IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal Nos. 558 of 1999, 559 of 1999 and 560 of 1999 Date of Decision: 19.8.2010 State of H.P. …Appellant. Versus. Sada Ram Bhardwaj …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol,, Judge. Whether approved for Reporting? For the Appellant: Mr. Vivek Singh Thakur, Addl. Advocate General. For the Respondent: Mr. B.B.Vaid, Advocate. Per Deepak Gupta, J.(oral) 1. These three appeals are being disposed of by one judgement since common questions of law and facts are involved in these appeal. 2. The undisputed facts are that during the years 1979 to 1981 the accused remained posted as Junior Engineer in the Irrigation and Public Health Department, Sub Division Pangi at Killar, District Chamba. During this period two water supply schemes known as “Killar and adjoining areas water supply scheme” and “Serikothi-Chharwas water supply scheme” were executed. 2 3. The prosecution case is that for execution of the aforesaid schemes, GI pipes worth Rs.40,070/- were entrusted to the accused during this period of three years. It is further the case of the prosecution that whereas the accused was required to use GI pipes for execution of the said schemes the accused used HDPE (High Density Poly Ethylene) pipes in the said schemes and prepared false documents showing that GI pipes were used. When this fact came to the notice of the authorities a preliminary inquiry was conducted and on the basis of this F.I.R. Ext.DA was registered. During the course of investigation various indents whereby GI pipes were issued and entrusted to the accused were taken into possession. The schemes were got physically re-inspected by Assistant Engineer Shri Subhash Kumar, Surveyor Hans Raj and Fitter Wazir Singh. Earth was dug up at various places and it was found that only HDPE pipes had been used and in fact no G.I. Pipe had been used. Therefore, it is alleged that pipes of the value of Rs.40,070/- were misappropriated by the accused and he also forged documents. Therefore, he was challaned for having committed offences punishable under Sections 409, 420, 468, 467, 471, 477-A IPC and 5(2) of the Prevention of Corruption Act, 1947, now Section 13(1)(c) of the Prevention 3 of Corruption Act, 1988. The learned trial Court after trial has acquitted the accused. Hence, this appeal by the State. 4. We have heard Shri Vivek Singh Thakur, learned Additional Advocate General for the State and Shri B.B.Vaid, learned counsel for the accused. 5. At the outset, we may state that the stand of the accused is not that he used GI pipes. His stand is that as per the original estimate in the case of the Killar and adjoining areas water supply schemes and the revised estimate in the case of Serikothi-Chharwas water supply scheme, he was required to use HDPE pipes and he in fact had used HDPE pipes. Therefore, most of the evidence which was led by the State need not be discussed since this has been led only to show that HDPE were seen when inspections were conducted. 6. The stand of the respondent is that he only used that much GI pipes which were required for the stand posts and taps. For the rest of the schemes HDPE pipes were used as per the approved estimates and according to him remaining GI pipes were lying in the store. 7. PW-8 Shri Prem Singh, Section Officer, produced the record which is Ext.PW-8/1 to 8/37 which relates to the estimates and muster roll of the two schemes. As per 4 Ext.PW-8/2 which is the estimate of Water Supply Scheme for Serikothi-Chharwas, GI pipes were to be used but as per the later revised estimate Ext.PW-8/3 only HDPE pipes were to be used. It would be pertinent to mention that the first estimate was for a total sum of Rs.1,45,160/- which was later corrected to Rs.1,63,500/- and the second estimate is Ext.PW-8/3, whereby GI pipes were to be laid was for Rs. 1,46,300/-. 8. As far as Killar and adjoining areas water supply scheme is concerned the only estimate proved on record is Ext.PW-8/13. As per this estimate only HDPE pipes were used. Therefore, the first allegation made by the State that the petitioner used HDPE pipes instead of GI pipes has been found to be incorrect by the learned trial Court on the basis of the aforesaid estimates. These are estimates proved by the prosecution itself. It is, therefore, more than obvious that as per these estimates GI pipes were required to be used. 9. It would also be pertinent to mention that PW-42 Sh. Relu Ram Verdhan stated that he worked as SDO IPH at Killar from 16.8.1978 to 30.6.1980. According to him the work of water supply scheme know as Serikothi-Chharwas water supply scheme had started even before he joined at 5 Killar. This witness joined in the year 1978 whereas the accused joined in the year 1979. It is, therefore, apparent that the work of Serikothi-Chharwas scheme had already started much before the accused joined there. This is also apparent from the estimates Ext.PW-8/3 which were prepared some time in the year 1977. This witness has proved certain documents to show that GI pipes were in fact received by the accused. The accused in his statement under Section 313 Cr.P.C. has not denied these documents and has admitted that the said GI pipes were received by him. It is for the prosecution to prove that the GI pipes are missing from the stores and have not been accounted for by the concerned officer. This witness admitted in cross- examination that initially he was also named as an accused in the F.I.R. He also admitted that as per the rules the SDO is responsible for 50% test checking and the executive engineer for 10% test checking. According to him, test checking was conducted from time to time. This witness also admitted that during the time he was incharge the work was done according to his satisfaction. This would mean that till the year 1980 nothing wrong had happened. Most importantly PW-42 has admitted that 925 running meter of GI pipes of one inch dia were transferred from the accused 6 to Shri R.K.Sharma, JE, 810 running meter GI pipes of ½” dia and 560 running meter of ¾” dia GI pipes were transferred to Shri O.D.Saroch, JE vide documents relied upon by the prosecution itself. Similarly, 1000 running meters GI pipe of ½” dia were found stacked at Satrundi and another 1000 running meters GI Pipes at Tarela. More than 3300 meters of pipe of different dia were stacked at Satrundi and Guwari stores. 622 running meter of GI pipes were lying at Pangi. Another 880 meter of GI pipes of ½” dia, 2380 meter of GI pipes of ¾” dia and 25 running meter GI pipes of 1” dia were stacked at Guwari store for carriage to Pandi. All these pipes were also required to be taken into consideration. The total length of these pipes is more than 8000 meters and the prosecution has not given any explanation as to whether these 8000 meters of pipe have been taken into account while working out the short fall, if any. 10. PW-36 Mohinder Kumar is the Executive Engineer. He also admitted that the AE and the Executive Engineer are responsible to do 50% test checking and 10% test checking respectively. He also admitted that he was initially shown to be an accused in the F.I.R. He specifically admitted that the schemes were executed as per the estimates. He also 7 specifically admitted that the payment regarding work entered in the measurement books is not made till it is passed by the SDO concerned. All the measurement books for the period when this witness was posted at Killar contain the signatures of this witness. The witness stated that he had not test checked the work executed due to rush of work. 11. The other evidence need not be discussed in the case. A perusal of these evidence show that the accused who was junior to most of the Officers posted at Killar executed the work as per the estimates which fact is admitted by his seniors. 12. We have gone through the measurement books and seen some of the entries and find that in fact even in the measurement books which were prepared by the accused only HDPE pipes were shown to be used and very small quantities of GI pipes and other material has been shown to be used. It, therefore, indicate that when the bills were prepared at the level higher than the respondent the changes were made from HDPE pipes to GI pipes. 13. In view of the above discussion, we find that the learned trial Court rightly acquitted the accused. There is no merit in the appeal, which is accordingly dismissed. The bail 8 bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. 19th August, 2010 (Sanjay Karol ) ™ Judge.