State/Cbi/Acb/Silchar Branch Vs. Arun Kanti Ghose (A-2) and anr. - Court Judgment

Excerpt:
- - as well as upon hearing the prosecution and the defence, framed charges against the accused no. it is further submitted that the accused/respondents knowing well that floating of tender is not within their financial power, floated the tender for the work in question and the same having been approved illegally, the learned trial judge committed grave illegality in quitting the accused. that apart the evidence, materials and facts proved in the instant case clearly demonstrate that the accused/respondent was not the sole authority to fix the rate of contract in question in favour of the accused farm. in that case the apex court held that 'having perused the reasonings of the high court, we do not find that the ground which weighed with the high court in acquitting accused ashok kumar and vinod kumar was perverse in any manner and it is well-settled that unless the judgment of acquittal is found to be perverse, the appellate court would not interfere with the same. h.n. sharma, j.1. challenging the legality and validity of the judgment and order dated 12.8.99 passed in special case no. 34 (c)/93 by the learned special judge, assam, guwahati acquitting the accused/respondents, the state (cbi) has filed this appeal against that judgment.2. i have heard mr. d.k. das, learned sr. standing counsel appearing for the appellant, mr. j.m. choudhury, learned sr. counsel assisted by mr. b. m. choudhury, learned counsel appearing on behalf of the respondent no. 1 and mr. a. sattar, learned counsel appearing for the respondent no. 2.3. during the pendency of the appeal, the respondent no. 2 having been expired on 17.11.07 and no substitution having been prayed for by the appellant the appeal against the respondent no. 2, stood abated. during the course of trial another accused namely lolit mohan puri also having expired, the present appeal rests only against the respondent no. 1.4. the prosecution case, as unfolded, is that during the year 1985-86 the accused lolit mohan puri and arun kanti ghose (respondent no. 1) were functioning as addl. chief engineer (e) and suptd. engineer (e) at north eastern electric power corporation ltd. (neepco), shillong respectively. the other accused namely todormal more respondent no. 2 was the managing partner of m/s everwell engineers and co. bokhakhat. the accused persons entered into a criminal conspiracy with the intention to cheat the corporation in awarding a contractual work to accused todormal more at a high rate and in pursuance to the said criminal conspiracy, the accused a.k. ghose floated a short tender notice on 1.6.85 inviting application for execution of the work of interlinking of kopli power house with kopili switch yard by 220 kv double circuit line (d/c) and termination of 132 kv single circuit line (s/c khandong kopili and 220 kv samaguri kopili line on kopili switch yard. in the above tender notice the value of the work was not quoted. however, later on a detailed tender notice was issued mentioning the value of the work at rs. 6 lacs. the last date of issuing tender was fixed on 25.6.85 and the date of the opening date of the tender was fixed 10.7.85.5. in response to the aforesaid tender notice, two tenderers submitted their tender i.e., one by the accused todormal more representing m/s everwell engineers & co. and the other by m/s bombay subarben electric supply ltd. upon receipt of the tenders necessary comparative statements were prepared as per instruction of the respondents. the tender submitted by m/s everwell engineers & co. ltd. being the lowest, a negotiation committee was formed on 25.11.85 to negotiate the rate with the said firm owned by the accused todormal more and on 26.11.85 the accused/respondent issued a letter of intent in favour of the said firm without determining the value of the work. on 26.12.85 the work order was issued by the respondents in favour of the said firm. it is alleged that the value of the work order was fixed at rs. 6 lacs only to facilitate the accused todormal more to deposit the lesser earnest money though the value of the work was more than 11 lacs. accused lolit mohan puri and accused a.k. ghose also did hot cause evaluation of the value of the work by the suptd. engineer (civil) before finalizing the tender. the accused/respondent avoided to examine the reasonability of the rates quoted by the accused todormal more in his tender with the prevailing market rates and the accused lolit. mohan puri approved the exorbitant rates offered by accused and thus caused loss to the corporaton to the tune of rs. 12,64,822/- in awarding the contract. there is also an allegation of tempering with the original tender paper submitted by mr. todormal more with a dishonest intention to enhance the rate of the items no. 10(b), random, revetement in respect of the schedule of rates of 220 kv d/c line from rs. 686/- to rs. 882/- by interchanging the rates with item no. 10(a)'dry stone revetment' and to that effect a corrigendum was issued by him on 18.1.86 and thus helped the said accused to receive enhance payment from the corporation. this interchanging of the rates was not noted in the first comparative statement but it was noted in the second comparative statement prepared at the instruction of the respondents. the respondents/accused forwarded the tenders to the accused lolit mohan puri with his recommendation to negotiate the rates with todarmal more though he knew that this firm a sub-contractor of m/s b.s.e.s. ltd. negotiation with the accused todormal more was also held on 25.11.85 in a committee wherein the accused lolit mohan puri did not point out the facts about the finalisation of the tender without approved drawing, estimate etc. both the accused also accepted the false information furnished by todarmal more regarding the exact location of the site of the said construction.6. as the estimate of the costs increased during the execution of the work so the matter was referred to the tender & purchase committee. the committee finally arrived at a reasonable rate and directed the accused lolit mohan puri to negotiate the rates with todarmal more but the accused more drew an advance of rs. 12,75,000/- for the contract work and submitted four running advance bills for rs. 22,93,614.02. due to the payment made to the accused at the contract rates, the corporation suffered loss of rs. 5,75,057/-.7. upon receipt of the complaint a criminal case being crime no. 3(a) 91 -slc was registered under sections 120b, 420, 467 ipc & 5(1)(d) r/w/s 5(2) of p.c. act 1947 corresponding to section 13(1)(d) r/w 13(2) of p.c. act 1988 against the accused persons. i.o. investigated the case and during the court of investigation the i.o. seized number of documents, recorded the statements of the witnesses under section 161 cr. p.c. and after completion of the investigation, having been found prima facie case, charge sheet was submitted against the accused persons.8. the learned special judge, on the basis of the materials so submitted by the i.o. as well as upon hearing the prosecution and the defence, framed charges against the accused no. 1, lalit mohan puri under section 