State of Punjab vs Narinder Singh

Harbans Singh Rai, J.

Narinder Singh, retired Chief Engineer, Tarsem Lal Singla, Executive Engineer, Narinder Parshad, ADE and Banke Bihariwere sent up for trial for offences punishable under Sections 5(1)(d) and 5(2) of the Prevention of Corruption Act, 1947 and Sections 420/120B IPC before Shri R. M. Gupta, Special Judge, Ropar. He vide his order dated November 20, 1989 declined to frame charge and discharged the accused.

The State of Punjab, feeling aggrieved, has filed this revision.

A complaint was filed by M/s Laxmi Udyog against the accused which was enquired into by the Chief Engr., Vigilance, Irrigation Dept. After the enquiry by the Chief Engineer, Vigilance, Irrigation Department, Govt. had granted sanction for the prosecution of accused and a case was registered by the Superintendent of Police, Vigilance, PS1, Punjab, Chandigarh who held investigation and finally filed a report dated March I, 1989 under Section 173 Cr.P.C. which is as under

"Sir,

Brief facts of the case are that on the complaint of M/s Lakshmi Udyog, Rohtak matter regarding the sale/disposal of empty cement bags by Satluj Yamuna Link, SYL Canal Project Organization was referred to Chief Engineer, Vigilance and Quality Control Irrigation Works, Punjab, Chandigarh by the Irrigation Department of the Punjab Government vide letter No. 14/78/871 PPJ (6)/10868, dated 2688 for enquiry. The enquiry was conducted by Shri B.S. Shaheed Technical ExaminerII and Vigilance Officer, I.B. Punjab. Patiala. The enquiry report was submitted to Secretary. Irrigation and Power Department, Punjab, Chandigarh under the signature of Shri P.D. Khanna, Chief Engineer, Vigilance and Quality Control Irrigation Works, Punjab, Chandigarh and this report was sent to Chief Director Vigilance Bureau, Punjab, Chandigarh by Shri Rajinder Singh, IAS, Secretary Irrigation and Power, Punjab, Chandigarh vide D.O. letter No. 18/43/88IPPI(I)/20542, dated 26/2710.88. On the basis of this letter, I sent a ruqa on 5189 to SHO/PS Ropar for the registration of case, on the basis of which this case was registered against the accused mentioned in column No. 4. The investigation has been conducted by me and the following circumstances have been revealed from the investigation :

