JUDGMENT : Rumi Kumari Phukan, J. As both appeals arose from the same judgment in special case 6/2006 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 282/2013 and Mr. D. Talukdar, learned counsel for the appellant in Crl. Appeal 328/2013. 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. Hence, 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. 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. 4. 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. 5. After successful completion of acceptance testing, the route was handed over to the Eastern Telecom Region for maintenance purposes. 4. 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. 5. An FIR was lodged by the Inspector of Police of the CBI, Silchar on 26.10.2002 to the effect that they got a reliable information that the accused public servants and different contractors while laying optic fibre cable which was awarded by the Divisional Engineer (OFC) to different contractors during 1995-96 for execution in different sub-sections 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 328/2013 (the appellant Sh. Babul Kalita was awarded the contract to execute the OFC laying in respect of SS 17 of Imphal Moreh route) thereby caused undue loss to the exchequer by committing the following omissions and commissions. (1) Approval of tenders at exorbitant rates much higher than the estimated rates. (2) Deviations in the quantity of hard and rocky soil by increasing the same much more than the quantities indicated in the tenders, certifying the execution of increased quantities and causing payments accordingly by passing the questioned bills, apparently because the rates for these items were much higher than the estimated rates. (3) Deviations in the execution of quantities of works for soft soil by decreasing the same apparently to favour the contractors because the rates of these items were lower than the estimated rates. (4) Deviations in the concreting works by showing executions of increased quantities of concreting works against the tendered quantities. (5) Falsely certifying the unwarranted concreting works and RCC/GI pipes laying and causing payments by passing the bills of the contractors for these items. (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. (5) Falsely certifying the unwarranted concreting works and RCC/GI pipes laying and causing payments by passing the bills of the contractors for these items. (6) Falsely certifying higher depth than the actual depths and excess payments against these items. (7) Payments in excess of expenditure sanctioned in violation of rules. 7. Further it is alleged that the accused public servants and the contractors conspired among themselves and in pursuance of the said conspiracy, excess quantity of some items in the works was shown to have been executed unauthorizedly without ex-post-facto approval from the competent authority and payments were made at the tendered approved rate instead of departmental rates causing wrongful gain to the appellants to the tune of Rs. 14,01,693/- and corresponding loss to the department. At the time of random technical checking conducted by the CBI during preliminary inquiry reveals that the appellants with collusion with the contractor have cheated the department by way of excess payment to the contractor towards execution of excess quantity of work without approval from the competent authority and that too at the approved rate instead of departmental rate and by making false entries in the MBs showing execution of various works which are not actually executed as recorded in the MB. 8. During investigation, the IO visited the spot, recorded statement of the witnesses, seized a number of documents and after obtaining necessary sanction against the public servants submitted charge-sheet u/s 120B/420/468/477A of the IPC read with Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 against all the appellants. 9. The learned Trial Court accordingly took cognizance of the offence against all the accused appellants and framed charge under section 120B/420 IPC against all the accused appellants and also framed another charge under Section 13 (2)/13 (1) (d) of the P.C. Act against the accused appellant Ram Prashad and M. N. Khan to which all of them pleaded not guilty. 10. Prosecution examined as many as 20 witnesses and defence did not examine any witness. The plea of defence is of total denial. 11. The learned Trial Court on conclusion of trial convicted and sentenced appellants Ram Prasad and MN Khan to r/i for 1 years with fine of Rs. 20,000/- u/s 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 and in default to s/i for 3 months. 12. The plea of defence is of total denial. 11. The learned Trial Court on conclusion of trial convicted and sentenced appellants Ram Prasad and MN Khan to r/i for 1 years with fine of Rs. 20,000/- u/s 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 and in default to s/i for 3 months. 12. Appellant Babul Kalita is sentenced to r/i for 1 year u/s 120B of the IPC with fine of Rs. 10,000/- and r/i for 2 years u/s 420 of the IPC with fine of Rs. 10,000/-. 13. All the sentences are directed to be run concurrently. 14. Aggrieved by the aforesaid order and judgment of the conviction present appeals are preferred. 15. Appellants in criminal appeal 282/2013 were working as DE(OFC) at Imphal and the appellant in criminal appeal 328/2013 was a contractor with the department. 16. I have heard the argument of learned counsels for both the parties at length and there is deliberation from both the sides on the evidence on record and the appreciation thereof. It has been vehemently contended by the learned counsel for the appellants that without proper appreciation of entire evidence on record, the learned Trial Court has come to a conclusion on the basis of 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: 17. On behalf of the two appellants/officials in the capacity of DE and there function is limited to inspect the work and in according to the clause 132 of the tender document, the inspection of the work is discretionary but not mandatory. Contention raised by appellants: 17. On behalf of the two appellants/officials in the capacity of DE and there function is limited to inspect the work and in according to the clause 132 of the tender document, the inspection of the work is discretionary but not mandatory. The clause 132 is reproduced below - "All work under or in course of execution or executed in pursuance of the contract shall at all times to open to the inspection and supervision of the Engineer-in-Charge and his authorized subordinates, and the contractor shall at all times during the usual working hours, and at all other times at which reasonable notice of the intention of the Engineer-in-charge or his subordinate, to visit the works, shall have been given to the contractor, either himself be present to receive orders and instructions, or have a responsible agent duly authorized in writing present for that purpose. Orders given to the contractor's agent shall be considered to have the same force as if they has been given to the contractor himself. The work during its progress can also be inspected by Director, Telecommunications and Chief General Manager Telecom." 18. It has been urged that in accordance with the aforesaid provision, the Director, Shri M.N. Khan proceeded to the inspection site in Manipur. His Head Quarter was at Guwahati. He had taken Sh. Ram Prashad, DE (Survey) and Sh. A.S. Deb, SDE (Survey) to check the quality of work by conducting sample check on Imphal-Moreh and Imphal-Churachandpur route. All the three proceeded to Imphal on 09.12.1996 and returned on 13.12.1996. They remained in Imphal for 3 days and conducted sample check. Neither Ram Prashad nor A.S. Deb was posted in the OFC project as executing officer. They were never associated in the executing work. Their duty was only to conduct survey. The PW-8 Sh. S.K. Sikidar has stated that Sh. Ram Prashad was not posted in the project as executing officer. Instead, he was posted as DE in Survey unit. The IO (PW-20) has admitted as follows:- "It is correct that the Director has no field duties but he has right to inspect the works as per clause 132 of tender document. It is correct that Sri Ram Prashad was posted DE (Survey) and not as DE, OFC. Instead, he was posted as DE in Survey unit. The IO (PW-20) has admitted as follows:- "It is correct that the Director has no field duties but he has right to inspect the works as per clause 132 of tender document. It is correct that Sri Ram Prashad was posted DE (Survey) and not as DE, OFC. It is correct that Sri M.N. Khan, the