JUDGMENT : Rumi Kumari Phukan, J. As all the appeals arose from the same judgment in special case 9/2006 they are taken up together and being disposed with this common judgment. Heard Mr. D. S. Choudhury, learned counsel for the appellants in Crl. Appeal 39/2015; Mr. B. M. Choudhury, learned counsel for the appellants in Crl. Appeal 40/2015 & Crl. Appeal 42/2015 as well as Mr. A.M. Bora, learned counsel for the appellant in Crl. Appeal 49/2015. Also heard Mr. S. C. Keyal, learned standing counsel, CBI. 2. During 1995-96 the Department of Telecommunications, here-in-after called DoT, Government of India, decided to provide Optical Fibre Cable (OFC) Communication link on Imphal Moreh route in the state of Manipur. A survey of the route was conducted; a Project Estimate was prepared & sanctioned. The total route length of the section is 108 kms. which was divided into 27 sub-sections of 4 kms length each. The tenders were invited and the work was executed through contractors separately for each sub-section. The terms, conditions & specifications of work are mentioned in the tender document. The agreement was executed with the successful contractors. The over-all in-charge of the work was Divisional Engineer (DE) and the Government is represented by him. The Sub-Divisional Engineer represents the Government at the site of work. The JTO supervised the day to day work at site. The measurements were recorded by JTO in MB and bills were prepared by him. The cent percent work was checked by the Site Engineer (SDE). The bills were pre-checked by JAO, passed by the DE; counter signed by the Director and paid by the concerned Accounts Officer. 3. The depth and protection of the cable was verified as per route index diagram three times immediate after execution of the work. The cable was handed over to maintenance unit, coming to an end the responsibility of the OFC officials. After completion of trenching and laying of HDPE pipes in the year 1998, the route was given for acceptance testing in the year 1999. The route was found to be satisfactory. 4. As per the survey report, as the entire sub-section fell in the hilly and rocky area it is not possible to lay the cable at the standard department and hence the RCC protection had to be given over the cable. The route was found to be satisfactory. 4. As per the survey report, as the entire sub-section fell in the hilly and rocky area it is not possible to lay the cable at the standard department and hence the RCC protection had to be given over the cable. Hence acceptance testing of the OFC route had to be done by the T&D Circle. After successful completion of acceptance testing, the route was handed over to the Eastern Telecom Region for maintenance purposes. 5. An FIR was lodged by the Inspector of Police of the CBI, Silchar on 14.09.2001 to the effect that they got a reliable information that the accused public servants and different contractors while laying optic fibre cable which was awarded by the Divisional Engineer (OFC) to different contractors during 1995-96 for execution in different subsections of the Imphal-Moreh route by paying excess amount to those contractors against approved rates and the tendered quantities of the work. The excess payments were made on account of deviations and in quantity of works and increase in the quantity of the works including unauthorized payment against some items which were not tendered. 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 in criminal appeal 49/2015 (the appellant S. K. Borah was awarded the contract to execute the OFC laying in respect of SS 1 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. (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. (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 caused pecuniary loss to the department and the government with corresponding wrongful gains to the accused persons in the tune of Rs. 2,19,555/-. 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 appellants u/s 120B/420/468/477A of the IPC read with Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. 9. The learned Trial Court accordingly took cognizance of the offence against appellants and framed charges u/s 120B/420/477A of the IPC read with Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and explained to the respective accused appellants to which they pleaded not guilty. 10. Prosecution examined as many as 30 witnesses and defence examined none. The plea of defence is of total denial. 10. Prosecution examined as many as 30 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 appellants M. L. Sharma, Navendra Kumar, P. K. Bagchi and A. C. Dey to r/i for 2 years with fine of Rs. 5,000/- each u/s 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and in default to s/i for 3 months. 12. Appellant M.L. Sharma, Navendra Kumar, P. K. Bagchi and S. K. Bora are sentenced to r/i for 1 year with fine of Rs. 3,000/- each u/s 120B of the IPC and in default to s/i for 3 months and sentenced to r/i for 2 years with fine of Rs. 5,000/- u/s 420 of the IPC and in default to s/i for 3 months. Appellant P.K. Bagchi is further sentenced to r/i for 1 year u/s 477A of the IPC with fine of Rs. 5,000/- and in default to s/i for 3 months to be run concurrently. 13. Aggrieved by the aforesaid order and judgment of the conviction present appeals are preferred. 14. Appellants in criminal appeal 39/2015 were working as DE(OFC); the appellant in criminal appeal 40/2015 as the Director (OFC); the appellant in criminal appeal 42/2015 as the SDE(OFC); and the appellant in criminal appeal 49/2015 was a contractor. 15. I have heard the argument of learned counsels for both the parties at length and there is deliberation from both the sides on the evidence on record and the appreciation thereof. It has been vehemently contended by the learned counsel for the appellants that without proper appreciation of entire evidence on record, the learned Trial Court has come to a conclusion on the basis of 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): 16. Contention raised by appellants (officials): 16. 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." 17. Attention has been drawn to the evidence of Sh. S.N. Malakar (PW-16) 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 cables had been damaged as a result of clearing of debris accumulated from landslide by JCB and excavation of drain by the side of hills by the JCB and also as a result of widening of road by the PWD. I had repaired the damaged portion on Imphal-Moreh and Imphal-Churachandpur routes. After repairing, the cable was offered for A/T (Acceptance & Testing). It is correct that A/T team verified the depth of the cable and protection over the cable from the Route Index Diagram (R.I.D.). 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. It is correct that A/T team verified the depth of the cable and protection over the cable from the Route Index Diagram (R.I.D.). 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 meters. 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 (1) Ashok Kumar, DETP/NETF, Guwahati (2) E. Swer, DE Maintenance, ETR, Imphal (3) S.N. Malakar, DETP/NETF, Guwahati (PW-16 himself) (4) Maria Pragasam, SDE, OFC, NETF, Imphal and (5) 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 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. This exercise was done both at Imphal Moreh route and Imphal Churachandpur route. I had signed the joint inspection memo prepared by maintenance organization and executing staff. The responsibility of the executing staff with regard to depth and protection of the OFC came to an end and thereafter it became the responsibility of the maintenance organization." The IO (PW-30) 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 t hat 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. 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-16) and the admission of the same by IO (PW-30), 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 case is made out against the appellants in view of the said reports. 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 case is made out against the appellants in view of the said reports. The responsibility of the appellants, thereafter, came to an end and further responsibility shifted on the Maintenance organization to maintain the cable. It is pointed out that the CBI did not associate any person from the Maintenance organization during investigation. On this ground alone, the impugned judgment is liable to be set aside and the appellants are entitled to acquittal. 18. Joint INSPECTION BY CBI The entire CBI case rests on the joint inspection, which was carried out by them after more than 7 years of the execution of OFC work. The CBI has allegedly prepared a joint inspection memo Ext. 54, Ext. 55 & Ext. 57, alleging therein that the discrepancies were found in depth and protection of the cable besides type of soil. To prove the joint inspection memo, the CBI has examined 7 witnesses besides the IO of the case. The following points w.r.t. joint inspection memo arise for consideration:- (1) Preparation of Joint Inspection Memo PW-21 (Abdul Salam), in his cross has stated that "I do not know where joint inspection memo was prepared and by whom. I do not know what is written in joint inspection memo. I signed the joint inspection memo on the direction of CBI." PW-22 (Sh. B. Nag Choudhury), in his cross has stated that "It is correct that the joint inspection memo was not prepared at site by CBI. The joint inspection memo was not prepared in my presence. I signed on the joint inspection memo on the following day. I am not aware as to who prepared the joint inspection memo and where it was prepared. No member of the joint inspection team were present when I signed the joint inspection memo. Except Mr. Mang who had brought the joint inspection memo to me for obtaining my signature in a Hotel at Imphal where I had stayed." PW-23 (Sh. Shoibam Momon Singh), in his cross has stated that "I do not know if the memo was prepared at the site of inspection. Except Mr. Mang who had brought the joint inspection memo to me for obtaining my signature in a Hotel at Imphal where I had stayed." PW-23 (Sh. Shoibam Momon Singh), in his cross has stated