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State (Delhi Administration) Vs. Bhawani Shanker and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Judge
Reported in1985CriLJ993
AppellantState (Delhi Administration)
RespondentBhawani Shanker and ors.
Excerpt:
.....evidence is that some of the firms were fictitious and; 13. apart from the reasons advanced by the learned judge with which we fully agree, we have found some more material in the files pertaining to these jobs which go to strengthen our belief that there is neither any case of conspiracy nor a case of misconduct proved against respondents 1 to 4 and thereforee respondents 5 to 7 can also not be held guilty of having conspired with respondents 1 to 4. 14. before we make a reference to that important discovery we would like to mention that admittedly a precedent book is maintained in the office of c. having failed to do so, it is difficult to raise any inference of conspiracy or of criminal misconduct against respondents 1 to 4. we, thereforee, fully agree with the reasoning advanced by..........has been made in the judgment namely azad book binding house and other, are fictitious. the learned judge, however, felt that on the basis of evidence it was difficult to, infer that respondents 1 to 4 were possessed of knowledge that these three concerns (bbbh, pbbh &. tbbh) and the aforesaid other four concerns were either sister or fictitious concerns and it is difficult to impute this knowledge to respondents 1 to 4. he also found that it was difficult in this regard to place reliance on a solitary document ex. p.w.31/6 purported to be in the handwriting of o.p. jayana respondent and proved by the handwriting expert r. b. bhatnagar which is in the nature of opinion evidence. the learned judge further opined that, there is no evidence that the tenders were directly delivered to.....
Judgment:

Malik Sharief-ud-Din, J.

1. Eight persons were sent for trial under section 120-B, IPC read with Section 5(2) of the Prevention of Corruption Act. Out of these, one Shanti Lal has died before the trial could be concluded. The case was tried by Shri O.P. Singla, Special Judge and ultimately by his judgment dated 17-7-75 he dismissed the case and acquitted the accused. We have heard arguments in this acquittal appeal against the aforesaid order.

2. Respondent No. 1 Bhawani Shanker at the relevant time was working as Asstt. Controller of Printing in the office of Chief Controller, Printing and Stationery (hereinafter known as C.C.P. & S.) from October 1955 to April 1961 and, outside printing section (hereinafter known as OP section) was under his direct control. Respondent No. 2 B. S. Sharma from January 1958 to September 1961 was employed as supervisor in the same section while respondent No. 3 O.P. Jay and was working as Asstt. from 1952 to the middle of July 1959. It is, however, said that even after getting transferred from the OP section he continued to be connected with the same for certain purposes. Respondent No. 4 Gurbachan Singh at the relevant time was serving as a clerk in the same section from September 1958 to September 1961.

3. Respondent No. 5 Jinda Ram is the brother-in-law of respondent No. 6 Prakash Chand Narang and Shanti Lal deceased and is alleged to be father of Balkishan respondent No. 7.

4. Briefly stating the prosecution case, as put up before the trial court is that M/s. Bharat Book Binding House (hereinafter known as 'BBBH1) owned by Jinda Ram and Shanti Lal accused was a book binding concern since 1947-48 and was running a press known as . Decent Press, which was situated close to its premises in Hauz Qazi, Delhi. Prakash Chand and Balkishan were allegedly working in the said press. It is further stated that the office of 'CCPS' had a panel of private printers (who are also considered book binders) and that list was maintained in the OP section and 'BBBH1 and Decent Press were not borne on the panel It is also stated that when open tenders were invited, tenders were specifically address to 'BBBH1 and that they did some jobs for the department during the period 1955-57.

5. It is stated that during the years 1958 to 1961, respondents 1164 entered into a criminal conspiracy with respondents 5 to 7 with a view to cause loss to the government and, confer undue benefits upon respondents 5 to 7 and upon themselves and, in this way they indulged in corrupt practice and abused their official position. The object of the conspiracy is stated to be to by-pass all the procedures in vogue in the department in order to ensure that large number of jobs are secured for M/s. (BBBH) and its sister concerns, Parkash Book Binding House and Taneja Book Binding House (hereinafter respectively called (PBBH) and- (TBBH). Prosecution case further is that PBBH and TBBH were fake firms and were only brought into existence in the name of Parkash and Balkishan respondents with a view to enable the OP section to eliminate competition. * It is also said that four fictitious firms namely National Book Binding House, Hindustan Book ^ Binding House, Azad Book Binding House ^ and Punjab Book Binding House all fictitious concerns were also brought into being and fake quotations used to be submitted for jobs in the name of these firms also, in order to ensure that the job is secured for BBBH and its sister concerns PBBH and TBBH at high rates. This was done despite the fact that respondents 1 to 4 were duty bound to conduct themselves in a manner so as to ensure that government is not put at a disadvantageous -position and no loss, is caused to the government. Prosecution case further is that, respondent No. 1 Bhawani Shanker after the papers were processed by respondents 2, 3 and 4, was mainly responsible for inviting 4, tenders; for preparing the comparative statement and; for making recommendations and; in doing so, he did not follow the settled procedure and clandestinely addressed tender notices to the aforesaid firms only, in a large number of jobs with a view to keep out the other prospective tenders.

