IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM & ARUNACHAL PRADESH). SHILLONG BENCH Criminal Appeal No.1 (SH) 1999 Deva Prasad Sharma, Son of Bhola Nath Sharma, Resident of Inverneial Kench Trace, Shillong-4. Appellant -Versus- Central Bureau of Investigation Respondent Criminal Appeal No.1 (SH) 2000 State of Meghalaya through CBI Appellant -Versus- D.P. Sharma, Chief Engineer (Civil), North Eastern Hill University Respondent Criminal Appeal No.2 (SH) 2000 State of Meghalaya through CBI Appellant -Versus- 1. Stetnel Roy, Finance Officer, North Eastern Hill University Shillong. 2. W.M.R. Wahlang, Asstt. Finance Officer, North Eastern Hills University, Shillong. 3. Edmund S Lyngdoh, Contractor, New Colony, Jowai, Meghalaya. 4. T.S. Bareh, Contractor New Hill Jowai. Respondents. 2 BEFORE THE HON’BLE MR JUSTICE T VAIPHEI Criminal Appeal No.1 (SH) 1999 For the Appellant : Mr JM Choudhury, Sr Adv. Mr P Kataki, Adv Mr SP Mahanta, Adv Mr J Bora For the Respondent : Mr VK Jindal, Sr Adv Mr S Jindal, Adv Mr S Dey, Adv Criminal Appeal No.1 (SH) 2000 For the Appellant : Mr VK Jindal, Sr Adv. Mr S Jindal, Adv Mr S Dey, Adv For the Respondent : Mr JM Choudhury, Sr Adv. Mr P Kataki, Adv Mr SP Mahanta, Adv Mr J Bora Criminal Appeal No.2 (SH) 2000 For the Appellant : Mr VK Jindal, Sr Adv. Mr S Jindal, Adv Mr S Dey, Adv For the Respondent : Mr JM Choudhury, Sr Adv. Mr P Kataki, Adv Mr SP Mahanta, Adv Mr J Bora Mr BK Deb Roy, Adv respdt. No.2 Date of Hearing : 30.06.2010 Date of Judgment : 26.11.2010 JUDGMENT AND ORDER These criminal appeals are directed against the common judgment dated 28-10- 1999 passed by the learned Special Judge, Shillong in Special Case No. 1 of 1988. In Criminal Appeal No. 1(SH) of 1999, the appellant therein is questioning the legality of his conviction under Sections 120-B/420 IPC and under Section 5(2) of the Prevention of Corruption Act, 1947. In Criminal No. 1(SH) of 2000, the Central Bureau of Investigation (CBI), which was prosecuting the case, is aggrieved by the quantum of sentence imposed upon the said appellant and is seeking the enhancement of the sentence imposed upon 3 him. In Criminal Appeal No. 2(SH) of 2000, the CBI challenging the acquittal of the four co- accused. 2. The case of the prosecution is that a written complaint was lodged by Dr. B.D. Sharma, the then Vice-Chancellor of the North Eastern Hill University, Shillong (NEHU) on 3-7-1985 with the Director of CBI, New Delhi alleging that the appellant in Criminal Appeal No. 1(SH) of 1999 (A-1 for short), who was the then Chief Engineer of NEHU, Shri Stetnel Roy, Appellant No. 1 in Appeal No. 2(SH) of 2000 (A-2 for short), who was the Account Officer of NEHU, Shri W.M.R. Wahlang, the appellant No. 2 in Criminal Appeal No. 2(SH) of 2000 (A-3 for short), who was the Assistant Finance Officer of NEHU, Shri N.P. Garg, the then Executive Engineer, Shri Sanjay, Senior Technical Assistant and Shri H. Nongkynrih, Section Officer, Construction Division of NEHU, had joined hand for procurement of damp seal cement from some fictitious/non-existent individuals/firms at an exorbitant rate during the year 1982 to mid-1985. As a result of this collusion, A-1 invited quotation on 12-12-1982 from 12 firms for the supply of damp seal cement (DPC) at the rate of `2.75 per kg though the actual rate at the relevant time was `5 to `7 per Kg. Again, even though the Purchase Committee had approved only two firms for supplying the materials, A-1 placed orders from many firms and persons without even specifying the quantity of the material required for construction which resulted in leaving huge quantities of the materials so purchased unused. On the basis of the complaint so lodged, a regular case was registered whereafter investigation was done by the CBI. In the course of investigation, the CBI found a prima facie case against the A-1, A-2, A-3, Shri Edmund S. Lyngdoh, the owner of the firm under the name and style of M/s E.S. Enterprise (A-4), Shri T.S. Bareh of M/s Premiere Enterprise (A-5), Shri N.P. Garg, Executive Engineer of NEHU, Shri G.L. Sharma, Jr. Engineer of NEHU, Shri Sanjay, Sr. Technical Assistant, NEHU and Shri H. Nongkynrih, S.O., NEHU and charge-sheeted them U/s 120-B/420 IPC and under Sections 5(2) r/w 5(1)(d) of Prevention of Corruption Act, 1947 (“PC Act” for short) to stand their trial. The trial court, on the basis of the charge sheet