S. Palanivelu, J.@mdashSince the issues involved in these appeals are one and the same, they are taken up together and disposed of by this common judgment.
2. The following is the factual matrix of the prosecution case:
2.1. Based upon a source information, CBI lodged FIR to the effect that during 1992-1994, A.1 to A.4 had entered into criminal conspiracy to do an illegal act viz., to cheat M/s. Bharat Heavy Electricals Ltd. (for short ''BHEL'') and criminal misconduct in the matter of award of contract for construction of building and other facilities for Reverse Osmosis Desalination Plants (ROD) in various places in Ramnad District of Tamil Nadu, that in pursuance of the said conspiracy, A1 to A3 called for only limited tenders from seven agencies including the firm of A.4 and four other bogus agencies, that fraudulently and dishonestly awarded the contract to A.4''s firm, namely, M/s. Entoma Hydro Systems, that in pursuance of the conspiracy, A.1 to A.3, by misusing and abusing their official position by corrupt or illegal means sanctioned and paid a total sum of Rs. 4.32 crore as interest free advance to A.4 knowing full well that A.4 is not capable of doing the work, that A.4 in pursuance to the conspiracy failed to execute the said contract and thereby, they caused wrongful loss to the extent of Rs. 4.32 crores to M/s. Bharat Heavy Electricals Ltd and that prima facie commission of offences punishable u/s 120-B, read with. 420 and 420 IPC and Section 13(2) read with. 13(1)(d) of PC Act 1988, have been committed by the Appellants and the same has been marked as Ex.P.87.
2.2. In the FIR, the first accused is P.W.16 who turned as approver. A1, A6 and A7 were included in the case during investigation. A.1 was functioning as the Executive Director of the Public Sector Undertaking, namely, M/s. Bharat Heavy Electricals Ltd, Trichy. P.W.16 was serving as the General Manager (F&P) of BHEL, Trichy during the relevant period. The third accused and the fourth accused were working as Assistant General Manager of Finance and Senior Manager in BHEL, Trichy respectively. The fifth accused Mohan Ramanth is the Proprietor of M/s. Entoma Hydro Systems. His father NRN Ayyar is A.6 and the 7th accused is the brother of A.5.
2.3. During 1991-1992, the Tamil Nadu Water Supply and Drainage Board, (for short ''TWAD'' Board), a Government of Tamil Nadu undertaking, was considering to set up Reverse Osmosis Desalination Plants (ROD) to provide potable water to drought-prone areas in Ramnad District. The construction of a ROD plant is very complex and highly technical work which involves civil, mechanical and electrical works such as construction of bore wells to meet the requirement of raw water output including supply and erection of water drawal system carrying out yield tests, chemical analysis to determine the feasibility of desalination, construction of roads, fences for desalination plants and installation of high pressure pumps. The said work requires expertise and prior experience in all the above fields.
2.4. When that being the position, all the accused entered into a criminal conspiracy between 1991 and 1992 at Madras, Tiruchirapalli and other places to commit criminal misconduct and to cheat BHEL in the matter of award of contract for the above said work. A.5 was not at all eligible for the award of such work and in furtherance of the criminal conspiracy, A.1 instructed P.W.16 to invite limited tenders without pre-qualification of prospective tenderers before inviting limited tenders and without selecting contractors out of approved list of contractors maintained by BHEL.
2.5. The following is the list of firms which the first accused dictated to P.W.16.
1) East Coast Construction Company, No. 15, Lloyds Road, 1st Lane, Chennai.
2) Turn Key Construction Company, No. 87/3, Arcot Road, Chennai-26.
3) Raghava Engineers & Builders, No. 37-A, Velacherry High Road, Chennai-600 042.
4) Mercantile Construction Company, No. 105, Mount Road, Chennai-42.
5) M/s. Entoma Hydro Systems, No. 16, II Street, Gopalapuram South, Chennai-600 086.
Out of the said five firms, Sl. No. 1 to 4 are bogus firms which were floated by the fifth accused for the purpose of showing competition. The second accused in the case, one R. Krishna Rao who has been acquitted by the trial Court, the then General Manager (F&P) BHEL by abusing his official position, recommended the above said note prepared by P.W.16 dated 25.11.1992 on the same day knowing full well that the firms were bogus which were neither pre-qualified nor selected from approved list of contractors maintained by BHEL, forwarded to the first accused, who in turn directed calling for limited tenders so as to enable A.5 to enter into the competition and ensure to get the contract.
2.6. A.1, the competent authority, approved the proposal for limited tender on 27.11.1992. He also made a false note on his letter that "discussed with CMD, we have to send limited tenders" with dishonest intention to cheat BHEL and to award contract to A.5. A.5 responded to the tender on behalf of M/s. Entoma Hydro Systems on the one hand and in the names of other bogus firms such as M/s. East Coast Construction Company, M/s. Raghava Engineers & Builders, M/s. Turn Key Construction and M/s. Mercantile Construction Company through A.7 who applied and obtained demand draft for Rs. 20,000/- each in favour of BHEL in the names of bogus firms by remitting Rs. 20,000/- each in Indian Bank, Royapettah, State Bank of India, Valacherry, State Bank of Mysore, T.Nagar and Bank of Madura, Mount Road respectively and by writing the demand draft application and signing in the names of bogus firms knowing full well that no such firms were existing in the said address and they were created just to get award of contract in favour of A.5. The demand drafts obtained by A.7 were submitted to BHEL as EMD along with forged and false tender documents.
2.7. The tender committee consisting of P.W.16, A.3 and A.4 processed the names of the above said bogus firms and recommended the name of A.5 for the award of contract for construction of desalination plants. They have given false justification that the selection of contractors had to be limited to those who would be efficient in work and would be in a position to deliver the goods in time and therefore, the names of the firms in limited tenders were obtained from reliable sources, namely, from TWAD Board. They have offered such false justification in the proceedings knowing fully well that all the firms were bogus just to facilitate the award of contract to A.5 by fraudulent means.
2.8. Tender committee members, A.3 and A.4 should ensure the fair selection of most suitable tenderers for the award of work. As per the "instructions to tenderers" contained in the tender documents, every participating tenderer has to submit two experience certificates and a Certificate from bank regarding financial capacity of the tenderer, but both of them did not deliberately obtain such experience certificate from tenderers knowing full well that firm of A.5 is not at all eligible for such a highly technical contract. The firm of A.5 for the first time got the contract from BHEL.
