IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 119 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: Mr. Ramesh Thakur and Mr. 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 4.12.2004, 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 IPC, 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 Corporation (Division No.2), while respondents, Prem Chand Whet her report ers of t he l ocal papers may be al l owed t o see t he j udgment ? - 2 - 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 protection of PH Road at Jhakri below RD 2332.50 to 2345. 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 contractors Ranjit Singh Thakur, Rakesh Gupta, Pankaj Manchanda and Vijay Kumar (now dead), respondents herein. As per allegedly false record, prepared by the above named respondents, who were the employees of the Corporation, cost of the work was `89,820/-, though as per schedule of quantity attached with the estimate, value of the work was supposed to be `65,125/- 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 the above named contractors, but wrong entries had been made in the measurement books by the other respondents to cause wrongful loss to the Corporation and wrongful gain to the said contractors. 5. A report, with respect to the alleged bungling, was prepared and sent to Enforcement Department by the - 3 - Investigating Officer of case FIR No.25/90. On the basis of that report, which is Ext. PW9/C, case was formally registered; vide FIR Ext. PA/2. During the course of investigation, a Committee comprising of Senior Officers of H.P. State Electricity Board, including PW-16 G.P. Saroch, Executive Engineer and PW-14 K.R. Verma, Dy. 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 Ext. PW9/A (item 8(B) ). 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 Prem Chand Thakur, J.S. Parihar 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: - 4 - Sr. No. Name of respondent Offences with which charges 1. Prem Chand Thakur Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988, Sections 420, 465, 467, 468, 471, 120-B IPC and Sections 5 and 6 of the Prevention of Specific Corrupt Practices Act, 1983. 2. J.S. Parihar Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988, Sections 420, 465, 467, 468, 471, 120-B IPC and Sections 5 and 6 of the Prevention of Specific Corrupt Practices Act, 1983. 3. Mohan Singh Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988, Sections 420, 465, 467, 468, 471, 120-B IPC and Sections 5 and 6 of the Prevention of Specific Corrupt Practices Act, 1983. 4. Ranjit Singh Thakur Sections 420, 465, 471, 120-B and Section 4 of the H.P. prevention of Specific Corrupt Practices Act, 1983. 5. Rakesh Gupta Sections 420, 465, 471, 120-B and Section 4 of the H.P. prevention of Specific Corrupt Practices Act, 1983. 6. Pankaj Manchanda Sections 420, 465, 471, 120-B and Section 4 of the H.P. 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 having made payments to the above named contractors. They pleaded that the work had been executed on the spot from 18.11.1989 to 29.11.1989 and that the team of HPSEB, accompanying investigating people, did not inspect the work thoroughly. According to them, inspection was carried out casually and in a lopsided - 5 - manner. They stated that as a matter of fact, entire work, as shown in the measurement books, was there and that one layer of crates was not noticed by the Inspection Team, because of its being inside the mountain. 8. We have heard learned Assistant Advocate General as also learned counsel for the respondents and perused the record. 9. According to report Ext. PW9/A, out of total work, costing `89129/-, work worth `59,487, was found on the spot and, thus, there was short work to the tune of `29,642/-. Quantum-wise, report shows that against 12.5 meters work, volume of work that was found on the spot was 8.5 metres. Thus, there was deficiency of 4 metres of work, which is almost 1/3rd of the total work, shown to have been executed as per measurement books, prepared by the respondents. 10. Report Ext. PW9/A (item No. 8(B) itself proves the defence plea. Relevant portion of the report is reproduced below: “ The site was inspected on 30.8.1990 and 3rd Sept.1990. It was found that 7 layers of crate work exist with bottom six layers of length 8 M each and top layer of 8.50 M within, this RD of 12.5 M. The work of boulder filling in and behind the wire crates has been entered on 29.11.1989 after the completion of work. Since the large part of work is hidden (Crate one layer over the other) the correctness of measurement is not assured since it - 6 - is not possible even to count the number of crates. The work being hidden, layers one over the other, assessment of correctness of entries cannot be ascertained. The measurements of cutting/ excavation have been entered for 12.5 M length. Whereas only an average of 8.1 M length has been protected (Due to curvature) roughly excess measurement/payment to the extent of 33% has been made. This works out to `29641/ approximately. There are 2 layers on the top of these wire crates also, reportedly executed departmentally.” 11. A bare reading of the above reproduced portion of the relevant part of the report Ext. PW9/A, leaves no doubt that the inspection team was unable to notice the entire work, because a part of it was hidden behind the visible portion of crate work. 12. As regards the contention that the contractors were paid a sum of `89,820/- against the estimated cost of `65,125/-, 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 evidence that the - 7 - 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 (ss) (Rajiv Sharma), J.