JUDGMENT : Rumi Kumari Phukan, J. As all the appeals arose from the same judgment in special case 18/2006 they are taken up together and being disposed with this common judgment. Heard Mr. B. M. Choudhury, learned counsel for the appellants in Crl. Appeal 01/2015 & Crl. Appeal 06/2015; Mr. D.S. Choudhury, learned counsel for the appellant in Crl. Appeal 03/2015 as well as Mr. A.K. Das, learned counsel for the appellant in Crl. Appeal 13/2015. 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 depth 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 depth and hence the RCC protection had to be given over the cable. Hence acceptance testing of the OFC route had to be done by the T&D Circle. After successful completion of acceptance testing, the route was handed over to the Eastern Telecom Region for maintenance purposes. 5. An FIR was lodged by the Inspector of Police of the CBI, Silchar on 14.09.2001 to the effect that they got a reliable information that the accused public servants and different contractors while laying optic fibre cable which was awarded by the Divisional Engineer (OFC) to different contractors during 1995-96 for execution in different subsections of the Imphal-Moreh route by paying excess amount to those contractors against approved rates and the tendered quantities of the work. The excess payments were made on account of deviations and in quantity of works and increase in the quantity of the works including unauthorized payment against some items which were not tendered. 6. It is alleged that appellants while working in their respective capacities by abusing their official position and in connivance with the other officials and the contractor/the appellant criminal appeal 13/2015 (the appellant Sh. Raj Kumar Das was awarded the contract to execute the OFC laying in respect of SS 3A of Imphal Moreh route) thereby caused undue loss to the exchequer by committing the following omissions and commissions. (1) Approval of tenders at exorbitant rates much higher than the estimated rates. (2) Deviations in the quantity of hard and rocky soil by increasing the same much more than the quantities indicated in the tenders, certifying the execution of increased quantities and causing payments accordingly by passing the questioned bills, apparently because the rates for these items were much higher than the estimated rates. (3) Deviations in the execution of quantities of works for soft soil by decreasing the same apparently to favour the contractors because the rates of these items were lower than the estimated rates. (4) Deviations in the concreting works by showing executions of increased quantities of concreting works against the tendered quantities. (3) Deviations in the execution of quantities of works for soft soil by decreasing the same apparently to favour the contractors because the rates of these items were lower than the estimated rates. (4) Deviations in the concreting works by showing executions of increased quantities of concreting works against the tendered quantities. (5) Falsely certifying the unwarranted concreting works and RCC/GI pipes laying and causing payments by passing the bills of the contractors for these items. (6) Falsely certifying higher depth than the actual depths and excess payments against these items. (7) Payments in excess of expenditure sanctioned in violation of rules. 7. Further it is alleged that the accused public servants and the contractors conspired among themselves and in pursuance of the said conspiracy, excess quantity of some items in the works was shown to have been executed unauthorizedly without ex-post-facto approval from the competent authority and payments were made at the tendered approved rate instead of departmental rates for which financial loss caused to the department of Rs. 2,68,949/-. At the time of random technical checking conducted by the CBI during preliminary inquiry reveals that the appellants with collusion with the contractor have cheated the department by way of excess payment to the contractor towards execution of excess quantity of work without approval from the competent authority and that too at the approved rate instead of departmental rate and by making false entries in the MBs showing execution of various works which are not actually executed as recorded in the MB. 8. During investigation, the IO visited the spot, recorded statement of the witnesses, seized a number of documents and after obtaining necessary sanction against the public servants submitted charge-sheet u/s 120B/420/468/477A of the IPC read with Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 against all the appellants. 9. The learned Trial Court accordingly took cognizance of the offence against appellants and framed charge u/s 120B/420/477A of the IPC read with Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and explained to the accused appellants to which they pleaded not guilty. 10. Prosecution examined as many as 26 witnesses and defence examined none. The plea of defence is of total denial. Statement of accused persons u/s 313 Cr.P.C. was recorded wherein they have denied the allegations. 11. 10. Prosecution examined as many as 26 witnesses and defence examined none. The plea of defence is of total denial. Statement of accused persons u/s 313 Cr.P.C. was recorded wherein they have denied the allegations. 11. The learned Trial Court on conclusion of trial convicted and sentenced appellants to r/i for 1 year u/s 120B of the IPC and r/i for 2 years with fine of Rs. 5,000/- each u/s 420 of the IPC. 12. Appellant P. K. Bagchi is sentenced to r/i for 2 years with fine of Rs. 5,000/- u/s 477A of the IPC and r/i for 2 years with fine of Rs. 5,000/- u/s 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and in default to s/I for 3 months. 13. Appellants M.L. Sarma and A.C. De are further sentenced to r/i for 2 years with fine of Rs. 10,000/- each u/s 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and in default to s/i for 3 months. All the sentences are directed to be run concurrently. 14. Aggrieved by the aforesaid order and judgment of the conviction present appeals are preferred. 15. Appellants in criminal appeal 1/2015 and 3/2015 were working as DE(OFC) and the appellant in criminal appeal 6/2015 was working as the Director(OFC) and appellant in criminal appeal 13/2015 was a contractor with the department. 16. I have heard the argument of learned counsels for both the parties at length and there is deliberation from both the sides on the evidence on record and the appreciation thereof. It has been vehemently contended by the learned counsel for the appellants that without proper appreciation of entire evidence on record, the learned Trial Court has come to a conclusion on the basis of joint inspection and surmises and conjecture, which is not sustainable in law. Per contra, according to the learned standing counsel, CBI, in view of apparent findings of excess payment by the appellants to the contractors for the work in question, as per the joint inspection report, against the estimated amount in the tender document, the appellants are rightly held guilty by the Trial Court which calls for no interference. Contention raised by appellants (officials): 17. At the very outset, it is submitted that the learned Trial Court has not appreciated vital evidence on record and has ignored material evidence on record which needs consideration. Contention raised by appellants (officials): 17. At the very outset, it is submitted that the learned Trial Court has not appreciated vital evidence on record and has ignored material evidence on record which needs consideration. The learned counsel for the appellant has led this Court towards the various aspects of the witnesses which they divulged during the cross examination which is totally inconsistent with the allegation raised in the charge-sheet. It is pointed out that the Director OFC has no field duties; and as per provisions contained in Clause 132 of the tender document, he can inspect the work during its progress as provided below:- "All work under or in course of execution or executed in pursuance of the contract shall at all times to open to the inspection and supervision of the Engineer-in-Charge and his authorized subordinates, and the contractor shall at all times during the usual working hours, and at all other times at which reasonable notice of the intention of the Engineer-in-charge or his subordinate, to visit the works, shall have been given to the contractor, either himself be present to receive orders and instructions, or have a responsible agent duly authorized in writing present for that purpose. Orders given to the contractor's agent shall be considered to have the same force as if they has been given to the contractor himself. The work during its progress can also be inspected by Director, Telecommunications and Chief General Manager Telecom." 18. Sh. S.N. Malakar (PW-21) was specially deputed for this work. In his cross-examination, he has stated as follows:- "I was called specially to repair OFC on Imphal Moreh and Imphal Churachandpur routes. The OFC cables had been damaged as a result of clearing of debris, accumulated from landslides, by JCB and excavation of the drain by the side of the hills by JCBs and also as a result of widening of road by the PWD. After repairing, the cable was offered for A/T (Acceptance & Testing). It is correct that A/T team verified the depth of the cable and protection over the cable from the Route Index Diagram (R.I.D.). It is correct that the OFC could not be commissioned unless it was accepted/approved by the AT team. AT had raised some objection at the first instance. After removing all those objections, I offered the OFC again for AT. It is correct that the OFC could not be commissioned unless it was accepted/approved by the AT team. AT had raised some objection at the first instance. After removing all those objections, I offered the OFC again for AT. AT had sought relaxation of depth of OFC trenches from the CGM NETR. It is correct that AT had sought relaxation of depth of cable because the cable was not laid at the standard depth of 1.65 metres. The CGM accorded the relaxation of depth the OFC. I had offered the cable, after approval of AT, to the maintenance organization. Thereafter, a joint team of 5 officers of executing and maintenance organization consisting of (1) Ashok Kumar, DETP/NETF, Guwahati (2) E. Swer, DE Maintenance, ETR, Imphal (3) S.N. Malakar, DETP/NETF, Guwahati (PW-20 himself) (4) Maria Pragasam, SDE, OFC, NETF, Imphal and (5) W. Inaopi, JTO Maintenance ETR, Imphal, was constituted. It is correct that the joint inspection team again verified the depth of the cable and protection. It is correct that a memo was prepared with regard to the sample test check of OFC with regard to the depth of the cable and protection over the OFC. It is correct that during joint inspection, the random test check was conducted in each sub-section of the entire route. The depth and protection was found correct as per Route Index Diagram. I was present during joint inspection and I had signed the memo. It is also correct that a joint inspection was again conducted at the Director level on both the routes i.e. Imphal Moreh and Imphal Churachandpur. Sri Sailendra Agarwal, Area Director, NETF, Guwahati and myself were present from OFC side and Director (Maintenance) ETR, Shillong was also present there. I had singed that memo. The depth and protection noted by A/T was checked at the Director level during joint inspection. After full satisfaction with regard to the depth and protection over the OFC as per Route Index Diagram, the maintenance organization took over the charge of the OFC and I had handed over the charge of the cable to the maintenance. This exercise was done both at Imphal Moreh route and Imphal Churachandpur route. I had signed the joint inspection memo prepared by maintenance organization and executing staff. This exercise was done both at Imphal Moreh route and Imphal Churachandpur route. I had signed the joint inspection memo prepared by maintenance organization and executing staff. The responsibility of the executing staff with regard to depth and protection of the OFC came to an end and thereafter it became the responsibility of the maintenance organization." He has further admitted that "it is correct that after a period of 7 years, the depth and protection of cable cannot remain the same. It is correct that the depth of the cable will be reduced due to soil erosion and also due to use of JCB machine. Landslides occur frequently in this area due to rainfall. It is correct that due to heavy rainfall, the soil, protection and many times cable is washed away and communication is disrupted. The category of soil may not remain the same. It is correct that tendered/estimated cost and quantities may not remain same. It is correct that the additional quantities are deemed to have been included in the tendered quantity as per clause 46 of the tender document. It is correct that payment to the contractor is