{"id":161136,"date":"2010-09-17T00:00:00","date_gmt":"2010-09-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/a-srinivasulu-vs-the-state-on-17-september-2010"},"modified":"2014-05-20T04:23:45","modified_gmt":"2014-05-19T22:53:45","slug":"a-srinivasulu-vs-the-state-on-17-september-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/a-srinivasulu-vs-the-state-on-17-september-2010","title":{"rendered":"A.Srinivasulu vs The State on 17 September, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
A.Srinivasulu vs The State on 17 September, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 17\/09\/2010\n\nCORAM\nTHE HONOURABLE MR.JUSTICE S. PALANIVELU\n\nCriminal Appeal(MD)No.437 of 2006\nCriminal Appeal(MD)No.445 of 2006\n and\nCriminal Appeal(MD)No.469 of 2006\n\nA.Srinivasulu\t\t\t\t\t... Appellant in\n\t\t\t\t\t  \t    Crl.A.No.437 of 2006\/A1\n\n1.R.Thiagarajan\n2.K.Chandrasekaran\t\t\t\t... Appellants in\n                       \t\t\t  \t    Crl.A.No.469 of 2006\/\n\t\t\t\t\t  \t    A3 and A4\nN.Raghunath\t\t\t\t\t... Appellant in\n\t\t\t\t\t  \t    Crl.A.No.445 of 2006\/A7\nVs.\n\nThe State,\nrep.by the Inspector of Police,\nCentral Bureau of Investigation,\nSpecial Police Establishment,\nAnti-Corrpution Branch,\nChennai Unit,\nShastri Bhavan,\nThird Floor,\nHaddows Road,\nChennai-600 006. \t\t       \t\t... Respondent in all Crl.As.<\/pre>\n
PRAYER<\/p>\n
Criminal Appeals filed under Section 374 of the Code of Criminal
\nProcedure filed against the common judgment and order dated 08.09.2006 passed in
\nC.C.No.9 of 2002 on the file of the Principal Special Judge for CBI Cases at
\nMadurai.\n<\/p>\n
C.A.No.437 of 2006<\/p>\n
!For A.1\t \t… Mr.S.Venkatraman
\n\t\t\t    Senior Counsel for
\n\t\t\t    Mr.S.Ilangovan
\nC.A.No.445 of 2006
\nFor A.7\t\t \t… Mr.Habibullah Basha
\n\t\t\t    Senior Counsel for
\n\t\t\t    Mr.V.S.Venkatesh<\/p>\n
C.A.No.469 of 2006
\nFor A.3\t\t \t… Mr.S.Kalyanam for
\n\t\t\t    Mr.A.Saravanan
\nFor A.4\t\t\t… Mr.K.Reghunathan for
\n\t\t\t    Mr.A.Saravanan
\n^For Respondents\t… Mr.S.Rozario Sundararaj
\n(in all appeals)    \t    Spl.Public Prosecutor
\n\t\t\t    for CBI Cases<\/p>\n
:COMMON JUDGMENT<\/p>\n
\t\tSince the issues involved in these appeals are one and the same,
\nthey are taken up together and disposed of by this common judgment.\n<\/p>\n
\t\t2.\tThe following is the factual matrix of the prosecution case:-
\n\t2.1.\tBased upon a source information, CBI  lodged FIR to the effect that
\nduring 1992-1994, A.1 to A.4 had entered into criminal conspiracy  to do an
\nillegal act viz., to cheat M\/s.Bharat Heavy Electricals Ltd (for short ‘BHEL’)
\nand criminal misconduct in the matter of award of contract for construction of
\nbuilding and other facilities for Reverse Osmosis Desalination Plants (ROD) in
\nvarious places in Ramnad District of Tamil Nadu, that in pursuance of the said
\nconspiracy, A1 to A3 called for only limited tenders from seven agencies
\nincluding the firm of A.4 and four other bogus agencies, that fraudulently and
\ndishonestly awarded the contract to A.4’s firm, namely, M\/s.Entoma Hydro
\nSystems, that in pursuance of the conspiracy, A.1 to A.3, by misusing and
\nabusing their official position by corrupt or illegal means sanctioned and paid
\na total sum of Rs.4.32 crore as interest free advance to A.4 knowing full well
\nthat A.4 is not capable of doing the work, that A.4 in pursuance to the
\nconspiracy failed to execute the said contract and thereby, they caused wrongful
\nloss to the extent of Rs.4.32 crores to M\/s.Bharat Heavy Electricals Ltd and
\nthat prima facie commission of offences punishable under Section 120-B, r\/w.420
\nand 420 IPC and Sec.13(2) r\/w.13(1)(d) of PC Act 1988, have been committed by
\nthe appellants and the same has been marked as Ex.P.87.\n<\/p>\n
\t2.2.\tIn the FIR, the first accused is P.W.16 who turned as approver.  A1,
\nA6 and A7 were included in the case during investigation. A.1 was functioning as
\nthe Executive Director  of the Public Sector Undertaking, namely, M\/s.Bharat
\nHeavy Electricals Ltd, Trichy. P.W.16 was serving as the General Manager (F&P)
\nof BHEL, Trichy during the relevant period.  The third accused and the fourth
\naccused were working as Assistant General Manager of Finance and Senior Manager
\nin BHEL, Trichy respectively. The fifth accused Mohan Ramanth is the Proprietor
\nof M\/s.Entoma Hydro Systems.  His father NRN Ayyar is A.6 and the 7th accused is
\nthe brother of A.5.\n<\/p>\n
\t2.3.\tDuring 1991-1992, the Tamil Nadu Water Supply and Drainage Board,
\n(for short ‘TWAD’ Board), a Government of Tamil Nadu undertaking, was
\nconsidering to set up Reverse Osmosis Desalination Plants (ROD)  to provide