6. It is also said that after receiving the requisition for material from various departments respondents 1 to 4 deliberately failed to ascertain which jobs could be undertaken by the government press and, in utter disregard of the procedure and the instructions open tenders were not invited in any one of these 37 jobs and; the invitations for tenders were not addressed to all or sufficient number of printers on approved panel before allotting the job to the firms run by respondents 5 to 7 and most of the N.LT.'s were only sent to the firms of respondents 5 to 7 and to the fictitious firms regarding which mention has been made above.

7. Before proceeding further we may here make a reference to the list of jobs which are the subject-matter of this case and, which are 37 in number. These are as follows:

1. 22/29/59-OP Printing and Manufacture of Lab 106 and Lab 106(a) Envelopes forP and T Deptt.2. 22/41/60-OP -do-3. 22/59/60-OP Printing and Manufacture of Savings Bank ledgers for P & T Deptt.4. 22/26/59-OP Printing and Manufacture of Foreign Mail Tag Labels for P& T Deptt.5. 4/56/58-OP Manufacture of Loose Leaf Binders for Directorate of Inspection(Customs and Excise).6. 4/13/60-OP Manufacture of Loose-leaf Binders for Directorate of Inspection(Income-tax).7. 13/30/59-OP Manufacture of Binders and Folders for Department of Company Law.8. 4/21/59-OP Printing and Manufacture of Envelopes for Directorate of Inspection(Customs & Excise).9. 13/19/59-OP Manufacture of Leather file covers for Department of Company Law. 10. 11788/59-OP Printing and Manufacture of Envelopes of Ministry of I & B.11. 4/33/59-OP Printing and Manufacture of Cloth fixed Envelopes for I.T.O. Delhi.12. 11/11/60-OP Manufacture of Envelopes for Publication Division, Govt. of India.13. 17/9/60-OP Printing of Guide-Card for D.G.H.S.14. 28/4/60-OP Preparation of shorthand Note Books for Planning Commission.15. 28/5/60-OP Printing and making of Book Pockets for Planning Commission.16. 20/1/60-OP Manufacture of Envelopes for Indian Embassy, Brussels.17. 20/4/60-OP Printing and Manufacture of Covers for Passports for Ministry ofExternal Affairs.18. 13/10/60-OP Printing of Borrowers 'Library Tickets' for Ministry of C & I.19. 5/25/60-OP Manufacture of Guide Cards for I.T.O. Delhi.20. 5/28/60-OP Printing of DGA-69 Labels for D.G. Archeology.21. 3/39/60-OP Printing of Borrowers 'Ticket for MHA'.22. 5/31/60-OP Manufacture of Book Labels for Department of Archaeology.23. 1/19/60-OP Printing and Manufacture of Envelopes for Air Headquarters.24. 22/41/60-OP Printing and Manufacture of Cards for P & T Department.25. 4/22/60-OP Printing and Manufacture of Envelopes for Department of Insurance.26. 1/20/60-OP Printing of forms for DHM & F Delhi.27. 17/18/60-OP Printing of Envelopes for college of Nursing.28. 8/38/60-OP Printing and Manufacture of Envelopes for NBO Delhi.29. 5/45/60-OP Printing and Manufacture of Cards for DGA and New Delhi.30. 9/27/60-OP Printing of Packets for seeds for LARI New Delhi.31. 17/19/60-OP Printing and Manufacture of Envelopes for Supdt. Irwin HospitalNew Delhi;32. 22/55/60-OP Manufacture of Envelopes for P & T Department.33. 11/175/60-OP Printing and Manufacture of Envelopes for AIR Delhi.34. 5/44/60-OP Printing and Manufacture of catalogue and documentation cards for Ministry of Education.35. 17/20/60-OP Printing and Manufacture of Envelopes for D.G.H.S. Delhi.36. 1/30/60-OP Printing of Identity Cards and personal books for GREF New Delhi.37. 3/3/60-OP Manufacture of file boards for Intelligence Bureau.