made on the basis of the actual executed quantity as per clause 47. It is correct that site engineer is the competent authority to decide the depth of cable and the category of soil. It is correct that the DE will conduct test check as per clause 192 only if he considers necessary." The IO (PW-26) M.T. Mang has admitted all these facts in his cross-examination in the following terms:- "It is correct that the A/T was conducted by the office T&D (Technical & Development) circle. The controlling officer of the AT is the CGM, T&D Circle Jabalpur. It is correct that CGM NETF has no control over them. It is correct that the officers of AT verified the depth and protection of the cable as per Route Index Diagram. It is correct that the officers of AT team commissioned the cable only when they found it correct. It is correct that I had seized AT report. It is correct that after AT, a joint inspection was conducted by the officers of OFC and ETR (maintenance). It is correct that they also verified the depth and protection of the cable as per Route Index Diagram. It is correct that I had seized the joint inspection report. It is correct that I had seized AT report. It is correct that after AT, a joint inspection was conducted by the officers of OFC and ETR (maintenance). It is correct that they also verified the depth and protection of the cable as per Route Index Diagram. It is correct that I had seized the joint inspection report. It is correct that a depth check report was also prepared at the Director level in presence of the Additional Director and Director (Maintenance), Shillong. It is correct that I had seized this report also. Since I did not feel that these documents i.e. A/T report, joint inspection report, I did not enlist them in the list of documents enclosed with the charge sheet." It is submitted that from the testimony of Sh. S.N. Malakar (PW-21) and the admission of the same by IO (PW-26) that the work executed by the OFC staff was verified three times as per Route Index Diagram in respect of the depth of the cable and the protection applied to it. Each time, it was found correct as recorded 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 was made out against the appellant in view of the said reports. The responsibility of the appellant came to an end and thereafter it became the responsibility of the Maintenance organization to maintain the cable. It is pointed out that the CBI did not associate any person from the Maintenance organization during investigation. On this ground alone, the impugned judgment is liable to be set aside and the appellant is entitled to acquittal. 19. Pw-19 (Sh. Ranjeet Narayan Chakraborty), an officer of the A/T, has deposed as under:- "During A/T, I had checked cable depth and protection provided. In case of depth of trenches was less than the specified standard depth and without protection, the approval of the concerned officers had to be obtained. The approval of competent authority was obtained for less depth in this case. The less depth means the depth is less than the standard depth of trenches. Upto 120 cms depth, no protection was required and less than 120 cms protection is required. The approval of competent authority was obtained for less depth in this case. The less depth means the depth is less than the standard depth of trenches. Upto 120 cms depth, no protection was required and less than 120 cms protection is required. If the depth of the trench is less than 120 cms and more than 90 cms, then cable is to be protected by RCC/GI pipe. If the depth of the trench is less than 90 cms, it is to be protected by RCC concreting. If the depth of the trench is less than 30 cms, the works is not accepted by A/T. We opened the trench by making a pit over the cable. I alone conducted A/T of OFC cable on ImphalMoreh route. My DE/AT did not accept my report due to certain defects in respect of A/T. It is correct that the OFC was again offered for A/T after correction of defects found during previous A/T. I conducted A/T again and submitted their report to the DE, A/T. Finally, the OFC was accepted by the DE. The DE declared the commissioning of cable after finally accepting it. It is correct that at most of the points checked by A/T, the depth of the cable was found more than that recorded in the route index diagram. It is correct that the concerned site engineer is the competent authority to decide the depth of cable and type of soil. It is correct that AT team verifies the depth and protection of the cable by comparing it with Route Index Diagram (RID)." The statement of PW-19 does not leave any space for CBI to doubt the authenticity of the entries recorded in MB or Route Index Diagram with regard to depth of the cable, protection over the cable and also the category of soil which may undergo changes after over a period of 7 years, particularly in a hilly and rocky area. This witness is the right person who had personally verified the depth and protection of the cable as per Route Index Diagram. Particularly, the IO, PW-26 M.T. Mang, in his cross-examination, has admitted that "It is correct that the road was widened by that time." 20. Joint INSPECTION BY CBI The joint inspections, conducted by CBI, are the backbone/basis of the entire case. Particularly, the IO, PW-26 M.T. Mang, in his cross-examination, has admitted that "It is correct that the road was widened by that time." 20. Joint INSPECTION BY CBI The joint inspections, conducted by CBI, are the backbone/basis of the entire case. The CBI has pointed out discrepancies in the depth of cable and type of soil. As pointed out earlier, the alleged Joint Inspections were conducted by CBI, in the year 2001-2003 i.e. after a gap of more than 5-7 years of the execution of work in the year 1996. The Ld. Trial Court misdirected itself by merely placing reliance on the same at the instance of IO ignoring the evidence of the other members of joint inspection team, who deposed as follows:- PW-14, Sh. Th. Rajendra Singh has stated, "During excavation, the earth which was lifted out from the trenches was the same earth that had been used for filling up trenches. Whenever landslides occur the JCB machines are being used to clear the debris. Due to heavy rain fall soil erosion also take place. After the execution of OFC laying work, roads along which cable was laid, have been widened. Hence, the cable is required to be repaired and shifted. Due to bomb blasting perpetrated by the insurgents OFC cable had been damaged for which experts had been called from Jorhat to repair those damaged cables. After AT cables are commissioned. The depth of the cable trenches and the types of soil in respect of those trenches may undergo changes over a period of 5 years." PW-15, Sh. S.M. Singh has stated that "I had no role to play in this case. I signed the inspection memo at the instance of CBI in the office of DE. Inspection continued for about 1 month. I signed the memo after completion of the inspection. I don't know if the memo was prepared at site. I didn't sign there. CBI had already prepared the memo before I was asked to sign. I was called earlier by CBI for my statement about 3 years back; but, I returned without making any statement as I did not agree to make a false statement as instructed by CBI officers." PW-16 Sh. L. Nishikanta Singh has stated that "The depth was measured by taking the base as the top of the protection of the cable. I was called earlier by CBI for my statement about 3 years back; but, I returned without making any statement as I did not agree to make a false statement as instructed by CBI officers." PW-16 Sh. L. Nishikanta Singh has stated that "The depth was measured by taking the base as the top of the protection of the cable. I did not notice any documents in the custody of the CBI team except for a diagram of the location. The said diagram had not been shown to me. I cannot say whether joint inspection report where I had signed is in respect of this case. The size of pit was 3' x 1 . I had signed the memo two days later. It was not prepared in my presence." PW-17 W. Sunil Singh has stated that "IO had decided the location of pits. The documents were in the custody of the IO. I do not know what was the document. I did not see any document with regard to the depth, type of soil and protection over the trenches where OFC was laid. There was no rocky soil in the entire section. Hard soil was found in one, two or three pits. I had worked on the directions of the IO. IO prepared memo at site and read over and explain its contents to all. After being aware all had put their signatures. None of the persons present had referred to any document during inspection. It is not a fact that the memo was prepared at CBI office and I have signed there. The entire stretch of OFC laying was soft and hard. I had not consulted any document." PW-18 Md. Abdul Salam Khan has stated that "I was present during inspection. I saw M.T. Mang working. I had seen OFC laying trenches with pipes in it. I saw the pipe was exposed to the air. There was no soil over it. The exposed pipe was 5 meter in length. I cannot recollect what M.T. Mang Inspector was doing at the inspection spot. After inspection, I had been asked by M.T. Mang to put my signature on a piece of paper. I do not know what was written on the said paper. M.T. Mang did not tell me what was written on the paper. I cannot recollect what M.T. Mang Inspector was doing at the inspection spot. After inspection, I had been asked by M.T. Mang to put my signature on a piece of paper. I do not know what was written on the said paper. M.T. Mang did not tell me what was written on the paper. The subsection falls on a hilly and rocky area." PW-20 B. Nag Chaudhary has stated that "Only depth was measured from the top of the cable protection provided over the cable. No route index diagram, measurement book or any other document were shown to me for reference or consultation. I cannot say anything about the correctness of the figures indicate in the joint inspection memo. I did not decide the category of soil. Only CBI personnel decides it. The CBI personnel did not consult any person for deciding the location of pit and category of soil. The joint inspection memo was prepared in the office of CBI. My signature was obtained in my hotel room on the joint inspection memo after 2 days. The IO had noted down measurements in diary but he did not produce the same before me at the time of my signature enabling me to ascertain the authenticity of the measurement of pits. I cannot say whether CBI recorded the figures in respect of measurements of pits correctly in the joint inspection memo or not. The joint inspection was carried out in hilly and rocky area. The cable was laid in the rocky area. It is correct that the soil excavated for making the pit was the same soil that was used at the time of making the trenches for laying the cable. The category of soil at the time of reopening the trench could not be same as the soil that was used to fill up the trenches for OFC laying earlier since the trenches were filled with soft soil for the protection of cable. It is correct that the depth of the cable and the protection used is verified from the route index diagram by A/T team. Thereafter a joint inspection is conducted by the officers of Maintenance & Execution. After taking over the OF cable, the maintenance of the cable is the responsibility of the Maintenance organization. I do not know how it is mentioned in the inspection report that RCC was found without iron rod. Thereafter a joint inspection is conducted by the officers of Maintenance & Execution. After taking over the OF cable, the maintenance of the cable is the responsibility of the Maintenance organization. I do not know how it is mentioned in the inspection report that RCC was found without iron rod. I did not notice any such development. There is no reference of KMP on the inspection report. KMP reference is nowhere in the route index diagram. The location of pits cannot be ascertained. I had no occasion to verify the figures from the IO's diary. I cannot say that the figures mentioned in the joint inspection memo are as per the figures recorded by the IO on the spot." PW-25 Sh. B.N. Malik has stated that "I had not seen route index diagram during inspection. The reference points shown in the joint inspection memo nowhere appear in the route index diagram. It is correct that the points on joint inspection cannot be located at the route index diagram without any reference points. On perusal of the joint inspection memo and route index diagram, I cannot say that the joint inspection memo pertains to the same subsection which is available on the record of this case." PW-26 IO, Sh. M.T. Mang has stated, "It is not a fact that without any reference of KMP in the route index diagram, none of the points of the inspection cannot be correlated with the original route index diagram. It is not a fact that I had not mentioned the figures in the joint inspection memo fictitiously at my own and got the memo signed by the