JUDGMENT : 1. As both appeals arose from the same judgment in Special Case 165/2004 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 313/2014 and Mr. A.K. Das, learned counsel for the appellant in Crl. Appeal 330/2014. Also heard Mr. S.C. Keyal, learned standing counsel, CBI, 2. During 1995-96 the Department of Telecommunications (‘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 terrain and, hence, not possible to lay cable at the standard department and so the cable was given RCC protection and the acceptance testing of the OFC route was done by the T&D Circle and on successful completion of the acceptance testing the route was handed over to the Eastern Telecom Region for maintenance purposes. 5. 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 (the contractor Sh. R.K. Das was awarded the contract to execute the OFC laying in respect of SS 32 and 33 of Jorhat-Dimapur Kohima 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 excess payment in the tune of Rs. 1,41,831. 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. 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 24 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 the trial convicted the accused Shri Rajkumar Das under section 120B/420, IPC and convicted other two accused-Shri M.L. Sharma and Shri N. Kumar under section 120B/420, IPC read with section 13(1)(d)/13(2) PC Act and sentenced each of the accused-persons to rigorous imprisonment for 2 years with fine of Rs. 10.0 each and in default to simple imprisonment for 6 months to be run concurrently. 12. Appellants in Criminal Appeal No. 313/2014 were working as DE(OFC) and the appellant in Criminal Appeal No. 330/2014 was a contractor with the department. 13. Aggrieved by the aforesaid order and judgment of the conviction present appeals are preferred. 14. I have heard the argument of learned counsels for both the parties at length and there is deliberation from both the sides on the evidence on record and the appreciation thereof. It has been vehemently contended by the learned counsel for the appellants that without proper appreciation of entire evidence on record, the learned trial court has come to a conclusion on the basis of joint inspection report, 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. 15. 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. 15. The basic allegations against the appellants relate to the finding of less depth and protection of the cable and also with regard to the type of soil while executing the construction of OFC laying cable. There are also allegations with respect to the execution of excess quantities without proper approval. Further it was alleged that the DE (Divisional Engineer) did not carry out necessary test check. Contention raised by the appellants 16. It is submitted that there is no material/evidence on record to show that there has been any loss to the department. When there is no loss to the department then the question of any corresponding gain either to the contractor or anybody else does not arise. In absence of any loss to the department, there cannot be any offence made out against the appellant. Appellant has relied upon the decision of hon'ble Supreme Court in the case of Ghulam Din Buck v. State of J&K, (1996) 9 SCC 239 , wherein it has been 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.”… It contends that in the charge sheet, it is mentioned that “During investigation the approximate loss caused to the BSNL due to defective works of the Contractors was got calculated through S. Gupta Engineering Officer, BSNL, Telecom Task Force, Silchar”. Sri S. Gupta has been examined as PW-7 in this case who has categorically said “I had never seen the calculation sheet as marked ‘Z’ before. Sri S. Gupta has been examined as PW-7 in this case who has categorically said “I had never seen the calculation sheet as marked ‘Z’ before. So far my knowledge goes, I have seen it for the first time. I am not aware as to who had written documents, how and what basis as it is not my handwriting. He further deposed that “The loss calculation in respect of SS-32 is wrong” Sh. T. Thangzaliayn (FW-23) in his cross has admitted that “the calculation sheet has not been cited in evidence. I do not find excess payment calculation sheet on record”. 17. After execution of the work, the appellant was transferred out of Guwahati and Sh. S.K. Sikidar (PW-1) was specially deputed for repair of the damaged cables (OFC), which were damaged due to heavy rain, landslides, sinking of road as well as widening of road. In his cross-examination, he has stated as follows: “In 2002, I was posted as DE, Dimapur. The route was not commissioned immediately after completion of work because of damages to the OFC on this route, which was commissioned in the year 2002 after 6 years of completion of work. After restoration of OFC route, the route was offered for AT (Acceptance & Testing). In the AT, after execution of OFC laying work, the T&D circle, test check with regard to depth and protection of cable route found fit for commissioning then only OFC route is declared commissioned. The department has not administered the anti-termite treatment in the RCC protection work on the cable route for protection of RCC concreting. Without anti-termite treatment, the concreting might get damaged after lapse