that "I do not know if the memo was prepared at the site of inspection. I did not sign there." He further stated that "I was called earlier by the CBI for recording my statement about three years back but I had returned without making any statement as I did not agree to make a false statement as instructed by CBI officer. I do not know anything about the contents of the joint inspection memo." PW-25 (Sh. Nishikanta Singh), in his cross has stated that "It is correct that joint inspection memo was not prepared at site. Many times, I signed joint inspection memo after one day, after two days or four days." (2) Co-relation of points of joint inspection with route index diagram The Ld. Trial for placing reliance on Joint Inspection Memo of CBI in the impugned judgment, has held that the IO(PW-30) Mr M. T. Mang has admitted in cross examination that the landmarks mentioned in the Joint Inspection memo dated 27/05/2003, 29/05/2003 and 05/02/2002 do not appear anywhere in the route index diagram but he mentions that even without reference number or KMP post in the route index diagram the locations for the joint inspection can be identified with the help of the witnesses PW-25 Nishikant Singh, PW-26 Rajinder Singh and PW-23 S.M. Singh. The said finding does not hold water in view of the following testimonies of the witnesses. PW-22 (Sh. B. Nag Choudhury), in his cross has stated that "No document such as measurement book, route index diagram and tender document were shown to me nor was it shown to anybody else in my presence." He further stated that "The figures mentioned in the joint inspection memo with regard to depth, category of soil and protection as per MB/Bill was not verified from MB/route index diagram in my presence. I have correlated the points of joint inspection memo on the route index diagram but the measurements do not tally with the route index diagram" He further stated that "There is no KMP reference in the route index diagram and the points of joint inspection cannot be co-related without reference points." PW(23) Sh.Shoibam Momon Singh in his examination in chief itself stated that "I was also standing nearby and after completion I put my signature on the joint inspection memo." In his cross examination he stated that "I do not know anything about the contents of the joint inspection memo." PW-24 (Sh. B. N. Mallick), in his cross deposed that "The reference point shown in the joint inspection memo nowhere appear in the route index diagram. It is correct that the points on joint inspection cannot be located at the route index diagram without any reference points. On perusal of the joint inspection memo and route index diagram I cannot say that this joint inspection memo pertains to the same sub-section which is available on the record of this case." PW-25 (Sh. L. Nishikanta Singh) in his cross examination has stated that "I was told to sign joint inspection merely because I went there. I do not know the contents of the said document." PW-26 (Sh. Rajinder Singh), in his cross stated that "There is no KMP marking on the route index diagram of 1st and 2nd RA bills." He further deposed that "without any reference point the locations of the checks pits on the joint inspection memo cannot be correlated with the route index diagram by anyone." PW-29 (Sh. T. Thangzalian), in his cross stated that "It is correct that no KMP is marked on the route index diagram and hence pits of joint inspection cannot be located in the diagram. The landmarks mentioned in the joint inspection memo, nowhere appear in the route index diagram. It is correct that without marking of landmarks and KMP on the route index diagram, the pits of joint inspection cannot be correlated/located in the route index diagram." From the above statements, it is abundantly clear none of the witnesses could correlate the points of joints inspection memo with the route index diagram, what to talk of correlation by them without reference points/KMP post. Hence the Joint Inspection memo losses its credibility and cannot be relied upon. 19. Hence the Joint Inspection memo losses its credibility and cannot be relied upon. 19. Alleged Excess payment to the Contractor The Ld. Trial court in the judgment has observed that in 3rd RA bill, an excess payment has been made to contractor for execution of work in item number 10.2 for 1000mt trenching in soft soil. The said finding is without any evidence as when I.O was asked about this1000mt of soft soil during cross examination, he admitted that "It was my assumption and presumption that 1000 meters claimed as hard soil was found soft soil." From the above answer it is clear that the appellants cannot held responsible on the basis of said evidence. This fact is further fortified by the admission made by the Account Officer (AO) Sh. S.C. Paul (PW-2) to the effect that "I did notice any defect or shortcoming in the bill." It is also pertinent to mention that appellants M.L. Sharma is not connected to 3rd RA bill as such he cannot be implicated on the basis of the findings recorded in respect of 3rd RA Bill. 20. Type of Soil The prosecution had sought to prove the type of soil through PW-28 Dr. Herojit Singh and the Ld. Trial Court has made it basis to determine the type of soil. But, the perusal of the cross-examination of this witness tells a very strange story. This witness, during his cross-examination, has admitted that "I do not know in how many subsection pits are made. I do not know which pit was made in which sub-section. I cannot tell the number of sub-section where pits were made. I did not see cable in the pit. The size of pit and depth of pit was measured and no other measurement was taken." He further stated that "Pits were made by the side of trench in order to test the type of soil. The area where pits were made were not hilly and rocky." He further stated that "I do not know the type of soil and definition of the soil mentioned in the tender document." The statement of this witness is contradicted by B. Nag Choudhary (PW-22), who states that "Insp. Mang has decided the category of soil." Whereas I.O Sh. The area where pits were made were not hilly and rocky." He further stated that "I do not know the type of soil and definition of the soil mentioned in the tender document." The statement of this witness is contradicted by B. Nag Choudhary (PW-22), who states that "Insp. Mang has decided the category of soil." Whereas I.O Sh. M.T. Mang (PW-30) in his cross examination admitted that "I have no knowledge, experience or training on soil-classification." It is submitted that if this witness is to be believed then the pits during joint inspection of CBI were not the pits where the cable was laid rather the pits which the CBI dug was by the side of the original pit/trench. This statement completely wipes out the entire story of the prosecution as the entire case rests on the joint inspection conducted by CBI wherein the pits were dug to measure the type of soil and the depth of cable and protection. Besides this, he also admits that except the measurement of size and depth of the pit, no other measurement was taken, Sh. T. Thangzalian (PW-29) also admitted that "The size of pits was not measured only depth was measured during joint inspection. No other measurement was taken." then, how the exact distance from the reference point can be ascertained without any length measurement. 21. The entire case is based on presumption and assumption. The IO himself has admitted in cross-examination that "It is correct that the actual depth of cable and the protection applied to it cannot be ascertained without reopening the entire trench." He has further admitted that "It is correct that only 0.2% of the work was tested in this case. It was my assumption and presumption that 1000 metres claimed as hard soil was found soft soil. I do not know the exact figures. It is correct that RCC pipe protection was not found only in one pit though it was found in the rest of the pits. I have mentioned on the basis of my presumption that no RCC protection was found in 100 metre length on the basis of the calculations made by senior AO (PW-2)." The IO has further admitted that "It is correct that the road was widened by that time." It is, therefore, evident that the present case has been instituted by checking only 0.2% of the work. It is negligible quantity and that too cannot remain intact after 7 years of the execution of the work particularly, in a hilly area. Besides this, the entire allegations leveled in the charge-sheet are on the basis of assumption and presumption by the IO. 22. Alleged Loss and its Calculation The Ld. Trial Court has held that the loss was caused to the department because of conspiracy between the contractor and the officers of the department and had relied upon Ex.56, the calculation sheet allegedly prepared by Sh. S.C Paul (PW-2) with the help of Sh. Mantu Ranjan Dutta (PW-19). But PW-2 Sh. S.C. Paul has not stated anything about the calculation sheet and the same has been got exhibited through Sh. Mantu Ranjan Dutta (PW-19). Interestingly PW-19 in his cross examination had admitted that "I had done loss calculation with S.C. Paul. I do not know what calculation was done by S.C. Paul and what calculation was done by me. This calculation was done in the office of CBI at Silchar at the instance of IO. I do not know on what basis this calculation was done." When the IO PW-30 Sh. M.T. Mang was asked about the basis of alleged loss, he stated that It was my assumption and presumption that 1000 meters claimed as hard soil was found soft soil. I do not know the exact figures. It is correct that RCC pipe protection was not found only in one pit though it was found in the rest of the pits. I have mentioned on the basis of my presumption that no RCC protection was found in 100 meters length on the basis of the calculations made by senior AO (PW-2)." It is submitted that neither there is any loss nor the same could be proved by any of the witnesses and wrong relied upon Ex-56 by the Ld. Trial Court. When there is no loss to the department then the question of any corresponding gain either to the Contractor or anybody else does not arise. In absence of any loss to the department, there cannot be any offence made out against the appellant. The Hon'ble Supreme Court in the case of 'Ghulam Din Buch and Others Versus State of J & K, (1996) 9 SCC 239 ', in para 47, has held as under:- "47. In absence of any loss to the department, there cannot be any offence made out against the appellant. The Hon'ble Supreme Court in the case of 'Ghulam Din Buch and Others Versus State of J & K, (1996) 9 SCC 239 ', in para 47, has held as under:- "47. It thus appears that though these three appellants had sought to assist the carriers to cause wrongful gain to them by allowing transportation of poles below 20 feet, ultimately no financial loss on this count was caused to the State because the carriers had not been paid for poles carried by them which were below 20 feet. We are, therefore, of the view that these appellants also deserve to be acquitted, as were some of the Field Officers, who had accepted the undersized poles at the receiving point had been acquitted by the High Court." 