120b/147 ipc and under section 5(1)(d) of the pc act 1947 and the other accused was charged with section 120(b)/420 ipc. on being explained the charges the accused persons denied the same and claimed to be tried. during the course of trial the prosecution examined as many as 21 witnesses and exhibited 44 numbers document. respondent a.k. ghose examined himself as dw1 and exhibited 7 nos. of documents.9. as indicated above, the accused no. 1 having been expired during the course of trial, the case proceeded only against the remaining two accused persons. it is to be noted herein that during the course of trial the learned trial judge altered the charges against the respondents from section 5(1)(d) of the pc act, 1947 to that of under section 13(1)(d) r/w section 13(2) of the pc act, 1988 which was also explained to them and they denied the same. the learned trial judge, after meticulous consideration of the materials avail: able on record including the statements of the witnesses and documentary evidence, vide impugned judgment and order dated 12.8.99, acquitted the accused persons of the charges and they were set at liberty.10. feeling aggrieved, state/cbi has filed this present appeal. mr. das, learned sr. standing counsel, cbi appearing for the appellant submits that the learned trial judge committed grave illegality in acquitting the accused persons without proper appreciation of the materials available on record. the learned counsel further submits that the charges against the accused, so far it relates to abusing his official position, is that they issued the short tender notice dated 1.6.85 without approval of the detail estimate and technical sanction from the competent authority. it is further submitted that the accused/respondents knowing well that floating of tender is not within their financial power, floated the tender for the work in question and the same having been approved illegally, the learned trial judge committed grave illegality in quitting the accused. mr. j.m. choudhury, learned sr. counsel, on the other hand submits that in spite of the aforesaid short tender notice, subsequent detailed tender notice was issued on the basis of the approved estimate and observing all the formalities and procedures and the learned trial judge rightly acquitted the accused upon proper appreciation of the materials evidence on record which requires no interference at this stage. learned counsel further submits that the present case being an appeal against acquittal, the same is not likely to be interfered with. he also referred to the decision of the apex court reported in (2005) 12 scc 506 (vijai singh v. state of u.p.) and air 1980 sc 99 (k. choy v. syed abdulla bafakky thangal and ors.).11. in support of his argument mr. a. sattar, learned counsel appearing for the respondent no. 2 submits that the respondent no. 2 having been expired on 17.11.07 and his heirs not having been substituted, the appeal stood abatted against him. mr. sattar, however, adopted the arguments advanced by mr. choudhury.12. i have considered the rival submissions made by the learned counsel for the parties. also perused the record of the case. the submission of the learned counsel led me to go through the statements of various prosecution witnesses in order to scrutiny as to whether the learned trial judge misappreciated the statements of the prosecution witnesses and whether it suffers from any perversity on other illegality.13. charges levelled against the accused is under sections 120(b), 420/467 ipc and 13(1)(d) r/w section 13(2) of pc act, 1988. section 120(b) ipc deals with the criminal conspiracy and section 420 ipc deals with punishment for committing offence of cheating and dishonestly inducing delivery of property and section 467 ipc, on the other hand, relates to the punishment of offence committed for forgery of record of court or of public register. section 13(1)(d) relates to the offence of criminal misconduct by a public servant which is punishable under section 13(2) of pc act.14. the crux of the prosecution case as unfolded from the record is that the accused/respondent floated a short tender notice on 1.6.85 (exbt-1) without approved detail estimate and technical sanction from the competent authority which was incorporated in charge no. 1. however, in the said charge itself it is alleged that at subsequent stage, the accused/respondents prepared a detailed estimate mentioning 6 lacs as approximate cost of the work. that apart the aforesaid value covering the aforesaid tender notice is beyond financial limitation as provided under the act. learned pp has submitted that the aforesaid act of the accused amounts to mis-conduct which was committed with a view to obtain pecuniary advantage to the accused todarmal more, owner of the firm m/s everwell engineers & co. ltd. after issuance of the short tender notice vide exbt-1 dated 1.6.85 a detailed tender notice was issued vide exbt-2 on 5.8.85. the detailed tender notice was issued after consideration of the materials facts pertaining to the valuation of the work. the tenders were opened on 10.9.85 but the accused firm m/s everwell engineers co. ltd. being the lowest one, was called upon for necessary negotiation. the said negotiation was done by a committee. prior to it, after opening the tender necessary comparative statement was prepared by recording various rates quoted by the two tenderers. it is an admitted fact that the rate quoted by the accused firm m/s everwell engineers was the lowest. a committee was constituted to allot the work by going through the decision and in the said committee, apart from the accused/respondents, some other high officials of the neepco were also present. the committee submitted its report on 4.7.87 which was proved as exbt.4. the aforesaid report discloses that the negotiation was held on 25.11.85 with the lowest tenderer m/s everwell engineers & co. in the presence of f.a. & c. a.o. and acting c.m.d. (f & a), ace (ei) and acting c.m.d. (tech), s.e. (elect) transmission circle, e.e. (elect), shri k.k. choudhury, and sr. accounts officer (sri s.n. ghose) only after such negotiation with the rate and other matters, work order was issued to the accused firm by the s.e. (elect) transmission circle vide order dated 26.12.85. the report also discloses that during the execution of the work, the volume of the work was increased and revised estimate was prepared for rs. 44.81 lacs after considering the relevant facts. after fmalisation of the negotiation, an agreement was also arrived at with the contractor. the committee also analyzed the rate for excavation and concreting taking into account the reasonable overheads and profit margin as per actual site condition. in the tender submitted by the accused firm there having been found arrow mark at sl. no. 10, the committee also went in details about the same.15. exbt-6 discloses that at sl. no. 10 under the head 'unit rates for other works' in clause (a), it is written as 'random revetment' and in clause (b) it is written as 'dry store revetment'. the respondent examined himself as dw 1 has owned the responsibility that in the exbt-6 i.e., tender submitted by him, it is he who put the arrow marks in