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IN THE HIGH COURT OF GAUHATI
Rumi Kumari Phukan, J.
B.R. Attri And Anr. - Appellant
Vs.
Central Bureau of Investigation CBI. - Respondent
Criminal Appeal No. 315 of 2014
Decided On : 04-10-2018
The appellants, public servants and a contractor, were convicted for criminal conspiracy, cheating, and criminal misconduct under various provisions of the Indian Penal Code (IPC) and the Prevention of Corruption Act (PCA). The charges stemmed from allegations that they had conspired to execute optical fiber cable (OFC) laying work at inflated rates, resulting in excess payments to the contractor. The appellants challenged their convictions, arguing that the prosecution had failed to prove the essential elements of the offenses and that the trial court had erred in its appreciation of the evidence.
Fact of the Case:
The Department of Telecommunications (DoT) awarded a contract to the appellant contractor to lay OFC cables along a specified route. The appellants, who were officials of DoT, were responsible for overseeing the project. The prosecution alleged that the appellants had conspired with the contractor to inflate the project cost by approving excess quantities of work, deviations from the tender specifications, and false certifications of work executed. The appellants denied the allegations, claiming that the work was executed as per the tender document and that the excess payments were made on account of genuine deviations and variations in the project.
Finding of the Court:
The court found that the prosecution had failed to prove the charges against the appellants beyond a reasonable doubt. The court noted that the joint inspection report, which was the primary evidence relied upon by the prosecution, was not reliable as it was conducted after a significant lapse of time and the witnesses to the report had contradicted each other. The court also found that the prosecution had failed to establish that the appellants had obtained any pecuniary advantage by corrupt or illegal means or that they had abused their positions as public servants. The court further held that the statutory presumption under Section 20 of the PCA, which presumes that a public servant who accepts illegal gratification has done so for doing or forbearing an official act, could not be drawn against the appellants as there was no evidence of acceptance of illegal gratification.
Issues: 1. Whether the prosecution had proved the essential elements of the offenses charged against the appellants. 2. Whether the trial court had erred in its appreciation of the evidence.
Ratio Decidendi: The court held that the prosecution had failed to prove the charges against the appellants beyond a reasonable doubt. The court found that the joint inspection report was not reliable, that the prosecution had failed to establish that the appellants had obtained any pecuniary advantage by corrupt or illegal means or that they had abused their positions as public servants, and that the statutory presumption under Section 20 of the PCA could not be drawn against the appellants. The court further held that the trial court had erred in its appreciation of the evidence.
Final Decision: The court allowed the appeals, set aside the impugned judgment and order, and acquitted the appellants of all charges.
Rumi Kumari Phukan, J.
As all the appeals arose from the same judgment in special case 164/2004 they are taken up together and being disposed with this common judgment.
Heard Mr. D. S. Choudhury, learned counsel for the appellants in Crl. Appeal 315/2014; Mr. A. K. Bhattacharya, learned counsel for the appellant in Crl. Appeal 334/2014 and Mr. B. K. Mahajan, learned counsel for the Appellant in Crl. Appeal 336/2014.
Also heard Mr. S. C. Keyal, learned standing counsel, CBI.
2. During 1995-96 the Department of Telecommunications, here-in-after called DoT, Government of India, decided to provide Optical Fibre Cable (OFC) Communication link on Imphal Moreh route in the State of Manipur. A survey of the route was conducted; a Project Estimate was prepared & sanctioned. The total route length of the section is 108 kms which was divided into 27 sub-sections of 4 kms length each. The tenders were invited and the work was executed through contractors separately for each sub-section. The terms, conditions & specifications of work are mentioned in the tender document. The agreement was executed with the successful contractors. The over-all in-charge of the work was Divisional Engineer (DE) and the Government is represented by him. The Sub-Divisional Engineer represents the Government at the site of work. The JTO supervised the day to day work at site. The measurements were recorded by JTO in MB and bills were prepared by him. The cent percent work was checked by the Site Engineer (SDE). The bills were pre-checked by JAO, passed by the DE; counter signed by the Director and paid by the concerned Accounts Officer.
3. The depth and protection of the cable was verified as per route index diagram three times immediate after execution of the work. The cable was handed over to maintenance unit, coming to an end the responsibility of the OFC officials. After completion of trenching and laying of HDPE pipes in the year 1998, the route was given for acceptance testing in the year 1999. The route was found to be satisfactory.
4. As per the survey report, as the entire sub-section fell in the hilly and rocky area it is not possible to lay the cable at the standard department and hence the RCC protection had to be given over the cable. Hence acceptance testing of the OFC route had to be done by the T&D Circle. After successful completion of acceptance testing, the route was handed over to the Eastern Telecom Region for maintenance purposes.
5. An FIR was lodged by the Inspector of Police of the CBI, Silchar on 26.10.2002 to the effect that they got a reliable information that the accused public servants and different contractors while laying optic fibre cable which was awarded by the Divisional Engineer (OFC) to different contractors during 1995-96 for execution in different subsections of the Imphal-Moreh route by paying excess amount in the tune of Rs. 4,03,142/- to those contractors against approved rates and the tendered quantities of the work. The excess payments were made on account of deviations and in quantity of works and increase in the quantity of the works including unauthorized payment against some items which were not tendered.
6. It is alleged that appellants while working in their respective capacities by abusing their official position and in connivance with the other officials and the contractor/the appellant in criminal appeal 336/2014 (the appellant Sh. Prafulla Borah was awarded the contract to execute the OFC laying in respect of SS 22, 24, 26 & 27 of Jorhat-Dimapur Kohima route) thereby caused undue loss to the exchequer by committing the following omissions and commissions.
(1) Approval of tenders at exorbitant rates much higher than the estimated rates.
(2) Deviations in the quantity of hard and rocky soil by increasing the same much more than the quantities indicated in the tenders, certifying the execution of increased quantities and causing payments accordingly by passing the questioned bills, apparently because the rates
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