2.9. They have also given false justification in the tender committee proceedings that all the bogus firms were highly competent and experienced in the fields and their names were obtained from the reliable sources. The firm of A.5 is only a pesticide and agrochemical merchant. Both A.3 and A.4 recommended sanction of 30% interest- free advance to A.5 in violation of existing practice of payment of 5% to 10% mobilisation advance without interest to cause pecuniary advantage to A.5. Hence, total mobilisation advance of Rs. 4,32,00,000/- was paid to A.5 and A.7 without interest which is a wrongful loss to BHEL. The amount was deposited in A.5 firm in the Account No. 3084 in Indian Bank, Ethiraj Salai Branch, Chennai and out of which, Rs. 1.5 crore was diverted to another sister concern of A.5, M/s. Insecticides and Allied Chemicals, Chennai, in which A.5 to A.7 are partners.
3.0. Thus, A.5 to A.7 caused wrongful loss to BHEL by cheating BHEL in conspiracy with A3 and A4. Since A.5 did not have the expertise and experience to execute the contract, he did not complete the work in time and thereafter, it was executed by BHEL itself. The address of bogus firm M/s. Raghva Engineers and Builders belongs to the property owned by A.6. The postal acknowledgment card pertaining to the despatch of tender enquiry to this bogus firm bears the signature of A.6 for having received the tender documents from BHEL. Two tender documents sent by BHEL to bogus firm were received by A.6 for A.5 and hence, A.6 created false evidence by filing income tax returns assessment for the year 1993-1994 and 1994-1995, on 17.10.1997 showing as if he received rental income of Rs. 1,600/- for one year from the non-existing firm. Hence, A.5 in conspiracy with A.6, floated a bogus firm and also created false evidence showing as if M/s. Raghava Engineers existed as his tenants.
3.1. The technical examiner of Central Vigilance Commission inspected the construction work at Ramnad and submitted a report to the Central Vigilance Commission stating that the work was awarded without pre-qualification of the firms and a predetermined agency by BHEL officials with mala fide intention and a major work costing Rs. 14.41 crores was awarded arbitrarily to a single agency.
3.2. P.W.16 gave a confessional statement u/s 164 Code of Criminal Procedure before the XVIII Metropolitan Magistrate, Saidapet, Chennai which is Ex.P.44 and he was tendered pardon u/s 306 Code of Criminal Procedure by the Special Judge for CBI cases, Madurai. It is Ex.P.51. He was treated as an approver. A.1 and A.2 abused their official position as public servants and showed undue favour to A.5 to A.7 without any public interest in conspiracy with A.3 and A.4 in the matter of award of construction of desalination plants to A.5 for which he is not at all eligible. Thereby, A.1 to A.7 committed offences as follows:
a) A1 to A7: u/s 120-B read with. 420, 468, 471 read with 468, 193 IPC and 13(2) read with 13(1)(d) of PC Act, 1988.
b) A1 & A2: u/s 13(2) read with. 13(1)(d) of PC Act 1988 and 109 IPC read with. 420, 468, 471 read with. 468, 193 IPC.
c) A3 & A4: u/s 109 IPC read with. 420, 468, 471 read with. 468, 193 IPC.
d) A5, A6 & A7: u/s 420, 468, 471 read with. 468, 193 IPC and 109 IPC read with. 13(1)(d) of PC Act, 1988.
Since CMD (Chairman and Managing Director) and BHEL refused to accord sanction for the prosecution of Shri. R. Thiagarajan (A3) and Shri. Chandrasekhar (A4) u/s 13(1) and (2) of PC Act in spite of CVC''s advice, they are not prosecuted for offences under P.C. Act, 1988. Shri. Srinivasalu (A1) and Shri. R. Krishna Rao (A2) had already retired from service. Hence, sanction for prosecution is not required for them for offences under P.C. Act, 1988.
4. The above said events and the particulars are found in the charge sheet laid by the Inspector of Police, CBI, Chennai. The prosecution marked as many as 94 exhibits and marched 44 witnesses to establish the guilt of the accused. When the accused were questioned u/s 313 Code of Criminal Procedure as to the incriminating materials available as against them, they denied complicity in the offences u/s 303 Code of Criminal Procedure.
5. The first accused has filed a written statement u/s 313 Code of Criminal Procedure stating that in Ex.P.35, it is mentioned as "discussed with CMD we have to send limited tenders" and should be read distinctly and not conjointly. Because going for the limited tender is within the powers of A.1 and he need not consult with his superiors and the endorsement "discussed with CMD, we have to send limited tenders" is nothing but a decision to send for limited tenders. It is for technical tie up, actual tender proceedings were started on 25.11.1992. This accused was promoted and transferred to BHEL, New Delhi on 18.08.1994. The mobilization advance was not paid from the funds of BHEL. In the documents furnished to the accused u/s 207 of Code of Criminal Procedure, it is stated that Rs. 7,45,91,400/- was paid by TWAD to BHEL. The second accused has also given a written statement u/s 313 Code of Criminal Procedure stating that FIR did not contain his name, that he had no authority to call for limited tenders and he never had any correspondence or interaction with regard to tender and he was neither a member of tender committee nor negotiation committee.
6. A.3 and A.4 have given separate written statements u/s 313 Code of Criminal Procedure which contain identical contents. They have stated that they are not members of tender committee but they are members in the negotiation committee alone. The evidence of P.W.16 that both the tender committee and negotiation committee are the same is incorrect. There was no impediment as per the BHEL Work Policy to pay 30% as mobilization advance. These accused have no role in selection of A.5 for award of contract. A.7 has stated that he is unaware of the tender in question and that he has been wrongly and falsely implicated in the case.
7. A5 and A6 died pending trial of the case and the charges against them abated.
8. The learned Special Judge for CBI cases, Madurai, acquitted A2 u/s 255(1) Code of Criminal Procedure of all charges and found the accused 1,3,4 and 7 guilty and imposed sentences on them as follows:
(a) A-1 convicted and sentenced to undergo R.I. for 3 years and to pay a fine of Rs. 2000/- and in default to undergo R.I. For 6 months for the offence under Sections 120-B read with 420 and R.I. for 3 years and to pay a fine of Rs. 2000/- in default to undergo R.I. for 6 months for the offence u/s 468 IPC, and R.I. for one year for the offence u/s 193 IPC and R.I. for 3 years and to pay a fine of Rs. 2000/- in default to undergo R.I. for 6 months for the offence u/s 13(2) read with 13(1)(d) of the Prevention of the Corruption Act 1988 and R.I. for 3 years and to pay a fine of Rs. 2000/- in default to undergo R.I. for 6 months.
