IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 557 of 2004. Decided on: May 17, 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: Mr. J.S. Guleria, Assistant Advocate General. For the respondents: M/s Satyen Vaidya and M.S. Kanwar, Advocates. Surjit Singh, Judge (oral) This appeal by the State is directed against the judgment, dated 14.9.2004, 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 working as Executive Engineer in Nathpa Jhakri Power Corporation (Division No.2), while respondents, Daulat Ram Whet her report ers of t he l ocal papers may be al l owed t o see t he j udgment ? - 2 - and Mohan Singh were working as Junior Engineer and Head Draughtsman, 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 stabilization of hill slopes below working model(Location No.1). 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 Srikhand Engineers of which respondents Ranjit Thakur, Rakesh Gupta, Pankaj Manchanda and Vijay Kumar (now 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 `93,823/-, though as per schedules of quantity attached with the estimate, value of the work was supposed to be `70758/- plus addition upto 30%, as per schedules of Punjab Public Works Department and Central Public Works Department. 4. During investigation of case FIR No.25/1990, it came to light that as a matter of fact, short work had been got executed by respondent J.S. Parihar and his above named subordinates from the aforesaid firm M/s Srikhand Engineers, 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 Srikhand Engineers. - 3 - 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. PW6/1, 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-4 N.C. Sharma, then working as Assistant Engineer, PW-13 Khushi Ram Verma, Dy. Chief Accounts Officer and PW-16 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 Daulat Ram 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 portion of that report is Ext. PW2/C (para-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 Daulat Ram, J.S. Parihar and deceased Manmohan 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 - 4 - 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. Daulat Ram Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988, Sections 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 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 420, 465, 467, 468, 471, 120-B IPC and Sections 5 and 6 of the Prevention of Specific corrupt Practices Act, 1983. 4. Rakesh Gupta Sections 420, 465, 468, 471, 120-B IPC and Section 4 of the Prevention of Specific Corrupt Practices Act, 1983. 5. Ranjit Thakur Sections 420, 465, 468, 471, 120-B IPC and Section 4 of the Prevention of Specific Corrupt Practices Act, 1983. 6. 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, Daulat Ram and Mohan Singh did not deny having prepared the measurement books and having made payments to the other respondents. They pleaded that the work had been executed on the spot from 21.10.1989 to 6.11.1989, but there were unprecedented rains and floods, because of which som of the work of crates, executed on the spot, got washed away or sank. In support of their plea they examined an Assistant - 5 - Engineer, namely Satish Gupta DW-1, to prove report Ext. DW1/A-14 (Item No.13), pertaining to various works, regarding damage caused by unprecedented rains and floods. As per this report (item No.13), work, in question, was damaged to the tune of `50,000/-. Total cost of the work was `93,823/-. That means, as per this report Ext. DW1/A-14, there was partial damage to the work, in question. Respondents further pleaded that some work was still existing on the spot, but that had not been noticed by the inspecting team. Learned trial Court accepted this plea of the respondents and delivered the impugned judgment and acquitted all the respondents. 8. We have heard learned Assistant Advocate General as also learned counsel for the respondents and perused the record. 9. Three members of the Committee, that inspected the spot during investigation and reported that no work had been executed, were examined by the prosecution. They are PW-4 N.C. Sharma, Assistant Engineer, PW-13 Khushi Ram Verma and PW-16 G.P. Saroch, Executive Engineer. They all testified that when they inspected the spot on 30.8.1990, no sign of work, in question, was found. All the three witnesses admitted that in the months of March/April, there were unprecedented rains and floods in the area, which caused havoc to various works executed by Nathpa Jhakri Power Corporation. 10. Report of damage Ext. DW1/A-14 (Item No.13), which was prepared much before the registration of the case, - 6 - also shows that there was partial damage to the work, in question, because loss had been estimated at `50,000/-. Total cost of work was `93,823/-. 11. Respondents’ plea that part of the work was still in existence, when the Inspection Committee, comprising, among others, PW-4 N.C. Sharma, PW-13 Khushi Ram Verma and PW-16 G.P. Saroch, visited the spot, in the company of Inspecting Team, is shown to be true, by prosecution’s own evidence. PW-10 G.L. Gupta, Assistant Engineer, stated that when there had been damage to various works, he visited the spot to assess the damage and that he noticed the work, in question, had been partially damaged and some of the crates placed on the spot were still there. PW-16 G.P. Saroch also admitted that some crates were there on the spot, but it could not be ascertained whether those crates were in respect of the work, in question, or some other work. 12. Now, if the crates were there on the site, in question, legitimate presumption is that they pertained to the work, in question, only and not to any other work and, therefore, Inspection Committee ought to have taken note of them and made a reference of them in the report, Ex. PW4/3. 13. As regards the contention that firm of executing contractors was paid a sum of `96,035/- against the estimated cost of `59,103/- 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 - 7 - 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 30% addition to such cost. 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 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 17, 2011 (ss) (Rajiv Sharma), J.