view of reverse cyclostyling of the items in the tender form. it is pertinent to mention herein that short tender notice vide exbt-1 was issued on 1.6.85 and the detail tender notice thereafter was issued on 5.8.85. the negotiation between the neepco authority and the accused firm was held on 25.11.85. this goes to show that on the date of negotiation the detail tender notice was very much in existence.16. now let us scrutiny the evidence of the prosecution witnesses as referred by mr. das in support of his argument.17. p.w. 1 is kamakhya ranjan paul who was serving as junior engineer during the relevant time with neepco stated interalia that he prepared the short tender notice exbt-1 dated 1.6.85 and exbt-2 is the detail tender notice. exbt-2 (1) is the signature of the accused/respondent and work was approximately valued at rs. 6 lacs for the purpose of fixing the earnest money. he also stated that estimate of about rs. 11 lacs was prepared after the tender was floated and exbt-3 is the estimate and the exbt-3 was approved by the accused. he further stated that exbts-1 and 2 were prepared on the basis of the data furnished by the accused officer and without detailed survey final estimate cannot be prepared. tentative estimates were prepared before detail survey. he also stated that the value might go up as above in revised estimates. in cross also he admitted that 'estimate value was approx. 6 lacs. same may very' was written by him in exbt1.18. p.w. 2 is k.k. choudhury who was the sub-divisional officer electrical. neepco during the relevant time. he stated interalia that there was a negotiation between neepco and m/s everwell engineers regarding the works of interlinking of kopili power house with kopili switchyard by 220 k.v. dc line and termination of 220 double grant samuguri kopili line. he stated that he was the presenting officer and negotiation was conducted by the accused lalit mohan puri, chairman-cum-managing director in charge, technical neepco and o.p. gupta who was the chairman-cum-managing director in-charge, finance. in-charge s.n. ghose, junior accounts officer was also present. he further stated that exbts-1 and 2 were issued earlier to the negotiation and after negotiation works was awarded to everwell engineers & co. execution of the works began and during the execution, work of construction went up and revised tender estimates were submitted by the executive engineers at site. he also stated that the revised estimate involved expenditure beyond the financial powers of the accused no. 1, puri who was the addl. chief engineer and the matter was referred to standard and purchase committee which was one of the members and the committee submitted its report vide exbt-4. in his cross he admitted that tender and purchase committee was above the addl. chief engineer and he could not say whether any irregularity was committed while floating the tender. he also admitted that exbt-5 does not refer to any irregularity regarding floating of any tender.19. p.w. 3 is ashim dasgupta who was serving as executive engineer (electrical) during the relevant time. this witness corroborated the statement of p.w.2 by and large regarding the constitution of the sub-committee, issuance of exbt-4 and exbt-6. he approved the decision of the tender committee as exbt-11. he further stated that in the subcommittee meeting there was difference of opinion amongst the members in respect of item no. 1. there was no difference of opinion as regards to item no. 2 and hence two separate report was prepared by the subcommittee and exbt-4 is the report.20. p.w. 6 is asshar mahmood khan who was working as technical examiner (electrical) during the period from july 1989 to apri 1, 1994 who undertaken the investigation work pertaining to the contract in question. he stated that during the investigation he found the rates to be quite high in respect of civil work. it was more than double of the prevalent rate. he, however, admitted that for a difficult site the rate may be slightly increased by 20,25 or 30% but in this case it was increased by 400.21. p.w. 7 is shri y.i. singh an officer of the neepco. he proved the tender notice issued by the respondent/sdo and all the technical works of the department. he further stated that normally without approval of the accounts officer, no tender can be floated and he did not find any objection regarding the floating of the tender.22. p.w. 8 who was functioning as superintending engineer during the relevant time stated interalia that after the tpc meeting one sub-committee was formed to negotiate with the party and to report to tpc the result of that negotiation for consideration and decision with m/s everwell engineers. he stated that subject matter of the meeting was to discuss the interlinking of kopili power house with kopili line and kopili switchyard contract agreement with m/s everwell engineers. he further stated that the sub-committee could not negotiate with the firm and the report was submitted to the tpc by lolit mohan puri and the exbt-16 is the report.23. p.w. 9 is siba prasad mazumdar who was the accounts officer of the neepco during the relevant time. he stated interalia that at the time of opening of the tender, there was overwriting and as per rule when there is overwriting, it is necessary to encircle them and sign. he also stated that procedure of floating of the tender is that an estimate is to be prepared based on either on the analysis of rate or schedule of rate. subsequently that estimate is to be administratively sanctioned along with expenditure sanction which is also be required. he also stated about the arrow mark at clause 10(a) and (b) in exbt-6. as there was no encircle or poingint out of any arrow mark so he presumed that this was not made at the time of opening the tender. he stated that after opening of the tender arrow mark was introduced. in cross he stated that tender was floated on the basis of the estimate prepared by neepco. the estimate means the statement comprising break up of item wise work, rate and quantities. estimate also included the total estimated value of the work. at the time of giving detailed tender notice estimated value of the work is to be quoted over the detailed tender notice and exbt-8 is the detailed tender notice. he further stated that exbt-6 was opened in his presence on 10.9.86. the arrow mark in exbt-6 was an added writing. the added writings are not required to be encircled. he further stated that after opening of the tenders it becomes the property of the neepco. he further stated that exbt-9 also contains arrow mark and the corrigendum was issued in this regard. he denied the suggestions that arrow mark in exbt-6 was made subsequently. he denied that the arrow mark was at the time of opening of the tender.24. p.w. 18 is imran hussain hazarika who was the executive engineer during the relevant time. in his deposition he stated interalia that exbt-36 is the estimate prepared by him and his estimate was corrected and fresh estimate was prepare at the circle office and thereafter revised estimate was prepared at superintending engineer's office, silchar neepco.25. learned trial judge considered all the vital aspects of the case