IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 137 of 2005 Decided on: May 24, 2011 State of H.P. …Appellant Versus J.S. Parihar & others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the appellant : M/s Ramesh Thakur & J.S. Guleria, Assistant Advocate Generals. For the respondents : M/s Ajay Kochhar, Satyen Vaidya and M.S. Kanwar, Advocates. Surjit Singh, Judge (Oral) This appeal by the State is directed against the judgment, dated 18th December, 2004, of learned Special Judge (Forests), Shimla, whereby respondents J.S. Parihar and others, have been acquitted of offences, under Section 13(2) of the Prevention of Corruption Act, 1988, Sections 4, 5 and 6 of Himachal Pradesh Prevention of Specific Corrupt Practices Act, 1983 and Sections 218, 420, 467, 468, 471 and 120-B of the Indian Penal Code, with which they were charged. 2. Accusation, which led to the trial of the respondents, may be stated. Respondent J.S. Parihar was working as Executive Engineer in Nathpa Jhakri Power Whether reporters of the local papers may be allowed to see the judgment? …2… Corporation (Division No.2), while respondents Prem Chand Thakur and Mohan Singh were working as Junior Engineer and Head Draughtsman, respectively, under him. Various works were got executed by the Corporation in which the above named respondents were employed. That Corporation was known as Nathpa Jhakri Power Corporation. One of the works that was allegedly got executed by the aforesaid respondents was Additional Water Supply Scheme from Gasoh to Jhakri (Sub Head: Providing/laying 80 mm dia G.I. Pipe RD 0 to 500). 3. Above named respondents created false record, with regard to the execution of the aforesaid work. As per that record, work had been got executed from contractor Pratap Singh, respondent herein. As per allegedly false record, prepared by the above named respondents, who were the employees of the Corporation, cost of the work was `93,752/-, though as per schedules of quantity attached with the estimate, value of the work was supposed to be `46,940/- plus addition upto 30%, as per schedules of Punjab Public Works Department and Central Public Works Department. 4. During investigation of case FIR No.25/1990, it came to light that as a matter of fact, short work had been got executed by respondent J.S. Parihar and his above named subordinates from the aforesaid contractor, but wrong entries had been made in the measurement …3… books to cause wrongful loss to the Corporation and wrongful gain to the said contractor. 5. A report, with respect to the alleged bungling, was prepared and sent to Enforcement Department by the Investigating Officer of case FIR No.25/90. On the basis of that report which is Ext. PW-11/A, case was formally registered, vide FIR Ext. PA/1. During the course of investigation, a Committee comprising of Senior Officers of H.P. State Electricity Board, including PW-12 Shri R.C. Chopra, then working as Assistant Engineer, and PW-1 Shri K.R. Verma, Deputy Chief Accounts Officer, visited the spot to find out whether any work had been executed on the spot. A team of Investigating Agency also accompanied them. According to the report, respondents J.S. Parihar and Prem Chand Thakur were also with them, at the time of such inspection. On inspection, short work was found to have been executed on the spot. Report was prepared accordingly. Relevant portion of that report is Ex. PW-1/E (para-71). 6. Specimen writings and signatures of the respondents were obtained and got compared with the documents, alleged to be false or forged. However, in view of the admission by the respondents that they had prepared the allegedly false record, including measurement books, evidence of Handwriting Expert is of no significance. Sanctions to prosecute respondents …4… J.S. Parihar, Prem Chand Thakur and Mohan Singh, were obtained from their Appointing Authorities and finally report, under Section 173 Cr. P.C. was filed in the Court of Special Judge (Forests), Shimla, who after complying with the requirement of Section 207 Cr. P.C. and hearing learned Public Prosecutor and learned defence counsel as also going through the record, charged the respondents as follows: Sr. No. Name of respondent Offences with which charges 1. J.S. Parihar 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988, Sections 420, 465, 468, 471, 120-B IPC and Sections 5 and 6 of the Prevention of Specific Corrupt Practices Act, 1983. 2. Prem Chand Thakur 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988, Sections 420, 465, 468, 471, 120-B IPC and Sections 5 and 6 of the Prevention of Specific Corrupt Practices Act, 1983. 3. Mohan Singh 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988, Sections 420, 465, 468, 471, 120-B IPC and Sections 5 and 6 of the Prevention of Specific corrupt Practices Act, 1983. 4. Pratap Singh Sections 420, 465, 468, 471, 120- B IPC and Section 4 of the Prevention of Specific Corrupt Practices Act, 1983. 