concerned persons after a week." He has further admitted that "it is correct that the actual depth of cable and protection applied to entire trench cannot be ascertained without reopening the entire trench. It is correct that after conducting joint inspection between OFC officers and ETR officers, the cable was handed over to ETR officers for maintenance. He further admitted that "I did not associate any employee/officer of ETR (Maintenance) during joint inspection conducted by CBI. During joint inspection, the cable was in working condition and under the control of ETR staff. It is correct that after conducting joint inspection between OFC officers and ETR officers, the cable was handed over to ETR officers for maintenance. He further admitted that "I did not associate any employee/officer of ETR (Maintenance) during joint inspection conducted by CBI. During joint inspection, the cable was in working condition and under the control of ETR staff. The officers of OFC had no role to play in the maintenance of the cable at that time I had conducted the joint inspection and carried out the investigation." He has admitted that "It is correct that the road was widened by that time. I cannot say if the cable was shifted from its original position or not. I cannot say if the route indicators are also shifted over the cable when the cable was shifted due to road widening. ... Thus, only 0.3% of the work was tested." It is submitted that from the above evidence the very existence of the joint inspection memo becomes doubtful. It has no authenticity. The joint inspection memo is full of contradictions and inconsistencies right from preparation/signing of joint inspection memo to correlation of joint inspection memo with route index diagram. It is not correct to say that the IO can correlate the point even without any reference point whereas no reasonable and prudent person can. PW-20 (Sh. B Nag Chaoudhury) & PW-25 (Sh. B.N. Mullick), being engineers, could not correlate. PW-22 (Sh. S.K. Sikidar) also could not correlate the points of joint inspection with the corresponding point on the route index diagram in the absence of reference point. PW-22 Sh. S. K. Sikidhar in his cross examination deposed that "I have perused the route index diagram and joint inspection report and find that none of the points of inspection in the joint inspection report of CBI correlates with the route index diagram" The Trial Court misdirected himself by relying upon aforesaid erroneous and perfunctory joint inspection memo, which has no evidentially value. 21. Alleged LOSS AND ITS CALCULATION The Ld. Trial Court has held that the loss was caused to the department because of conspiracy between the contractor and the officers of the department and had relied upon Ex.34, the calculation sheet allegedly prepared by Sh. S. C Paul (PW-8) with the help of Sh. Mantu Ranjan Dutta. But PW-8 Sh. 21. Alleged LOSS AND ITS CALCULATION The Ld. Trial Court has held that the loss was caused to the department because of conspiracy between the contractor and the officers of the department and had relied upon Ex.34, the calculation sheet allegedly prepared by Sh. S. C Paul (PW-8) with the help of Sh. Mantu Ranjan Dutta. But PW-8 Sh. S.C. Paul has not stated anything about the calculation sheet and Mantu Ranjan dutta is not cited as a prosecution witness in this case. Interestingly the same has been got exhibited through Sh. K. S. Manoharan (PW-12) who never dealt with it. The Ld. Trial Court, in his judgment has unlawfully relied on EX-34, which has not been proved in accordance with law and the same is not admissible as per section 67 of Indian Evidence Act. It is submitted that when PW-12 Sh. K.S. Manoharan was not related to EX-34, then how he can prove Ex34. Thus the verification of EX-34 by him is not only irrelevant but also illegal and unauthorized. In fact PW-12 in his cross examination, admitted that "I had not dealt with those documents which had been shown to me by CBI in the year 2004 during investigation of the case. I had no role to play in preparation and processing of any of the exhibited documents in this case. ... I have no personal knowledge in respect of the exhibited documents. ... At the time Ex-34 was prepared I was not working at the said office. On the date of execution of document Ex34 I was working with NATFM, Hyderabad. It is correct that I have seen Ex-34 for the first time today in the court. My statement was based on Ex-34 without verification with the original document I cannot say whether the figures were genuine or not". He further deposed that "It is correct that at the time the document Ex-34 was executed I was not here, since I was transferred to Chennai in May-1996 itself". He further deposed that "I do not know who had prepared Ex-34, I merely identified the signature of S.C.Paul". But unfortunately, the Ld. Court has ignored all these vital facts and relied on illegal evidence to arrive decision. It is contended that there is no material/evidence on record to show that there has been any loss to the department. He further deposed that "I do not know who had prepared Ex-34, I merely identified the signature of S.C.Paul". But unfortunately, the Ld. Court has ignored all these vital facts and relied on illegal evidence to arrive decision. It is contended 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 the 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 entire record of the case, there is not even an iota of evidence which speaks about any loss having been caused to the department at the instance of the appellant or that they have obtained any pecuniary gain for themselves or for any other person which is an essential ingredient to make out an offence. On this ground alone, the judgment is liable to be set aside and the appellant is entitled to his acquittal. 22. The Ld. Trial Court in the impugned judgment has taken note of the following points to convict the appellant:- (a) It is mentioned in the judgment that "PW-25 confirmed the genuineness of contents of joint inspection memo". It is submitted that the Ld. Trial Court had completely ignored the above aspects, which have been highlighted w.r.t. the preparation and the contents of joint inspection memo by CBI. The PW-25 Sh. B.N. Mallick in cross-examination has stated that "I had not seen the route index diagram during Inspection. .... It is submitted that the Ld. Trial Court had completely ignored the above aspects, which have been highlighted w.r.t. the preparation and the contents of joint inspection memo by CBI. The PW-25 Sh. B.N. Mallick in cross-examination has stated that "I had not seen the route index diagram during Inspection. .... The reference points shown in the joint inspection memo are no where appear in the route index diagram. It is correct that the points on the joint inspection cannot be located at the route index diagram without any reference point. On perusal of the Joint Inspection memo and route index diagram I cannot say that this joint inspection memo pertains to the same sub-section which is available on the record of this case." He has further deposed that "There is no mention of Lilong Bridge in 330 KMP on the route Index Diagram but there is mention of Bridge on Route Index Diagram though the name of Lilong Bridge has not been specifically mentioned. It cannot be ascertained from the diagram as to what is the location of the Lilong Bridge and 330 KMP." He has gone to the extent of saying that the Joint Inspection memo does not relates to the present case (the case relates to SS 3A) in the following words:- "These joint inspection memos dated 17.08.2001 are in respect of three subsections SS 14, SS 13 and SS 10 and it does not relate to SS 3A." This clearly proves that joint inspection memo, on the basis of which the present case is registered and prosecuted, does not relates to SS 3A, as such the entire case is liable to be rejected. The reliance upon joint inspection memo Ex-47 is not correct and relevant with reference to the route index diagram of this sub-section, hence not tenable under any law and the punishment awarded on the basis of this illegal document is also bad in law. (b) It is mentioned in the judgment that it is evident that there was no rocky soil in the sub-section 3A. The Ld. Trial Court has ignored the evidences of following witnesses in this regard. PW-20 Sh. B. Nagchoudhary who was member of joint inspection team as independent witness deposed that the area where the joint inspection was carried out was hilly and rocky and the cable was laid in rocky area. The Ld. Trial Court has ignored the evidences of following witnesses in this regard. PW-20 Sh. B. Nagchoudhary who was member of joint inspection team as independent witness deposed that the area where the joint inspection was carried out was hilly and rocky and the cable was laid in rocky area. The Category of soil at the time of reopening of the trench could not be same because the digged trench after laying OFC is to be refilled with soft soil for protection of the cables in the trenches. This was as per tender condition and whenever redugged it will always find soft soil even in rocky area. PW-18 Sh. Md Salam Khan who was a joint inspection team member also stated in his cross-examination that this sub-section fall on hilly and rocky area. PW-21 Sh. S.N. Malakar who did the repairing work on this route also deposed in his cross-examination that the entire Imphal-Moreh route is hilly and rocky. PW-22 Sh.S.K.Sikidhar also deposed in his cross-examination that the work site along Imphal-Moreh OFC route is hilly and rocky. PW-23 Sh. Thoiba singh deposed in his cross-examination that the Imphal Moreh Route is hilly, rocky and it is prone to landslide and sinking zone. He further deposed that it is not possible that the condition of soil, depth of cable and protection may remain same after 7 or 8 years of its execution. PW-24 Sh.Raghunath Singh deposed in his cross-examination that "I had physically verified 108 Km between Imphal and Moreh during survey. The entire route falls in hilly and rocky area. The route is also prone to landslides and soil erosion and it is sinking zone. But unfortunately these facts on record are not taken into account by Ld. Trial Court while passing the impugned judgment. (c) It is mentioned in the judgment that PW-19 has not related the existence of any bridge between 330 to 332 KMP in his AT Report. The Ld. Trial Court has ignored the fact that A/T team checks the route by making trial pits as per Route Index diagram and in their findings they have never mentioned that there was no 100 mt long bridge in between 330 kmp to 332 kmp. It is pertinent to mention that any bridge can be seen from the naked eyes/visual inspection and for that the AT need not reopen the trench. It is pertinent to mention that any bridge can be seen from the naked eyes/visual inspection and for that the AT need not reopen the trench. Furthermore, this issue has not been alleged in the charge-sheet. APPROVAL OF COMPETENT AUTHORITY (d) It is mentioned in the judgment that there is no evidence on record how the accused M.L. Sharma, DE,OFC who had passed the 1st RA bill had reached the rate at Rs. 429/- per meter for item no 10.3 which is on higher side. The Ld. Trial Court has ignored the fact that Ex-27 is the Note-Sheet which is very well available on the record and on the note sheet in detail it is mentioned how the rate of Rs 429/- for excavation in rocky soil was calculated and this rate was duly approved by the competent authority. PW-26, Inspector M.T. Mang has also deposed and confirmed about the calculation of rate Rs 429/- for rocky soil (10.3). It is also to be mentioned here that rates are varying as per the site of location where work is to be carried out. TEST CHECKS BY DE (e) It is mentioned in the judgment that there is no evidence on record that final verification of the work of trenching in rocky soil for 520 meters and RCC work for 620 meters, that had not been assigned in the tender document had been done by DE who has the duty to test check 10% of the executed work. The Ld trial court has ignored the fact that DE has to conduct test checks as per Para 192 of tender document and as per Para 192 there is nowhere it is mentioned that DE has to conduct test check for 10% of executed quantity. PW-8 Sh. S. C. Paul, in his cross-examination, deposed that as per clause 192 of tender document, the discretion is given to the DE to conduct a test if necessary. PW-21 Sh. S. N. Malakar, in his cross-examination, deposed that it is correct that DE will conduct test check as per clause 192 only if he considers necessary, it is his discretion not a mandatory provision. PW-22 Sh. S. K. Sikidhar, in his cross-examination, deposed that "As per clause 192 of tender document for Imphal-Moreh route DE before passing the bill for any subsection has to carry out test checks by reopening the trenches at intervals if necessary. PW-22 Sh. S. K. Sikidhar, in his cross-examination, deposed that "As per clause 192 of tender document for Imphal-Moreh route DE before passing the bill for any subsection has to carry out test checks by reopening the trenches at intervals if necessary. There is no hard and fast instructions to carry out test checks by DE in respect of 10% of Work." PW-26 IO Inspector M. T. Mang has admitted that "it is correct that it is discretion of the DE to conduct test check or not. It is not mandatory." (f) It is mentioned in the judgment that the DE who passed the bill that was stopped by the CGM, as evident from the note sheet Ex-27 is liable for having passed the bill for such exorbitant amount. The Ld. Trial Court has ignored that fact 1st RA bill was passed by M.L.Sharma on 30/08/1996 after observing all formalities including the approval of competent authority and there was no remark of CGM on N/S-3 on which bill was processed and passed. Thereafter the appellant (M.L. Sharma) was transferred from the OFC project on 08.05.1997 (as per Ex-9/02). Whereas the remarks of CGM are there on the Notesheet-4 which is dated 04.08.1997 i.e. about 3 months after the transfer of the appellant. It is pointed out that the directions of CGM was with respect to cable pulling, which is a separate item/issue and not at all related with the 1st RA bill (which was passed by the appellant). Apart from this, the note sheets placed on record by the prosecution are incomplete and there was no material/reason/basis for the Ld. Trial Court to presume such a decision by CGM. Hence, the above observations of the Ld. Trial Court are factually incorrect and the appellant cannot be held liable for any bill which was passed subsequent to his transfer from OFC project. 