23. Test CHECK BY DE (Divisional Engineer) As regards the allegations of not conducting test check by the DE, the IO, Sh. M.T. Mang has admitted that "It is correct that it is nowhere mentioned in the tender document that DE conduct test check at every 100 metre or 10% of the work. It is also nowhere mentioned that DE will furnish the test check certificate." Similarly, Sh. S.N. Malakar (PW-16) has stated that "It is correct that DE will conduct test check as per clause 192 only if he consider necessary. It is his discretion and not mandatory provision." Sh. S.C. Paul (PW-2) has also stated that "As per clause 192 of the tender document, the Divisional Engineer shall conduct test check by reopening the trench, if necessary and not otherwise. There is no mention in the tendered document that DE will conduct test check at every 100 metre or 10%." 24. Deviation Statement As regards the furnishing of deviation statement is concerned, the same is not mandatory and this fact has been admitted by the IO. The IO has stated that "There is no provision in the tender document for submitting deviation statement with the final bill." 25. Approval of Excess Quantities As far as the approval of excess quantities is concerned, the charge-sheet itself in third paragraph records the approval of excess quantities by Sh. A.C. De, the then Director. Apart from this, even the impugned judgment in last paragraph records the approval of the Director in respect of the bills. Sh. Approval of Excess Quantities As far as the approval of excess quantities is concerned, the charge-sheet itself in third paragraph records the approval of excess quantities by Sh. A.C. De, the then Director. Apart from this, even the impugned judgment in last paragraph records the approval of the Director in respect of the bills. Sh. Montu Ranjan Dutta (PW-19) in his cross-examination has admitted that "The approval of competent authority was obtained for excess quantities executed by the contractors. It is correct that I have signed on pre-checking the bill and after my satisfaction that all the formalities as per rules and practice were complete." The IO (PW-30) has admitted that "It is correct that the JAO while pre-checking the bills, never pointed out any such discrepancy or defect to the DE." Sh. B. Nag Choudhury (PW-22) has stated that "It is correct that approval was obtained for excess quantity of work on rocky soil and that of RCC protection" As regards the allegations of payment for RCC pipe laying beyond tendered quantity in the built up area is concerned, Sh. Montu Ranjan Dutta (PW-19), has stated that "It is correct that no extra cost indicates that the payment to the contractor shall be made at the approved tender rates and no additional shall be made to the contractor." Similarly, Sh. S.C. Paul (PW-2), has stated that "As per clause 232 of NIT in city, town, urban areas falling within municipal corporation limits, villages and other built up areas, H.D.P.E. pipes are to be laid at the depth of 165 cms and encased in G.I. or R.C.C. pipes. No additional payment will be made. Only approved rate will be paid." Sh. S.K. Sikidhar (PW-6) has stated that "As per clause 232 of tender document RCC/GI pipe protection is to be provided in built up area i.e. city area. SS-1 falls in the city area. As per tender document the estimated quantity for laying RCC/GI pipes was 1500 where as for entire section RCC pipes are to be provided as per instruction given in clause 232 of the tender document." As regards the payment of excess quantities is to be paid on approved tender rates, it is submitted that Sh. S.C. Paul (PW-2) has stated that "The tendered quantities may change and generally it happens." The IO, Sh. S.C. Paul (PW-2) has stated that "The tendered quantities may change and generally it happens." The IO, Sh. M.T. Mang (PW-30) has admitted that "It is correct that the payment to the contractor is made on the basis of actually executed quantities at the approved tender rates." He has further admitted that "It is correct that the estimated quantities are not final." From the above, it is clear that the finding of Ld. Trial Court that the payment of excess quantities was either without approval or the same was to be made on departmental rates and not on approved tender rates, is unsustainable. 26. It has been admitted by the IO (PW-30) 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 IO has also admitted that the figures and quantities as per tender document are not according to survey report. The I.O has also admitted that estimated quantities are not final, the cost of execution may increase when there is excess quantity of work. It is, therefore, evident that the estimated figures mentioned in the tender document are fictitious. Consequently, they are bound to change. 27. In accordance with clause 46 of the tender document, the figures/quantities mentioned in the tender document are not firm and final. They are subject to change. The changed quantities will be deemed to have been included in the tender schedule. In accordance with the clause 47 of the tender document, the payment to the contractor will be made according to the actually executed quantities at the approved tender rates. It has been done in the present case. The said clauses are reproduced here-in-below for the ready reference of the Court: "46. The quantities/figures indicated in the tender schedule are approximate and are subject to change. Any change effected shall be binding on the tenderer/contractor as though included in the original tender schedule and any such change will not make the agreement void and it is therefore essential that the tenderers binding all the documents carefully and not commit any mistake in analyzing the rates quoted and remain binding notwithstanding any changes as aforesaid. 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. 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. 28. 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. 29. According to the geological survey, about 91% of the area of Manipur is hard rock. According to survey report conducted by PW-5 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. The IO has also admitted that according to Survey reports, the entire route is hilly and rocky. 30. As per clause 73E of Tender document, it is the obligation of the DE to pass the bills and make payment to the contractor through the paying authority. The procedure of passing the bills is as follows:- (i) Bills are prepared by JTO and SDE (Site Engineers) on the basis of MB and Route Index Diagrams. (ii) Bills are submitted in the office of DE and JAO (Junior Accounts Officer) posted in the office of DE pre-checks the bill by comparing the same with the MB, Route Index Diagrams, approved tender rates, quantities and approval of excess quantities etc. After finding all the above in order, as per terms and conditions of the tender, he put up the bills before the DE for passing the same. (iii) The DE, after perusing the remarks of the JAO and MB and Route Index Diagram, passes the bills. (iv) After passing, the bills are forwarded to Director for approval. After finding all the above in order, as per terms and conditions of the tender, he put up the bills before the DE for passing the same. (iii) The DE, after perusing the remarks of the JAO and MB and Route Index Diagram, passes the bills. (iv) After passing, the bills are forwarded to Director for approval. (v) After the approval of the Director, the bills are forwarded to AO. The AO rechecks the MB, Route Index Diagrams, approved tender rates, quantities and approval of excess quantities etc. Finding each and everything in order, he makes payment to the contractor. In this way, the bills before coming to the DE and after the passing by DE are thoroughly checked at various stages and only thereafter, the payment is made. It is noteworthy that the persons before (JAO) and after (AO) the DE have been given clean chit by CBI by approving the bills by them. Hence, the appellant cannot be faulted. 31. The payment to the contractor has been made proportionately since the cable has not been laid at the standard depth of 1.65 metre. 32. The Head Quarter of the DE was at Guwahati whereas the work was executed in the State of Manipur. The execution of work is to be supervised by the site engineer who represents the government at site of work as per clause 72. 33. The Hon'ble Supreme Court in the case of Abdulla Mohammed Pagarkar etc, V State (Union Territory of Goa, Daman and Diu), (1980) CriLJ 220 while dealing with a case where a public servant and a contractor were prosecuted under the Prevention of Corruption Act and Ss, 420,468,471 IPC for defrauding the Government by submitting false bills of the work done. Though the work was to be done departmentally it was alleged that in-fact the public servant got the work done through the contractor whose tender was not accepted, held, Though the work was got executed in flagrant disregard of the relevant rules and even of ordinary norms procedural behavior of governmental officials and contractors, such disregard did not amount to any of the offences alleged against them. The onus of proof of the existence of every ingredient of the charge always rest on the prosecution and never shift. The onus of proof of the existence of every ingredient of the charge always rest on the prosecution and never shift. It was further held, No doubt there were several irregularities giving rise to a strong suspicion in regard to the bona fides of the accused in the matter of the execution of the work but suspicion, however strong, could not be a substitute of proof. 