1. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: J U D G M E N T :: (1) S.B. CRIMINAL APPEAL NO.801/1999 (Radhey Shyam Vs. The State of Raj.) (2) S.B. CRIMINAL APPEAL NO.802/1999 (Radhey Shyam Vs. The State of Raj.) (3) S.B. CRIMINAL APPEAL NO. 30/2000 (Mahaveer Prasad Vs. State of Raj.) S.B. CRIMINAL APPEALS UNDER SECTION 374(2) Cr.P.C. AGAINST THE JUDGMENT DATED 15.12.1999 PASSED BY THE LEARNED SESSIONS JUDGE, ACD CASES, BIKANER IN SESSIONS CASE NOS.6/89 (5/97) & 5/89 (4/97). DATE OF JUDGMENT : 28th April, 2008 P R E S E N T HON'BLE MR. JUSTICE DEO NARAYAN THANVI Mr. M.D.Purohit, Senior Advocate, assisted by Mr. Anand Purohit, Mr. Pappu Sanghva, Mr. Dinesh Mehta for the appellants. Mr. L.R. Upadhayaya, Public Prosecutor. BY THE COURT : 1. These three appeals are directed against the two 2. judgments dated 15.12.1999 passed by the learned Sessions Judge, ACD Cases, Bikaner in Sessions Case Nos.6/89 (5/97) & 5/89 (4/97), whereby, in Case No.5/89 (4/97), he convicted accused appellant Radhey Shyam Gupta for offence under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as the Act) and sentenced him to one year's rigorous imprisonment and to pay a fine of Rs.25,000/- and in default of payment of fine to further undergo three months' rigorous imprisonment along with accused appellant Mahaveer Prasad, was also convicted for offence under Section 120B IPC and sentenced to one year's rigorous imprisonment and to pay a fine of Rs.1 lac, in default of payment of fine to further undergo six months' rigorous imprisonment. In another Sessions Case No.6/89 (5/97), accused appellant Radhey Shyam was convicted for offence under Section 5(1)(d) read with Section 5(2) of the Act and sentenced him to one year's rigorous imprisonment and to pay a fine of Rs.25,000/-, in default of payment of fine to further undergo three months' rigorous imprisonment. Both accused appellants Radhey Shyam and Mahaveer Prasad filed separate appeals in this court. 2. Since, factual and legal position is almost similar, therefore, all the three appeals are being disposed of by this 3. common judgment as it relates to the supply of pucca bricks in pursuance to the tender issued on 25.12.81 with regard to RD No.10 to 15 and 30 to 35 of link channel, Ghaghar Flood Control Division, Suratgarh. Appeal Nos.802/99 and 30/2000 are arising out of the judgment in Case No.5/89 (4/97), wherein, accused appellant Radhey Shyam Gupta, while posted as Executive Engineer at Ghaghar Flood Irrigation Department, Suratgarh between June 1981 to November, 1982, accepted tender for RD Nos. 10 to 15 from M/s Mahaveer Prasad at higher rate of Rs.376/- per thousand by causing loss to the State Government for a sum of Rs.2,98,220, whereas the rate of bricks was only Rs.150 per thousand. This was done in connivance with Mahaveer Prasad, therefore, the charge under Section 5(1)(d) read with Section 5(2) of the Act and Section 120B IPC was levelled against accused appellant Radhey Shyam and charge under Section 120B IPC was levelled against accused appellant Mahaveer Prasad. In appeal No.801/99, arising out of the judgment in Case No.6/89 (5/97), accused appellant Radhey Shyam was charged for the supply of bricks at higher rate of Rs.362/- per thousand for RD Nos. 30 to 35 in connivance with contractor Deshraj and cause loss to the State Government for a sum of Rs.2,58,913/-, whereas, the rate of bricks was Rs.150 per thousand. Accused appellant Radhey Shyam was charged for offence under Section 5(1)(d) read with Section 5(2) of the 4. Act & 120B IPC and accused contractor Deshraj was charged for offence under Section 120B IPC but during trial accused Deshraj expired, therefore, proceedings against him were abated. 3. Brief facts leading to these appeals are that a source information was received at the Head Quarter of Anti Corruption Department, Jaipur that accused appellant Radhey Shyam Gupta, Executive Engineer, Ghaghar Flood Irrigation Department, Suratgarh had purchased 80 lacs kachha bricks instead of pucca bricks at the rate of Rs.365 per thousand, whereas, the rate was only Rs.150 per thousand and 60 lacks bricks were already in the stock for last six to seven years. It is alleged that accused appellant Radhey Shyam Gupta has invited tenders for the link channel for the construction from RD Nos. 10 to 35 for the supply of 31.50 lacs of bricks. The tenders were issued on 25.12.81 and he received tenders from five suppliers. The tenders were opened on 21.1.82 in connivance with the subordinate Engineer and Contractor by putting loss to the State Government. The Additional Superintendent of Police, Anti Corruption Department, Jaipur register the cases under Section 5 (1)(d) read with Section 5(2) of the Act and Section 120B, 420 & 468 IPC against the Executive Engineer Radhey Shyam Gupta and his subordinate engineers and contractors vide FIR Nos. 46/83 and 47/83 and commenced investigation. After usual 5. investigation, accused appellants Radhey Shyam Gupta and Mahaveer Prasad were challaned for offence under Sections 5(1) (d) read with Section 5(2) of the Act and 120B IPC in FIR No.46/83 relating to RD Nos. 10 to 15, which was registered as Sessions Case No.5/89 (4/97). In FIR No.47/83, accused appellant Radhey Shyam Gupta and deceased M/s Fakirchand Deshraj were challaned in the above sections with regard to the supply of bricks in RD Nos.30 to 35, registered as Sessions Case No.6/89 (5/97). 