in relation to charges framed against the respondents. the learned trial judge scrutinized the evidence of pws and the documentary evidence exhibited in this case by the prosecution. he also considered the fact that the respondent/accused no. 2 owned the responsibility of making arrow mark in exbt-6. dw 1 stated that initials contained therein are of his own the prosecution could not demolish that part of the evidence nor any attempt was made to examine scientifically and analyze the initials put in the arrow mark claimed to have been made by dw 1, is not his, but of accused/officials of neepco.26. the charge of abusing official position as referred to by learned pp is to be examined and scrutinized on the basis of the evidence and materials available on record with reference to the offence alleged. from the statement of the prosecution witnesses it is abundantly clear that the exbt-1 was only a short tender notice and the same was issued for the purpose of depositing earnest money and same may vary at subsequent stage. in fact, a detail tender notice was issued subsequently vide exbt-2. one of the important aspects of the case is that although the tender of the accused farm was the lowest and his tender was not accepted. he was called upon for negotiation on rates and for that purpose a sub-committee was formed. the sub-committee submitted detailed report and after all such consideration, the work was allotted. the proceedings of the tpc meeting dated 13.9.87, exbt-11, disclose that the committee discussed the issue fixing at agenda no. 23 of the meeting held on 13.9.87. the committee after discussion decided that the ce (c&m;) (c) would go into the report submitted by the sub-committee and offer his final recommendation in view of the differences in the analysed rates submitted by the subcommittee. vide exbt.-16 the tender purchase committee discussed the same agenda again but in the said discussion also no offer for rates on the part of the accused/respondent was noted. going through the evidence of the pws and on appreciation, the learned trial judge acquitted the accused persons.27. the crux of the submission made by mr. das as indicated above relates to the abuse of the official position of the accused floating the short tender notice; but from the deposition of p.w. 1, p.w. 2, p.w.3 and p.w. 6 it is amply established that the aforesaid short tender notice was followed by issuing detail tender notice. that apart the evidence, materials and facts proved in the instant case clearly demonstrate that the accused/respondent was not the sole authority to fix the rate of contract in question in favour of the accused farm. as discussed above, the said work was allowed to him after detail discussion at different stages by holding several discussions. admittedly, such discussions/negotiations were held to safeguard the financial interest of neepco and the said negotiations having been arrived at with the participation of responsible officers who were involved in the allotment of said work with due care to protect the financial interest of the corporation. there might be some administrative lapse on the part of the officer of neepco but in order to attract the criminal liability alleging criminal mis-conduct upon public servant, the prosecution is to prove beyond all reasonable doubt that the accused by corrupt or illegal means obtained for himself any valuable or by abusing his position as public servant acted for himself or any other person any valuable thing or by holding office as a public servant upon any person any valuable thing or pecuniary advantage without any interest. rates offered by the accused/firm was not accepted in toto and he was allowed to work on negotiation. had there been any bonafide doubt it was open for the neepco authority even at the stage of consideration by the tender and purchase committee to check the tender of the accused/farm but that was not done. the settlement was arrived at also by the attending responsible officer other then the accused respondents. there is also no evidence to the extent that the accused/respondent by abusing his position as public servant obtained for himself or for any other person any pecuniary advantage. the work in question was of corgent nature as was admitted by p.w. 11 who stated interalia that the superintending engineer (civil) mr. s. nath emphasized the urgency for completing the work immediately.28. p.w. 2 in cross-examination could not say if any irregularity was committed by floating the tender. he further stated that the exbt.-5 which is the detail tender notice did not refer any irregularity regarding floating of any tender. in the absence of any link to connect the accused with the offence charged, in my considered opinion, the learned trial judge was perfectly justified in acquitting the accused persons. no perversity or mis-appreciation of the evidence on materials on record by the learned trial judge could be pointed out to interfere with the judgment of the acquittal. in this connection reference the case of vijai singh v. state of u.p. (supra) as made by mr. choudhury is not out of relevance. in that case the apex court held that 'having perused the reasonings of the high court, we do not find that the ground which weighed with the high court in acquitting accused ashok kumar and vinod kumar was perverse in any manner and it is well-settled that unless the judgment of acquittal is found to be perverse, the appellate court would not interfere with the same.'29. in dealing with an appeal against the acquittal, the high court is to give proper weightage and consideration to matters such as:i. view of the trial judge as to the credibility of the witnessesii. presumption of offence in favour of the accused andiii accused is to be given benefit of doubt.30. the high court is also required to take into account the reasons given by the trial court and to express its reasons which needs to hold that the acquittal is justified. if the conclusion can be based on the evidence on record, the high court should not disturb the findings on acquittal. reference 1975 (3) scc 150/193; 1974 (3) scc 762/288, 1973(2)scc 216 and 1983 (3) scc 629/520. interference in an appeal against acquittal is justified whenever the view of the trial court was found to be wrong and the higher court set aside the reasons given by the trial court, or when the trial court's verdict was perverse or legally erroneous or when the trial court rejected the evidence on flimsy ground and on the ground of minor contradictions and delay.31. another important circumstances in the present appeal is that as on date out of three accused persons only one is surviving. he is respondent no. 1 and the appeal/case against the other accused, have already been closed. framing of the case by the prosecution is such that there are certain inseparable vital aspects in respect of all the accused persons and after abatement of the case against the other two accused persons, the prosecution case has further weakened.32. for all the aforesaid discussion, i do not find any infirmity in the impugned judgment and order of acquittal passed by the learned trial judge.33. consequently, the appeal stands dismissed.