On 2241987 office of the Chief Engineer, Construction SYL Canal Project Punjab, Chandigarh issued notice inviting tenders in the Newspaper for the sale of 20 lacs empty cement bags. In this tender notice there is neither detail regarding classification of empty cement bags nor the condition of "as is where is" basis is mentioned. The arrival of tenders was fixed upto 1.00 P.M. on 21587. But Shri T.L. Singla, XEN (accused) extended the time to receive the tenders upto 2.45 P.M. on 21587. In this connection 7 valid tenders were received. Comparative statement `A'' and `B'' prepared by Shri N.P. Anand, Asstt. Design Engineer (Project) which was inspected by Shri T.L. Singla, XEN. The above tenders gave their own classification in the tenders whereas the classification was not mentioned in the tender notice which were not comparable and the classification of empty cement bags was not obtained from the Field Staff before 21587. The comparative statement `B'' was prepared on the basis of assumed statistics regarding the percentage of classification which had no basis and the rate of Rs. 10 offered by M/s Shakti Traders, Amritsar for the water lodged/damaged and torn empty cement bags was not considered at the time of preparing the comparative statement On the basis of above comparative statement, Shri N.P. Anand, Asstt. Design Engineer Project (accused) prepared the proposal dated 1687. In this proposal also the rate of Rs. 20 per hundred empty cement bags offered by M/s Shakti Traders Amritsar regarding the water lodged/damaged/torn empty cement bags was over looked and on the basis of, assumed statistics the average rate of M/s Shakti Traders Amritsar was worked out 89.19 paise per hundred empty cement bags which was the highest. Earlier tenders were called by XEN, Mechanical Division, Kurali for the sale of one lac empty cement bags and the highest rate offered by the tenders was Rs. 85/ per hundred empty cement bags on "as is where is" basis and Superintending Engineer, SYL Canal Project Circle No. 2 Punjab, Chandigarh had referred the matter for the approval of sale of 2 lac empty cement bags to the office of Chief Engineer, SYL Canal Project, Punjab, Chandigarh. In the said tender the condition of "as is where is" basis was imposed for the sale of empty cement bags. This matter was pending for approval in the office of Chief Engineer, SYL Canal Project at the time when tenders for the sale of 20 lac empty cement bags were invited and this also finds mention in the sale proposal of 20 lacs empty cement bags. Shri T.N. Singla, YEN (accused) sent the case of tenders of 20 lac cement bags to Chief Engineer for approval vide his Note dated 687, where in it was recorded that uniform rates were not offered by the tenders and the direct comparison was not possible. But keeping in view the special details given in the tender of M/s Shakti Traders, Amritsar the rate of the said firm was the highest and 4 types of rates have been offered and the classification might be left to be concerned XENs and the matter was put up before the Chief Engineer for the approval of rate offered by M/s Shakti Traders, Amritsar. Shri N.S. Gill, Chief Engineer (accused) gave his approval on 2687. The orders were issued vide letter No. 699/SYL/Construction/87/PR61, dated 4687 to Superintending Engineer, SYL Circle No 2, Punjab, Chandigarh for the disposal of 5 lac empty cement bags on the basis of above said approval. In these orders 4 different rates were mentioned for 4 different categories of empty cement bags and these orders bear the signature of Shri T.L. Singla, XEN. In this order it is specially mentioned that approval has been given by Chief Engineer Construction. SYL Canal Project, Punjab, Chandigarh under Rule serial No. 28, PFR VolumeI, whereas in this case Sr. No. 27 of Rule 19.14A, PFR VolumeI is applicable wherein the Chief Engineer was made competent to declare certain store surplus unserviceable upto Rs. 50,000/. In this manner Sh. N. S. Gill, Chief Engineer dishonestly abused his official position by giving approval to rates offered by M/s Shakti Traders, Amritsar which were worked out on assumption basis. After opening the tenders of 20 lac empty cement bags in letter No. 68283/SYL/Const./87/FR61, dated 22587 was issued by Chief Engineer, Canal SYL Punjab to Superintending Engineer, SYL CircleII, Punjab, Chandigarh wherein it was mentioned that the tenders for empty cement bags were opened on 21587 and highest rate of Rs. 110/ per hundred empty cement bags was offered for such empty cement bags where colour was not faded and "Kanni Cut", Query was also made if such type of empty cement bags were available or not. Copy of this letter was also sent to Superintending Engineer, SYL Circle No. if, Punjab, Chandigarh for getting above information. This rate was at par with the highest rate offered by M/s Lakshmi Udyog Rohtak and at the time of opening tender on 21587 at 3.00 P.M. it was declared in the presence of tenders that the rate offered by M/s Lakshmi Udyog, Rohtak was the highest. It has been revealed from the investigation that the enclosures attached with the quotation M/s Shakti Traders, Amritsar which is on a printed letter pad of the firm and written by the proprietor of the said firm wherein it has been mentioned that 22 paise per bag shall be offered more than the rate offered in 1st class bag. This enclosure was attached after the opening of the tender, at the time of opening the tender. This rate was not read out in the presence of the tenders. Sh. N.S. Gill, Chief Engineer Construction Canal Project, Punjab, Chandigarh gave approval on 31887 to place order for 5 lac more empty cement bags with M/s Shakti Traders, Amritsar. After the retirement of Sh. N. S. Gill, Chief Engineer (accused) on 311287 matter was placed before Sh. V. Gopal Krishnan Chief Engineer, by S/Sh. N.P. Anand and T. L. Singla, XEN (accused) to get the approval regarding the release of 10 lac remaining empty cement bags. Sanction was given by him for the release of 55 lac empty cement bags on 7388 and 10588. On the basis of release orders issued by the office of Chief Engineer. Construction SYL 17,91,39 empty cement bags of 4 different categories were sold to M/s Shakti Traders, Amritsar at different rates by the Satluj Yamuna Link Canal Organization. The amount of Rs. 8.45,362.54 was received from the said firm. In this manner the average rate of cement bags sold comes to 47 paise per E.C. bag. If this rate is compared with the tender rate of Rs. 85 per hundred empty cement bugs which was sent by XEN, Kurali Mechanical Division for approval to the Chief Engineer, Construction SYL Punjab, Chandigarh which was not approved then the SYL Organization was put to a loss of Rs. 6,77.340.61 in the year 1971988. SYL Organization sold the cement bags at the rate of Rs. 80 to Rs. 150/ per hundred on the basis of "as is where is" at the level of XENs. But Sh. N.S. Gill, Chief Engineer, T.R. Singla, XEN and N.P. Anand, Asstt. Design Engineer (accused) while abusing their official position centralised the sale of empty cement bags on 22487 and in connivance with M/s Shakti Traders, Amritsar approved the tender for the sale of 20 lac cement bags at the highest rate arrived at on the basis of wrong statistics and SYL Canal Organization was put to loss. Evidence has come on the file to challan the accused and the accused are on bail from the court of Additional Session Judge, Ropar. Challan against accused of column No. 4 is submitted for trial".

When the case came up for charge, the accused filed an application for summoning some documents, photostat copies of which were attached with the application. The accused alleged that these documents were relevant for consideration before framing the charge. This application was opposed by the Additional Public Prosecutor who challenged the right of the accused to summon the documents. The learned Additional Sessions Judge, Ropar i.e. the Special Judge Ropar vide his order dated October 19, 1989 allowed the application and directed the Additional Public Prosecutor to admit or deny the genuineness of the documents. The learned Additional Public Prosecutor admitted the documents and the learned trial Judge discharged the accused disbelieving the prosecution case. In disbelieving the prosecution case, the learned trial Court relied heavily on the documents produced by the accused and admitted by the learned Additional Public Prosecutor.

The documents filed by the accused are not original documents. Documents mentioned at Serial No. 1 to 16 are photostat copies and documents mentioned at Serial No. 17 and 18 are stated to be connected with the documents photostat copies of which have been produced. As the Additional Public Prosecutor admitted the documents which related to different departments of the Government and whose photostat copies were produced, I issued a notice to the Additional Public Prosecutor to hear him as to under what circumstances he admitted the documents pertaining to different departments of the Government, of which only photostat copies were produced. He filed his reply on September 12, 1990 stating therein that he had opposed the application of the accused for summoning certain documents on the groundthat the accused had no right to summon or produce any document before framing a charge. The trial Court vide its order dated October 19, 1989 allowed the application and directed him to admit or deny the documents. He consulted Mr. Sukhdev Singh Tiwana, Superintendent of Police, Vigilance Bureau Punjab who advised him to admit the documents as if the documents were not admitted, the accused will summon the record and it will delay the trial. Accepting the advice of Mr. Sukhdev Singh Tiwana, the learned Additional Public Prosecutor states that he admitted the documents.

Section 294 Cr.P.C. provides that "where any document is filed before any Court by the prosecution or the accused, the opposite party i.e. if the document is filed by the accused the prosecution or if the document is filed by the prosecution then the accused can be called upon to admit or deny the genuineness of document.