34. The Ld. Trial Court did not appreciate that there is no proper sanction from the competent authority to prosecute the appellants. Particularly in view of the fact (DOT) had refused sanction twice. Contention raised on behalf of the appellant/contractor 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. 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. 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. 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: 35. As the whole case revolve around the joint inspection report made by the Investigating Officer (in short IO) in presence of other witnesses, so let us start with the evidence of Investigating Officers PW-27/Sh. Joseph Krelo, PW-29/Sh. T. Thangzalian & PW-30/Sh. M. T. Mang. The joint inspection reports were prepared by the PW-30 and in his evidence, he has stated about the seizure of bunch of documents from the officials of the department concerned and from the bank officials also and he has exhibited the various seizure lists in this regard (I refrain from mentioning all details of the seizure for the sake of brevity). As regard the inspection, he has stated that on 29.05.2003 and 28.08.2001, he conducted joint inspection of OFC trenching and laying works in respect of SS 1 of Imphal Moreh route in presence of witnesses and during the inspection they found that the nature of soil was soft soil instead of hard soil as claimed in the MB, route index diagram and bills. Vide Ext. 54 is the joint inspection dated 27.05.2003, vide Ext. Vide Ext. 54 is the joint inspection dated 27.05.2003, vide Ext. 55 is the joint inspection dated 29.05.2003 and vide Ext. 57 is the joint inspection report dated 28.08.2001 and they all have signed the inspection memos. It is submitted that at the conclusion of the investigation after obtaining necessary sanction, he filed the charge sheet against the accused persons. The other witnesses, PW 27 and PW 29 have stated another joint inspection conducted on 05.02.2002, in respect of SS 1 & 3A of Imphal Moreh route in presence of D. N. Mallick (PW-24) and Dr. A. Harozit Singh (PW-28), vide Ext. 58 is the said joint inspection memo, were they put their signatures. Both the witnesses have not narrated about the content of the inspection memo Ext. 58 nor have stated about the discrepancy that was found. On a query made in cross-examination, they could not reply as to how they ensure that the pits were made in the same trench in which OFC cable was laid and they cannot locate the point KMP in the running bills of SS 1 & 3. 36. The above referred witnesses PW-24 and PW-28 have simply stated about their presence at the time of said joint inspection Ext. 28 without uttering anything about the findings in the joint inspection. PW-24 was also a signatory to the another joint inspection Ext. 57, dated 28.08.2001. Both of them have stated that they simply accompanied the CBI Inspector and measurement was taken by the IO and they have not seen the route index diagram which may be with the IO. The reference point shown in the joint inspection memo, nowhere appeared in the route index diagram and he cannot say that this joint inspection memo pertains to the same subsection which is available on record. PW-28 has stated that type of soil was decided on the spot on feel method, no soil test was made in laboratory. It is also stated that one cannot identify the type of soil correctly by visual inspection. He did not consult with the tender documents while testing the type of soil that was mentioned in the tender document. The cross-examination of PW-30, which is relevant, is quoted herein below- "Myself and B. Nag Chaudhury had decided the locations where pits were to be dug. Category of soil was decided by B. Nag Chaudhury, myself and other team members jointly. The cross-examination of PW-30, which is relevant, is quoted herein below- "Myself and B. Nag Chaudhury had decided the locations where pits were to be dug. Category of soil was decided by B. Nag Chaudhury, myself and other team members jointly. I am not aware whether at the time the commission of the alleged offence the officers of BSNL, MTNL had been empowered to accord sanction for prosecution of the accused persons. As per survey report entire route of Imphal Moreh falls in hilly, land erosion, landslide prone area however SS 3A falls within the town area of Thoubal. As per tender document the figures and quantities mentioned are not according to survey report. The cost of cable laying cannot be same for all the 27 subsections i.e. Rs. 3 lakhs, as mentioned in the tender document. 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 A/T was conducted by the office T & D circle. The controlling officer of the AT is the CGM, T & D Circle Jabalpur. It is correct that CGM NE Task force has no control over them. It is correct that the officers of AT verified the depth and protection of the cable as per route index diagram. It is correct that the officers 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. AT report, joint inspection report, I did not enlist them in the list of documents enclosed with the charge sheet. I do not remember whether prosecution sanction draft was also forwarded in this case also. Insurgency was there at the time of execution of the cable laying work on Imphal Churachandpur 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 contractors and officers. I am not aware whether JTO, S. R. Das was beaten to death. I am not aware whether one of the militants had also killed a DE. That apart, since the source information was not marked to me, I cannot say that it discloses commission of cognizable offence straight away. I do not remember when I received the source information. I cannot recollect whether the PE was registered on 19.05.2001. It is correct that the actual depth of cable and the protection applied to it entire trench cannot be ascertained without reopening the entire trench. It is correct that after conducting joint inspection between OFC officers and ETR officers, the cable was handed over to ETR officer for maintenance. I did not associate any employee/officer of ETR (maintenance) during investigation or during joint inspection conducted by CBI. During joint inspection the 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 of 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. It is not a fact that I had not correlated any of the points in the joint inspection memo with that of the corresponding point in route index diagram. 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. Location of pits for joint inspection had been ascertained by myself and other team members. It is correct that the site engineer is the competent person to decide the type of soil and nature of soil. 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. The head quarter of DE was at Guwahati whereas the work was executed in the state of Manipur. It is correct that the quantities and figures shown in the tender document are not in the survey report. It is correct that estimated quantities are not final. The cost of execution may increase when there is an excess quantity of work. It is not a fact that the investigation was done perfunctorily. It is correct that the route index diagram of 1st RS bill was prepared by SDE, P.K. Bagchi. It does not bear the signature of M. L. Sharma. The KMP post numbers are not marked on the route index diagram. It is correct that the joint inspection was conducted after 7 or 8 years of the execution of the OFC works. It is correct that the road was widened by that time. I cannot say if the cable was shifted from its original position or not. I cannot say if the route indicators are also shifted over the cable when the cable was shifted due to road widening. Thus, only 0.3% of the works was tested. It is correct that M. L. Sharma had no role in the tender process such as Eg, invitation of tenders, tender opening, tender evaluation and approval of tenders. It is correct that the land marks mentioned in joint inspection memo nowhere appear in the route index diagram. Thus, only 0.3% of the works was tested. It is correct that M. L. Sharma had no role in the tender process such as Eg, invitation of tenders, tender opening, tender evaluation and approval of tenders. It is correct that the land marks mentioned in joint inspection memo nowhere appear in the route index diagram. Looking at the route index diagram reflecting 360 KMP, I see that location No. 7 of joint inspection dated 30.05.2003 appears to have been wrongly indicated. The points tally but figures do not tally from pit No. 7 to 18. The fifth point of the joint inspection memo, ext58 relates to the route index diagram for 1st RA bill for SS 11. There appears KMP 364 at the beginning and I see that for first 60 meters at the depth 1.55 meters from 364 KMP, there is soft soil. It is recorded in the joint inspection memo, hard soil at the depth of 155 cm on the said spot. Similarly in pit No. 4, similar observation had been made in the joint inspection memo, ext-58. It is correct that no trenching work is involved in pit No. 3 of joint inspection dated 09.06.2003 of SS 11. No payment was made to the contractor. It is wrongly mentioned as hard soil as per bill and soft soil as per observation of joint inspection team. It is correct that exact location of 363 KMP cannot be ascertained due to 32 meter extra length as per diagram. It is correct that the pits in reference to 363 KMP cannot be correctly co-related as per the diagram. It is correct that 361 KMP is not marked in cable route index diagram. Hence pit No. 2 and 3 of joint inspection dated 31.01.2002 cannot be located as per the diagram. Similarly pit No. 4 and 5 of joint inspection dated 31.01.2002 cannot be located as 359 KMP is not marked on route index diagram. It is correct that