Judgment:

H.N. Sharma, J.

1. Challenging the legality and validity of the judgment and order dated 12.8.99 passed in Special Case No. 34 (C)/93 by the learned Special Judge, Assam, Guwahati acquitting the accused/respondents, the State (CBI) has filed this appeal against that judgment.

2. I have heard Mr. D.K. Das, learned Sr. Standing counsel appearing for the appellant, Mr. J.M. Choudhury, learned Sr. counsel assisted by Mr. B. M. Choudhury, learned Counsel appearing on behalf of the respondent No. 1 and Mr. A. Sattar, learned Counsel appearing for the respondent No. 2.

3. During the pendency of the appeal, the respondent No. 2 having been expired on 17.11.07 and no substitution having been prayed for by the appellant the appeal against the respondent No. 2, stood abated. During the course of trial another accused namely Lolit Mohan Puri also having expired, the present appeal rests only against the respondent No. 1.

4. The prosecution case, as unfolded, is that during the year 1985-86 the accused Lolit Mohan Puri and Arun Kanti Ghose (respondent No. 1) were functioning as Addl. Chief Engineer (E) and Suptd. Engineer (E) at North Eastern Electric Power Corporation Ltd. (NEEPCO), Shillong respectively. The other accused namely Todormal More respondent No. 2 was the Managing Partner of M/s Everwell Engineers and Co. Bokhakhat. The accused persons entered into a criminal conspiracy with the intention to cheat the Corporation in awarding a contractual work to accused Todormal More at a high rate and in pursuance to the said criminal conspiracy, the accused A.K. Ghose floated a short tender notice on 1.6.85 inviting application for execution of the work of Interlinking of Kopli Power House with Kopili Switch Yard by 220 KV Double Circuit Line (D/C) and termination of 132 KV Single Circuit Line (S/C Khandong Kopili and 220 KV Samaguri Kopili Line on Kopili Switch Yard. In the above tender notice the value of the work was not quoted. However, later on a detailed tender notice was issued mentioning the value of the work at Rs. 6 lacs. The last date of issuing tender was fixed on 25.6.85 and the date of the opening date of the tender was fixed 10.7.85.

5. In response to the aforesaid tender notice, two tenderers submitted their tender i.e., one by the accused Todormal More representing M/s Everwell Engineers & Co. and the other by M/s Bombay Subarben Electric Supply Ltd. Upon receipt of the tenders necessary comparative statements were prepared as per instruction of the respondents. The tender submitted by M/s Everwell Engineers & Co. Ltd. being the lowest, a negotiation committee was formed on 25.11.85 to negotiate the rate with the said firm owned by the accused Todormal More and on 26.11.85 the accused/respondent issued a letter of intent in favour of the said firm without determining the value of the work. On 26.12.85 the work order was issued by the respondents in favour of the said firm. It is alleged that the value of the work order was fixed at Rs. 6 lacs only to facilitate the accused Todormal More to deposit the lesser earnest money though the value of the work was more than 11 lacs. Accused Lolit Mohan Puri and accused A.K. Ghose also did hot cause evaluation of the value of the work by the Suptd. Engineer (Civil) before finalizing the tender. The accused/respondent avoided to examine the reasonability of the rates quoted by the accused Todormal More in his tender with the prevailing market rates and the accused Lolit. Mohan Puri approved the exorbitant rates offered by accused and thus caused loss to the Corporaton to the tune of Rs. 12,64,822/- in awarding the contract. There is also an allegation of tempering with the original tender paper submitted by Mr. Todormal More with a dishonest intention to enhance the rate of the items No. 10(b), random, revetement in respect of the Schedule of rates of 220 KV D/C line from Rs. 686/- to Rs. 882/- by interchanging the rates with item No. 10(a)'dry stone revetment' and to that effect a corrigendum was issued by him on 18.1.86 and thus helped the said accused to receive enhance payment from the Corporation. This interchanging of the rates was not noted in the first comparative statement but it was noted in the second comparative statement prepared at the instruction of the respondents. The respondents/accused forwarded the tenders to the accused Lolit Mohan Puri with his recommendation to negotiate the rates with Todarmal More though he knew that this firm a sub-contractor of M/s B.S.E.S. Ltd. Negotiation with the accused Todormal More was also held on 25.11.85 in a committee wherein the accused Lolit Mohan Puri did not point out the facts about the finalisation of the tender without approved drawing, estimate etc. Both the accused also accepted the false information furnished by Todarmal More regarding the exact location of the site of the said construction.

6. As the estimate of the costs increased during the execution of the work so the matter was referred to the tender & Purchase Committee. The committee finally arrived at a reasonable rate and directed the accused Lolit Mohan Puri to negotiate the rates with Todarmal More but the accused More drew an advance of Rs. 12,75,000/- for the contract work and submitted four running advance bills for Rs. 22,93,614.02. Due to the payment made to the accused at the contract rates, the Corporation suffered loss of Rs. 5,75,057/-.

7. Upon receipt of the complaint a criminal case being Crime No. 3(A) 91 -SLC was registered under Sections 120B, 420, 467 IPC & 5(1)(d) r/w/s 5(2) of P.C. Act 1947 corresponding to Section 13(1)(d) r/w 13(2) of P.C. Act 1988 against the accused persons. I.O. investigated the case and during the court of investigation the I.O. seized number of documents, recorded the statements of the witnesses under Section 161 Cr. P.C. and after completion of the investigation, having been found prima facie case, charge sheet was submitted against the accused persons.

8. The learned Special Judge, on the basis of the materials so submitted by the I.O. as well as upon hearing the prosecution and the defence, framed charges against the accused No. 1, Lalit Mohan Puri under Section 120B/147 IPC and under Section 5(1)(d) of the PC Act 1947 and the other accused was charged with Section 120(b)/420 IPC. On being explained the charges the accused persons denied the same and claimed to be tried. During the course of trial the prosecution examined as many as 21 witnesses and exhibited 44 numbers document. Respondent A.K. Ghose examined himself as DW1 and Exhibited 7 Nos. of documents.

