JUDGMENT : Rumi Kumari Phukan, J. As all the appeals arose from the same judgment in special case 163/2004 they are taken up together and being disposed with this common judgment. Heard Mr. D. S. Choudhury, learned counsel for the appellant in Crl. Appeal 314/2014; Mr. A. K. Bhattacharya, learned counsel for the appellant in Crl. Appeal 333/2014; Mr. D. Talukdar, learned counsel for the appellant in Crl. Appeal 19/2015 and Mr. J. I. Borbhuiya, learned counsel for the appellant in Crl. Appeal 25/2015. Also heard Mr. S. C. Keyal, learned standing counsel, CBI. 2. During 1995-96 the Department of Telecommunications, here-in-after called DoT, Government of India, decided to provide Optical Fibre Cable (OFC) Communication link on Imphal Moreh route in the state of Manipur. A survey of the route was conducted; a Project Estimate was prepared & sanctioned. The total route length of the section is 108 kms. which was divided into 27 sub-sections of 4 kms length each. The tenders were invited and the work was executed through contractors separately for each sub-section. The terms, conditions & specifications of work are mentioned in the tender document. The agreement was executed with the successful contractors. The over-all in-charge of the work was Divisional Engineer (DE) and the Government is represented by him. The Sub-Divisional Engineer represents the Government at the site of work. The JTO supervised the day to day work at site. The measurements were recorded by JTO in MB and bills were prepared by him. The cent percent work was checked by the Site Engineer (SDE). The bills were pre-checked by JAO, passed by the DE; counter signed by the Director and paid by the concerned Accounts Officer. 3. The depth and protection of the cable was verified as per route index diagram three times immediate after execution of the work. The cable was handed over to maintenance unit, coming to an end the responsibility of the OFC officials. After completion of trenching and laying of HDPE pipes in the year 1998, the route was given for acceptance testing in the year 1999. The route was found to be satisfactory. 4. As per the survey report, as the entire sub-section fell in the hilly and rocky area it is not possible to lay the cable at the standard department and hence the RCC protection had to be given over the cable. The route was found to be satisfactory. 4. As per the survey report, as the entire sub-section fell in the hilly and rocky area it is not possible to lay the cable at the standard department and hence the RCC protection had to be given over the cable. Hence acceptance testing of the OFC route had to be done by the T&D Circle. After successful completion of acceptance testing, the route was handed over to the Eastern Telecom Region for maintenance purposes. 5. An FIR was lodged by the Inspector of Police of the CBI, Silchar on 31.07.2001 to the effect that they got a reliable information that the accused public servants and different contractors while laying optic fibre cable which was awarded by the Divisional Engineer (OFC) to different contractors during 1995-96 for execution in different subsections of the Imphal-Moreh route by paying excess amount to those contractors against approved rates and the tendered quantities of the work. The excess payments were made on account of deviations and in quantity of works and increase in the quantity of the works including unauthorized payment against some items which were not tendered. Agreements were made without proper approval and against rules and guidelines. 6. It is alleged that appellants while working in their respective capacities by abusing their official position and in connivance with the other officials and the contractor/the appellants criminal appeal 19/2015 and 25/2015 (the appellant Sh. Robin Deka and Charlie Sekhose were awarded the contract to execute the OFC laying in respect of SS 30, SS 40, SS 46, SS 21, SS 24, SS 27, SS 29, SS 42, SS 43 and SS 35 of Jorhat Dimapur Kohima route) thereby caused undue loss to the exchequer 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. (3) Deviations in the execution of quantities of works for soft soil by decreasing the same apparently to favour the contractors because the rates of these items were lower than the estimated rates. (4) Deviations in the concreting works by showing executions of increased quantities of concreting works against the tendered quantities. (5) Falsely certifying the unwarranted concreting works and RCC/GI pipes laying and causing payments by passing the bills of the contractors for these items. (6) Falsely certifying higher depth than the actual depths and excess payments against these items. (7) Payments in excess of expenditure sanctioned in violation of rules. 7. Further it is alleged that the accused public servants and the contractors conspired among themselves and in pursuance of the said conspiracy, excess quantity of some items in the works was shown to have been executed unauthorizedly without ex-post-facto approval from the competent authority and payments were made at the tendered approved rate instead of departmental rates causing excess amount of Rs. 28,81,769/- to the department and pecuniary gain to the accused. At the time of random technical checking conducted by the CBI during preliminary inquiry reveals that the appellants with collusion with the contractor have cheated the department by way of excess payment to the contractor towards execution of excess quantity of work without approval from the competent authority and that too at the approved rate instead of departmental rate and by making false entries in the MBs showing execution of various works which are not actually executed as recorded in the MB. 8. During investigation, the IO visited the spot, recorded statement of the witnesses, seized a number of documents and after obtaining necessary sanction against the public servants submitted charge-sheet against all the appellants u/s 120B/420/468/477A of the IPC read with Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. 9. The learned Trial Court accordingly took cognizance of the offence against appellants and framed charges u/s 120B/420 of the IPC against the accused appellants Charlie Sekhose and Rabin Deka and framed charge against accused M. L. Sharma and Mrinmoy Bhuyan u/s 120B/420 of the IPC read with Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and explained to the accused appellants to which they pleaded not guilty. 10. Prosecution examined as many as 26 witnesses and defence examined none. 10. Prosecution examined as many as 26 witnesses and defence examined none. The plea of defence is of total denial. 11. The learned Trial Court on conclusion of trial convicted the accused M. L. Sharma and Mrinmoy Bhuyan u/s 120B/420 of the IPC read with Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and sentenced them to r/i for 2 years with fine of Rs. 10,000/- each and in default to s/i for 6 months. Sentences to be run concurrently. 12. The other two accused Charlie Sekhose and Rabin Deka were convicted u/s 120B IPC and sentenced to r/i for 1 year and fine of Rs. 5,000/- and r/i for 2 years and fine of Rs. 5,000/- each u/s 420 IPC. They were sentenced to suffer s/I for 3 months each in default of payment of fine. 13. Aggrieved by the aforesaid order and judgment of the conviction present appeal is preferred. Appellants in criminal appeal 314/2014 was working as DE(OFC) and appellant in criminal appeal 333/2014 working as SDE(OFC) at Dimapur and appellants in criminal appeal 19/2015 and 25/2015 were contractors with the department. 14. 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: 15. Contention raised by appellants: 15. At the very outset, it is submitted that the basic allegations against the appellant is that the depth and protection of the cable and the type of soil was found different at the time of joint inspection, as that has been shown in the bills and the MB's. There are also allegations with respect to the execution of excess quantities without proper approval whereas each and every quantity and bill has been duly approved by the competent authority and approval is in writing, which has been duly admitted by the witnesses who were concerned file. It is pointed out that the Director OFC has no field duties; but, in accordance with the provisions contained in Clause 132 of the tender document, he can inspect the work during its progress, which 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." 16. Another aspect which the Trial Court has observed that there has been a loss to the department because of the conspiracy of the appellant, it is submitted that there is no material/evidence on record to show that there has been any loss to the department. When there is no loss to the department then the question of any corresponding gain either to the Contractor or anybody else does not arise. In absence of any loss to the department, there cannot be any offence made out against the appellant. The Hon'ble Supreme Court in the case of 'Ghulam Din Buch and Others Versus State of J & K, (1996) 9 SCC 239 ', in para 47, has held as under:- "47. In absence of any loss to the department, there cannot be any offence made out against the appellant. The Hon'ble Supreme Court in the case of 'Ghulam Din Buch and Others Versus State of J & K, (1996) 9 SCC 239 ', in para 47, has held as under:- "47. It thus appears that though these three appellants had sought to assist the carriers to cause wrongful gain to them by allowing transportation of poles below 20 feet, ultimately no financial loss on this count was caused to the State because the carriers had not been paid for poles carried by them which were below 20 feet. We are, therefore, of the view that these appellants also deserve to be acquitted, as were some of the Field Officers, who had accepted the undersized poles at the receiving point had been acquitted by the High Court." In the charge-sheet, it is mentioned that 'On the basis of findings of random checking conducted by CBI in presence of independent witnesses as well as on the deviation statements and the M.B's etc, the approximate loss caused to the BSNL due to defective works of the Contractors in various sub-sections mentioned above has been got calculated through Sri S. Gupta, Engineering Officer, BSNL, Telecom Task Force, Silchar'. Sri S. Gupta has been examined as PW-12 in this case who has categorically stated that "I did not calculate any loss in this case." On this ground alone, the judgment is liable to be set aside. 17. Sh. S.K. Sikidar (PW-9) was specially deputed for repair of the damaged cables (OFC), which were damaged due to heavy rain, landslides, sinking of road as well as widening of road. In his cross-examination has stated as follows:- "As DE I was posted in Dimapur during 2002 for commissioning JDK OFC route. During 2002 I had restored many faults in this route. Even in some stretches I have re-laid the cable to minimize cable loss and by October 2002 the OFC route was offered for AT. In his cross-examination has stated as follows:- "As DE I was posted in Dimapur during 2002 for commissioning JDK OFC route. During 2002 I had restored many faults in this route. Even in some stretches I have re-laid the cable to minimize cable loss and by October 2002 the OFC route was offered for AT. Before offering for AT we had prepared Route Index Diagram afresh as there was changes in the alignment made during repairing and restoration work after the execution of OFC work was completed during 1997-98." He has further deposed "While handing over the route to maintenance organization there were joint verification of OFC routes with maintenance staff and the installer and after the satisfaction of the maintenance organization the route is taken over by them. The maintenance organization verify the depth and standard of protection during taking over. After handing over the route to the maintenance organization the responsibility of Project Organization comes to an end and thereafter the maintenance organization is responsible for the concerned route." It is self evident from the testimony of Sh. S.K. Sikidar (PW-9) that the work executed by the OFC staff/the appellant was verified twice as per Route Index Diagram in respect of the depth of the cable and the protection applied to it. Each time, it was found correct as recorded on Route Index Diagram and the Measurement Book. The IO had admittedly seized all those documents; but, he deliberately did not place those documents on record, obviously because no case is made out against the appellant in view of the said reports. The responsibility of the appellant, after handing over the cable to the Maintenance Staff, came to an end and thereafter, it becomes the responsibility of the Maintenance organization. It is pointed out that the CBI did not associate any person from the Maintenance organization during investigation. 