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2018 DIGILAW 889 (MAD)

B. K. Venkatesan v. State

2018-03-05

G.JAYACHANDRAN

body2018
JUDGMENT : G. Jayachandran, J. 1. These two appeals are directed against the judgment of the Special Judge for CBI Cases-cum-IX Additional City Civil Court, Chennai in C.C. No. 35 of 2004, dated 28.07.2010 sentencing the appellant/Al in Crl.A. No. 489 of 2010 (T. Sundar) to undergo 1 year RI and imposed to pay a fine of Rs. 10,000/- in default to undergo 2 months RI for the offence under Section 420 IPC; and 1 year RI and imposed to pay a fine of Rs. 10,000/- in default to undergo 2 months RI for the offence under Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 and the appellant/A2 in Crl.A. No. 466 of 2010 (B.K. Venkatesan) to undergo 1 year RI and imposed to pay a fine of Rs. 10,000/- in default to undergo 2 months RI for the offence under Section 420 IPC; and 1 year RI and imposed to pay a fine of Rs. 10,000/- in default to undergo 2 months RI for the offence under Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988. The period of sentence, if any, already undergone by the accused was ordered to be set off as provided under law. The sentence of imprisonment imposed on the accused were ordered to run concurrently. The trial Court has acquitted the third accused private individual by name K. Mani Naidu for want of proof. 2. The gist of the prosecution case is that during the month of June 2002, Southern Railways invited tender for supply of 50mm machine crushed stone ballasts (mcsb) of quantity 41,280 cum at Arakkonam ballast depot. The total estimated tender value was Rs. 1,69,20,672/-. Out of 7 participants in the tender, 4 were found ineligible and among the three eligible participants, K. Mani Naidu was the lowest tenderer. The Tender Committee, which met on 19.06.2002 short listed K. Mani Naidu as the lowest tenderer and he was invited for negotiation. In the negotiation held on 24.07.2002, the tender was awarded to K. Mani Naidu in which the members of the Tender Committee had signed and accepted by the Divisional Regional Manager. The agreement of contract was executed between Southern Railways and the Supplier (A3). 3. In the negotiation held on 24.07.2002, the tender was awarded to K. Mani Naidu in which the members of the Tender Committee had signed and accepted by the Divisional Regional Manager. The agreement of contract was executed between Southern Railways and the Supplier (A3). 3. As per the condition of the contract which contained the RDSO specification of track ballast, the ballast should be sieved through 20mm, 40mm and 65mm square mesh sieve and the retention in 20mm sieve should not be less than 98%, the retention in 40mm sieve should be between 40% & 60% and for retention beyond 60% and upto 65%, there should be deduction of payment of 5% of the contracted amount for the entire stacks. For retention between 65% and 70%, there should be deduction of payment of 10% of the contracted rate. However, in case of retention beyond 70%, the entire stacks should be rejected. On the other hand, the physical property test of ballast, viz., Abrasion Value should be below 30%, Impact Value should be below 20% and Water Absorption Value should be below 1%. 4. During joint surprise check, it was found that K. Mani Naidu [A3] has supplied inferior quality of ballasts in violation of provision of contract dated 01.08.2002 and A1(T. Sundar)-Assistant Divisional Engineer, Sub Divisional Office, Southern Railways, Arakkonam, A2(B.K. Venkatesan) Senior Section Engineer Officer of ADEN Southern Railways, Arakkonam by accepting the inferior quality had violated the tender terms. The size and gradation test as well as property test were not conducted properly by A1 and A2 to facilitate A3 to supply inferior quality mixture of machine crushed and hand broken ballasts. 5. The case was registered by CBI on 31.12.2002 for the offences punishable under Sections 120-B r/w 420 IPC and Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 against P. Sundar (A1), B.K. Venkatesan (A2) and K. Mani Naidu (A3). 