\npotable water to drought-prone areas in Ramnad District. The construction of a
\nROD plant is very complex and highly technical work which involves civil,
\nmechanical and electrical works such as construction of bore wells to meet the
\nrequirement of raw water output including supply and erection of water drawal
\nsystem carrying out yield tests, chemical analysis to determine the feasibility
\nof desalination, construction of roads, fences for desalination plants and
\ninstallation of high pressure pumps.  The said work requires expertise and prior
\nexperience in all the above fields.\n<\/p>\n
\t2.4.\tWhen that being the position, all the accused entered into a
\ncriminal conspiracy between 1991 and 1992 at Madras, Tiruchirapalli and other
\nplaces to commit criminal misconduct and to cheat BHEL in the matter of award of
\ncontract for the above said work.  A.5 was not at all eligible for the award of
\nsuch work and in furtherance of the criminal conspiracy, A.1 instructed P.W.16
\nto invite limited tenders without pre-qualification of prospective tenderers
\nbefore inviting limited tenders and without selecting contractors out of
\napproved list of contractors maintained by BHEL.\n<\/p>\n
\t2.5.\tThe following is the list of firms which the first accused dictated
\nto P.W.16.\n<\/p>\n
1)East Coast Construction Company,
\nNo.15, Lloyds Road, 1st Lane, Chennai.\n<\/p>\n
2)Turn Key Construction Company,
\nNo.87\/3, Arcot Road, Chennai-26.\n<\/p>\n
3)Raghava Engineers & Builders,
\nNo.37-A, Velacherry High Road,
\nChennai-600 042.\n<\/p>\n
4)Mercantile Construction Company,
\nNo.105, Mount Road, Chennai-42.\n<\/p>\n
5)M\/s.Entoma Hydro Systems,
\nNo.16, II Street,
\nGopalapuram South,
\nChennai-600 086.\n<\/p>\n
Out of the said five firms, Sl.No.1 to 4 are bogus firms  which were floated by
\nthe fifth accused for the purpose of showing competition.  The second accused in
\nthe case, one R.Krishna Rao who has been acquitted by the trial Court, the then
\nGeneral Manager (F&P) BHEL by abusing his official position, recommended the
\nabove said note prepared by P.W.16 dated 25.11.1992 on the same day knowing full
\nwell that the firms were bogus which were neither pre-qualified nor selected
\nfrom approved list of contractors maintained by BHEL, forwarded to the first
\naccused, who in turn directed calling for limited tenders so as to enable A.5 to
\nenter into the competition and ensure to get the contract.\n<\/p>\n
\t2.6.\tA.1,  the competent authority, approved the proposal for limited
\ntender on 27.11.1992.  He also made a false note on his letter that “discussed
\nwith CMD, we have to send limited tenders” with dishonest intention to cheat
\nBHEL and to award contract to A.5.  A.5 responded to the tender on behalf of
\nM\/s.Entoma Hydro Systems on the one hand and  in the names of other bogus firms
\nsuch as M\/s.East Coast Construction Company, M\/s.Raghava Engineers & Builders,
\nM\/s.Turn Key Construction and M\/s.Mercantile Construction Company through A.7
\nwho applied and obtained demand draft for Rs.20,000\/- each in favour of BHEL in
\nthe names of bogus firms by remitting Rs.20,000\/- each in Indian Bank,
\nRoyapettah, State Bank of India, Valacherry, State Bank of Mysore, T.Nagar and
\nBank of Madura, Mount Road respectively and by writing the demand draft
\napplication and signing in the names of bogus firms knowing full well that no
\nsuch firms were existing in the said address and they were created just to get
\naward of contract in favour of A.5.  The demand drafts obtained by A.7 were
\nsubmitted to BHEL as EMD along with forged and false tender documents.\n<\/p>\n
\t2.7.\tThe tender committee consisting of P.W.16, A.3 and A.4 processed the
\nnames of the above said bogus firms and recommended the name of A.5 for the
\naward of contract for construction of desalination plants.  They have given
\nfalse justification that the selection of contractors had to be limited to those
\nwho would be efficient in work and would be in a position to deliver the goods
\nin time and therefore, the names of the firms in limited tenders were obtained
\nfrom reliable sources, namely, from TWAD Board.  They have offered such false
\njustification in the proceedings knowing fully well that all the firms were
\nbogus just to facilitate the award of contract to A.5 by fraudulent means.\n<\/p>\n
\t2.8.\tTender committee members, A.3 and A.4 should ensure the fair
\nselection of most suitable tenderers for the award of work.  As per the
\n“instructions to tenderers” contained in the tender documents, every
\nparticipating tenderer has to submit two experience certificates and a
\nCertificate from bank regarding financial capacity of the tenderer, but both of
\nthem did not deliberately obtain such experience certificate from tenderers