4. After hearing the arguments on charge accused appellant Radhey Shyam was charged for offence under Section 5(1)(d) and 5(2) of the Act with Section 120B IPC in both the cases and accused contractors Mahaveer Prasad and Deshraj were charged for offence under Section 120B IPC, to which they pleaded not guilty. Accused Deshraj died during trial and the proceedings against him were abated vide order dated 10th July, 1998 by the learned trial court. In Sessions Case No.5/89 (4/97), the prosecution examined 11 witnesses. Statement of the accused were recorded under Section 313 Cr.P.C. They led no defence. In Sessions Case No.6/89 (5/97), prosecution examined 9 witnesses. The statement of accused appellant Radhey Shyam was only recorded under Section 313 Cr.P.C. as accused Deshraj died during trial. He led no defence. After hearing the 6. arguments, the learned trial judge convicted the accused appellants as indicated above. 5. It has been argued by learned counsel for the appellants that the appellants have wrongly been convicted by the learned trial court by ignoring the oral and documentary evidence brought on the record. According to the learned counsel, the tenders which were invited were given wide publicity and they were approved by the Superintending Engineer. The rates of the bricks for which the tenders were invited were high because of they being pucca bricks prepared with coal process, whereas, the lower rates were of kachha bricks and were prepared with the cow dung. The rates were also different because of the size of the bricks. The bricks for which the tenders were invited were of the size of 23x11x7cm, whereas, the size of the bricks made up of cow dung was 9”x4½”x2½” i.e. 22½X11¼x6¼cm. The rates of these bricks is ranging from Rs.150/- to Rs.200/- per thousand, whereas, the rate of the accepted bricks of large size is ranging from Rs.380/- to Rs.390/-. On account of the dissimilarity of the size and its preparation, one by cow dung and another by coal, the difference is bound to come and this has been proved from the documents and the statements of the Superintending Engineer. There was no occasion to give benefit to the Contractor. According to the learned counsel, the charge 7. regarding stock of the bricks is also without foundation. The bricks which were lying in the stock were not of the standard quality and they were not required to be used for the site of RD for which the tenders were invited and had those bricks were brought to the site, which was far away, it would be have costed more to the State Exchequer. Learned counsel for he appellants have further argued that the amount of tenders amounting to Rs.14,14,453 were of five contracts namely from RD Nos. 10 to 15, 15 to 20, 20 to 25, 25 to 30 and 30 to 35 but it is strange that out of these five contracts where the rates were almost similar challan has been filed only with regard to the two disputed contracts of RD Nos. 10 to 15 and 30 to 35. The contract of RD Nos. 10 to 15 was of Rs.2,98,920/- and contract of RD Nos. 30 to 35 was Rs.2,58,913/-. The total alleged loss of both the contracts has been estimated to be much more than the price of the contract. According to the learned counsel, the learned trial court has misread the evidence by coming to the conclusion that the rates of bricks was Rs.150/- to Rs.200/- per thousand as per VSR by ignoring the fact that the prevalent size of the bricks of the aforesaid rate was 9x4½x2½ inches, whereas, tender of bricks were of 23x11x7cm. 6. Per contra, the learned Public Prosecutor has supported the judgment of the learned trial court. 8. 