Director OFC had taken Sri Ram Prashad and A.S. Deb for conducting sample check. It is correct that the sample check was conducted and a report dated 18/12/96 was submitted by Ram Prasad which he mentioned as under "Sample check was done by the under signed along with Director, OF(P) GM and SDE OFC GH. The sample check was done over various trial pits in SS-17 and following observations were made:-Regarding depth:- It is observed that the average depth of the trench is varying from 80 cm to 100 cm. As such the bill is to be modified accordingly. It is needful to mention that it was not possible to ascertain by sample checking to evaluate cent percent correct position of the depth of trench and actual status of soil condition whether and how far hard or rocky as the trench had already reinstated. The concreting was done for more than 88% of the 4000m route length as it had already been claimed in the bill and which had been duly certified by the site in-charge. Moreover, it is concluded from the observation that the overall value of bill may be reduced by 5%." The above report was approved by competent authority. The sample check was conducted by Sri Ram Prashad and he submitted his report as mentioned above. On the basis of the said report, the bill amount was reduced by 5%. That's why Sri M.N. Khan and Ram Prasad were made accused." 19. It is, therefore, submitted that Sh. Ram Prashad was not the executing officer. He did not supervise the work of digging of trenches and laying of cable. As per orders of the Director Sh. M.N. Khan, he had conducted sample test check of the work that was already executed by the executing staff. Whatever he noticed during sample test checking, he submitted his report to the Director. The officer who never executed any work; but, conducted merely sample test check, has been dragged in the present case. As per orders of the Director Sh. M.N. Khan, he had conducted sample test check of the work that was already executed by the executing staff. Whatever he noticed during sample test checking, he submitted his report to the Director. The officer who never executed any work; but, conducted merely sample test check, has been dragged in the present case. Thus, the appellants are not at all blameworthy for any kind of discrepancy in the work executed by the executing staff. The Trial Court misdirected himself merely by reading the first sentence of the report of Sh. Ram Prashad without going through the entire report. The DE & Director both applied their mind and decided to reduce the bill by 5%. The Trial Court misdirected himself by assuming that they must have reduced the bill by more than 5%. 20. Attention has been drawn to the PW-12, Sh. S.N. Malakar, DETP-II, Jorhat, who was specially deputed for repairing of the work in the aforesaid routes and in his cross-examination, he has stated that - "It is correct that I had been specially deputed to commission the OFC cable on Imphal Moreh and Imphal Churachandpur Route. OFC cables on both the routes were damaged due to bad pulling of cable, road widening by PWD, landslide etc. During fault repairing of OFC, I noted at many points that OFC cables was damaged due to operation of JCB machine by the PWD staff. I did not prepare any route index diagram after I took up repairing work. After repairing, the cable was offered to A/T. The AT team found that the depth and protection of OFC cable were intact in the route index diagram but the depth of the cable was not standard depth i.e. 165 meter in ordinary soil and 90 cm in rocky soil. The AT raised objection that depth of the cable was less than the standard depth of 165 cms. The AT team directed me to seek relaxation of depth from CGM NETF. After obtaining relaxation from CGM, I again offered the OFC cable to AT team. The AT team cleared the OFC cable as it was found within their parameters. AT team is not under the administrative control of the CGM NETF. It is under the control of T&D circle Jabalpur. After AT clearance, I offered the cable on Imphal Moreh and Imphal Churachandpur routes to maintenance organization. The AT team cleared the OFC cable as it was found within their parameters. AT team is not under the administrative control of the CGM NETF. It is under the control of T&D circle Jabalpur. After AT clearance, I offered the cable on Imphal Moreh and Imphal Churachandpur routes to maintenance organization. A joint inspection was conducted by OFC staff and also maintenance staff. During joint inspection depth and protection of cable were again checked as per route index diagram. The depth and protection of the cable was found correct as per route index diagram only thereafter maintenance staff took over the route. Maintenance staff consisted of Sri Ashok Kumar, DETP/NETF, Guwahati, E. Swer, DE (MTCE), ETR, Imphal, S.N. Malakar, DETP/NETF, Guwahati, S. Mariapragasam, SDE, OFC, NETF, Imphal, W. Inaopi, JTO (MTCE) ETR, Imphal. After inspection a joint inspection memo DE/OFC/GH/G-11/99-2000 dated at Imphal 12/10/99 was prepared. This joint memo was signed by all the persons including me. After handing over the cable to maintenance staff, the responsibility of OFC executing staff came to end and further responsibility is transferred to maintenance staff. The maintenance staff is not under the control of CGM, NETF, instead, the maintenance unit is under administrative control of CGM, ETR, Kolkata. Not a single point in joint inspection memo (ext-17) co-relate with the route index diagram. I cannot say if this joint inspect memo (ext-17) pertains to this SS since no point co-related. It is not possible after 7 years of the execution of the work that the protection of the cable, depth of trenches and category of soil will remain same." The IO (PW-20) M.T. Mang has admitted all these facts in his cross-examination in the following terms:- "It is correct that the A/T was conducted by the office T&D (Technical & Development) circle. The controlling officer of the AT is the CGM, T&D Circle Jabalpur. It is correct that CGM NETF has no control over them. It is correct that the officers of AT verified the depth and protection of the cable as per Route Index Diagram. It is correct that the officers of AT team commissioned the cable only when they found it correct. It is correct that I had seized AT report. It is correct that after AT, a joint inspection was conducted by the officers of OFC and ETR (maintenance). It is correct that 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. 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." 21. It is submitted that the testimony of Sh. S.N. Malakar (PW-12) and the admission of the same by IO (PW-20) reveals that the work executed by the OFC staff 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 in Route Index Diagram, the Measurement Book etc. The IO had admittedly seized all those documents; but, he deliberately did not place those documents on record to suppress the lacunae of the prosecution case. It is stated that the responsibility of the appellants 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. 22. 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. The sample checking was conducted only at 7 points of about 1 metre length each in a span of 4 Kms. It is, therefore, evident that the present case has been instituted by checking only 0.175% 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. 23. It is, therefore, evident that the present case has been instituted by checking only 0.175% 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. 23. It has been admitted by the IO (PW-20) 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. It is, therefore, evident that the estimated figures mentioned in the tender document are fictitious. Consequently, they are bound to change. The PW-14 Sh. S.R. Bali, who prepared the project estimate, has stated that the estimated cost of the section is less than the charges of trenching alone. Obviously, the estimated cost is patently wrong. 24. According to 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 clauses 46 & 47 are reproduced here-in-below - "46. The quantities/figures indicated in the tender schedule are approximate and are subject to change. Any change effected shall be binding on the tenderer/contractor as though included in the original tender schedule and any such change will not make the agreement void and it is therefore essential that the tenderers binding all the documents carefully and not commit any mistake in analyzing the rates quoted and remain binding notwithstanding any changes as aforesaid. No revision of tendered rates shall be considered on any ground whatsoever. 