6. On completion of investigation, the prosecution has filed the final report wherein prima facie material regarding criminal conspiracy entered between A1 and A3 to cheat Southern Railways by supplying inferior quality of 50mm machine crushed stone ballasts has been accepted without properly conducting size and gradation test through sieve analysis on the spot and accepted it without testing for its physical properties in the authorized laboratory. In violation of terms of condition, physical properties test was conducted in the same Lab for two consecutive test by A1 and A2. Further, they prepared bills for the supply of ballasts made by A3 accepting the inferior quality without making restricting payment or rejecting as the case may be. The surprise check conducted by Southern Railways and CBI jointly had revealed that ballasts consisting more than 70% retention, which are liable to be rejected, are accepted. The total value of ballasts liable for rejection was assessed to the tune of Rs. 5,04,012.54 paise. Ballasts whose size and gradation was above 65% and below 70% for which 10% of value ought to have been deducted, was not deduced, thereby a sum of Rs. 58,659.43 loss to the Southern Railways. Similarly, ballasts from stacks 6/A whose size and gradation was 63.62% which is liable for 5% deduction amounting to Rs. 19,250.45 was not deducted. Due to the conspiracy entered between A1 and A3, a total sum of Rs. 5,81,920.91 paise had been paid illegally to A3 by A1 and A2 thereby causing wrongful loss to the Southern Railway and corresponding gain to A1 and A2. 7. To prove the charges, the prosecution has examined 33 witnesses and marked 96 exhibits. On the side of the defence, 4 exhibits were marked. The trial Court has found A1 and A2 guilty of accepting inferior quality of ballasts from A3, but not deducted proportional cost for supply of inferior quality. From the evidence let in by the prosecution, the trial Court has also found that in ballasts stacks viz., 9B, 8B, 1C, 7/C and 3/C, a total of 6286.744 cum of ballasts supplied by A3 had retention exceeding 60% but below 65% for which 5% of the value has to be deducted, which comes around Rs. 1,31,424.38, which is the actual loss to the Southern Railways because of the act of A1 and A2 for accepting the inferior quality of ballasts, without deducting 5% of cost as stipulated in the terms of contract. Hence, the prosecution has proved A1 and A2 have committed offence under Section 420 IPC. 1,31,424.38, which is the actual loss to the Southern Railways because of the act of A1 and A2 for accepting the inferior quality of ballasts, without deducting 5% of cost as stipulated in the terms of contract. Hence, the prosecution has proved A1 and A2 have committed offence under Section 420 IPC. Since they have failed to conduct sieve analysis test properly on the spot at the time of receiving the ballasts from A3, they for failure to perform the test properly and have misused their official position for pecuniary advantage to A3 and for their failure to take steps to recover loss incurred to the Southern Railways, also, liable for punishment under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988. 8. Further, the trial Court has held that the prosecution has failed to prove the charge of conspiracy against the accused person as well as charge of cheating against A3 beyond reasonable doubt. Therefore, A1 to A3 were acquitted from the charge of conspiracy and A3 from the charge of cheating under Section 420 IPC. 9. Aggrieved by the said judgment of conviction under Section 420 IPC and Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988, A1 and A2, who are the appellants in Crl.A. Nos. 489 and 466 of 2010 respectively, have preferred the present appeals on the ground that the sanction for prosecution is accorded without application of mind and without competency. 10. The learned Senior Counsel appearing for the first accused [A1] submitted that as far as A1, who holds the post of Assistant Divisional Manager is concerned, the Railway Board is the competent authority to remove him from service. Therefore, sanction has to be accorded by the Railway Board. Whereas, the sanction for prosecution marked as Ex. P1 has been issued by PW-1 [K.K. Sharma] Joint Secretary, Ministry of Railways, Railway Board, New Delhi. He has been examined as PW-1 by the prosecution wherein, he admits the records were perused by the Member Engineering Railway Board and he decided to accord sanction. It is an admitted fact by the prosecution through PW-1 that one Mr. S.P. Jain is the person, who was then Member Engineering, Railways Board and he decided to accord sanction and based on his opinion, PW-1 issued order granting sanction. It is an admitted fact by the prosecution through PW-1 that one Mr. S.P. Jain is the person, who was then Member Engineering, Railways Board and he decided to accord sanction and based on his opinion, PW-1 issued order granting sanction. When the Board is empowered to remove the accused who holds the post of Assistant Divisional Engineer, one of the Member of the Railway Board cannot individually take decision on behalf of the Board. Therefore, sanction to prosecute A1 is per se illegal. 