To decide the genuineness of the document, the original has to be before the Court or if the document is a public document, its certified copy will suffice. In this case some of documents admitted by the Additional Public Prosecutor are private documents. Some relate to the correspondence between the different offices of the States and some are orders passed by different officers in the proceedings pending between the department and the accused. It is not clear how Mr. Sukhdev Singh Tiwana or the Additional Public Prosecutor, incharge of the case, could vouchsafe the genuineness of the documents relating to different offices of the State. The action of Additional Public Prosecutor in admitting the documents at the instance of Mr. Sukhdev Singh Tiwana without himself being satisfied about the genuineness of the documents or making any enquiry from the department concerned to which the documents relate is not to be appreciated. The Additional Public Prosecutor should acted more responsibly and should have applied his mind independently and then admitted or denied the documents.

According to the broad features of the case, the prosecution allegation is that a loss of more than 6 lacs was caused to the Government and a corresponding gain of same amount accrued to Mr. Banke Bihari, proprietor of M/s Shakti Traders as a result of conspiracy between all the four accused. As high Government officers including Chief Engineer were involved, an enquiry was ordered to be conducted by the Chief Engineer, Vigilance Irrigation Department. When he found substance in the complaint then it was ordered that the Superintendent of Police, Vigilance Department should enquire and it was only after their reports that Government accorded sanction. A case was registered and the investigation was conducted by Superintendent of Police Vigilance. The Investigating Agency alongwith the report under Section 173 Cr.P.C. filed a list of 159 documents upon which it relied. It also filed a list of 42 witnesses who were to be examined in the case. The list included senior Government officers. The learned trial Judge rejected the prosecution case at the initial stage and held that there was no case against the accused worth framing charge.

The facts leading to this prosecution are that empty bags of cement were lying at different places and the usual practice was that they were sold by the respective Executive Engineers. Executive Engineer, Kurali in routine called for tenders for selling one lac empty bags of cement which were lying in his Division. Tenders were to be opened on April 21 1987.

The office of Chief Engineer, SYL directed Executive Engineer, Kurali on April 15, 1987 not to open the tenders as Chief Engineer''s office wanted to sell the empty bags lying in various Divisions through the Central Agency of the Chief Engineer''s office. The Executive Engineer Kurali opened the tenders on April 21.11.87 as the letter dated April 15.1.87 had not reached his office by that date. This letter reached his office on April 23, 1987.

The office of the Chief Engineer called for the tenders for selling 20 lacs of empty cement bags. According to the prosecution, as there was conspiracy it was not done on the basis of "as is where is" as was the usual age old practice of the Irrigation Department. Seven tenders were filed by different parties and M/s Shakti Traders was one of them. Mr. Tarsem Lal Singla, Executive Engineer and Narinder Harshad Anand ADE accused who were dealing with the opening of the tenders submitted a detailed note to Shri Narinder Singh Gill, Chief Engineer for sanction of the tender in favour of M/s Shakti Traders. This was accepted by Chief Engineer Narinder Singh Gill accused.

12 The Investigating Agency gathered a number of circumstances to show that there was a conspiracy to benefit the accused by accepting the tender and wanted to establish the same by witnesses and the documents relied upon by the prosecution in the report under Section 173 Cr.P.C.

The learned Additional Public Prosecutor appearing for the State relied upon State of Bihar v. Ramesh Singh, AIR 1977 Supreme Court 2018 and urged that the case of the prosecution is established for framing of the charge, from the documents, statements of the PWs and the circumstances of the case.

The learned trial Judge held that the judgment relied upon by the prosecution is not applicable to the facts of the case as the case referred in the judgment was under Section 227 Cr.P.C. which procedure was not applicable to this case and the learned trial Judge held that the procedure provided in Section 239 Cr.P.C. was applicable to the proceedings of the present case and refused to take note of this authority. The learned trial Judge then examined the statements of the PWs and the documents relied upon by the accused and held that the case is not made out for charge.

According to Mr. Jagan Nath Kaushal, the learned Special Judge had remarked at more than one place that there is no allegation that any gratification had been given to any of the official accused. This, according to Mr. Kaushal, is wrong reading of Section 5(1)(d) of the Prevention of Corruption Act. Abuse of official position for the purpose of giving benefit to somebody is also an offence and passing of illegal gratification is not the sine qua non of the offence.

Mr. Kaushal has further contended that the chain of events and broad features of the case lead to an irresistible conclusion that the entire transaction was the result of a conspiracy and was not done in routine. He has referred to the fact that there was no need of departing from the usual practice of calling the tenders on the basis of clause as is where is. Even if it is assumed that there was really emergency for getting the godowns vacated, the quickest method of disposal was on the basis of `as is where is''. In the present case, the various bidders were asked to go and see for themselves in the various stores, the kind of empty bags available. If the tenders had been called on the basis of as is where is it was not necessary to give even one month''s time. This act is suggestive of malafide intention.

Mr Kaushal has further contended that at the time of giving tenders, M/s Shakti Traders were allowed to attach an extra sheet saying that they will pay 22 paise per bag extra over and above 89 raise quoted for first class bags if the bags were of a particular description given by it. No other tenderer was allowed to attach any extra sheet varying the rates quoted by them. Mr. Kaushal has further contended that oral evidence was available and was to be led to show that at the relevant time, it was enquired by Tarsem Lal, Executive Engineer from Naresh Kumar of M/s Satya Narain Naresh Kumar as to what was the highest rate quoted by him so that this information could be passed on and was in fact passed on to M/s Shakti Traders. While preparing the note for the sanction of tender from the Chief Engineer, a comparative statement was wrongly prepared. The average rate per bag was worked out by not taking into consideration the fourth category of 20 paise per bag. The accused prepared the note on the basis of assumptions for which there was no information available. The rate which was quoted before the Executive Engineer, Kurali was 85 paise per bag irrespective of the quality of the bag whereas the average worked out by the office of Chief Engineer resulted in getting much lower rate.