47. The quantities indicated in tender schedule shall not be considered as representing firm/final quantities. All works shall be measured by Divisional Engineer or his authorized representatives. Amount payable to contractor shall be on the basis of actual work done by him at the rate approved by department." It is, therefore, contended by the learned counsel for the appellants that (a) No excess payment has been made to the contractor. 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, contended by the learned counsel for the appellants that (a) 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. (b) 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. (c) 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. This fact has also been stated by PW-12. The IO has also admitted that according to Survey reports, the entire route is hilly and rocky. (d) The points of inspection report of CBI do not correlate with the corresponding point on Route Index Diagram. This fact has been stated by PW-8 Sh. S.K. Sikidhar and PW-12, Sh. S.K. Malakar who are technically experts. This report itself is not reliable. (e) 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. Contention raised on behalf of the appellant/contractor 25. 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. 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. 26. Further it has been submitted that the evidence on record, runs counter to the allegation made against the appellant which is not at all suggestive of preparation of bill in excess manner. Most of the witnesses have stated that bill was paid on actual work done by the contractors which is at par with the terms of the tender agreement and as such there cannot be an allegation of raising false bill on the part of the contractor. Tender documents itself provide that final bill may vary subject to the actual work done by the contractor. Accordingly, it has been urged that in view of the evidence on record about the work site and the hilly condition etc. and in terms of the tender document, the variation of bill amount itself is not suggestive of criminality on the part of the contractor. Accordingly, it has been urged that in view of the evidence on record about the work site and the hilly condition etc. and in terms of the tender document, the variation of bill amount itself is not suggestive of criminality on the part of the contractor. It contends that there is absolutely lack of evidence suggestive of criminal conspiracy on the part of the contractor with the public servants at the time of awarding contractor nor there is requisite evidence to reflect the dishonest intention on the part of the accused appellant to cheat the government. But however, the learned Trial Court relying only on the evidence of IO and the joint inspection report that was made after 7 years has held the accused appellants guilty without proper appreciation of entire matters on record, hence, finding of guilt at the accused appellants is not sustainable. Relevant Evidence on record: 27. The whole prosecution case centered around the joint verification report, vide Ext. 17, dated 25.09.2003, that was conducted by the IO in presence of witnesses. So let us examine the said report. PW 4/Sh. S. W. Sunil Singh, PW-13/Sh. L. Michikanto Singh, PW-18/Sh. B. Nag Choudhury and PW-19/Sh. Soibam Mamon Singh are the witnesses to the joint inspection report prepared by the IO (PW 20). 28. As regard the said inspection, PW 20 has stated that at the time of joint inspection they found that the nature of soil is different and RCC protection claimed to have been provided were not available even though it was claimed and paid accordingly. Almost the entire route on the sub-section 17 mentioned as rocky soil with RCC protection but at the time of inspection there was no such rocky soil and RCC protection thereby caused substantial loss to the corporation. Nature of soil was changed and the route index diagram for some length from rocky soil to hard soil by Sh. Ram Prashad and he recommended reduction of 5 % from the first running bill of the contractor. Sh. Ram Prashad also falsely certified the bill that test checked was done and ok even though there was no RCC protection and Sh. M. N. Khan has approved the recommendation for reduction of 5 % only. 29. In his cross-examination, he has stated that the quantities and figures in the tender document were not as per survey report. Sh. Ram Prashad also falsely certified the bill that test checked was done and ok even though there was no RCC protection and Sh. M. N. Khan has approved the recommendation for reduction of 5 % only. 29. In his cross-examination, he has stated that the quantities and figures in the tender document were not as per survey report. The exact quantity of different classes of soil/works were not mentioned sub-section wise. The cost OFC laying cannot be same for all the 27 sub-sections. It is admitted that contractor were paid at the rate mentioned in the work order and the site Engineer is the competent authority to ascertain the depth, size of trench and category of soil. It is correct that it is the discretion of the DE who conduct the test check, but not mandatory. No sub-section wise detail estimate was prepared and without detail estimate for each sub-section, the cost and quantities cannot be worked out. He has also admitted about the A/T conducted by the office T & D circle who verified the depth and protection of the cable as per route index diagram and A/T commissioned cable only when they found it correct. A joint inspection was also conducted by the OFC and ETR who verified all about the depth and protection etc. and thereafter, a joint inspection was carried at the Director level and he seized all those documents pertaining to A/T report, both the joint inspection report but he did not enlist those document in the Charge-Sheet. SS 17 falls in the hilly and landslide prone area and figures and quantity in the tender document was not according to survey report. The cost of OFC cable laying cannot be same for all the sub-sections as mentioned in the tender documents. It is correct that the contractor is paid at the rate mentioned in the work order and the Site Engineer is the competent authority to ascertain depth, size of trench and category of soil. He also admitted that no sub-section wise detail estimate was prepared and without detail estimate for each sub-section, the cost and quantities cannot be worked out. He has also admitted about the A/T conducted by the office T & D circle, the controlling officer of A/T is CGM. The A/T commissioned the cable after verification of depth and protection etc. after carrying out a joint inspection. He has also admitted about the A/T conducted by the office T & D circle, the controlling officer of A/T is CGM. The A/T commissioned the cable after verification of depth and protection etc. after carrying out a joint inspection. He has admitted all about the checking by the Director OFC and the Director Maintenance but the said documents i.e. the A/T report, joint inspection report and the new route index diagram, not enlisted with the Charge-Sheet. Insurgency was there at the time of the execution of cable laying work in the said route and Revolutionary People Front from Manipur operates at that time. 30. Further he stated that after taking over the OFC cable officers of the maintenance maintain the cable, he does not know role of officers of OFC after handing over the cable to ETR (maintenance staff). He did not associate any officer of ETR during the joint inspection. The cable was found in the working condition during the time of his inspection and was under the control of ETR. He has not seized any report from any other agencies as PWD, Electricity, Telephone, Local cable maintenance telephone officers and any officer of ETR about the damage caused to the cable due to militancy, landslide, widening of road, heavy rainfalls etc. etc. He has admitted that the payment to the contractor is made on the basis of actually executed quantities and the approved tendered rates and the government is represented by the Site Engineer. The headquarter of DE, Director is in Guwahati and the work was executed at Manipur. 