18. The Ld. Trial Court relied upon the Joint Inspection Report of CBI. It is submitted that there were 4 persons present during the inspection conducted by CBI namely (1) Sh. Ranjeet Kumar Nath, SDE, BSNL (2) Sh. Ranjeet Narayan Chakraborty, SDE, BSNL (3) Sh. Kajal Chanda, SD, OFC (4) Sh. T. Lotha Shitri, Geologist beside the IO (PW-26). Out of the above persons, 3 witnesses namely Sh. Ranjeet Kumar Nath (PW-22), Sh. Ranjeet Narayan Chakraborty (PW-23) and Sh. T. Lotha Shitri (PW18) were examined in the Court. Ranjeet Kumar Nath, SDE, BSNL (2) Sh. Ranjeet Narayan Chakraborty, SDE, BSNL (3) Sh. Kajal Chanda, SD, OFC (4) Sh. T. Lotha Shitri, Geologist beside the IO (PW-26). Out of the above persons, 3 witnesses namely Sh. Ranjeet Kumar Nath (PW-22), Sh. Ranjeet Narayan Chakraborty (PW-23) and Sh. T. Lotha Shitri (PW18) were examined in the Court. They have contradicted each other w.r.t. preparation of joint Inspection Report at the spot and none of them could compare the Joint Inspection memo observation with cable Route Index Diagram, which discredit the credibility of the joint inspection memo recorded by CBI. Sh. Ranjeet Kumar Nath (PW-22) deposed that Joint Inspection report was not prepared at site. Sh. R.N Chakarborty (PW-23) and Sh. Ranjeet Kumar Nath (PW-22) both are material witnesses in this case who have stated that they have not correlated the Joint Inspection memo observations with their respective position on Cable Route Index diagrams. Sh. R.N Chakarborty (PW-23) and Sh. Ranjeet Kumar Nath (PW-22) also stated that Culvert and Bridge are not distinguishable and also many KMP are missing or not properly marked so joint inspection pits cannot be correlated with cable route index diagram. Sh Ranjeet Kumar Nath (PW-22) also stated that the CBI officials compared the Joint Inspection memo observations with Cable Route Index Diagram but Sh. Joseph Krelo (IO) (PW-26) during cross-examination could not locate any of the pit on Cable Route Index diagram and stated that departmental officials who were part of joint inspection team will be able to answer, for which they have already denied. So the joint inspection conducted by CBI loses its evidentiary value. Thus, the Trial Court evidently committed an error in relying upon the joint inspection report of CBI without any evidence on record. 19. The Ld. Trial Court in the impugned judgment has taken the following points to convict the appellant:- (1) It is mentioned that Sh. Mantu Ranjan Dutta (PW-15) who pre-checked the bills and Sh. S.C Paul (PW-11) who made the payments to Rabin Deka are silent whether any permission had been obtained for this excess execution of work in item no 10.2. Whereas the PW-15 Sh. Mantu Ranjan Dutta has categorically admitted in his cross-examination that "There used to be separate files for each subsection. S.C Paul (PW-11) who made the payments to Rabin Deka are silent whether any permission had been obtained for this excess execution of work in item no 10.2. Whereas the PW-15 Sh. Mantu Ranjan Dutta has categorically admitted in his cross-examination that "There used to be separate files for each subsection. It is correct that the approval of the competent authority was obtained in the subsection file in respect of excess quantities." Similarly, PW-17 Sh. K.K. Mishra has admitted in his cross-examination that "It is correct that the approval of excess quantities was obtained from the Director and CGM in subsection file or in the work file. I had sent the files when it returned from the Director or CGM, I found that approval of the competent authority is there. "When the IO of the case PW-26 Insp. Joseph Krelo admitted about the subsection files wherein the approval of the competent authority regarding excess quantities are mentioned. From the above statement of the IO, it becomes clear that he has deliberately suppressed the fact of approval of the competent authority for each and every excess quantities and the aforesaid admissions of the PW-15 and PW-17 makes it abundantly clear that the approval of competent authority in respect of excess quantity was there in file. Hence, the findings recorded by the Ld. Trial Court are contrary to the record and liable to be set aside. (2) It is held by learned Court that as per Ext-95 both 1st RA bill and Final bills were passed without there being deviation statement having been approved by the director since the amount is less than 3 crore and director was competent to approve the deviation as per evidence of PW-9, but learned Trial court fall in error in understanding the statement of Sh. S.K. Sikidar (PW-9). In his statement Sh. S. K. Sikidar (PW-9) has deposed that "The project estimate and detailed estimate if it is within 3 corers it is to be sanctioned by director and beyond 3 crore up to 5 crore project estimate is to be sanctioned by CGM and beyond 5 crore the telecom directorate will sanction estimates." It is submitted that the confusion in the mind of the Ld. Trial Court is between the detailed estimate and deviation statement whereas both of them are too different documents. Trial Court is between the detailed estimate and deviation statement whereas both of them are too different documents. The detailed estimate is prepared prior to floating of tender whereas the deviation statement is prepared after the execution of the work that too only if, it is specifically asked in some particular work and it is not a general rule. Though the issue of Deviation Statement is not raised in the Charge-sheet in specific, but Ld. Trial Court has raised this issue in the judgment that Deviation statement were not provided along with the bills. In tender document nowhere it is mentioned that deviation statement is required to be provided along with the bill.Though the fact is that as and when it was asked by A.O deviation statement were provided along with final bill. In this case as per charge sheet all the deviations statements are available on record and enlisted at S.N 49. (3) It is mentioned that Ext-173 and Ex-84 the joint inspection memos dated 29/07/03 and 6/08/03 respectively proved by IO Joseph Krelo (PW-26), Sh. Ranjeet Narayan Chakarborty (PW-23), Sh. Ranjeet Nath (PW-22) and T.L. Shitari (PW-18) that in all out of 10 test pits trenching was found in soft soil in as 8 locations where as per bills and MB in the corresponding locations in the route index diagram payments were claimed for trenching in the hard soil. It appears that Ld. Trial court has ignored the deposition made by joint inspection team member in this case. Sh. Ranjeet Narayna Chakrborty (PW-23), in his cross-examination he has stated that "I had no occasion of verify depth, category of soil and protection over cable as no documents were shown to me during inspection. I am not an expert in classification of soil and during joint inspection one geologist was there but no soil scientist was there. It is correct that site engineer is equally trained as any engineer in DOT. It is correct that site engineer represent the Govt. at the site of work. It is correct that site engineer is the competent authority to decide the depth and size of trench, category of soil and protection over the cable. None of the team members was competent to decide the category of soil. It is also correct that no debris is allowed for reinstating the trench. at the site of work. It is correct that site engineer is the competent authority to decide the depth and size of trench, category of soil and protection over the cable. None of the team members was competent to decide the category of soil. It is also correct that no debris is allowed for reinstating the trench. It is correct that the soil inspected during joint inspection was same soil which dug out from re-instated trench. It is correct that the category of soil dug out from re-instated trench will not be same with the soil that was used at the time of digging the trench for laying of cable. It is correct that the area of Dimapur and Kohima is hilly area". Sh Ranjeet Kumar Nath (PW-22), in his cross-examination he has stated that "I did not verify any figure mentioned in MB/Diagram with regard to the depth protection and category of soil at any of the pits. CBI officials compared the location of pits at the corresponding point of the route index diagram. It is correct that the KMP posts are not properly marked in the route index diagram. It is correct that location of pits cannot be correctly correlated or compared with the corresponding point of route index diagram. The area was hilly and rocky. It is correct that the position of cable may not be same after a gap of 7 years due to shifting of cables at the time of widening of road, diversion of routes or rectification of fault. We had identified the status of soil that was excavated from the refilled soil. It is correct that the status of soil at the time of making trench for laying cable will not be same as that with the refilled soil." Sh. T. Lotha Shitari (PW-18), in his cross-examination he has stated that "I am a geologist not a soil scientist. I am not specially trained to classify soil and I had not worked in any laboratory which is concerned with testing of soil. I had not gone through the tender document. I had not been provided with the tender document. I do not know the definition of soil as provided in tender document. I do not know whether the soil that was verified by me was obtained from the same trench where the cable was laid 7 years back. I had not gone through the tender document. I had not been provided with the tender document. I do not know the definition of soil as provided in tender document. I do not know whether the soil that was verified by me was obtained from the same trench where the cable was laid 7 years back. By visual estimation the type of soil was decided. No scientific procedure is followed." The IO (PW-26), in his cross-examination has stated that he cannot co-relate the pits of joint inspection with the corresponding point on the route index diagram. Sh. Subhabrta Gupta (PW-12) in his cross-examination stated that "Disregarding whether the trenching was done on rocky soil, hard soil or soft soil or any other type of soil, the soil category in the trench will change to only soft soil after reinstatement." It is submitted that it is clear from the above witnesses that none of the joint inspection team members could correlate the observations of joint inspection memo with their respective position on the route index diagram. Further none of the team member was competent to decide the category of soil. Moreover it has come on record that the category of soil will not remain same as it was at the time of digging initial trench. The same will change to soft soil because no debris was allowed to be backfilled. (4) It is mentioned that "I am inclined to believe the findings in Ext-173, since out of 4000 mt 3940 meters had been assigned for trenching in soft soil SS-21 as per tender document. Thus Mrinmoy Bhuyan JTO who was with the SDE M. Chakarborty during supervision of execution of work in SS-22 on JDK OFC route and M.L. Sharma who had passed both the bills for SS-22 are proved to have allowed deviations in the quantity of hard soil by increasing the same much more than the quantity indicated in the tenders, certifying the execution of increased quantity and causing payments accordingly by passing the questioned bills, apparently because the rates for these items were much higher than the estimated rates. Thus above accused persons are proved to have acted in furtherance of criminal conspiracy. It is contended that though, S/S-22 is not a part of this case still, the Ld. Trial Court is deliberating on the same which is beyond the scope of the case. Thus above accused persons are proved to have acted in furtherance of criminal conspiracy. It is contended that though, S/S-22 is not a part of this case still, the Ld. Trial Court is deliberating on the same which is beyond the scope of the case. It is submitted that the prosecution fails to provide any oral or documentary evidence in support of above allegation and it is evident as per deposition