the loss calculation had been done on the basis of joint inspection report of CBI and AT of T & D circle. I am not aware of AT report as mentioned in the calculation sheet. I had seized AT report of Imphal Moreh route but did not paste in the record. It is no where mentioned in loss calculation sheet that it was prepared on basis of MB and route index diagram. I am not aware of AT report as mentioned in the calculation sheet. I had seized AT report of Imphal Moreh route but did not paste in the record. It is no where mentioned in loss calculation sheet that it was prepared on basis of MB and route index diagram. It is also correct that no trial pit was made over a stretch of 720 meters between 363 and 364 KMP. It is correct that no pit was made over a stretch of 1720 meters out of 2000 meters between 362 to 364 KMP in SS 11. I had mentioned on assumption in page 12 of charge sheet that from the findings of the random technical checking mentioned above, it was found that about 1972 meters length between 362 KMP to 364 KMP shown, claimed and paid as hard soil was not hard soil but soft soil only as per the classification of soil mentioned in the tender documents. It is wrongly mentioned at page 13 of charge sheet that there is distance of 1495 meters length between 360 KMP and 361 KMP. The loss calculation made on the basis of the aforesaid assumption is best known to Sri S. C. Paul, AO who made the calculation. I have no knowledge about the same. It is correct that Sri M. L. Sharma, Navendra Kumar and Ram Prasad had no role in the approving of tender rates. It is correct that only 0.35% of the total work was checked by CBI and that to after 7 years and that to without obtaining any report from PWD, BSNL, DOT, Electricity and Water department, DRTF and about the landslide and sinking of roads during the intervening period. It is correct that the road had been widen in some places after laying of cable and before joint inspection. I am not aware if 91.09% of area in the State of Manipur is hard rocky area as per report of Geological Survey of India. It is correct that there is not provision in tender document to submit the deviation statement with the final bill. It is correct that I had seized the subsection filed of SS 10 and SS 11 of Imphal Moreh route vide seizure memo dated 05.11.2001. It is correct that the approval of excess quantity is obtained in the Subsection file. It is correct that there is not provision in tender document to submit the deviation statement with the final bill. It is correct that I had seized the subsection filed of SS 10 and SS 11 of Imphal Moreh route vide seizure memo dated 05.11.2001. It is correct that the approval of excess quantity is obtained in the Subsection file. I did not place the subsection file in record as it was not required for the purpose of prosecution." 37. Let us appreciate the another set of witnesses who were present at the time of joint inspection done by the IO and they are PW-18/Sh. W. Sunil Singh, PW-21/Sh. Abdul Salam, PW-22/Sh. B. Nag Chaudhury, PW-23/Sh. Shoibam Momon Singh, PW-24/Sh. B. N. Mallick, PW-25/Sh. L. Nishikanta Singh and PW-26/Sh. Th. Rajendra Singh. In their evidence, PW-18, PW-22, PW-23, PW-24 & PW-25, have stated that they accompanied the IO/PW-30 at the time of joint inspection that was made on 27.05.2003, 29.05.2003 and they signed the joint inspection memo vide Ext. 54 & 55. It is stated that the said inspection was carried out to ascertain whether any anomalies have been committed with regard to the depth of the trenches, type of soil and concrete protection in the OFC route in respect of SS 1. Hired labourers were used to make the pit on locations determined by the IO and the findings were noted by the IO in the joint inspection report. 38. Pw-21 was a mere signatory to the Ext. 54 of inspection report and he stated that he does not know anything about the inspection and what is written in the same and he signed as per direction of the CBI Inspector. 39. In cross-examination, PW-18 and PW-22, both of them have stated that no diagram has been prepared in respect of the pits and they have not been shown any document during the inspection nor IO has consulted about any document during inspection. They could neither relate the points in the joint inspection with the route index diagram or MB, nor can they say anything about the figure mentioned in the inspection memo. They also do not know who decided the category of soil. 40. The cross-examination of the PW-23, need a mention, while he stated that he has no role to play in this case and signed the inspection memo on being asked by the CBI officer. They also do not know who decided the category of soil. 40. The cross-examination of the PW-23, need a mention, while he stated that he has no role to play in this case and signed the inspection memo on being asked by the CBI officer. He was not interested in measurement of trenches and CBI had already prepared the documents before he was asked to sign. He was called earlier by the CBI for recording his statement about 3 years back but he returned without making any statement as did not agree to make a false statement as instructed by CBI. He does not know anything about the content of the joint inspection. 41. Pw-24 and PW-25, in their cross-examination, have stated that the CBI has decided the locations of pits, recorded the depth of the trench, no soil sample was collected for sending for examination and type of soil was ascertain by looking at it. They signed the joint inspection as directed by the IO but they do not know the content nor any document was shown to them. Further it is stated that they have seen that the cable was damaged due to JCB machine for widening of road, construction of drains and removal of debris accumulated due to landslide and also for heavy rainfalls protection of cable washed away. It is also admitted that maintenance organization shift the OFC cable to a safer site at the time of widening of road. 42. Pw-26/Sh. Rajendra Singh is another witness to the inspection that was conducted on 28.08.2001 and he stated that at the time of conducting such inspection, they found soft soil in the trenches and come across RCC protection at some places and sometimes OFC was without RCC protection in respect of SS 3A of Imphal Moreh route. Again it is stated that RCC was seen provided properly. He signed the Ext. 57 joint inspection memo, without narrating further about the findings at the time of joint inspection. 43. In his cross-examination, he has stated that the measurements had been taken by CBI team and labourers. He did not see the measurements of the trenches that had been recorded by the CBI team. He had seen CBI team carrying some diagrams and he had not been shown those diagrams. 43. In his cross-examination, he has stated that the measurements had been taken by CBI team and labourers. He did not see the measurements of the trenches that had been recorded by the CBI team. He had seen CBI team carrying some diagrams and he had not been shown those diagrams. He also stated that the joint inspection memorandum had been brought to his office from their office by the CBI for his signature. None of the papers had been prepared on the spot. The CBI had decided the location f the pits. He cannot recollect the number pits dug by CBI on the OFC route. He cannot recollect whether the soil was examined. Pit was made over the trench of the cable. Whenever landslides occur the JCB machines are being used to clear the debris. Due to heavy rain soil erosion also take place. The cables for land lines are also being laid along the OFC route. After the OFC laying work was completed the roads along which those cables had been laid were widened. During such time the OFC cables are required to be repaired and shifted. Due to bomb blasting purported by the insurgents, OFC cable had been damaged for which experts had been called from Jorhat to repair those damaged cables. The depth of the cable trenches and the types of soil in respect of those trenches may undergo changes over a period of 7 years. He does not know whether the figures with regard to the measurements taken by the CBI team of the OFC trenches during joint inspection and recorded in the memorandum were correct. The depth of the trenches had been measured taking the base as the top of the protection work over the cable. He had put his signature on the joint inspection memorandum as token of his presence during such inspection. 44. The other witness PW-4/Sh. Mohender Singh, PW-8/Sh. A. K. Girotra, PW-13/Sh. Shriyans Kr. Jain relates to the prosecution sanction order passed by them. PW-13, in his cross-examination, has stated that at the time of granting prosecution sanction he was not competent to remove the accused persons from the service and not competent to accord sanction and he granted sanction merely relying upon the draft report send by the CBI and he did not go through the joint inspection report. PW-13, in his cross-examination, has stated that at the time of granting prosecution sanction he was not competent to remove the accused persons from the service and not competent to accord sanction and he granted sanction merely relying upon the draft report send by the CBI and he did not go through the joint inspection report. PW- 4 has stated in his cross-examination that at the initial stage department was of view that no prosecution sanction should be granted because of difference of opinion of CBI and their department but finally at the advice of CVC, sanction was granted. 