JUDGMENT : 1. As all the appeals arose from the same judgment in special case No. 10/2006 they are taken up together and being disposed with this common judgment. Heard Mr. D.S. Choudhury, learned counsel for the appellants in Crl. Appeal No. 401/2013; Mr. B.M. Choudhury, learned counsel for the appellant in Crl. Appeal No. 1/2014 and Mr. S.K. Singha, learned counsel for the appellant in Crl. Appeal No. 164/2014. Also heard Mr. S.C. Keyal, learned standing counsel, CBI. 2. During 1995-96 the Department of Telecommunications, hereinafter 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 and 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 and 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 per cent 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. 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. 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. 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. 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. A source information was received by CBI that appellants while working in their respective official capacities, by abusing their position and in connivance with the other officials and the contractors (contractor Abed Hussain was awarded the contract to execute the OFC laying in respect of sections 10, 11 and 12 of Imphal-Chaurachandpur route) caused undue loss to the exchequer while executing the work, by committing the following omissions and commissions. (1) Approval of tenders at exorbitant rates much higher than the estimated rates. (2) Deviations in the quantity of hard and rocky soil by increasing the same much more than the quantities indicated in the tenders, certifying the execution of increased quantities and causing payments accordingly by passing the questioned bills, apparently because the rates for these items were much higher than the estimated rates. (3) Deviations in the execution of quantities of works for soft soil by decreasing the same apparently to favour the contractors because the rates of these items were lower than the estimated rates. (4) Deviations in the concreting works by showing executions of increased quantities of concreting works against the tendered quantities. (5) Falsely certifying the unwarranted concreting works and RCC/GI pipes laying and causing payments by passing the bills of the contractors for these items. (6) Falsely certifying higher depth than the actual depths and excess payments against these items. (7) Payments in excess of expenditure sanctioned in violation of rules. 6. Further it is alleged that the accused public servants and the contractors conspired among themselves and in pursuance of the said conspiracy, excess quantity of some items in the works was shown to have been executed unauthorizedly without ex post facto approval from the competent authority and payments were made at the tendered approved rate instead of departmental rates causing wrongful pecuniary loss to the department and the Government with corresponding wrongful gains to the accused-persons in the tune of Rs. 12,00,361. 7. 12,00,361. 7. On the basis of said source information preliminary enquiry was conducted by CBI and at the time of random technical checking conducted by the CBI, it 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, by making false entries in the MBs showing execution of various works which are not actually executed as recorded in the MB. Accordingly, the FIR was lodged by CBI. 8. During investigation, the IO visited the spot and conducted a joint inspection, recorded statement of the witnesses, seized number of documents and after obtaining necessary sanction against the public servants submitted charge sheet against all the appellants under section 120B/420/477A of the IPC read with section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988. 9. The learned trial court accordingly took cognizance of the offence against appellants and framed charges under section 120B/420/477A of the IPC read with section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 and explained to the accused-persons to which they pleaded not guilty. 10. Prosecution examined as many as 23 witnesses and defence examined none. The plea of defence is of total denial. Statement of accused-persons under section 313, Cr.PC was recorded wherein they have denied the allegations. 11. The learned trial court on conclusion of trial convicted and sentenced appellant Navendra Kumar to rigorous imprisonment for 1 year with fine of Rs. 5,000 under section 120B of the IPC and rigorous imprisonment for 1 year with fine of Rs. 5,000 under section 420 of the IPC and rigorous imprisonment for 2 years with fine of Rs. 10,000 under section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 and in default to simple imprisonment for 3 months. 12. Appellant D. Sundaramurthy and Th. Rajendra Singh are convicted and sentenced to rigorous imprisonment for 1 year with fine of Rs. 5,000 each under section 120B of the IPC and rigorous imprisonment for 1 year with fine of Rs. 5,000 each under section 420 of the IPC and rigorous imprisonment for 2 years under section 477A of the IPC with fine of Rs. 5,000 each and rigorous imprisonment for 2 years with fine of Rs. 5,000 each under section 120B of the IPC and rigorous imprisonment for 1 year with fine of Rs. 5,000 each under section 420 of the IPC and rigorous imprisonment for 2 years under section 477A of the IPC with fine of Rs. 5,000 each and rigorous imprisonment for 2 years with fine of Rs. 5,000 each under section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 and in default to simple rigorous imprisonment for 3 months. 13. Appellant Abed Hussain is convicted and sentenced to rigorous imprisonment for 1 year with fine of Rs. 10,000 under section 120B of the IPC and rigorous imprisonment for 1 year with fine of Rs. 10,000 under section 420 of the IPC and in default to simple imprisonment 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 No. 401/2013 were working as DE (OFC) and SDE (OFC), respectively and the appellant in criminal appeal No. 1/2014 was a contractor with the department and the appellant in criminal appeal No. 164/2015 was working as JTO (OFC). 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 report 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 17. It has been contended by the learned counsel for the appellant that the learned trial court has not appreciated the material evidence on record which deserve consideration. Attention of this court has been drawn to the relevant portion of evidence of various witnesses which is discussed below. After execution of the work, Sh. S.N. Malakar was specially deputed for this work. Attention of this court has been drawn to the relevant portion of evidence of various witnesses which is discussed below. After execution of the work, Sh. S.N. Malakar was specially deputed for this work. He made the following statement in all other connected cases except this one that he had repaired the OFC cable on both the routes, i.e., Imphal-Moreh and Imphal-Churachandpur. He has stated in unambiguous and un-equivocal terms as under: “I was called specially to repair OFC on Imphal Moreh and Imphal Churachandpur routes. After repairing, the cable was offered for AT (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 (RID). It is correct that the OFC could not be commissioned unless it was accepted/approved by the A/T team. A/T had raised some objection at the first instance. After removing all those objections, I offered the OFC again for A/T. It had sought relaxation of depth of OFC trenches from the CGM NETR. It is correct that A/T 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 (PW20 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 correct that during joint inspection, the random test check was conducted in each sub-section of the entire route. The depth and protection was found correct as per Route Index Diagram. I was present during joint inspection and I had signed the memo. It is also correct that a joint inspection was again conducted at the Director level on both the routes, i.e., Imphal Moreh and Imphal Churachandpur Sri Sailendra Agarwal, Area Director, NETF, Guwahati and myself were present from OFC side