Again Mr. Kaushal has argued that although the average rate worked out was on the basis of three categories of bags yet the sanction conveyed to M/s Shakti Traders and all concerned authorities talked of four categories including the last category of 20 paise which was not considered at the time of working out the average rate. When the bags were ultimately sold, 45% of the bags were of this category which were sold at the rate of 20 paise per bag.

Mr. Kaushal has argued that the learned trial Judge while discharging the accused, has made observations regarding the evidence of Naresh Kumar and Gian Chand Aggarwal saying Both these PWs seem to have made wild statements to help the prosecution. If Mr. Singla was present in the office at 2.30 p.m. where he had asked Naresh Kumar about the rates of bag, there was no question of his coming together with the representative of accused number 4 in a car at 2.45 P.M".

The learned counsel has submitted that unless both these witnesses are examined and given a chance to make their statements, their evidence could not be rejected by holding that the witnesses had made wild statements or to dislodge the version given by them in their statements under Section 161 Cr.P.C.

Mr. Kaushal has further argued that the learned Judge has not properly read the statements of Bhagat Singh and Gurcharan Singh, Executive Engineers, recorded under Section 161 Cr.P.C. He was referred to certain portions of their statements mentioned in the judgment which they never made. The prosecution should have been allowed to put these witnesses in the witnessbox.

The quotations received by the Executive Engineer, Kurali for the disposal of bags @ 85 paise per bag was stated by the accused to be bogus and the learned trial Judge agreed with that contention by holding "In my opinion, the contention of the accused is correct by referring to the documents on record" The Judge has fallen into this serious mistake by misreading the record.

He also observed that :

"Only, two quotations were received in response to the Executive Engineer''s invitation and those two seem to have been given by one person. Copies of quotations have been placedon the record by the prosecution. These are by Satpal of Patiala and Satpal of Anandpur Sahib. Both these quotations find words "Prati Sankra (per hundred) in Punjabi to have been added in these quotations by one person".

These observations are against the record. There were in fact three quotations. The words "Prati Sankra" are found in the quotation of Satpal Bardana Store, Patiala and in the quotation given, by Anmol Trading Company, Patiala. No such words are found in the quotation given by the Satpal Kabaria of Anandpur Sahib. Moreover, the quotation of Satpal Kabaria is in English and not in Punjabi. The learned Judge omitted to notice that the quotations were not by two persons but these were by three parties.

Mr. Kaushal has referred to further observation which according to him, is made against the record, that is "the demand drafts submitted by both the alleged bidders have been issued by one and the same Bank and bear consecutive serial numbers".

It is argued that the consecutive serial numbers of the Bank namely 88977 and 889976 are on the quotations of Satpal Bardana Store, Patiala and Anmol Trading Company, Patiala and not on the quotation given by Satpal Kabaria of Anandpur Sahib. The prosecution case mainly was that by ignoring the rate of 85 Ps. per bag, the tender of M/s Shakti Traders was accepted on the basis of average rate wrongly calculated and that resulted in the loss of over Rs. 6 lacs to the Government and corresponding gain to M/s Shakti Traders. The learned Judge has given a finding without anybasis that the proposal received by Executive Engineer, Kurali was bogus. This finding is based on wrong appreciation of evidence.

Again Mr. Kaushal has contended that the trial Judge has observed that Mr. Sandhu who has been cited as a Witness has not supported the prosecution. The trial Judge has stated that Mr. Sandhu contrary to his statement under Section 161 Cr.P.C. had written earlier that empty bags were likely to get unserviceable due to rain and white ants and had written that the bags may be disposed of at an early date. Mr. Sandhu has made the following statement under Section 161 Cr.P.C.

"I remained posted as Superintending Engineer, Circle No. 3, SYL Punjab, Chandigarh from 11284 to 30488. Shri NS. Gill was Chief Engineer in SYL at that time who had retired on 311287. Letter No. 56770/,SYL/Construction/87/PR61 dated 22487 regarding the disposal of EC bags was received from the office of Chief Engineer, Construction. It was ordered in this that EC bags may not be sold at our level and the quantity of EC bags and location of the store may be intimated. To collect this information I sent this letter with my endst. No. 4385/3A (NIT) dated 29487 to the Executive Engineer, Rajpura, Mechanical Division, SYL Canal Project. Thereafter letter No. 58790/SYL Construction/87/PR61 dated 29487 was received from the office of Chief Engineer Construction SYL in this connection. Again letter No. 4547/5A dated 75 87 was issued to Executive Engineer Rajpura Mechanical Division SYL, Canal Project on my behalf. Chief Engineer, Construction SYL Carla[ Project asked vide No. 60306/SYL/Const./87/PR61 dated 4587 if EC bags have ever been sold in our circle then what was the tender rate. Letter No. 61015/SYL/Const./87/PR61 dated 11587 was received in this connection. Letter No. 4935/IS dated 15587 was written to Shri N.S. Gill, Chief Engineer, Construction on my behalf to decide the tender at an early stage because there were chances to receive the cement in huge quantity. I was dealing with the supply of cement and after receiving the cement XEN, Rajpura Mechanical Division used to issue to other SubDivisions. The above letter was written on the basis of allocation of cement to SYL by the Government of India but this cement was received very less quantity i.e. 20%/25%. Due to non supply of cement levey cement had to be taken in the month of September/October 1987. So due to this no problem occurred for storage of the cement because the cement lying in the stores for 4/5 months was used. Due to that reason there was space was for storage. Beside this Rajpura Mechanical Division disposed of the empty bags on receipt of the sanction for disposal. Executive Engineer, Rajpura Mechanical Division, SYL Canal Project arranged the auction of empty bags of cement and 73 paise per bag was the highest bid of 50000 empty cement bags and for approval the case was received in my office vide No 370/16A dated 9387 which was marked to the concerned Assistant but no further proceedings were carried out. This letter was signed by Shri Atma Ram Kumar Executive Engineer whose signature I identify. Letter No. 682 /SYL/Const/87/PR61 dated 22587 was received from the office of the Chief Engineer Construction regarding the tenders of empty cement bags in which this was intimated that the highest bid of `A'' Class bags was Rs. 110/per hundred bags and it was inquired whether this type of bags were available in the store. Its reply was sent vide letter No. 5307/IS dated 22587. It was explained that it was difficult to intimate that the bags of this particular specification were available in the stores, tenders can see the conditions of the Empty Cement bags. This letter bears my signatures, which is correct, which was sent to Shri T.L. Singla, Executive, Engineer for his notice. Letter No. 699/SYL/Const./87/PR 61 dated 4687 was received for the disposal of 4 lacs Empty Cement bags. JUDGMENTs were passed for giving the 4 types of empty cement bags at 4 different types to M/s Shakti Traders. In this regard letter No. 3162/1M dated 6887 was written on my behalf to Chief Engineer, Construction, SYL Canal Project. Ibis was pointed out in this letter that Chief Engineer is authorised to declare the surplus store upto 50000/ under Rule 14(A) Sr. No. 21 per VolI. Store can be auctioned on its being surplus. It was also pointed out in this letter that the Superior office has ordered in writing so compliance of this was possible. But I pointed out that it may viewed that this sanction was given under Rule 19.14(A) Sr. No. 28 per VolI. The above letters which were received from the office of Chief Engineer bear the signature of Shri T.L. Singla, Executive Engineer and I identify those signatures. Letter No. 833/STYL/Const./87/PR61 dated 17787 was received from the office of Chief Engineer, Construction SYL, Punjab, Chandigarh for the disposal of two lacs empty cement bags and these EC bags were to be given to M/s Shakti Traders, Amritsar and were classified in 4 different types at 4 different rates. This classification was to be done by the concerned Executive Engineers. This letter bears the signatures of T.L. Singla, Executive Engineer and identify the same.