of some years SS -32 & 33 falls in hilly terrain on Dimapur OFC route. During monsoon, because of heavy rainfall there is likelihood of cable getting damaged.” The learned trial court relied upon the joint inspection report of CBI. It is submitted that there were 4 persons present during the inspection conducted by CBI, namely, (1) Sh. Ranjeet Narayan Chakraborty (PW-12), SDE, BSNL, (2) Sh. Kajal Chanda, SD, OFC, (3) Sh. T. Lotha Shitri (PW-6), Geologist. Out of the above persons, 2 witnesses, namely, Sh. Ranjeet Narayan Chakraborty (PW-12) and Sh. T. Lotha Shitri (PW-6) were examined in the court. Ranjeet Narayan Chakraborty (PW-12), SDE, BSNL, (2) Sh. Kajal Chanda, SD, OFC, (3) Sh. T. Lotha Shitri (PW-6), Geologist. Out of the above persons, 2 witnesses, namely, Sh. Ranjeet Narayan Chakraborty (PW-12) and Sh. T. Lotha Shitri (PW-6) were examined in the court. They have contradicted each other w.r.t. preparation of joint Inspection Report at the spot and none of them could compare the Joint Inspection memo observation with cable Route Index Diagram, which discredit the credibility of the joint inspection memo recorded by CBI. Sh. R.N. Chakarborty (PW-12) is material witness in this case who has stated, in his cross-examination that “no spot verification proceedings had been recorded on the spot. The same was prepared by IO and got it signed from me after 15 days of spot verification”. He further deposed that “the measurement recorded by IO during spot verification, were not shown to me during spot verification. No document, e.g., MB, Bill, RID shown to me either in the spot verification or at the time of singing of memo. I do not remember if anybody referred any document during spot verification. I could not see any document with any of the member of joining inspection team during spot verification. The points of reference mentioned in the joint inspection memo nowhere appear in the route index diagram, hence, none of the points in the spot verification cannot co-relate”. He further deposed that “it is correct that depth of cable, category of soil and protection may not remain same after gap of 7 years. The OF cable was in working condition at the time of spot verification. Many times, it so happened that the cable is shifted due to road widening and replaced due to damages to the cable on account of landslide, sinkage, heavy rain fall and working of local cable. It is correct that the cable trenches refilled with soft soil for some depth and no debris allowed for reinstatement of trench. It is correct that the status of soil found during joint inspection is that of refilled material/soil. It is correct that the status of refilled soil and that of original soil at the time of trenching for cable laying cannot remain the same. The soil was not tested in laboratory”. Sh. Tsironthung lotha Shitiri (PW-6) in his cross-examination stated that “I am not a soil scientist. It is correct that the status of refilled soil and that of original soil at the time of trenching for cable laying cannot remain the same. The soil was not tested in laboratory”. Sh. Tsironthung lotha Shitiri (PW-6) in his cross-examination stated that “I am not a soil scientist. I have not been imparted training with regard to the knowledge of classification of soil”. He further stated that “I had not referred to any documents during the course of inspection in determining the soil”. When IO Sh. Joseph Krelo (PW-24) in his cross-examination asked about correlating the point on route index diagram, he replied as under, Q. Can you co-relate any of the pits with the corresponding point in the route index diagram? Ans. Now it would not be possible for me to co-relate the pits as I was of the opinion that department officials who were with us during the joint inspection should be able to co-relate as they were concerned with the routes. 18. Further it is submitted that in the tender document of SS-32, there are only two types of soil, i.e., Mixed soil and Rocky soil. Whereas in the Joint Inspection Memo mentioning as soft soil and hard soil. So the joint inspection conducted by CBI loses its evidentiary value. Hence, it contends that the trial court evidently committed an error in relying upon the joint inspection report of CBI without any evidence on record. Attention has been drawn to the provision of tender document. As per paras 46 and 47 of tender document, the quantities mentioned in the tender document are not firm and final they are subject to change. The changed quantities are deemed to have been included in the tendered schedule quantities. The payment to the contractor is to be made on the basis of the actually executed quantities at the approved tender rates and it has nothing to do with the estimated costs/quantities. Following prosecution witness has also confirmed about the rates at which payment are required to be made for excess quantities:— Sh. S.K. Sikidar (PW-1), in his cross-examination, has stated that “During Execution additional work carried out by contractor, the amount payable to the contractor would be on the basis of rate approved by the department in tender document.” Sh. Following prosecution witness has also confirmed about the rates at which payment are required to be made for excess quantities:— Sh. S.K. Sikidar (PW-1), in his cross-examination, has stated that “During Execution additional work carried out by contractor, the amount payable to the contractor would be on the basis of rate approved by the department in tender document.” Sh. S.C. Paul (PW-2), in his cross-examination has stated that “According to clauses 46 and 47 of tender document excess/changed quantity would be deemed to have been included in the tendered quantity and the payment shall also be made according to the approved rate”. Sh. Montu Ranjan Dutta (PW-11), in his cross-examination has stated that “It is correct that the bills were paid to the contractor on the basis of the actually executed quantity of work at the approved tender rate”. Sh. Joseph Krelo (PW-24), in his cross-examination has stated that payment to the contractor was made for actually executed quantities at the approved rates. Thus, it is self-evident that the payment for excess quantities is to be made at the approved tender rates. As such there is no irregularity as far as rates for excess quantity is concerned and all payments were regulated by the accounts officials after observing all formalities including the approval of competent authority as per terms and condition of tender document. Excess payment 19. As regard the approval of excess amount from the competent authority, Sh. Mantu Ranjan Dutta (PW-11), in his examination-in-chief has stated that “In case there is excess quantity of work with regard to OF cable and trenching. The work is compared with the estimated work then the bills along with MB and route index diagram are dealt with by concerned dealing clear who will prepare the bill accordingly and submit the same before the DE. On instruction of DE, those bills are pre-checked by me and then again those bills are put up before DE for approval of the excess quantity of work. The same approval order is counter-signed by Director. If the Director is not empowered because of pecuniary jurisdiction then same is put up before CGM Task Force North East for approval. After approval the bills are put up before Accounts Officer for payment.” Deviation statement 20. Deviation statement is nothing but compilation of already approved work in running bills and all the running bills are already approved by the Director. After approval the bills are put up before Accounts Officer for payment.” Deviation statement 20. 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 sub-section 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. So far contractor committing an offence under section 420 of IPC is concerned it is argued that doing excess quantity of work in itself is not an offence but provision is attracted only when the excess quantity of work is falsely shown to have been executed in order to claim excess amount in the bills. It is evident that mindset had been made up in the beginning to allow the contractor to execute excess quantity of work and certifying the work in items where rate is more. While execution of work, the deviation in quantum of different category of soil and RCC protection is unavoidable and as per para 220 of tender document Site Engineer shall be the authority to decide the depth of trench and type of soil. There is no oral or documentary evidence to substantiate the charge that the quantum of soil whose rates are higher has been enhanced and quantum of soil whose rates are lower is reduced, the fact is that the deviation in particular type of soil/RCC work while actual execution of work is site specific and vary from site-to-site. Whereas in this case the fact is that quantum of Rocky soil whose rates are higher has been reduced and quantum of mixed soil whose rates are low has been increased (it may be vice versa in other cases depending on site conditions). Whereas in this case the fact is that quantum of Rocky soil whose rates are higher has been reduced and quantum of mixed soil whose rates are low has been increased (it may be vice versa in other cases depending on site conditions). There is no oral or documentary evidence to substantiate the charge of falsely execution of excess quantities, whereas the fact is joint inspection memo was not proved by any of joint inspection team member, no joint inspection team member could correlate the observations of joint inspection with respect to their respective positions on the route index diagram. Payment of excess quantities at tender approved rates 21. In accordance with clause 46 of the tender document the figures/quantities mentioned in the tender document are not firm and final. They are subject to change. The changed quantities will be deemed to have been included in the tender schedule. In accordance with the clause 47 of the tender document, the payment to the contractor will be made according to the actually executed quantities at the approved tender rates. It has been done in the present case. The said clauses are reproduced here-in-below for the ready reference of the court: “46. The quantities/figures indicated in the tender schedule are approximate and are subject to change. Any change effected shall be binding on the tenderer/contractor as though included in the original tender schedule and any such change will not make the agreement void and it is, therefore, essential that the tenderers binding all the documents carefully and not commit any mistake in analyzing the rates quoted and remain binding notwithstanding any changes as aforesaid. No revision of tendered rates shall be considered on any ground whatsoever. 