and Director (Maintenance) ETR, Shillong was also present there. I had signed that memo. The depth and protection noted by A/T was checked AT the Director level during joint inspection. After full satisfaction with regard to the depth and protection over the OFC as per Route Index Diagram, the maintenance organization took over the charge of the OFC and I had handed over the charge of the cable to the maintenance. This exercise was done both at Imphal Moreh route and Imphal Churachandpur route. I had signed the joint inspection memo prepared by maintenance organization and executing staff. The responsibility of the executing staff with regard to depth and protection of the OFC came to an end and thereafter it became the responsibility of the maintenance organization.” The IO has not examined the said witness deliberately in this case because no case is made out against the appellants in view of the aforesaid factual position. The court can look into said evidence. The IO (PW22) T.L. Zamang has stated in his cross-examination that: “It is fact that unless the entire stretch of the trench of the particular subsection is reopened, it will not be possible to ascertain exact depth of the cable and the protection provided. It is correct that of cable in this subsection was laid in 1996-97. The cable was commissioned thereafter. It is correct that at the time of conducting joint inspection, the OF cable was working and it was under the charge of Director (Maintenance), ETR, Shillong. I do not remember as to when this cable was handed over by OFC (P) officers to the officers of ETR (Maintenance). It is correct that the officers of OF (P) had no control over the cable and it was the responsibility of the officers of ETR (Maintenance) to maintain the cable. It is correct that at of OF cable was conducted after its execution. It is correct that the officers of OF (P) had no control over the cable and it was the responsibility of the officers of ETR (Maintenance) to maintain the cable. It is correct that at of OF cable was conducted after its execution. It is correct that the officers of at unit are not under administrative control of CGM, NETF. I am not aware whether A/T is under control of CGM, T&D Circle, Jabalpur. I am not aware if the A/T officers verify depth, protection and type of soil but I know that as officers declare commission of cable only after their full satisfaction about the working conditions of the OF cable. It may be that the officers of ETR (Maintenance) conducted a joint inspection with OFC staff to ascertain the depth of the cable and protection over it. I am not aware if depth test check was conducted jointly by the OFC (P) officers as well as the officers of ETR (Maintenance) at the Director level. I am not aware if Mr. M.T. Mang, Inspector CBI had seized the A/T report, joint inspection of Imphal-Churachandpur OFC route conducted by Sri S.N. Malakar, DE, OFC, S. Maria Pragasan, SDE, TP, Imphal, W. Inaobi Singh, JTO, Ch. Debendra Singh, Maintenance ETR Imphal as well as the depth check report of Imphal Churachandpur OFC route conducted by Area Director NEFT and the Director Maintenance ETR Shillong. IT is correct that the responsibility of the OFC officers come to an end after handing over the cable to the ETR (Maintenance). Thereafter it is the responsibility of the ETR Maintenance. To the best of my knowledge the officers of ETR (Maintenance) are not under administrative control of CGM NETF.” It is submitted that the above aspect reveals that, after execution by the OFC staff, it was verified three times in respect of the depth of the cable and the protection applied to it and each time, it was found correct as recorded in Route Index Diagram and the Measurement Book, etc. Insp./CBI, M.T. Mang had seized all those documents; but, he deliberately did not place those documents on record, obviously because no case is made out against the appellants in view of the said reports. The responsibility of the appellants, thereafter, came to an end and further responsibility shifted to the Maintenance organization to maintain the cable. Insp./CBI, M.T. Mang had seized all those documents; but, he deliberately did not place those documents on record, obviously because no case is made out against the appellants in view of the said reports. The responsibility of the appellants, thereafter, came to an end and further responsibility shifted to the Maintenance organization to maintain the cable. It is pointed out that the CBI did not associate any person from the Maintenance organization during investigation. On this ground alone, the impugned judgment is liable to be set aside and the appellants are entitled to acquittal. 18. The learned trial court wrongly relied upon the joint inspection report of CBI. The witnesses to the joint inspection memo stated as follows: “PW12, Sh. N.G. Yana Singh has stated that he merely saw the CBI officer taking measurement. He did not see any file, document or diagram AT site. Some documents were prepared AT site and he signed there. He did not remember whether it was cable or pipe. He went one day on the one pit and the following day on the other pit. He did not verify the measurement with any document. He categorically stated that in his presence, only measurement of pits were taken and nothing else. PW13, Basukinath Benarjee has stated that he did not know who had taken measurement. There was no protection seen in the trench. He did not know what documents they were carrying in. Neither IO nor any other officer of BSNL had showed him any document. He had no knowledge of different type of soil. The status of soil was based on the refilled material in the trench. He spent one day on each pit. He categorically stated that he had signed the joint inspection memo in CBI office. Due to heavy rains, many of those areas had been flooded. PW14, N. Bahadur Singh AT has stated that, the IO and BSNL staff had taken the depth of the pit and he did not know as to how much depth was less. The depth was measured in inches. He did not know as to how figures have been mentioned in the record. He had put his signature on the spot. He stated that the work was executed in the year 1996 and the inspection was conducted in the year 2004 and not in the year 2006. The depth was measured in inches. He did not know as to how figures have been mentioned in the record. He had put his signature on the spot. He stated that the work was executed in the year 1996 and the inspection was conducted in the year 2004 and not in the year 2006. He had no idea as who had decided type of soil. The pits were made on the trenches where cables were laid. PW16, N.G. Tejendra Singh, has stated that he did not do anything. He saw the pipe in the pit. IO asked BSNL employees to make pits. He stated that he did not know anything more than this. PW22, IO, T.L. Zamang has stated that he had conducted joint inspection only at 2 point in each sub-section. The length of each pit was about 1 mtr He could not say that, if test check was done about 0.05% work of the total sub-section length. He categorically stated that unless the entire stretch of the trench of the particular subsection is reopened, it will not be possible to ascertain exact depth of the cable and the protection provided. Thus, the trial court evidently committed an error in relying upon a perfunctory and erroneous joint inspection report of CBI.” 19. It has been stated by the IO (PW22) that he did not remember if sub-section-wise survey was conducted and detailed estimates were prepared. He admitted that in the absence of detailed estimate for each sub-section, the estimated cost may not be possible to be worked out. He admitted that Imphal-Churachandpur is a hilly area. He admitted that as per clause 192 of tender document, the DE will carry out test check by reopening the trenches at intervals if necessary. He stated that the estimated cost of trenching and laying of OFC cable in each sub-section is fixed at Rs. 3 lakh irrespective of site condition and depth of the cable. He admitted to be correct that the estimated quantities are not firm and final and they are subject to change, as mentioned in clauses 46 and 47 of the tender document. He further admitted that the changed quantity will be deemed to have been included in the tender schedule. The payment to the contractor is made on the basis of actually executed quantities at the approved tender rates as per clause 47. 