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2018 Supreme(Gau) 1680
IN THE HIGH COURT OF GAUHATI
RUMI KUMARI PHUKAN, J.
Abed Husain - Appellant
Versus
Central Bureau of Investigation - Respondent
Crl. A. No. 1 of 2014
Decided On : 04-10-2018
Advocate Appeared:
For the Appellant : Ms. H. Hazarika, Mr. D.S. Choudhury, Mr. B.M. Choudhury and Mr. S.K. Singha
For the Respondent: Mr. S.C. Keyal
Headnote:
Penal Code – Sections 120B, 420, 477A – Prevention of Corruption Act, 1988 – Section 13 – Order of Conviction – Appellant D. Sundaramurthy and Th. Rajendra Singh are convicted and sentenced to rigorous imprisonment for 1 year with fine of Rs. 5,000 each under section 120B of the IPC and rigorous imprisonment for 1 year with fine of Rs. 5,000 each under section 420 of the IPC and rigorous imprisonment for 2 years under section 477A of the IPC with fine of Rs. 5,000 each and rigorous imprisonment for 2 years with fine of Rs. 5,000 each under section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 and in default to simple rigorous imprisonment for 3 months. – Held, Under section 3 of Evidence Act first the terms fact, relevant fact and fact in issue are defined in respect of evidence and later when it can be said to be proved, disproved and not proved is discussed. – Thus, while appreciating evidence in respect of any fact, relevant fact and fact in issue the court has to give its anxious consideration towards the peculiar facts of the case. – There may be several facts in a case before court and among it some may be relevant or some may be fact in issue. – Court has to first ascertain the facts, then it has to find out whether they are relevant and then whether they are actually in issue. After ascertaining this, the court shall examine the fact and later by applying rules of evidence court has to see that whether those facts are proved, disproved or not proved. – Appeals Allowed
JUDGMENT :
1. As all the appeals arose from the same judgment in special case No. 10/2006 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 No. 401/2013; Mr. B.M. Choudhury, learned counsel for the appellant in Crl. Appeal No. 1/2014 and Mr. S.K. Singha, learned counsel for the appellant in Crl. Appeal No. 164/2014.
Also heard Mr. S.C. Keyal, learned standing counsel, CBI.
2. During 1995-96 the Department of Telecommunications, hereinafter 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 and 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 and 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 per cent 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. 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. 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.
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 depth 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. A source information was received by CBI that appellants while working in their respective official capacities, by abusing their position and in connivance with the other officials and the contractors (contractor Abed Hussain was awarded the contract to execute the OFC laying in respect of sections 10, 11 and 12 of Imphal-Chaurachandpur route) caused undue loss to the exchequer while executing the work, 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 the tendered quantities.
(5) Falsely certifying the unwarranted concreting works and RCC/GI pipes laying and causing payments by passing the bills of the contractors for these items.
(6) Falsely certifying higher depth than the actual depths and excess payments against these items.
(7) Payments in excess of expenditure sanctioned in violation of rules.
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