(b) A-3 convicted and sentenced to undergo R.I. for 2 years and to pay a fine of Rs. 1000/- in default to undergo R.I. for 6 months for the offence u/s 109 read with 420 IPC, and R.I. for 2 years and to pay a fine of Rs. 1000/- in default to undergo R.I. for 6 months for the offence u/s 468 IPC and R.I. for 2 years and to pay a fine of Rs. 1000/- in default to undergo R.I. for 6 months for the offence u/s 471 read with 468 IPC and R.I. for one years for the offence u/s 193 IPC.
(c) A-4 convicted and sentenced to undergo R.I. for 2 years and to pay a fine of Rs. 1000/- in default to undergo R.I. for 6 months for the offence u/s 109 read with 420 IPC, and R.I. for 2 years and to pay a fine of Rs. 1000/- in default to undergo R.I. for 6 months for the offence u/s 468 IPC and R.I. for 2 years and to pay a fine of Rs. 1000/- in default to undergo R.I. for 6 months for the offence u/s 471 read with 468 IPC and R.I. for one year for the offence u/s 193 IPC.
(d) A-7 convicted and sentenced to undergo R.I. for one year and to pay a fine of Rs. 1000/- in default to undergo R.I. for 3 months for the offence u/s 471 read with 468 IPC and R.I. for one year and to pay a fine of Rs. 1000/- in default to undergo R.I. for 3 months for the offence u/s 109 IPC read with 13(2) read with 13(1)(e) of Prevention of Corruption Act 1988.
It is also directed that the above said sentences on each of them shall run concurrently.
Aggrieved by the judgment, A1, A3, A4 and A7 are before this Court with these appeals.
9. The point for consideration is, "whether the charges framed against the accused have been established by the prosecution beyond all reasonable doubt?"
Point: As regards complicity of A.1, A.3 and A.4.
10. The first accused was functioning as the Executive Director of BHEL, Trichy, during 1992-1993. The allegation against him is that he facilitated the award of contract for putting up of Reverse Osmosis Desalination Plants in favour of A.5, causing wrongful loss to BHEL, in a dishonest manner. P.W.1 was the Senior Manager (Vigilance) BHEL who handed over relevant files Exs.P.1 to P.10 and P.11 Work policy of BHEL and Ex.B.12 copy of Partnership letter of the firm, namely, M/s. Insecticide and Allied Chemicals.
11. It is the allegation against the first accused that he has violated the existing procedure of BHEL by calling for limited tenders instead of open tenders. P.W.8 was the technical examiner in the Central Vigilance Commission. The Central technical examiner Organisation is one of the wings of CBI which directed him to examine the present case. P.W.8 inspected the plant works and other records and came up with report Exs.P.18 and 19 stating that open tenders were not called for, that payment of 30% mobilization advance was excessive, that normally it would be 5% to 10% and the advance was paid free of interest that the contractor failed to execute the work in full, that it was not possible for a single agency to execute such a herculean task and variety of activities and that the contractor selected was pre-determined.
12. In this regard, the oral account of P.W.16 the approver plays a vital role. It is his definite version that the first accused was telling that A.5 is a dynamic, resourceful person, go-getter and an achiever and that he gave dictation to P.W.16 to write the following five agencies. They are as follows:
1. M/s. Entoma Hydro Systems,Madras
2. M/s. East Coast Builders, Madras.
3. M/s. TurnKey Construction Company,Madras.
4. M/s. Raghava Engineers & Builders,Madras.
5. M/s. Mercantile Construction Company, Madras.
P.W.16 deposes that for such type of work, normally open tender should have been called for, but A.1 told that there would be unhealthy competition from various walks of people to grab the work from TWAD Board and if BHEL lost this work, it would be losing glorious opportunity to enter into such field, that he told that while he had discussion with the Chairman he told him that single tender was not advisable and limited tender was okay. Consisting of himself, (P.W.16,) A.3 and A.4 the Committee also acted as negotiating committee, that he (P.W.16) recommended the contract to be awarded to A.5 firm, because A.1 wanted the same and that A.5 was in the habit of frequently meeting A.1 and A.1 who had shown some interest for A.5 for getting the mobilization advance quickly.
13. The prosecution has examined the witnesses to show that there was no company nor business establishments as enlisted in previous paragraph.
14. As far as M/s. East Coast Builders is concerned, P.W.6 Commercial Tax Officer has stated that no such firm has been registered with his office, in the name of M/s. East Coast Builders in No. 15, First Land Llyods Road, Madras-14, coming under Royapattah - II assessment circle from 1996 onwards and that verification of records for the period from 1991 to 1995, no such firm was found registered with them. In the cross-examination, he would say that the said address is within Royapettah-II Circle office. P.W.9 is the brother-in-law of A.6. He says that A.5 asked him to hand over a letter addressed to M/s. East Coast Builders to him, if he received a letter in the above said address. P.W.9 is resident of the above said address. He further adds that he received an envelope after three or four days in his address in the name of M/s. East Coast Builders and he has passed it on to A.5 which came from BHEL, Trichy and at no point of time, such a firm in the name of M/s. East Coast Builders was functioning in his address.
15. The above said circumstances would clinchingly show that no firm or company under the name and style of M/s. East Coast Builders was functioning or in existence in the above said address.
16. As regards M/s. Turn Key Construction Company, the evidence of P.Ws.15 and 26 are pertinent. P.W.15 is a Clerk in Asian Paints Pvt Ltd, Chennai since 1972. He says that the Company has godown at No. 87/3, Arcot Road, Vadapalani, that he was in charge of godown from 1991 to 1997 and that no such Company in the name of M/s. Turn Key Construction Company was functioning in the said address.
17. P.W.26 is working as Customers Service Coordinator in M/s. Hindustan Lever Ltd, where he was working as Sales Executive in M/s. Quality Ice Creams, Madras in No. 87/6, Arcot Road, Madras during the relevant period. One Zambu Prasad was the owner of the premises. Door No. 87/3 premises was also occupied by M/s. Quality Ice Creams. One Mr. Iyer was the owner of the said premises. Adding further, he would depose that at no point of time M/s. Turn Key Construction owned by one Majid was in existence in that premises. The above evidence of both the witnesses would candidly show that no company as M/s. Turn Key Construction was functioning in the above said address.
18. P.Ws.5 and 10 would depose about M/s. Mercantile Corporation Company. P.W.5 is the Commercial Tax Officer in Anna Salai I Circle. He says that no such firm under the name and style of M/s. Mercantile Corporation, at Door No. 105, Anna Salai was registered with their office for the period from 1991 to 1995. P.W.10 is a close relative of A.5 to A.7. P.W.9 is the paternal uncle of P.W.10. A.6 is the maternal uncle of P.W.10. P.W.9 has been running chemical business agency at Old No. 15, New No. 20, Anna Salai, Chennai. He says that A.5 told him that an envelope from BHEL would come to his address in the name of M/s. Mercantile Corporation and if so, to receive it and hand over the same to him and that he received two covers from BHEL with the said name and he delivered them to A.5. He has categorically stated that there was no such concern by name M/s. Mercantile Corporation in Anna Salai in the address mentioned above. The above said materials would clarify that there was no Company in the name of M/s. Mercantile Corporation in the above said address.