47. The quantities indicated in tender schedule shall not be considered as representing firm/final quantities. 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, submitted 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. 22. 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. 22. 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. Sh. Ranjeet Narayan Chakraborty (PW-12) has admitted this fact. The appellants are not at all blameworthy in any manner. 23. There is no provision of law or rules or any instructions or any clause in the tender document which requires DE to conduct test check at every 100-metre or 10% of the work. However, clause 192 provides that the DE will test check only if he considers necessary. It is not mandatory and this fact has also been admitted by the IO (PW-23) and Sh. S.C. Paul (FW-2). 24. According to the Geological Survey of India, about 95% of the area of Nagaland is hard rock. According to survey report, the entire route is hilly and rocky. It will not be possible to lay cable at the standard depth of 1.65 metres. Hence, the protection of GI/RCC pipe and RCC is to be provided over the cable. 25. 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. 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. 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 and after the DE, (the JAO and AO, respectively) have been given clean chit by CBI by approving the bills by them. Hence, the appellant cannot be faulted. 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. The payments have been made for the actually executed quantities at tender approved rates. 27. The Head Quarter of the DE was at Guwahati whereas the work was executed in the State of Nagaland. The execution of work is to be supervised by the site engineer (SDE) who represents the government at site of work as per clause 72, the SDE (Site In-charge) is responsible and not the appellant. 28. The hon'ble Supreme Court in the case of Abdulla Mohammed Pagarkar, etc. v. State (Union Territory of Goa, Daman and Diu), 1980 Crl. LJ 220, while dealing with a case where a public servant and a contractor were prosecuted under the Prevention of Corruption Act and sections 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 behaviour of governmental officials and contractors, such disregard did not amount to any of the offences alleged against them. The onus of proof of the existence of every ingredient of the charge always rest on the prosecution and never shift. The onus of proof of the existence of every ingredient of the charge always rest on the prosecution and never shift. It was further held, No doubt there were several irregularities giving rise to a strong suspicion in regard to the bona fides of the accused in the matter of the execution of the work but suspicion, however, strong, could not be a substitute of proof. 29. The learned 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 30. 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. 31. Further it has been submitted that the evidence on record, runs counter to the allegation made against the appellant which is not at all suggestive of preparation of bill in excess manner. Most of the witnesses have stated that bill was paid on actual work done by the contractors which is at par with the terms of the tender agreement and as such there cannot be an allegation of raising false bill on the part of the contractor. Most of the witnesses have stated that bill was paid on actual work done by the contractors which is at par with the terms of the tender agreement and as such there cannot be an allegation of raising false bill on the part of the contractor. Tender documents itself provide that final bill may vary subject to the actual work done by the contractor. Accordingly, it has been urged that in view of the evidence on record about the work site and the hilly condition, etc., and in terms of the tender document, the variation of bill amount itself is not suggestive of criminality on the part of the contractor. It contends that there is absolutely lack of evidence suggestive of criminal conspiracy on the part of the contractor with the public servants at the time of awarding contractor nor there is requisite evidence to reflect the dishonest intention on the part of the accused-appellant to cheat the government. But, however, the learned trial court relying only on the evidence of IO and the joint inspection report that was made after 7 years has held the accused-appellants guilty without proper appreciation of entire matters on record, hence, finding of guilt at the accused-appellants is not sustainable. Relevant Evidence on record 32. The whole prosecution case centered around the joint verification report, vide Ext. 18, dated 4.6.2003, that was conducted by the IO/PW— 24, Joseph Krelo, in presence of witnesses, PW-12, R.N. Chakroborty and PW-6, Sh. T. Lotha Shitri, Geologist. Let us examine their evidence. According to PW-24, they conducted the joint inspection of the trenches in the OFC route SS 32 and SS 33. In SS 32 trenches were dug at five places and SS 33 trenches were dug at eleven places. The pits were dug as suggested by K. Chanda (the then SDE) and PW-6 