IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 158 of 2005. Decided on: May 30, 2011. State of H.P. …Appellant Versus Prem Chand & 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. J.S. Guleria, Assistant Advocate General. For the respondents: M/s Satyen Vaidya and M.S. Kanwar, Advocates. Surjit Singh, Judge (Oral) State has appealed against the judgment, dated 1.1.2005, of learned Special Judge (Forests), Shimla, whereby respondents Prem Chand 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. Allegations, which led to the prosecution of the respondents, may be noticed. Respondents J.S. Parihar, Prem Chand, Mohan Singh and deceased Manmohan Sharma, were the employees of H.P. State Electricity Board. They went on deputation to Nathpa Jhakri Power Corporation. The aforesaid Corporation undertook the work of setting up a Hydro Power Whet her report ers of t he l ocal papers may be al l ow ed t o see t he j udgment ? - 2 - Project at Nathpa Jhakri. For the execution of the work of the project, a number of contractors were employed for doing civil work. One of the works pertained to providing additional water supply scheme from Ghasog to Jhakri and Sub Head site development for construction of complaint cell and store at Jhakri. Work was allotted to respondents Pratap Singh and Prakash Chand by respondent J.S. Parihar. 3. During investigation of case FIR No.25/1990, it was noticed that though a sum of `13950/- had been paid to respondents Pratap Singh and Prakash Chand, the civil contractors, as a matter of fact, the work carried out by them was much less than the work shown to have been executed, in the measurement books. A report was made to the Enforcement Department by the Investigating Officer of case FIR No.25/90, vide report Ext. PW4/A. On the basis of that report, case was formally registered vide FIR Ext. PA/1. 4. A team of senior Officers of State Electricity Board, which included PW-2 N.C. Shama visited the spot on 14.10.1990 and found that the work of execution that had been executed on the spot was much less than the work recorded in the measurement books. Respondents J.S. Parihar, Prem Chand and Mohan Singh were found to have prepared false record in the form of Measurement Books and the clearance of bills for the work. Thus, all the respondents were alleged to have conspired with each other to cause wrongful gain, to the tune of `10,100/-, to contractors Pratap Singh and Prakash Chand and wrongful loss to the - 3 - Corporation, in the aforesaid manner, in furtherance of their alleged criminal conspiracy. 5. On completion of investigation, Appointing Authorities of those of the respondents, who are public servants, were approached to accord sanction to prosecute them. When sanctions were received, 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. Prem Chnad Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988, Sections 218, 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 218, 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 218, 420, 465, 467, 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 and Section 4 of the H.P. prevention of Specific Corrupt Practices Act, 1983. 5. Prakash Chand Sections 420, 465, 468, 471, 120-B and Section 4 of the H.P. prevention of Specific Corrupt Practices Act, 1983. - 4 - 6. Prosecution examined a number of witnesses, besides proving the report of officials of H.P. State Electricity Board, who inspected the spot, during investigation. It also proved certain documents to prove the allegation that more work was shown to have been executed on the spot, in the measurement books, compared to the work found on the spot by the Committee. 7. Respondents were examined by the learned trial Court, under Section 313 Cr.P.C. They took the plea that the Inspection Committee, comprising of the Officers of H.P. State Electricity Board, who assisted the Investigating Agency, in calculating the work, executed on the spot, did not carry out the measurements, as per approved plan of the work, but on the basis of their own supposition as to the volume of work and calculated the alleged loss by approximation. 8. We have heard learned Assistant Advocate General as also learned counsel for the respondents and perused the record. 9. Report submitted by the Committee, which is Ex.PW-2/D, itself suggests that the Inspection Committee worked out the alleged loss, on assumptions and inferences. The report records that on the spot, there was a boulder and a tree, behind the structure, which had been raised after the excavation work and from the situation and the position of the boulder and the tree, it appeared that the actual excavation work was less than that shown in the measurement books. - 5 - 10. The only witness examined by the prosecution to prove the aforesaid fact, namely PW-2 N.C. Sharma, admitted in the cross-examination, that the site was developed by excavating the slope, below National Highway and that the Committee had no record, indicating as to what was the gradient of the slope and how deep the cutting of slope was done to develop the site, for construction of the structure. His statement indicates that the Committee, without ascertaining the true facts and the figures about the gradient of the slope and the depth upto which cutting was done, simply guessed as to how much cutting might have taken place, on the spot. It will not be safe to hold the respondents guilty, when the Inspection Report is based on some guess work and not on the actual facts and the figures, which were supposed to be available in the record. 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 30, 2011(ss) (Rajiv Sharma), J.