11. As far as A2 is concerned, it is contended by the learned Senior Counsel appearing for the appellant that the sanctioning authority [PW-2] had not applied his mind while according sanction. The samples drawn during his surprise check have not been done in conformity with the standard procedure for drawing samples of ballasts. PW-2 [Mr. D.C. Mitra], who has accorded sanction to prosecute A2 admits that, he is not aware of Board Circular issued in the year 1999 restricting no two consecutive test should be done in the same laboratory and it is not possible to distinguish visually whether the ballasts are hand broken or machine crushed. He also admits that he has not seen the files relating to the payment and the certificates of the laboratory, which were accompanied with the bills for payment. He has not seen the measurement books or ballasts gradation passing register. He admits that he is only seen the joint finding of Railway Department and CBI and had accorded sanction. Therefore, the sanction accorded to A2 admittedly, without perusing all the relevant records, was issued without application of mind. 12. It is also contended by the learned Senior Counsel appearing for the appellants that the samples drawn during the joint surprise check were not drawn in accordance with law, the Railway Design and Standard Organisation (in short "RDSO") prescription. The report obtained from National Test House(in short "NTH") laboratory is in admissible since NTH laboratory is not one of the authorised laboratory. The First Information Report registered on 31.12.2002 is admittedly subsequent to investigation and drawing samples under mahazar. The investigation before registration of First Information Report is contrary to the procedure laid in the Code of Criminal Procedure. The ballasts drawn as samples are not marked as Material Objects, though the case of the prosecution centres around the quality of ballasts supplied by A3. While PW-2 [Mr. The investigation before registration of First Information Report is contrary to the procedure laid in the Code of Criminal Procedure. The ballasts drawn as samples are not marked as Material Objects, though the case of the prosecution centres around the quality of ballasts supplied by A3. While PW-2 [Mr. D.C. Mitra] has admitted that ballasts in stack No. 1378 and 1379, which according to prosecution was of inferior quality, had been replaced by the supplier A3. There is no loss to the Southern Railways. The sieve analysis done on the spot as well as the laboratory test conducted by VIT institute regarding physical properties of the ballasts is in conformity with terms and specification mentioned in the contract. The certificates issued by VIT which are marked as Exs. P18 to P25 and P29 and P30 cannot be rejected or disbelieved for the reason that two consecutive sample test was done by the same laboratory. Though the prosecution has alleged that A1 and A2 had sent all the samples to the same laboratory which is contrary to the Board Circular, the prosecution has not placed before the Court any such circular prohibiting the department to send the samples to the same laboratory. More so, when the samples drawn by the joint team of Railways and CBI were sent to same lab (NTH). Further, they have collected the samples using earth mover(JCB) not at random in cross sanction diagonally at top, centre and bottom and also had forwarded the same to the same laboratory namely, NTH which is not even found in the list of approved laboratory for Railways. 