of joint inspection team members none of the Joint inspection team member could co-relate the Joint inspection memo observations with their respective position on cable route index diagram. As per Para 220 of tender document Site Engineer is the authority to decide type of soil, depth and protection etc. All the entries in the MB and preparation of Route Index Diagram are made by Site Engineer. Duties of DE are defined under Para 192 of tender document. Bills were passed after pre-check by JAO and after observing all formalities including approval of excess quantities as per terms and condition of contract. Sh. Mantu Ranjan Dutta, JAO (PW-15), in his cross-examination he deposed that "It is correct that in this case also I signed after pre-checking the bill and after ascertaining that everything was in order and according to the rules and instructions." Sh. S.C. Paul (PW-11) A.O., in his cross-examination, he deposed that "Bills are checked with reference to MB etc and whenever any file for OFC related work come to me, I gave my observation in the file of concerned sub-section." (5) It is mentioned that "It is evident from evidence of PW11 that no permission had been obtained for execution of the excess quantity of work in 10.2,10.3 and 10.7 and for less work in item no 10.1 than the tendered amount. It is submitted that the said observation is contrary to the record. Sh. S.C Paul (PW-11) never deposed as above. On the contrary Sh. Mantu Ranjan Dutta (PW-15) and Sh. K.K. Mishra (PW-17) have categorically admitted that the approval of the competent authority was obtained for execution of excess quantities. It is further pointed out that each and every bill is countersigned by the Director which goes to show that each and every bill was duly approved by the competent authority. Mantu Ranjan Dutta (PW-15) and Sh. K.K. Mishra (PW-17) have categorically admitted that the approval of the competent authority was obtained for execution of excess quantities. It is further pointed out that each and every bill is countersigned by the Director which goes to show that each and every bill was duly approved by the competent authority. (6) It is mentioned that "Neither the contractor and SDE had informed the DE with regard to the deviation in the amount of work in subsection 10.1,10.2,10.3 and 10.7 from the tendered quantity. Thus the contractor as well as the SDE who had supervised the work and DE who had passed the bill had done so in contravention of the provision under clause 78 of tender document. Prosecution fails to provide any oral or documentary evidence in support of above allegation whereas the fact is that Ld. Trial court has ignored the evidences of Sh. Montu Ranjan Dutta (PW-15) & Sh. K.K. Mishra (PW-17). It is submitted that the said findings is contrary to record as mentioned earlier in reply to Q. (a), it has been clearly established that the approval of competent authority for each and every excess quantity was taken. Hence, there is no violation of clause 78 of tender document. Apart from this, Sh. Montu Ranjan Dutta (PW-15), in his examination-in-chief itself has stated that "In case there is excess quantity of work with regard to laying of OF Cable and trenching, the work is compared with the tendered quantity and then the bills along with MB and route index diagram are delt with by concerned dealing clerk who will prepare the bills accordingly and submit the same before the DE. On the instruction of DE those bills are pre-checked by me then again those bills are put before DE for approval of excess quantity of work. The same approval order is counter signed by Director. If the Director is not empowered because of pecuniary jurisdiction then same is put up before CGM Task Force North East for approval. After approval the bills are put up before accounts officer for payment. After pre-checking the bill he sends those bills to DE if there is excess quantity of work. Sometime DE directly processes the bills with regard to the excess quantity of work and verbally obtains approval from CGM Task Force for excess quantity. Thereafter CGM makes notes post facto. After approval the bills are put up before accounts officer for payment. After pre-checking the bill he sends those bills to DE if there is excess quantity of work. Sometime DE directly processes the bills with regard to the excess quantity of work and verbally obtains approval from CGM Task Force for excess quantity. Thereafter CGM makes notes post facto. They used to take the approval of the competent authority in case of excess quantity of work. (7) It is mentioned that "It is evident that the contractor had done trenching in hard soil and rocky soil by increasing the same in the bills and MB much more than the quantity indicated in the tenders and the SDE and the JTO respectively having certified the execution of increased quantity, paid at the approved rate of 450/- per mtr for item 10.7 and Rs item no.10.3 and not at departmental rate as is required to be paid for excess work and causing payments accordingly by passing the questioned bills, apparently because the rates for these items were much higher than the estimates rates appear to be in league with the contractor. Though the matter of payment of excess quantities at departmental rates and not at approved rates is not raised in the Charge-sheet, but in spite of that Ld. Trail court raised this issue in the judgment and ignored the following vital evidences available on record, In accordance with clause 46 of the tender document, the figures/quantities mentioned in the tender document are not firm and final. They are subject to change. The changed quantities will be deemed to have been included in the tender schedule. In accordance with the clause 47 of the tender document, the payment to the contractor will be made according to the actually executed quantities at the approved tender rates. It has been done in the present case. The said clauses are reproduced here-in-below - "46. The quantities/figures indicated in the tender schedule are approximate and are subject to change. Any change effected shall be binding on the tenderer/contractor as though included in the original tender schedule and any such change will not make the agreement void and it is therefore essential that the tenderers binding all the documents carefully and not commit any mistake in analyzing the rates quoted and remain binding notwithstanding any changes as aforesaid. Any change effected shall be binding on the tenderer/contractor as though included in the original tender schedule and any such change will not make the agreement void and it is therefore essential that the tenderers binding all the documents carefully and not commit any mistake in analyzing the rates quoted and remain binding notwithstanding any changes as aforesaid. No revision of tendered rates shall be considered on any ground whatsoever 47. The quantities indicated in tender schedule shall not be considered as representing firm/final quantities. All works shall be measured by Divisional Engineer or his authorized representatives. Amount payable to contractor shall be on the basis of actual work done by him at the rate approved by department." PW-11 (Sh. S. C. Paul), in his cross-examination has stated that "Payment to the contractor are regulated as per clause 46 and 47 of NIT" PW-(25)-Sh T. Thangzalian, in his cross-examination stated that "The Contractor is required to be paid for 100% work executed by them in the approved tendered rate. Interestingly, PW-(26) Sh. Joseph Krelo, IO in his cross-examination has stated that the payment to the contractor was made for actually executed quantities at the approved rates. It is, therefore, abundantly clear that no excess payment has been made to the contractor. The excess payment alleged to have been made to the contractor is merely the difference between the estimated cost and the actually executed cost. The estimated cost can never remain same in any case. (8) It is mentioned that the joint inspection memo in respect of SS-29 revels that during joint inspection on two locations in the subsections no boring was found to have been done where as the RID for both bills reveal that payment had been claimed for boring in the corresponding locations in the MB and the bills. Both these locations had been inspected on being identified by K. Chanda, SDE who had supervised the work in the JDK OFC route and had also signed the Joint Inspection memo. Thus I hold that Ext-170 is reliable since boring once done could be traced even after eight years of its execution. This clearly indicated that the contractor T.Murry in pursuance of criminal conspiracy with SDE M. Chakarvorty, Sh. M. Bhuyan and DE M.L. Sharma are proved to have cheated the department. Ld. Thus I hold that Ext-170 is reliable since boring once done could be traced even after eight years of its execution. This clearly indicated that the contractor T.Murry in pursuance of criminal conspiracy with SDE M. Chakarvorty, Sh. M. Bhuyan and DE M.L. Sharma are proved to have cheated the department. Ld. Trial court committed a grave factual error by mentioning that K. Chanda supervised the work in JDK OFC Route, whereas in fact he never supervised the work on SS-29 of Jorhat-Dimapur-Kohima OFC Route. It is clearly evident that as per Ext-170, on both the locations in the Joint Inspection memo relating to S/S-29 it was written that Boring was not found but RCC pipes were found at both the locations, So there is no dispute about RCC pipe laying at the boring location, but it seems that Ld. Trail court misunderstood the meaning of boring because boring is not an article or item which can be located after few years but in fact the meaning of boring is to make a hole (horizontally) by a tool at road crossing for laying the RCC/HDPE pipes in that hole and it's not possible for anyone to trace after a gap of 7 years whether the RCC pipes were laid at road crossing by cutting the road or by boring. On a query made to the IO (PW-26), in his cross-examination, whether after 7/8 years of execution work that RCC pipe laid by boring or digging the trench, can be ascertained and he replied that the same can be answered by the departmental officials. When departmental officer Sh. Ranjeet Nath (PW-22), was asked about boring in his cross-examination, he stated that "It is correct that cable is laid across the road by method of boring. Boring cannot be found out at point of time after execution of the work. It is correct that boring was done for laying the cable because the cable was in existence at that time" It is also pertinent to note that the joint inspection memo Ex-170 indicates that RCC pipe found at both the places, which clearly establishes that the boring was actually done for laying the pipes. It is correct that boring was done for laying the cable because the cable was in existence at that time" It is also pertinent to note that the joint inspection memo Ex-170 indicates that RCC pipe found at both the places, which clearly establishes that the boring was actually done for laying the pipes. Further the allegation regarding boring cannot be used against appellant as the same has not been put to him in 313 Cr.P.C. (9) It is mentioned that as per Ex-108 the MB reveals that in 10.2 the contractor is shown to have executed work to the extent 3437meters.In item 10.3 he shown to have executed work to the extent of 2931 meters and it is evident that the contractor was allowed to execute work in 10.2 and 10.3 for total length of 6368 meters instead of 4000 meters- similarly on page 18 of judgment it is written that ex-111 the MB revels that in item 10.2 shown to have executed work to the extent 3080mt In item 10.3 he shown to have executed work to the extent of 2891 meters and it is evident that the contractor was allowed to execute work in 10.2 and 10.3 for total length of 5971 meters which is 1971 meters in excess. Though this matter neither comes during the course of trial and nor it was put to appellant in statement under section 313 Cr.PC, but the ld. Trial Court mentioned it in the judgment. The Ld. Trial court committed a grave error and arrived at a conclusion without consulting a route index diagram. In the Route Index diagram payment has been made on proportionate basis for hard and Rocky soil encountered proportionately during digging in the trench. It is mentioned that " Thus in this particular case the DE, M.L. Sharma who had certified the first and final bill and having passed the same for excess work