20. He further admitted that the changed quantity will be deemed to have been included in the tender schedule. The payment to the contractor is made on the basis of actually executed quantities at the approved tender rates as per clause 47. 20. PW19 (T.C. Deothia), JAO has stated that he pre-checked the bills of the contractor. He verified the quantities of work and the approved rates. He used to point out to the DE any deviation claimed in the quantity of work with regard to soil condition. The concerned authority used to approve the deviation in-consultation with their internal financial advisor. All the deviation work was initially approved by the Director or CGM only and thereafter DE passed the bills. He used to bring out all the deviation or any short coming to the notice of the DE. After removal of all defects, the payments are made. There are no instructions that DE will conduct test check on every 100 mtr. or 10% of work. DE conducts test check only if he feels necessary, and is the discretion of DE. Unless deviation and amount of bills are approved, these bills cannot be passed. The payment of additional quantities was made to the contractors at the approved rate. Additional quantities are to be treated as tendered quantities. The appellant is a DE (Divisional Engineer) and passed all the bills, only after it were pre-checked by the JAO. The appellant did not commit anything wrong or in violation of the Rules. 21. Sh. B.R. Attri (PW17) has stated, as SDE/OFC, he had visited entire North East India including Imphal Moreh and Imphal Churachandpur. Imphal Churachandpur OFC route is not rocky but hard soil. Without A/T, the OFC work cannot be handed over to the maintenance organization. A/T is completely a separate unit, controlling officer being CGM (T&D Circle), Jabalpur. The CGM (NETF) has no control over A/T. It is concerned with the depth and protection of trenches. A/T is done on the basis of route index diagram. In case the depth and protection of the trenches do not tally with the route index diagram they write to the task force for rectification of defects and reoffer for A/T. In case A/T satisfied then the report is given by the A/T of successful completion of the cable. A/T is done on the basis of route index diagram. In case the depth and protection of the trenches do not tally with the route index diagram they write to the task force for rectification of defects and reoffer for A/T. In case A/T satisfied then the report is given by the A/T of successful completion of the cable. After completion of the A/T, the route is jointly inspected by executing staff and maintenance officers and if they are satisfied then only the route is handed over to the maintenance organization of eastern region. Thereafter, it becomes the responsibility of the maintenance organization. It is correct that the type of soil at the excavation of trenches during execution of work will not be same as the soil used in filling up the trenches at the time of execution of the OFC work. The depth of the trenches, type of protection and category of soil may not remain same over a span of 7 years. The changes as above may occur due to execution of works by other agencies. He has no idea whether sub-section-wise detailed estimates were prepared but he has not prepared any detail estimate sub-section-wise on Imphal Churachandpur route. The estimated cost is calculated on the basis of quantity of work calculated with the departmental rates. It is stated that estimated cost for each sub-section was worked out without detail estimates, and estimated cost and quantities are not firm and final, they are subject to change. The payment to the contractor is made on the basis of actually executed quantities at the approved rate and not at the departmental rate. The site engineer is fully competent to decide the depth of the trench and category of soil. As and when required, the DE can check the depth and protection. It is a discretion of the DE and not mandatory as per clause 192 of tender document. It is stated that at the time of reinstatement of the trench, ordinary soil is used over and above the cable and no debris is allowed. It is not possible that actual status of work at the time of execution may remain same after 7 years. It is, therefore, self-evident that the CBI compared the work executed in the year 1996-97, after a gap of 7 years. It is not possible that actual status of work at the time of execution may remain same after 7 years. It is, therefore, self-evident that the CBI compared the work executed in the year 1996-97, after a gap of 7 years. It is not possible that the status of work in respect of soil, protection and depth can remain same for such a long period particularly in a hilly area. 22. As per clause 46 of the tender document, the figures/quantities mentioned in the tender document are not firm and final. They are subject to change. The changed quantities will be deemed to have been included in the tender schedule. In accordance with the clause 47 of the tender document, the payment to the contractor will be made according to the actually executed quantities at the approved tender rates. It has been done in the present case. The said clauses are reproduced here-in-below for the ready reference: “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. The learned trial court failed to appreciate all above. 23. In accordance with the provisions contained in clause 220 of the tender document, the site in-charge is the competent authority to decide the category of soil and the depth of the trench. He will also decide the protection to be used over the cable under the prevailing circumstances. 24. The learned trial court failed to appreciate all above. 23. In accordance with the provisions contained in clause 220 of the tender document, the site in-charge is the competent authority to decide the category of soil and the depth of the trench. He will also decide the protection to be used over the cable under the prevailing circumstances. 24. The DE will conduct test check as per provisions contained in clause 192 of the tender document which provides that the DE will test check only if he considers necessary, it is not mandatory. This fact has also been admitted by the IO (PW22). He has clearly stated that the test check to be conducted by DE is not mandatory rather it is his own decision. 25. According to the geological survey, about 91% of the area of Manipur is hard and rocky. According to survey report conducted by Sh. R.N. Singh, DE, the entire route is hilly and rocky. It will not be possible to lay cable at the standard depth of 1.65 mtrs. Hence, the protection of GI/RCC pipe and RCC is to be provided over the cable. 26. The payment to the contractor has been made proportionately since the cable has not been laid at the standard depth of 1.65 metres. Contention raised on behalf of the appellant/contractor 27. It has been contended that the contractor/the appellant can no way be attributed to the criminality as they have duly participated in the tender process and selected and there appears no any illegality as regards their role while awarding the contract. They have duly submitted the bid documents and after due evaluation, the TEC has selected them. The evidence reveals that bills were passed by the appropriate authority and they have no role to play in passing the bill. The MB was verified by the concerned Engineer and the bill was verified by the Site Engineer. By drawing attention to the evidence on record, it is submitted that the loss calculation sheet prepared in this case is based on the data provided by the CBI not from the office itself and as has been found above, data shown in the joint inspection report is itself not authentic or proved. By drawing attention to the evidence on record, it is submitted that the loss calculation sheet prepared in this case is based on the data provided by the CBI not from the office itself and as has been found above, data shown in the joint inspection report is itself not authentic or proved. The witness who prepared the loss calculation himself stated that they are not at all sure about the correctness of the loss calculation or they were also not aware if the work was awarded to the contractor at the departmental approved rate by the Director or has no idea about the correctness of the bill submitted by the contractor. 