1. Appeal against conviction for corruption and cheating in telecom project — Alleged excess payments — Conviction reversed by appellate court. (Para 2 , 3 , 4 , 5 , 6 , 7 , 8 )
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IN THE HIGH COURT OF GAUHATI
Rumi Kumari Phukan, J.
Navendra Kumar And Anr. - Appellant
Vs.
Central Bureau of Investigation CBI - Respondent
Criminal Appeal No. 4 of 2015
Decided On : 04-10-2018
1. Appeal against conviction for corruption and cheating in telecom project — Alleged excess payments — Conviction reversed by appellate court. (Para 2 , 3 , 4 , 5 , 6 , 7 , 8 )
2. Appellants argued no evidence of conspiracy or excess payments; prosecution relied on joint inspection report and alleged deviations. (Para 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 40 , 41 , 42 , 43 )
3. Appeals allowed, accused acquitted of all charges, bail bonds discharged. (Para 56 )
Mere marking of an exhibit does not dispense with proof; the document must be proved by evidence, either primary or secondary. (Para 45 , 46 , 47 , 48 )
Deception of a person, fraudulent or dishonest inducement to deliver property, and intention to deceive at the time of making the promise. (Para 52 , 53 )
That the accused obtained for himself or another a pecuniary advantage by corrupt or illegal means, or by abusing his position as a public servant. (Para 54 , 55 , 56 )
No, suspicion however strong cannot take the place of proof; there must be clear, cogent, and unimpeachable evidence beyond reasonable doubt. (Para 49 , 50 , 51 )
JUDGMENT :
Rumi Kumari Phukan, J.
As all the appeals arose from the same judgment in special case 15/2006 they are taken up together and being disposed with this common judgment.
Heard Mr. B. M. Choudhury, learned counsel for the appellant in Crl. Appeal 02/2015; Mr. R. P. Singh, learned counsel for the appellants in Crl. Appeal 04/2015 and Mr. M. G. Singh, learned counsel for the appellant in Crl. Appeal 05/2015.
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 14.09.2001 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 works 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 (M. S. Deol was awarded the contract to execute the OFC laying in respect of SS 20) 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) Deviatio
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