without any deviation statement accompanying the bill and getting it approved by director proved to have acted in connivance with JTO and Contractor. Ld. Trial court misunderstood the difference between certification of bill and sample/test check certificate, in this case the bills were certified by JTO and SDE who supervised the work and only sample check was done by DE. The finding of Ld. Ld. Trial court misunderstood the difference between certification of bill and sample/test check certificate, in this case the bills were certified by JTO and SDE who supervised the work and only sample check was done by DE. The finding of Ld. Trial Court with respect to submitting of deviation statement is factually incorrect as the deviation statement is already on record as D-49. (10) It is mentioned that "Ext-118 the MB for SS-42 reveals that in the tender document no work had been assigned for item No. 10.7 and the contractor is shown to have provided RCC work up 2288 meters. It is evident that no amount had been assigned for item no.10.7 in the tender document. It is evident from Ex-118, MB that for 2290 meters as against nil quantity the contractor was allowed to provide RCC work and it is evident that no permission had been obtained for RCC work; neither any deviation statement accompanied the final bill in respect of SS-42. The explanation given by the witnesses approval of excess quantities and the deviation statement covers this aspect and the same be referred to. The witness, Sh. Shubbrat Gupta (PW-12), in his examination-in-chief has stated that "During the OFC laying work in question the protection was in the form of RCC Hume pipe for depth 90cm to 120 cm, if the depth is less than 90 cm the RCC concreting is necessary." Sh. Ranjeet Kumar Nath (PW-22), in his cross-examination has mentioned that "it is correct that the tendered quantities have not been properly estimated. This witness stated that "the quantity of trenching in rocky soil is shown in the tender document as 3000 meters, but the quantity of RCC protection has been shown as nil, where as it should have been more than 3000 meters." On the query made to the IO/Sh. Joseph Krelo (PW-26), in his cross-examination whether he knows that RCC protection is provided over the cable irrespective of its depth in rocky area and built-up area and he replied that he knows that the RCC protection is to be provided irrespective of its depth in the rocky but he is not aware about the built-up area. It is also admitted by him that the tendered quantities are not firm and final. It is also admitted by him that the tendered quantities are not firm and final. From the above deposition of witnesses it is clearly evident that Estimation was not done properly at the time of floating of tender. As the standard depth of trench for rocky soil is 90 cm and at a depth equal to 90cm or below 90 cm, RCC protection is required to be provided, hence the quantum of RCC Protection must always be greater than the quantum of Rocky soil (Because RCC Protection is also required at culvert and bridges). Where as for 3000mt quantum of rocky soil in any subsection no provision has been kept for RCC work (item 10.7) which is totally impractical. Correct estimation of RCC Pipes/RCC work is also not possible because one doesn't know what obstructions will be found during actual execution of work (i.e Big tree roots, other underground cables, water pipe line, very hard rock which required blasting only etc). Hence estimated cost of each subsection cannot be ascertained without preparing subsection wise detailed estimate because detailed estimate also comprises of number and total length of bridges/culverts where RCC protection is to be provided but in absence of detailed estimate correct estimation is not possible. In above cases if the provision of RCC work (10.7) was kept at least equal to quantum of Rocky soil (i.e 3000mt) then there will be appreciable increase in both estimated cost as well as tender approved cost and there will not be much variation in executed cost and approved cost. In the situation of the case in hand, the variation is bound to happen as there is no sub-section wise detailed estimate. Sh. S.K. Sikidar (PW-9) in his cross examination admitted that "The detailed estimate was prepared for JDK route in a single estimate there was no subsection wise detailed estimate." (11) It is mentioned that "it is evident from the first and the second RA bill that no test check had been under taken by DE with regard to execution of excess quantity of work in item 10.7. As per Para 192 of tender document, test check by DE are not mandatory, but to be carried out as and when considered necessary. Sh. As per Para 192 of tender document, test check by DE are not mandatory, but to be carried out as and when considered necessary. Sh. S.C. Paul (PW-11) in last sentence has said that "there is no mention that DE is required to test check 10% of the work." (12) It is mentioned that "Apart from SS-46 no deviation statement was proved to have been furnished by the JTO and SDE with regard to the excess work in SS-45 and 47. However ,the rate as agreed upon, as per EXT-72 work order issued by DE, M.L. Sharma for SS-46 to Pudidel Tase upon had been followed while calculating the quantity of work in the MB for SS-46, EXT127 Rs 365 has been fixed for calculating the payment to be made for excess work in item no.10.7 instead of the departmental rate of Rs 170. Thus JTO and SDE allowing the payment for execution of work in item no.10.7 at the rate of Rs 365 in 1st RA Bill, 2nd RA bill and final bill and certifying the excess work of SS-46 for item no 10.7 are proved to have acted dishonestly when there is no evidence of record to show that there was any request made by the contractor for enhancement of the departmental rate for execution of excess work in item no.10.7. Thus the contractor is proved to have derived illegal benefit by receiving payment for execution of work in 10.7 at the rate of Rs 365/- despite the approval of deviation statement. It is mentioned that there is no rates mentioned for item 10.7 in the work order for SS-46 Sh. Mantu Ranjan Dutta (PW-15) in his examination-in-chief has stated that "Ext-139(4), Ext139(5) (3 sheets) and Ext-139(6) are calculation sheet, route index diagram and a letter by contractor to DET OFC Guwahati respectively. The said letter was attached with the bill requesting for enhancement of departmental rate for item no 10.7 in SS 45 and SS 46." Hence, the above findings are contrary to the evidence on record. 20. 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. Sh. T. Thangzaliyan (PW-25) has admitted this fact. 20. 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. Sh. T. Thangzaliyan (PW-25) has admitted this fact. The appellant is not at all blameworthy in any manner. 21. There is no provision of law or rules or any instructions or any clause in the tender document which requires DE to conduct test check at every 100 metre or 10% of the work. However, clause 192 provides that the DE will test check only if he considers necessary. It is not mandatory and this fact has also been admitted by the IO (PW-26), Sh. S.C. Paul (PW-11) and Sh. T. Thangzaliyan (PW-25). 22. According to the Geological Survey of India, about 95% of the area of Nagaland is hard rock. According to survey report, 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 admitted by Sh. S.K. Sikidhar (PW-9), Sh. Ranjeet Kumar Nath (PW22), Sh. R.N. Chakraborty (PW-23), and the IO Sh. Joseph Krelo (PW-26). 23. As per clause 73E of Tender document, it is the obligation of the DE to pass the bills and make payment to the contractor through the paying authority. The procedure of passing the bills is as follows:- (i) Bills are prepared by JTO and SDE (Site Engineers) on the basis of MB and Route Index Diagrams. (ii) Bills are submitted in the office of DE and JAO (Junior Accounts Officer) posted in the office of DE pre-checks the bill by comparing the same with the MB, Route Index Diagrams, approved tender rates, quantities and approval of excess quantities etc. After finding all the above in order, as per terms and conditions of the tender, he put up the bills before the DE for passing the same. (iii) The DE, after perusing the remarks of the JAO and MB and Route Index Diagram, passes the bills. (iv) After passing, the bills are forwarded to Director for approval. (v) After the approval of the Director, the bills are forwarded to AO. (iii) The DE, after perusing the remarks of the JAO and MB and Route Index Diagram, passes the bills. (iv) After passing, the bills are forwarded to Director for approval. (v) After the approval of the Director, the bills are forwarded to AO. The AO rechecks the MB, Route Index Diagrams, approved tender rates, quantities and approval of excess quantities etc. Finding each and everything in order, he makes payment to the contractor. In this way, the bills before coming to the DE and after the passing by DE are thoroughly checked at various stages and only thereafter, the payment is made. It is noteworthy that the persons before (JAO) and after (AO) the DE have been given clean chit by CBI by approving the bills by them. Hence, the appellant cannot be faulted. 24. The payment to the contractor has been made proportionately since the cable has not been laid at the standard depth of 1.65 metre. The payments have been made for the actually executed quantities at tender approved rates. 25. The Ld. Trial Court did not appreciate that there is no proper sanction from the competent authority to prosecute the appellants. Particularly in view of the fact (DOT) had refused sanction twice. Contention raised on behalf of the appellant/contractor 26. 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. 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. 27. 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. It contends that there is absolutely lack of evidence suggestive of criminal conspiracy on the part of the contractor with the public servants at the time of awarding contractor nor there is requisite evidence to reflect the dishonest intention on the part of the accused appellant to cheat the government. But however, the learned Trial Court relying only on the evidence of IO and the joint inspection report that was made after 7 years has held the accused appellants guilty without proper appreciation of entire matters on record, hence, finding of guilt at the accused appellants is not sustainable. Evidence on record. 28. But however, the learned Trial Court relying only on the evidence of IO and the joint inspection report that was made after 7 years has held the accused appellants guilty without proper appreciation of entire matters on record, hence, finding of guilt at the accused appellants is not sustainable. Evidence on record. 28. As the entire case revolve around the joint inspection report made by the IO in presence of other witnesses, let us start with the evidence of the IO/PW-26 Sri Joseph Krelo except mentioning about several joint inspections made by him on 05.06.2003, 06.06.2003, 29.07.2003, 02.08.2003, 05.08.2003, 06.08.2003, 07.08.2003, 08.08.2003, 04.08.2003 and 30.07.2003 in presence of witnesses which were also exhibited, he has not narrated any facts as to on what basis he has stated about the illegalities committed by the appellants while executing the work in question. The relevant portion of his evidence is quoted below: During inspection I found that contractor concerned in this case has realized the bill amount for the work not executed by them. The offence committed by the Private contractor in conspiracy with the Govt. Officials had caused wrongful loss of Rs. 28,81,769/- approximately by claiming excess amount. During investigation it was also found that contractor concerned in conspiracy with Sri M.L. Sharma, the then DE, OFC, Guwahati, Sri Kajol Chanda, Sri Mrinmoy Bhuyan, Sri Raheswar Pator submitted bogus and fabricated bills/MBs for ht excess quantity of work without taking approval from the competent authority. During investigation joint inspection was also conducted and during inspection it was found that the depth of the OFC cables, nature of soil, protection given to OFC cables were not inconsonance with the figure mentioned in the MBs and bills. While giving such statement, he has exhibited the joint inspection reports and other documents related to the case. In cross-examination he could not reply various relevant questions put forward by the defence side. On the question as to where from he has taken the depth of the trenches 165 CM, and what depth is mentioned in the route index diagram, whether he has co-relate the points with reference to relevant document and he could not reply the same and said that the BSNL officers will be able to say the same. In fact, he could not even explain the findings in the joint inspection report, about the locations mentioned in the route index diagram. 