7. Having minutely examined the oral and documentary evidence, it is revealed from Ex.P-4 in Sessions Case No.6/89 (5/97) and Ex.P-8 in Sessions Case No.5/89 (4/97) that the tenders were invited by the Executive Engineer, Ghaghar Flood Control Division, Suratgarh on 25.12.81 and there is clear mention in the tenders that it is for the supply of pucca bricks from RD No. 0 to RD No.35 of the size of 23x11x7 cm. The comparative rates given by the Contractors in their tenders of RD Nos.10 to 15 (Ex.D-11) and RD Nos.30 to 35 (Ex.D-10) proved by the prosecution witnesses in Sessions Case No.5/89 (4/97) are as under: S.No. Name of Contractor Rate Conditions RD Nos.10 to 15 1. M/s. Suresh Kumar Kothari SOG 380/- % Two conditions 2. M/s. Faquirchand Deshraj SOG 390/- % Five conditions 3. M/s. Jai Prakash Maheshwari SOG 382/- % Five conditions 4. M/s. Mahavir Maheshwari SOG 390/- % No conditions RD Nos. 30 to 35 1. M/s. Suresh Kumar Kothari, 365/- per% Two Suratgarh. conditions 2. M/s. Faquirchand Deshraj, 372/-per% Five Suratgarh. conditions 9. 3. M/s. Jai Prakash Maheshwari, 367/-per% No Suratgarh. Conditions 4. M/s Mahavir Maheshwari, 372/-per% -do- Suratgarh. 8. From the perusal of these rates it reveals that the minimum rate in RD Nos. 30 to 35 is Rs. 365/- to Rs. 372/- and in RD Nos. 10 to 15 is Rs. 380/- to Rs.390/-. In RD Nos. 10 to 15, rate of M/s. Mahavir Maheshwari at the rate of Rs.376/- instead of Rs.390/- per thousand with regard to the supply of pucca bricks of size 23x11x7 cm vide Ex.D-15 was accepted and the Executive Engineer issued the order vide Ex.D-16 to M/s Mahaveer Maheshwari in Sessions Case No.5/89 (4/97). As per the running bills Ex.P-30 in Sessions Case No.6/89 (5/97), the rate of Rs.362.50 instead of Rs.372/- per thousand was approved in favour of M/s. Fakirchand Deshraj for supply of bricks of size 23x11x7cm for RD Nos.30 to 35 and it was the lowest rate than the minimum rate of Rs.365/- given in the tenders. Thus, from the above documents, it is revealed that out of the tenders received the lowest rate was approved after due negotiations. These rates were also approved by the concerned Superintending Engineers in both the cases and thereafter orders for supply were issued by accused appellant as Executive Engineer. In case No.5/89 (4/97), PW-9 Shayam Lal 10. Mathur was the Superintending Engineer and he has stated in his statement that he has approved the minimum rate of Rs.376/- per thousand at the similar rates of other departments like Rajasthan Channel Project, Command Area Development, PHED, Military Engineering etc. He has also stated in last line of his cross examination that before approving the rate he enquired from the market also and after negotiations, he approved the tenders. Likewise, in Sessions Case No.6/89 (5/97), though the tender was accepted by M.S.Duggal but he has not been produced in the court and instead the photo copy of the statement of Shyam Lal Mathur PW-9 in Sessions Case No.5/89 (4/97) has been attached in Sessions Case No.6/89 (5/97), wherein, he has stated that tender of RD Nos. 30 to 35 was accepted by M.S.Duggal. It appears that most of the photo copies of the statements have been attached in both the files recorded in one of the case. Thus, from the statement of the Superintending Engineer, it appears that the bricks of RD Nos. 10 to 15 and 30 to 35 were of the size 23x11x7cm and its rate of Rs.376.50 was approved by him, as a controlling senior officer. 9. When the bricks were of large size, then the question as to whether the bricks were available in the market for the lesser price or not is also important issue for consideration. In this 11. regard, the most important witness is Harish Chandra PW-5 in Sessions Case No.6/89 (5/97) and the photo copy of which has been attached as PW-8 in Sessions Case No.5/89 (4/97). He is the Investigating Officer and was posted as Dy.S.P. at the relevant time in the Anti Corruption Department. When he was cross examined, he has stated that he enquired about the rate of bricks and its size from Jai Ram and Surendra Kumar. The prevalent size at that time was 9"x4½"x2". Jai Ram and Surendra Kumar have been examined as PW-3 and PW-4 respectively in Sessions Case No.5/89 (4/97), in which, Jai Ram PW-3 has stated that the rate of bricks in the year 1981-82 was RS.150/- to Rs.170/- but in the cross examination, he has stated that the bricks of his produce were of lower standard and the rate of standard size of bricks was Rs.350/- per thousand. Surendra Kumar PW-4 has also stated that he could not submit the tender because the bricks required in the tender were of the standard size. Karan Singh PW-5 in Sessions Case No.5/89 (4/97) and the copy of his statement as PW-3 has been attached in Sessions Case No.6/89 (5/97) is the Assistant Commercial Taxation Officer. On the basis of the bills, he has stated that the rate of the bricks was Rs.150/- to Rs.200/- in the year 1981-82 but in the cross examination, he has stated that tender rate was Rs.300 to Rs.350/- per thousand. According to him, mostly the bricks producers shows less rate in their bills because of sales 12. tax evasion. He has further stated that he did not enquire the rates in accordance with the tenders. Thus, from