I have heard the statement which is correct".

The learned trial Judge has disbelieved Mr. Sandhu relying upon some correspondence alleged to have been made by Mr. Sandhu, the photostat copies of which the accused had filed and Additional Public Prosecutor had admitted. Mr. Kaushal contends that Mr. Sandhu has been condemned and his statement under Section 161 Cr.P.C. has been disbelieved without affording him an opportunity to explain the contradiction, if any. The trial Judge was not entitled to disbelieve a witnesses on the ground that he has made two inconsistent statements unless the witness is examined and procedure under Section 145 of the Indian Evidence Act is complied with. The learned trial Judge should have waited for the witness to come in the witness box and then he should have given the finding whether the witness''s statement under Section 161 Cr.P.C. is correct or earlier correspondence alleged to have been made by him is correct.

The learned trial Judge again has held :

"Much stress has been laid by the prosecution on the fact that in the comparative statement prepared by the SDO and approved by the XEN, undue weightage has been given to the rates given by accused No. 4. It is charge of the prosecution that rate of 20 ps. for `D'' class bags has not been considered and thereby higher average was worked out to benefit the accused. I have gone through the noting made by the XEN on comparative statement made by the SDO. It cannot be stated that any undue weightage was given by them. The rates quoted by each and every party were not mentioned. It was only accused No. 4 who has given rates for 4 categories of bags. None of remaining firms quoted for the 4th category. So the rate of 20 P. per bag could not be compared with the rate of any other firm".

A few lines later, it was again observed.

"Since no rate was given for `D'', type the rate of 20P per bag was ignored. The average by taking into account three categories of bags admittedly worked out to be in favour of accused No. 4 these having been the highest average".

According to Mr. Kaushal, these observations are against the record.

Mr. Kaushal has further argued that another fallacy into which the learned trial Judge has fallen is that if this category was taken into consideration by the Chief Engineer''s office, the rates quoted by M/s Shakti ''Traders would still have been the highest which is wrong arithmetically. It is ordinary arithmetic that if the average of the four categories mentioned in the tender of M/s Shakti Traders is worked out, it will come lower than Rs. 89/ per 110 bags. In fact the learned Special Judge and the learned counsel for the accused in the High Court are also arguing on the basis of the same fallacy.

Mr. Kaushal has further argued that another argument taken in the judgment as well as before this Court is that there is no scope for any conspiracy because the classification had to be done at the time of sale by different Executive Engineers in the field. It is forgotten that once the sanction of the Chief Engineer for the rates was conveyed to the field staff regarding 4 categories, the conspiracy came to an end. The field staff was only doing a ministerial act and as is apparent from the resultant sale of bags, the majority of bags were sold in the `D'' category @ Rs. 20/ per 100 bags. This category in fact constituted 45% of the total bags sold. As already stated while preparing comparative statement, this category was completely ignored. If the rate quoted before XEN Kurali of 85 P. per bag was accepted on the basis of "as is where is", then no bag could be sold for less than that amount in howsoever bad condition the big may be.

Mr. Kaushal has farther argued that another fallacious argument which has been accepted by the learned Special Judge is that if the category `D'' bags which were sold are ignored then the rates given by M/s Shakti Traders would be the highest. The learned Special Judge has mentioned this finding in para No. 15 of the judgment

"It has been contended by the counsel for the accused that out of the total bags disposed of 17,91,439 in the statement prepared by Tarsem Singh, Sectional Officer, the total No. of 8,07,123 bags were of category `D''. If the amount fetched by this category is not considered the price offered by the accused number 4 gives the highest average. I find weight in the contention of the learned Counsel that ignoring the amount of `D'' category the average rate comes to about 85 P. per bag. Although it is the case of the prosecution that its average comes to 47 P. per bag if the whole number of bag and price is considered but none of the firms had offered to lift `ID'' types of bags. They had specifically mentioned that they will not lift such bags. The comparison has to be done by keeping in mind only 3 categories of bags and rates. If the over all average is to be calculated then as already observed in the earlier part of the order the averages rate has been found to be 85 P. per bag".