and PW-12 and all those signed the joint inspection memo. In his evidence of PW-24 has not narrated anything what sort of discrepancy he found at the time of such joint inspection, whereas, PW-12 has given a detail evidence and also stated about the discrepancy that was found at the time of inspection in respect of the depth of the trench, protection of RCC, type of soil in different locations, in comparison to the MBs/bill, etc. The said witness in his cross-examination has stated that as SDE he used to check and verify the depth and protection of OFC as per route index diagram. In case of deficiency he informed the executing officers. The cable is commissioned after removing all defects pointed out by A/T team. Thereafter, the executing officers hand over the cable to the maintenance organization. It is correct that maintenance organization is under the administrative control of CGM, NETF. The responsibility of executing officers come to an end after handing over the cable to the maintenance department. Further he stated that he had no role to play during spot verification and he merely watched the spot verification and the category of soil were decided by the CBI team. No spot verification was prepared by the IO on the spot and same was prepared by the IO and he signed the same after 15 days of the spot verification. The depth was recorded by 3-metre long tape but measurement was not shown to him. No such documents like MB, bill and RID were shown to him neither the other member of the joint inspection. The points of reference mentioned in the joint inspection memo, nowhere appeared in the route index diagram, hence, none of the points in the spot verification cannot co-relate, so he was unable to confirm the figure mentioned in the joint inspection memo. 33. He is also not aware as to how the soil has been classified as soft soil and hard soil, whereas, there was only mixed soil besides the rocky soil. It is stated that the depth of the cable, category of soil and protection may not remain Same after gape of 7 years. The OF cable was in working condition at the time of spot verification. Many times it so happens that the cable is shifted due to road widening and replaced due to damages to the cable on account of landslide, sinkage, heavy rainfall and working of the local cable. It is also stated that the pits for spot verification were made over the OFC cable in the same trench. The status of refilled soil and that of the original soil at the time of trenching for cable laying cannot remain the same. The soil was not tested in laboratory. It is also stated that the pits for spot verification were made over the OFC cable in the same trench. The status of refilled soil and that of the original soil at the time of trenching for cable laying cannot remain the same. The soil was not tested in laboratory. It is further stated that the site engineer is the competent authority to decide the depth of the cable and category of soil. 34. Although the PW-12 has read out the joint inspection report, vide Ext. 18, in his examination-in-chief but his statement in cross-examination has destroyed the credibility and authenticity of the said joint inspection report. Evidently, the said report was not prepared at the spot and the IO without consulting any sort of documents like MB/bill/route index diagram has prepared the said report which again cannot co-relate with the route index diagram, is highly doubtful document. The signature of the witness was also taken after 15 days. Similarly, the another witness to the joint inspection report, PW-6, is also silent about the manner of joint inspection carried out by the IO and he has simply stated that at the time of inspection by the CBI team in some trenches, there was rocky soil, whereas, in some other places soft soil was found and he signed the exhibit 18, as directed by the IO at the spot which is again not tallied with the version of the PW-12. Thus, the joint inspection report is found to be not a authentic document to base the prosecution case. 35. The evidence of PW-1, S.K. Sikidar and PW-2, Satyendra Chandra Pal are of general in nature who have simply narrated all about the tender procedure till execution of the work having reference to the various exhibits till payment of the bill to the work in question. Their evidence is utterly silence as to fix any criminal liability to any of the officers concerned in the entire work. Merely exhibiting certain documents by the prosecution is not enough unless the charge is substantiated on the strength of such document. The court is not supposed to scan the documents and to go for its own comparison to make out a case. The prosecution has to establish the charges as per procedure. 36. Merely exhibiting certain documents by the prosecution is not enough unless the charge is substantiated on the strength of such document. The court is not supposed to scan the documents and to go for its own comparison to make out a case. The prosecution has to establish the charges as per procedure. 