the statement of these witnesses, it reveals that there was a difference of rate on account of the size and quality of the bricks. The size of low quality bricks was of 9"x4½"x2½" i.e. 22½x11¼x6¼cm, whereas, the tenders were invited of 23x11x7cm, which was little bit bigger in size and were made of coal. It is a common course as pointed out by the ACTO that when the bricks are supplied on the spot and if they are of inferior quality, the lower rates are charged, whereas, when the goods are demanded by the Government Department, they cannot be of less than standard size. Accordingly, in the above statements, there seems no irregularity or ulterior motive in accepting the bricks at a higher rate of standard size, which is used in the Canal area. The less standard size of bricks may cause damage to water and irrigation supply from the Canal causing great inconvenience to the public at large. 10. Coming to the question of stock of the bricks, Pyara Singh PW-2 in Sessions Case No.5/89 (4/97), whose photo copy of the statement has been attached in Sessions Case No.6/89 (5/97) has stated in his examination in chief that as per the stock register, Article 2, there were 42,91,000 lacs bricks were in the stock but these bricks weer for the construction of work at S8A 13. and were lying 5 kilometers away from RD Nos. 10 to 15 in the southern side and 7 to 8 kilometers away in the southern western side of RD Nos. 30 to 35. He has further stated that the bricks are used only for that purpose for which, the supply is made and the supply for RD Nos. 10 to 15 and 30 to 35 was as per the requirement of the bricks. Same is the statement of Rawatram Saharan PW-7 in Sessions Case No.5/89 (4/97) and photo copy of which has been attached as PW-4 in another Sessions Case No.6/89 (5/97). He has further stated that at the relevant time the rate of the bricks was Rs.350/- to Rs.450/- per thousand and the bricks Numbers in stock 44,75,575 were of scrap. As per Article 2, the bricks supplied for RD Nos.10 to 15 and 30 to 35 were of the standard size and there sample and quality was also approved by the technical committee. Same is the statement of PW-6 Tara Chand in Sessions Case No.5/89 (4/97). 11. Thus, from the statement of above witnesses, it is revealed from tenders that the size and the rate of the bricks were different from the bricks which were available in the market and it was approved by the Superintending Engineer, a senior officer of the accused appellant after due negotiations. The bricks which were lying in the stock were of the scrap quality and were lying far away from the site for which the bricks were to be used 14. and bringing them, the transportation could have costed more. However, the bricks of other size could not have been used in RD Nos. 10 to 15 and 30 to 35. Therefore, the whole case of the prosecution that the bricks were purchased at the higher rate despite there being sufficient stock does not stand on sound footing. 12. The finding of the learned trial Judge is based on hypothecation and conjectures and it cannot be accepted to arrive at the conclusion to the guilt of the accused merely because the accused have been charged under the Prevention of Corruption Act. In every case, it cannot be said that the burden lies on the accused to prove contrary by virtue of Section 20 of the Act, as the initial burden has not been discharged by the prosecution with regard to the alleged acceptance of tenders with some consideration. In Government Departments when tenders are invited for required goods of a particular quality and quantity after giving wide publicity & accepted after negotiations by the Senior Officers, its justification cannot be a subject of criminal trial, unless strong proof is placed of extraneous consideration. 13. Consequently, these appeals are allowed. The conviction and sentence passed by the learned Sessions Judge, ACD Cases, 15. Bikaner vide his judgment dated 15.12.1999 in Sessions Case No.5/89 (4/97) (in Criminal Appeal No.802/99) against accused appellant Radhey Shyam for offence under Sections 5(1)(d) read with Section 5(2) of the Act and against accused appellant Mahaveer Prasad (in Criminal Appeal No.30/2000) for offence under Section 120B IPC are set aside. Likewise, the conviction and sentence passed by the learned Sessions Judge, ACD Cases, Bikaner vide his judgment dated 15.12.1999 in Sessions Case No.6/89 (5/97) (in Criminal Appeal No.801/1999) against accused appellant Radhey Shyam for offence under Sections 5(1) (d) read with Section 5(2) of the Act are set aside. All the appellants in the above appeals are therefore acquitted from the charges levelled against them. They are on bail, their bail bonds stand cancelled. (DEO NARAYAN THANVI), J. ms rathore