidence, has little bit explained about the findings at the time of inspection and he stated that at the time of inspection in respect of SS 22 and SS 25, at several points, type of the soil and depth were not found same and RCC protection was also not found which was shown in the bills and route index diagram. It is stated that in some locations where the rocky soil has been shown with RCC works in the bill but at the time of their inspection hard soil was found without RCC works and at some places RCC works was found without rod. He has although narrated some detail of the inspection report in his examination-in-chief but his cross examination is destructive of his own evidence while he stated the whatever he have stated in cross examination-in-chief, he stated only by reading joint inspection memo. He reveals further that the location mentioned in joint inspection memo is not as per correct measurement at the time of inspection there was neither any measuring tape or odometer, no measurement was taken at the site. The documents which were available with the CBI but no documents such as MB, route index diagram were shown to them. He reveals further that the location mentioned in joint inspection memo is not as per correct measurement at the time of inspection there was neither any measuring tape or odometer, no measurement was taken at the site. The documents which were available with the CBI but no documents such as MB, route index diagram were shown to them. There was a small measuring tape only to measure the depth and it was noted by the CBI officer in his diary but the joint inspection was not prepared in their presence. Only the CBI official decided the location and category of soil, no soil expert was available at the time. Nobody compared the location of pits with the MB, bills, route index diagram. The cable pipes and its protection were not damaged during inspection. Further except asking his address CBI personal has not asking anything about the case. 33. Pw-17, PW-18 and PW-19 all of them has stated that they were not aware about the content of the inspection memo prepared by the IO and have stated that after several days the CBI officials came to their office and obtained signature in the joint inspection memo. Obviously, none of the witnesses to the joint inspection memo has support the said documents prepared by the IO. 34. It is evident that the IO himself played the role in carrying the inspection and he recorded all the findings without consulting the all necessary documents like MBs, route index diagram, subsection file etc., so as to correlate his findings along with those documents to give accuracy to his findings. Most importantly, none of the officials of the department concerned has supported such findings of the IO which goes to the root of the matter. Regarding the findings of different category of soils at the time of inspection after several years of execution of works is not doubtful in the given background. On the other hand, some deviation in the depth of trench and RCC protection also appears to be inevitable in view of the findings of the survey report and the explanation given in the cross-examination by the witnesses themselves. As per the survey report the whole area was rocky and hilly and expected depth cannot be achieved due to the hard and rocky nature of soil. As per the survey report the whole area was rocky and hilly and expected depth cannot be achieved due to the hard and rocky nature of soil. The witnesses in their evidence has admitted that findings of different nature of soil, depth, RCC protection may be caused due to variety of reasons like passage of time, widening of road, hilly terrain, landslide, heavy rainfall over a period of 7 years, particularly when it is a hilly area. 35. In such backdrop the loss calculation sheet vide Ext. 57, prepared by PW-15/Sh. J. K. Biswas, SDE, HRD, office of GM, BSNL on the basis of such joint inspection memo at the instance of the CBI, is of no consequence while the very joint inspection report is not at all corroborated/substantiated by its witnesses. The testimony of PW-15, in cross-examination, reveals that such calculation was made on the data supplied by the CBI and he has no personal knowledge on the matter. He has admitted that the payment to the contractor was made on the approved rate, on the basis of actually executed quantity of work. 36. So far as the other evidence concern, PW-1/Sh. R. K. Baruah, PW-2/Sh. Mohendra Singh, PW6/ Sh. A.K. Girhotra and PW-7 S. K. Jain are not relevant as it stated about bank related documents of the contractor and sanction order passed by the authority. PW-2, however, reveals that the department was not inclined to accord prosecution sanction twice and it is in the third time when the CBI approach to CVC, it was granted. 37. Pw-3/ Sh. K. K. Mishra, PW-11/Sh. Satyndra Ch. Paul, Chief Accounts Officer, PW-12/Sh. Govinda Kalita, PW-23/Sh. Deborate Dey, Chief Account Officer, PW-24/Sh. Mantu Ranjan Dutta, Account Officer, all of them have exhibited several related documents relating to work order, payment made to the contractor, the different bills prepared in respect of work in question in detail but save and except exhibiting those documents, they have not uttered a single word as about the irregularities or illegalities crept into by in any of the documents they referred to implicate any of the accused persons regarding criminal liability. Their simple assertion is that they verified the bills which were duly checked by the official concerned, passed by the DE and counter signed by the Director and they passed the bills and issued the cheques under their signature. 38. Their simple assertion is that they verified the bills which were duly checked by the official concerned, passed by the DE and counter signed by the Director and they passed the bills and issued the cheques under their signature. 38. In his evidence, PW-24, has elaborated how the bill was prepared and maintained in their office. He has stated that bills come from the Site Engineer, JTO was put up before the OFC along with contractors bills, MB, route index diagram. Then the bills are entered in the respective registers. In this case there is excess quantity of work with regard to laying of OF cable and trenching, the work is compared with the tendered quantity and then the bills along with MB and route index diagram are dealt with by concerned dealing clerk who will prepare the bills accordingly and submit the same before the DE. On the instruction of DE those bills are pre-checked by him then again those bills are put up before DE for approval of the excess quantity of work. The same approval order is counter signed by the Director. If the Director is not empowered because of the pecuniary jurisdiction then same is put up before CGM Task Force North East for approval. After approval the bills are put up before Account Officer for payment. 