29. In fact, he could not even explain the findings in the joint inspection report, about the locations mentioned in the route index diagram. 29. Pw-18 Tsironthung Lotha Shitire, PW-22 Ranajit Kr. Nath and PW-23 R.N. Chakraborty who were witnesses to the joint inspection on various occasion simply stated about the joint inspection without narrating anything about the findings. They have stated that during the inspection random checking the trenches where the OFC was laid was excavated, the depth, nature of soil used was visually examined and findings were noted down. In cross-examination they have admitted that they were not shown any documents during inspection. They cannot correlate the point of joint inspection with route index diagram for MB, it was mentioned by the IO. On being further tested in the cross examination they could not say anything about the depth and breadth of the pits, they dug. It is apparent that all the witnesses mechanically signed the said reports, without knowing the content of the same and failed to prove the content of any of joint inspection. The PW-18 in his cross-examination has stated that he was asked to decide the type of soil only and nothing more but he is a geologist not a soil scientist. He has not gone through the tender document so he does not know the type of soil mentioned in the tender documents. According to him he signed the joint inspection memos on the spot but according to the PW-22, the said joint inspection was not prepared on the spot. In his cross examination PW-22 has stated that the CBI selected some spot randomly and category of soil was decided by visual observation and certain documents were with the possession of the CBI officials and they were not allowed to mark the route index diagram so he could not verify the figures mentioned in the joint inspection memo with MB or route index diagram with regard to the depth of protection, category of soil etc. The figure mentioned in the joint inspection memo cannot be correlated with the figures in the route index diagram and MB. Further he stated that the area was hilly and rocky and prone to landslide and sinking zone also. There is possibility of soil and protection being washed away during heavy monsoon, due the landslide and work by JCB, road widening. Further he stated that the area was hilly and rocky and prone to landslide and sinking zone also. There is possibility of soil and protection being washed away during heavy monsoon, due the landslide and work by JCB, road widening. It is also admitted by him that inspection was conducted after 7 years of lying of the cable and the cable cannot be commissioned without successful AT and AT commissioned the cable only after its satisfaction after full verification as to the depth and protection as per route index diagram. The responsibility of OFC officers comes to an end after handing over the cable to the maintenance and the responsibility of the maintenance unit starts. The position of the cable may not be the same after gap of seven years due to shifting of cable at the time of widening of road, diversion of road or rectification of fault. No diagram was prepared in respect of joint inspection and no officer of maintenance unit was associated with the joint inspection. He further stated that the KMP post are not properly marked in the route index diagram and points in the joint inspection were not correlated or compared with the corresponding point of the route index diagram at the site of inspection. It is correct that the tendered quantities have not been properly estimated. The PW-23 in his cross examination had stated that he had not consulted with any documents during the inspection which were in the possession of IO. He did not know the correctness of figures mentioned in the joint inspection memo and no figures can be related with the tender documents and to the route index diagram. He had no occasion to verify the depth, category of soil and protection over the cable as no documents were shown to him during inspection. As PW-22 has also stated about the fact that after completion work OFC lying the same was handed over to the maintenance division and responsibility of the OFC comes to an end after such handing over of the cable to the officers, ETR (maintenance). 30. As PW-22 has also stated about the fact that after completion work OFC lying the same was handed over to the maintenance division and responsibility of the OFC comes to an end after such handing over of the cable to the officers, ETR (maintenance). 30. It is evident that although IO has conducted several joint inspection since 22.12.2003 to 30.07.2003 at different subsections SS 30, SS 40, SS 46, SS 21, SS 24, SS 27, SS 29, SS 42, SS 43 and SS 35 of JDK OFC route, but none of the witnesses including the IO himself could not specifically brought on record as to the deviation of the work like to what extent nature of soil was found different, to what extent RCC protection was not provided having regard to the relevant tender documents, route index diagram to the said subsection, concerned MB and they even could not correlate the point of joint inspection with route index diagram for MB. The witnesses were not at all aware about the relevant documents pertaining to the contact. 31. On the next, the evidence of PW-1 S.K. Jain and PW-2 Maninder Singh relates to the prosecution sanction they granted. PW-2 however stated that initially twice the department was not inclined to sanction the prosecution of the accused but in the third time while the CBI approached the CVC, the sanction was accorded as per advice of CVC. 32. In their evidence, PW-3 B.C. Bordoloi, PW-4 J. Das, PW-5 P. Das, PW-6 D.K. Dev, PW-7, A.B. Dev, and PW-8 T. Kurian, all of them have stated about the various seizure of documents by the IO where they put their signature in the seizure memo and they were even not cross examined. 33. The evidence of PW-9 S. K. Sikidar who was Divisional Engineer, Task Force is relevant who supervise the work of trenching and lying of OFC. He has stated that: 1. There was possibility of variation after actual execution of OFC lying work with the survey report quantum as the survey was done on visual verification. If there was any variation during execution of work and if it was more than 25% of the original estimate then approval of the competent authority is to be obtained before submitting the bills for excess quantity of work. If there was any variation during execution of work and if it was more than 25% of the original estimate then approval of the competent authority is to be obtained before submitting the bills for excess quantity of work. In special circumstances the competent authority before according approval may sent for further joint survey by survey division and the executing officer. 2. Before a route was taken up for execution of OFC laying work, the proposal OFC route is sent to telecom directorate for inclusion in the demands for grants, the concerned CGM i.e., head of the circle is to convey approval to Director OFC for taking up the work along with the approved survey report which was prepared by the survey division. The Director accordingly orders the DE, OFC to call for tender and after completion of process of tendering the work is issued for execution. The chief accounts officer is the financial advisor to the CGM of the circle. 3. Before issuing the work order the estimate is to be sanctioned by the competent authority. The project estimate and detail estimate if it is within 3 crores it is to be sanctioned by the director and beyond 3 crores up to 5 crores, project estimate is to be sanctioned by CGM and beyond 5 crores the telecom directorate will sanction the estimates. 4. At that time Sri Rajnish Gupta was holding the charge of CGM, TF, Guwahati who had approved the survey report of JDK OFC route. The approved project estimate was sent to director OF project Guwahati vide letter No. TF/NE/WD78 dated 22.09.95 for an amount of Rs. 9,48,11,857. In the course of his evidence he exhibited large number of documents pertaining to the tender from TEC to the comparative statements of each subsection awarded to lowest tenderer mentioning about the nature of soil, depth etc., and the approval of the Director thereof. He has also mentioned about duty of the DE and SDE but there is not a whisper in his evidence about the foul play made by any of the officers or on the part of the contractor while awarding the said contract suggestive of conspiracy on their part. His evidence is limited only towards the exhibiting the documents. In cross examination, he has stated that he was only a member of TOC and TEC in JDK route. His evidence is limited only towards the exhibiting the documents. In cross examination, he has stated that he was only a member of TOC and TEC in JDK route. He has no personal knowledge about facts of this case except for tendering process. Whatever he had stated in examination in chief was stated by him after going through the documents shown to him. As SDE he has supervised the work of Shillong Guwahati OFC route and Guwahati Rangia Nalbari OFC route. As DE he was posted in Dimapur during 2002 for commissioning JDK route. During 2002 he had restored many faults in this route. Even in some stretches he have re-laid the cable to minimize cable loss and by October 2002 the OFC route was offered for AT. Before offering for AT they had prepared route index diagram afresh as there was changes in the alignment made during repairing and restoration work after the execution of OFC work was completed during 1997-98. The route index diagram was prepared for offering to AT and it is different from the one used for MB. The diagram he had prepared and had given to AT is not on the record today. The expenditure made for repairing and restoration work is relaying the cable in JDK route was borne by GMTD, Dimapur. AT people had checked the depth of calbe and protection provided where standard depth could not attained. The approval for depth relaxation for less depth cases upto 90 cm was given by CGM task force and 90 cm to 120 cm was given by Director, TF, Dimapur and beyond 120 cm the relaxation was within the power of DE hence it was provided also. The AT after getting the proper relaxation approval from competent authority commissioned the routes. While handling over the route to maintenance organization there were joint verification of OFC routes with maintenance staff and the installer and after the satisfaction of the maintenance organization the route is taken over by them. The maintenance organization verifies the depth and standard of protection during taking over. After handing over the route to the maintenance organization the responsibility of Project Organization comes to an end and thereafter the maintenance organization is responsible for the concerned route. The depth of the trench and category of soil decided by site engineer. The maintenance organization verifies the depth and standard of protection during taking over. After handing over the route to the maintenance organization the responsibility of Project Organization comes to an end and thereafter the maintenance organization is responsible for the concerned route. The depth of the trench and category of soil decided by site engineer. He further states that the JDK route falls mostly in hilly and rocky area particularly from Bokajan to Kohima. The soil categories are mostly hard and rocky. There are also sinking zones in the route in many places where the road comes down along with OFC laid along the road. During rainy season the cables laid along the route get washed away and before commissioning the route the task force organization had to restore the link and for this he was posted as DE TP Dimapur during 2002. The damages caused after execution of the work of JDK route was due to many reasons such as landslide, sinking of road, heavy rain water seeping into the trenches where OFC was laid etc. The depth of cable after gap of few years would vary with the original depth made during OFC laying. The soil condition of the route will remain same if the cable is to be re-laid but where the rocky soil was chiseled in that particular position the condition may not be same as category of soil is already be disturbed. In cable laying work the DOT was not using Anti Termite Treatment because of there was no possibility of termite attack in the concreting work used for protecting the OFC cable where standard depth would not be attained. The Nagaland area was insurgency prone area and during execution in 1966-97 the departmental officers were getting many problems in supervising the OFC laying work particularly from Dimapur to Kohima. The departmental staff was not provided with security for the movements during execution. The detailed estimate was prepared for JDK OFC route in a single estimate there was no subsection wise detailed estimate. There will be differences in depth of cables after few years where the original cable laid was replaced. 