\nknowing full well that firm of A.5 is not at all eligible for such a highly
\ntechnical contract. The firm of A.5 for the first time got the contract from
\nBHEL.\n<\/p>\n
\t2.9.\tThey have also given false justification in the tender committee
\nproceedings that all the bogus firms were highly competent and experienced in
\nthe fields and their names were obtained from the reliable sources.  The firm of
\nA.5 is only a pesticide and agrochemical merchant. Both A.3 and A.4 recommended
\nsanction of 30% interest-free advance to A.5 in violation of existing practice
\nof payment of 5% to 10% mobilisation advance without interest to cause pecuniary
\nadvantage to A.5.  Hence, total mobilisation advance of Rs.4,32,00,000\/- was
\npaid to A.5 and A.7 without interest which is a wrongful loss to BHEL.  The
\namount was deposited in A.5 firm in the Account No.3084 in Indian Bank, Ethiraj
\nSalai Branch, Chennai and out of which, Rs.1.5 crore was diverted to another
\nsister concern of A.5, M\/s.Insecticides and Allied Chemicals, Chennai, in which
\nA.5 to A.7 are partners.\n<\/p>\n
\t3.0.\tThus, A.5 to A.7 caused wrongful loss to BHEL by cheating BHEL in
\nconspiracy with A3 and A4.  Since A.5 did not have the expertise and experience
\nto execute the contract, he did not complete the work in time and thereafter, it
\nwas executed by BHEL itself.  The address of bogus firm M\/s.Raghva Engineers and
\nBuilders belongs to the property owned by A.6.  The postal acknowledgment card
\npertaining to the despatch of tender enquiry to this bogus firm bears the
\nsignature of A.6 for having received the tender documents from BHEL.  Two tender
\ndocuments sent by BHEL to bogus firm were received by A.6 for A.5 and hence, A.6
\ncreated false evidence by filing income tax returns assessment for the year
\n1993-1994 and 1994-1995, on 17.10.1997 showing as if he received rental income
\nof Rs.1,600\/- for one year from the non-existing firm.  Hence, A.5 in conspiracy
\nwith A.6, floated a bogus firm and also created false evidence showing as if
\nM\/s.Raghava Engineers existed as his tenants.\n<\/p>\n
\t3.1.\tThe technical examiner of Central Vigilance Commission inspected the
\nconstruction work at Ramnad and submitted a report to the Central Vigilance
\nCommission stating that the work was awarded without  pre-qualification of the
\nfirms and a predetermined agency by BHEL officials with mala fide intention and
\na major work costing Rs.14.41 crores was awarded arbitrarily to a single agency.\n<\/p>\n
\t3.2.\tP.W.16 gave a confessional statement under Section 164 Cr.P.C.
\nbefore the XVIII Metropolitan Magistrate, Saidapet, Chennai which is Ex.P.44 and
\nhe was tendered pardon under Section 306 Cr.P.C by the Special Judge for CBI
\ncases, Madurai.  It is Ex.P.51.  He was treated as an approver.  A.1 and A.2
\nabused their official position as public servants and showed undue favour to A.5
\nto A.7 without any public interest in conspiracy with A.3 and A.4 in the matter
\nof award of construction of desalination plants to A.5 for which he is not at
\nall eligible. Thereby, A.1 to A.7 committed offences as follows:-\n<\/p>\n
\ta) A1 to A7: Under Section 120-B r\/w.420,468,471 r\/w 468, 193 IPC and
\n13(2)  r\/w 13(1)(d) of PC Act,1988.\n<\/p>\n
\tb) A1&A2: Under Section 13(2) r\/w. 13(1)(d) of PC Act 1988 and 109 IPC
\nr\/w.420,468,471 r\/w.468, 193 IPC.\n<\/p>\n
\tc) A3&A4: Under Section 109 IPC r\/w.420,468,471 r\/w.468, 193 IPC<\/p>\n
\td) A5,A6 & A7: Under Section 420,468,471 r\/w.468,193 IPC and 109 IPC
\nr\/w.13(1)(d) of PC Act,1988.”\n<\/p>\n
Since CMD (Chairman and Managing Director) and BHEL refused to accord sanction
\nfor the prosecution of Shri.R.Thiagarajan (A3) and Shri.Chandrasekhar (A4) under
\nSection 13(1)(2) of PC Act in spite of CVC’s advice, they are not prosecuted for
\noffences under P.C.Act,1988. Shri.Srinivasalu (A1) and Shri.R.Krishna Rao(A2)
\nhad already retired from service.  Hence, sanction for prosecution is not
\nrequired for them for offences under P.C.Act,1988 .\n<\/p>\n
\t4.  The above said events and the particulars are found in the charge
\nsheet laid by the Inspector of Police, CBI, Chennai.  The prosecution marked as
\nmany as 94 exhibits and marched 44 witnesses to establish the guilt of the
\naccused. When the accused were questioned under Section 313 Cr.PC as to the
\nincriminating materials available as against them, they denied complicity in the
\noffences under Section 303 Cr.P.C.\n<\/p>\n
\t5. The first accused has filed a written statement under Section 313
\nCr.P.C. stating that in Ex.P.35, it is mentioned as “discussed with CMD we have
\nto send limited tenders” and should be read distinctly and not conjointly.