28. Further it has been submitted that the evidence on record, runs counter to the allegation made against the appellant which is not at all suggestive of preparation of bill in excess manner. Most of the witnesses have stated that bill was paid on actual work done by the contractors which is at par with the terms of the tender agreement and as such there cannot be an allegation of raising false bill on the part of the contractor. Tender documents itself provide that final bill may vary subject to the actual work done by the contractor. Accordingly, it has been urged that in view of the evidence on record about the work site and the hilly condition, etc., and in terms of the tender document, the variation of bill amount itself is not suggestive of criminality on the part of the contractor. It contends that there is absolutely lack of evidence suggestive of criminal conspiracy on the part of the contractor with the public servants at the time of awarding contractor nor there is requisite evidence to reflect the dishonest intention on the part of the accused-appellant to cheat the government. But, however, the learned trial court relying only on the evidence of IO and the joint inspection report that was made after 7 years has held the accused-appellants guilty without proper appreciation of entire matters on record, hence, finding of guilt at the accused-appellants is not sustainable. Evidence on record 29. As the whole case revolve around the joint inspection report made by the Investigating Officer (IO) in presence of other witnesses, so let us start with the evidence of Investigating Officers. In the instant case PW18/Sh. M.T. Mang, PW20/Sh. Joseph Krelo, PW21/Sh. Evidence on record 29. As the whole case revolve around the joint inspection report made by the Investigating Officer (IO) in presence of other witnesses, so let us start with the evidence of Investigating Officers. In the instant case PW18/Sh. M.T. Mang, PW20/Sh. Joseph Krelo, PW21/Sh. S. Lama and PW22/Sh. T.L. Zamang are different IOs. PW18, in his evidence, he has stated about the registration of RC 6/02 and he has played no any role except recording of statement of one witness. Similarly, PW20, PW21 and PW23, all of them have stated about the registration of RC 18(A)2002 against the officials of OFC and about registration of FIR in connection with the case. They have also recorded statement of some of the accused during the investigation and nothing more. Obviously, they were not party to the joint inspection. As regard such joint inspection, PW22/Sh. T.L. Zamang has stated that during the course of investigation, he has examined the witnesses, seized documents and conducted physical verification of the executed contract work. During investigation random test check of the contract conducted at different locations of OFC route in Imphal-Chaurachandpur route in sections 10, 11 and 12 in presence of witnesses and the accused-persons and the results of test check incorporated in the memorandum prepared on the spot and all concerned signed the memorandum as a token of correctness of the findings. Vide Exts. 65, 66, and 67 are the random test check memorandum dated 1.4.2002,2.4.2004 and 3.4.2004, with signature of all concern. It is stated that during the investigation it was found that actual work executed on the ground was not as per records and payment were made in excess and undue favours were shown to the contractor by the officials by abusing official position. He filed the charge sheet against the accused-persons on completion of the investigation after obtaining prosecution sanction. 30. This is the cryptic evidence, of the investigating officer who conducted the joint inspection and without elaborating anything about the findings at the time of joint inspection he has exhibited the documents. All of them have simply exhibited the documents in bunch without even narrating the content. PW22, who conducted the joint inspection, was cross examined at length and he has admitted certain aspect which can be mentioned here. All of them have simply exhibited the documents in bunch without even narrating the content. PW22, who conducted the joint inspection, was cross examined at length and he has admitted certain aspect which can be mentioned here. It is stated that payment to the contractor is made on the basis of actually executed quantities of work, at the approved tendered rates as per clause 47. The joint inspection was conducted only at two points in each sub-section and unless the entire stretch of the trench of particular sub-section is reopened, it will not be possible to ascertain the exact depth of the cable and the protection provided. The OFC cable in this section was laid in the year 1996-97 and the cable was commissioned thereafter. He admitted that at the time of conducting joint inspection, the OFC was working and it was under the charge of Director maintenance ETR and officers of OFC have no control. He cannot remember when this cable was handed over by OFC (P) to the officers of ETR. He did not seek any report from ETR maintenance where the OFC cable was shifted due to road widening, construction of drains or the part of cable was replaced due to damage. No officer of ETR maintenance was associated in the investigation at any stage. 31. PW12/Sh. N.G. Yama Singh, PW13/Sh. Basukinath Banerjee, PW14/Sh. N. Bahadur Singh and PW16/Sh. N.G. Tejendra Singh all were witnesses to the joint inspection and they happened to present at that time along with the IO as per direction of the SP, CBI during the time of inspection in respect of sections 10, 11 and 12 as on 1.4.2004, 2.4.2004 and 3.4.2004 and they simply signed the Exts. 65, 66 and 67 as a token of their presence. They have not stated anything about the nature of inspection and the content thereon. 32. PW1/Sh. K.K. Mishra, who was posted as Mazdoor on temporary basis and used to assist the JAO in paper works has exhibited lots number of documents pertaining to the work in question, i.e., sections 10, 11 and 12 since the issuance of NIT, tender documents, report of the tender committee, different bills, MBs, etc., and he identified the signature of the officers concerned in endorsed documents but in the process, he has not stated anything about the matter. At the end, he has stated that after going through the file, he found that there was excess quantity of work executed by the contractor and excess payment was made and deviation of work was shown in respect of item Nos. 10.2,10.5. He, however, stated in cross-examination that except writing the content of bills, he does not has any personal knowledge as regard those exhibited documents/bills. 33. PW2/Sh. S.C. Paul, Chief Accounts Officer; PW6/Sh. Gobinda Kalita, Cashier; PW10/Sh. K.S. Manoharan, Accounts Officer; PW15/Sh. Jibotosh Biswas, Chief Accounts Officer; PW19/Sh. T.C. Deothia, Chief Accounts Officer all of them have exhibited several related documents relating to work order, payment made to the contractor, the different bills prepared in respect of work in question, entries in the MBs, cash book and the calculation sheet prepared on the basis of the joint inspection report, and there is difference between the payment actually made as per MB/RA bills and report of joint inspection team in respect of different sections of the Imphal Moreh route. But save and except exhibiting those documents, they have not uttered a single word about the irregularities or illegalities crept into by in any of the documents they referred to implicate any of the accused-persons regarding criminal liability. Their simple assertion is that they verified the bills which were duly checked by the official concerned, passed by the DE and counter signed by the Director and they passed the bills and issued the cheques under their signature. 