13. Per contra, the learned Special Public Prosecutor for CBI Cases appearing for the respondent in both the appeals would submit that the case was registered by CBI, after making preliminary enquiry and being satisfied that inferior quality of ballasts had been received from A3/supplier and A1 and A2 had suppressed the inferior quality in the ballasts supplied, prepared the bill along with the lab report, the sieve analysis test report and made the payment without deducting 5% and 10% respectively based on the retention capacity over and above the permissible limit. The lab test had confirmed the ballasts supplied by A3 consisting of mixture of hand broken and machine crushed, while the tender is for supply of machine crashed ballasts and mixture of hand crushed ballasts itself a violation of the terms of the contract, which the accused A1 and A2 ought to have verified and rejected on the spot immediately on conducting sieve test. 14. The learned Special Public Prosecutor for CBI Cases further would submit that the sanction for prosecution [Exs. P1 and P2] are accorded by the person competent to remove A1 and A2 respectively. The Joint Secretary of Railway Board is the person authorised to represent the Railway Board and he had issued the sanction order in concurrence with the Board, the Member Engineering is the person, who is authorised by the Board and the sanction accorded by PW-1 in consultation with the Board is legal. Likewise, the sanction to prosecute A2 issued by PW-2 is also valid and there is no error in the said order. The admission of PW-2 that he has not perused certain documents does not have any bearing in his order sanctioning the prosecution of A2. Furthermore, the learned Special Public Prosecutor for CBI Cases would submit that under Section 19(3) of the Prevention of Corruption Act, 1988, unless and until there is failure of justice, mere error, omission or irregularity in the sanction will not vitiate the conviction. 15. In response to the submission of the learned Senior Counsel appearing for the appellants that even before registering the First Information Report, substantial investigation has been completed including drawing of samples and obtaining laboratory reports, which are contrary to the Code and to the reference to the judgments cited, the learned Special Public Prosecutor submitted that the judgments (1) Usha R. Patwari and Ors. v. The Karnataka Lokayukta and Ors. (2) Sri. Lakshmikantha S.G. v. The State by Karnataka Lokayukta Police Division Tumkur District, Tumkur-572 101 rep. v. The Karnataka Lokayukta and Ors. (2) Sri. Lakshmikantha S.G. v. The State by Karnataka Lokayukta Police Division Tumkur District, Tumkur-572 101 rep. by its Police Inspector and another reported in (2016) 3 Kant LJ 283; and (3) Christy Fried Gram Industry Office at No. 83, Sadananda Sadana, Flat No. 1, Ground Floor, 6th Cross, Malleshwaram, Bangalore-560 003 represented by its Proprietor Shri T.S. Kumaraswamy and another v. State of Karnataka Department of Home Rep by its Principal Secretary, Vikas Soudha, Bangalore-01 and others reported in (2015) 4 Air Kant R 823 arose on different facts and circumstances, these judgments does not lay down any preposition of law. He would submit that the facts of those cases are entirely different to that of the facts involved in the present appeals. Here, the preliminary enquiry has been conducted to ensure whether there was any prima facie evidence to show inferior quality of ballasts was supplied by A3 in connivance with A1 and A2. For the said purpose, drawing of samples and subjecting the same for laboratory test was essential. What was conducted prior to registration of First Information Report, a preliminary enquiry and it cannot be construed as investigation. 16. Point for consideration:- Whether the prosecution has proved that A1 and A2 had abused their official position and obtained any pecuniary advantage by accepting inferior quality of ballasts supplied by the contractor K. Mani Naidu (A3)? 17. PW-1 (Mr. Kumdkumar Sharma) has signed the sanction to prosecute A1 (T. Sundar) marked as Ex. P1. According to his evidence, Member Engineering Railway Board is the competent authority to remove the officers of the rank of Assistant Divisional Engineer, Southern Railways. At the said point of time, one Mr. S.P. Jain was Member Engineer, Railway Board and he had gone through the records such as investigation report, statement of witnesses, copies of contract documents, copies of ballasts testing report and after applying his mind, had accorded sanction. Whereas PW-1 as Joint Secretary to the Railway Board had signed sanction order Ex. P1. It is contended by the learned Senior Counsel appearing for the appellants that the sanction must be the collective decision of the Board and not by one single Member, then there must be authorisation by the Board conferring power on that single Member to decide on behalf of the Board. In the absence of such authorisation, Ex. P1. It is contended by the learned Senior Counsel appearing for the appellants that the sanction must be the collective decision of the Board and not by one single Member, then there must be authorisation by the Board conferring power on that single Member to decide on behalf of the Board. In the absence of such authorisation, Ex. P1 is non est in law and cognizance taken, based on such sanction order, has led to failure of justice. 