9. As indicated above, the accused No. 1 having been expired during the course of trial, the case proceeded only against the remaining two accused persons. It is to be noted herein that during the course of trial the learned trial Judge altered the charges against the respondents from Section 5(1)(d) of the PC Act, 1947 to that of under Section 13(1)(d) r/w Section 13(2) of the PC Act, 1988 which was also explained to them and they denied the same. The learned trial Judge, after meticulous consideration of the materials avail: able on record including the statements of the witnesses and documentary evidence, vide impugned judgment and order dated 12.8.99, acquitted the accused persons of the charges and they were set at liberty.

10. Feeling aggrieved, State/CBI has filed this present appeal. Mr. Das, learned Sr. Standing counsel, CBI appearing for the appellant submits that the learned trial Judge committed grave illegality in acquitting the accused persons without proper appreciation of the materials available on record. The learned Counsel further submits that the charges against the accused, so far it relates to abusing his official position, is that they issued the short tender notice dated 1.6.85 without approval of the detail estimate and technical sanction from the competent authority. It is further submitted that the accused/respondents knowing well that floating of tender is not within their financial power, floated the tender for the work in question and the same having been approved illegally, the learned trial Judge committed grave illegality in quitting the accused. Mr. J.M. Choudhury, learned Sr. counsel, on the other hand submits that in spite of the aforesaid short tender notice, subsequent detailed tender notice was issued on the basis of the approved estimate and observing all the formalities and procedures and the learned trial Judge rightly acquitted the accused upon proper appreciation of the materials evidence on record which requires no interference at this stage. Learned Counsel further submits that the present case being an appeal against acquittal, the same is not likely to be interfered with. He also referred to the decision of the Apex Court reported in (2005) 12 SCC 506 (Vijai Singh v. State of U.P.) and AIR 1980 SC 99 (K. Choy v. Syed Abdulla Bafakky Thangal and Ors.).

11. In support of his argument Mr. A. Sattar, learned Counsel appearing for the respondent No. 2 submits that the respondent No. 2 having been expired on 17.11.07 and his heirs not having been substituted, the appeal stood abatted against him. Mr. Sattar, however, adopted the arguments advanced by Mr. Choudhury.

12. I have considered the rival submissions made by the learned Counsel for the parties. Also perused the record of the case. The submission of the learned Counsel led me to go through the statements of various prosecution witnesses in order to scrutiny as to whether the learned trial Judge misappreciated the statements of the prosecution witnesses and whether it suffers from any perversity on other illegality.

13. Charges levelled against the accused is under Sections 120(b), 420/467 IPC and 13(1)(d) r/w Section 13(2) of PC Act, 1988. Section 120(b) IPC deals with the criminal conspiracy and Section 420 IPC deals with punishment for committing offence of cheating and dishonestly inducing delivery of property and Section 467 IPC, on the other hand, relates to the punishment of offence committed for forgery of record of Court or of public register. Section 13(1)(d) relates to the offence of criminal misconduct by a public servant which is punishable under Section 13(2) of PC Act.

14. The crux of the prosecution case as unfolded from the record is that the accused/respondent floated a short tender notice on 1.6.85 (Exbt-1) without approved detail estimate and technical sanction from the competent authority which was incorporated in Charge No. 1. However, in the said charge itself it is alleged that at subsequent stage, the accused/respondents prepared a detailed estimate mentioning 6 lacs as approximate cost of the work. That apart the aforesaid value covering the aforesaid tender notice is beyond financial limitation as provided under the Act. Learned PP has submitted that the aforesaid act of the accused amounts to mis-conduct which was committed with a view to obtain pecuniary advantage to the accused Todarmal More, owner of the firm M/s Everwell Engineers & Co. Ltd. After issuance of the short tender notice vide Exbt-1 dated 1.6.85 a detailed tender notice was issued vide Exbt-2 on 5.8.85. The detailed tender notice was issued after consideration of the materials facts pertaining to the valuation of the work. The tenders were opened on 10.9.85 but the accused firm M/S Everwell Engineers Co. Ltd. being the lowest one, was called upon for necessary negotiation. The said negotiation was done by a committee. Prior to it, after opening the tender necessary comparative statement was prepared by recording various rates quoted by the two tenderers. It is an admitted fact that the rate quoted by the accused firm M/s Everwell Engineers was the lowest. A committee was constituted to allot the work by going through the decision and in the said committee, apart from the accused/respondents, some other high officials of the NEEPCO were also present. The committee submitted its report on 4.7.87 which was proved as Exbt.4. The aforesaid report discloses that the negotiation was held on 25.11.85 with the lowest tenderer M/s Everwell Engineers & Co. in the presence of F.A. & C. A.O. and Acting C.M.D. (F & A), ACE (EI) and Acting C.M.D. (Tech), S.E. (Elect) Transmission Circle, E.E. (Elect), Shri K.K. Choudhury, and Sr. Accounts Officer (Sri S.N. Ghose) only after such negotiation with the rate and other matters, work order was issued to the accused firm by the S.E. (Elect) Transmission Circle vide order dated 26.12.85. The report also discloses that during the execution of the work, the volume of the work was increased and revised estimate was prepared for Rs. 44.81 lacs after considering the relevant facts. After fmalisation of the negotiation, an agreement was also arrived at with the contractor. The committee also analyzed the rate for excavation and concreting taking into account the reasonable overheads and profit margin as per actual site condition. In the tender submitted by the accused firm there having been found arrow mark at Sl. No. 10, the committee also went in details about the same.

15. Exbt-6 discloses that at Sl. No. 10 under the head 'Unit Rates for other works' in Clause (a), it is written as 'Random revetment' and in Clause (b) it is written as 'Dry store revetment'. The respondent examined himself as DW 1 has owned the responsibility that in the Exbt-6 i.e., tender submitted by him, it is he who put the arrow marks in view of reverse cyclostyling of the items in the tender form. It is pertinent to mention herein that short tender notice vide Exbt-1 was issued on 1.6.85 and the detail tender notice thereafter was issued on 5.8.85. The negotiation between the NEEPCO authority and the accused firm was held on 25.11.85. This goes to show that on the date of negotiation the detail tender notice was very much in existence.