According to Mr. Kaushal, these observations are against the record. Judge saying that none of the firms had offered to lift `D'' type of bags and they had specifically mentioned that they will not lift such bags is against the record. It is clear from the record that seven firms gave tenders. Four out of them namely by M/s Shakti Traders of Amritsar, M/s Satya Narain Naresh Kumar of Kaithal; M/s Laxmi Udyog of Rohtak and M/s Aggarwal Trading Company of Rohtak have not stated in their tenders that they will not lift such bags. It is only in the tenders submitted M/s Hindustan Traders, Delhi, M/s Ganesh Traders, Delhi and M/s Surindera Trading Company, Moga that some such conditions are mentioned. M/s Hindustan Traders only offered one uniform rate of Rs. 65.10 per 100 bag. They did not quote any other rate nor mentioned any category of bags. They did not state that rotten and torn bags will not be accepted by them. M/s Ganesh Traders also quoted one uniform rate of Rs. 70.55 per 100 bags. They also did not mention any category and have mentioned that only damaged bags will not be accepted. M/s Surindera Trading Company offered two rates i.e. empty cement bags mix Rs. 66.50 per 100 bags and free from water and damage Rs. 89.50 per 100. They also stated that they will lift only dry bags and will not lift those bags which had water or wet earth attached to them.

This clearly shows that the firms which quoted rates of categories less than three had only attached this condition. None of the four firms which had given tenders of three or four categories made any mention of the term that they will not lift such bags. The learned trial Judge had fallen into number of errors legal and factual and had misread the evidence.

He has further argued that it is wholly fallacious to say that the condition by some of the tenders that they will not lift damaged bags is the same thing as to say that 20 Paper bag will be offered for damaged bags.

Mr. Kaushal has further contended that the charges related to very senior officers which were investigated by the Chief Engineer, Vigilance, Irrigation Department and then by the Anticorruption department. The Investigating Officer is of S.P. rank. After Detailed investigation, report under Section 173 Cr.P.C. was died in the Court. Prosecution had relied upon 151 documents and a large number of witnesses including some very high Government officers. The trial Judge discarded the prosecution case by saying that the prosecution witnesses are contradicted by certain documents filed by the accused and that the prosecution case is not fit for framing of the charge.

Mr. Kaushal contends that no prosecution witness can be condemned unless he is examined in Court. The learned trial Judge was not entitled to reject the prosecution case on the grounds which are not available in the record and are the result of misreading of evidence. So, the learned trial Judge''s order in discharging the accused is bad. There is ample material to frame the charge.

Mr. H.L. Sibal, Senior Advocate for Narinder Singh Gill respondent has controverted the arguments of Mr. Kaushal and stated that Mr. Narinder Singh Gill has since retired and while in Government service, he had many opponents in the department who have conspired to frame a false charge against him. He has contended that a large quantity of cement was allotted to the SYL and as such Mr. Narinder Singh Gill was duty bound to make space for it for its storage and there was urgency for auctioning the empty cement bags. Then he thought that the entire empty bags should be auctioned in his office. He has further argued that the salient facts of the case are that on March 31, 1987 a tender notice was issued inviting tenders for the disposal of one lac empty cement bags by Executive Engineer, Kurali Mechanical Division. The tender was to be opened on April 21, 1987. One copy of this notice was received by the office of the Chief Engineer and on April 15, 1987 Chief Engineer''s office wrote a letter to the Executive Engineer Kurali Mechanical Division not to open the tenders and cancel the same. The reason for doing this was that the Chief Engineer being overall incharge of the priority work of S.Y.L. Canal had in his capacity as Chief Engineer, known the fact that there was an emergency to dispose of empty cement bags lying in various stores under four Superintending Engineers incharge of four different circles. The Chief Engineer knew it well because of the information supplied to him and because of his own knowledge as he had been trying his best to get large quantity of cement bags for the early completion of the S.Y.L. Project. For that purpose, he had already activated the Government of India as also the Officers incharge to supply the cement and the matter had been discussed in meetings.

Mr. Sibal has referred to certain meetings which Mr. N.S Gill had with high officers of Government of India and has submitted that large quantity of cement was allowed and was expected to reach. He has referred to correspondence which Mr. Sandhu, Superintending Engineer had with the Chief Engineer stating therein that as large quantity of cement was likely to come so we may face storage problem if empty cement bags were not disposed of immediately.

Mr. Sibal has then given details of the tenders submitted by different bidders and has tried to prove that there was absolutely no irregularity in accepting the tenders. In fact the officers had acted in the best of their judgment and no loss has occurred to the Government.

Mr. Sibal has further asserted that the fact it was not mentioned in the tenders "As is where is" of no consequence as the tenderers could go and inspect the empty bags in different stores where these were lying. Mr. Sibal has further contended that when the tenders were received, all the tenders were noted in the register of tenders, inclusive of all conditions given in the respective tenders. Those tenders were analysed by the office of Chief Engineer. The analysis was on a tentative basis considering that `A'' class empty cement bags would be 20% of the total number, `E'' class bags would be 70% of the total number and `C'' class would be 10%. It was specifically mentioned that actual classification could not be made since that information was not available with the office. It was further mentioned that the classification shall be done by the Executive Engineers concerned at the spot and then the empty cement bags will be handed over. It was also then mentioned that initially the first order may be placed for disposal of only 5 lac empty cement bags. This was done with a view to see the performance of the person whose tender had been accepted. Later on, another order of 5 lac bags was given. These orders were placed upon the four Superintending Engineers. The Executive Engineers under them were responsible for selection and they were told to select the empty cement bags. According to the classification and then had over the same to respective tenderers.

