IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 501 of 2004. Decided on: 17th May, 2011. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- Suraj Parkash Kapoor and others. …Respondents. Coram: The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the appellant : Mr. J.S. Guleria, Assistant Advocate General. For the respondents. : M/s. Satyen Vaidya and M.S. Kanwar, Advocates. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge(Oral) : State has filed this appeal against the judgment dated 04.08.2004, rendered by the learned Special Judge (Forests), Shimla in Corruption Case No. 35-S/7 of 2003/94, whereby respondents Suraj Parkash Kapoor, J.S. Parihar, Mohan Singh, Rakesh Gupta, Ranjit Thakur, Pankaj Manchanda, who were charged with and tried for offences, under Sections 420, 467, 468, 471, 218 and 120-B of the Indian Penal Code, Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and Sections 4, 5 & 6 of the 1 Whether the reporters of the local papers may be allowed to see the judgment? No. - 2 - H.P. Prevention of Corrupt Practices Act, 1983, have been acquitted. 2. Case of the prosecution, in a nut-shell, is that respondents J.S. Parihar, while working as Executive Engineer, Suraj Parkash Kapoor as Junior Engineer and Mohan Singh, Head Draughtsman, allotted the work for the construction of G.I. Wire Crates work above Power House Road between RD- 3560 to RD-3610, Location Nos. II and III for a total payment of `96275/-. The work was allotted, which was 64.58% above the estimated cost of `58,576/-, as mentioned in the quotation notice. The work has been shown in M.B. No. 330/89. During investigation of case F.I.R. No. 25/90, PW-10 Rama Nand detected certain irregularities in the execution of the work in Nathpa Jhakri area. He requested the authorities to get the matter investigated thoroughly by appointing a technical committee by the H.P. State Electricity Board. Consequently, the technical committee was constituted. The technical committee submitted the report Ex. PW-8/A to the police. Thereafter, a ruka was sent by PW-10 Rama Nand vide Ex. PW-10/A for registration of case. In sequel thereto, F.I.R. Ex. PW-10/B was registered. The matter was investigated thoroughly by the police. Thereafter, after completing all the necessary formalities, challan was put up against the respondents. 3. Respondents No. 1 to 3 were charged under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, Sections 420, 467, 468, 465, 471 and 120-B of the Indian Penal Code and Sections 5 & 6 of the H.P. Prevention of - 3 - Specific Corrupt Practices Act, 1983. Respondents No. 4 to 6 were charged under Sections 420, 468, 465, 471 and 120-B of the Indian Penal Code and Section 4 of the H.P. Prevention of Specific Corrupt Practices Act, 1983. They pleaded not guilty. 4. The Prosecution, in order to prove its case, has examined as many as 16 witnesses. Respondents were also examined under Section 313 of the Code of Criminal Procedure. Their stand is that of denial simplicitor. However, they have also examined two DWs in order to prove their defence. 5. Learned trial Court, on the appraisal of site plan Ex. PW-2/A, technical report Ex. PW-8/A and after taking into consideration the statements of PW-2 Ramesh Chand Verma, PW-3 V.L. Gupta, PW-8 K.R. Verma and PW-14 G.P. Saroch acquitted the respondents. Hence, this appeal. 6. Mr. J.S. Guleria, learned Assistant Advocate General has strenuously argued that the prosecution has proved its case. According to him, learned Special Judge (Forest) has not correctly appreciated the oral as well as documentary evidence. 7. Mr. Satyen Vaidya and Mr. M.S. Kanwar, learned counsel for the respondents have supported the judgment dated 04.08.2004, passed by the learned Special Judge (Forests), Shimla. 8. We have heard the learned counsel for the respondents and gone through the record meticulously. 9. The technical report is Ex. PW-8/A. According to the report, the work order has been issued for `96,107, which - 4 - was 64.58% above the estimated cost of `58,576/-, as mentioned in the quotation notice. The site was inspected on 29.08.1990 and no crate work was found to be existing. The location did not bear any sign of damage and the crate work along the road below the location was intact. 