23. The entire case is based on presumption and assumption. The IO (PW-26) himself has admitted in cross-examination, "it is correct that the actual depth of cable and the protection applied to it cannot be ascertained without reopening the entire trench." It has been admitted by the IO that only 0.3% of the work was tested. It is negligible quantity and that too cannot remain intact after 7 years of the execution of the work particularly, in a hilly area. INCORRECT ESTIMATION OF WORK 24. It is negligible quantity and that too cannot remain intact after 7 years of the execution of the work particularly, in a hilly area. INCORRECT ESTIMATION OF WORK 24. It has been admitted by the IO (PW-26) that no sub-section wise detailed estimate was prepared and without detailed estimate for each sub-section, the cost and quantities cannot be worked out. PW-21 Sh. S.N. Malakar has stated that "I had never seen any detailed estimate of each subsection of OFC on Imphal-Moreh and Imphal-Chourachandpur route." He further deposed that "It is correct that the estimated cost shown for each sub-section could not be correctly evaluated since no detailed estimate was prepared sub-section wise." IO (PW-26) Sh. M.T Mang in his cross-examination deposed that "It is correct that the quantities and figures shown in the tender document are not in survey report. The cost of OF cable laying cannot be same for all the 27 subsections i.e Rs 3 Lakhs as mentioned in the tender document. It is correct that contractor is paid at the approved tender rates." He further deposed that "It is correct that no subsection wise detailed estimate had been prepared and without detailed estimate for each subsection, cost and quantities cannot be worked out." He also deposed that "It is correct that estimated quantities are not final. The cost of execution may increase when there is an excess quantity of work." It is, therefore, evident that the estimated figures mentioned in the tender document are defective and not properly estimated. Consequently, they are bound to change. In accordance with clause 46 and 47 of the tender document, the figures/quantities mentioned in the tender document are not firm and final. They are subject to change. The changed quantities will be deemed to have been included in the tender schedule. In accordance with the clause 47 of the tender document, the payment to the contractor will be made according to the actually executed quantities at the approved tender rates. It has been done in the present case. The said clauses are reproduced here-in-below for the ready reference of the Court: "46. The quantities/figures indicated in the tender schedule are approximate and are subject to change. It has been done in the present case. The said clauses are reproduced here-in-below for the ready reference of the Court: "46. The quantities/figures indicated in the tender schedule are approximate and are subject to change. Any change effected shall be binding on the tenderer/contractor as though included in the original tender schedule and any such change will not make the agreement void and it is therefore essential that the tenderers binding all the documents carefully and not commit any mistake in analyzing the rates quoted and remain binding notwithstanding any changes as aforesaid. No revision of tendered rates shall be considered on any ground whatsoever. 47. The quantities indicated in tender schedule shall not be considered as representing firm/final quantities. All works shall be measured by Divisional Engineer or his authorized representatives. Amount payable to contractor shall be on the basis of actual work done by him at the rate approved by department." It is, therefore, abundantly clear that no excess payment has been made to the contractor. The excess payment alleged to have been made to the contractor is merely the difference between the estimated cost and the actually executed cost. The estimated cost can never remain same in any case. 25. Deviation Statement The issue regarding Deviation Statement does not pertain to the Charge-Sheet. However, the Ld. Trial Court has mentioned this fact in the judgment despite the fact that there is no oral or documentary evidence to substantiate the charge of not providing Deviation statement. Before clarifying this aspect it is necessary to understand as to what is Deviation Statement. Deviation statement is nothing but compilation of already approved work in running bills and all the running bills are already approved by the Director. It is nowhere mentioned in the Tender Document that the deviation statement will be submitted along with the bill. As and when asked by A.O (Accounts Officer) to provide deviation statement it was provided and it was not a mandatory provision as per tender document. The entire correspondence relating to the execution of work is available in the subsection file which was seized by the IO; but, he did not enlist the same. It is emphasized that PW-11 stated that the bills are put up before AO for payments only after obtaining approval of the competent authority for excess quantities. 26. The entire correspondence relating to the execution of work is available in the subsection file which was seized by the IO; but, he did not enlist the same. It is emphasized that PW-11 stated that the bills are put up before AO for payments only after obtaining approval of the competent authority for excess quantities. 26. 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. 27. According to the geological survey, about 91% of the area of Manipur is hard rock. According to survey report conducted by PW-5 Sh. R.N. Singh, the entire route is hilly and rocky. It will not be possible to lay cable at the standard depth of 1.65 metre. Hence, the protection of GI/RCC pipe and RCC is to be provided over the cable. The IO has also admitted that according to Survey reports, the entire route is hilly and rocky. 28. 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:- Bills are prepared by JTO and SDE (Site Engineers) on the basis of MB and Route Index Diagrams. 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. The DE, after perusing the remarks of the JAO and MB and Route Index Diagram, passes the bills. After passing, the bills are forwarded to Director for approval. 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. After passing, the bills are forwarded to Director for approval. 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. 29. The payment to the contractor has been made proportionately since the cable has not been laid at the standard depth of 1.65 meter. 30. The Head Quarter of the DE was at Guwahati whereas the work was executed in the State of Manipur. The execution of work is to be supervised by the site engineer who represents the government at site of work as per clause 72. 31. The Hon'ble Supreme Court in the case of Abdulla Mohammed Pagarkar etc, V State (Union Territory of Goa, Daman and Diu) 1980 CRI.L.J.220, while dealing with a case where a public servant and a contractor were prosecuted under the Prevention of Corruption Act and Ss, 420,468,471 IPC for defrauding the Government by submitting false bills of the work done. Though the work was to be done departmentally it was alleged that in-fact the public servant got the work done through the contractor whose tender was not accepted, held, Though the work was got executed in flagrant disregard of the relevant rules and even of ordinary norms procedural behavior of governmental officials and contractors, such disregard did not amount to any of the offences alleged against them. The onus of proof of the existence of every ingredient of the charge always rest on the prosecution and never shift. It was further held, No doubt there were several irregularities giving rise to a strong suspicion in regard to the bona fides of the accused in the matter of the execution of the work but suspicion, however strong, could not be a substitute of proof. 32. The Ld. Trial Court did not appreciate that there is no proper sanction from the competent authority to prosecute the appellants. 32. 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 33. It has been contended that the contractor/the appellant can no way be attributed to the criminality as they have duly participated in the tender process and selected and there appears no any illegality as regards their role while awarding the contract. They have duly submitted the bid documents and after due evaluation, the TEC has selected them. The evidence reveals that bills were passed by the appropriate authority and they have no role to play in passing the bill. The MB was verified by the concerned Engineer and the bill was verified by the Site Engineer. By drawing attention to the evidence on record, it is submitted that the loss calculation sheet prepared in this case is based on the data provided by the CBI not from the office itself and as has been found above, data shown in the joint inspection report is itself not authentic or proved. The witness who prepared the loss calculation himself stated that they are not at all sure about the correctness of the loss calculation or they were also not aware if the work was awarded to the contractor at the departmental approved rate by the Director or has no idea about the correctness of the bill submitted by the contractor. 34. Further it has been submitted that the evidence on record, runs counter to the allegation made against the appellant which is not at all suggestive of preparation of bill in excess manner. Most of the witnesses have stated that bill was paid on actual work done by the contractors which is at par with the terms of the tender agreement and as such there cannot be an allegation of raising false bill on the part of the contractor. Tender documents itself provide that final bill may vary subject to the actual work done by the contractor. Accordingly, it has been urged that in view of the evidence on record about the work site and the hilly condition etc. and in terms of the tender document, the variation of bill amount itself is not suggestive of criminality on the part of the contractor. Accordingly, it has been urged that in view of the evidence on record about the work site and the hilly condition etc. and in terms of the tender document, the variation of bill amount itself is not suggestive of criminality on the part of the contractor. It contends that there is absolutely lack of evidence suggestive of criminal conspiracy on the part of the contractor with the public servants at the time of awarding contractor nor there is requisite evidence to reflect the dishonest intention on the part of the accused appellant to cheat the government. But however, the learned Trial Court relying only on the evidence of IO and the joint inspection report that was made after 7 years has held the accused appellants guilty without proper appreciation of entire matters on record, hence, finding of guilt at the accused appellants is not sustainable. Evidence on record: 35. As the whole case revolve around the joint inspection report made by the IO in presence of other witnesses, so let us start with the IO PW-26/Sh. M.T. Mang. Without narrating about the illegalities and irregularities that has been committed by each of the accused persons, he has stated seizure of various documents in connection of the case from the officials of the department concerned which is large in