19. P.Ws.7 and 21 would speak about M/s. Raghava Engineers & Builders. P.W.7 is the Commercial Tax Officer in Velacheri Assessment Circle. He says that no such firm by name M/s. Raghava Engineers & Builders, No. 37-A was registered with their office for the year 1991-1994. P.W.21 worked as the Senior Assistant in the State Bank of India, Velacheri Branch during 1993 which is in Door No. 37 A, Velacheri Main Road. He states that during his tenure from 1993 to 2001, no such Company in the name of M/s. Raghava Engineers & Builders was functioning in the above-said premises when State Bank of India was there. From their evidence, it is shown that there was no business establishment as M/s. Raghava Engineers & Builders, in the address noted above.
20. It is to be noticed that the oral accounts of witnesses, whose evidence have been appreciated in paragraph Nos. 10 to 13.1 as to the four firms, could not be shattered in their cross-examination. Their evidence have brought the fact to light that there were no business concerns as mentioned in serial No. 2 to 5 in paragraph No. 9.
21. The Work Policy of BHEL has been marked as Ex.P.11 in which the following are the relevant Clauses as far as the tender system prevailing in the establishment is concerned:
4.1.1.Open tender:
Under this system tenders are invited in most open and public manner possible. Tenders called for (i) by advertisement in newspapers and/or (ii) from all registered contractors are treated as open tenders. Tenders may be called by advertisement in atleast three or four leading English or local language newspapers of good repute for the specific work/supply of material.
4.1.2. As a rule open tender system is to be adopted in all cases involving award of work exceeding Rs. 1 lakh each. Adequate notice is to be given to the tenderers to offer their quotations and the period should not be less than one month except in the case of minor works where local contractors only would be interested.
However, in paragraph No. 4.2.1, it is stipulated that even in cases for more than Rs. 1 lakh, if it is felt necessary to resort to restricted tender due to urgency or any other reasons, it is open to the General Manager or other officers authorised for this purpose to do so after recording the reasons therefor.
22. Ex.P.27 is the note of approval by the General Manager (F&P) and Executive Director, the second accused and the first accused respectively. By means of this, it was proposed to invite limited tenders from seven agencies which are as follows:
1. M/s. Entoma Hydro Systems,Madras
2. M/s. Larsen & Toubro Ltd, Madras
3. M/s. East Coast Builders, Madras.
4. M/s. Turn Key Construction Company, Madras.
5. M/s. Raghava Engineers & Builders, Madras.
6. M/s. Mercantile Construction Company, Madras.
7. M/s. Geo Miller & Co. Pvt. Ltd.
23. Ex.P.30 is the tender committee proceedings. It does not contain signature of any official. It provides that the choice had to be restricted to contractors with adequate rural based experience, allied expertise and organizational capability.
24. Ex.P.35 is the letter from Senior Manager, BHEL in which the first accused has endorsed as "Discussed with CMD. we have to send limited tenders". But the then Managing Director, examined as P.W.28, would say that as per Ex.P.36 at page No. 4, it was mentioned that this was also discussed with the Chairman and Managing Director (P.W.28 himself), who also advised to go in for limited tenders only. But, he would say that he had never stated so and the statement mentioned above by A.1 is not correct and it is upto A.1 either he would go for limited tenders or open tenders.
25. Ex.P.36 is the tender committee proceedings dated 30.12.1992. It is signed by P.W.16, A.3 and A.4 who were referred to as the Tender Committee Members in the first page in Ex.P.36. In the tender Committee proceedings, the tender process and procedures have been elaborately dealt with. It contains 13 pages. It is mentioned that since the work involved is not purely civil work alone, choice had to be restricted to contractors with adequate experience, allied expertise and organisational capability, not only in civil work but more in various other types of work and responsibilities, that calling of open tender was deliberately avoided as a business strategy since on one hand, it would throw open the field for all types of undesirable and incompetent agencies and more importantly on the other, it would result in wide publicity for the work which in turn may create possibilities of influential competitors directly approaching the customers to snatch the business away from BHEL and that this was also discussed with Chairman & Managing Director of BHEL who also advised to go in for limited tender only.
26. By saying so, the tender committee has also recommended payment of 30% mobilization advance. At the end of this proceedings, it is mentioned that Executive Director (A.1) may accord approval on the above terms and conditions to M/s. Entoma Hydro Systems. Finally, it was left to the discretion of the first accused. Even though as afore-noted in Ex.P.36 categorically that choice had to be restricted to contractors with adequate experience, allied expertise and organisation capability, the tender committee does not appear to have taken into consideration the said norms.
27. A.3 and A.4 would contend in a same tone that they came to the picture only on 23.12.1992 when the negotiating committee was formed, that they did not play any role in selection of the contractors, that they negotiated with M/s. Entoma Hydro Systems for the reduction of the tender amount and that they do not have any connection with the alleged offences. The contentions could not be countenanced for the following reasons.
28. Firstly, even though they stated that the tender committee and the negotiating committee are different, Ex.P.36 would vividly show that P.W.16, A.3 and 4 were the tender committee members and tender committee proceedings was also drafted with minute details with reference to the cost of work leaving the approval with the Executive Director (A.1). Hence, it is futile to contend that tender committee was not constituted and that they were not members in the tender committee.
29. It is stated that the tender committee has to verify and ascertain the previous experience and organisational capability for the proposed contract, but Ex.P.36 proceedings is silent about the previous experience of the proposed contractor, namely, M/s. Entoma Hydro Systems. They have recommended the name of M/s. Entoma Hydro Systems only because the said company quoted the lowest tender offer. What had prevented or hampered A.3, A.4 and P.W.16 while selecting M/s. Entoma Hydro Systems, in seeing the credentials of the firm and their previous experience is not divulged. The duty of the tender committee is not only to negotiate with the proposed contractors but also to see the previous experience and credentials of the firm in the proposed work so as to produce the desired result. The tender Committee has not ascertained these norms.
30. Nextly, the explanation for avoidance of open tender in Ex.P.36 proceedings is not convincing and satisfactory, since P.W.28, the then Chairman and Managing Director disclaimed that he advised to go in for a limited tender only. The reason, that if open tenders were called for, it would throw open the field for all types of undesirable and incompetent agencies and more importantly, it would result in wide publicity for the work which in turn may create possibilities of influential competitors directly approaching the customers to snatch the business away from BHEL appears to be unreal perception and such premise is alien to competitive business field and it does not sound good.