31. Further, he has stated that tender rates were approved by the A.C.D., the Director OFC, and M. N. Khan and Ram Prashad have no role in approving tender rates and the JAO ascertains that the bills are prepared according to the order and DE passed the bill only when the same is pre-checked by JAO. While mentioning about the deviation of tendered amount of Rs. 12.2 Lakhs as per office note sheet 4. He has also stated that the final bill was passed only after obtaining approval from the CGM. The same has been stated by the witness, S. C. Pal, before him that he prepared the revised project estimate based on actual expenditure while working as DE and the same was forwarded to the Director, OFC and the file was in the Office of CGM. The same has been stated by the witness, S. C. Pal, before him that he prepared the revised project estimate based on actual expenditure while working as DE and the same was forwarded to the Director, OFC and the file was in the Office of CGM. According to him, he brought tender document, MB, route index diagram and the bills for conducting joint inspection and the MB member gone through those documents. 32. Pw 4, Sh. S. W. Sunil Singh has stated that on 6 locations of the aforesaid SS 17, the depth of trench, nature of soil and protection were found different and higher than mentioned in the MB. PW 13, Sh. L. Michikanto Singh, who was another witness to the joint inspection report has simply stated about his presence at the time of inspection but he could not say about the other facts like location of pits and route index diagram etc. and he signed the same as directed by the IO without knowing its content. 33. Similarly PW-18, B. Nag Choudhury, SDE Silchar, BSNL is a mere signatory to the said joint inspection report Ext.17 without narrating any details about the findings by the I.O. The statement of PW-18 is not supporting the testimony of the I.O while he says that no any document like measurement book, route index diagram, tender documents were shown to him or anybody else at the time of verification. The I.O himself decided about the category of soil, location of pits etc. The figures mentioned in the joint inspection memo with regard to the date, category of soil and protection as per MB/Bill were not verified from MR/Route index diagram in his presence, though he tried to co-relate the points of joint inspection with the route index diagram but the measurement does not tally with the route index diagram. He has also categorically admitted about the three level inspections by AT the time of commission of OFC, by the Director level inspection and another inspection carried at the time of repairing, as stated by other witnesses. 34. The version of another witness PW-19/Shoibam Mamom Singh to the joint inspection is more surprising who stated that he was standing at the time of inspection and signed the Ext. 34. The version of another witness PW-19/Shoibam Mamom Singh to the joint inspection is more surprising who stated that he was standing at the time of inspection and signed the Ext. 17 the joint inspection memo, as directed by the I.O but he has no knowledge about the type of inspection that was carried out by the I.O. 35. As is evident, none of the witnesses has supported the joint inspection report as prepared by the IO (PW-20) M. T. Mang and the evidence of IO that he carried the tender documents, MB, bills, route index diagram at the time of conducting joint inspection and every member/witness went through the documents, is nullified by all the witnesses accompanied him. In his cross-examination, he has admitted that he seized sub-section file of Imphal-Moreh route SS 17 along with note sheets and tender papers etc. but no sub-section wise detail estimate was prepared. He also admitted in cross-examination that without detail for each sub-section, cost and quantities cannot be worked out. He has also stated 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. He admitted that CGM NETF has no control over them and officers of AT verified the depth and protection of the cable as per Route Index Diagram. The officers of AT team commissioned the cable only when they found it correct and the report of AT was seized by him. After AT, a joint inspection was conducted by the officers of OFC and ETR (maintenance) and they also verified the depth and protection of the cable as per Route Index Diagram and he seized said joint inspection report. It is also admitted that a depth of check was also made at the Director level in presence of the Additional Director and Director (Maintenance), Shillong and he seized the report also but he did not enlist those documents i.e. A/T report, joint inspection report along with the charge sheet. 36. He further stated that the actual depth of cable and the protection applied to entire stretch of Imphal-Moreh route cannot be ascertained without reopening the entire trench. After conducting joint inspection between OFC officers and ETR officers, the cable was handed over to ETR officer for maintenance. After taking over the OFC cable from OFC, the officers of ETR (maintenance) maintain the cables. After conducting joint inspection between OFC officers and ETR officers, the cable was handed over to ETR officer for maintenance. After taking over the OFC cable from OFC, the officers of ETR (maintenance) maintain the cables. He does not know the role of the officers of OFC after handing over the cable to ETR (maintenance staff and if the OFC officers can interfere in the working of the maintenance staff. He did not associate any employee/officer of ETR (maintenance) during investigation or during joint inspection conducted by CBI. It is also stated that 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 and at that time he had conducted the joint inspection and carried out the investigation. He further stated that he 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 and he did not include any of the staff of the ETR in the list of witnesses. The investigation was carried out with regard to irregularities in the trenching and laying of cables. It is also admitted that he had inspected the site in the year 2003 whereas those cables were laid in the year 1996-97 and he had not seized the route index diagram, MBs prepared by Sh. S. N. Malakar during OFC damaged repairing work. 37. He further admitted that he had seized the report of the AT that was conducted after the damaged repairing work was completed by S. N. Malakar and he has not seen the said AT report in the Court on that day. He had enquired that the AT unit comes under CGM, Technical & Development Circle, Jabalpur and also enquired whether once the cable is commissioned the same is maintained by maintenance unit under ETR, Kolkata. He did not associate any person from ETR Kolkata while conducting the joint inspection. SDE is the person who prepares the MB, route index diagram and the bills and these are ratified by DE. He did not associate any person from ETR Kolkata while conducting the joint inspection. SDE is the person who prepares the MB, route index diagram and the bills and these are ratified by DE. These MBs had been counter signed by the Director OFC (P) and duly pre-checked by the JAO, OFC (P) and finally passed by Accounts Officer Microwave Project. He did not seize any inspection reports by DE and Director, OFC. 38. Most importantly he has admitted in his cross-examination that the final bill was passed only after obtaining approval from the CGM and he has also admitted about the statement of S. C. Paul/PW-9 who stated before him about the revised project estimate prepared by him on the actual expenditure while working as DE and was forwarded to the Director for sanction. Further he has also admitted that the payment to the contractor is made on the basis of actually Exhibited quantities at the approved tender rates. On the next he has admitted another vital aspect that location of the pits cannot be co-related with the corresponding points in the route index diagram. eHe 39. The whole crux about the authenticity of the joint verification report itself became blurred when the same was not carried out having regard to the most relevant documents while carrying out the inspection. The witnesses as well as the I.O himself has admitted that they could not relate the pits with route index diagram then how it can be ascertained that the pits that was located by the I.O was the actual location as indicated in the route index diagram. Further none of these witnesses has spoken about the irregularity in preparing the MB and that there is no detail comparison of the relevant documents as to how loss has been calculated. Mere exhibiting of documents by prosecution is not enough unless the content as well as the necessary facts and circumstances sought to be proved is brought on record by proper evidence, which is not found in the given case. 40. Further, the evidence of PW 8/Sajal Krishna Sikidar, who was posted in the Telecom Department speaks about the tender documents and the bill pertaining to SS 17 and all other relevant documents but he has not uttered any irregularity in the entire project and has simply exhibited bunch of documents. 