10. PW-2 Ramesh Chand Verma has proved the site plan Ex. PW-2/A. He has admitted that the project area was in a sinking zone and there has been damage to the area due to natural calamities like rains, floods and land slides etc. 11. PW-3 V.L. Gupta has also visited the spot alongwith other officials and inspected the site where the work was to be executed by contractors between RD-3560 to RD-3610 meters. In his cross-examination, he stated that there had been damages due to rains, floods and land slides. According to him, on perusal of site plan, he could not identify the location Nos. I, II and III. He has admitted that there was no reference in the report that the site was identified by a particular Junior Engineer. According to him, there could be variation between the RDs due to natural calamities to certain extent. He has admitted that there were heavy rains in the project area. He has also admitted that the damages were so extensive that no trace of certain work was existing. He has also admitted that they could not inspect all the sites to ascertain the damages to the work as the damage was so extensive and the land slides were still continuing, resulting in falling of boulders. 12. PW-8 K.R. Verma was one of the members of the technical committee. According to him, the site was inspected in - 5 - the presence of the concerned Junior Engineer on 29.08.1990. According to him, the estimated cost was `58,576/-, however, the contractors were paid `96275/-, which was 64.58% above the estimated cost. He has admitted that there is no mention about the presence of the respondents at the time of inspection of the spot. According to him, they had not tried to ascertain the RDs. as these were already existing. The same could be disturbed due to natural calamities, heavy rains and land slides. He has also admitted that the provisions of CPWD Manual were made applicable to the H.P. State Electricity Board on 14.05.1997 and 02.11.2000. According to him, the site was located above the Power House Road, which was sloppy. 13. PW-14 G.P. Saroch was also one of the members of the technical committee. He has supported the version of PW-8. According to him, no GI Wire Crate work was found to have been executed at the spot. 14. PW-9 N.C. Sood, Deputy Government Examiner of Questioned Documents has examined the disputed documents and furnished the opinion relating to hand-writings and specimen signatures of accused J.S. Parihar and Man Mohan Sharma (deceased), which is Ex. PA/45. 15. PW-10 Rama Nand was posted as Deputy Superintendent of Police, who was investigating the F.I.R. No. 25 of 1990. He found certain irregularities in the work in Nathpa Jhakri area. He reported the matter to the D.I.G.. Thereafter, a technical committee was constituted for the inspection of the site. The report was submitted to the D.I.G., Enforcement vide - 6 - Ex. PW-8/A. Thereafter, a ruka Ex. PW-10/A was prepared, on the basis of which, F.I.R. Ex. PW-10/B was registered. 16. Respondents have also examined two DWs. DW-1 Satish Kumar Gupta has proved Ex. DW1/A-1 to Ex. DW1/A- 38. According to him, the work executed in Division No. 5 has suffered heavy damages due to rains, floods in March-April, 1990. The damage was of such a magnitude that in few areas entire work was washed away and in some cases, retaining walls were buried under the debris. The work between RD-3560 to RD-3610, location No. II was also reported damaged as per report dated 11.05.1990. 17. DW-2 O.P. Rattan has produced the record of damages to the National Highway from December to March 1990, which is Ex. DW-2/A. According to him, as per damage report in many places, retaining walls, breast wall, wire crates had been damaged, sinking had taken place and converts had been damaged. According to him, Jhakri area falls within the portion of the damage National High Way. In his cross- examination, he has stated that as per record, no damage has been caused to construction of GI Wires crate work above Power House Road between RD-3560 to RD-3610. 18. What emerges from the evidence led by the prosecution, is that RDs. were not fixed on the spot as per the record. It was necessary for the members of the technical committee to fix the RDs. to ascertain the alleged damage. It has - 7 - also come in the evidence that the entire area was in sinking zone and was lashed by heavy rains, resulting in extensive damage to the construction activity in the entire area. The committee has visited the site after six months. The accused were not associated during the course of inquiry. DW-2 O.P. Rattan has also admitted that heavy damage caused to retaining walls, breast wall, wire crates etc. had been reported. Consequently, the prosecution has failed to prove that there was any illegality in the execution of the work carried out by M/s. Shrikhand. 19. In view of the abovestated position, we see no reason to interfere with the judgment of acquittal passed by the trial Court. Hence, the appeal is dismissed. (Surjit Singh), Judge (Rajiv Sharma), Judge May 17, 2011. (bhupender) - 8 -