45. Pw-1/Sh. D. Dey, Accounts Officer BSNL, O/o CGM, stated that he has handed over certain documents to the CBI as requested by them which was seized by Ext. 1 & 2 seizure list and he signed the same. PW-2/Sh. S. C. Paul, Chief Accounts Officer, O/o General Manager used to pay the bills being the DDO after checking the bills with reference to the MB, tender file etc. He has elaborated the procedure of tender and the execution of documents by the tender evaluation committee and has stated that the work was awarded to the second lowest bidder, M/s D. S. Trading, proprietor of which was Mr. Subol Kanta Das. Thus, exhibiting certain documents from report of TEC till passing of different bills and cheques after putting his signature even in the MB, cash book, he has not pointed out about any discrepancy in the documents. He passed the bills and issued the cheques and despite being the Chief Accounts Officer, no anomalies is detected by him. He has clarified in his cross-examination that the bills were pre-checked by JAO before those were passed by the DET and thereafter, Director countersigned the bills. When the bills were passed same were forwarded to the Accounts Officer, O/o Director Microwave Project for payment and accordingly payment is made. In accordance with the measurement book, bills and route index diagram, he issued the pay order and did not notice any defect or shortcomings in the bill. He admitted that as per clause 192 of tender document, test check to be conducted by the Divisional Engineer is discretionary. He also stated that bills are prepared on the basis of actual work done and not on the basis estimated tender quantity. The tender quantities may change and it generally happens. He admitted that as per clause 192 of tender document, test check to be conducted by the Divisional Engineer is discretionary. He also stated that bills are prepared on the basis of actual work done and not on the basis estimated tender quantity. The tender quantities may change and it generally happens. He does not know the correctness of the figures mentioned in the joint inspection report. He cannot say whether any excess payment has been made to the contractor. There is a separate file for each subsection for seeking approval for deviation, extra quantity of work, passing of the bills etc. but as the same is not available, he is not able to say whether approval was sought for any additional work or deviation. 46. The Cashier in the Office of Director Microwave Project, Sh. Govinda Kalita (PW-10) made payment of the bills of the contractor of OFC laying work after the bills were passed by the Director OFC and pay order issued Sr. Accounts Officer and his duty is to issue the cheque after recording such payment on record. Thus, except stating about the issuance of cheque to the contractors after entry in the relevant cash book, he has not stated anything about the case. 47. In his evidence, PW-14/Sh. K.S. Manoharan has stated that at the relevant time 1994-96, while he was working as Accounts Officer, Director Microwave Project and his duty was financial advisor to the Director Microwave project as at the time there was no disbursing unit for Optical Fiber Cable project. He further stated about process of tender for SS 1, he being a member of tender opening committee and the execution of documents with the selected tender and issuance of work order but he has not stated anything about the discrepancy about the awarding of work and its execution. His evidence is of no help to the prosecution. 48. Similarly, evidence of another Accounts Officer, Sh. Jibotosh Biswas/PW-15 and Sh. Montu Ranjan Dutta/PW-19 spells about the procedure of preparing the bills pertaining to the work in question. PW-15 handed over the cheques issued in favour of the contractor M/s D. S. Trading which was seized by the IO. His evidence is of no help to the prosecution. 48. Similarly, evidence of another Accounts Officer, Sh. Jibotosh Biswas/PW-15 and Sh. Montu Ranjan Dutta/PW-19 spells about the procedure of preparing the bills pertaining to the work in question. PW-15 handed over the cheques issued in favour of the contractor M/s D. S. Trading which was seized by the IO. PW-19, exhibited MBs in respect of the SS 1, loss calculation sheet prepared on the basis of bills and joint inspection report, different bills prepared in respect of the work in question and except exhibiting the documents, his evidence is totally silent as regards the anomalies and discrepancies as alleged. In cross-examination, he has stated that he has gone through the subsection file of this case and found that approval of the competent authority were obtained for excess quantities by the contractors. He has signed the bills after his satisfaction that all the formalities as per practice are complete. At the time of making payment, an amount of 10% was deducted from each bill towards retention of money. No subsection wise detailed estimate was prepared and estimated cost cannot be worked out without detailed estimate for each subsection. Estimated cost is subject to change. He does not know on what basis loss calculation was done as it was done in the Office of CBI at the instance of IO as per joint inspection report. There is no indication in the route index diagram about the starting point and the end point and there is no KMP reference. 49. Pw-20/Sh. S. R. Bali, Deputy Director General, TEC, prepared the project estimate in respect of OFC laying work in Imphal Moreh route, in the year 1995 and it was forwarded to the CGM Task Force for approval, which was sanctioned after his transfer to Dehradun. He came to know about this case in the year 2003. He has exhibited document pertaining to the project estimate Ext. 40 at the cost of Rs. 6,77,80,000/- and it was proposed to be completed in the year 1995-96 financial year, Ext. 51 is the forwarding letter and the sanction was accorded for the project estimate of Rs. 4,17,83,582/-, vide Ext. 52. He has exhibited document pertaining to the project estimate Ext. 40 at the cost of Rs. 6,77,80,000/- and it was proposed to be completed in the year 1995-96 financial year, Ext. 51 is the forwarding letter and the sanction was accorded for the project estimate of Rs. 4,17,83,582/-, vide Ext. 52. He has stated about the survey report, tender documents, report of TEC and award of work to the successful tenderer for the work of SS1 to M/s D. S. Trading at a higher rate than the estimated amount. 50. In cross-examination, he has stated that none of the accused persons was the member of TEC. The estimated cost of section is less than the charges of trenching one. It has also stated that the present project estimate at rate of Rs. 1.5 Lakhs per KMP prepared by him but estimated cost shown to him today in the Court is not prepared by him. He is not aware if the detail estimate was prepared for each subsection and his entire evidence is based on the documents shown him today in the Court. Thus, from his statement given in the cross-examination, it is indicative of fact that whatever he has stated is not based on his personal knowledge but as per the document already prepared and shown to him. 51. Sh. S. N. Malakar (PW-16), 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. 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. 52. In his cross-examination, he has stated that he 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 the PWD. He had repaired the damaged portions of the Imphal Moreh and Imphal Churachandpur routes and after repairing, the cable was offered for AT. The AT is directly under the control of CGM (T & D) with its headquarter at Jabalpur. He admitted that the AT team verifies the depth of the cable and protection over the cable from the route index diagram. 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, he offered the OFC again for AT. AT had sought relaxation of depth of OFC trenches from the CGM NETF (North East Task Force). The AT had sought relaxation of depth of cable because the cable was not laid at the standard depth of 1.65 meters. The CGM accorded the relaxation of depth the OFC. He had offered the cable after approval of AT to the maintenance organization. He further stated that at that point joint inspection team again verifies 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. He further stated that at that point joint inspection team again verifies 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. During joint inspection the random test check was conducted in each subsection of the entire route. The depth and protection was found correct as per route index diagram. He was present during joint inspection and he signed the memo. He also stated 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 he were present from OFC side and Director (Maintenance) ETR, Shillong was also present there. He had also signed that memo. The depth and protection noted by AT was checked at the Director level during joint inspection. After full satisfaction with regard to depth and protection over the OFC as per route index diagram, the maintenance organization took over the charge of the OFC and he had handed over the charge of the cable to the maintenance. That exercise was done both at Imphal Moreh route and Imphal Churanchandpur route. He 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. He further stated that he prepared a revised project estimate on actual expenditure basis for the work of OFC laying on Imphal Moreh and Imphal Churanchadpur route. He has never seen any detailed estimate of each subsection of OFC on Imphal Moreh and Imphal Churachandpur route. The revised estimate is prepared only if estimated cost of the execution of the work exceeds by 10%. He admitted that the estimated cost of each subsection cannot be ascertained without preparing detailed estimate of the subsection. The estimated cost shown for each subsection could not be correctly evaluated since no detailed estimate was prepared subsection wise. The entire Imphal Moreh route is hilly and rocky. The work was initially executed in the year 1996-97. He also stated that after a period of 7 years, the depth and protection of the cable cannot remain same. The estimated cost shown for each subsection could not be correctly evaluated since no detailed estimate was prepared subsection wise. The entire Imphal Moreh route is hilly and rocky. The work was initially executed in the year 1996-97. He also stated that after a period of 7 years, the depth and protection of the cable cannot remain same. The depth of the cable will be reduced due to soil erosion and also due to use of JCB machine. Landslides occur frequently in this area due to rainfall and due to heavy rainfall, the soil protection and many times cable is washed away and communication is disrupted. The category of soil may not remain the same. The tendered/estimated cost and quantities may not remain same. The