number, he has stated about joint inspection as below:- "During investigation, joint inspection was conducted on 28.05.2003 and 20.08.2001 in presence of independent witnesses in respect of SS 3A of Imphal Moreh route. Joint inspection memos vide Ext. 41 and Ext. 40 were prepared on the spot which was signed by all the team members as a proof of its authenticity." Some relevant portion of his cross-examination is reproduced herein below:- "Myself and B. Nag Chaudhury had decided the locations where pits were to be dug. Category of soil was decided by B. Nag Chaudhury, myself and other team members jointly. I am not aware whether at the time the commission of the alleged offence the officers of BSNL, MTNL had been empowered to accord sanction for prosecution of the accused persons. As per survey report entire route of Imphal Moreh falls in hilly, land erosion, landslide prone area however SS 3A falls within the town area of Thoubal. As per tender document the figures and quantities mentioned are not according to survey report. As per survey report entire route of Imphal Moreh falls in hilly, land erosion, landslide prone area however SS 3A falls within the town area of Thoubal. As per tender document the figures and quantities mentioned are not according to survey report. The cost of OF cable laying cannot be same for all the 27 subsections i.e. Rs. 3 lakhs, as mentioned in the tender document. It is correct that the contractor is paid at the approved tendered rates. It is correct that the site engineer is the competent authority to ascertain the depth, size of the trench and category of soil. It is correct that it is the discretion of the DE to conduct test check or not. It is not mandatory. It is correct that no subsection wise detailed estimate had been prepared. Without detailed estimate for each subsection, cost and quantities cannot be worked out. It is correct that the A/T was conducted by the office T & D circle. The controlling officer of the AT is the CGM, T & D Circle Jabalpur. It is correct that CGM NE Task force has no control over them. It is correct that the officers of AT verified the depth and protection of the cable as per route index diagram. It is correct that the officers of AT team commissioned the cable only when they found it correct. It is correct that I had seized AT report. It is correct that after AT, a joint inspection was conducted by the officers of OFC and ETR (maintenance). It is correct that they also verified the depth and protection of the cable as per route index diagram. It is correct that I had seized the joint inspection report. It is correct that a depth check report was also prepared at the director level in presence of the additional director and director Maintenance, Shillong. It is correct that I had seized this report also. Since I did not feel that these documents i.e. AT report, joint inspection report, I did not enlist them in the list of documents enclosed with the charge sheet. I do not remember whether prosecution sanction draft was also forwarded in this case also. Insurgency was there at the time of execution of the cable laying work on Imphal Churachandpur and Imphal Moreh route. I do not remember whether prosecution sanction draft was also forwarded in this case also. Insurgency was there at the time of execution of the cable laying work on Imphal Churachandpur and Imphal Moreh route. It is correct that revolutionary people's front of Manipur is an underground group which operates in Manipur. I am not aware whether such groups demanded money from executing authority, both contractors and officers. I am not aware whether JTO, S. R. Das was beaten to death. I am not aware whether one of the militants had also killed a DE. That apart, since the source information was not marked to me, I cannot say that it discloses commission of cognizable offence straight away. I do not remember when I received the source information. I cannot recollect whether the PE was registered on 19.05.2001. It is correct that the actual depth of cable and the protection applied to it entire trench cannot be ascertained without reopening the entire trench. It is correct that after conducting joint inspection between OFC officers and ETR officers, the cable was handed over to ETR officer for maintenance. I did not associate any employee/officer of ETR (maintenance) during investigation or during joint inspection conducted by CBI. During joint inspection the cable was in working condition and was under the control of ETR staff. The officer of OFC had no role to play in the maintenance of cable at that time I had conducted the joint inspection and carried out the investigation. I did not seize any report from any agencies such as PWD, Electricity department, local telephone, local cable maintenance telephone officers and from the officers of ETR maintenance about the damages caused to the cable due to militancy, landslide, land erosion, heavy rains or widening of road etc. I did not include any of the staff of the ETR in the list of witnesses. It is not a fact that I had not correlated any of the points in the joint inspection memo with that of the corresponding point in route index diagram. Myself and other team members correlated the points in the joint inspection memo with that of the corresponding point in route index diagram. Myself and other team members collectively decided the type of soil. Location of pits for joint inspection had been ascertained by myself and other team members. Myself and other team members correlated the points in the joint inspection memo with that of the corresponding point in route index diagram. Myself and other team members collectively decided the type of soil. Location of pits for joint inspection had been ascertained by myself and other team members. It is correct that the site engineer is the competent person to decide the type of soil and nature of soil. It is correct that the payment to the contractor is made on the basis of the actually executed quantities at the approved tendered rates. It is correct that the government is represented by site engineer at the site. The head quarter of DE was at Guwahati whereas the work was executed in the state of Manipur. It is correct that the quantities and figures shown in the tender document are not in the survey report. It is correct that estimated quantities are not final. The cost of execution may increase when there is an excess quantity of work. It is not a fact that the investigation was done perfunctorily. It is correct that the route index diagram of 1st RS bill was prepared by SDE, P.K. Bagchi. It does not bear the signature of M. L. Sharma. The KMP post numbers are not marked on the route index diagram. It is correct that the joint inspection was conducted after 7 or 8 years of the execution of the OFC works. It is correct that the road was widened by that time. I cannot say if the cable was shifted from its original position or not. I cannot say if the route indicators are also shifted over the cable when the cable was shifted due to road widening. Thus, only 0.3% of the works was tested. It is correct that M. L. Sharma had no role in the tender process such as Eg., invitation of tenders, tender opening, tender evaluation and approval of tenders. It is correct that the land marks mentioned in joint inspection memo nowhere appear in the route index diagram." 36. Pw-14/Sh. Th. Rajendra Singh, PW-15/Sh. Shoibam Mamon Singh, PW-16/Sh. L. Nishikanta Singh, PW-17/Sh. W. Sunil Singh, PW-18/Sh. Md. Abdul Salam Khan, PW-20/Sh. B. Nag Chadhury and PW-25/Sh. B. N. Mallick all were witnesses to the joint inspection dated 28.05.2003 and 20.08.2001 and they have stated that the joint inspections, vide Ext. Pw-14/Sh. Th. Rajendra Singh, PW-15/Sh. Shoibam Mamon Singh, PW-16/Sh. L. Nishikanta Singh, PW-17/Sh. W. Sunil Singh, PW-18/Sh. Md. Abdul Salam Khan, PW-20/Sh. B. Nag Chadhury and PW-25/Sh. B. N. Mallick all were witnesses to the joint inspection dated 28.05.2003 and 20.08.2001 and they have stated that the joint inspections, vide Ext. 40 & 41, were written by CBI inspector Sh. M. T. Mang and they were present at the time of excavation of the OFC laying trenches in the subsection 3A on NH 39 and they have signed the joint inspection reports as directed by the I.O./Sh. M. T. Mang. Save and except signing of the said verification report they have not stated anything about the findings of joint inspection report. In his cross-examination, PW-14 has stated that the measurements had been taken by CBI team and labourers. He did not see the measurements of the trenches that had been recorded by the CBI team. He had seen CBI team carrying some diagrams and he had not been shown those diagrams. He also stated that the joint inspection memorandum had been brought to his office from their office by the CBI for his signature. None of the papers had been prepared on the spot. The CBI had decided the location f the pits. He cannot recollect the number pits dug by CBI on the OFC route. He cannot recollect whether the soil was examined. Pit was made over the trench of the cable. Whenever landslides occur the JCB machines are being used to clear the debris. Due to heavy rain soil erosion also take place. The cables for land lines are also being laid along the OFC route. After the OFC laying work was completed the roads along which those cables had been laid were widened. During such time the OFC cables are required to be repaired and shifted. Due to bomb blasting purported by the insurgents, OFC cable had been damaged for which experts had been called from Jorhat to repair those damaged cables. The depth of the cable trenches and the types of soil in respect of those trenches may undergo changes over a period of 7 years. He does not know whether the figures with regard to the measurements taken by the CBI team of the OFC trenches during joint inspection and recorded in the memorandum were correct. The depth of the cable trenches and the types of soil in respect of those trenches may undergo changes over a period of 7 years. He does not know whether the figures with regard to the measurements taken by the CBI team of the OFC trenches during joint inspection and recorded in the memorandum were correct. The depth of the trenches had been measured taking the base as the top of the protection work over the cable. He had put his signature on the joint inspection memorandum as token of his presence during such inspection. 37. In their evidence, PW-15, PW-16, PW-17, PW-20 & PW-25, have stated that they accompanied the IO/PW-26 at the time of joint inspection that was made on 28.05.2003 and 20.08.2001 and they signed the joint inspection memo vide Ext. 40 & 41. It is stated that the said inspection was carried out to ascertain whether any anomalies have been committed with regard to the depth of the trenches, type of soil and concrete protection in the OFC route in respect of SS 3A on NH 39. Hired labourers were used to make the pit on locations determined by the IO and the findings were noted by the IO in the joint inspection report. None of them have stated about the anomalies that was detected at the time of inspection. It is stated by them that they have signed the memorandum as a token of their presence. 38. The cross-examination of the PW-15, need a mention, while he stated that he has no role to play in this case and signed the inspection memo on being asked by the CBI officer. He was not interested in measurement of trenches and CBI had already prepared the documents before he was asked to sign. He was called earlier by the CBI for recording his statement about 3 years back but he returned without making any statement as did not agree to make a false statement as instructed by CBI. He does not know anything about the content of the joint inspection. In their cross-examination, PW-16 PW-17 have stated that type of soil was collected on visual examination and they have not taken part in the excavation process. CBI had decided the location but they did not notice any document with the CBI except a diagram of the location and no any document was shown to them. 39. In their cross-examination, PW-16 PW-17 have stated that type of soil was collected on visual examination and they have not taken part in the excavation process. CBI had decided the location but they did not notice any document with the CBI except a diagram of the location and no any document was shown to them. 39. Pw-18 was a mere signatory to the Ext. 41 of inspection report and he stated that he does not know anything about the inspection and what is written in the same and he signed as per direction of the CBI Inspector. 