36. Even the Accounts Officer, PW-2, who himself checked and passed the bills pertaining to the project, failed to point out any irregularities that has been crept up while processing the bill. He has no occasion to raise objection to any of the bill as it was duly forwarded from the Office of the Director Microwave with a forwarding letter from the Office of the OFC to effect the payment and accordingly payment was made. The said PW-2 also admitted that the bills were prepared, passed and paid on the basis of actual executed quantity at the approved rate. He also admitted that the estimated quantity of work is subject to change and before passing the bills by DE, it is pre-checked by the JAO, passed by DET, than bills are pre-checked by the JAO with reference to the measurement book and agreement. The bills then comes to the Office of the Director Microwave Project Task Force Guwahati to effect the payment of bill and payment is accordingly made by the Accounts Officer. 37. Another pertinent feature of the case is that though the PW 3 has granted the prosecution sanction but he has stated that initially twice the Department was not inclined to accord sanction for prosecution of the above accused and for the third time CBI approach CVC and thereafter sanction was granted and he did not evaluate the evidence before according sanction. The prosecution sanction draft was also send by the CBI along with the SP report which goes to show that a case was tried to be projected by the IO only on the basis of inspection report. Other PW-4 and PW-5 also granted sanction without verifying the other documents but simply relying on the report of the CBI. 38. The prosecution sanction draft was also send by the CBI along with the SP report which goes to show that a case was tried to be projected by the IO only on the basis of inspection report. Other PW-4 and PW-5 also granted sanction without verifying the other documents but simply relying on the report of the CBI. 38. The evidence of PW-7, Subhabrata Gupta, is more surprising while he says that he prepared the loss calculation as regard the route SS 32 showing excess payment marked as Z in examination-in-chief but in cross-examination he said that he never seen the calculation sheet marked as Z and he is not aware as to who had written the said document and on what basis as it is not his handwriting. He has admitted that the Pit No. F of joint inspection memo and the type of soil recorded by CBI as soft and as per memo of the bill was paid on the basis of hard soil but the loss has been calculated on the basis of rocky soil. In the MB, the loss calculation in respect of SS 32 is wrong. He has no idea why the CBI has inspected only 6 pits in SS 33 with regard to the calculation of the loss on the basis of type of soil. In SS 33, as per joint inspection memo, at some points contractor has been paid on the basis of hard soil, where as per the inspection memo it is rocky soil. In the joint inspection report, there is reference of Patkai bridge in all the 6 spots but in the route index diagram there is no mention of Patkai bridge. Thus, in view of the evidence of PW— 7, the joint inspection report as well as the loss calculation report lost its credibility and as the entire matter became shaky. 39. The evidence of PW-8, K.K. Mishra; PW-9, Kavita Das; PW-10, Shymal’ Chandra Dhar and PW-11, Montu Ranjan Das would go to show that they have simply exhibited many documents that was seized by the IO regarding the work in question without being explained any sort of illegality that has been indulged by the officer concerned and the contractor while performing the entire work. PW-11, being the Accounts Officer after checking all the relevant documents like MB, route index diagram and on the instruction of the DE, he pre-checked the bill and again bills were put up before the DE for approval of the excess of the work and after approval by the Director/CGM concerned whichever may be, bills were again put up before him and he passed the bills after giving such approval. In his cross-examination, he further stated that he used to signed the bill only after satisfying himself that everything is ordered as per rules and norms. He used to verify the figures of route index diagram with regard to depth of the cable, category of soil and protection as compared from the figures of the MB and route index diagram. He used to sign the MB as token of correctness of the figures. No detailed estimate is made for any sub-section. It is also stated that the estimated cost of the work in any sub-section cannot be ascertained without preparing detailed estimate. He does not know when DET used to go for site inspection. It is discretion of the DE to conduct test check as per clause 192 of tender document. The bills were paid to the contractor on the basis of the actually executed quantity of work at the approved tender rates. Further, it is stated that an amount of 10% was deducted from each bill as SD money. On completion of the work the SD money was released to the contractor. 