additional quantities are deemed to have been included in the tendered quantity as per clause 46 of the tender document. The payment to the contractor is made on the basis of the actual executed quantity as per clause 47. The site engineer is the competent authority to decide the depth of cable and the category of soil. The DE will conduct test check as per clause 192, only if he considers necessary and it is his discretion and not mandatory provision. Further he stated that during repairing work, he had replaced cables in the same trench at many places. He had prepared a separate route index diagram and the said route index diagram is not seen on the record on that day, whereas, old route index diagrams were available on the record which were prepared at the time of laying of the cables initially. He had prepared route index diagram in respect of the locations where repairing had been done on both Imphal Moreh and Imphal Churachandpur route. As per survey report, the route is erosion prone area. He has also stated that in case of any difficulty in execution of the work, the JTO and SDEs take approval from the higher authority through fax or telephonic message as the head office is located in Guwahati which is quite far away from work. He had never worked in the execution of the OFC laying work on the Imphal Moreh and Imphal Churachandpur route. In the year October 1999, he was deputed for the restoration work of the entire cable route, i.e. Imphal Moreh and Imphal Churachandpur route. He had never worked in the execution of the OFC laying work on the Imphal Moreh and Imphal Churachandpur route. In the year October 1999, he was deputed for the restoration work of the entire cable route, i.e. Imphal Moreh and Imphal Churachandpur route. In many places cables were found exposed to the air and were found damaged due to widening of the roads and construction of drains, bridge, culverts by PWD. All these cables were found to be dislocated in some areas and accordingly condition of soil, protection and depth of trenches had undergone changes at some places before commissioning of the route. 53. Pw-17/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 1. 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 1, rates were approved higher than the estimated cost. 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. 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. After handing over the cable to maintenance unit, the responsibility of OFC officers comes to an end." 54. The evidence of PW-3/Sh. Dharmeswar Das, PW-5/Sh. Ragunath Singh, PW-6/Sh. S. K. Sikidar, PW-7/Sh. Kamala Kanta Das, PW-9/Sh. M. K. Deb, PW-11/Sh. Jaganath Talukdar, PW-12/Sh. Kaushal Kumar Mishra are formal in nature. PW-3 has stated in detail about the project in question as to how the survey report and project estimate etc. were prepared and submitted to CGM for sanction and as to how the works to be executed and that in case of any deviation, approval is to be obtained from the Director who is the competent authority to approve any deviation of work or excess work. He, however, has not stated about anything more. 55. Pw-5/Sh. Raghunath Singh, conducted the survey of the Imphal Moreh route along with other officials and submitted the survey report vide Ext. 36, dated 27.03.1995. Going by the Ext. 36, he stated that the Imphal Moreh route was mostly hilly and the soil was hard and rocky in nature and that is why the excavation of the cable to depth of 1.65 meters was extremely difficult, therefore, RCC/GI pipes were required to be laid for the protection of SDE pipe cable. It was not possible to dig more than 50 cm deep due to rocks. 56. It was not possible to dig more than 50 cm deep due to rocks. 56. In cross-examination, he has stated that because of law and order situation, sometimes it was difficult to carry out work in day time also and as nobody was willing to go to the site due to law and order situation, he was entrusted to survey the route. He has admitted that there will be definitely some difference between various kinds of soil at the time of execution of the work. Difference may occur in soil condition during pre-execution, execution and post execution due to lacks of time. The depth may vary due to widening of road, landslide, raising of road etc. after execution. 57. Pw-6/S. K. Sikidar has stated all about OFC laying project and he was posted as SDE, Survey from 1996 to 2002 and supervise the work of trenching, laying of OFC and OFC route survey on Imphal Moreh route. He has narrated all detail regarding the procedure followed in the department of Telecom for laying of OFC, since preparation of the survey report, project estimate etc. till the award of contract by the TEC. In his detail evidence, he has exhibited all the relevant documents like tender document, comparative statement and the awarding of work to the contractor with the negotiated rate. It is stated that as per work order, dated 23.06.1996, the work of SS 1 is to be completed 100% within 40 days. Then he stated about the various other documents like measurement book, running bills bearing signatures of all official concerns like JAO, DE and the Director etc., calculations sheet, route index diagram, project estimate, approval letter and except exhibiting all bunch of document, he has not pointed out any sort of discrepancies that has been conducted on the part of the accused person concerned. Rather he has stated that the total project cost was estimated at Rs. 6,77,80,000/- and as per project estimate, provision for cable laying work was Rs. 5,06,96,000/- and which covers all the expenditures from the contractors payment. He further said the amount quoted in SS 1 was within the provision made in the estimate. These estimates were not prepared on the basis of subsection wise. 58. 6,77,80,000/- and as per project estimate, provision for cable laying work was Rs. 5,06,96,000/- and which covers all the expenditures from the contractors payment. He further said the amount quoted in SS 1 was within the provision made in the estimate. These estimates were not prepared on the basis of subsection wise. 58. In cross-examination, he has stated that out of total 11 point jointly checked as per joint inspection memo, there are only 3 point where depth was found less and in 8 point depth was found more than the recorded depth in MB. The variation of depth after 4-5 years of work is possible, as other agencies also worked in the site along with the NH. There is no point available in the route index diagram as referred in the joint inspection report. During execution of OFC route site engineer which is SDE is authorized to decide the category of soil, depth and protection of trenches. During execution of OFC laying work, DE is visiting the sites and verifying the standard of work carried out the contractors. As per clause 192 of tender document, DE was to reopen the trenches at intervals and check the depth of cable and its protection if necessary. He has also stated that the route was not commissioned imediating after completion of work because of so many damages in this route which was commissioned in 2002 after six years of completion of work. After restoration of OFC route, the route was offered for AT (acceptance and testing). In the AT the T & D circle, test check, depth and protection of the cable route and if found fit for commissioning declares commissioned. The department is not doing the Anti Termite treatment in the cable route for keeping protection of RCC concreting and without anti termite treatment, the concreting might or might not be spoil after leap of some year. For extra work in any subsection, normally the DE puts up the file before the Director for approval of the additional/extra work to be carried out in a subsection. Whether the approval is accorded for the payment of bill for SS 1, it is not known as the file note sheet has not been produced for verification. He further stated that the relevant note sheet of subsection file is not shown to him. Whether the approval is accorded for the payment of bill for SS 1, it is not known as the file note sheet has not been produced for verification. He further stated that the relevant note sheet of subsection file is not shown to him. As per seizure memo, the inspector CBI seized subsection file containing MB, AT report for Imphal Moreh OFC route. The file of subsection SS 1 was not produced before him. After completion of work, AT was conducted. In the first running bill, the route index diagram attached was not having any identification marking in the route. So it is not possible to identify any point from joint inspection report. 59. Pw-7/K. K. Das, PW-9/M. K. Deb, has stated about seizure of certain documents by the IO in connection with the case. PW-11/Sh. Jaganath Talukdar has stated about the account maintained in the name of the firm M/s D. S. Trading, proprietor of which is Subha Kanta Borah (contractor). PW12/Sh. K. K. Mishra has exhibited certain documents pertaining to the SS 1 like different running bills, calculation sheet, route index diagram, payment vouchers of running bills, MBs. His evidence is totally silent on any other aspect except exhibiting those documents. In cross-examination he has stated that he was a simply a casual labourer at the relevant time and he seen the documents mentioned above for the first time when it was prepared by JAO and thereafter in the Court and he has no personal knowledge about the same. 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. 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. 