18. A perusal of the sanction order marked as Ex. P1 discloses that Railway board, Ministry of Railways, New Delhi, is the competent authority to remove the first accused T. Sundar, Assistant Divisional Engineer, Arakkonam from office. The sanction order indicates that the Railway Board has taken a collective decision to accord sanction after fully and carefully going through the statements and documents. Whereas, the ocular evidence of PW-1 indicates that it was Mr. S.P. Jain, Member Engineering Railways had perused the records and documents and his satisfaction has been communicated through Ex. P1, since there is contradiction in the documentary evidence Ex. P1 and oral evidence of PW-1. It is necessary to find out whether by the said irregularity, failure of justice has caused detrimental to the accused. 19. The case of the prosecution is that by accepting inferior quality of ballasts A1 and A2 has caused loss of Rs. 5,81,920.91/- to the Railways. The breakup for the said loss is spoken through PW-8 (Mr. D. Sarangabani) Divisional Engineer, Southern Railways. According to his evidence, 2998.298 cum from stock 1C, 7C and 9B are of inferior quality to be rejected in toto. The sieve analysis test conducted in the stock 2B sources indicates 65.94% retention. Therefore, 10% of the payment ought to have been deducted. The ballasts stack at stock No. 6A, the sieve analysis indicates the retention is between 60% and 65%. Hence, 5% of the payment should have been deducted from the quantity of 920.84 cum. So, as per his calculation, the loss occurred to the Railways is about 5.51 lakhs. The measurement book, which is marked as Ex. P42, indicates that the sieve analysis and measurements were done by A2 on this spot and the check test has been conducted by A1. 20. A joint surprise check by CBI along with the Railways Vigilance had been conducted on various dates during October and November 2002. The measurement book, which is marked as Ex. P42, indicates that the sieve analysis and measurements were done by A2 on this spot and the check test has been conducted by A1. 20. A joint surprise check by CBI along with the Railways Vigilance had been conducted on various dates during October and November 2002. The samples drawn from the stacks were sent to NTH laboratory for test. As per the prosecution evidence PW-5 [Mr. K. Rajkumar], the Principal Chief Engineer has written a letter dated 10.03.2003 marked as Ex. P39 wherein he has mentioned that stacks 3, 8 and 10 have failed to test and it has to be compulsorily replaced by the contractor (A3). These ballasts fall under category of completely rejected, over sized ballasts and hand crashed ballasts. The certificates issued by NTH lab, dated 13.02.2004 and marked as Exs. P43 to P50 reveal that the retention of 40 mm ballasts was 65.94% hence, 10% of the payment should have been deducted. Another sample sent for the laboratory has retention of 63.62% for which 5% of the value ought to have been deducted. Thus, in corroboration with the evidence of PW-8, PW-5 has spoken about the inferiority in the quality supplied by A3 and the failure of A1 and A2 in not deducting the proportionate cost of the value of the goods supplied as per the agreement and the failure of A1 and A2 in not rejecting the goods, which does not fall within the permissible limit. 