34. The evidence of PW-11 S. C. Paul (Chief Account Officer, BSNL) PW-13 Bhaskar Dey (Chief Account Officer, GMTD), PW-15 M. R. Dutta (Account Officer, BSNL) and PW-17 K. K. Mishra (Jr. There will be differences in depth of cables after few years where the original cable laid was replaced. 34. The evidence of PW-11 S. C. Paul (Chief Account Officer, BSNL) PW-13 Bhaskar Dey (Chief Account Officer, GMTD), PW-15 M. R. Dutta (Account Officer, BSNL) and PW-17 K. K. Mishra (Jr. Account Officer, DGM, TF, BSNL) all of them have state about the different running bills and MBs etc., pertaining to different subsection in question in detail but none of them has stated about the discrepancy about the bills come to them and they have after verification of the bills has passed the same and issued the cheques to the respective contractors. PW-11, PW-15 and PW-17 all of them stated similar facts that all the bills regarding OFC used to come from site engineer JTO/SDE and put up before the DE OFC along with the contractor bills, MB and route index diagram. In case there is excess quantity of work of the bill, the bills again put up before the DE for approval of the excess quantity and approval order is signed by the Director. Sometime the DE directly passes the bills with regard to the excess quantity by verbally and verbally obtain from CGM for Task Force. It is stated that in respect of bills it was signed by the DE and counter signed by the Director. Those bills were come to the respective Accounts Officer after duly checked by JAO, OFC, passed by the DET, OFC Guwahati and counter signed by the Director OFC with a forwarding letter to effect the payment and payment is made accordingly by them. All the cheques regarding payment of OFC trenching are signed by AO for payment to the contractor and paid by Account Officer with reference to MBs and route index diagram etc and on finding the same in order, the payment is made effected. They had exhibited the original bills, MBs for the different routes connected with this case in long detail and also about the issuance of cheques to the respective contractors under his signature but while saying so he has not referred anything about the irregularities in the said documents. In cross examination he has stated that bills are checked with reference to the MB etc., and whenever any file for OFC related work come to him, he gave his observation in the concerned subsection file only. In cross examination he has stated that bills are checked with reference to the MB etc., and whenever any file for OFC related work come to him, he gave his observation in the concerned subsection file only. PW-15 in his last part of cross-examination has stated that he has signed all the bills after pre-checking the bill on the basis of MB and route index diagram ascertaining that everything was in order, according to rules and instruction. From the trend of their evidence it appears that it is their duty to exhibit the documents as if, it is the duty of the Court to shift and analyses those documents. It is the cardinal principle of Criminal Jurisprudence that prosecution has to prove his case by his own stands and ingredient of the respective offences, is to be proved. Although PW-13 has exhibited large number of MBs in his evidence pertaining to the different subsections and also about the payment to the respective contractors but in his cross examination he has states that he never dealt with the MB, the bills pertaining to subsections in the present case and whatever he stated before the Court based on the documents produced before him in the Court and after going through the documents whatever written on those documents. In view of the above, no credibility can be given to their evidence and no reliance can be placed on those documents. 35. The evidence of PW-10/Sh. Jibotosh Biswas, PW-12/Sh. Subhabrata Gupta, PW-14/Sh. Arunadaya Chakraborty, PW-16/Sh. K. K. Das, PW-19/Sh. Debasish Mitra, PW-20/Sh. S. R. Bali, PW21/Sh. Purna Bodo and PW-24/Sh. Samar Kr. Panda are not relevant as they are the witnesses who have stated about the seizure of several documents pertaining to the work in question by the IO like tender documents, bills against the works by different contractors, survey reports, project estimates etc. Except exhibiting the documents they have not stated anything about the allegation that has been raised against the accused persons. Their evidence is totally silent about the role played by the officials as well as the contractors while awarding the contracts and drawing of bills. Except exhibiting the documents they have not stated anything about the allegation that has been raised against the accused persons. Their evidence is totally silent about the role played by the officials as well as the contractors while awarding the contracts and drawing of bills. Two parallel sets of evidence has been adduced by prosecution, one set of which said about the seizure of documents without indicating anything about criminal activity that has been conducted by the accused persons and another set of witnesses who although was witnesses to the joint inspection could not say anything about the content and authenticity of the report prepared by the IO. 36. The PW-25 T. Thangzalin was originally entrusted with the investigation and he stated that during the investigation he examined some witnesses and seize some relevant documents through exhibit 74/190/191. His evidence is limited to the extent. 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 Jorhat Dimapur Kohima 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. The AT team had sought relaxation of depth of OFC trenches from the CGM, NEFT because the cable was not laid at the standard depth of 1.65 meter. The CGM accorded the relaxation of depth the OFC. Such facts have been stated none other than the prosecution witnesses. As the entire route is hilly and rocky area, therefore the project cost increases and therefore, a revised estimate was prepared and the same was duly approved by the CGM, Task force. The work was executed in the year 1996. After completion of the work, the cable was offered to the AT team for inspection and as the AT team detected some defect at the first instance in the year 1999, therefore, the contractor was asked to rectify the same. After rectification of the defects, the cable was again offered to the AT team and the AT approved the same. Thereafter the cable was handed over to the maintenance organization. After handing over the cable to the maintenance organization, a team of 5 officers from the AT and the Maintenance organization was constituted and accordingly, they carried out the joint inspection as per the Route Index Diagram and after inspection, as everything was in order, the said team approved the same. Another inspection was carried out at the directorate level and the said team also inspected the cable as per the Route Index Diagram and after inspection, they accepted the cable and accordingly, the cable was formally handed over to the maintenance organization. The SDE prepared the MB on the basis of the route index diagram and the bills and the same were rectified by the DE. The 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. During this period of seven years, the condition of the cable has been changed due to land slide, soil erosion, damaged caused by the PWD etc, which has been corroborated by several prosecution witnesses, but the CBI has neither collected any report from such organization nor exhibited the same. That CBI has made the joint inspection without the route index diagram inasmuch as the same has not been exhibited in the case. The CBI has also not exhibited the AT report, Joint inspection report prepared by the officers of the AT and the maintenance organization and the joint inspection report prepared at the Directorate level. The sub-section file which contained about the deviation statement and the approval from the authority although seized by the IO but not produced. Due to such serious lapse on the part of the IO, the authenticity of the joint inspection report is itself at shake. The CBI had not made the JAO, the ETR personal, CGM, Task Force NER, as witness and/or accused in the case, under whose supervision, the work was executed and who had verified and/or inspected the work. The CBI had prepared the joint inspection memo at their office and the signatures of the witnesses were taken at their office as well as in the hotel after two days that too without allowing them to verify the figure recorded at the time of the inspection. The witnesses to the joint inspection has not supported the content of the said report save and except their signature in the report. At the time of carrying such joint inspection by the IO, no soil testing expert was with him nor any comparative chart was prepared having regard to the route index diagram to show the actual amount tendered and about the deviation as regard the nature of soil, depth of trench etc. The only verbal evidence of the IO which was not supported by documentary evidence and not corroborated by his own witness is not enough to prove such serious charges against the appellants. The 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. The official witnesses so far examined by prosecution except exhibiting the documents has not brought anything on record to reflect that the officials entered into conspiracy with the contractor while awarding the contract, rather evidence reveals that the contract was awarded in due manner after evaluation by tender evaluation committee. No any witness has stated about the irregularities in the tender process. The joint inspection report prepared by the IO is highly disputed documents as the witnesses to the same has totally fail to prove the authenticity of the said report, where as the whole prosecution case is projected only on the basis of the said inspection report. The assessment made and shown in the joint inspection report cannot at all be held to be proper as it was not made on the basis of extremely relevant documents i.e. the tender documents, route index diagram, MBs. The said report lost its credibility due to lack of supporting evidence to its content. Findings of nature of soil, depth, RCC protection etc., after long years of execution of the work, that too after repairing works carried by the department, widening of roads and natural calamity etc., appears to be natural which has been admitted by the witnesses in their cross examination. Nothing has been brought on records that tender documents, MBs etc., has been manipulated for the purpose of illegal gain. Survey report indicates the area where the works are carried out hilly and rocky area and it is extremely difficult to reach the required depth of 1.65 metres which has resulted that while executing the work, the estimated depth in all the sections could not be achieved. No subsections wise estimate was prepared at the time of joint inspection by IO to get the exact report of the locations. The measurements taken by the IO could not co-relate with the route index diagram. In such eventuality no explicit reliance can be given to the joint inspection report. FINDINGS 37. In view of all what have been discussed above, the deviation that has been found by the IO at the time of his inspection after 7 years of execution of the work will not itself indicate the criminal liability of the officials as well as the private contractors. FINDINGS 37. In view of all what have been discussed above, the deviation that has been found by the IO at the time of his inspection after 7 years of execution of the work will not itself indicate the criminal liability of the officials as well as the private contractors. Evidence indicates prior approval was taken for such deviation of work by the site engineer which is in the sub-section file that the said important file was withdrawn from producing before the Court. The tender document says that estimated amount is not final, survey report says that the standard depth cannot be acquired, witnesses said due to natural calamity like heavy rain fall, soil erosion as well as broadening of road many a times disrupted the places of cables. The cables were found at the time of joint inspection at their places and certainly the change of nature of soil and damage to the protection etc. is natural due to the above reasons. It reflects that the MBs have been countersigned by the Director, OFC, duly pre-checked by JAO, OFC (P) and finally passed by Account Officer, Microwave Project and thereafter payment was made to the contractor on the basis of actually executed quantities and at the approved tender risk. The prosecution witnesses as discussed above that the work in question was completed as per tender document and under the supervision of the authority and none of the witnesses speak about any illegality except some deviation of amount in respect of soil and depth of the trench. 