40. Pw-20/Sh. B. Nag Chaudhury, in his cross-examination, has stated that depth was measured from the top of the cable protection provided over the cable upto the ground level. There was no other measuring tape like odometer at the time of such measurement except of 3 meters tap. He has also stated that no route index diagram, measurement book and other documents were shown to him for reference or consultation, so he cannot say about the correctness of the figure indicated in the joint inspection memo. He has no knowledge about the category of soil and it was decided by the CBI personnel. The CBI personnel did not consult with any other personnel for deciding the location of pit and category of soil. The joint inspection memo was prepared in the office of CBI and his signature was obtained after two days in his hotel room. 41. He further stated that the area where the joint inspection was carried was hilly and rocky. The category of soil at the time of reopening the trench could not be the same as that the soil that was used to fill up the trenches for OFC laying earlier. He has also admitted that depth of the cable and the protection used is verified from the route index diagram by the AT and found the correctness of the depth, soil and type of protection used. After the AT and commissioning of cable, the cable is handed over to the maintenance department after a joint inspection conducted by team of officers of maintenance and execution. After handing over of the OFC to the maintenance department, executing officers are not at all responsible for maintenance of the cable and it was the responsibility of the maintenance department. After the AT and commissioning of cable, the cable is handed over to the maintenance department after a joint inspection conducted by team of officers of maintenance and execution. After handing over of the OFC to the maintenance department, executing officers are not at all responsible for maintenance of the cable and it was the responsibility of the maintenance department. I.O. did not asked him anything about the work except asking him about some personal particulars. He cannot say the figure mentioned in the joint inspection report that has been written as per the figures recorded by the IO in his diary, as he had no occasion to verify the same. 42. Pw-25/Sh. B. N. Mallick, in his cross-examination, has admitted that he signed the joint inspection memo on the spot and he simply accompanied the CBI team. He further stated that although the whole process of joint inspection was carried out in his presence but he had no role in digging the pits. He also stated that on perusal of the joint inspection memo and route index diagram, he cannot say that joint inspection memo pertains to the same subsection which is available on the record of this case. He had not seen the route index diagram during joint inspection but it may have been in the custody of the IO. The reference point shown in the joint inspection memo, nowhere appear in the route index diagram and points in the joint inspection cannot be co-related at the route index diagram. On perusal of the route index diagram and joint inspection memo, he cannot say that this joint inspection memo pertains to the same subsection which is available on record. Thus, he cannot say about the accuracy of the figure mentioned in the joint inspection memo. 43. Pw-1/Sh. Govinda Kalita, Cashier, O/o CGM, Task Force; PW-5/Sh. Jibotosh Biswas, Chief Accounts Officer, O/o CGM, Task Force; PW-7/Sh. Kaushal Kr. Mishra, JAO, BSNL; PW-8/Sh. S. C. Paul, Chief Accounts Officer, Telecom; PW-10/Sh. Thus, he cannot say about the accuracy of the figure mentioned in the joint inspection memo. 43. Pw-1/Sh. Govinda Kalita, Cashier, O/o CGM, Task Force; PW-5/Sh. Jibotosh Biswas, Chief Accounts Officer, O/o CGM, Task Force; PW-7/Sh. Kaushal Kr. Mishra, JAO, BSNL; PW-8/Sh. S. C. Paul, Chief Accounts Officer, Telecom; PW-10/Sh. Debobarta Dey, Chief Accounts Officer, BSNL have exhibited several related documents relating to work order, payment made to the contractor, the different bills prepared in respect of work in question, entries in the MBs, cash book and the calculation sheet prepared on the basis of the joint inspection report, wherein difference between the payment actually made as per MB/RA bills and report of joint inspection team in respect of SS 3A of the Imphal Moreh route. 44. Pw-1/Sh. Govinda Kalita, in his evidence, has stated about the procedure about the payment of bills that bills for the contractors are in form of running bill and after preparation of bills by contractors, those are given to the office of DE (T) and thereafter, DE submit the same to JTO/SDO. Thereafter, bills were checked as per MB by the SDO and sent to the DE. After checking the bill by JAO, DE. OFC project passed the same countersigned by the Director OFC. Then the bills along with the MB sent to the Accounts Officer, and thereafter, concerned clerk made the pay order and sends the Accounts Officer concern. Those pay orders were submitted to cashier for preparing the cheque and only thereafter, PW-1, being the cashier, prepared the cheque and send the same to the Accounts Officer and finally the cheques were verified again on the part of PW-1 and then he handed over the cheque to the concerned contractor and details of same is entered into the cash book. After giving the above statements, PW-1 has exhibited different running bills pertaining to SS 3A, cash book, cheque, description of works attached with the bills, MB, containing signatures of all the official concern and while saying so, he has not pointed out anything about the discrepancy in any of those documents. In cross-examination, he has stated that entire procedure was properly followed in payment of bills in this case. 45. Pw-5 & PW-10 are simply the seizure witness to the documents that was seized by the CBI in connection with the case through seizure list Ext. 16 and Ext. 31. In cross-examination, he has stated that entire procedure was properly followed in payment of bills in this case. 45. Pw-5 & PW-10 are simply the seizure witness to the documents that was seized by the CBI in connection with the case through seizure list Ext. 16 and Ext. 31. Three numbers of cheques pertaining to the work in question and payment vouchers which is two in numbers for SS 3A were seized by the IO from them. PW-7 only stated that he used to assist in preparation of paper works in the Office of DE OFC and has exhibited the signatures of officers in the Ext. 1, 1st RA bill dated 16.08.1996 and nothing more. 46. Pw-8/S. C. Paul, Chief Accounts Officer has again stated all about the procedure in preparation of bill and how it has come to their office as stated by PW-1. Further, he has stated that, as Accounts Officer his primary duty is to do all the accounting works of the office in the Office of Director, Microwave Project. All the bills relating to OFC and cable laying used to come to the accounts officer with a forwarding letter to effect the payment and accordingly payment is made after checking the bill with reference to MB/route index diagram. Bills are partly checked by him with reference to MB/RD and he make arithmetical calculation. He has mentioned about various documents regarding the work in question like comparative statement, work order to the contractor, the condition to the tender document, measurement books, cash books, running bills, cheques that were checked and passed under his signature. But his long detail evidence is totally silent as to the discrepancy/illegality in any of the documents he checked. 47. Pw-2/Sh. Dharmeswar Das has stated only about the duties and responsibilities of the SDE, Directors and JTOs and he is not acquainted with the facts of the case and he never visited the site of the work. PW-3/Sh. Mahinder Singh and PW-9/Sh. Shriyans Kr. Jain have stated about the prosecution sanction they accorded against the officials/public servants. PW-3, however, in his cross-examination has stated that the DOT has refused twice to accord prosecution sanction against M. L. Sharma and for the third time as per advice of CVC, sanction was granted. 48. Bank official, PW-4/Sh. PW-3/Sh. Mahinder Singh and PW-9/Sh. Shriyans Kr. Jain have stated about the prosecution sanction they accorded against the officials/public servants. PW-3, however, in his cross-examination has stated that the DOT has refused twice to accord prosecution sanction against M. L. Sharma and for the third time as per advice of CVC, sanction was granted. 48. Bank official, PW-4/Sh. K. K. Barman has stated about the seizure of SB account documents pertaining to Shri R. K. Das by the IO and the ledger sheet. 49. An officer of the Telecom office, O/o the Directorate of Microwave working as a Sr. Telecom Office Assistant, Sh. K. K. Das (PW-6) has stated all about the documents from file. He has exhibited certain documents like report of the tender document, comparative statement pertaining to the SS 3A, approval of the tenders to the successful tenderers, other related documents executed between the contractor and the authority. He has not narrated anything about the discrepancy/illegality while awarding the contract or anything connected to the matter in hand. 50. Pw-11/Sh. Ashutosh Kr. Chanda, an Officer of BSNL, has stated all about the procedure for trenching work of OFC, preparation of project, project estimates, financial approval of the works, floating of tenders and awarding of works to the contractor etc. He has exhibited several documents connected to the project to the Imphal Moreh route, SS 3A. He has exhibited the measurement book in respect of SS 3A along with which he has also stated about Ext. 27, the note sheet regarding sanction of certain amount pertaining to the trenching, however, the same is not clear. He has also stated about the letter written by the contractor R. K. Das requesting for consideration of soil of OFC route in respect of SS 3 A vide Ext. 26 which was forwarded by SDE to the DE with his observation on the foot note, which was provisionally recommended subject to actual verification and this recommendation was approved by the Director OFC. Referring to another note sheet Ext. 27, it is submitted that prayer of the contractor for release of retention money was processed and the contractor has withdrawn the money he claimed subject to approval by CGM. In cross-examination he has stated that when bills are prepared and passed, every bill is pre-checked by accounts officer. Referring to another note sheet Ext. 27, it is submitted that prayer of the contractor for release of retention money was processed and the contractor has withdrawn the money he claimed subject to approval by CGM. In cross-examination he has stated that when bills are prepared and passed, every bill is pre-checked by accounts officer. Further he stated that the CGM did not approve only release of retention money and EMD but also directed the Director OFC to discuss with him. The CGM sought clarification from the Director OFC who is the competent authority to approve the deviation of quantities and changes in soil condition. The deviation quantities and changes in soil condition has been approved by the Director. Further he stated that whatever he has stated in his evidence today before the Court has been done so by looking the documents placed before him. He has no personal knowledge about the case as he has not come across those documents earlier. He cannot say if any excess has been made to the contractor. 51. In his evidence, PW-12/K. S. Manoharan has stated that at the relevant time 1994-96, while he was working as Accounts Officer, Director Microwave Project and his duty was financial advisor to the Director Microwave project as at the time there was no disbursing unit for Optical Fiber Cable project. The process verifying and passing the bill is that bills are paid after verifying entries in the MB and comparing the same with that of bill presented and processed. Entries in the MBs are done by field staff and verified by DE with the help of Assistant Accounts Officer. Director OFC is competent authority to approve the excess quantity executed in each subsection based on site requirement. He was also the member of the Tender Opening Committee and has stated that after opening the tenders after observing all the formalities and after preparation of evaluation, the tender was awarded to the lowest bidder, Raj Kumar Das. He has not stated about any irregularities while tender was awarded nor he has any knowledge about the rest of the matter. 52. Pw-13/Sh. S. R. Bali, Deputy Director General, TEC, prepared the project estimate in respect of OFC laying work in Imphal Moreh route, in the year 1995 and it was forwarded to the CGM Task Force for approval, which was sanctioned after his transfer to Dehradun. 52. Pw-13/Sh. S. R. Bali, Deputy Director General, TEC, prepared the project estimate in respect of OFC laying work in Imphal Moreh route, in the year 1995 and it was forwarded to the CGM Task Force for approval, which was sanctioned after his transfer to Dehradun. He came to know about this case in the year 2003. He has exhibited document pertaining to the project estimate Ext. 35 at the cost of Rs. 6,77,800/- and it was proposed to be completed in the year 1995-96 financial year, Ext. 37 is the forwarding letter and Ext. 38 is the project estimate with his signature and Ext. 39 is the detail estimate. In cross-examination, he has stated that he never the work site. However, he has admitted that AT was done by T & D circle as without AT cable cannot be commissioned. 