21. The learned Senior Counsel appearing for the appellants relying upon Ex. P39 and deposition of PW-22 would submit that out of stacks 1 to 10, stack 7 and 9 were cleared by dumping and left over quantities of stack 4, 5 and 6 cleared by dumping after one more round of testing in the railways laboratory stack 1 and 2 were cleared by dumping, after one more test in the railways laboratory and stack 3, 8 and 9 which failed to the test were replaced by the contractor. Therefore, there is no loss to the department as alleged by the prosecution. This submission is not acceptable for the simple reason that the clearing the ballasts by dumping or by replacement had occurred after 10.03.2003 when PW-22 had joined as Assistant Divisional Engineer, Arakkonam on 03.04.2003. PW-22 is the successor of A1. Therefore, there is no loss to the department as alleged by the prosecution. This submission is not acceptable for the simple reason that the clearing the ballasts by dumping or by replacement had occurred after 10.03.2003 when PW-22 had joined as Assistant Divisional Engineer, Arakkonam on 03.04.2003. PW-22 is the successor of A1. While A1 and A2 had accepted inferior quality without proper sieve test and physical property test, by conveniently obtaining lab report from the single laboratory for all the tests the joint samples collection by the Railways and CBI has brought to light that inferior quality of ballasts had been purchased by A1 and A2. Thereafter, A1 and A2 had been relieved from the post. PW-22 has succeeded A1. During his period, the ballasts found unfit having more than 70% retention had been replaced. 22. Yet another contention of the learned Senior Counsel appearing for the appellants is that the subsequent lab test conducted by CBI and Railways in the laboratory of NTH also cannot be relied upon since NTH is not an authorised laboratory and furthermore, all the tests were conducted by NTH, which is contra to the operational standards of the Railways Department. 23. The Lab reports submitted by NTH in respect of samples collected during the joint operation of CBI and Railways are marked as Exs. P43 to P50. PW-24 [Mr. S. Murali], Scientific Officer (Civil), NTH had deposed about the reports. He in his evidence has stated that "As per Ex. P43 the percentage retained on 63mm IS sieve is 0%. In 40mm, it is 3.17 % and for 20mm, it is 91.24%. Requirements of RDSO specifications for track ballast are mentioned in Ex. P43. Likewise, as Ex. P44 test certificate the percentage retained on 63mm IS sieve is 0%, in 40mm, it is 86.87% and for 20mm, it is 100%. Requirements of RDSO specifications for track ballast are mentioned in Ex. P44. Likewise as Ex. P45 test certificate the percentage retained on 63mm IS sieve is 1.17%. In 40 mm, it is 63.62% and for 20mm, it is 99.16%. Requirements of RDSO specifications for track ballast are mentioned in Ex. P45. Likewise, as Ex. P46 test certificate the percentage retained on 63 mm IS sieve is 0%. In 40 mm it is 65.94% and for 20mm, it is 99.84%. Requirements of RDSO specifications for track ballast are mentioned in Ex. P46. Requirements of RDSO specifications for track ballast are mentioned in Ex. P45. Likewise, as Ex. P46 test certificate the percentage retained on 63 mm IS sieve is 0%. In 40 mm it is 65.94% and for 20mm, it is 99.84%. Requirements of RDSO specifications for track ballast are mentioned in Ex. P46. Likewise, as Ex. P47 test certificate the percentage retained on 63mm is sieve is 1.42%. In 40mm, it is 74.18% and for 20mm, it is 99.7%. Requirements of RDSO specification for track ballast are mentioned in Ex. P47. Likewise as P48 test certificate the percentage retained on 63mm IS sieve is 0%, in 40mm, it is 75.01% and for 20mm, it is 99.47%. Requirements of RDSO specifications for track ba last are mentioned in Ex. P48. Likewise, as Ex. P49 test certificate the percentage retained on 63mm IS sieve is 0%, in 40mm, it is 76.5% and for 20mm it is 99.74%. Requirements of RDSO specifications for track ballast are mentioned in Ex. P49. Likewise as Ex. P50 test certificate the percentage retained on 63mm IS sieve is 1.64%, in 40mm, it is 76.11% and for 20mm, it is 99.69%. Requirements of RDSO specifications for track ballast are mentioned in Ex. P50. From the sieve analysis the sample does not meet the requirements of RDSO specifications for track ballast for BG in respect of 40mm and 20mm IS sieves". 