38. The notable aspect of the case is that the case was registered on source information by CBI but source is not disclosed. The higher authority of the department has not come forward with allegation and the case was independently investigated by the CBI officials and has conducted the joint inspection by the IO in presence of the police officials and the officials from the BSNL but none of the witnesses have supported the evidence of the IO on material aspect, rather they show ignorance about the findings made by the IO, whereas, the whole case revolves around the joint inspection made by the IO. No implicit reliance can be made upon such joint inspection report, the authenticity of which is itself clouded by shadow of doubts. No implicit reliance can be made upon such joint inspection report, the authenticity of which is itself clouded by shadow of doubts. More so, the witnesses reveals that the loss calculation has been made on the basis of such report, the content of which is not at all proved. Similarly, the depth of the trench and deviation of soil have also been calculated having regard to the findings of the joint inspection report and comparison of the findings with the original status of the project obviously cannot be the same. The findings of the survey report indicates that the projected area was hilly and rocky and prone to the landslide, couple with the oral evidence (particularly in cross-examination) reveals stoutly that condition of soil and depth of trench cannot remain same for variety of reasons as has been discussed above. 39. The department concerned was reluctant to accord sanction to prosecution as has been stated by own witnesses of the department and they mechanically accord the sanction for the third time on the basis of the CBI report (draft prosecution sanction was prepared by CBI as stated by one of the witness) as the CBI approach to CVC. It reveals that while awarding sanction, there was no application of mind to the relevant documents as well the status of the officials, whether they can be removed by the person who has accorded the sanction. 40. According to the learned Standing counsel for the respondent/CBI excess quantity of work was executed without taking prior approval of the competent authority and payment was made for those excess quantity of work whereas according to the clause 78 of the tender document, contractor shall not make any change of any work under the contract without written instruction from the site engineer, i.e. the DE. Refuting the said allegation, the learned counsel for the appellant pointing towards the evidence of IO as well as other witnesses, it has been urged that the witnesses said that the prior approval was taken for the excess work done for which excess payment has been made which aspect has entered in the subsection file and the same is not produced before the Court, despite seizure being made by the IO. 41. 41. It has also been argued from the side of the respondent that supervising authority, i.e., the DE has to conduct test check of the OFC trenches and protection of cable which is not done contrary to the provision rendering them liable for such illegality. Referring to the clause 132 of the tender document, the learned counsel for the appellant has submitted that the said submission is not true as the said provision is not mandatory but a discretionary and for non-compliance of the same, it may amounts to irregularity but not an illegality and same cannot be attributed any criminal liability on the part of the official concerned. It has been submitted that the Accounts Officer, who checked the bill, found the same correct and passed the bill without any objection. 42. Further contention raised by the learned counsel for the respondent that even after lapse of 7 (seven) years from the execution of the work, the protection of the cable cannot be washed away and vanished neither the soil condition cannot turn into soft soil from hard/rocky soil that was found at the time of joint inspection and the joint inspection report is proved by the witnesses. The same submission has also been refuted by the learned counsel for the appellant that witnesses to the joint inspection itself reveals that the cable was found in the working condition and all the protection work was not vanished but found damaged condition. It is vehemently contended by the learned counsel for the appellant that in view of the evidence on record itself regarding the land condition and other various factors, the RCC protection as well as the soil condition cannot remain the same as the area was prone to the landslide also. 43. Another piece of argument by the learned counsel for the respondent that the accused appellant has raised the bills for the excess quantity of work which was never executed by them and there is violation of provision of different clauses 60 (F), 73 (D), 78, 192 , 220. 43. Another piece of argument by the learned counsel for the respondent that the accused appellant has raised the bills for the excess quantity of work which was never executed by them and there is violation of provision of different clauses 60 (F), 73 (D), 78, 192 , 220. In reply, the learned counsel for the appellant has strenuously contended that such a piece of argument has no basis to rely as evidence on record never speak about violation of such conditions and the witnesses have admitted in their cross-examinations that the work was executed as per tender document and payment was made on the basis of the work actually executed by them. 44. On the case of the evidence on record, which has already been discussed, I found no force in the contention of the learned counsel for the respondent rather the submission of the appellant got support in terms of the evidence on record. Moreover, the veracity of the joint inspection report is itself at shake and not a proved document. 45. In view of the charge/allegations leveled, it was for the prosecution to prove affirmatively that the accused appellants by corrupt or illegal means or over abusing their positions obtained pecuniary advantage by making conspiracy with each other. But in the instant case, upon scrutiny of the evidence, it would go to show that save and except mechanically exhibiting the documents related to the work in question, the witnesses have not divulged anything on the above aspect. The prosecution cannot prove its case by mere exhibiting documents but authenticity and correctness of said documents also to be proved by the witnesses, which is absolutely lacking in this case. 46. Let us discuss the law pertaining to exhibiting of documents in evidence. In a landmark judgment, the law laid down by the Hon'ble Supreme Court in Sait. T. Khimsand and Ors. Vs. Yelamarti Satyam & Ors, (1971) AIR SC 1865 is Mere marking of an exhibit does not dispense with the proof of documents. Further, in Sudhir Engineering Co. Vs. NEEPCO Roadways Ltd.,1995 34 DRLJ 86, the entire law relating to the marking of exhibits and tendering documents in evidence has been dealt with. It has been held that mere marking and exhibit on a document does not dispense with the formal proof thereof. Relevant para is extracted below "Let me now look at the law. Vs. NEEPCO Roadways Ltd.,1995 34 DRLJ 86, the entire law relating to the marking of exhibits and tendering documents in evidence has been dealt with. It has been held that mere marking and exhibit on a document does not dispense with the formal proof thereof. Relevant para is extracted below "Let me now look at the law. Any document filed by either party passes through three stages before it is held proved or disproved. These are : First stage : when the documents are filed by either party in the Court; these documents though on file, do not become part of the judicial record; Second stage: when the documents are tendered or produced evidence by a party and the Court admits the documents in evidence. A document admitted in evidence becomes a part of the judicial record of the case and constitutes evidence. Third stage: the documents which are held 'proved, not proved or disprove' when the Court is called upon to apply its judicial mind by reference to Section 3 of the Evidence Act. Usually this stage arrives the final hearing of the suit or proceeding. I am of firmly opinion that mere admission of document in evidence does not amount to its proof. Admission of a document in evidence is not to be confused with proof of a document. When the Court is called upon to examine the admissibility of a document it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved, disproved or not proved the Court would look not at the document alone or only at the statement of the witness standing in the box; it would take into consideration probabilities of the case as emerging from the whole record. It could not have been intendment of any law, rule or practice direction to expect the Court applying its judicial mind to the entire record of the case, each time a document was placed before it for being exhibited and form an opinion if it was proved before marking it as an exhibit. The marking of a document as an exhibit, be it in any manner whatsoever either by use of alphabets or by use of numbers, is only for the purpose of identification. The marking of a document as an exhibit, be it in any manner whatsoever either by use of alphabets or by use of numbers, is only for the purpose of identification. While reading the record the parties and the Court should be able to know which was I he document before the winless when it was deposing. Absence of putting an endorsement for the purpose of identification no sooner a document is placed before a witness would cause serious confusion as one would be left simply guessing or wondering while was the document to which the witness was referring to which deposing. Endorsement of an exhibit number on a document has no relation with its proof. Neither the marking of an exhibit number can be postponed till the document has been held proved; nor the document can be held to have been proved merely because it has been marked as an exhibit. This makes the position of law clear. Any practice contrary to the above said statement of law has no sanctity and cannot be permitted to prevail." In LIC of India & Another. Vs. Rampal Singh Bisen, (2010) 4 SCC 491 it has been held as below - "Mere admission of document in evidence does not amount to its proof. In other words, mere marking of exhibits on a document does not dispense with its proof, which is required to be done in accordance with law. Under the law of evidence also it is necessary that content of documents are required to be proved either by primary and secondary evidence. At the most admission of document may amounts to admission of content but not its truth. Content of the documents cannot be proved by merely filing in the Court." 