submitted by the CBI, framed the charges against the A-1, A-2 and A-3 under Section 120-B read with Section 420 IPC and Section 5(2) read with Section 5(1)(d) of PC Act , to which they pleaded not guilty. As for A- 4 and A-5, charges were framed against them U/s 120-B IPC, to which they also pleaded 4 not guilty. In the course of trial, the prosecution examined some 21 witnesses and exhibited a number of documents to bring home the charges against the A-1 to A-5. It may be noted that the remaining accused were apparently dropped from the case at the investigation stage. At the conclusion of the trial, the trial court convicted A-1 under Section 120-B/420 IPC and under Section 5(1)(d) read with Section 5(2) of PC Act and sentenced him to undergo an imprisonment for four months with a fine of ` 15,000/- for the offence of Section 120-B IPC, to undergo an imprisonment of 6 months for the offence of Section 420 IPC with a fine of `15,000/- and to undergo a simple imprisonment for 1 year with a fine of `15,000/- for the offence punishable U/s 5(1)(d) r/w 5(2) PC Act. A-2 to A-5 were, however, acquitted of the charges and were set at liberty. This resulted in preferring a batch of three appeals against the judgment of conviction of A-1, against the judgment of acquittal of A-2 to A-5 and against the quantum of sentences imposed upon A-1. At this stage, it may be noted that A-2 (Stetnel Roy) died on 23-6-2003 during the pendency of this appeal, and the appeal against him accordingly stands abated. 3. Mr. S.P. Mahanta, the learned counsel for A-1, submits that from the evidence adduced by the CBI, it cannot be conclusively proved by the prosecution that the market rate of the DPC was `5/- to `6/- per Kg. at the relevant point of time inasmuch as no documentary evidence to that effect or any price lists of DPC in the open market at that time was produced by the prosecution, and the trial court has grossly erred in law in convicting A-1 on the basis of the oral testimony alone. It is next contended by him that as the prosecution has miserably failed to show that it was the duty of A-1 to ascertain the rate of DPC from the market and thence submit the same to the Purchase Committee at the time of approval of the rates of the tenderers, there could not be any misconduct on the part of A-1. He also contends that when the trial court has already acquitted the other co- accused, the question of A-1 conspiring with them does not arise, and his conviction under Section 120-B IPC cannot be sustained in law. He maintains that there is no evidence to show that A-1 had induced the Purchase Committee to approve the rates of the two firms at the rate of `42.75 per Kg. and as the contract was awarded to the lowest tenderer, there was no question of A-1 inducing the Purchase Committee by deception to purchase the DPC at exorbitant price: it was the Purchase Committee, which, on its own, approved the 5 rate on the basis of comparative statement of the tenderers prepared by the officials. It is also the contention of the learned counsel for A-1 that the prosecution has failed to show the total requirement of DPC to be purchased by the Engineering Department and that there was surplus quantity of DPC which was lying in the store and were never utilized at the relevant time: that there was no misuse of the balance stock as it was found in good condition at the time of inspection and, as such, there was no intention on the part of A-1 to cause wrongful loss to NEHU. Mr. V.K. Jindal, the learned senior counsel for the CBI, however, submits that the impugned judgment convicting A-1 is perfectly in order, but the trial court did not appreciate the gravity of the offences committed by A-1 and has misdirected itself in imposing token sentences upon A-1, which ought to be modified by this Court by imposing maximum sentences prescribed by law. According to the learned senior CBI counsel, when the prosecution has adduced sufficient evidence to bring home the charges against A-2 to A-5, the trial court has grossly erred in law in returning a verdict of acquittal against them. Mr. B.K. Deb Roy, the learned counsel for the A-3, supports the impugned judgment and submits that no interference is called for. Mr. K. Sunar, the learned counsel for A-4 and A-5, filed his written submission, which is taken on board. In the writ submission, the learned counsel justifies