24. During the cross examination of PW-24, it is suggested that NTH is not a recognized laboratory to test ballasts for which he has stated that he is not aware whether NTH is a recognised lab. Whereas, PW-26 [Mr. Anboli] was headed the team during the joint surprise check conducted during September 2002 had categorically stated in his cross examination that NTH laboratory is one of the laboratory listed in the agreement and the samples were sent to NTH since it is a neutral agency and there is no violation of procedure in sending the samples of NTH. National Test House (SR) is the laboratory at Tharamani, Chennai controlled by the Government of India, Ministry of Consumer affairs Food and Public Distribution, being the Government laboratory, sending the samples collected during the enquiry, cannot be construed as any violation of standard protocol. A restriction of sending two consecutive samples to the same laboratory is applicable only at the time of delivering the ballasts. 25. A restriction of sending two consecutive samples to the same laboratory is applicable only at the time of delivering the ballasts. 25. The test of samples drawn during joint surprise inspection cannot be equity with the test send at the time of accepting the ballasts. The test certificate issued by NTH which are marked as Exs. P43 to P50 has been spoken by the prosecution witnesses PW-8, PW-19, PW-22 and PW-26. They are invariably had made a specific remark that the samples fail to confirm to the requirements of RDSO specification for track ballasts for BG, in respect of test for size and gradation. 26. On perusal of Ex. P44 in respect of samples marked as J/02/01 and J/02/02 in R.C. No. 61/02, this Court finds that 40mm sieve has shown as 86.87% of retention as against recommended 40% to 60%. In Ex. P45 the test certificate for the samples marked as J/04/01 and J/04/02 in R.C. No. 61/02 for 40mm sieve has shown as 63.62% of retention as against permissible limit of 40% to 60%. In Ex. P46 the test certificate for the samples marked as J/03/01 & J/03/02 in RC No. 61/02 for 40mm sieve has resulted 65.94% of retention as against 40% to 60%. In Ex. P47 the test certificate for the samples marked as J/05/01 and J/05/02 in R.C. No. 61/02 for 40mm sieve has resulted 74.18% of retention as against 40% to 60%. In Ex. P48, the test certificate for the samples marked as J/06/01 and J/06/02 in R.C. No. 61/02 for 40mm sieve has resulted 75.01% of retention as against 40% to 60%. In Ex. P49, the test certificate for the samples marked as J/07/01 and J/07/02 in R.C. No. 61/02 for 40mm sieve has resulted 76.5% of retention as against 40% to 60%. Ex. P50, the test certificate for the samples marked as J/08/01 and J/08/02 in R.C. No. 61/02 for 40mm sieve has resulted 76.11% of retention as against 40% to 60%. Through the test certificates of NTH, it is clearly proved that 40mm sieve supplied by A3 had exceeded the permissible limit of retention as stipulated in the contract Ex. P7. Ex. P50, the test certificate for the samples marked as J/08/01 and J/08/02 in R.C. No. 61/02 for 40mm sieve has resulted 76.11% of retention as against 40% to 60%. Through the test certificates of NTH, it is clearly proved that 40mm sieve supplied by A3 had exceeded the permissible limit of retention as stipulated in the contract Ex. P7. A1 and A2, who are supposed to conduct the gradation test on the spot and send all the samples to the listed laboratory in rotation to ascertain the physical property test had wrongly noted the gradation in the measurement book and also sent all the samples to VIT, Vellore. 27. Exs. P12 to P17 are the request letters sent by A1 to VIT for conducting physical test of ballasts samples. He has sought for aggregate abrasion value, impact value and water absorption as per IS 2386. In response to their request, VIT has conducted the above three tests and has given the certificates which are marked as Exs. P18 to P23. Ex. P57 is the specification for track ballasts annexed with the agreement for work which is marked as Ex. P9. The Clause 2.3 deals with size and gradation and if there is over size ballasts and the retention is in excess of the specification, there is a specific Clause under 2.3.2 that 5% of the amount should be deducted in payment. If the ballasts retained of 40mm (machine crashed case only) exceeds 60% limit prescribed in 2.3.1(b) above 5% has to be deducted in the contracted rate, if retention is 60% (excluding) 65%(including), 10% deduction in contracted rate, if retention is between 65%(excluding) and 70%(including), in case, the retention of 40mm ballasts exceeds 70%, the stack shall be rejected. From Ex. P3 to P50, the test certificates of NTH, it is clearly established by the prosecution that over size ballasts had been accepted and payment has been made without following the conditions as stipulated in Clause 2.3.2 under schedule specification for track ballasts. 