8. After hearing Mr. M. L. Sachdeva, learned Counsel for the State and also the learned Counsel for the respondents we are of the view that it is not necessary for us to reproduce the evidence tendered by the parties. -Learned trial Judge has otherwise elaborately dealt with the evidence and the arguments that were advanced before him.

We, thereforee, propose not to overburden this judgment by quoting evidence. We may, however, notice that the learned trial Judge came to the conclusion that BBBH, PBBH and TBBH were sister concerns and respondent Parkash Chand and Balkrishan at the relevant time were of such an age that it could reasonably be concluded that they had no experience of the jobs which they had undertaken and; that they could not have either formed these firms or got jobs without the assistance of respondent Shanti Lai accused (now dead). He, however, refused to attach any importance to this aspect of the case as according to him the concept of allied concerns is different than that of a fictitious concern. On the material placed on record the learned Special Judge also felt that the four concerns to whom reference has been made in the judgment namely Azad Book Binding House and other, are fictitious. The learned Judge, however, felt that on the basis of evidence it was difficult to, infer that respondents 1 to 4 were possessed of knowledge that these three concerns (BBBH, PBBH &. TBBH) and the aforesaid other four concerns were either sister or fictitious concerns and it is difficult to impute this knowledge to respondents 1 to 4. He also found that it was difficult in this regard to place reliance on a solitary document Ex. P.W.31/6 purported to be in the handwriting of O.P. Jayana respondent and proved by the handwriting expert R. B. Bhatnagar which is in the nature of opinion evidence. The learned Judge further opined that, there is no evidence that the tenders were directly delivered to respondents 5 to 7 and others by respondents 1 to 4 and; in the absence of such evidence it has to be presumed that these were sent by the section which was dealing with the dispatch thereof. The learned Judge further concluded that the knowledge about the existence of the aforesaid four fictitious firms could also not be imputed to respdts. 1 to 4 as there is no evidence about it and, more so, when it is not denied that such firms did exist in Delhi though on addresses different than the ones mentioned by these four fictitious firms. In respect of job No. 22/29/50-OP the learned Judge observed that even though the rates of BBBH are undoubtedly on higher side but since it was accepted in competition with rate quoted by Indian Press and Sunder Press it cannot be said to be an act of conspiracy. He further observed that, the fact that, in job No. 22/41/60-OP Sunder Press and Indian Press were left out is not material because rates quoted in later job are not much higher than in job No. 22/29/50-OP and the accused have explained that the skilled work involved in clean pasting of transparent slips in the windows occasioned higher costs because of rise in skilled labour wages. The learned Judge, we also observed that in job relating to foreign mail tag labels, the tenders were invited from 11 firms and there was no attempt to eliminate other concerns. The learned Judge was of the view that there was no question of ignoring the lower rate quoted by Imperial Book Depot Press in this regard because ultimately the * order was placed against all the materials including eyelets and in that view of the matter the rates of Imperial Press could not be said to be lowest and, that is what even PW 55 Shri Subramanium had stated that the rate of Imperial Press would be lowest only if eyelets . are not to be affixed. In this way the learned Judge came to the conclusion that the job was given to BBBH on competitive rate and, -therefore, it cannot be said that the job was allotted to respondent 5, as a result of any conspiracy. Moreover, the whole case was put up before higher authorities and only after obtaining their approval the contract was allotted.

9. In respect of job relating to the manufacture of S.B. Ledgers in job No. 22/59/60-OP the learned Judge observed that; in this case the tenders were proposed to be invited from 12 firms. To this B. S. Sharma respondent added Krishna, Albion and Industrial Art Printery and, that it cannot be v said that, Gurbachan Singh and B. S. Sharma eliminated .approved presses. That tenders in fact were received from BBBH. PBBH, Bengal, .Sunlight, Model, Sunder, Vishwabharti and ; Indian Presses. The job was secured by BBBH in competition with these firms and it cannot be said to be as a result of conspiracy.

10. This job is the biggest one involving a sum of Rs. 6,25,000/- and it is in respect of this job that an undue benefit of Rs. 60,000/- is supposed to have been conferred on respondents 5 to 7. The fact that, this job could only be allotted with the sanction of the Ministry which was not procured had also been pressed into service in proof of the existence of conspiracy but, the learned Judge observed and, rightly so, that it was the headache of Mr. Subramanium PW 55 C.C. P & S and not of respondents 1 to 4. He did not attach any importance to the evidence of PW 45 L K. Bhargava who had stated that he could have supplied S. B. Ledgers on a lower rate. The learned Judge observed that, it is not relevant when the admitted case is that job was given to respondents 5 to 7 on a competitive tendering and thus the evidence led in this regard does not furnish a basis for raising an inference that; respondents 1 to 4 indulged in misconduct as a result of conspiracy with a view to cause loss to the government. The learned Judge made reference to the testimony of PW 45 L. K. Bhargava wherein he has admitted that the ledgers in which Titagarh Paper Mill in place of Shri Gopal Paper is used, the rates would be on higher side and that exactly is the case of the accused.