the impugned judgment and contends that there is lack of evidence to convict A-3 and A-4, and the trial court rightly acquitted them. 4. Before proceeding further, it may be noted that damp proof cement (DPC) is used for mixing with cement in order to make the cement damp proof. The first point for consideration is whether there is evidence to show that the price of damp proof cement (DPC) was `5 to `7 per Kg at the relevant period of time. The allegation of the prosecution is that DPC was procured by A-1 along with other accused at `42.75p per Kg. for wrongful gain to themselves. At this stage, it may be noted that there is no dispute at the bar that DPC was purchased by NEHU at `42.75p per Kg. PW 5 and PW 4 gave oral evidence that the rates of DPC at that point of time were ranging from `6/- to `10 per Kg. depending upon the quality of the materials. He testified that he had been supplying DPC in Shillong from 1965 to 1996. PW 5 also confirmed in his cross-examination that Damp Proof Cement and Damp Seal Cement were one and the same. PW 13, who was the Executive Engineer of NEHU, in his evidence deposed that he was aware of the use of DPC in the construction of 6 the buildings of NEHU. According to him, in the construction of Intake Water Tank at Wahjarain in the years 1983 vide Item No. 7(17) of Ext. P-5, DPC otherwise known as water proofing compound was purchased at the rate of `10/- per kg. PW 5, who was the proprietor of M/s Bawa Paints, testified that he used to supply DPC, among others, to A-4 and A-5 and that the rate of DPC at Shillong during that period would be in the range of `6 to `7/- which would include taxes and transportation and profit. PW 13, who was the Executive Engineer of NEHU at that time, deposed that in the construction of Intake Water Tank at Wahjarain for the year 1983 water damp-proofing compound was purchased at the rate of `10/- per Kg extra vide Ext. P-5, Item No. 7(17). This testimony of PW 13 was not challenged or denied by A-1 to A-5 in their respective cross-examinations. That apart, PW 21, who was the I.O. of the case, in his cross-examination by A-1 volunteered to state that he had seized carbon copy of cash memos books and two paid bills of Mr. Hansraj Jain, who was a contractor of NEHU and also the receipt letter from Dy. Chief Engineer, PHE, Shillong showing the sale price of DPC by them and that Mr. Hansraj Jain had supplied DPC on earlier occasion @ `10/- per Kg. At this stage, the findings of the trial court in this behalf may be referred to: “33. It is true as per the deposition of PW 5 he was having no idea as to what rate the DPC was sold in Shillong at the relevant time, but when the said item is sold at `2.80 to `3.30p per Kg in Delhi could the price of the said item shoot up to such an astronomical rate of ` 42.75p at the relevant period in Shillong. Definitely, the answer would be in a negative and the item under no circumstances can inflate up to such an amount, but it may be within a range of `10/- to `15/- per Kg if not lower than that. Whatever may be the circumstances, the rate to be at `42.75p per Kg appears to have been inflated with an ulterior motive. The item DPC as per the evidence of PW 4 was sold in Kg as well as in bag and it was freely available in the market during 1983-84 which was not challenged at all and A-1 also admitted in answer to Question No. 7 in his examination. Therefore, when the item is freely available in the market, it stands to no reason that the price would shoot up to ` 42.75p per Kg when the said item could be available ranging from `6 to `10/- per Kg at the relevant time. 34. Accused T.S. Bareh of the firm M/s Premiere Enterprise in answer to the questions nos 1 and 2 during his examination under Section 313 CrPC admitted that Bawa Paints Ltd. used to supply Damp Proof Cement to his firm during 1983- 84 could be in the range of `6/- to `7/- per Kg. Hence from the answer of the said accused No. 4 and from the oral evidence of P.W. 5, though in the absence of documentary evidence and also that PW 5 was not having any idea as to what rate the DPC was sold at Shillong at the relevant time, yet it can be held that the rate of DPC was sold at Shillong at the relevant time, yet it can be held that the rate of DPC as per the evidence above and answer of the accused would be in the range of `6/- to `7/- per Kg at the relevant period of 1983. Nowhere in the evidence of 7 PW 5 that the defense counsel could rebut that the rate as stated by him as regards the prevailing rate of the DPC during 1983-84 was incorrect. 