28. The test reports marked as Exs. P18 to P24 obviously did not indicate the retention result, since A1 has not sought for it. The entries made in measurement book marked as Ex. P42, wherein the values entered by A1 and A2, are now found to be erroneous through scientific laboratory test. 28. The test reports marked as Exs. P18 to P24 obviously did not indicate the retention result, since A1 has not sought for it. The entries made in measurement book marked as Ex. P42, wherein the values entered by A1 and A2, are now found to be erroneous through scientific laboratory test. It is contended by the learned Senior Counsels appearing for the appellants that there is an error in drawing samples and they have not followed the standard procedure for drawing samples. In the course of cross examination, it has been elucidated through the witnesses, who are signatory to the mahazars that samples were not drawn manually. Though in the standard procedure, it is suggested that the samples should be drawn manually and in the cross, Section of the stack. In this case, substantial compliance of the standard procedure has been complied with and invariably in all the stacks of 40mm ballasts, the retention value is over and above the permissible limit. In some cases, it falls within the category to be rejected and in few cases, restricted payment ought to have been made. The replacement made by A3 subsequent to investigation is the proof of the pudding. The prosecution through the witnesses had established the fact that the payment had been made to A3(supplier) without deduction for the inferior quality and also substantial quantum of ballasts, which has exceeded 70% of retention, had been accepted, subsequently the same has been replaced by the contractor, that will not exonerate the appellants A1 and A2 for offence of cheating by accepting inferior quality and making payment for the same, without following the terms of contract. 29. In such circumstances, though it is pointed out by the learned Senior Counsel appearing for the appellants that there is some irregularity in granting sanction for prosecuting A1, such irregularity does not fall within the category of failure of justice. Hence, under Section 19(3) of the Prevention of Corruption Act, 1988, this irregularity or omission will not vitiate the finding of the trial Court. 30. The dishonest payment made for the inferior quality had been well proved by the prosecution. There is also material to show that the ballasts supplied by A3 was not fully machine crashed but mixture of hand broken and machine crashed. 30. The dishonest payment made for the inferior quality had been well proved by the prosecution. There is also material to show that the ballasts supplied by A3 was not fully machine crashed but mixture of hand broken and machine crashed. In the said circumstances, when the criminality of cheating the Government, by abusing their official position being well proved and established, the subsequent replacement of inferior quality ballasts, or deduction of cost by making restricted payments for the inferior quality is of no significance in deciding the intention of deception at the inception, except to mitigate the sentence. Therefore, this Court hold that the judgment of the trial Court is confirmed except modifying the sentence. 31. In the result, these Criminal Appeals are disposed of with the following modifications: Name of the accused Charges framed against the accused Sentence imposed by the trial Court Modified sentence A1 Section 420 and 13(2)r/w 13(1)(d) of Prevention of Corruption Act, 1988 To undergo RI for one year and pay a fine of Rs. 10,000/- for each of the offence in default to undergo further period of RI for two months To undergo SI for one year for each of the offence. Fine amount imposed by the trial Court remains unaltered. A2 Section 420 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 To undergo RI for one year and pay a fine of Rs. 10,000/- for each of the offence in default to undergo further period of RI for two months To undergo SI for one year for each of the offence. Fine amount imposed by the trial Court remains unaltered. The sentence of imprisonment imposed on the accused A1 and A2 are ordered to run concurrently The trial Court is directed to secure the appellants to undergo the remaining period of sentence.