11. Learned Judge has made some observations in respect of the fact that the work in office of C.C. P & S did not proceed in regular or systematic manner and the safeguards provided for securing public interest were thrown over-board one by one during the course of years and that; the higher authorities at the no stage insisted on the conduct of business strictly in accordance with the procedure and instructions. The result was that all these matters led to irregularities, causing loss to the government. The Judge observed that on the facts and evidence and also circumstances of this case it is not possible to hold that these acts of omission and commission were committed by the accused 1 to 4 in pursuance of any conspiracy. The Judge further went on to observe that Gurbachan Singh respondent had been consistently mentioning in his notes about the non-receipt of earnest money from the concerned firms but higher officers did not heed him and, allowed the consideration of quotations without deposit of earnest money. The learned Judge also referred to the fact that the Precedent book which was in fact providing guidelines for inviting tenders etc. and which would have shown as to the firms which were placed on the panel was not seized by the investigating officer and when the accused asked for it during trial the Explanationn tendered was that it has got lost He attached much importance to this fact as according to him, this was deliberately suppressed to deprive the court of finding out what exactly was the state of affairs.

12. We have given our careful consideration to the arguments advanced and we have examined the whole record pertaining to these jobs as also the evidence. Mr. Sachdeva has urged before us that in fact his best evidence is that some of the firms were fictitious and; two of them were sister concerns of BBBH. He urged that the evidence reveals that in most of the jobs the competition in inviting tenders was kept open only to these seven concerns, with a view to enable BBBH to secure jobs and, the learned Judge after virtually returning a finding on all matters in favor of the prosecution dismissed the case on the simple ground that respondents 1 to 4 ^ could not be said to be possessed of the knowledge that these were either sister concerns or fictitious firms. We are of the view that Mr. Sachdeva is trying to over simplify the matter. The learned Special Judge in his long and elaborate judgment has dealt with the matter at great length and he has recorded many reasons for his conclusions. The Judge from our point of view has rightly concluded that no inference of conspiracy on the basis of evidence and the circumstances surrounding the case can be raised. We have already made reference to his observations though broadly.

13. Apart from the reasons advanced by the learned Judge with which we fully agree, we have found some more material in the files pertaining to these jobs which go to strengthen our belief that there is neither any case of conspiracy nor a case of misconduct proved against respondents 1 to 4 and thereforee respondents 5 to 7 can also not be held guilty of having conspired with respondents 1 to 4.

14. Before we make a reference to that important discovery we would like to mention that admittedly a Precedent book is maintained in the office of C.C. P & S where respondents 1 to 4 were serving in OP Section. This Precedent Book assumes importance because of the fact that it is supposed to provide guidelines to the persons who have to invite tenders. This is supposed to give details as to the firm on the Panel and the precedents to be followed in inviting tenders. We understand from the evidence that the practice was that in certain matters tenders were invited openly and in other matters, perhaps, notices were being addressed to the firms on the panel. The department was also maintaining a schedule about the rates and in case of emergency the firms on the panel would be called upon to supply materials on the schedule rates. This was a procedure, perhaps, to meet an emergent situation. In all the jobs before us, the mode of inviting tenders was to invite the same from the firms which were allegedly on the panel. The prosecution case is that these firms to which tenders were addressed were not on the panel of the department. That, however, does not seem to be correct because admittedly BBBH has been supplying material to the department earlier to the period in which the conspiracy is alleged to have come into existence. In any case, the prosecution has not led any evidence to show as to who was on the panel and who were not. This piece of evidence was supposed to be furnished by the Precedent book but for reasons unknown this Precedent book was not seized and; when the accused during trial requested the court to ask' the department to produce it, the reply was that it has been lost. Thus the evidence in this regard was supressed. Under the circumstances we are of the view that the benefit has to go to the accused as; in the absence of that precedent book one cannot be sure as' to whether these firms were there on the panel or not and; the question as to who brought them on panel can also not be answered. As a matter of fact if these firms were brought on panel, it must be the act of higher authorities as, it was a matter pertaining to the policy of the department.