40. The evidence of PW-13, Jibotosh Bishwas is of formal in nature and he has stated about some seizure of documents by the CBI without explaining as to why it was seized. The PW14/Deputy Director General TEC was stated about the meeting of project estimate on the prevailing rates and same was forwarded to CGM for sanction and same was sanctioned. He has exhibited certain documents like survey reports sanction order, tender documents without elaborating anything on the matter on issue and his evidence is general in nature. He has not even stated about the joint inspection report for any excess payment, excess quantity, rather he has given a contrary picture. It is stated as per Ext. 9(3) the estimated cost was Rs. 5.68 lakhs for SS 32 whereas the approved amount was Rs. 3,46,600 which is almost half of the estimated amount. He has not even stated about the joint inspection report for any excess payment, excess quantity, rather he has given a contrary picture. It is stated as per Ext. 9(3) the estimated cost was Rs. 5.68 lakhs for SS 32 whereas the approved amount was Rs. 3,46,600 which is almost half of the estimated amount. Again as per estimated cost for SS 33 was Rs. 5.18 lakhs whereas the approved amount was Rs. 1.43,975 which is almost 30% of the estimated amount. He stated that in case of SS 33 amount is much lower than the estimated amount which is not workable. In cross-examination he has admitted that estimated cost of each subsection cannot be ascertained without preparing detail estimate subsection-wise. 41. The Chief Accounts Officer Shri Bhaskar Dey as PW-15 simply exhibited the MB in respect of SS 32 and SS 33 vide Exts. 29 and 32 without uttering any sort of disparity as regard the entry in the MB and he has no knowledge as about the case. Similarly, PW-16/Shri Bipul Kumar Boruah, PW-17/Shri A. Chakraborty, PW-18/Shri Puma Boro, PW-19/Shri K.K. Das, PW-20/Debashis Mitra, PW-21. Shri Samar Kumar Panda and PW-22/Shri S. Lama all of them have simply exhibited certain documents relating to case like, the bill, account No. of the contractor, and signature in the MB as well as running bills, sanction order, agreement between the contractor and the authority, comparative statement, etc., without describing anything as to how those documents relates the accused-persons towards the alleged illegalities committed by any of the accused-persons. Their evidence strictly confine only to exhibiting the documents nothing else. In cross-examination it has been stated the amount of excess payment was calculated as difference of the actual amount paid and approved tender amount but the said calculation sheet was not found in the record. 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 subject to change as per clauses 46 and 47 of the tender documents. It may be increased or it may be decreased. 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, 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 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. 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. 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 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. 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. Findings 42. 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 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. 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. 43. The notable aspect of the case is that the case was registered on source information by CBI but source is not disclosed. The higher authority of the department has not come forward with allegation and the case was independently investigated by the CBI officials and has conducted the joint inspection by the IO in presence of the police officials and the officials from the BSNL but none of the witnesses have supported the evidence of the IO on material aspect, rather they show ignorance about the findings made by the IO, whereas, the whole case revolves around the joint inspection made by the IO. No implicit reliance can be made upon such joint inspection report, the authenticity of which is itself clouded by shadow of doubts. More so, the witnesses reveals that the loss calculation has been made on the basis of such report, the content of which is not at all proved. Similarly, the depth of the trench and deviation of soil have also been calculated having regard to the findings of the joint inspection report and comparison of the findings with the original status of the project obviously cannot be the same. The findings of the survey report indicates that the projected area was hilly and rocky and prone to the landslide, couple with the oral evidence (particularly in cross-examination) reveals stoutly that condition of soil and depth of trench cannot remain same for variety of reasons as has been discussed above. 44. 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 tile CBI report (draft prosecution sanction was prepared by CBI as stated by one of the witness) as the CBI approach to CVC. 44. 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 tile 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. 45. 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. 46. 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. 47. It has been submitted that the Accounts Officer, who checked the bill, found the same correct and passed the bill without any objection. 47. 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. 48. 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. 49. 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. 50. 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. Moreover, the veracity of the joint inspection report is itself at shake and not a proved document. 50. 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. 51. 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.” 52. 