34. PW2/Sh. S.C. Paul, Chief Accounts Officer, O/o General Manager use to pay the bills being the DDO after checking the bills with reference to the MB, tender file, etc., has elaborated the procedure of tender and the execution of documents by the tender evaluation committee and has stated that the work was awarded to the second lowest bidder, K.N. Singh and Anwar Hussain. Thus, he has exhibited large number of documents from report of TEC till passing of different bills and cheques after putting his signature even in the MB, cash book, etc., and he has not pointed out about any discrepancy in the documents. He passed the bills and issued the cheques and despite being the Chief Accounts Officer, no anomalies are detected by him. 35. In his cross-examination, he has stated that tendered quantity is always subject to changes. According to clause Nos. He passed the bills and issued the cheques and despite being the Chief Accounts Officer, no anomalies are detected by him. 35. In his cross-examination, he has stated that tendered quantity is always subject to changes. According to clause Nos. 46 and 47 of the tender document the changed quantity is deemed to have been included in the tendered quantity. The payment to the contractor is made on the basis of actual executed quantity. It has nothing to do with the estimated quantity. The site engineer is the in-charge of the work. He is the sole authority to decide the depth of the trench and type of soil. As per clause 220 of the tender document depth and size of trench are standardized measurement and applicable to normal site condition where surface is generally uniform. Site engineer is the authority to decide the depth of trench and type of soil. Test checks are done as per the clause 192 of NIT. As per this clause the Divisional Engineer before passing the bill for section covered by each sets of measurement, will carry out test check by the opening trench as intends if necessary and bills will be passed only when he is personally satisfied of the correctness of the entire in the MB and also when he is satisfied with regard to other aspects of the work as per term of the contract. Excess quantity and amount paid to the contractor is the difference between the estimated cost and the executed cost. The payment has been made for actual executed work. An amount of Rs. 2,00,330 has been shown as excess payment without any estimate and is merely the difference between estimated cost and executed cost. The estimate has been prepared on the survey report. He cannot say whether estimated cost shown in the tender document in the present case was prepared on the basis of the survey report. As per the survey report with regard to Bishanpur-Churachandpur OFC route it is mentioned “it may be noted here it will be very much difficult to dig cable trench to the depth of 1.65 mtrs., hence, RCC/GI pipes have to be laid for the protection of SDPE pipes which are almost more than half of the distance in this section. As per the survey report with regard to Bishanpur-Churachandpur OFC route it is mentioned “it may be noted here it will be very much difficult to dig cable trench to the depth of 1.65 mtrs., hence, RCC/GI pipes have to be laid for the protection of SDPE pipes which are almost more than half of the distance in this section. The provision of RCC protection is nil as per the estimates given in the tender document.” He had referred only to joint inspection report conducted by CBI for calculating the excess payment. He has also admitted that only 7 metres cable was checked out of total of 12 kms OFC route. Excess payment/loss calculation is made based on 0.06% of the cable route length as checked by CBI during joint inspection. 36. PW6/Sh. Govinda Kalita has stated all details about the execution of the work till preparation of the bill and cheque, etc., and he has not stated anything about the irregularities crept into while awarding the contract except exhibiting bunch of documents. In cross-examination, he has stated that his duty was to give payment to staff and maintain cash book and to deal with the execution of the work. He has stated that he only has knowledge of total amount payable to the contractors and does not know anything more than that. 37. In his evidence, PW10/Sh. K.S. Manoharan has stated that at the relevant time 1994-96, while he was working as Accounts Officer, Director Microwave Project and his duty was financial advisor to the Director Microwave project as at the time there was no disbursing unit for Optical Fiber Cable project. He further stated about process of tender for sections 10, 11 and 12, he being a member of tender opening committee and the execution of documents with the selected tender and issuance of work order and exhibited certain documents like 1st, 2nd and 3rd running bills which were compared with the entries in the MBs but he has not stated anything about the discrepancy about the awarding of work and its execution. In his cross-examination, he has stated that he has no personal knowledge as about the exhibited documents and, thus, he himself denied the content of exhibited documents. 38. The Accounts Officer, O/o CGM, PW15/'Sh. In his cross-examination, he has stated that he has no personal knowledge as about the exhibited documents and, thus, he himself denied the content of exhibited documents. 38. The Accounts Officer, O/o CGM, PW15/'Sh. Jibotosh Biswas, has deposed that as an accounts officer his duty was to compilation of circle trial balance, preparation of budget and estimates and submission of other relevant statements to the BSNL, Corporate Officer, New Delhi. His evidence is only related to the seizure of three cheques from him which was issued in favour of contractor Abed Hussain and the project estimate in connection with the case by the IO and he identified the signature of the Accounts Officer, S.C. Paul in the cheques. 39. The Chief Accounts Officer, BSNL, PW19/Sh. T.C. Deothia has stated that his primary duties were to pre-check the bills to the contractors of OFC laying work and checking of personal claims of other staffs. After checking the bill, he send those bills to the DE, OFC and thereafter, it was send to Director, OFC for approval. He stated generally that he used to check the rate of the items and quantity of works, arithmetical calculation, pointing out the excess claim, material used in the work and the balance after the work is finished. He has also stated that the survey report and project estimate is put up before the Director and thereafter before the CGM for approval. He has exhibited the MBs pertaining to the sections 10, 11 and 12 of the said route which contains certification given by the JTO OF (P), whereby it was certified that the work was satisfactory and 100% supervision was done. The MB concern also contain the quantum of work executed item-wise and also the payable amount in respect of first and second running bills and the cheques were issued to the contractor accordingly. 40. In cross-examination, he has stated that he used to point out to the DE any deviation claimed in the quantity of work and with regard to the soil condition. Up to 25% of deviation of an executed work can be approved by the DE and more than 25% deviation has to be approved by the Director or CGM. The said authority used to approve deviation in consultation with the internal financial advisor and all deviation works were initially approved by the Director or CGM only, thereafter, DE passed the bills. The said authority used to approve deviation in consultation with the internal financial advisor and all deviation works were initially approved by the Director or CGM only, thereafter, DE passed the bills. He used to bring all deviations or any shortcoming to the notice of the DE and after removal of the defects, payments have been made. 41. Thus, being a Chief Accounts Officer, in this case, he has not pointed out any sort of defects in the related documents and bills were passed without detecting any defect and cheque was issued without any sort of objection from all the Accounts Officer, who duly checked the relevant documents. 42. PW3/Sh. P. Jagdishan, PW4/Sh. S.K. Jain, PW7/Sh. A.K. Girotra and PW8/Sh. Mahindar Singh all of them have granted the prosecution sanction against the accused-persons, namely, Rajendra Singh, Navendra Kumar and D. Sundaramurthy. 