35. I now come to the deposition of PW 16 before touching the evidence of PW 13. PW 16 Shri Santosh Kumar Chachan is the proprietor of M/s Gajand Chachan of Barabazar, Shillong which deals with hardware, paints and building materials including water proof cement and this firm as per the deposition of PW 5 is the one which DPC and paints were supplied by his firm. P.W. 16 further deposed that they used to purchase paints and water proof cement from Delhi, Calcutta and sometime from Guwahati and that during 1982-1984 his firm is dealing with water proof cement and the price of water proof cement during that period was `5/- per Kg which was sold at Shillong, but did not supply this DPC to NEHU. This witness also has not produced any document to prove the market rate of DPC. However, the defense, save and except making the suggestion during the cross-examination have not been able to discredit the evidence of the above PWs as regards the prevailing rate of the water proof cement or Damp Proof Cement during 1983-84. 36. In any case, we may not proceed to analyse the evidence of PW 13 Shri N.P. Garg who has worked in NEHU since 1984 as Executive Engineer who is also aware of the use of the Damp Seal Cement in the construction work where he deposed that the procurement of the damp seal cement was done by the Chief Engineer D.P. Sharma which was supplied by various suppliers and the said materials were received by the Assistant Engineer Sri G.L. Sharma and other staffs but PW 13 was not associated with the process of damp seal cement. He proved Ext. P-3 bills referred for payment the chargeable head charged to the construction of 150 staff quarters and the bills passed for payment for `42,750/- where he has made endorsement in different bills in exhibit P-3. He further proved Ext. P-5 the work file for the construction of Intake Water Tank at Wahjarain for the period of 6.9.83 and in one bill and by item No. 7(17) `10/- per Kg extra for water proofing compound along with other item and in the said bill the same rate of ` 10/- per Kg was paid for water proofing compound along with other items and the work was done by Hansraj Jain and the amount was paid to him. As contended by the defense, this witness PW 13 also figured as one of the accused in the FIR, however, when the charge sheet was laid, his name was not sent up for trial. It is in the contention of the defense that since the name of this witness figured in the FIR, there is no credibility for his evidence. However, defense has not been able to show as to whether the person named in the FIR should also be sent up for trial or it is the concern of the prosecution who are to be sent up for trial and during cross- examination, nowhere the defense tried to impeach the credibility of this witness and nowhere did they suggest or rebut his evidence as regards the works as per exhibit P-5 and also of the rate of `10/- per Kg extra which was paid for water proofing compound. It was only in the argument that defense canvassed that the extra means only extra item and not the rate of DPC per Kg for which I am unable to accept such contention. 37. A close perusal of exhibit P-5 relating to the bills for providing water supply to NEHU Campus at Mawkynroh-Umshning for construction of Intake Water Tank at Wahjarain and Wahshalynnai in item 7(17), it was depicted extra for water proofing cement as regard in the said bill was only for extra requirement and not that the rate is `10/- per Kg. In the said item 7(17) of the said bill in the file exhibit P-5 in column unit it was shown as Kg and the rate is `10/- which means per Kg. To say that water proofing compound is not the Damp Proof Cement without any supportive evidence to that effect will not make the Court to accept such contention. In exhibit P-1(5) Resolution No. 14 it has been described Purchase of Damp Seal Water Proofing Compound, hence I see not difference as regards water proofing compound and damp seal cement or damp seal water proofing compound. Interestingly, in the cross-examination of PW 13 not a word was said that Water Proofing Compound is not Damp Seal Cement or Damp Proof Cement or that the rate as shown in the said bills to be `10/- was not