40. Further, the evidence of PW 8/Sajal Krishna Sikidar, who was posted in the Telecom Department speaks about the tender documents and the bill pertaining to SS 17 and all other relevant documents but he has not uttered any irregularity in the entire project and has simply exhibited bunch of documents. Some relevant portion of his documents is quoted below - "The tender quoted rates are normally considered to be on the higher side where the rates are quoted 25% above the estimated cost. But in some circumstances the competent authority is to decide whether the work could be allotted when the rates are very high. The competent authority also sometimes considers following factors such as the remoteness of work site, insurgency prone areas and availability of labourers along the work site while accepting the rates quoted. In North East normally 12.5% of the estimated cost is added for less efficiency of labourers. Moreover time to time the department is receiving the guidelines from the DOT HQ with regard to the enhancement of the estimated cost. The task force organization in the North East including OF Division were guided by the rates based on BSP (Business Strategic Plan of the Department), Booklet issued by the DOT HQ which are prepared based on the CPWD, Delhi schedule of rates. Ram Prasad was not the member of TEC. But I was the member of TEC. Mr. M. N. Khan was not posted as director OF(P) Guwahati when the tender processing was completed and the work order was issued. Mr. Ram Prasad was posted as DE OF Survey when the tender processing was completed. Sri Ram Prasad was not posted as DE OFC (P) during the period I was posed as DE OFC. During tendering process and approval of rates Sri Ram Prasad who was DE Survey at that time and Sri M. N. Khan who was later posted as Director OF(P) had no role in the process. As per survey report from Tegnopal to Moreh the observation made therein shows that the whole section is rocky and where as these observations are not mentioned in tender schedule of item of SS 17 of Imphal Moreh route. If the quantity of items are varied or enhanced in item No. 10.2, 10.3 or 10.7 the bill amount of the particular sub-section will be increased proportionately. If the quantity of items are varied or enhanced in item No. 10.2, 10.3 or 10.7 the bill amount of the particular sub-section will be increased proportionately. I have perused the route index diagram and joint inspection report and find that none of the six points where CBI had conducted joint inspection had figured in the route index diagram. The AT team verified the depth and protection of the route as per route index diagram and after being satisfied that the standard is maintained for laying the cable, the route is commissioned. After commissioning of the route, a joint inspection is carried out with maintenance organization for handing over the route to the maintenance. Here also during joint inspection the depth and protections are verified by the maintenance organization with route index diagram. During rainy season there are possibilities of damages being cause to OFC route resulting from landslides and sometimes cable being washed away because of heavy rainfall. The cable also gets damaged during road widening work carried out by the PWD and expansion of drain etc. After digging the trenches the trenches are re-filled with sand and soft soil as per the instruction. If after some period the same trenches are dug the original soil category may not be available." 41. Pw-1/K. C. Gupta and PW-3/Mohender Singh has accorded porsecution sanction against the accused public servants Ram Prashad and M. N. Khan and PW-3 in his cross-examination has stated that the DOT was not inclined to accord prosecution sanction initially and after the meeting held in the Office of Chief Vigilance Commissioner where the Officers of CBI as well as DOT was present, the CVC communicated its advice to the DOT that DOT should not accord for prosecution of the present accused persons. According to the PW 5, he conducted survey in respect of the Imphal Moreh route and Imphal Churachandpur route vide Ext. 18, where he has suggested that as the aforesaid route falls within the hilly terrain comprising rocky, so he suggested for providing protection of OFC by laying RCC and GI pipes. 42. Pw-2/Sh. Govinda Kalita, in his evidence, has stated about the procedure about the payment of bills that bills for the contractors are in form of running bill and after preparation of bills by contractors, those are given to the office of DE (T) and thereafter, DE submit the same to JTO/SDO. 42. Pw-2/Sh. Govinda Kalita, in his evidence, has stated about the procedure about the payment of bills that bills for the contractors are in form of running bill and after preparation of bills by contractors, those are given to the office of DE (T) and thereafter, DE submit the same to JTO/SDO. Thereafter, bills were checked as per MB by the SDO and sent to the DE. After checking the bill by JAO, DE. OFC project passed the same countersigned by the Director OFC. Then the bills along with the MB sent to the Accounts Officer, and thereafter, concerned clerk made the pay order and sends the Accounts Officer concern. Those pay orders were submitted to cashier for preparing the cheque and only thereafter, PW-2, being the cashier, prepared the cheque and send the same to the Accounts Officer and finally the cheques were verified again on the part of PW-2 and then he handed over the cheque to the concerned contractor and details of same is entered into the cash book. After giving the above statements, PW-2 has exhibited different running bills pertaining to SS 17, cash book, cheque, description of works attached with the bills, MB, containing signatures of all the official concern and while saying so, he has not pointed out anything about the discrepancy in any of those documents. In cross-examination, he has stated that tender quantity is always subject to changes, which is also indicated in Clause 46 & 47 of the tender documents. Further he stated that the payment to the contractor is made on the basis actually executed quantity. It has nothing to do with the estimated quantity. The site engineer is the charge of the work and sole authority to decide the depth of the trench and type of soil. Test check was done as per Clause 192 NIT. As per the Clause, the DE before passing the bill for section concerned will carry test check if necessary, by opening the trench and bill will be passed only when he is personally satisfied of correctness of the entire MB and other documents. An amount of Rs. 2,00,300/- has been shown as an excess payment without any estimate and is merely the difference between the estimated cost and the executed cost. An amount of Rs. 2,00,300/- has been shown as an excess payment without any estimate and is merely the difference between the estimated cost and the executed cost. As per survey report, it will be very much difficult to dig cable trench to the depth of 1.65 meters and hence RCC and GI pipes have to be laid for protection of HDPE pipes. His evidence is totally silent as about the illegality in any of the documents referred which he exhibited. 43. Pw-6/Sh. Dharmeswar Das & PW-11/Sh. Jibotosh Biswas are mere seizure witness to the documents by which the IO seized the name of the officers posted in their department and the four cheques that was issued to the contractor Babul Kalita. Similarly, the evidence of PW-7/Sh. A. K. Chanda said about the tender process, allocation of fund, preparation of estimates pertaining to the work in question and has exhibited relevant documents regarding to all the tender process and nothing more. 44. The evidence of PW 10, Sri Thoiba Singh has stated about the seizure of certain documents like sub-section file in respect of SS 17, tender papers, MB etc. by the IO but the said documents were not produced in course of trial nor submitted along with the Charge-Sheet, whereas, it is also admitted by the witnesses that all sort of deviation statement and the approval against excess amount was dealt in the sub-section file. The PW 12, Shailendra Malakar, the then DE OFC, Microwave Project was assigned to task of repairing of damage of OFC cable laying in the SS 17, accordingly, he carried the repairing work. He has specifically stated that project estimate which was sent to the Director OF (P) was sanctioned by CGM vide exhibit 21, letter dated 25.09.1995, which was also signed by the DE Planning and Director OFC. He also prepared