31. In the considered view of this Court, the above-said explanation is not at all persuading and satisfactory for avoiding the open tender. If it is so, no Public Limited Company can call for open tender and they have to make their own provisions to go in for limited tenders alone, entertaining illusionary apprehensions, which could be conceptually misconceived. The tender committee has woefully failed to ascertain the following aspects for award of contract:
(i) Credentials of the firm
(ii) Previous experience of the proposed contractor in the same field which the work involved.
(iii) The viability of financial capacity of the proposed contractor.
32. It is stated by the officials of BHEL that only from 1997 onwards, list of contractors was maintained in BHEL. But the TWAD Board officials say that they did not give any list of contractors to BHEL.
33. This being entirely new venture of project and also hitherto not adopted in this country and as one is uncertain regarding the nature of teething troubles during the actual execution and running of the plants after its initial installation and trials as rightly provided in Ex.P.36, the members of tender committee should have taken abundant care in selecting the contractor. It is to be noted that Ex.P.36 is silent as to the registration of M/s. Entoma Hydro Systems. The above said proceedings were simply and mechanically approved by the first accused without considering or keeping in mind the necessary norms or acceptable standards. He has not adverted to the above said requirements to be followed prior to awarding of contract.
34. In this connection, it is to be seen that the contractor was predetermined by A.1 himself which is evident from the oral testimony of P.W.36 who was the then Managing Director. He says that on 01.10.1993, the Minister for Local Administration held a meeting with regard to the project with BHEL officials and the State Government officials, that he participated along with the Executive Director in that meeting in which A.5 also participated, that when there was no Senior Manager in the name of Ramanath or Mohan Ramnath in BHEL, Trichy, he did not know how the said Ramnath participated in the official meeting, that he was not invited that at the end of the meeting, he asked the Executive Director A.1, who was the gentleman for which he replied that he was the prospective contractor and that later the fact came to his knowledge after his retirement that the work was alloted to A.5.
35. This portion of evidence would candidly depict that A.1 had taken A.5 to the official meeting without authority and he allowed him to participate in the meeting. The holding of meeting is evident from Ex.P.81 regarding of discussions, in which the Finance Secretary, A.1, P.W.36 and other Officials of BHEL and other Officials of the State have participated. It was held on 01.10.1993. This record of minutes and discussions do not show the participation of A.5. However, it is brought to notice that he was also present since he was taken by A.1.
36. It is strongly agitated on behalf of A.1 that he did not dictate Ex.A.26 list as stated by the approver. But P.W.16 would say that on the dictation of A.1, he prepared the list. It is to be noted that the list was written in a piece of paper which does not form part of any of the files of BHEL. Hence, it is incumbent upon the prosecution to establish that A.1 was the author of the list. Excepting ipsi dixit of P.W.16, there is no other material forthcoming to establish the allegation. This Court is of the view that the version that A.1 dictated Ex.A.26 list remains unproved.
37. It is stated that the list of contractors was given by TWAD Board. But the Chief Engineer of the TWAD Board, P.W.27 would say that the names of M/s. Raghava Engineers & Builders, M/s. Mercantile Corporation and M/s. East Coast Buildings were not suggested by the regional officials of TWAD Board for calling limited tenders and that the Board is maintaining the approved list of contractors for civil and other related works. It is also the evidence of P.W.23 who worked as Chief Engineer in TWAD Board during 1998 that higher officials of the department informed him that those companies (as stated above) were not registered with the TWAD Board.
38. P.W.38, the then Managing Director of TWAD Board would say that TWAD Board has not given any names of contractors to BHEL, that he never heard the name of the said companies during his tenure as Managing Director. He was holding the position as such from 29.11.1993 to 27.05.1996. P.W.42 is the Chief Head Draftsman of TWAD Board. He has also stated that the said companies were not in the approved list of contractors of TWAD Board even in Western region also and they were not approved contractors of TWAD Board. P.W.43 was working as Joint Chief Engineer in TWAD Board, who also came out with same version. But his statement u/s 161 Code of Criminal Procedure was not recorded.
39. The evidence of P.Ws.23, 27 and 38 would go to show that the list of contractors was not suggested by the TWAD Board. It goes without saying that the list originated only among BHEL authorities. As far the mobilization advance, it is the opinion of the Executive Engineer in CPWD P.W.8 that payment of mobilization advance as 30% is excessive and that normally it would be in the range of 5% to 10%, but the tender committee has recommended payment of 30% without any justification at all. It is to be noticed that no suggestion was put to him that his evidence as to the percentage of mobilization advance is incorrect. Since the execution of work was delayed and there was poor performance of the contract, the contract with M/s. Entoma Hydro Systems was terminated on 04.10.1996 as per Exs.P.77 and 78 dated 04.10.1996 by P.W.35 Assistant Manager (Civil).
40. In view of the above said discussions obtained from the appreciation of oral evidence as well as the documents, the charges framed against A.1, A.3 and A.4 have been established before the Court.
41. It is strongly contended on behalf of the accused that BHEL had not suffered any loss in awarding contract to M/s. Entoma Hydro Systems. BHEL, on 27.09.1996 issued a letter to the Indian Bank stating that since M/s. Entoma Hydro Systems has committed breach of contract, they invoked the bank guarantee to the tune of Rs. 4,84,13,851/-. It is an admitted fact. But initially BHEL sustained loss but it was compensated by invocation of bank guarantee on a later occasion. M/s. Entoma Hydro Systems gave bank guarantee to BHEL. On 07.10.1996 Indian Bank, Ethiraj Salai Branch, Chennai sent a communication to BHEL stating that they are enclosing a demand draft dated 07.06.1992 for a sum of Rs. 4,84,13,851/- in honour of their guarantee and on payment of that amount, their liability against those guarantees are discharged. They required BHEL to return the original guarantee bonds. The receipt of demand draft was acknowledged by BHEL on 28.10.1996. Since BHEL was made good loss, it is contended that there was no loss to the BHEL. Even though the loss sustained by BHEL was compensated on a later occasion, it could not be stated that offences as against the accused are not proved. Wrongful loss was caused to HEL and thereafter, bank guarantee was invoked.
42. In the considered view of this Court, even if the BHEL were compensated at a later point of time, the offences committed by the accused would entail penal action.