16. Now let us scrutiny the evidence of the prosecution witnesses as referred by Mr. Das in support of his argument.

17. P.W. 1 is Kamakhya Ranjan Paul who was serving as Junior Engineer during the relevant time with NEEPCO stated interalia that he prepared the short tender notice Exbt-1 dated 1.6.85 and Exbt-2 is the detail tender notice. Exbt-2 (1) is the signature of the accused/respondent and work was approximately valued at Rs. 6 lacs for the purpose of fixing the earnest money. He also stated that estimate of about Rs. 11 lacs was prepared after the tender was floated and Exbt-3 is the estimate and the Exbt-3 was approved by the accused. He further stated that Exbts-1 and 2 were prepared on the basis of the data furnished by the accused officer and without detailed survey final estimate cannot be prepared. Tentative estimates were prepared before detail survey. He also stated that the value might go up as above in revised estimates. In cross also he admitted that 'Estimate value was approx. 6 lacs. Same may very' was written by him in Exbt1.

18. P.W. 2 is K.K. Choudhury who was the Sub-Divisional Officer Electrical. NEEPCO during the relevant time. He stated interalia that there was a negotiation between NEEPCO and M/s Everwell Engineers regarding the works of interlinking of Kopili Power House with Kopili Switchyard by 220 K.V. DC Line and termination of 220 Double Grant Samuguri Kopili Line. He stated that he was the presenting officer and negotiation was conducted by the accused Lalit Mohan Puri, Chairman-cum-Managing Director in Charge, Technical NEEPCO and O.P. Gupta who was the Chairman-cum-Managing Director In-charge, Finance. In-charge S.N. Ghose, Junior Accounts Officer was also present. He further stated that Exbts-1 and 2 were issued earlier to the negotiation and after negotiation works was awarded to Everwell Engineers & Co. Execution of the works began and during the execution, work of construction went up and revised tender estimates were submitted by the Executive Engineers at Site. He also stated that the revised estimate involved expenditure beyond the financial powers of the accused No. 1, Puri who was the Addl. Chief Engineer and the matter was referred to standard and purchase committee which was one of the members and the committee submitted its report vide Exbt-4. In his cross he admitted that tender and purchase committee was above the Addl. Chief Engineer and he could not say whether any irregularity was committed while floating the tender. He also admitted that Exbt-5 does not refer to any irregularity regarding floating of any tender.

19. P.W. 3 is Ashim Dasgupta who was serving as Executive Engineer (Electrical) during the relevant time. This witness corroborated the statement of P.W.2 by and large regarding the constitution of the sub-committee, issuance of Exbt-4 and Exbt-6. He approved the decision of the tender committee as Exbt-11. He further stated that in the subcommittee meeting there was difference of opinion amongst the members in respect of item No. 1. There was no difference of opinion as regards to item No. 2 and hence two separate report was prepared by the subcommittee and Exbt-4 is the report.

20. P.W. 6 is Asshar Mahmood Khan who was working as Technical Examiner (Electrical) during the period from July 1989 to Apri 1, 1994 who undertaken the investigation work pertaining to the contract in question. He stated that during the investigation he found the rates to be quite high in respect of Civil work. It was more than double of the prevalent rate. He, however, admitted that for a difficult site the rate may be slightly increased by 20,25 or 30% but in this case it was increased by 400.

21. P.W. 7 is Shri Y.I. Singh an officer of the NEEPCO. He proved the tender notice issued by the respondent/SDO and all the technical works of the department. He further stated that normally without approval of the Accounts Officer, no tender can be floated and he did not find any objection regarding the floating of the tender.

22. P.W. 8 who was functioning as Superintending Engineer during the relevant time stated interalia that after the TPC meeting one sub-committee was formed to negotiate with the party and to report to TPC the result of that negotiation for consideration and decision with M/s Everwell Engineers. He stated that subject matter of the meeting was to discuss the interlinking of Kopili Power House with Kopili Line and Kopili Switchyard contract agreement with M/s Everwell Engineers. He further stated that the sub-committee could not negotiate with the firm and the report was submitted to the TPC by Lolit Mohan Puri and the Exbt-16 is the report.

23. P.W. 9 is Siba Prasad Mazumdar who was the Accounts Officer of the NEEPCO during the relevant time. He stated interalia that at the time of opening of the tender, there was overwriting and as per Rule when there is overwriting, it is necessary to encircle them and sign. He also stated that procedure of floating of the tender is that an estimate is to be prepared based on either on the analysis of rate or schedule of rate. Subsequently that estimate is to be administratively sanctioned along with expenditure sanction which is also be required. He also stated about the arrow mark at Clause 10(a) and (b) in Exbt-6. As there was no encircle or poingint out of any arrow mark so he presumed that this was not made at the time of opening the tender. He stated that after opening of the tender arrow mark was introduced. In cross he stated that tender was floated on the basis of the estimate prepared by NEEPCO. The estimate means the statement comprising break up of item wise work, rate and quantities. Estimate also included the total estimated value of the work. At the time of giving detailed tender notice estimated value of the work is to be quoted over the detailed tender notice and Exbt-8 is the detailed tender notice. He further stated that Exbt-6 was opened in his presence on 10.9.86. The arrow mark in Exbt-6 was an added writing. The added writings are not required to be encircled. He further stated that after opening of the tenders it becomes the property of the NEEPCO. He further stated that Exbt-9 also contains arrow mark and the corrigendum was issued in this regard. He denied the suggestions that arrow mark in Exbt-6 was made subsequently. He denied that the arrow mark was at the time of opening of the tender.

24. P.W. 18 is Imran Hussain Hazarika who was the executive engineer during the relevant time. In his deposition he stated interalia that Exbt-36 is the estimate prepared by him and his estimate was corrected and fresh estimate was prepare at the circle office and thereafter revised estimate was prepared at Superintending Engineer's Office, Silchar NEEPCO.