\nBecause going for the limited tender is within the powers of A.1 and he need not
\nconsult with his superiors and the endorsement “discussed with CMD, we have to
\nsend limited tenders” is  nothing but a decision to send for limited tenders.
\nIt is for technical tie up, actual tender proceedings were started on
\n25.11.1992.    This accused was promoted and transferred to BHEL, New Delhi on
\n18.08.1994.  The mobilization  advance was not paid from the funds of BHEL. In
\nthe documents furnished to the accused under Section 207 of Cr.P.C, it is stated
\nthat Rs.7,45,91,400\/- was paid by TWAD to BHEL.  The second accused has also
\ngiven a written statement under Section 313 Cr.P.C stating that FIR did not
\ncontain his name, that he had no authority to call for limited tenders and he
\nnever had any correspondence or interaction with regard to tender and he was
\nneither a member of tender committee nor negotiation committee.\n<\/p>\n
\t6. A.3 and A.4 have given separate written statements under Section 313
\nCr.P.C which contain identical contents.  They have stated that they are not
\nmembers of tender committee but they are members in the negotiation committee
\nalone.  The evidence of P.W.16  that both the tender committee and negotiation
\ncommittee are the same is incorrect.  There was no impediment as per the BHEL
\nWork Policy to pay 30% as mobilization advance.  These accused have no role in
\nselection of A.5 for award of contract.  A.7 has stated that he is unaware of
\nthe tender in question and that he has been wrongly and falsely implicated in
\nthe case.\n<\/p>\n
\t7. A5 and A6 died pending trial of the case and the charges against them
\nabated.\n<\/p>\n
\t8. The learned Special Judge for CBI cases, Madurai, acquitted A2 under
\nSection 255(1) Cr.P.C of all charges and found the accused 1,3,4 and 7 guilty
\nand imposed sentences on them as follows:\n<\/p>\n
\t(a) A-1 convicted and sentenced to undergo R.I. for 3 years and to pay a
\nfine of Rs.2000\/- and in default to undergo R.I. For 6 months for the offence
\nunder Sections 120-B r\/w 420 and R.I. for 3 years and to pay a fine of Rs.2000\/-
\nin default to undergo R.I. for 6 months for the offence under Section 468 IPC,
\nand R.I. for one year for the offence under Section 193 IPC and R.I. for 3 years
\nand to pay a fine of Rs.2000\/- in default to undergo R.I. for 6 months for the
\noffence under Section 13(2) r\/w 13(1)(d) of the Prevention of the Corruption Act
\n1988 and R.I. for 3 years and to pay a fine of Rs.2000\/- in default to undergo
\nR.I. for 6 months.\n<\/p>\n
\t(b) A-3 convicted and sentenced to undergo R.I. for 2 years and to pay a
\nfine of rs.1000\/- in default to undergo R.I. for 6 months for the offence under
\nSection 109 r\/w 420 IPC, and R.I. for 2 years and to pay a fine of Rs.1000\/- in
\ndefault to undergo R.I. for 6 months for the offence under Section 468 IPC and
\nR.I. for 2 years and to pay a fine of Rs.1000\/- in default to undergo R.I. for 6
\nmonths for the offence under Section 471 r\/w 468 IPC and R.I. for one years for
\nthe offence under Section 193 IPC.\n<\/p>\n
\t(c)  A-4 convicted and sentenced to undergo R.I. for 2 years and to pay a
\nfine of Rs.1000\/- in default to undergo R.I. for 6 months for the offence under
\nSection 109 r\/w 420 IPC, and R.I. for 2 years and to pay a fine of Rs.1000\/- in
\ndefault to undergo R.I. for 6 months for the offence under Section 468 IPC and
\nR.I. for 2 years and to pay a fine of Rs.1000\/- in default to undergo R.I. for 6
\nmonths for the offence under Section 471 r\/w 468 IPC and R.I. for one year for
\nthe offence under Section 193 IPC.\n<\/p>\n
\t(d) A-7 convicted and sentenced to undergo R.I. for one year and to pay a
\nfine of Rs.1000\/- in default to undergo R.I. for 3 months for the offence under
\nSection 471 r\/w 468 IPC and R.I. for one year and to pay a fine of Rs.1000\/- in
\ndefault to undergo R.I. for 3 months for the offence under Section 109 IPC
\nr\/w13(2) r\/w 13(1)(e) of Prevention of Corruption Act 1988.