Point: As regards the nexus of A.7 with the offence:
43. The allegation against A.7 is that he took four demand drafts each for Rs. 20,000/- by applying, obtaining and sending them to BHEL to participate in the tender process for various bogus companies with dishonest intention, knowing full well that such companies were not in existence for which he is punishable. In this regard, come to the consideration of the Court Exs.P.66 and P.76, P.90 and P.92. The following are the particulars of these exhibits.
(i) Ex.P.66 is the application for demand draft for Rs. 20,000/- dated 17.12.1992 applied in the name of one M.Raghavan presented in Royapettah, Chennai. As regards this document, P.W.22, the Senior Manager of Indian Bank was examined. It is argued by A.7 that it is given by one M.Raghavan and A.7 has no connection with the said M.Raghavan.
(ii) Ex.P.76 is the application for demand draft of Rs. 20,000/- given by Mr. N. Ragunath, before the State Bank of India, Velacherry, Chennai. As regards this document P.W.32, the then Branch Manager of the said bank was examined. But he did not work in the said branch during the relevant period.
(iii) Ex.P.90 is application for demand draft dated 17.12.1992 for Rs. 20,000/-. It was given by one V.K. Eswar before the Bank of Madura. P.W.40, the then Manager was examined. However, his statement u/s 161 Code of Criminal Procedure was not recorded by the investigation officer.
(iv) Ex.P.92 is an application for demand draft for Rs. 20,000/- dated 17.12.1992 which was presented into the State Bank of Mysore, T.Nagar Branch, by Mr. N. Ragunath. P.W.41 was brought to box to say about this. He was not enquired by the investigation officer at the time of investigation and no statement was recorded from him u/s 161 Code of Criminal Procedure.
44. The expert has given Nos. Q.169, Q.174, Q.175 and Q.172 in the abovesaid documents. Though handwritings in Ex.P.66,76,90 and 92 respectively were marked by him as above, he has not furnished any opinion in his report as to their comparison.
45. By production of all the four applications for demand drafts and examination of the concerned Managers who were working in the respective banks, the prosecution claims that they have been proved. It is pertinent to note that even though the investigation officer got the sample handwritings and signatures of A.7 under Ex.P.75 series, they were not compared by the handwriting expert, P.W.30. He compared and gave opinion Exs.P.68 and 69 as regards handwritings of the other accused, who are no more. He has not compared the admitted and disputed handwritings and signatures of A.7. His report does not contain any opinion as to the handwritings and signatures of A.7.
46. The trial Court Judge has observed that P.W.30 has not mentioned about Ex.P.75 series in relation to demand draft application in the report, Ex.P.69. However, in the following paragraphs of the judgment, he has recorded finding that A.7 cannot disclaim knowledge about the diversion of funds into the account of M/s. Insecticide and Allied Chemicals, in which firm, he is also one of the partners.
47. Ex.P.12 is the Partnership Deed brought about among the family members of A.5 to 7 for the constitution of M/s. Insecticide and Allied Chemicals. It is stated that it pertains to 1977 and at that time, both 5th and 7th accused were minors. However, Ex.P.65 is the details of transaction in the Account No. 3084 relating to M/s. Entoma Hydro Systems for the period from 01.08.1994 to 31.12.1994. On 04.08.1994, a sum of Rs. 4,23,34,500/- was credited which was received as mobilization advance from BHEL. There is no material to show that A7 was minor during relevant period and there was no question put to witnesses as to this aspect.
48. Ex.P.65 transactions shows diversion of funds to M/s. Insecticides & Allied Chemicals on three occasions i.e. Rs. 2,50,000/- and Rs. 72,00,000/-, both on 09.08.1994 and Rs. 78,00,000/- on 12.08.1994 totalling a sum of Rs. 1,52,50,000/-. Within one week, out of the advance amount received from BHEL, to the tune of Rs. 1,52,50,000/- has been diverted to M/s. Insecticides & Allied Chemicals which is the family firm of A.5 to A.7. Hence, A7 cannot plead ignorance of receipt of such a hefty amount in the account belonging to M/s. Insecticides & Allied Chemicals. It could be seen that he knew very well about existence of M/s. Entoma Hydro Systems run by his brother A.5. This is a piece of evidence to infer the dishonesty on the part of A.7.
49. It is true to say that the admitted handwriting and signatures were not compared by the handwriting expert. But, on this score alone, it cannot be stated that the link for proof is missing in this case. Section 73 of the Indian Evidence Act empowers the Court to compare disputed signatures and handwritings. Without the aid of the handwriting expert, the Court of its own can compare handwritings and signatures and definite conclusion could be arrived which is permissible in law. So far as the present case is concerned, the admitted handwritings and the signatures of A.7 were obtained by the investigating officer, which are available for comparison with Exs.P.66, 76, 90 and 92.
50. In view of this Court, as the handwriting and signature of A.7 are unique and peculiar in nature they could be easily compared with the writings and signatures in the disputed records, in the backdrop of other circumstances of this case. This Court has no hesitation to hold after taking a careful comparison of the admitted handwritings and signatures of A.7 with disputed handwritings and signatures reportedly put by A.7, that the disputed signatures and the handwritings belong to A.7. Even though A.7 has signed in Ex.P.76 and P.92 in a different manner which do not tally with his admitted signature, handwritings found in all the four applications for demand draft would clinchingly expose resemblance as his handwriting is unique in appearance, that could be discerned from comparison. Ex.P.66 was given in the name of one N. Ragunath in the same name (of A7) with different address. The investigation officer should have taken initiatives during his investigation to ascertain the persons available in the addresses found in the four Exhibits.
51. Section 73 of the Indian Evidence Act reads as follows, which enables the Court to compare the handwriting and signatures while dispute arises as to the genuineness of the handwriting and signature challenged before the Court.
73. Comparison of signature, writing or seal with others admitted or proved - In order to ascertain whether a signature, writing, or seal is that of the person by whom it purports to have been written or made, any signature writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.
The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.
This section applies also, with any necessary modifications, to finger impressions.
52. The Supreme Court is of the view that there is no impediment for the Court to exercise the power conferred upon it to compare the signatures and handwritings for which the aid of handwriting expert is not at all essential. When the Court is of the opinion that even without the opinion of the handwriting expert before it, it can compare the disputed handwritings and signatures with those of admitted ones, it can do. When the report of the expert is placed before the Court, it has to decide whether the expert''s opinion has to be corroborated or not. Even if there were no opinion of the expert, Section 73 of the Act paves way to the Court for comparison. Irrespective of an opinion of the handwriting Expert, the Court can compare the admitted writing with disputed writing and come to its own independent conclusion. Such exercise of comparison is permissible u/s 73 of the Evidence Act. The following are the decisions of the Apex Court relating to these positions.
1.
2.