revised project estimate on 14.02.2000, which was sent to the Director OFC which was prepared based on the rates of the strategic business plan and annual operating plan. Although he has stated about the increase of approved tender amount against the estimated cost and has also stated that for excess work approval has to be obtained from the Director, OFC, but he has also stated that the bill is paid on the basis of rate approved by the Director with reference to the estimated cost. Although he has stated about the increase of approved tender amount against the estimated cost and has also stated that for excess work approval has to be obtained from the Director, OFC, but he has also stated that the bill is paid on the basis of rate approved by the Director with reference to the estimated cost. With regard to the variation of types of soil where there is excess work in terms of soil of the departmental rate is applicable. In case of depth relaxation, CGM is the competent authority to make such relaxation. His statement in cross-examination is relevant which is reproduced below - "It is correct that without detailed estimate the estimated cost cannot be ascertained for the concerned sub-section. No detailed estimate was prepared for any of the sub-section on Imphal Moreh and Imphal Churachandpur OFC route. It is correct that the estimated cost shown in the tender document is patently wrong. This resulted due to fault of the administration. So far SS 17 is concerned after eight KMP from Imphal the entire Imphal Moreh route was hilly and rocky area. It is correct that tendered quantity is not based on survey report and also are not according to the terrain of the route. The actual cost of execution of work is bound to increase. The tender rates are approved by director only and DET has nothing to do with the approval of tendered rate. DET is responsible for execution of work as per specification of the tender. Estimated quantity and cost are not firm and final they are subject to change due to obstruction of road, diversion, change of category of soil at the time of execution of work, length of trench increases. During the course of repairing of OFC, I noted that many points that OFC cable have been damaged due to operation of JCB machine by PWD staff. After repairing, the OFC was offered to AT. The AT team found that the depth and protection of OFC cable were intact in the route index diagram but the depth of the cable was not standard depth i.e. 165 meter in ordinary soil and 90 cm in the rocky soil. The AT raised objection that depth of the cable was less than the standard depth of 165 cms. The AT team directed me to seek relaxation of depth from CGM NETF. The AT raised objection that depth of the cable was less than the standard depth of 165 cms. The AT team directed me to seek relaxation of depth from CGM NETF. After obtaining relaxation from CGM, I again offered the OFC cable to AT teams. The AT team cleared the OFC cable as it was found within their parameters. AT team is not under the administrative control of the CGM NETF. It is under the control of T &D circle Jabalpur. After AT clearance, I offered the cable on Imphal Moreh and Imphal Churachandpur routes to maintenance organization. A joint inspection was conducted by OFC staff and also maintenance staff. During joint inspection depth and protection of cable were again checked as per route index diagram. The depth and protection of the cable was found correct as per route index diagram only thereafter maintenance staff took over the route. After handing over the cable to maintenance staff, the responsibility of OFC executing staff came to end and further responsibility is transferred to maintenance staff. The maintenance staff is not under the control of CGM, NETF. Instead, the maintenance unit is under administrative control of CGM, ETR, Kolkata. Not a single point in joint inspection memo (ext-17) co-relate with the route index diagram." 45. The evidence of PW 14, PW 15 and PW 16 are of formal in nature who has basically exhibited the different documents pertaining to the aforesaid project like survey report, project estimate, tender documents etc. etc. The PW 17 has exhibited the loss calculation sheet vide exhibit 40, which was prepared on the basis of the joint inspection report made by the IO, as directed by him, but he has not verified the measurement from the route index diagram and other relevant document as the same was not produced before him, so he has serious doubt about the said loss calculation report. Obviously, such a loss calculation report which is not substantiated by the maker itself is of no value at all. FROM THE DEPOSITIONS OF THE AFORESAID VITAL PROSECUTION WITNESSES, IT REVEALS THAT - * Before inviting the tender, no sub-section wise survey, project estimate was prepared. After completion of tender process and after issuing the work order to the contractor, physical survey was conducted by the authority and on the basis of such survey report, project estimates were prepared. FROM THE DEPOSITIONS OF THE AFORESAID VITAL PROSECUTION WITNESSES, IT REVEALS THAT - * Before inviting the tender, no sub-section wise survey, project estimate was prepared. After completion of tender process and after issuing the work order to the contractor, physical survey was conducted by the authority and on the basis of such survey report, project estimates were prepared. * The estimated quantities are not firm and final, that are subjected to change during the time of execution of the work as per clause 46 & 47 of the tender documents. It may be increased or it may be decreased. Any excess quantity required at the execution of the work would be deemed to have been included in the tender quantity and the payment to the contractor is made on the basis of the actual work done, it may be less, it may be more. * The entire Imphal Moreh route is hilly, rocky, landslide, soil erosion and sinking zone. It was extremely difficult to make the trench upto the standard depth of 165 cm. It was therefore essential to provide RCC/GI pipes and RCC protection of OF cable over the entire route. * The AT team had sought relaxation of depth of OFC trenches from the CGM, NEFT because the cable was not laid at the standard depth of 1.65 meter. The CGM accorded the relaxation of depth the OFC. Such facts have been stated none other than the prosecution witnesses. As the entire route is hilly and rocky area, therefore the project cost increases and therefore, a revised estimate was prepared and the same was duly approved by the CGM, Task force. * The work was executed in the year 1996. After completion of the work, the cable was offered to the AT team for inspection and as the AT team detected some defect at the first instance in the year 1999, therefore, the contractor was asked to rectify the same. After rectification of the defects, the cable was again offered to the AT team and the AT approved the same. Thereafter the cable was handed over to the maintenance organization. After 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 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 taking into note the route index diagram that was prepared by PW 20 after the repairing of the route in the year 1999 and has prepared a inspection report on the basis of the earlier route index diagram and as such findings at the time of verification in the year 2003 is bound to change. 