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 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 disproved” when the court is called upon to apply its judicial mind by reference to section 3 of the Evidence Act. Usually this stage arrives the final hearing of the suit or proceeding. I am of firmly opinion that mere admission of document in evidence does not amount to its proof. Usually this stage arrives the final hearing of the suit or proceeding. I am of firmly opinion that mere admission of document in evidence does not amount to its proof. Admission of a document in evidence is not to be confused with proof of a document. When the court is called upon to examine the admissibility of a document it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved, disproved or not proved the court would look not at the document alone or only at the statement of the witness standing in the box; it would take into consideration probabilities of the case as emerging from the whole record. It could not have been intendment of any law, rule or practice direction to expect the court applying its judicial mind to the entire record of the case, each time a document was placed before it for being exhibited and form an opinion if it was proved before marking it as an exhibit. The marking of a document as an exhibit, be it in any manner whatsoever either by use of alphabets or by use of numbers, is only for the purpose of identification. While reading the record the parties and the court should be able to know which was the 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 v. Ratnpal Singh Bisen, (2010) 4 SCC 491 , it has been held as below— “Mere admission of document in evidence does not amount to its proof. This makes the position of law clear. Any practice contrary to the above said statement of law has no sanctity and cannot be permitted to prevail.” In LIC of India v. Ratnpal 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. 53. 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 exaxnination-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 proof 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. So far as the revealment by the witnesses, plausibility of involvement of accused-persons with the offence alleged is not forcefully made out, rather it indicates another view that the work in question was carried out without any illegality. So far as the revealment by the witnesses, plausibility of involvement of accused-persons with the offence alleged is not forcefully made out, rather it indicates another view that the work in question was carried out without any illegality. There may be some irregularity here and there for raising the cost of soil without having proper sanction at relevant time but in view of the evidence surfaced, it also indicate on the basis of actual finding in the field the status of soil as well as depth of trench may differ which has resulted the variation of cost against the estimate. As there is no dear 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. 54. 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. 55. 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, 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. 56. 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 dear, 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. 57. 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. 57. 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 practiced 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). 58. 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 prechecked 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 prechecked 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 at all discussed 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. 59. The appreciation of all evidence on record is a must prior to reaching a conclusion. As has been held in Sujit Biswas (supra), in criminal case charge has to be proved by dear, cogent and unimpeachable evidence and sure condusions to be arrived at, on the touchstone of dispassionate judidal 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 (heating 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 (heating 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. 60. 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. 61. 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. 62. 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. 62. 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. 63. 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.” 64. 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 v. State of Gujarat, (2002) 5 SCC 86 , is relied on the aspect. 65. 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. 65. 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. 66. 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) 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. 67. 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. 68. 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. 68. 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. 69. 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, disprove or not proved. 70. 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. 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 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 dishonest intention 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.