3. 1980 (1) SCC 704, Murari Lal v. State of Madhya Pradesh,
4. Division Bench decision of this Court in 2006 (3) CTC 39, Central Bank of India v. Antony Harware Mart.
53. This Court compared the hand writings and signatures, exercising the power vested by Section 73 of the Evidence Act. It has also considered another circumstance where diversion of funds to M/s. Insecticides & Allied Chemicals from BHEL. It cannot be said that A.7, being one of the partners in the said firm, had no knowledge about diversion of funds in favour of the firm. He cannot plead ignorance of the fund diversion. When this instance is considered during the process of comparing, it comes to light that A.7 is the author of the writings in the disputed documents. In other words, the circumstance of diversion of funds from BHEL to the firm would support the opinion of this Court obtained in the of comparison of disputed writings with admitted writings.
54. The seventh accused has not only given wrong addresses while he applied for demand draft in different banks but also affixed his signatures in all the four application forms in different fashions. Further, he has taken the risk of applying in imaginary names and addresses. The above said acts of the seventh accused could easily be brought under the purview of the provisions of Sections 468 and 471 IPC. Even if the evidence of concerned bank officials were not there, it is found that the disputed handwritings in the above said four exhibits certainly belong to the seventh accused by a careful and cautious comparison by this Court. The connection of A-7 with offences has been proved.
55. The learned Senior Counsel appearing for the first accused would place reliance upon a decision of the Supreme Court reported in 2008 (1) SCC (Cri) 573 [Anil Ritolla alias A.K. Ritolia v. State of Bihar and Anr.] wherein Their Lordships have observed that the prosecution has to show that the accused had mala fide intention that he has induced the complainant to enter into the transaction so as to deceive him with a view to cause unlawful losses to them and to make unlawful gain.
56. It is his contention that since there was no wrongful loss to the BHEL, no dishonest intention could be inferred on the part of the first accused. But the fact remains that he was instrumental in calling for the limited tenders from the firms which are not in existence and his nexus with A.5. Somehow or the other, the list of contractors was known to A.1 being superior and deciding authority, who asked P.W.16 to arrange for calling for the tenders. At the time of approval of the tender committee minutes, just like A.3 and A.4, the first accused has also ignored the procedures to be followed in the matter of awarding contract to the contractor who was a new entrant to execute the work awarded to them.
57. A.1, A.3 and A.4 had no concern and not been attentive to the credentials of the firm, previous experience, the working efficiency, financial capacity, capability and registration of the contractors. A deep analysis of the concerned materials would amply amplify their connection with the contractor who did not know even a little in the filed of desalination, who proceeded to award contract in his favour without any basis.
58. The learned Senior Counsel for A.1 also placed reliance upon a decision of the Supreme Court reported in (2008) 1 SCC (Cri) 578, Thelapalli Raghavaiah v. Station House Officer, wherein it is observed that though a case of breach of trust may be both a civil wrong and a criminal offence but there would be certain situations where it would predominantly be a civil wrong and may or may not amount to a criminal offence. A careful scrutiny of the materials shows that ingredients in relevant provisions under which A1 is charged are attracted.
59. The learned Senior Counsel appearing for A.3 and A.4 cites a decision rendered a learned single Judge of this Court in Crl.O.P. No. 24756 of 2008 dated 23.12.2008, wherein it is observed as follows:
22. Another factor to be taken into consideration is that admittedly there is no dispute at all between the petitioners herein and the second Respondent and even before any dispute was raised, the entire loan amounts with interest have been admittedly paid and without claiming any concession whatsoever and only thereafter the First Information Report has been registered that too not at the instance of the second Respondent, but on the basis of an oral anonymous information.
60. The above said circumstance was considered by this Court on a different occasion while quashing of a First Information Report. Further the facts available in this case are different. Even though F.I.R was registered under source information, leads obtained by the investigator during the investigation were abundant which were placed before the court during the trial, those were appreciated and a judgment of conviction has been rendered by the trial Court. This Court is also of the view that the informations contained in F.I.R are supported by ample evidence available on record. Hence, the above said decision is not applicable to this case.
61. In the above said case, a decision of the Supreme Court reported in
21. The basic intention of the accused in this case appears to have been to misrepresent the financial status of the company, M/s. Neemuch Emballage Limited, Mumbai, in order to avail the credit facilities to an extent to which the company was not entitled. In other words, the main intention of the company and its officers was to cheat the Bank and induce it to part with additional amounts of credit to which the company was not otherwise entitled.
22....
23. In the instant case, the disputes between the Company and the Bank have been set at rest on the basis of the compromise arrived at by them whereunder the dues of the Bank have been cleared and the Bank does not appear to have any further claim against the Company. What, however, remains is the fact that certain documents were alleged to have been created by the Appellant herein in order to avail the credit facilities beyond the limit to which the Company was entitled. The dispute involved herein has overtones of a civil dispute with certain criminal facets.
24. ...keeping in mind the decision of this Court in B.S. Joshi''s case (supra) and the compromise arrived at between the Company and the Bank as also Clause 11 of the consent terms filed in the suit filed by the Bank, we are satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties would be a futile exercise.
In the aforestated case there was a compromise between the parties and the Supreme Court observed that continuance of the proceeding after the compromise would be a futile exercise. But the facts in this case are otherwise. No compromise was ever entered into between the parties. BHEL invoked bank guarantee since the funds were wrongfully lost by it. In invocation of funds from the bank by the BHEL, the accused had no hands. The Supreme Court has referred to another decision in (2003) 4 SCC 785 [B.S. Joshi v. State of Haryana] wherein it is observed as follows:
(iii) Judgment, dated 16.10.2008 of the Hon''ble Apex Court rendered in the case of Manoj Sharma v. State and Ors. in Crl.A. No. 1619 of 2008 (SLP (Cri) No. 5265 of 2007). In this case the very question which came up for consideration before the Hon''ble Apex Court was that whether a First Information Report under Sections 420, 468, 471, 34, 120-B IPC can be quashed either u/s 482 of the Code of Criminal Procedure or under Article 226 of the Constitution, when the accused and the complainant have compromised and settled the matter between themselves. The Hon''ble Apex Court while considering the aforesaid question basing reliance on the decision rendered in the case of
8. ...Once the complainant decided not to pursue the matter further, the High Court could have taken a more pragmatic view of the matter. We do not suggest that while exercising its powers under Article 226 of the Constitution the High Court could not have refused to quash the First Information Report, but what we do say is that the matter could have been considered by the High Court with greater pragmatism in the facts of the case. As we have indicated hereinbefore, the exercise of power u/s 482 Code of Criminal Procedure or Article 226 of the Constitution is discretionary to be exercised in the facts of each case.