39. In cross-examination, he has stated that the approval of the competent authority was obtained for excess quantities executed by the contractors. The query raised by the AO, Sh. S. C. Paul as per note sheet No. 2 was clarified by the Director OFC indicating that the excess amount was due to extra item and there is a noting to that effect on note sheet which is as follows "excess amount is due to extra item of rocky soil which has been physically checked by DE, OFCI and certified given. Rates approved previously for digging in rocky soil and RCC work very high, due to which abnormal increase with respect to tender cost in there. The matter has been brought to the notice of CGM T/F GH and with his concurrence 3% deduction on overall amount may be done. DE OFCI has been advised to prepare and get it sanctioned immediately." Ext. A is the said noting. The matter has been brought to the notice of CGM T/F GH and with his concurrence 3% deduction on overall amount may be done. DE OFCI has been advised to prepare and get it sanctioned immediately." Ext. A is the said noting. He admitted that he had signed the bill and after his satisfaction that all the formalities as per rule and practice were complete. At the time of making payment, an amount of 10% was deducted from each bill towards retention money and retention money was released either on completion of the work or at the withdrawal of the work by the contractor. He has gone through the tender documents in preparing the bills. It is admitted that subsection wise detailed estimate was not prepared and estimated cost cannot be worked out without the detailed estimate for each subsection. Estimated cost is subject to change. 40. The PW-5/Sh. S. K. Sikidar, retired DE has stated all about the OFC lying project in respect of SS 22 and 25 and has also stated about the comparative statement of SS 22 vide Ext. 39 by Tender Evaluation Committee (TEC) and certain other communication on letter and the recommendation of TEC about the approved tender 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. 41. Pw-8/Sh. Rajunat Singh prepared the survey report of Imphal Moreh route of OFC scheme which is according to him, hilly terrain consisting of rocky soil. He has explained that it is not possible to lay the cable at standard depth on the route because of hilly and rocky area and for protection of the cable GI pipe is a must. 42. Pw-10/Sh. Jibotosh Biswas, is a seizure witness to certain documents seized by the IO through Exhibit 51 and PW-20/Sh. K. K. Das exhibited certain documents in connection to the work in question as to how the tender was awarded to the contractor, agreement between the parties was executed etc., without mentioning any illegality in the process of awarding contract or about the criminal conduct of any of the accused persons. PW-20 fairly admitted that he had no personal knowledge about the case. Similarly, PW-9/Sh. PW-20 fairly admitted that he had no personal knowledge about the case. Similarly, PW-9/Sh. D. Das has stated that list of the officials of BSNL/DOT was provided to the CBI Inspector, Sh. M. T. Mang, as called for. 43. Pw-22/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 after getting approval from CJM task force and thereafter he came to know about this case in the year 2003. He has exhibited document pertaining to the survey report, tender documents and estimated cost of said SS 22 & 25. In crossexamination, he has stated that the estimate was made on the basis of survey report. He has not made subsection wise detail estimate and do not know whether detailed estimate based on the project estimate sanctioned by the CGM. He admitted that the estimated cost of each subsection cannot be ascertained without preparing detailed estimate subsection wise. He has stated that the contract was awarded at exorbitant rate. As per Exhibit 63, estimated cost of cable work in SS 22 was Rs. 4.62 Lakhs and approved rate was Rs. 14,53,000/- and estimated cost of the cable work in SS 25 was Rs. 4.52 Lakhs and approved was Rs. 14,78,100/-. In cross-examination, he has stated that he has not made subsection wise detail estimate. It is also admitted that he was under suspension as he was involved in the CBI case and was arrested by CBI in a trap case along with Sri R. K. Varun, DGM. He was not aware if the detail estimate was prepared for each subsection and was not aware of any provision or rule or departmental instruction which requires concurrence of the Account Officer at the time of approving tenders. 44. Pw-21/Sh. Ashutosh Kr. Chanda, an Officer of BSNL, has stated all about the procedure for trenching work of OFC, preparation of project, project estimates, financial approval of the works, floating of tenders and awarding of works to the contractor etc. He has exhibited several documents connected to the project to the Imphal Moreh route, SS 22 & 25. He has stated that test check was done after completion of the work by the department personnel to see whether the work is done properly or not. He has exhibited several documents connected to the project to the Imphal Moreh route, SS 22 & 25. He has stated that test check was done after completion of the work by the department personnel to see whether the work is done properly or not. He, however, stated that estimated cost in respect of SS 22 & 25, rates were approved higher than the estimated cost as stated by PW 22. It is stated that DE is the absolute authority for making changes in the work provided in the tender document. The same witness, in cross-examination, has stated that he has no role to play in the instant case and has no personal knowledge of the case. His cross-examination is reproduced below "It is correct I have no personal knowledge about this case. I had given my statements to the IO on the basis of documents which had been produced before me at the relevant point of time. I do not remember the documents which had been shown to me during interrogation. I had never