47. Although the learned counsel for the CBI in firm vehemence has contended that looking into the allegations leveled against the public servants and the findings of the Trial Court needs to be confirmed, but looking into the manner in which the case was conducted by the IO and non-appreciation of the relevant evidence by the Trial Court and discussion only one portion of evidence ignoring the entire evidence on record amounts to cause prejudice to the case of the defence. Miserably, the learned Trial Court has not discussed the relevant cross-examination of the witnesses and we may say so that even in their examination-in-chief, except exhibiting the documents to the work in question, their evidence is not specific to the allegations leveled. It is the cardinal principles of the criminal jurisprudence that prosecution case is to proof the each and every charges leveled against the accused to the heel and Court is to appreciate the entire evidence either oral or documentary in the touchstone of the authenticity. The Court is not expected to pick and choose one portion of evidence to arrive its conclusion by ignoring the other aspect as to whether said portion of documents is proved or substantiated as per law, which is found missing in this case. So far as the revealment by the witnesses, plausibility of involvement of accused persons with the offence alleged is not forcefully made out, rather it indicates another view that the work in question was carried out without any illegality. There may be some irregularity here and there for raising the cost of soil without having proper sanction at relevant time but in view of the evidence surfaced, it also indicate on the basis of actual finding in the field the status of soil as well as depth of trench may differ which has resulted the variation of cost against the estimate. As there is no clear picture depicted by the prosecution itself, the Court is not obliged to carry out own exercise to arrive at a conclusion which is not otherwise proved. 48. Now, in the instant case, the impugned judgment reveals that the learned Trial Court counted the content of different exhibits regarding the bills, MBs etc., whereas, the said documents were not proved by the witnesses themselves. Most of the witnesses in their cross-examination has stated that they have no personal knowledge about those exhibited documents and they have marked the document in the Court as shown to them and this was the evidence of the officials of the department concerned and in such pretext, it will be more vulnerable to decide the case on such unproved documents. 49. In Abdullah Mohammad Pagarkar etc. Vs. 49. In Abdullah Mohammad Pagarkar etc. Vs. State (Union Territory of Goa Daman Dieu), (1980) CriLJ 220 where a public servant and contractor were prosecuted under prevention of corruption act and Section 420, 468, 471 IPC for defrauding the government by submitting false bills of the work done, it has held that thought the work was got executed in flagrant disregard to the relevant rules and even ordinary norms of procedural behavior of governmental official, contractor such disregard did not amount to say any of the offences alleged against them. The onus of proof of existence of every ingredient of the charge always rest on prosecution and never shift. It was incumbent therefore on the State to bring out beyond all reasonable doubt that the number of labourers actually employed in carrying out the work was less than that stated in the summaries appended to the bills paid by the government, the accused could not be convicted relying on the mere impression of prosecution witnesses regarding the number of labourers employed from time to time. No doubt there several irregularities giving rise to strong suspicion in regard to the bonafide of accused in the matter of execution of the work but suspicion however strong, could not be substitute for proof. And it was not permissible to place the burden of proof of innocence on the person accused of criminal charge. 50. It has been held in Sujit Bishwas VS. State of Assam, (2013) 8 JT 570 the suspicion however great it may be, cannot take place of proof and there is a large difference between something that will be proved. In criminal trial suspicion no matter how strong cannot and must not be permitted to take place of proof. This is for the reason that the mental distance may be and must be quite large and divides vague conjectures from sure conclusions. In a criminal case, the Court has a duty to ensure that mere conjecture and suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produce by prosecution before an accused is condemn as convict and the basic and golden rule must be applied. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produce by prosecution before an accused is condemn as convict and the basic and golden rule must be applied. An adverse inference can be drawn against accused only if the incriminating materials stands fully established and the accused is not able to furnish any explanation for the same. 51. The present case is required to be examined in the light of the aforesaid settled legal propositions. The work in question was completed in the year 1995-96 and the IO made a joint inspection in the year 2003 and come up with the allegation regarding deviation of soil in the work place, non finding of RCC protection, non having of required depth of the trench in the work in question and while arriving such finding, the prosecution has failed to brought all the necessary documentary as well as oral evidence for arriving such conclusions, so the said finding in the joint inspection is conjecture and summarizes. The evidence that has been surfaced indicates the reasons for non achieving the required depth of the trench and also the change of nature of soil and RCC protection as well. Already three level inspection was carried out after completion of said work at the time of delivery the work in question to the maintenance department and as such the say of maintenance department on the subject was very much crucial but no such person was associated at the time joint inspection carried by the IO. The difficult terrain where the OFC was laid couple by different factors that arose at the time of the execution of work has made the authority to change the quantum of works, nature of soil on the basis of practical finding in the field which has been indicated by the evidence itself. In the given circumstances raising of bill for excess amount cannot be solely attributed as criminality while for such deviation, approval of the higher authority (the same was entered in the sub-section file, but not produced). 52. In the given circumstances raising of bill for excess amount cannot be solely attributed as criminality while for such deviation, approval of the higher authority (the same was entered in the sub-section file, but not produced). 52. The official witness that has been examined by prosecution has not supported the allegation as leveled in the FIR and except mentioning about some excess in the running bills, their evidence is silent while about the unfair means adopted by the officials or the contractor while awarding the work and the execution. The bills were duly prepared and pre-checked by all the authorities having regard to the MBs and the Accounts Officer finally passed the bill without recording any sort of discrepancy on record. The learned Trial Court centered around his discussion only on the running bills which shows some excess amount but has not at all discussed all the material evidence on record. The appreciation of all evidence on record is a must prior to reaching a conclusion. As has been held in Sujit Biswas, in criminal case charge has to be proved by clear, cogent and unimpeachable evidence and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based on the comprehensive appreciation of all features of the case as well as the quality and credibility of the evidence brought on record. The Court must ensure that the miscarriage of justice is avoided and in the facts and circumstances of the case so demand, that the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, prevail or nearly a probable doubt but a fair doubt that is based upon reason and common sense. Further it is held that in the circumstances proved in a case consistent either with the innocence of the accused or with his guilt, that the accused is entitled to benefit of doubt. Further it is held that in the circumstances proved in a case consistent either with the innocence of the accused or with his guilt, that the accused is entitled to benefit of doubt. The Section 415 of the IPC defines cheating as under : "Section 415 - Cheating - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat'. An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied : (i) deception of a person either by making a false or misleading representation or by other action or omission; (ii) fraudulently or dishonestly inducing any person to deliver any property; or (iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit. For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out. One of the ingredients of cheating as defined in Section 415 of the Indian Penal Code is existence of an intention of making initial promise or existence thereof from the very beginning of formation of contract." 53. None of the ingredient of cheating is proved in the instant case against any of the accused. The Section 13 (1) (d) and Section 13 (2) of Prevention of Corruption Act read as follows "13. Criminal misconduct by a public servant - (1) A public servant is said to commit the offence of criminal misconduct, -.. None of the ingredient of cheating is proved in the instant case against any of the accused. The Section 13 (1) (d) and Section 13 (2) of Prevention of Corruption Act read as follows "13. Criminal misconduct by a public servant - (1) A public servant is said to commit the offence of criminal misconduct, -.. (d) if he, - (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than (four years) but which may extend to (ten years) and shall also liable to fine." 54. The learned counsel for the appellants strenuously argued that to convict an accused for an offence under Section 13 (1) (d) and 13 (2), the prosecution must establish that by corrupt and legal means the accused has obtained for himself or for any other person any valuable things or pecuniary advantage but in the present case there is no evidence on record the appellants/the public servants obtained any amount by corrupt or illegal means and conviction of the public servants/the two appellants is not sustainable in absence of such requisite evidence. The decision of Subash Parbat Sonvane Vs. State of Gujarat, (2002) 5 SCC 86 is relied on the aspect. 55. In the aforesaid decision, para 6, it has been held that for convicting the person under Section 13 (1) (d) that there must be evidence on record that the accused obtained for himself or others any valuable things or pecuniary advantage either by corrupt or illegal means or by adducing his position as a public servant without any public interest. In the present case, there is a lack of evidence on the above aspect. 56. On the next, the appellants have relied upon the decision rendered by the Hon'ble Apex Court in B. Jayaraj Vs. In the present case, there is a lack of evidence on the above aspect. 56. On the next, the appellants have relied upon the decision rendered by the Hon'ble Apex Court in B. Jayaraj Vs. State of A.P., (2014) 3 JCC 1552 wherein it has been held that the presumption under Section 20 of the P.C. Act can be drawn only in respect of offence under Section 7 and not the offences under Section 13 (1) (d) (i) (ii) of the Act. In any event it is only on the proof of acceptance of illegal gratification presumption can be drawn under Section 20 of the Act that such gratification was received or doing or for bearing any official act. Applying the proposition laid by the aforesaid decision, the statutory presumption also cannot be drawn against the public servant/the appellants herein. The upshot of the forgoing discussions will be (1) The prosecution did not laid down any foundational facts to arrive at a finding of dishonest intention on the part of the appellants nor any such findings have been arrived at by the Trial Court. (2) The prosecution evidence does not establish neither the conspiracy nor any criminal misconduct on the part of the accused appellants as per the allegation. (3) None of the charges leveled is proved beyond all reasonable doubts. For the aforementioned reasons the impugned judgment and order being unsustainable is set aside. The appeals are allowed and accused are acquitted from the charge. Appellants are on bail, their bail bonds stands discharged. Return the LCR.