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 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. * It is admitted by the IO himself that figures of depth as mentioned in the joint inspection report do not tally with the corresponding figures in the route index diagram which itself enough to shake the authenticity of the joint inspection report. The other witness to such joint inspection PW 14 and PW 18 also stated that 7 points in the joint inspection report cannot be co-related with the figures of the route index diagram and MB, whereas the loss calculation was made on the basis of figures in the joint inspection report. Resultantly, the loss calculation report regarding excess payment etc. lost its efficacy. * 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. There is also no provision to submit deviation statement at the time of submitting the bill. * It is the evidence of the prosecution witnesses including IO that the payment to the contractor is made on the basis of the actually executed work on the approved rate by the department. PW 6 has stated that deviated quantity were approved by the CGM task force and the present accused persons are no way involved in the tender process for sub-section 13 and the payment has been made as per Ext. 13 and the deviation certificate for difference in item of work were also submitted. PW 6 has stated that deviated quantity were approved by the CGM task force and the present accused persons are no way involved in the tender process for sub-section 13 and the payment has been made as per Ext. 13 and the deviation certificate for difference in item of work were also submitted. * No any discrepancy was ever detected about the bill or the entries in the MB and bills were passed by the all official concerns on verification of the MB, route index etc. and bills were signed by appellants after such proper checking officials. Regarding deviation of amount, already prior approval was taken from CGM task force being the head of the department who being aware of all prevailing facts and circumstances about the site which is at difficult area has approved the rate in actual cost. In view of which role of present appellants cannot be now be fastened with criminal liability for passing the bills. * Clause 192 of the contract document is not mandatory for such test checking of the site but it is discretionary. In view of the statement given by the CGM, the DE may not chose to go for inspection due to several risk factor prevailing in the area. Although such conduct may amount to some sort of irregularity but not enough to embrace him with criminal liability so as to indicate conspiracy on the part of the appellant. * The joint inspection report itself lacks clarity on the matter for so many reasons which has already been discussed, such as, no proper route index diagram was taken into account which was prepared by S. N. Malakar in the year 1999 and the whole diagram has no impact as it was subsequently changed on the basis of joint inspection at the time of repairing. The evidence of IO itself contrary to the allegation where he has admitted all about the affair about the taking of approval for such deviated amount from the higher authority. * The evidence on record depicts two parallel story of the matter, whereas as the documentary part goes in favour of the appellant. A criminal cannot rest on surmises and conjecture and it must go beyond all level of doubt so that no question remains as to its authenticity. * The evidence on record depicts two parallel story of the matter, whereas as the documentary part goes in favour of the appellant. A criminal cannot rest on surmises and conjecture and it must go beyond all level of doubt so that no question remains as to its authenticity. The CGM has given a statement before the IO is very relevant who throw light as to the reason of raising the quantity and amount of bill but the IO did not made him witness has no explanation. * 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. FINDINGS 46. In view of all what have been discussed above, the deviation that has been found by the IO at the time of his inspection after 7 years of execution of the work will not itself indicate the criminal liability of the officials as well as the private contractors. Evidence indicates prior approval was taken for such deviation of work by the site engineer which is in the sub-section file that the said important file was withdrawn from producing before the Court. The tender document says that estimated amount is not final, survey report says that the standard depth cannot be acquired, due to natural calamity like heavy rain fall, soil erosion as well as broadening of road many a times disrupted the places of cables. Despite the cables were found at the time of joint inspection at their places and certainly the change of nature of soil and damage to the protection etc. is natural due to the above reasons. It reflects that the MBs have been countersigned by the Director, OFC, duly pre-checked by JAO, OFC (P) and finally passed by Account Officer, Microwave Project and thereafter payment was made to the contractor on the basis of actually executed quantities and at the approved tender risk. 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. 47. The notable aspect of the case is that the case was registered on source information by CBI but source is not disclosed. The higher authority of the department has not come forward with allegation and the case was independently investigated by the CBI officials and has conducted the joint inspection by the IO in presence of the police officials and the officials from the BSNL but none of the witnesses have supported the evidence of the IO on material aspect, rather they show ignorance about the findings made by the IO, whereas, the whole case revolves around the joint inspection made by the IO. No implicit reliance can be made upon such joint inspection report, the authenticity of which is itself clouded by shadow of doubts. More so, the witnesses reveal that the loss calculation has been made on the basis of such report, the content of which is not at all proved. Similarly, the depth of the trench and deviation of soil have also been calculated having regard to the findings of the joint inspection report and comparison of the findings with the original status of the project obviously cannot be the same. The findings of the survey report indicates that the projected area was hilly and rocky and prone to the landslide, couple with the oral evidence (particularly in cross-examination) reveals stoutly that condition of soil and depth of trench cannot remain same for variety of reasons as has been discussed above. 48. The findings of the survey report indicates that the projected area was hilly and rocky and prone to the landslide, couple with the oral evidence (particularly in cross-examination) reveals stoutly that condition of soil and depth of trench cannot remain same for variety of reasons as has been discussed above. 48. The department concerned was reluctant to accord sanction to prosecution as has been stated by own witnesses of the department and they mechanically accord the sanction for the third time on the basis of the CBI report (draft prosecution sanction was prepared by CBI as stated by one of the witness) as the CBI approach to CVC. It reveals that while awarding sanction, there was no application of mind to the relevant documents as well the status of the officials, whether they can be removed by the person who has accorded the sanction. 49. According to the learned Standing counsel for the respondent/CBI excess quantity of work was executed without taking prior approval of the competent authority and payment was made for those excess quantity of work whereas according to the clause 78 of the tender document, contractor shall not make any change of any work under the contract without written instruction from the site engineer, i.e. the DE. Refuting the said allegation, the learned counsel for the appellant pointing towards the evidence of IO as well as other witnesses, it has been urged that the witnesses said that the prior approval was taken for the excess work done for which excess payment has been made which aspect has entered in the sub-section file and the same is not produced before the Court, despite seizure being made by the IO. 50. It has also been argued from the side of the respondent that supervising authority, i.e., the DE has to conduct test check of the OFC trenches and protection of cable which is not done contrary to the provision rendering them liable for such illegality. Referring to the clause 132 of the tender document, the learned counsel for the appellant has submitted that the said submission is not true as the said provision is not mandatory but a discretionary and for non-compliance of the same, it may amounts to irregularity but not an illegality and same cannot be attributed any criminal liability on the part of the official concerned. It has been submitted that the Accounts Officer, who checked the bill, found the same correct and passed the bill without any objection. 