1. Public servants and contractor convicted for criminal conspiracy, cheating, and criminal misconduct; appeals challenge conviction in telecom optical fibre cable contract works under IPC and Prevention of Corruption Act. (Para 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 )
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2018 Supreme(Gau) 1082
IN THE HIGH COURT OF GAUHATI
Rumi Kumari Phukan, J.
Ram Prashad And Anr. - Appellant
Vs.
Central Bureau of Investigation CBI - Respondent
Criminal Appeal No. 282 of 2013
Decided On : 04-10-2018
Advocates Appeared:
R.P. Singh, Adv.
R.P. Singh, Adv.
Conviction cannot be based on mere suspicion or the marking of documents as exhibits without proving their contents. The prosecution must prove corrupt intention and illegal gratification beyond reasonable doubt, particularly when technical deviations occur due to environmental factors in challenging terrains.
Headnote:(A) Indian Penal Code, 1860 - Sections 120B, 420, 468 and 477A - Prevention of Corruption Act, 1988 - Sections 13(1)(d) and 13(2) - Allegations of excess payment and false certification in a communication link project - Proof of documents - Mere marking of a document as an exhibit does not dispense with the requirement of proving its contents through evidence (Para 55).
(B) Criminal Jurisprudence - Proof vs. Suspicion - There is a significant difference between suspicion and legal proof; however strong the suspicion may be, it cannot take the place of proof. The distance between "may be true" and "must be true" must be bridged by clear, cogent, and unimpeachable evidence (Paras 58 and 59).
(C) Prevention of Corruption Act - Section 13(1)(d) - To establish criminal misconduct, the prosecution must prove that the public servant obtained a pecuniary advantage for themselves or another through corrupt or illegal means or by abusing their official position (Para 63).
(D) Indian Penal Code - Section 415 and 420 - For an offence of cheating, fraudulent or dishonest intention must exist at the time of the initial promise or at the inception of the formation of the contract (Para 61).
Facts of the case:
Public servants and a contractor were convicted for causing wrongful loss to the government by executing a cable laying project with alleged deviations in soil classification, trench depth, and quantities, leading to excess payments. The conviction was primarily based on a joint inspection report conducted by the investigating agency approximately seven years after the work's completion.
Findings of Court:
The evidence did not establish a criminal conspiracy or dishonest intention. The joint inspection report was found unreliable as it failed to correlate with the route index diagrams and was not supported by the witnessing officials. The court observed that the project was executed in hilly, landslide-prone terrain, making variations in soil and depth natural over time. Furthermore, the prosecution failed to prove the contents of the exhibited documents through witness testimony.
Issues: Whether the deviations in project costs and technical specifications constituted criminal misconduct and cheating, and whether a joint inspection conducted seven years after completion could form the basis of a criminal conviction.
Ratio Decidendi: Conviction cannot be based on unproved exhibits and conjectures. Technical deviations in challenging terrain, especially when approved by higher authorities and verified by multiple technical teams during commissioning, do not equate to criminal liability in the absence of proof of corrupt intent or illegal gratification. Suspicion, regardless of its strength, cannot substitute for legal proof.
Result: Appeals allowed and accused are acquitted from the charge.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Table of Contents
2. Appellants contended evidence did not prove conspiracy, cheating, or criminal misconduct and trial relied on surmises; prosecution asserted joint inspection proved excess payments. (Para 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 49 , 50 , 51 , 52 )
3. Does mere marking or exhibiting a document dispense with proof of its contents in a criminal trial?
No. Marking a document as an exhibit only identifies it; its contents must be formally proved. A conviction cannot rest merely on exhibited documents whose authenticity and correctness are not proved. (Para 54 , 55 , 57 )
4. What standard of proof must the prosecution meet, and can suspicion or irregularities support a conviction?
The prosecution must prove every charge beyond reasonable doubt by clear, cogent and unimpeachable evidence. Strong suspicion, conjecture or mere procedural irregularities cannot take the place of legal proof; if circumstances are consistent with innocence, the accused gets benefit of doubt. (Para 46 , 47 , 48 , 53 , 56 , 58 , 59 , 60 )
5. What ingredients must be proved for an offence of cheating under Section 420 of the Indian Penal Code?
The prosecution must prove deception, fraudulent or dishonest inducement to deliver property, and that the accused had a fraudulent or dishonest intention at the time of the initial promise or representation; absent such intention, no cheating is made out. (Para 61 , 62 )
6. What must be proved to convict a public servant of criminal misconduct under Section 13(1)(d) of the Prevention of Corruption Act?
The prosecution must prove that the public servant obtained, for himself or another, a valuable thing or pecuniary advantage by corrupt or illegal means, by abusing position, or without public interest; mere evidence of loss or deviation is insufficient. (Para 63 , 64 )
7. Can the statutory presumption under Section 20 of the Prevention of Corruption Act be applied to offences under Section 13(1)(d)?
No. The presumption under Section 20 applies to offences under Section 7 and can be drawn only upon proof of acceptance of illegal gratification; it does not apply to Section 13(1)(d)(i) or (ii). (Para 65 )
JUDGMENT :
Rumi Kumari Phukan, J.
As both appeals arose from the same judgment in special case 6/2006 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 282/2013 and Mr. D. Talukdar, learned counsel for the appellant in Crl. Appeal 328/2013.
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. Hence, 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. 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.
4. 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.
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 sub-sections 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 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 328/2013 (the appellant Sh. Babul Kalita was awarded the contract to execute the OFC laying in respect of SS 17 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 higher than the estimated rates.
(3) Deviations in the execution of quantities of works for soft soil by decreasing the same apparently to favour the contractors because the rates of these items were lower than the estimated rates.
(4) Deviations in the concreting works by showing executions of increased quantities of concreting works against t
