IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 120 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 10th 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 IPC, with which they were charged. 2. Accusation, which led to the trial of the respondents, may be stated. Respondent J.S. Parihar was Whether reporters of the local papers may be allowed to see the judgment? …2… working as Executive Engineer in Nathpa Jhakri Power Corporation (Division No.2), while respondents Man Mohan Sharma (now dead), and Prakash Chand were working as Assistant Engineer and Junior Engineer, 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 providing/laying additional sewerage line for Type-I quarters (Blocks 10, 11, 13 and 14) at Jhakri. 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 a firm named and styled M/s Himalayan Transporters & Contractors of which respondents Ranjit Thakur, Rakesh Gupta and Pankaj Manchanda, and one Vijay Kumar (dead) were the partners. As per allegedly false record, prepared by the above named respondents, who were the employees of the Corporation, cost of the work was `99,950/-, though as per schedule of quantity attached with the estimate, value of the work was supposed to be `78,010/- plus addition upto 30%, as per schedules of Punjab Public Works Department and Central Public Works Department. …3… 4. During investigation of case FIR No.25/1990, it came to light that as a matter of fact, no work had been got executed by respondent J.S. Parihar and his above named subordinates from the aforesaid firm M/s Himalayan Transporters & Contractors, but wrong entries had been made in the Measurement Books to cause wrongful loss to the Corporation and wrongful gain to the aforesaid firm M/s Himalayan Transporters & Contractors. 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-8/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-5 Shri Khushi Ram Verma, Dy. Chief Accounts Officer and PW-12 Shri G.P. Saroch, Executive Engineer (Civil), 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 Prakash Chand 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 extract of that report is Ex. PW-5/E (para-37). …4… 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 Prakash Chand, J.S. Parihar and deceased Man Mohan Sharma, 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 Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988, Sections 420, 467, 468, 218, 471, 120-B IPC and Sections 5 and 6 of the Prevention of Specific Corrupt Practices Act, 1983. 2. Prakash Chand Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988, Sections 420, 467, 468, 218, 471, 120-B IPC and Sections 5 and 6 of the Prevention of Specific Corrupt Practices Act, 1983. 3. Ranjit Thakur Sections 420, 465, 468, 471, 120- B IPC and Section 4 of the Prevention of Specific Corrupt Practices Act, 1983. …5… 4. Rakesh Gupta Sections 420, 465, 468, 471, 120- B IPC and Section 4 of the Prevention of Specific Corrupt Practices Act, 1983. 5. Pankaj Manchanda 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 and Prakash Chand did not deny having prepared the Measurement Books and making payments to the other respondents. They pleaded that measurement was not done correctly by the Inspection Committee. According to them the depth of every manhole was two metres, inclusive of the depth of the inbuilt drain, below the bench level and that Inspection Committee carried out the measurement, without getting the manholes emptied and thus the measuring tape appears to have touched the bench level and not the bottom of the inbuilt drain 8. We have heard learned Assistant Advocate General as also learned counsel for the respondents and perused the record. 9. Two members of the Committee, examined by the prosecution, namely PW-5 Shri K.R. Verma and PW-12 Shri G.P. Saroch, admitted in the cross-examination that in every manhole benching is provided and that there is a difference of about .5 metre between the top level of the benching and the level of the drain or the lowest level slant from both sides. Both of them have admitted …6… that in this case measurement was done by removing manhole covers and lowering the measuring tape from the side of the manhole and that when measurement is done, in this fashion, the lower end of the tape would touch the highest level of the benching. They have stated that nobody entered the manholes for carrying out the measurement. That means, as per testimony of these witnesses of the prosecution, itself, measurement carried out by them, is wrong, on the face of it, and according to their admission, as aforesaid, to the depth of manholes measured by them, atleast .5 metre depth is required to be added. Furthermore, when the measurement had not been properly carried out, it is quite likely that if it was done correctly, by clearing the manhole and sending someone into it, no shortfall in the depth of the manholes would have been found. 10. As regards the contention that firm of executing contractors was paid a sum of `99,950/- against the estimated cost of `78,010/-, 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 …7… 30% addition to such amount. Also, it has come in the 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.