Mr. Sibal has further contended that even after the retirement of Mr. Gill, an order in respect of 5 lac empty bags was placed by the succeeding Chief Engineer. Before placing the order of 5 lac empty cement bags, the Chief Engineer had called the tenders on "As is where is" basis. As there was no response to the tender notice, the succeeding Chief Engineer placed the order for 5 lac empty cement bags with M/s. Shakti Traders again.

Mr. Sibal has contended that the tender floated, by Shri Gill had clearly specified that the quantity of empty bags could be increased or decreased. Mr. Sibal referring to mistakes pointed out by Mr. Kaushal in the order of the trial Judge has said that no doubt there are certain factual mistakes in the order but these are inconsequential.

Mr. Sibal has further contended that the trial Judge was competent to hold that the statements of the witnesses recorded under Section 161 Cr.P.C. are untrustworthy without examining them in Court.

While concluding Mr. Sibal has contended that the calling of tender is neither corruption nor illegal method. It was the duty of the officials to call tenders and in the comparison of rates, no illegality has been committed. It was stated therein that tentatively rates are being compared for `A'' class empty cement bags which would be about 20 per hundred empty cement bags, `B'' class bags with one or two holes would be about 70 per hundred and `C'' class bags with 4/5 holes, would be about 10 per hundred. Some methodology has to be adopted but that does not mean any corrupt or illegal means or abuse of official position by a public servant. In fact the Executive Engineers in the field were responsible for actual classification at the spot and final average rate could only be known after the classification is done. There was no question of any conspiracy and the order of the learned trial Judge is legal, sound and is liable to be maintained.

I have considered the arguments of learned counsel and given careful thought to the same.

At the very outset it is to be seen as to what are the considerations for framing of the charge or discharging the accused and whether the powers are narrower under Section 239 Cr.P.C. or broader than powers under Section 227 Cr.P.C. A comparative reading of Sections 227 and will be helpful :

Section 227 Cr.P.C. Section 239 Cr.P.C.

Discharge. If upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused he shall discharge the accused and record his reasons for so doing. When accused shall be discharged If, upon considering the police report and the document sent with it under Section 173 and making such examination if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.

In Section 239 Cr.P.C., the words used are groundless. To my mind a reading of Sections 227 and 239 Cr.P.C., gives an impression that a Magistrate has much less powers to discharge than the Sessions `Judge''. The Sessions Judge is entitled to discharge if he does not find that there are sufficient grounds for proceeding which means that even if there are grounds against the accused but these may not be sufficient for proceeding. Under Section 239 Cr.P.C. the Magistrate is entitled to discharge an accused if the charge against him is groundless meaning thereby that there is absolutely no case against him. This position excludes the situation where there are some grounds which may not be sufficient for proceeding. To hold that the charge is groundless, the situation can only be when there is no substance in the charge but to hold that there are not sufficient grounds, this may not be the situation. There may be some grounds and the charge may not be groundless but those grounds may not be sufficient for proceeding. Agreeing with the trial Judge that the provisions applicable to him were under Section 239 Cr.P.C. it is not clear how the learned trial Judge assumed that his powers are wider than the powers vested in Sessions Judge under Section 227 Cr.P.C. To my mind his powers for discharging u/Sec, 39 Cr.P.C. are much narrower than the powers under Section 227 Cr.P.C. The Apex Court in State of Bihar v. Ramesh Singh", AIR 1977 Supreme Court 2018 has given the parameter under which a person can be discharged. The Hon''ble Supreme Court while dealing with the provisions of Sections 227 and 228 Cr.P.C. has observed as under :

"Under Section 226 of the Code while opening the case for the prosecution, the prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the, accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If "the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing," as enjoined by Section 227. If, on the other hand, the Judge is of the opinion that there is ground for presuming that the accused has committed an offence which :

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused", as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in crossexamination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the sales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit, of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.

Apart from some other circumstances as it appears the prosecution proposes to prove in this case, and whether it will succeed in proving them or not is a different matter, the High Court has enumerated three circumstances in its impugned order. We may just add, and that is only for the purpose of a cursory observation for deciding the matter at this stage, that the story of assault on Tara Devi by the respondent a day prior to the occurrence is perhaps sought to be proved by the evidence of Chandreshwar Singh, the informant, and it seems, he would also try to say, rightly or wrongly, that at the time of the said assault the respondent had given her a threat to kill her. The High Court felt persuaded to take the view that the three circumstantial facts, even if proved, would not be incompatible with the innocence of the accused and then added "There may, be strong suspicion against the opposite party, but the three circumstances which I have just mentioned above, cannot be said to be incompatible with the defence of the accused". The said observation of the High Court is not quite apposite in the background of the law which we have enunciated above with reference to the provisions of Sections 221 and 228 of the Code".

In view of the powers under Section 239 Cr.P.C. and the law laid down by the Apex Court; the trial Court could only discharge the accused if it was of the opinion that the charge against him is groundless.

In the report under Section 173 Cr.P.C. the main charge against the accused was that in the tender in dispute, the condition "As is where is" was mentioned and the rate approved was arrived at on the basis of wrong statistics and the criteria was adopted to benefit the accused and put loss to S.Y.L. Canal Organization. It was further mentioned in the report under Section 173 Cr.P.C. that, by the statistics, criteria and the percentage fixed by the accused, the average rate of cement bags sold came to 47 paise per empty bag whereas the Executive Engineer, Kurali who had invited tenders on the basis of "As is where is" the rate offered was Rs. 85/ per hundred empty cement bags. By adopting a criteria, the accused with dishonest intention have harmed the Organisation to the extent of Rs. 6,77,340.61 and have thereby benefited themselves to that extent.