53. Pw-19/R. N. Chakroborty, SDE BSNL is the person who prepared the AT at the direction of the DE OFC (P). In his evidence, he has stated that he gone to the Imphal on 12.03.1998 and started AT in respect of SS 3A. The stretch of OFC laying trenches between 330 to 332 Mb was tested and 0.80 meter was found without protection whereas in the route index, protection was shown to have been provided. He found during the checking, most of the route indicators missing throughout the route and they recommended for taking necessary action for the discrepancies, marked X was the AT prepared by him which was seized by the Inspector CBI as on 01.07.2003. In cross-examination he has stated no special training was imparted to him for AT work. AT is quality control of executed work. Further he stated that During AT, he had checked cable depth and protection provided. In case of depth of trenches was less than the specified standard depth and without protection approval of officers concerned had to be obtained. The approval of the competent authority was obtained for less depth in this case. The less depth means the depth is less than the standard depth of trenches. Up to 120 cm depth, no protection was required and less than 120 cm protection is required. If the depth of the cable laying trenches is less than 120 cm and more than 90 cm, then cables are protected by RCC/GI pipes. The less depth means the depth is less than the standard depth of trenches. Up to 120 cm depth, no protection was required and less than 120 cm protection is required. If the depth of the cable laying trenches is less than 120 cm and more than 90 cm, then cables are protected by RCC/GI pipes. If the depth of the trench is less than 90 cm, it is to be protected by RCC concreting. If the depth of the trench is less than 30 cm, the work is not accepted by the AT. They opened the trench by making a pit over the cable laying trench to verify the protection and to measure the depth. They measured the depth of the cable from the top of the protection pipes. He alone conducted AT over the OFC cable on Imphal Moreh route. The OFC in this case was finally accepted by DE. After accepting the cable, the DE, AT informed the DE, OFC project about finally accepting the cable. He has also admitted that at most of the points checked by AT team, the depth of the cable was found more than that recorded in the route index diagram. The concerned site engineer is the competent authority to decide the depth of the cable and type of soil. The AT team verifies the depth and protection of the cable by comparing it with route index diagram. 54. Sh. S.N. Malakar (PW-21), Retd. DGM, BSNL and in the year 1998-2000 he was DE in the officer of Director, OFC and he was specially deputed for the repairing work of the Imphal Moreh and Imphal Churachandpur routes. The repairing work was undertaken in October' 1999 to December' 1999. In his evidence, he has stated that when he took over the charge DE/TP on Imphal Moreh route in June 1998 all the works had already been completed and payments had also been made except in few cases where the payment of SD money was withheld. At the relevant time the process of handing over of the OFC route to maintenance division was going on. There was some pending cases for correction of the OFC route. He had been entrusted to look after the work of repairing of the damaged cables and low depth of the trenches. At the relevant time the process of handing over of the OFC route to maintenance division was going on. There was some pending cases for correction of the OFC route. He had been entrusted to look after the work of repairing of the damaged cables and low depth of the trenches. In this regard, he had intimated the contractors concerned with regard to discrepancies found in the execution of the work. The contractor had replaced the damaged cables in few sections and in the remaining sections of the route was restored departmentally by deducting SD money of the contractors concerned since the contractors of these subsections did not turn up. He has exhibited different documents pertaining to the work in question like tender documents, project estimate etc. etc. He, however, stated that the amount quoted by the contractor was much higher than the estimated cost. 55. In his cross-examination, he has stated that he was called specially to repair OFC on Imphal Moreh and Imphal Churachandpur routes. The OFC cables had been damaged as a result of clearing of debris accumulated from landslides by JCB and excavation of the drain by the side of the hills by JCBs and also as a result of widening of road by the PWD. He had repaired the damaged portions of the Imphal Moresh and Imphal Churachandpur routes and after repairing, the cable was offered for AT. The AT is directly under the control of CGM (T & D) with its headquarter at Jabalpur. He admitted that the AT team verifies the depth of the cable and protection over the cable from the route index diagram. The OFC could not be commissioned unless it was accepted/approved by the AT team. At had raised some objection at the first instance. After removing all those objections, he offered the OFC again for AT. AT had sought relaxation of depth of OFC trenches from the CGM NETF (North East Task Force). The AT had sought relaxation of depth of cable because the cable was not laid at the standard depth of 1.65 meters. The CGM accorded the relaxation of depth the OFC. He had offered the cable after approval of AT to the maintenance organization. He further stated that at that point joint inspection team again verifies the depth of the cable and protection. The CGM accorded the relaxation of depth the OFC. He had offered the cable after approval of AT to the maintenance organization. He further stated that at that point joint inspection team again verifies the depth of the cable and protection. It is correct that a memo was prepared with regard to the sample test check of OFC with regard to the depth of the cable and protection over the OFC. During joint inspection the random test check was conducted in each subsection of the entire route. The depth and protection was found correct as per route index diagram. He was present during joint inspection and he signed the memo. He also stated that a joint inspection was again conducted at the director level on both the routes i.e. Imphal Moreh and Imphal Churachandpur. Sri Sailendra Agarwal, area Director, NETF, Guwahati and he were present from OFC side and Director (Maintenance) ETR, Shillong was also present there. He had also signed that memo. The depth and protection noted by AT was checked at the Director level during joint inspection. After full satisfaction with regard to depth and protection over the OFC as per route index diagram, the maintenance organization took over the charge of the OFC and he had handed over the charge of the cable to the maintenance. That exercise was done both at Imphal Moreh route and Imphal Churanchandpur route. He had signed the joint inspection memo prepared by maintenance organization and executing staff. The responsibility of the executing staff with regard to depth and protection of the OFC came to an end and thereafter, it became the responsibility of the maintenance organization. He further stated that he prepared a revised project estimate on actual expenditure basis for the work of OFC laying on Imphal Moreh and Imphal Churanchadpur route. He never seen any detailed estimate of each subsection of OFC on Imphal Moreh and Imphal Churachandpur route. The revised estimate is prepared only if estimated cost of the execution of the work exceeds by 10%. He admitted that the estimated cost of each subsection cannot be ascertained without preparing detailed estimate of the subsection. The estimated cost shown for each subsection could not be correctly evaluated since no detailed estimate was prepared subsection wise. The entire Imphal Moreh route is hilly and rocky. The work was initially executed in the year 1996-97. He admitted that the estimated cost of each subsection cannot be ascertained without preparing detailed estimate of the subsection. The estimated cost shown for each subsection could not be correctly evaluated since no detailed estimate was prepared subsection wise. The entire Imphal Moreh route is hilly and rocky. The work was initially executed in the year 1996-97. He also stated that after a period of 7 years, the depth and protection of the cable cannot remain same. The depth of the cable will be reduced due to soil erosion and also due to use of JCB machine. Landslides occur frequently in this area due to rainfall and due to heavy rainfall, the soil protection and many times cable is washed away and communication is disrupted. The category of soil may not remain the same. The tendered/estimated cost and quantities may not remain same. The additional quantities are deemed to have been included in the tendered quantity as per clause 46 of the tender document. The payment to the contractor is made on the basis of the actual executed quantity as per clause 47. The site engineer is the competent authority to decide the depth of cable and the category of soil. The DE will conduct test check as per clause 192, only if he considers necessary and it is his discretion and not mandatory provision. 56. Pw-22/S. K. Sikidar has stated all about OFC laying project and he was posted as SDE, Survey from 1997 to 2001 and supervise the work of trenching, laying of OFC and OFC route survey on Imphal Moreh route. He also stated that the survey report give details of the OFC route on NH 39 but there was possibility of variation after actual execution of OFC. Further, he stated that if the quoted rate is found more than 25% above the estimated cost, the Director of the company will take the decision whether quoted amount could be approved by taking into account the cost of executing work and the remoteness of the worksite, if the Director find the approved rate as exorbitant, he may not approved it and he may direct the DE to go for re-tendering and if he found the amount being justified considering the remoteness of the location and escalation of cost of material, he may approved the same after negotiation. He has exhibited lot amount of documents like tender document in respect of each of the subsection, report of the tender evaluation committee, communication between the contractor and the authority(DE) and the agreement entered between the contractor and the DE regarding the execution of the work in question, different bills, calculation sheet, route index diagram in respect of the SS 3A and comparative statement. As per tender document the rate quoted by the contractor was not in higher side for SS 3A the rate quoted by the contractor was although in higher side but the TEC recommended the rate considering the remoteness of location of the subsection. During execution of work the amount was increased because of additional work carried out by the contractor as per the bill without re-tendering. During the tendering of this route, Sri B. R. Attri was the DE and overall in-charge of the execution. Mr. M. L. Sharma, DE, OFC later joined in the division as DE OFC II under director OF(P). Director is an administrative officer without whose approval the work could not be taken up. SDE and JTO are responsible for overall site supervision. They are responsible for preparing the MB and preparation of bills. Pre-checking of the bills before payment is done by JAO. For excess or additional work during execution of any project approval is to be obtained from director OF(P) for OFC laying work. In cross-examination, he has stated that out of total 11 point jointly checked as per joint inspection memo, there are only 3 point where depth was found less and in 8 point depth was found more than the recorded depth in MB. The variation of depth after 4-5 years of work is possible, as other agencies also worked in the site along with the NH. There is no point available in the route index diagram as referred in the joint inspection report. During execution of OFC route site engineer which is SDE is authorized to decide the category of soil, depth and protection of trenches. During execution of OFC laying work, DE is visiting the sites and verifying the standard of work carried out the contractors. As per clause 192 of tender document, DE was to reopen the trenches at intervals and check the depth of cable and its protection if necessary. During execution of OFC laying work, DE is visiting the sites and verifying the standard of work carried out the contractors. As per clause 192 of tender document, DE was to reopen the trenches at intervals and check the depth of cable and its protection if necessary. He has also stated that the payment of the bills are made on catual work carried out by the contractor on the approved rates, AT is carried out before commissioning of the route. AT is conducted by officers of the T & D circle which is a separate wing of the department. AT carries out test checks with regard to depth and protection of the OFC route to be commissioned as per route index diagram submitted to them. After commissioning of a route by the AT wing, the route is handed over to telecom region for maintenance purpose. Telecom region is also a separate wing for maintenance of all transmission route. Before taking over the route from task force organization, the maintenance staff are to inspect the site and verify the condition of the route along with task force staff and after satisfaction with regard to depth and protection of the cable as per route index diagram. CGM Task Force Guwahati has no administrative control over AT and maintenance organization. After handing over of OFC route to maintenance organization, the responsibility of executing authority ends. The Imphal Moreh route is insurgency prone area and there was no security provided to the staffs who were supervising the OFC work. He further stated that after completion of work, the payment of bill with regard to entire executed work to the contractor is to be made as per the rate quoted in the tender document. He does not admit with the portion of the statement made by him before the IO which is reproduced as "beyong the tender quantity if the circumstances compelled based on site condition, the excess work/quantities has to be carried out, but payment had to be made only at the departmental rats, or tendered/approved rate whichever is lower and that too with the approval from the Director." He further stated that Sh. M.L. Sharma, DE had no role to play in the approval of tendered rates. M.L. Sharma, DE had no role to play in the approval of tendered rates. He have perused the route index diagram and joint inspection report and find that none of the points of inspection in the joint inspection report of the CBI co-relates with the route index diagram. 