dealt with the documents which have been shown to me today in the Court. It is correct that I had identified the signatures on the documents today since their names had been typed written below the signatures. I was not posted in OFC but in a different unit. The record of TEC (Tender Evaluation Committee) has been shown to me today during examination and on seeing it I find that the names of M. L. Sharma and N. Kumar are not there in the TEC. It is correct that the director is the sole authority to approve the rate of the tenders. So far my knowledge goes 10% of the check of the trenching work is to be done by DE. It is correct that the AT (Acceptance Testing) units verifies the depth and protection of the cable as per route index diagram and At declares commissioning of the cable after a satisfaction as per route index diagram. It is correct that a joint inspection was conducted by officers of OFC project and maintenance organization. During joint inspection, the depth and protection of OFC is again verified as per route index diagram. The maintenance unit accepts the OFC only after their satisfaction about the depth and protection of the cable as per route index diagram. It is correct that a joint inspection was conducted by officers of OFC project and maintenance organization. During joint inspection, the depth and protection of OFC is again verified as per route index diagram. The maintenance unit accepts the OFC only after their satisfaction about the depth and protection of the cable as per route index diagram. After handing over the cable to maintenance unit, the responsibility of OFC officers comes to an end." 45. Sh. S. N. Malakar (PW-25), Retd. DGM, BSNL and in the year 1998-2000 he was DE in the officer of Director, OFC and he was specially deputed for the repairing work of the Imphal Moreh and Imphal Churachandpur routes. The repairing work was undertaken in October' 1999 to December' 1999. In his evidence, he has stated that when he took over the charge DE/TP on Imphal Moreh route in June 1998 all the works had already been completed and payments had also been made except in few cases where the payment of SD money was withheld. At the relevant time the process of handing over of the OFC route to maintenance division was going on. There was some pending cases for correction of the OFC route. He had been entrusted to look after the work of repairing of the damaged cables and low depth of the trenches. In this regard, he had intimated the contractors concerned with regard to discrepancies found in the execution of the work. The contractor had replaced the damaged cables in few sections and in the remaining sections of the route was restored departmentally by deducting SD money of the contractors concerned since the contractors of these subsections did not turn up. He has exhibited different documents pertaining to the work in question like tender documents, project estimate etc. etc. He, however, stated that the amount quoted by the contractor was much higher than the estimated cost. 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. 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 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. 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. 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. 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. No any illegality is proved by witnesses. 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. 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 several 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 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. Evidence of PW-13 pose a serious question mark to the affairs of the CBI when he says that he did not agree to the CBI to make false statement on three occasions and return without making any statement. He has not supported the joint inspection report at all which shakes the veracity of the said report prepared by the IO. FINDINGS 46. 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. FINDINGS 46. 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 that due to natural calamity like heavy rain fall, soil erosion as well as broadening of road many a times disrupted the places of cables. 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 prechecked 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. 47. 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. 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. 48. 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. 49. 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. 50. 50. 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. 51. 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. 52. 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. 52. 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. 53. 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. 54. 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. 55. 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 DRLJ 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. Vs. NEEPCO Roadways Ltd.,1995 34 DRLJ 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. 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. 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." 56. 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 nonappreciation 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. 57. 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. 58. In Abdullah Mohammad Pagarkar etc. Vs. 58. In Abdullah Mohammad Pagarkar etc. Vs. State (Union Territory of Goa Daman Dieu), (1980) CriLJ 220 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. 59. 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 mentle 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. 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. 60. 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. 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). 61. 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). 61. 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. 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." 62. 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." 63. 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. 64. 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. 65. 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. 65. 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 arrived 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.