\nIt is also directed that the above said sentences on each of them shall run
\nconcurrently.\n<\/p>\n
Aggrieved by the judgment, A1, A3, A4 and A7 are before this Court with these
\nappeals.\n<\/p>\n
\t9. The point for consideration is, “whether the charges framed against the
\naccused have been established by the prosecution beyond all reasonable doubt?”
\nPoint: As regards complicity of A.1, A.3 and A.4.\n<\/p>\n
\t10.  The first accused was functioning as the Executive Director of BHEL,
\nTrichy, during 1992-1993.  The allegation against him is that he facilitated the
\naward of contract for putting up of Reverse Osmosis Desalination Plants in
\nfavour of A.5, causing wrongful loss to BHEL, in a dishonest manner. P.W.1 was
\nthe Senior Manager (Vigilance) BHEL who handed over  relevant files Exs.P.1 to
\nP.10 and P.11 Work policy of BHEL and Ex.B.12 copy of  Partnership letter of the
\nfirm, namely, M\/s.Insecticide and Allied Chemicals.\n<\/p>\n
\t11. It is the allegation against the first accused that he has violated
\nthe existing procedure of BHEL by calling for limited tenders instead of open
\ntenders.  P.W.8 was the technical examiner in the Central Vigilance Commission.
\nThe Central technical examiner Organisation is one of the wings of CBI which
\ndirected him to examine the present case.  P.W.8 inspected the plant works and
\nother records and came up with report Exs.P.18 and 19 stating that open tenders
\nwere not called for, that payment of 30% mobilization advance was excessive,
\nthat normally it would be 5% to 10% and the advance was paid free of interest
\nthat the contractor failed to execute the work in full, that it was not possible
\nfor a single agency to execute such a herculean task and variety of activities
\nand that the contractor selected was pre-determined.\n<\/p>\n
\t12. In this regard, the oral account of P.W.16 the approver plays a vital
\nrole.  It is his definite version that the first accused was telling that A.5 is
\na dynamic, resourceful person,    go-getter and an achiever and that he gave
\ndictation to P.W.16 to write the following five agencies.  They are as follows:-\n<\/p>\n
1.M\/s.Entoma Hydro Systems,Madras\n<\/p>\n
2.M\/s.East Coast Builders, Madras.\n<\/p>\n
3.M\/s.TurnKey Construction Company,Madras.\n<\/p>\n
4.M\/s.Raghava Engineers & Builders,Madras.\n<\/p>\n
5.M\/s.Mercantile Construction Company, Madras  .\n<\/p>\n
P.W.16 deposes that for such type of work, normally open tender should have been
\ncalled for, but A.1 told that there would be unhealthy competition from various
\nwalks of people to grab the work from TWAD Board and if BHEL lost this work, it
\nwould be losing glorious opportunity to enter into such field, that he told that
\nwhile he had discussion with the Chairman he told him that single tender was not
\nadvisable and limited tender was okay. Consisting of himself, (P.W.16,) A.3 and
\nA.4 the Committee also acted as negotiating committee, that he (P.W.16)
\nrecommended the contract to be awarded to  A.5 firm, because A.1 wanted the same
\nand that A.5 was in the habit of frequently meeting A.1 and A.1 who had shown
\nsome interest for A.5 for getting the mobilization advance quickly.\n<\/p>\n
\t13. The prosecution has examined the witnesses to show that there was no
\ncompany nor business establishments as enlisted in previous paragraph.\n<\/p>\n
\t14. As far as M\/s.East Coast Builders is concerned, P.W.6 Commercial Tax
\nOfficer has stated that no such firm has been registered with his office, in the
\nname of M\/s.East Coast Builders in No.15, First Land Llyods Road, Madras-14,
\ncoming under Royapattah – II assessment circle from 1996 onwards and that
\nverification of records for the period from 1991 to 1995, no such firm was found
\nregistered with them.  In the cross-examination, he would say that the said
\naddress is within Royapettah-II Circle office. P.W.9 is the  brother-in-law of
\nA.6. He says that A.5 asked him to hand over a letter addressed to M\/s.East
\nCoast Builders to him, if he received a letter in the above said address.  P.W.9
\nis resident of the above said  address.  He further adds that he received an
\nenvelope after three or four days in his address in the name of M\/s.East Coast
\nBuilders and he has passed it on to A.5 which came from BHEL, Trichy and at no
\npoint of time, such a firm in the name of M\/s.East Coast Builders was
\nfunctioning in his address.\n<\/p>\n
\t15.\tThe above said circumstances would clinchingly show that no firm or
\ncompany under the name and style of M\/s.East Coast Builders was functioning or
\nin existence in the above said address.\n<\/p>\n
\t16.\tAs regards M\/s.Turn Key Construction Company, the evidence of
\nP.Ws.15 and 26 are pertinent.  P.W.15 is a Clerk in Asian Paints Pvt Ltd,
\nChennai since 1972.  He says that the Company has godown at No.87\/3, Arcot Road,
\nVadapalani, that he was in charge of godown from 1991 to 1997 and that no such
\nCompany in the name of M\/s.Turn Key Construction Company was functioning in the
\nsaid address.\n<\/p>\n
\t17.\tP.W.26 is working as Customers Service Coordinator in M\/s.Hindustan
\nLever Ltd, where he was working as Sales Executive in M\/s.Quality Ice Creams,
\nMadras in No.87\/6, Arcot Road, Madras during the relevant period.  One Zambu
\nPrasad was the owner of the premises. Door No.87\/3 premises was also occupied by
\nM\/s.Quality Ice Creams. One Mr.Iyer was the owner of the said premises.  Adding
\nfurther, he would depose that at no point of time M\/s.Turn Key Construction
\nowned by one Majid was in existence in that premises.  The above evidence of
\nboth the witnesses would candidly show that no company as M\/s.Turn Key
\nConstruction was functioning in the above said address.\n<\/p>\n
\t18.\tP.Ws.5 and 10 would depose about M\/s.Mercantile Corporation Company.