15. Our belief that, this Precedent book was not seized and was deliberately lost with a view to deprive the accused persons of their defense is further strengthened by the fact that; the entire records in respect of these jobs would go to show that in none of these jobs respondents 1 to 4 are decision making authorities. As a matter of fact we have gone through all the job files one by one and we have found that all that the accused had been doing is to invite tenders, opening the same, making comparative study and putting up notes for approval. Most of the jobs are approved by the Controller and one of the jobs worth Rs. 6.25 lakh is approved by Mr. Subramanium C.C. P & S. It will be noticed that, all that these officers are doing is to procure stationery material for various government departments. They are expected to know the preliminaries of the procedures to be followed in procuring that material. It cannot be said, thereforee, that it was not within their knowledge as to how tenders are to be called and dealt with. It also cannot be said that they were not possessed of the knowledge that the rates were to be compared with the previous rates if that was a procedure. In all these cases we have found no such objection has been raised by the officers who finally approved the contract. They have not even raised a query which they were supposed to raise if anything objectionable was found. Most of these jobs have been approved at the level of controller Mr. Sen Gupta. Even when repeat orders were placed these were also placed with the approval of these officers. In the biggest job costing Rs. 6.25 lakh in which undue advantage of Rs. 60,0007- is alleged to have been conferred on the supplier the contract is sanctioned by Mr. Subramanium C.C. P & S. even though it was not within his competence and; he had to procure sanction from the Ministry. Could, in these circumstances, it be said that, the accused were acting on their own? The accused respondents 1 to 4 apparently were mainly doing a sort of clerical job in preparing notes and submitting them for approval. If the rates were on higher side, the officers who approved the job were competent enough to object and refuse to allot the contract. Surprisingly, they have not objected at any stage. Could, under these circumstances, it be said that respondents 1 to 4 were in conspiracy with respondents 5 to 7 and that; the jobs were secured to respondents 5 to 7 by them by misconducting themselves in pursuance of a conspiracy? Could respondents 1 to 4 who were mainly to prepare notes and were not competent to allot or approve the contract enter into a conspiracy for securing jobs to respondents 5 and 7 in the hope that it will be approved? What assurance did they have that the notes they prepared would be approved? The entire record pertaining to job files is replete with the evidence that the fault of respondents 1 to 4 only is that; they invited tenders, made comparative study thereof, and, prepared notes. In all probability this was done by them according to the guidelines given to them and the jobs 'were finally approved by the authorities at the helm of affairs. It would be reasonable to presume that those who approved these jobs did so because the procedure followed was what was expected of them and provided in the Precedent Book. Unfortunately, the record in respect of those guidelines has been suppressed It is, thereforee, difficult to raise an inference of conspiracy, much less, of criminal misconduct against respondents 1 to 4.

16. We may here refer to the testimony of PW1 Shri Milap Singh who has deposed as under:

O.P. Section was maintaining a Precedent register. All the important decisions regarding forming out of jobs to private printers were recorded in it. It was permanent record of our office. The precedent register used to contain decisions taken on files in matter of fixation of rates, for items of works not covered by scheduled rates, decisions taken with regard to enlistment of printers on the panel, decisions taken in files with regard to the inclusion of firms not on the panel (or inviting tenders for binding work etc. We were consulting the Precedent register for guidance.

17. We have already noticed that this important piece of evidence was suppressed. In the first place it was not seized. This alone would have shown to us whether these firms were in the panel or not. The fact that they are fictitious is immaterial as far as respondents 1 to 4 are concerned because the question as to whether respondents 1 to 4 acted in derogation of their duties or not could have only been decided in the light of the fact as to which were the firms placed on the panel and; who was the person who ordered their enlistment. That alone would have made it possible for the court to come to a firm conclusion as to who, if any, was the conspirator. It is thereforee difficult to say that respondents 1 to 4 were in conspiracy with respondents 5 to 7 or that they were deliberately trying to secure jobs for BBBH by eliminating competition. One has to bear in mind the most important fact that in none of the jobs the respondents 1 to 4 are the persons who could allot the contract and; the contracts have been meekly and quietly approved by the officers who could have refused to do so, or if, the procedures were not being followed, they could have raised queries and got the matters clarified. Having failed to do so, it is difficult to raise any inference of conspiracy or of criminal misconduct against respondents 1 to 4. We, thereforee, fully agree with the reasoning advanced by the learned Special Judge in dismissing the case and acquitting the respondents. It may be noted that this case went to the court in 1964 and was decided somewhere in 1975 and we are now in 1985. The accused have virtually been on-trial for the whole of their life. In any case for the reasons given by the learned Special Judge coupled with the observations we have made, we find no merit in this appeal. It is dismissed.


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