57. Pw-23/Sh. Ch. Thoiba Singh, in his cross-examination has stated that the Imphal Moreh route is hilly, rocky and it is prone to landslide and sinking zone. During monsoon in case of heavy rainfall, sometimes the soil, protection and cables gets washed away. It is not possible that the condition of soil, depth of the cable and protection may remain same after 7 to 8 year of its execution. This area is an insurgency area. No security as such has been provided to the contractors and executing staffs. He has also stated that so far his knowledge, item wise rates are decided at the CGM office and DE has nothing to do it with the same. 58. Pw-24/Sh. Raghunath Singh, conducted the survey of the Imphal Moreh route along with other officials and submitted the survey report vide Ext. 43. Going by the Ext. 43, he stated that the Imphal Moreh route was mostly hilly and the soil was hard and rocky in nature and that is why the excavation of the cable to depth of 1.65 meters was extremely difficult, therefore, RCC/GI pipes were required to be laid for the protection of HDPE pipe cable. It was not possible to dig more than 50 cm deep due to rocks. In cross-examination, he has admitted that he had physically verified 108 kilometers between Imphal and Moreh during survey. The entire route falls in hilly and rocky area. The route is also prone to landslides and soil erosion and it is sinking zone. He had had stated in his report that it was extremely difficult to make the trench up to the standard depth of 165 cm. It was therefore essential to provide RCC/GI pipes and RCC concreting for protection of OFC over the entire route. He had inspected the category of soil by digging the trench up to the depth of around 50 cm at one or two places. It was not possible to dig more than 50 cm deep due to rocks. He further admitted that he was not under administrative control of S. R. Bali, Director, OFC. He had inspected the category of soil by digging the trench up to the depth of around 50 cm at one or two places. It was not possible to dig more than 50 cm deep due to rocks. He further admitted that he was not under administrative control of S. R. Bali, Director, OFC. It is also admitted that Mr. Bali had DE survey directly under his administrative control. Mr. Bali, Director OFC was not competent to direct him to conduct survey. He was not legally obliged to conduct survey as directed by Mr. Bali, Director OFC. FROM THE DEPOSITIONS OF THE AFORESAID VITAL PROSECUTION WITNESSES, IT REVEALS THAT Before inviting the tender, no sub-section wise survey, project estimate was prepared. After completion of tender process and after issuing the work order to the contractor, physical survey was conducted by the authority and on the basis of such survey report, project estimates were prepared. The estimated quantities are not firm and final, that are subjected to change during the time of execution of the work as per clause 46 & 47 of the tender documents. It may be increased or it may be decreased. Any excess quantity required at the execution of the work would be deemed to have been included in the tender quantity and the payment to the contractor is made on the basis of the actual work done, it may be less, it may be more. The entire Imphal Moreh route is hilly, rocky, landslide, soil erosion and sinking zone. It was extremely difficult to make the trench upto the standard depth of 165 cm. It was therefore essential to provide RCC/GI pipes and RCC protection of OF cable over the entire route. The AT team had sought relaxation of depth of OFC trenches from the CGM, NEFT because the cable was not laid at the standard depth of 1.65 meter. The CGM accorded the relaxation of depth the OFC. Such facts have been stated none other than the prosecution witnesses. As the entire route is hilly and rocky area, therefore the project cost increases and therefore, a revised estimate was prepared and the same was duly approved by the CGM, Task force. The work was executed in the year 1996. 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. That CBI has made the joint inspection without the route index diagram inasmuch as the same has not been exhibited in the case. 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. No any witness has stated about the irregularities in the tender process. FINDINGS 59. No any witness has stated about the irregularities in the tender process. FINDINGS 59. In view of all what have been discussed above, the deviation that has been found by the IO at the time of his inspection after 7 years of execution of the work will not itself indicate the criminal liability of the officials as well as the private contractors. Evidence indicates prior approval was taken for such deviation of work by the site engineer which is in the sub-section file that the said important file was withdrawn from producing before the Court. The tender document says that estimated amount is not final, survey report says that the standard depth cannot be acquired, due to natural calamity like heavy rain fall, soil erosion as well as broadening of road many a times disrupted the places of cables. 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. 60. 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. 61. 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. 62. 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. 63. 63. 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. 64. 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. 65. 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. 65. 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. 66. 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. 67. 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. 68. Let us discuss the law pertaining to exhibiting of documents in evidence. In a landmark judgment, the law laid down by the Hon'ble Supreme Court in Sait. T. Khimsand and Ors. Vs. Yelamarti Satyam & Ors, (1971) AIR SC 1865 is Mere marking of an exhibit does not dispense with the proof of documents. Further, in Sudhir Engineering Co. Vs. NEEPCO Roadways Ltd., (1995) 34 DRJ 86 , the entire law relating to the marking of exhibits and tendering documents in evidence has been dealt with. It has been held that mere marking and exhibit on a document does not dispense with the formal proof thereof. Relevant para is extracted below "Let me now look at the law. Vs. NEEPCO Roadways Ltd., (1995) 34 DRJ 86 , the entire law relating to the marking of exhibits and tendering documents in evidence has been dealt with. It has been held that mere marking and exhibit on a document does not dispense with the formal proof thereof. Relevant para is extracted below "Let me now look at the law. Any document filed by either party passes through three stages before it is held proved or disproved. These are : First stage : when the documents are filed by either party in the Court; these documents though on file, do not become part of the judicial record; Second stage: when the documents are tendered or produced evidence by a party and the Court admits the documents in evidence. A document admitted in evidence becomes a part of the judicial record of the case and constitutes evidence. Third stage: the documents which are held 'proved, not proved or disprove' when the Court is called upon to apply its judicial mind by reference to Section 3 of the Evidence Act. Usually this stage arrives the final hearing of the suit or proceeding. I am of firmly opinion that mere admission of document in evidence does not amount to its proof. Admission of a document in evidence is not to be confused with proof of a document. When the Court is called upon to examine the admissibility of a document it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved, disproved or not proved the Court would look not at the document alone or only at the statement of the witness standing in the box; it would take into consideration probabilities of the case as emerging from the whole record. 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." 69. 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. 70. 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. 71. In Abdullah Mohammad Pagarkar etc. Vs. 71. 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. 72. It has been held in Sujit Bishwas VS. State of Assam, (2013) 8 JT 570 the suspicion however great it may be, cannot take place of proof and there is a large difference between something that will be proved. In criminal trial suspicion no matter how strong cannot and must not be permitted to take place of proof. This is for the reason that the mentle distance may be and must be quite large and divides vague conjectures from sure conclusions. In a criminal case, the Court has a duty to ensure that mere conjecture and suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produce by prosecution before an accused is condemn as convict and the basic and golden rule must be applied. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produce by prosecution before an accused is condemn as convict and the basic and golden rule must be applied. An adverse inference can be drawn against accused only if the incriminating materials stands fully established and the accused is not able to furnish any explanation for the same. 73. 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). 74. 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). 74. 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." 75. 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." 76. 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. 77. 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. 78. 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. 78. On the next, the appellants have relied upon the decision rendered by the Hon'ble Apex Court in B. Jayaraj Vs. State of A.P., (2014) 3 JCC 1552 wherein it has been held that the presumption under Section 20 of the P.C. Act can be drawn only in respect of offence under Section 7 and not the offences under Section 13 (1) (d) (i) (ii) of the Act. In any event it is only on the proof of acceptance of illegal gratification presumption can be drawn under Section 20 of the Act that such gratification was received or doing or for bearing any official act. Applying the proposition laid by the aforesaid decision, the statutory presumption also cannot be drawn against the public servant/the appellants herein. The upshot of the forgoing discussions will be (1) The prosecution did not laid down any foundational facts to arrived at a finding of dishonest intention on the part of the appellants nor any such findings have been arrived at by the Trial Court. (2) The prosecution evidence does not establish neither the conspiracy nor any criminal misconduct on the part of the accused appellants as per the allegation. (3) None of the charges leveled is proved beyond all reasonable doubts. For the aforementioned reasons the impugned judgment and order being unsustainable is set aside. The appeals are allowed and accused are acquitted from the charge. Appellants are on bail, their bail bonds stands discharged. Return the LCR.