Pijush Kanti Bagchi vs Central Bureau of Investigation

Headnote:(A) Indian Penal Code, 1860 - Sections 120B, 420, 468, 477A - Prevention of Corruption Act, 1988 - Sections 13(1)(d) and 13(2) - Allegations of excess payments for cable laying work - Conviction based on joint inspection report conducted seven years after execution - Evidence of hilly terrain and natural calamities affecting soil and depth - Mere marking of documents as exhibits does not dispense with formal proof of their contents. (Paras 54-55)

(B) Criminal Jurisprudence - Standard of proof - Suspicion, however strong, cannot take the place of legal proof - Distance between "may be" true and "must be" true must be covered by clear, cogent, and unimpeachable evidence. (Paras 58-59)

(C) Cheating - Section 415 IPC - Essential ingredients include deception, fraudulent or dishonest inducement, and the existence of dishonest intention at the time of making the initial promise or formation of contract. (Para 61)

(D) Criminal Misconduct - Section 13(1)(d) PC Act - Prosecution must establish that a public servant obtained valuable things or pecuniary advantage by corrupt or illegal means or by abusing their position. (Paras 63-64)

Facts of the case:
Appeals were preferred by public servants and a contractor against their conviction for causing loss to the exchequer through excess payments during a cable laying project in a hilly region. The prosecution alleged that the appellants conspired to make false entries in measurement books regarding soil type and trench depth. The conviction was primarily based on a joint inspection report conducted by the investigating agency seven years after the completion of the work.

Findings of Court:
The court found that the joint inspection report was not substantiated by its witnesses and was flawed as it did not correlate findings with the route index diagrams. The discrepancies in soil type and depth were attributable to the passage of time, road widening, and landslides in hilly terrain. Furthermore, the tender documents explicitly allowed for variations in quantities based on actual execution, and approvals for excess work had been obtained.

Issues: Whether a joint inspection report conducted seven years after project completion, which is not corroborated by witnesses, constitutes sufficient evidence for conviction; and whether variations in project costs in challenging terrains, permissible under tender clauses, amount to cheating or criminal misconduct.

Ratio Decidendi: The court held that the prosecution failed to prove dishonest intention or corruption beyond a reasonable doubt. A conviction cannot be sustained based on an unreliable report that ignores environmental factors and tender flexibility. It was further emphasized that the mere marking of documents as exhibits without proving their contents through witnesses is legally insufficient. Since the prosecution failed to establish the foundational facts of conspiracy or corruption, the benefit of doubt must be given to the accused.

Result: Appeals allowed and accused acquitted.

Legal Category Hierarchy

1. Appeals challenging conviction for conspiracy, cheating, forgery, and criminal misconduct under IPC and Prevention of Corruption Act. (Para 1 , 2 , 5 , 6 , 7 , 8 , 9 )

2. Appellants contended that the prosecution failed to prove charges and the joint inspection report was unreliable; respondent argued conviction was justified. (Para 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 49 , 50 , 51 , 52 , 53 )

3. What is the requirement for proving a document in evidence?

Mere marking of a document as an exhibit does not dispense with its formal proof; the contents must be proved by the witness. (Para 55 , 56 , 57 )

4. Can a conviction be based on suspicion alone?

No, suspicion, however strong, cannot take the place of proof; the prosecution must prove guilt beyond reasonable doubt. (Para 58 , 59 , 60 )

5. What are the ingredients of the offence of cheating under Section 415 IPC?

Cheating requires deception inducing delivery of property or omission causing harm, with fraudulent or dishonest intention at the time of making the representation. (Para 61 , 62 )

6. What must be proved for an offence under Section 13(1)(d) of the Prevention of Corruption Act?

The prosecution must establish that the public servant obtained a pecuniary advantage by corrupt or illegal means or by abusing his position without public interest. (Para 62 , 63 , 64 , 65 )

JUDGMENT :

Rumi Kumari Phukan, J.

As all the appeals arose from the same judgment in special case 11/2006 they are taken up together and being disposed with this common judgment.

Heard Mr. D. S. Choudhury, learned counsel for the appellant in Crl. Appeal 402/2013; Ms. M. S. Sundi, learned counsel for the appellant in Crl. Appeal 04/2014 and Mr. B. M. Choudhury, learned counsel for the appellant in Crl. Appeal 03/2014.

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. 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 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 woriks including unauthorized payment against some items which were not tendered.

Agreements were made without proper approval and against rules and guidelines.

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 (Abed Hussain was awarded the contract to execute the OFC laying in respect of SS 22 and 25 of Imphal Moreh 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 for these items were much h

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2018 Supreme(Gau) 1080

IN THE HIGH COURT OF GAUHATI
Rumi Kumari Phukan, J.
Pijush Kanti Bagchi - Appellant
Vs.
Central Bureau of Investigation - Respondent
Criminal Appeal No. 3 of 2014
Decided On : 04-10-2018

Mere marking of documents as exhibits does not prove their contents. In criminal trials, suspicion cannot replace legal proof, and convictions cannot be based on unreliable reports that ignore environmental changes and tender flexibility in challenging terrains.

Legal Category Hierarchy

Table of Contents

3. What is the requirement for proving a document in evidence?

4. Can a conviction be based on suspicion alone?

5. What are the ingredients of the offence of cheating under Section 415 IPC?

6. What must be proved for an offence under Section 13(1)(d) of the Prevention of Corruption Act?

Judicial Analysis

2018 Supreme(Gau) 1080

IN THE HIGH COURT OF GAUHATIRumi Kumari Phukan, J.Pijush Kanti Bagchi - AppellantVs.Central Bureau of Investigation - RespondentCriminal Appeal No. 3 of 2014Decided On : 04-10-2018

Mere marking of documents as exhibits does not prove their contents. In criminal trials, suspicion cannot replace legal proof, and convictions cannot be based on unreliable reports that ignore environmental changes and tender flexibility in challenging terrains.

Legal Category Hierarchy

Table of Contents

3. What is the requirement for proving a document in evidence?

4. Can a conviction be based on suspicion alone?

5. What are the ingredients of the offence of cheating under Section 415 IPC?

6. What must be proved for an offence under Section 13(1)(d) of the Prevention of Corruption Act?

Cases Referred (5)

Judicial Analysis

IN THE HIGH COURT OF GAUHATI
Rumi Kumari Phukan, J.
Pijush Kanti Bagchi - Appellant
Vs.
Central Bureau of Investigation - Respondent
Criminal Appeal No. 3 of 2014
Decided On : 04-10-2018