43. PW3, in his cross-examination, has stated at the time of execution of the work, CGM was the competent authority to accord sanction against the accused, Rajendra Singh as BSNL came into existence only on 1.10.2000, whereas, work was executed in the year 1996-97. Similarly, PW4 also stated that at the time of commission of the offence, BSNL was not formed and the accused-D. Sundaramurthy was an employee of DOT and, hence, he was not competent to accord sanction against the accused for the period 1996-97. He never seen the tender documents and other related documents and simply relying upon the CBI report, he accorded the prosecution sanction. 44. PW7 also stated that accused-Navendra Kumar was Group A Officer of the Central Government and president of India is the authority to remove group A Officer. He could not recall whether the time of execution of work he had the power to remove Navendra Kumar. He also could not recall whether he has gone through all the relevant documents at the time of granting sanction. On the other hand, according to PW8 (in cross-examination) earlier two requests from CBI to grant prosecution sanction was rejected by the department and for the third time when the CBI approach CVC (Central Vigilance Commission) prosecution was granted reluctantly. The CBI has forwarded the draft prosecution sanction to the DoT which was ultimately allowed. He did not evaluate any evidence. 45. The CBI has forwarded the draft prosecution sanction to the DoT which was ultimately allowed. He did not evaluate any evidence. 45. Obviously, the prosecution sanction was granted mechanically without evaluating the relevant documents and also without confirming the status of the public servant concerned as to whether the present set of witnesses were empowered to grant such sanction. 46. PW5/Sh. Shisu Ranjan Lodh, Manager Industrial Co. Bank has stated about his letter Ext. 41 whereby, he has furnished certified copy of statement of account pertaining to Sh. Abed Hussain, the contractor, as sought for by the IO. The evidence of PW9/Sh. Subhabrata Gupta, SDE, BSNL (he was JTO at the relevant time) is general in nature. All he stated about the tender documents in respect of OFC trenching and laying in respect of said routes, the estimated cost, laying of protection and about the duties of DE and SDE, etc., and his evidence relates to only exhibiting those documents. His evidence is of no help to the prosecution. Similarly, evidence of PW11/Sh. K.K. Das an officer of the Telecom Office, O/o the Directorate of Microwave working as a senior Telecom Office Assistant, has stated all about the documents from the file and has exhibited certain documents like tender document, containing notice inviting tender, agreement between the officer and the contractor, awarding of tender to the contractor in respect of the route in question, different work order containing the signature of the officer concerned and his evidence is totally silent all about the allegations. 47. PW17/Sh. Baldeb Raj Attri has stated that he was working as an officiating DE and he has exhibited the tender documents for excavation of trenches, comparative statement, approval of contractors, awarding of tender to the contractor Anwar Hussain and all other connected documents regarding the project and his evidence is confined only to exhibiting those documents without explaining anything about the irregularity, illegality while executing tender process or awarding the contract or anything about the payment. From the depositions of the aforesaid vital prosecution witnees, it reveals that— • Before inviting the tender, no sub-section-wise survey, project estimate was prepared. After completion of tender process and after issuing the work order to the contractor, physical survey was conducted by the authority and on the basis of such survey report, project estimates were prepared. From the depositions of the aforesaid vital prosecution witnees, 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 subject to change as per clauses 46 and 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 metres. The CGM accorded the relaxation of depth the OFC, as stated by the prosecution witnesses. As the entire route is hilly and rocky area, therefore, the project cost increases and a revised estimate was prepared and the same was duly approved by the CGM, Task force. • The work was executed in the year 1996 and after completion of the work, the cable was offered to the AT team for inspection and as the AT team detected some defect at the first instance in the year 1999, therefore, the contractor was asked to rectify the same. After rectification of the defects, the cable was again offered to the AT team and the AT approved the same. Thereafter the cable was handed over to the maintenance organization. After handing over the cable to the maintenance organization, a team of 5 officers from the AT and the Maintenance organization was constituted and accordingly, they carried out the joint inspection as per the route index diagram and after inspection, as everything was in order, the said team approved the same. After handing over the cable to the maintenance organization, a team of 5 officers from the AT and the Maintenance organization was constituted and accordingly, they carried out the joint inspection as per the route index diagram and after inspection, as everything was in order, the said team approved the same. • Thereafter, 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. • Thereafter, the SDE prepared the MB on the basis of the route index diagram and the bills and the same were rectified by the DE. The MBs had been countersigned by the Director OFC (P) and duly pre-checked by the JAO, OFC (P) and finally the Accounts Officer, Microwave project passed the bills and accordingly payment was made to the contractor. • The CBI conducted the investigation in the year 2003 till that time more than 7 years have elapsed. During this period of seven years, the condition of the cable has been changed due to land slide, soil erosion, damaged caused by the PWD, etc., which has been corroborated by several prosecution witnesses, but the CBI has neither collected any report from such organization nor exhibited the same. • That CBI has made the joint inspection without the route index diagram inasmuch as the same has not been exhibited in the case. The CBI has also not exhibited the AT report, joint inspection report prepared by the officers of the AT and the maintenance organization and the joint inspection report prepared at the Directorate level. The sub-section file which contained about the deviation statement and the approval from the authority although seized by the IO but not produced. Due to such serious lapse on the part of the IO, the authenticity of the joint inspection report is itself at shake. • The CBI had not made the JAO, the ETR personal, CGM, Task Force NER, as witness and/or accused in the case, under whose supervision, the work was executed and who had verified and/or inspected the work and approved the deviation. No any relevant document like tender document, route index diagram, MBs, etc., shown to the witnesses. • 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 and approved the deviation. No any relevant document like tender document, route index diagram, MBs, etc., shown to the witnesses. • 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. • 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. • No calculation of loss is reflected from the evidence on record as alleged in the charge sheet or in FIR. Entire evidence is non-specific to the point of charge, rather it is general in nature which is discussed above. 48. 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. 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 entire area is hilly and rocky and the standard depth cannot be acquired, damage to the cable may be caused due to natural calamity like heavy rain fall, soil erosion as well as broadening of road. The cables were found working at the time of joint inspection at their places and the change of nature of soil and damage to the protection, etc., appears to be 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 rate. The prosecution witnesses, as discussed above, reveals 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 nature in respect of soil and depth of the trench. 