51. Further contention raised by the learned counsel for the respondent that even after lapse of 7 (seven) years from the execution of the work, the protection of the cable cannot be washed away and vanished neither the soil condition cannot turn into soft soil from hard/rocky soil that was found at the time of joint inspection and the joint inspection report is proved by the witnesses. The same submission has also been refuted by the learned counsel for the appellant that witnesses to the joint inspection itself reveals that the cable was found in the working condition and all the protection work was not vanished but found damaged condition. It is vehemently contended by the learned counsel for the appellant that in view of the evidence on record itself regarding the land condition and other various factors, the RCC protection as well as the soil condition cannot remain the same as the area was prone to the landslide also. 52. Another piece of argument by the learned counsel for the respondent that the accused appellant has raised the bills for the excess quantity of work which was never executed by them and there is violation of provision of different clauses 60 (F), 73 (D), 78, 192, 220. In reply, the learned counsel for the appellant has strenuously contended that such a piece of argument has no basis to rely as evidence on record never speak about violation of such conditions and the witnesses have admitted in their cross-examinations that the work was executed as per tender document and payment was made on the basis of the work actually executed by them. 53. On the case of the evidence on record, which has already been discussed, I found no force in the contention of the learned counsel for the respondent rather the submission of the appellant got support in terms of the evidence on record. Moreover, the veracity of the joint inspection report is itself at shake and not a proved document. 54. In view of the charge/allegations leveled, it was for the prosecution to prove affirmatively that the accused appellants by corrupt or illegal means or over abusing their positions obtained pecuniary advantage by making conspiracy with each other. Moreover, the veracity of the joint inspection report is itself at shake and not a proved document. 54. In view of the charge/allegations leveled, it was for the prosecution to prove affirmatively that the accused appellants by corrupt or illegal means or over abusing their positions obtained pecuniary advantage by making conspiracy with each other. But in the instant case, upon scrutiny of the evidence, it would go to show that save and except mechanically exhibiting the documents related to the work in question, the witnesses have not divulged anything on the above aspect. The prosecution cannot prove its case by mere exhibiting documents but authenticity and correctness of said documents also to be proved by the witnesses, which is absolutely lacking in this case. 55. Let us discuss the law pertaining to exhibiting of documents in evidence. In a landmark judgment, the law laid down by the Hon'ble Supreme Court in, Sait. T. Khimsand and Ors. Vs. Yelamarti Satyam & Ors, (1971) AIR SC 1865 is - Mere marking of an exhibit does not dispense with the proof of documents. Further, in Sudhir Engineering Co. Vs. NEEPCO Roadways Ltd.,1995 34 DRLJ 86), the entire law relating to the marking of exhibits and tendering documents in evidence has been dealt with. It has been held that mere marking and exhibit on a document does not dispense with the formal proof thereof. Relevant para is extracted below - "Let me now look at the law. 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." 56. Although the learned counsel for the CBI in firm vehemence has contended that looking into the allegations leveled against the public servants and the findings of the Trial Court needs to be confirmed, but looking into the manner in which the case was conducted by the IO and 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. 57. Now, in the instant case, the impugned judgment reveals that the learned Trial Court counted the content of different exhibits regarding the bills, MBs etc., whereas, the said documents were not proved by the witnesses themselves. Most of the witnesses in their cross-examination has stated that they have no personal knowledge about those exhibited documents and they have marked the document in the Court as shown to them and this was the evidence of the officials of the department concerned and in such pretext, it will be more vulnerable to decide the case on such unproved documents. 58. In Abdullah Mohammad Pagarkar etc. Vs. 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. 59. It has been held in Sujit Bishwas VS. State of Assam, (2013) 8 JT 570 the suspicion however great it may be, cannot take place of proof and there is a large difference between something that will be proved. In criminal trial suspicion no matter how strong cannot and must not be permitted to take place of proof. This is for the reason that the mentle distance may be and must be quite large and divides vague conjectures from sure conclusions. In a criminal case, the Court has a duty to ensure that mere conjecture and suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produce by prosecution before an accused is condemn as convict and the basic and golden rule must be applied. An adverse inference can be drawn against accused only if the incriminating materials stands fully established and the accused is not able to furnish any explanation for the same. 60. The present case is required to be examined in the light of the aforesaid settled legal propositions. An adverse inference can be drawn against accused only if the incriminating materials stands fully established and the accused is not able to furnish any explanation for the same. 60. The present case is required to be examined in the light of the aforesaid settled legal propositions. The work in question was completed in the year 1995-96 and the IO made a joint inspection in the year 2003 and come up with the allegation regarding deviation of soil in the work place, non finding of RCC protection, non having of required depth of the trench in the work in question and while arriving such finding, the prosecution has failed to brought all the necessary documentary as well as oral evidence for arriving such conclusions, so the said finding in the joint inspection is conjecture and summarizes. The evidence that has been surfaced indicates the reasons for non achieving the required depth of the trench and also the change of nature of soil and RCC protection as well. Already three level inspection was carried out after completion of said work at the time of delivery the work in question to the maintenance department and as such the say of maintenance department on the subject was very much crucial but no such person was associated at the time joint inspection carried by the IO. The difficult terrain where the OFC was laid couple by different factors that arose at the time of the execution of work has made the authority to change the quantum of works, nature of soil on the basis of practical finding in the field which has been indicated by the evidence itself. In the given circumstances raising of bill for excess amount cannot be solely attributed as criminality while for such deviation, approval of the higher authority (the same was entered in the sub-section file, but not produced). 61. 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." 62. None of the ingredient of cheating is proved in the instant case against any of the accused. The Section 13 (1) (d) and Section 13 (2) of Prevention of Corruption Act read as follows - "13. Criminal misconduct by a public servant - (1) A public servant is said to commit the offence of criminal misconduct, - .. (d) if he, - (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than (four years) but which may extend to (ten years) and shall also liable to fine." 63. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than (four years) but which may extend to (ten years) and shall also liable to fine." 63. The learned counsel for the appellants strenuously argued that to convict an accused for an offence under Section 13 (1) (d) and 13 (2), the prosecution must establish that by corrupt and legal means the accused has obtained for himself or for any other person any valuable things or pecuniary advantage but in the present case there is no evidence on record the appellants/the public servants obtained any amount by corrupt or illegal means and conviction of the public servants/the two appellants is not sustainable in absence of such requisite evidence. The decision of Subash Parbat Sonvane Vs. State of Gujarat, (2002) 5 SCC 86 is relied on the aspect. 64. In the aforesaid decision, para 6, it has been held that for convicting the person under Section 13 (1) (d) that there must be evidence on record that the accused obtained for himself or others any valuable things or pecuniary advantage either by corrupt or illegal means or by adducing his position as a public servant without any public interest. In the present case, there is a lack of evidence on the above aspect. 65. On the next, the appellants have relied upon the decision rendered by the Hon'ble Apex Court in B. Jayaraj Vs. 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.