\nP.W.5 is the Commercial Tax Officer in Anna Salai I Circle. He says that no such
\nfirm under the name and style of M\/s.Mercantile Corporation, at Door No.105,
\nAnna Salai was registered with their office for the period from 1991 to 1995.
\nP.W.10 is a close relative of A.5 to A.7.  P.W.9 is the paternal uncle of
\nP.W.10.  A.6 is the maternal uncle of P.W.10.  P.W.9 has been running chemical
\nbusiness agency at Old No.15, New No.20, Anna Salai, Chennai.  He says that A.5
\ntold him that an envelope from BHEL would come to his address in the name of
\nM\/s.Mercantile Corporation and if so, to receive it and hand over the same to
\nhim and that he received two covers from BHEL with the said name and he
\ndelivered them to A.5.  He has categorically stated that there was no such
\nconcern by name M\/s.Mercantile Corporation in Anna Salai in the address
\nmentioned above. The above said materials would clarify that there was no
\nCompany in the name of M\/s.Mercantile Corporation in the above said address.\n<\/p>\n
\t19.\tP.Ws.7 and 21 would speak about M\/s.Raghava Engineers & Builders.
\nP.W.7 is the Commercial Tax Officer in Velacheri Assessment Circle.  He says
\nthat no such firm by name M\/s.Raghava Engineers & Builders, No.37-A was
\nregistered with their office for the year 1991-1994. P.W.21 worked as the Senior
\nAssistant in the State Bank of India, Velacheri Branch during 1993 which is in
\nDoor No.37 A, Velacheri Main Road.  He states that during his tenure from 1993
\nto 2001, no such Company in the name of M\/s.Raghava Engineers & Builders was
\nfunctioning in the above-said premises when State Bank of India was there. From
\ntheir evidence, it is shown that there was no business establishment as
\nM\/s.Raghava Engineers & Builders, in the address noted above.\n<\/p>\n
\t20. It is to be noticed that the oral accounts of witnesses, whose
\nevidence have been appreciated in paragraph Nos.10 to 13.1 as to the four firms,
\ncould not be shattered in their cross-examination. Their evidence have brought
\nthe fact to light that there were no business concerns as mentioned in serial
\nNo.2 to 5 in paragraph No.9.\n<\/p>\n
\t  21.\tThe Work Policy of BHEL has been marked as Ex.P.11 in which the
\nfollowing are the relevant clauses as far as the tender system prevailing in the
\nestablishment is concerned:-\n<\/p>\n
“4.1.1.Open tender:-\n<\/p>\n
\tUnder this system tenders are invited in most open and public manner
\npossible.  Tenders called for (i) by advertisement in newspapers and\/or (ii)
\nfrom all registered contractors are treated as open tenders.  Tenders may be
\ncalled by advertisement in atleast three or four leading English or local
\nlanguage newspapers of good repute for the specific work\/supply of material.\n<\/p>\n
\t4.1.2. As a rule open tender system is to be adopted in all cases
\ninvolving award of work exceeding Rs.1 lakh each.  Adequate notice is to be
\ngiven to the tenderers to offer their quotations and the period should not be
\nless than one month except in the case of minor works where local contractors
\nonly would be interested.”\n<\/p>\n
However, in paragraph No.4.2.1, it is stipulated that even in cases for more
\nthan Rs.1 lakh, if it is felt necessary to resort to restricted tender due to
\nurgency or any other reasons, it is open to the General Manager or other
\nofficers authorised for this purpose to do so after recording the reasons
\ntherefor.\n<\/p>\n
\t22.\tEx.P.27 is the note of approval by the General Manager (F&P) and
\nExecutive Director, the second accused and the first accused respectively.  By
\nmeans of this, it was proposed to invite limited tenders from seven agencies
\nwhich are as follows:-\n<\/p>\n
1.M\/s.Entoma Hydro Systems,Madras\n<\/p>\n
2.M\/s.Larsen & Toubro Ltd, Madras\n<\/p>\n
3.M\/s.East Coast Builders, Madras.\n<\/p>\n
4.M\/s.Turn Key Construction Company, Madras.\n<\/p>\n
5.M\/s.Raghava Engineers & Builders, Madras.\n<\/p>\n
6.M\/s.Mercantile Construction Company, Madras.\n<\/p>\n
7.M\/s.Geo Miller & Co.Pvt.Ltd.\n<\/p>\n
\t23.\tEx.P.30 is the tender committee proceedings.  It does not contain
\nsignature of any official.  It provides that the choice had to be restricted to
\ncontractors with adequate rural based experience, allied expertise and
\norganizational capability.\n<\/p>\n
\t24.\tEx.P.35 is the letter from Senior Manager, BHEL in which the first
\naccused has endorsed as “Discussed with CMD. we have to send limited tenders”.