7. As already noticed, respondents J.S. Parihar, Prem Chand Thakur and Mohan Singh did not deny having prepared the measurement books and making payments to the other respondents. They pleaded that as per entries in the measurement book, 130 spots had been …5… excavated, but actually 80 pillars had been raised/ constructed, on the spot, from 18.1.1990 to 29.1.1990, but there were unprecedented rains and floods, because of which many pillars got washed away, in the months of March-April, 1990, and damage report to this effect was prepared, which is Ex. DA/2. As per this damage report, damage to the tune of `20,000/-, approximately, had been caused by the rains and floods. It is also their plea that in addition to 58 pillars, reported to have been counted by the Inspection Committee, during the course of inspection, there were several other pillars, which the Committee did not take into account, but the same are shown in spot map Ex. PW-2/1, prepared by PW-2 Shri Ramesh Chand Verma, a Junior Engineer employed with H.P.S.E.B. 8. It is further their plea that the site, where the pillars were actually erected, had also not been ascertained by the Committee. They denied that they were associated by the Committee members, at the time of inspection. Another plea of the respondents is that some retrieved material of the work had been kept in the store, which was shown to the Inspection Committee and this fact clearly indicated that some pillars had been damaged during unprecedented rains and floods, but despite that the Committee did not make any mention in …6… its report Ex. PW-1/E of the damage to the pillars and other parts of the Scheme. 9. We have heard learned Assistant Advocate General as also learned counsel for the respondents and perused the record. 10. Two Members of the Inspection Committee were examined by the prosecution. They are PW-1 Shri K.R. Verma and PW-12 Shri R.C. Chopra. Prosecution also examined one witness, who prepared and proved the site plan of pillars, found on the spot, namely PW-2 Shri Ramesh Chand Verma, Junior Engineer. PW-1 Shri K.R. Verma and PW-12 Shri R.C. Chopra, in their cross- examination, admitted certain facts, which probabilize the defence plea. Cross-examination of PW-2 Shri Ramesh Chand Verma, who prepared spot map Ex. PW-2/A, also supports the defence version. 11. PW-1 Shri K.R. Verma and PW-12 Shri R.C. Chopra admitted that they had noticed some retrieved material of the damaged scheme, in question, in the store. Also, they admitted that there was one damage report Ex. DA/2, per which damage to the tune of `20,000/- had been caused to the scheme, in question. As per their report Ex. PW-1/E, 130 pillars had been shown to have been raised by the respondents, but on spot there were only 58 pillars. That is not correct. In the Measurement Book, only 80 pillars were shown to have …7… been erected, though excavation for erecting 130 pillars was stated to have been carried out. The fact that the Committee members proceeded on the premise that 130 pillars were shown to have been erected, though according to Measurement Book only 80 pillars were erected, itself suggests how casually the Committee members did their job. It is quite likely that because of this wrong assumption that 130 pillars had been erected that the alleged loss, on account of short work, as assessed by the Committee members, is shown to be to the tune of `45,000/-. 12. Abovestated position apart, the aforesaid two witnesses, who were members of the Committee, could not convincingly withstand the cross-examination, on behalf of the respondents, with regard to fixation of starting point or zero point, for counting the pillars. They stated that zero point was somewhere below the National Highway. National Highway starts from Ambala and leads upto Kaurik (Tibbet Border). As a matter of fact, the Committee should have fixed a particular point as zero point or the starting point, from where they counted the pillars, and should have been the same, as shown in the record, pertaining to award and execution of the work, in question. They stated that respondents J.S. Parihar and Prem Chand Thakur were with them and they pointed out the zero point. There is no mention, in the report, …8… whether any of the respondents was present or that they pointed out the site of the scheme. 13. Testimony of PW-2 Shri Ramesh Chand Verma, Junior Engineer, who prepared spot map Ex. PW-2/A, shows that there were more pillars than 58, on the spot. Those pillars are shown in red circles, in spot map Ex.PW- 2/A also, which are beyond pillar No.58. There is no explanation by the Committee members, as to why these pillars were not taken into consideration. It is nobody’s case that the other pillars, shown in the map, which we count to be eight, were part of any other scheme. 14. There was damage to the tune of `20,000/- to the scheme, in question, on account of heavy rains and incidental floods. That means some pillars might have been washed away in floods. 15. As regards the contention that the contractor, respondent Pratap Singh was paid a sum of `93,752/- against the estimated cost of `46,940/-, suffice it to say that there is no evidence in support of the allegation. Not only this, rather the evidence on record shows that the terrain being very tough and not accessible and the strata being very loose, nobody would have been prepared to carry out the work for the amount, as calculated according to the schedules of Punjab Public Works Department and Central Public Works Department plus 30% addition to such cost. Also, it has come in the …9… evidence that the schedules of the aforesaid departments were made applicable to the works of HPSEB much later. Some portion of the schedules was made applicable in the year 1997 and some others in the year 2000. In view of the above stated position, we do not think this to be a fit case for interfering with the judgment of acquittal. Hence, the appeal is dismissed. ( Surjit Singh ), J. May 24, 2011(sd) ( Rajiv Sharma ), J.