As I have already discussed, the powers of the trial Judge at the stage of framing of charge are limited. He is to see whether there is any primafaice case against the accused or not. It was mentioned in the report under Section 173 Cr.P.C. that the time of opening the tenders was 300 P.M. on May 21, 1987. It is further mentioned that it was revealed from the investigation that in the enclosures attached with the quotation of M/s. Shakti Traders, Amritsar which is on a printed letter pad of the firm and written by the proprietor of the said firm it has been mentioned that 22 Ps. per bag shall be offered more than the rate offered in 1st Class Bag. This enclosure was attached after the opening of the tender. At the time of opening the tender, this rate was not read out in the presence of the tenderers. It is further the case of the prosecution that M/s. Shakti Traders were informed about the contents of the tenders filed by the other tenderers and to meet other tenderers, this document was added.

The prosecution, in this case, had relied upon a large number of documents and witnesses. The reading of the statements of witnesses recorded under Section 161 Cr.P.C. and the documents make out a primafacie casethat the rate available in the tenders filed before the Executive Engineer, Kurali was 85 paise per bag but Mr. Gill restrained the Executive Engineer, Kurali not to accept the same. The accused adopted a method taking help of the statistics and other procedural safe guards which resulted in getting only 47 paise per bag. The accused are not new entrants to the service. They were aware of the age old practice of the department in auctioning the empty cement bags on the basis of "As is where is" but the accused formulated things in such a manner that a note was prepared by the accused and was approved by Mr. Gill Chief Engineer, which ultimately put the department to a loss of more than Rs. 6 lacs. If the intention of the accused was straight then they could very easily see that the tender called by Executive Engineer, Kurali was 85 paise per bag. On the basis of hypothetical data arrived at by them qua different qualities of bags, the rate over all comes to much less. The prosecution had further alleged that the rates offered by other tenderers were conveyed to M/s. Shakti Traders by one of the accused and then an additional sheet was added to counter the same. All these thing can be made out from the statements recorded under Section 16l Cr.P.C. and the documents attached with the challan but these could be established only if the witnesses are examined.

The trial Court did not appreciate that at the stage of charge, he is to act within the provisions of Section 239. As held by the Apex Court in "State of Bihar v. Ramesh Singh", AIR. 1977 Supreme Court, 208 mentioned earlier, the case of the prosecution is not to be scrutinised to the extent as it is to be scrutinised at the final stage. A reading of the judgment of the lower Court gives the impression as if the trial Court was deciding the case at the final stage. He has taken note of minor details which at charge stage, he is not supposed to take.

Another serious infirmity in the judgment of the trial Court is that he has discredited the witnesses and discarded their statements recorded under Section 16 Cr.P.C. without examining them. He has used some correspondence which runs some whit counter to the version given by the witnesses in their statements under Section 161 Cr.P.C. to discredit them. At the charge stage, statements recorded under Sect on 161 Cr.P.C. and the documents relied upon by the prosecution are entitled to some weightage. If the witnesses are to be disbelieved and discredited and their version given under Section 161 Cr.P.C. is to be taken as not correct then they are to be examined in Court and given a chance to explain the contradiction, if there is any. The trial Court is entitled to disbelieve a witness after he is examined but it is open to grave doubt. If the witness''s statement under Section 161 Cr.P.C. can be discarded and disbelieved on the strength of some correspondence running counter to his version under Section 161 Cr.P.C. In this case even the original or the certified copy of that correspondence is not on the file.

The approach of the trial Court in referring to the prosecution documents and the witnesses is not fair. It has tried to find holes in the prosecution case without there being any. Mr. Kaushal has pointed out a number of factual inaccuracies in the judgment of the trial Court which have been taken to discard the prosecution case. Mr. Sibal has not been able to deny that there are some factual inaccuracies in the trial Court''s judgment but has only stated that they are inconsequential. The trial Court was not dealing with the matter at the final stage. No opportunity had been given to the prosecution to prove its case. In all fairness if the trial Court wanted to disbelieve the prosecution witnesses, a fair chance should have been given to the prosecution to prove its case from its documents and witnesses. By ordering discharge at the initial stage, the trial Court has denied the prosecution a chance to prove its case. Such a approach is not warranted by law.

After going through the record and hearing the learned counsel for the parties, an irresistible impression is created that the trial Court was in a hurry to discharge the accused. No doubt the accused is entitled to be heard before the charge is framed and at that stage, an accused may produce some documents but the way in which the documents were taken into evidence which were neither original nor certified copies and whose relevancy was very much disputed, by getting them admitted from the Additional Public Prosecutor who did not act, independently and did the same at the asking of some Police Officer, is not to be appreciated. In all fairness as there is clearly a primafacie case against the accused the trial Court should have framed the charge, given the prosecution a chance to lead its evidence and the defence and then give a verdict whether the case against the accused is made out or not. The trial Court should not have acted in a manner as if the entire evidence had been recorded. Mr. Kaushal has contended that the factual inaccuracies in the judgment of the trial Court were not inadvertent but when seen in the light of the entire approach of the trial Court, these were deliberate.

As the approach of the trial Court was not according to law, and it has acted beyond its powers by discharging the accused and criticising the prosecution evidence without any sound basis and as there is a primafacie case for framing of the charge, I set aside the order of the trial Court and direct that a charge under Sections 5(1)(d) and 5(2) of the Prevention of Corruption Act and under Sections 420/120B IPC be framed against the accused and they be tried for the same. In the interest of fair trial, the case is transferred from the Court of Shri R.M. Gupta, Additional Sessions Judge, Ropar to the Court of Sessions Judge Ropar who will try it himself/herself or may hand it over to some other Judge. The trial shall be conducted expeditiously. The accused are directed to appear before Sessions Judge, Ropar on October 29, 1990.

JUDGMENT accordingly.