49. The notable aspect of the case is that the case was registered on source information by CBI but source is not disclosed. The higher authority of the department has not come forward with allegation and the case was independently investigated by the CBI officials and has conducted the joint inspection by the IO in presence of the police officials and the officials from the BSNL but none of the witnesses have supported the evidence of the IO on material aspect, rather they show ignorance about the findings made by the IO, whereas, the whole case revolves around the joint inspection made by the IO. No implicit reliance can be made upon such joint inspection report, the authenticity of which is itself clouded by shadow of doubts. More so, the witnesses reveals that the loss calculation has been made on the basis of such report, the content of which is not at all proved. 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. 50. 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 witnesses) 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. 51. According to the learned standing counsel for the respondent-CBI excess quantity of work was executed without taking prior approval of the competent authority and payment was made for those excess quantity of work whereas according to the clause 78 of the tender document, contractor shall not make any change of any work under the contract without written instruction from the site engineer, i.e., the DE. Refuting the said allegation, the learned counsel for the appellant pointing towards the evidence of IO as well as other witnesses, it has been urged that the witnesses said that the prior approval was taken for the excess work done for which excess payment has been made which aspect has entered in the sub-section file and the same is not produced before the court, despite seizure being made by the IO. 52. 52. 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 amount 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. 53. Further contention raised by the learned counsel for the respondent that even after lapse of 7 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. 54. 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. 55. 55. On the face 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. 56. In view of the charge/allegations levelled, 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. 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 v. Yelamarti Satyam, (1972) 4 SCC 562 : AIR 1971 SC 1865 , is— “Mere marking of an exhibit does not dispense with the proof of documents.” Further, in Sudhir Engineering Co. v. NEEPCO Roadways Ltd., 1995 SCC OnLine Del 251, 1995 (34) DRLJ 86, the entire law relating to the marking of exhibits and tendering documents in evidence has been dealt with. It has been held that mere marking and exhibit on a document does not dispense with the formal proof thereof. Relevant para is extracted below— “Let me now look at the law. Any document filed by either party passes through three stages before it is held proved or disproved. These are : First stage : when the documents are fled 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. 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 at the final hearing of the suit or proceeding. I am of firmly opinion that mere admission of document in evidence does not amount to its proof. Admission of a document in evidence is not to be confused with proof of a document. When the court is called upon to examine the admissibility of a document it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved, disproved or not proved the court would look not at the document alone or only at the statement of the witness standing in the box; it would take into consideration probabilities of the case as emerging from the whole record. It could not have been intendment of any law, rule or practice direction to expect the court applying its judicial mind to the entire record of the case, each time a document was placed before it for being exhibited and form an opinion if it was proved before marking it as an exhibit. The marking of a document as an exhibit, be it in any manner whatsoever either by use of alphabets or by use of numbers, is only for the purpose of identification. While reading the record the parties and the court should be able to know which was I he document before the witness 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. 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 v. 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 ether 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.” 57. Although the learned counsel for the CBI in firm vehemence has contended that looking into the allegations levelled 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, even their examination-in-chief, except discussing about the exhibited documents to the work in question, whereas, the evidence is not specific to the allegations levelled. It is the cardinal principles of the criminal jurisprudence that prosecution, is to proove the each and every charges levelled 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 statements/documents have bearing on the issue and same is proved or substantiated, as per law, which is found missing in this case. 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 statements/documents have bearing on the issue and same 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. 58. 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 witnesses themselves has not uttered anything about illegality in those documents. 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. 59. In Abdullah Mohammad Pagarkar, etc. v. State (Union Territory of Goa Daman Dieu), 1980 Crl. LJ 220, where a public servant and contractor were prosecuted under Prevention of Corruption Act and sections 420, 468 and 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 behaviour of governmental official, contractor such disregard did not amount to say any of the offences alleged against them. The onus of proof of existence of every ingredient of the charge always rest on prosecution and never shift. The onus of proof of existence of every ingredient of the charge always rest on prosecution and never shift. It was incumbent, therefore, on the State to bring out beyond all reasonable doubt that the number of labourers actually employed in carrying out the work was less than that stated in the summaries appended to the bills paid by the government, the accused could not be convicted relying on the mere impression of prosecution witnesses regarding the number of labourers employed from time-to-time. No doubt there several irregularities giving rise to strong suspicion in regard to the bona fide 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. 60. It has been held in Sujit Bishwas v. State of Assam, JT 2013 (8) SC 570, the suspicion, however, great it may be, cannot take place of proof and there is a large difference between something that will be proved. In criminal trial suspicion no matter how strong cannot and must not be permitted to take place of proof. This is for the reason that the mental distance may be and must be quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjecture and suspicion do not take the place of legal proof. The large distance between “may be” true and “must be” true, must be covered by way of clear, cogent and unimpeachable evidence produced 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. 61. The present case is required to be examined in the light of the aforesaid settled legal propositions. An adverse inference can be drawn against accused only if the incriminating materials stands fully established and the accused is not able to furnish any explanation for the same. 61. 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, nonfinding 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 was taken and the same was entered in the subsection file, but it was not produced. 