25. Learned trial Judge considered all the vital aspects of the case in relation to charges framed against the respondents. The learned trial Judge scrutinized the evidence of PWs and the documentary evidence exhibited in this case by the prosecution. He also considered the fact that the respondent/accused No. 2 owned the responsibility of making arrow mark in Exbt-6. DW 1 stated that initials contained therein are of his own The prosecution could not demolish that part of the evidence nor any attempt was made to examine scientifically and analyze the initials put in the arrow mark claimed to have been made by DW 1, is not his, but of accused/officials of NEEPCO.

26. The charge of abusing official position as referred to by learned PP is to be examined and scrutinized on the basis of the evidence and materials available on record with reference to the offence alleged. From the statement of the prosecution witnesses it is abundantly clear that the Exbt-1 was only a short tender notice and the same was issued for the purpose of depositing earnest money and same may vary at subsequent stage. In fact, a detail tender notice was issued subsequently vide Exbt-2. One of the important aspects of the case is that although the tender of the accused farm was the lowest and his tender was not accepted. He was called upon for negotiation on rates and for that purpose a sub-committee was formed. The sub-committee submitted detailed report and after all such consideration, the work was allotted. The proceedings of the TPC meeting dated 13.9.87, Exbt-11, disclose that the committee discussed the issue fixing at Agenda No. 23 of the meeting held on 13.9.87. The committee after discussion decided that the CE (C&M;) (C) would go into the report submitted by the sub-committee and offer his final recommendation in view of the differences in the analysed rates submitted by the subcommittee. Vide Exbt.-16 the Tender Purchase Committee discussed the same agenda again but in the said discussion also no offer for rates on the part of the accused/respondent was noted. Going through the evidence of the PWs and on appreciation, the learned Trial Judge acquitted the accused persons.

27. The crux of the submission made by Mr. Das as indicated above relates to the abuse of the official position of the accused floating the short tender notice; but from the deposition of P.W. 1, P.W. 2, P.W.3 and P.W. 6 it is amply established that the aforesaid short tender notice was followed by issuing detail tender notice. That apart the evidence, materials and facts proved in the instant case clearly demonstrate that the accused/respondent was not the sole authority to fix the rate of contract in question in favour of the accused farm. As discussed above, the said work was allowed to him after detail discussion at different stages by holding several discussions. Admittedly, such discussions/negotiations were held to safeguard the financial interest of NEEPCO and the said negotiations having been arrived at with the participation of responsible officers who were involved in the allotment of said work with due care to protect the financial interest of the Corporation. There might be some administrative lapse on the part of the officer of NEEPCO but in order to attract the criminal liability alleging criminal mis-conduct upon public servant, the prosecution is to prove beyond all reasonable doubt that the accused by corrupt or illegal means obtained for himself any valuable or by abusing his position as public servant acted for himself or any other person any valuable thing or by holding office as a public servant upon any person any valuable thing or pecuniary advantage without any interest. Rates offered by the accused/firm was not accepted in toto and he was allowed to work on negotiation. Had there been any bonafide doubt it was open for the NEEPCO authority even at the stage of consideration by the tender and purchase committee to check the tender of the accused/farm but that was not done. The settlement was arrived at also by the attending responsible officer other then the accused respondents. There is also no evidence to the extent that the accused/respondent by abusing his position as public servant obtained for himself or for any other person any pecuniary advantage. The work in question was of corgent nature as was admitted by P.W. 11 who stated interalia that the Superintending Engineer (Civil) Mr. S. Nath emphasized the urgency for completing the work immediately.

28. P.W. 2 in cross-examination could not say if any irregularity was committed by floating the tender. He further stated that the Exbt.-5 which is the detail tender notice did not refer any irregularity regarding floating of any tender. In the absence of any link to connect the accused with the offence charged, in my considered opinion, the learned trial judge was perfectly justified in acquitting the accused persons. No perversity or mis-appreciation of the evidence on materials on record by the learned trial Judge could be pointed out to interfere with the judgment of the acquittal. In this connection reference the case of Vijai Singh v. State of U.P. (supra) as made by Mr. Choudhury is not out of relevance. In that case the Apex Court held that 'having perused the reasonings of the High Court, we do not find that the ground which weighed with the High Court in acquitting accused Ashok Kumar and Vinod Kumar was perverse in any manner and it is well-settled that unless the judgment of acquittal is found to be perverse, the appellate court would not interfere with the same.'

29. In dealing with an appeal against the acquittal, the High Court is to give proper weightage and consideration to matters such as:

i. View of the trial judge as to the credibility of the witnesses

ii. Presumption of offence in favour of the accused and

iii Accused is to be given benefit of doubt.

30. The High Court is also required to take into account the reasons given by the trial court and to express its reasons which needs to hold that the acquittal is justified. If the conclusion can be based on the evidence on record, the High Court should not disturb the findings on acquittal. Reference 1975 (3) SCC 150/193; 1974 (3) SCC 762/288, 1973(2)SCC 216 and 1983 (3) SCC 629/520. Interference in an appeal against acquittal is justified whenever the view of the trial court was found to be wrong and the higher court set aside the reasons given by the trial court, or when the trial court's verdict was perverse or legally erroneous or when the trial court rejected the evidence on flimsy ground and on the ground of minor contradictions and delay.

31. Another important circumstances in the present appeal is that as on date out of three accused persons only one is surviving. He is respondent No. 1 and the appeal/case against the other accused, have already been closed. Framing of the case by the prosecution is such that there are certain inseparable vital aspects in respect of all the accused persons and after abatement of the case against the other two accused persons, the prosecution case has further weakened.

32. For all the aforesaid discussion, I do not find any infirmity in the impugned judgment and order of acquittal passed by the learned trial Judge.

33. Consequently, the appeal stands dismissed.