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 SDE prepared the MB on the basis of the route index diagram and the bills and the same were rectified by the DE. The MBs had been countersigned by the Director OFC (P) and duly pre checked by the JAO, OFC (P) and finally the Accounts officer, Microwave project passed the bills and accordingly payment was made to the contractor. The CBI conducted the investigation in the year 2003 till that time more than 7 years have elapsed. During this period of seven years, the condition of the cable has been changed due to land slide, soil erosion, damaged caused by the PWD etc, which has been corroborated by several prosecution witnesses, but the CBI has neither collected any report from such organization nor exhibited the same. That CBI has made the joint inspection without the route index diagram inasmuch as the same has not been exhibited in the case. The CBI has also not exhibited the AT report, Joint inspection report prepared by the officers of the AT and the maintenance organization and the joint inspection report prepared at the Directorate level. The sub-section file which contained about the deviation statement and the approval from the authority although seized by the IO but not produced. Due to such serious lapse on the part of the IO, the authenticity of the joint inspection report is itself at shake. The CBI had not made the JAO, the ETR personal, CGM, Task Force NER, as witness and/or accused in the case, under whose supervision, the work was executed and who had verified and/or inspected the work. The CBI had prepared the joint inspection memo at their office and the signatures of the witnesses were taken at their office as well as in the hotel after two days that too without allowing them to verify the figure recorded at the time of the inspection. The witnesses to the joint inspection has not supported the content of the said report save and except their signature in the report. At the time of carrying such joint inspection by the IO, no soil testing expert was with him nor any comparative chart was prepared having regard to the route index diagram to show the actual amount tendered and about the deviation as regard the nature of soil, depth of trench etc. 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-23 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 60. 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. The cables were found at the time of joint inspection at their places and certainly the change of nature of soil and damage to the protection etc. is natural due to the above reasons. It reflects that the MBs have been countersigned by the Director, OFC, duly pre-checked by JAO, OFC (P) and finally passed by Account Officer, Microwave Project and thereafter payment was made to the contractor on the basis of actually executed quantities and at the approved tender risk. The prosecution witnesses as discussed above that the work in question was completed as per tender document and under the supervision of the authority and none of the witnesses speak about any illegality except some deviation of amount in respect of soil and depth of the trench. 61. The notable aspect of the case is that the case was registered on source information by CBI but source is not disclosed. The higher authority of the department has not come forward with allegation and the case was independently investigated by the CBI officials and has conducted the joint inspection by the IO in presence of the police officials and the officials from the BSNL but none of the witnesses have supported the evidence of the IO on material aspect, rather they show ignorance about the findings made by the IO, whereas, the whole case revolves around the joint inspection made by the IO. No implicit reliance can be made upon such joint inspection report, the authenticity of which is itself clouded by shadow of doubts. More so, the witnesses reveals that the loss calculation has been made on the basis of such report, the content of which is not at all proved. Similarly, the depth of the trench and deviation of soil have also been calculated having regard to the findings of the joint inspection report and comparison of the findings with the original status of the project obviously cannot be the same. The findings of the survey report indicates that the projected area was hilly and rocky and prone to the landslide, couple with the oral evidence (particularly in cross-examination) reveals stoutly that condition of soil and depth of trench cannot remain same for variety of reasons as has been discussed above. 62. 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. 62. 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. 63. 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. 64. 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. 65. 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. 66. 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. 67. 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. 68. 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. Moreover, the veracity of the joint inspection report is itself at shake and not a proved document. 68. 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. 69. 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. 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. 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. 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. 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." 70. Although the learned counsel for the CBI in firm vehemence has contended that looking into the allegations leveled against the public servants and the findings of the Trial Court needs to be confirmed, but looking into the manner in which the case was conducted by the IO and non-appreciation of the relevant evidence by the Trial Court and discussion only one portion of evidence ignoring the entire evidence on record amounts to cause prejudice to the case of the defence. Miserably, the learned Trial Court has not discussed the relevant cross-examination of the witnesses and we may say so that even in their examination-in-chief, except exhibiting the documents to the work in question, their evidence is not specific to the allegations leveled. It is the cardinal principles of the criminal jurisprudence that prosecution case is to proof the each and every charges leveled against the accused to the heel and Court is to appreciate the entire evidence either oral or documentary in the touchstone of the authenticity. The Court is not expected to pick and choose one portion of evidence to arrive its conclusion by ignoring the other aspect as to whether said portion of documents is proved or substantiated as per law, which is found missing in this case. So far as the revealment by the witnesses, plausibility of involvement of accused persons with the offence alleged is not forcefully made out, rather it indicates another view that the work in question was carried out without any illegality. 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. 71. 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. 72. 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. 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. 73. It has been held in Sujit Bishwas VS. State of Assam, (2013) 8 JT 570 the suspicion however great it may be, cannot take place of proof and there is a large difference between something that will be proved. In criminal trial suspicion no matter how strong cannot and must not be permitted to take place of proof. This is for the reason that the mental distance may be and must be quite large and divides vague conjectures from sure conclusions. In a criminal case, the Court has a duty to ensure that mere conjecture and suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produce by prosecution before an accused is condemn as convict and the basic and golden rule must be applied. An adverse inference can be drawn against accused only if the incriminating materials stands fully established and the accused is not able to furnish any explanation for the same. 74. The present case is required to be examined in the light of the aforesaid settled legal propositions. 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. 74. 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). 75. 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 bills were duly prepared and pre-checked by all the authorities having regard to the MBs and the Accounts Officer finally passed the bill without recording any sort of discrepancy on record. The learned Trial Court centered around his discussion only on the running bills which shows some excess amount but has not at all discussed all the material evidence on record. The appreciation of all evidence on record is a must prior to reaching a conclusion. As has been held in Sujit Biswas, in criminal case charge has to be proved by clear, cogent and unimpeachable evidence and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based on the comprehensive appreciation of all features of the case as well as the quality and credibility of the evidence brought on record. The Court must ensure that the miscarriage of justice is avoided and in the facts and circumstances of the case so demand, that the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, prevail or nearly a probable doubt but a fair doubt that is based upon reason and common sense. Further it is held that in the circumstances proved in a case consistent either with the innocence of the accused or with his guilt, that the accused is entitled to benefit of doubt. The Section 415 of the IPC defines cheating as under : "Section 415 - Cheating - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat'. An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied : (i) deception of a person either by making a false or misleading representation or by other action or omission; (ii) fraudulently or dishonestly inducing any person to deliver any property; or (iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit. For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out. One of the ingredients of cheating as defined in Section 415 of the Indian Penal Code is existence of an intention of making initial promise or existence thereof from the very beginning of formation of contract." 76. 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." 77. (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." 77. 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 that the appellants/the public servants obtained any amount by corrupt or illegal means and conviction of the public servants/the four 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. 78. 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. 79. 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. 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. Return the LCR.