per Kg but only for extra requirement. When this witness PW 13 who belongs from the institution of NEHU and was in the capacity of Executive Engineer whose name also reflected in the FIR when he proves this 8 particular item in Exhibit P-5, it is strange to note that the defense neither impeached his credibility nor challenged that no such construction was taken or that if it was taken, the use of water proofing compound shown at `10/- per Kg was not in relation to the Damp Seal Cement or Damp Proof Cement as the case may be, but it is only for extra requirement. Assuming that PW 5 and PW 16 weight no relevancy in absence of the documentary evidence, but evidence of PW 13 with regard to the bills pertaining to construction of Intake Water Tank at Wahjarain and Wahshalynnai in the file exhibit P-5 would be probative and corroborative evidence in so far as the rate of water proofing compound at `10/- per Kg during the period of 1983. The said bill was also signed by the Chief Engineer of NEHU besides the Junior Engineer. Undoubtedly, the bills were passed and payment made. That being the position, could it be said that the rate of Damp Proof Cement during the relevant period of 1983 would be at the rate of `42.75p per Kg when the bills for the work carried out in 1983 itself water proofing compound shown to be `10/- per Kg from the same institution i.e. NEHU.” 5. In my opinion, the aforesaid findings of the trial court do not suffer from any infirmity and are based on solid evidence. That apart, in his examination under Section 313 CrPC, the following incriminating evidences against A-1 were put to him: “7. PW 4, Kamal Kumar Jhunjhunwala deposed that M/s J.C. Construction had been doing government construction work during 1983/1984 and he also as one of the partner of the said firm did construction work of the Guest House of NEHU during 1984 and that he knows the item of Damp Proof Cement which is mixed with the cement in order to make the cement water proof and that the said D.P.C. was issued to his firm free of cost by the NEHU for the purpose of mixing with the concrete cement and they have utilized the DPC supplied and that his item is sold in K.G. as well as in bag and it was freely available in the market during 1983/1984. What have you to say? Ans: It is right. “Q.9. P.W. 5 further deposed that in Shillong, the firm to whom Damp Proof Cement and paints wwere supplied are Kedarmal and Sons, Meghalaya Hardware, Deb Brothers, Gajachand Chachan, Sharma Hardware and in Jowai the Damp Proof Cement used to be sold to one E.S. Enterprise and Premiere Enterprise and that during 1983/1984 the Damp Proof Cement of 50 kg weight was sold at the rate between `80/- to `85/- at Delhi plus tax and for one Kg packet, the same used to be sold at `2.80 to `3.30 per Kg and in Shillong the rate of one kg of damp proof cement would be in the range of `6 to `7 inclusive of taxes, transportation and profits. What do you say against the said evidence? Ans: I do not know.” The statement made in defense by the accused under Section 313 CrPC can certainly be taken aid of to lend credence to the evidence led by the prosecution. The legal position in this behalf is explained by the three-Judge Bench of the Apex Court in State of U.P. v. Lakhmi, (1998) 4 SCC 336, in the following manner: “8. As a legal proposition we cannot agree with the High Court that statement of an accused recorded under Section 313 of the Code does not deserve any value or 9 utility if it contains inculpatory admissions. The need of law for examining the accused with reference to incriminating circumstances appearing against him in prosecution evidence is not for observance of ritual in a trial, nor is it a mere formality. It has a salutary purpose. It enables the Court to be apprised of what the indicted person has to say about the circumstances pitted against him by the prosecution. Answers to the questions may sometimes be flat denial or outright repudiation of those circumstances. In certain cases the accused would offer some explanation to incriminative circumstances. In very rare instances the accused may admit or own incriminating circumstances adduced against him, perhaps for the purpose of adopting legally recognized defenses. In all such cases the court gets the advantage of knowing his version about these aspects and it helps the court to effectively appreciate