\nBut the then Managing Director, examined as P.W.28, would say that as per
\nEx.P.36 at page No.4, it was mentioned that this was also discussed with the
\nChairman and Managing Director (P.W.28 himself), who also advised to go in for
\nlimited tenders only. But, he would say that he had never stated so and the
\nstatement mentioned above by A.1 is not correct and it is upto A.1 either he
\nwould go for limited tenders or open tenders.\n<\/p>\n
\t25.\tEx.P.36 is the tender committee proceedings dated 30.12.1992.  It is
\nsigned by P.W.16, A.3 and A.4 who were referred to as the Tender Committee
\nMembers in the first page in Ex.P.36.  In the tender Committee proceedings, the
\ntender process and procedures have been elaborately dealt with.  It contains 13
\npages. It is mentioned that since the work involved is not purely civil work
\nalone, choice had to be restricted to contractors with adequate experience,
\nallied expertise and organisational capability, not only in civil work but more
\nin various other types of work and responsibilities, that calling of open tender
\nwas deliberately avoided as a business strategy since on one hand, it would
\nthrow open the field for all types of undesirable and incompetent agencies and
\nmore importantly on the other, it would result in wide publicity for the work
\nwhich in turn may create possibilities of influential competitors directly
\napproaching the customers to snatch the business away from BHEL and that this
\nwas also discussed with Chairman & Managing Director of BHEL who also advised to
\ngo in for limited tender only.\n<\/p>\n
\t26. By saying so, the tender committee has also recommended payment of 30%
\nmobilization advance.  At the end of this proceedings, it is mentioned that
\nExecutive Director (A.1) may accord approval on the above terms and conditions
\nto M\/s.Entoma Hydro Systems.  Finally, it was left to the discretion of the
\nfirst accused.  Even though as afore-noted in Ex.P.36 categorically that choice
\nhad to be restricted to contractors with adequate experience, allied expertise
\nand organisation capability, the tender committee does not appear to have taken
\ninto consideration the said norms.\n<\/p>\n
\t27.\tA.3 and A.4 would contend in a same tone that they came to the
\npicture only on 23.12.1992 when the negotiating committee was formed, that they
\ndid not play any role in selection of the contractors, that they negotiated with
\nM\/s.Entoma Hydro Systems for the reduction of the tender amount and that they do
\nnot have any connection with the alleged offences. The contentions could not be
\ncountenanced for the following reasons.\n<\/p>\n
\t28.\tFirstly, even though they stated that the tender committee and the
\nnegotiating committee are different, Ex.P.36 would vividly show that P.W.16, A.3
\nand 4 were the tender committee members and tender committee proceedings was
\nalso drafted with minute details with reference to the cost of work leaving the
\napproval with the Executive Director (A.1).  Hence, it is futile to contend that
\ntender committee was not constituted and that they were not members in the
\ntender committee.\n<\/p>\n
\t29.\tIt is stated that the tender committee has to verify and ascertain
\nthe previous experience and organisational capability for the proposed contract,
\nbut Ex.P.36 proceedings is silent about the previous experience of the proposed
\ncontractor, namely, M\/s.Entoma Hydro Systems.  They have recommended the name of
\nM\/s.Entoma Hydro Systems only because the said company quoted the lowest tender
\noffer.  What had prevented or hampered A.3, A.4 and P.W.16 while selecting
\nM\/s.Entoma Hydro Systems, in seeing the credentials of the firm and their
\nprevious experience is not divulged.  The duty of the tender committee is not
\nonly to negotiate with the proposed contractors but also to see the previous
\nexperience and credentials of the firm in the proposed work so as to produce the
\ndesired result. The tender Committee has not ascertained these norms.\n<\/p>\n
\t30.\tNextly, the explanation for avoidance of open tender in Ex.P.36
\nproceedings is not convincing and satisfactory, since P.W.28, the then Chairman
\nand Managing Director disclaimed that he advised to go in for a limited tender
\nonly.  The reason, that if open tenders were called for, it would throw open the
\nfield for all types of undesirable and incompetent agencies and more
\nimportantly, it would result in wide publicity for the work which in turn may
\ncreate possibilities of influential competitors directly approaching the
\ncustomers to snatch the business away from BHEL appears to be unreal perception
\nand such premise is alien to competitive business field and it does not sound
\ngood.\n<\/p>\n
\t31.\tIn the considered view of this Court, the above-said explanation is
\nnot at all persuading and satisfactory for avoiding the open tender. If it is