62. The official witness that has been examined by prosecution has not supported the allegation as levelled in the FIR and except mentioning about some excess in the running bills, their evidence is silent about any unfair means adopted by the officials or the contractor while awarding the work and the execution. The bills were duly prepared and pre-checked by all the authorities having regard to the MBs and the Accounts Officer finally passed the bill without recording any sort of discrepancy on record. The bills were duly prepared and pre-checked by all the authorities having regard to the MBs and the Accounts Officer finally passed the bill without recording any sort of discrepancy on record. There is absolutely no evidence to show about the falsification of document on the part of the accused-persons by making false entry in the MB or in the bills. The learned trial court centered around his discussion only on the running bills which shows some excess amount but has not appreciated all the material evidence on record including the vital part of cross-examination which indicates several factors deserve consideration as to the reason of change of nature of soil, protection, hard condition of work which may lead to change of estimated cost. It is the version of the witnesses itself that the payment was made on the basis of the actual work done at the time of execution of the work in question, which itself denuded the allegation. 63. The appreciation of all evidence on record is a must prior to reaching a conclusion. As has been held in Sujit Biszvas (supra), 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 or merely a probable doubt but a fair doubt that is based upon reasons and common sense. Further it is held that if the circumstances proved in a case consistent with the innocence of the accused than with his guilt, then the accused is entitled to benefit of doubt. The section 415 of the IPC defines cheating as under: “415. Further it is held that if the circumstances proved in a case consistent with the innocence of the accused than with his guilt, then the accused is entitled to benefit of doubt. The section 415 of the IPC defines cheating as under: “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.” The ingredients of the section 420, IPC are as follows— (i) Deception of any persons, (ii) Fraudulently or dishonestly inducing any person to deliver any property, (iii) To consent that any person shall retain any property and intentionally inducing that person to do or omit to do anything which he would not do or omit. In the given case, no act of inducement on the part of the appellant has been alleged or proved, neither there is allegation that the accused-appellants have the intention to cheat the government from the very inception. The whole allegation has been brought on the basis of the subsequent inspection made by CBI after a lapse of 7 years on completion of the work in question. For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention from the very inception. Even in a case where allegations are made in regard to subsequent conduct of the accused, in absence of a culpable intention since inception, no offence under section 420 of the Penal Code, 1860 is made out. Even in a case where allegations are made in regard to subsequent conduct of the accused, in absence of a culpable intention since inception, no offence under section 420 of the Penal Code, 1860 is made out. The section 415, IPC mandates that there has to be dishonest intention from the very beginning, which is the sine qua none to hold the accused guilty for the commission of the offence under section 420. None of the ingredient of cheating is proved in the instant case against any of the accused. 64. 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.” 65. The learned counsel for the appellants strenuously argued that to convict an accused for an offence under sections 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 v. State of Gujarat, (2002) 5 SCC 86 , is relied on the aspect. 66. The decision of Subash Parbat Sonvane v. State of Gujarat, (2002) 5 SCC 86 , is relied on the aspect. 66. 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. 67. On the next, the appellants have relied upon the decision rendered by the hon'ble Apex Court in B. Jayaraj v. State of A.P., (2014) 13 SCC 55 , wherein it has been held that the presumption under section 20 of the PC 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. 68. Reverting back to the present case in hand, having regard to the evidence discussed above, it can be held that the prosecution has utterly failed to bring on record any evidence of conspiracy or any evidence of wrongful gain to attract the provision of corruption act. It was necessary for the prosecution to establish that there have been a meeting on mind at the time when the contract was awarded or deviation of work was made with a view to facilitate each one of them. The prosecution case in its entirety does not lead to a finding that the accused-appellants had wrongful intention at the time of awarding contract to prove the charges levelled against them nor anything to prove the charge of falsification of the documents on the part of the appellants to attract the offence under section 477A, IPC. 69. The prosecution case in its entirety does not lead to a finding that the accused-appellants had wrongful intention at the time of awarding contract to prove the charges levelled against them nor anything to prove the charge of falsification of the documents on the part of the appellants to attract the offence under section 477A, IPC. 69. The learned trial court proceeded to calculate the findings as per the exhibited documents, bills and MBs on the basis of the joint inspection report conducted by the CBI but as per the discussion made above, no credibility can be attached to the above documents. The evidence in entirety including the material part of cross-examination was not appreciated by the learned trial court in proper perspective of law while arriving at the conclusion about the guilt of the accused-appellants. On scrutiny of the entire evidence, charges of conspiracy as well as other offences cannot stand in absence of requisite convincing and cogent evidence. Appreciation of evidence is a delicate task to be carried out by the judges for weighing the evidence and drawing inferences on the basis of common sense and dexterity. 70. Under section 3 of Evidence Act first the terms fact, relevant fact and fact in issue are defined in respect of evidence and later when it can be said to be proved, disproved and not proved is discussed. Thus, while appreciating evidence in respect of any fact, relevant fact and fact in issue the court has to give its anxious consideration towards the peculiar facts of the case. There may be several facts in a case before court and among it some may be relevant or some may be fact in issue. The court has to first ascertain the facts, then it has to find out whether they are relevant and then whether they are actually in issue. After ascertaining this, the court shall examine the fact and later by applying rules of evidence court has to see that whether those facts are proved, disproved or not proved. 71. In appreciation of evidence under section 3 of Indian Evidence Act, the hon'ble Supreme Court in Ganesh K. Gulve v. State of Maharashtra, (2002) 7 SCC 71 : AIR 2002 SC 3068 has observed as below— “In order to appreciate the evidence, the court is required to bear in mind the set up and environment in which the crime is committed. The level of understanding of the witnesses. The over jealousness of some of near relations to ensure that, everyone even remotely connected with the crime be also convicted. Everyone's different way of narration of same facts, etc.” The upshot of the forgoing discussions will be— (1) The prosecution did not laid down any foundational facts to arrive at a finding of dishonest intention on the part of the appellants nor any such findings have been arrived at by the trial court. (2) The prosecution evidence does not establish neither the conspiracy nor any criminal misconduct on the part of the accused-appellants as per the allegation. (3) None of the charges levelled 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.