9. In the facts of this case we are of the view that continuing with the criminal proceedings would be an exercise in futility.
62. As adverted to supra, the Apex Court has held that when the accused and complainant have compromised and settled the matter between themselves, there is no question of further proceeding with the criminal action and hence the powers u/s 482 of Code of Criminal Procedure could be exercised. But in this case, as already stated, no such compromise is involved. Hence the accused could not derive any benefit from the above said decisions.
63. The learned Senior Counsel for A3 and A4 also pointed out that BHEL administration had refused to accord sanction to prosecute A.3 and A.4 and the letter in this connection dated 24.11.2000 by the Chairman and Managing Director to the Chief Vigilance Commissioner would show that both A.3 and A.5 are meritorious officers with an unblemished record, that despite mental tension suffered by them since the filing of the FIR in January,1997, these two officers have been performing their duties with whole hearted devotion and in the best interests of the company and while Thyagarajan has been ably heading the finance function of a large unit such as Trichy with operations of over Rs. 1500 Crores worth specially highlighting, in respect of Chandrasekharan in his current assignment of modernizing BHEL Trichy''s facilities under BHEL Board approved schemes with sanctioned costs totalling about Rs. 185 crores, he has succeeded in getting the best prices and terms for the benefit of BHEL Trichy.
64. Their administration might have refused to give sanction for prosecution against them, but it could not constitute a ground to reject the prosecution case which is based on the records for which they are the authors. The said letter does not form part of records.
65. On behalf of the 7th accused, the following decisions were relied upon:
65.(1) In AIR 1980 SC 499 [Abudlla Mohammed Pagarkar etc. v. State (Union Territory of Goa, Daman and Diu)], while dealing with the offences under Sections 420, 468, 471 I.P.C and Section 5(1)(d) of Prevention of Corruption Act, the Supreme Court has held as follows:
15. Learned Counsel for the State sought to buttress the evidence which we have just above discussed with the findings recorded by the learned Special Judge and detailed as Items (a) to (e) in para 9 and Items (i) and (iii) in para 10 of this judgment. Those findings were affirmed by the learned Judicial Commissioner and we are clearly of the opinion, for reasons which need not be restated here, that they were correctly arrived at. But those findings merely make out that the Appellants proceeded to execute the work in flagrant disregard of the relevant rules of the G.F.R. and even of ordinary norms of procedural behaviour of government officials and contractors in the matter of execution of works undertaken by the Government. Such disregard however has not been shown to us to amount to any of the offences of which the Appellants have been convicted. The said findings no doubt make the suspicion to which we have above adverted still stronger but that is where the matter rests and it cannot be said that any of the ingredients of the charge have been made out.
65.(2) In
25. Even if it is assumed for the sake of argument that the number on Ex. P-3 had been forged, that by itself would not show that Chatt Ram, Appellant forged it or participated in its forgery. Nor would the mere fact that Chatt Ram presented this ticket before the officers concerned and claimed the special prize on its basis, necessarily stamp him with the knowledge or belief of its forged character.
26. Nor were the two circumstances pointed out by the counsel for the State such as would unerringly raise an inference that the Appellant possessed the mens rea requisite for an offence u/s 471 of the Penal Code, when, he presented Ex. P-3 to the officers concerned for claiming the special prize. These two circumstances (which have been set out in a foregoing part of this judgment), at the most raise a suspicion about the requisite guilty knowledge or belief on the part of the Appellant. But suspicion is no substitute for proof.
27. To sum up, even if the evidence of PWs 6, 12, 22, and 26 was assumed to be admissible u/s 45 of the Evidence Act, it was not sufficient to establish beyond reasonable doubt that the ticket Ex. P-3 was a forged document. Further, even on the assumption that the ticket Ex. P-3 was a forged document, the evidence on the record did not indubitably lead to the conclusion that the Appellant Chatt Ram was concerned in forging it or had the requisite guilty knowledge of its forged character when he presented it and claimed prize on its basis before the officers concerned. It is immaterial if at any subsequent point of time he came to know of its forged character.
But in the case on hand, it has been shown that A7 has participated in forging of Exs.P.66, 76, 90 and 92. Hence he could not take recourse to the advantages of the above said decisions.
65.(3) In
65.(4) In
65.(5) Two unreported decisions rendered by a learned single Judge of this Court were also cited on behalf of A-7, which are common judgments in Crl.A. Nos. 253, 254, 287, 298, 313 and 381 of 2000 [Selvaraju and Ors. v. State, Addl Deputy Superintendent of Police] dated 24.8.2009 and in Crl.A. Nos. 452 to 458 and 498 of 2000 [Sathiamurthy and Ors. v. State of Tamilnadu and Ors.] dated 21.8.2009. In both the judgments the discussion proceeds to the effect that the prosecution has miserably failed to establish the guilt of the accused beyond all reasonable doubts. So far in this case, there are direct evidence to connect A-7 in the offence.
66. In 2003 SCC (Cri) 1121, Hira Lal Hari Lal Bhagwati v. CBI, it is observed that to constitute offence u/s 420, existence of fraudulent or dishonest intention must be necessary at the time of making promise or representation. In order to constitute the offence against A.7 u/s 109 IPC read with Section 13(1)(d) of the Prevention of Corruption Act, it must be shown that he abetted the other accused to commit the offence. It is argued by the Respondent that inaction on his part even after knowing that the amount as afore-mentioned have been deposited into the firm of M/s. Pesticides and Allied Chemicals would show that he had cheated BHEL. He got wrongful gain and obtained pecuniary advantage dishonestly. Hence, the above said charge has been proved against him. As far as presentation of Exs.P.66, 76, 90 and 92 into the respective banks is concerned, the act of the seventh accused could be brought within the purview of Sections 468 read with Section 471 IPC. The prosecution has brought home guilt of the accused beyond all reasonable doubt. This point is answered in the affirmative.
67. A conspectus of the materials available in this case would pave way to conclude that the charges under which the accused have been convicted and sentenced by the trial Court have been established by the prosecution beyond reasonable doubt. This Court does not find any infirmity either legally or factually in the judgment challenged before this Court. The ingredients of the provisions of law under which the accused have been charged have been proved. There is no valid ground to modify or set aside the conclusion arrived at by the trial Court. The conviction and sentence recorded by the trial Court need not be disturbed. The judgment challenged before this Court deserves to be confirmed and accordingly, it is confirmed. These appeals have to suffer dismissal.
In the result, all the three appeals in Crl.A. Nos. 437, 445 and 469 of 2006 are dismissed. The trial Court is directed to issue warrant to commit the Appellants/accused to prison to suffer the remaining portion of sentence.