\nso, no Public Limited Company can call for open tender and they have to make
\ntheir own provisions to go in for limited tenders alone, entertaining
\nillusionary apprehensions, which could be conceptually misconceived.  The tender
\ncommittee has woefully failed to ascertain the following aspects for award of
\ncontract:-\n<\/p>\n
(i)Credentials of the firm\n<\/p>\n
(ii)Previous experience of the proposed contractor in the same field which the
\nwork involved.\n<\/p>\n
(iii)The viability of financial capacity of the proposed contractor.\n<\/p>\n
\t32.\tIt is stated by the officials of BHEL that only from 1997 onwards,
\nlist of contractors was maintained in BHEL. But the TWAD Board officials say
\nthat they did not give any list of contractors to BHEL.\n<\/p>\n
\t33.\tThis being entirely new venture of project and also hitherto not
\nadopted in this country and as one is uncertain regarding the nature of teething
\ntroubles during the actual execution and running of the plants after its initial
\ninstallation and trials as rightly provided in Ex.P.36, the members of tender
\ncommittee should have taken abundant care in selecting the contractor.  It is to
\nbe noted that Ex.P.36 is silent as to the registration of M\/s.Entoma Hydro
\nSystems.  The above said proceedings were simply and mechanically approved by
\nthe first accused without considering or keeping in mind the necessary norms or
\nacceptable standards.  He has not adverted to the above said requirements to be
\nfollowed prior to awarding of contract.\n<\/p>\n
\t34.\tIn this connection, it is to be seen that the contractor was
\npredetermined by A.1 himself which is evident from the oral testimony of P.W.36
\nwho was the then Managing Director.  He says that on 01.10.1993, the Minister
\nfor Local Administration held a meeting with regard to the project with BHEL
\nofficials and the State Government officials, that he participated along with
\nthe Executive Director in that meeting in which A.5 also participated, that when
\nthere was no Senior Manager in the name of Ramanath or Mohan Ramnath in BHEL,
\nTrichy, he did not know how the said Ramnath participated in the official
\nmeeting, that he was not invited that at the end of the meeting, he asked the
\nExecutive Director A.1, who was the gentleman for which he replied that he was
\nthe prospective contractor and that later the fact came to his knowledge after
\nhis retirement that the work was alloted to A.5.\n<\/p>\n
\t35.\tThis portion of evidence would candidly depict that A.1 had taken
\nA.5 to the official meeting without authority and he allowed him to participate
\nin the meeting.  The holding of meeting is evident from Ex.P.81 regarding of
\ndiscussions, in which the Finance Secretary, A.1, P.W.36 and other Officials of
\nBHEL and other Officials of the State  have participated.  It was held on
\n01.10.1993.  This record of minutes and discussions do not show the
\nparticipation of A.5.  However, it is brought to notice that he was also present
\nsince he was taken by A.1.\n<\/p>\n
\t36.\tIt is strongly agitated on behalf of A.1 that he did not dictate
\nEx.A.26 list as stated by the approver. But P.W.16 would say that on the
\ndictation of A.1, he prepared the list.  It is to be noted that the list was
\nwritten in a piece of paper which does not form part of any of the files of
\nBHEL.  Hence, it is incumbent upon the prosecution to establish that A.1 was the
\nauthor of the list.  Excepting ipsi dixit of P.W.16, there is no other material
\nforthcoming to establish the allegation.  This Court is of the view that the
\nversion that A.1 dictated Ex.A.26 list remains unproved.\n<\/p>\n
\t37.\tIt is stated that the list of contractors was given by TWAD Board.
\nBut the Chief Engineer of the TWAD Board, P.W.27 would say that the names of
\nM\/s.Raghava Engineers & Builders, M\/s.Mercantile Corporation  and M\/s.East Coast
\nBuildings were not suggested by the regional officials of TWAD Board for calling
\nlimited tenders and that the Board is maintaining the approved list of
\ncontractors for civil and other related works.  It is also the evidence of
\nP.W.23 who worked as Chief Engineer in TWAD Board during 1998 that higher
\nofficials of the department informed him that those companies (as stated above)
\nwere not registered with the TWAD Board.\n<\/p>\n
\t38.\tP.W.38, the then Managing Director of TWAD Board would say that TWAD
\nBoard has not given any names of contractors to BHEL, that he never heard the
\nname of the said companies during his tenure as Managing Director.  He was
\nholding the position as such from 29.11.1993 to 27.05.1996.  P.W.42 is the Chief
\nHead Draftsman of TWAD Board.  He has also stated that the said companies were
\nnot in the approved list of contractors of TWAD Board even in Western region
\nalso and they were not approved contractors of TWAD Board.  P.W.43 was working
\nas Joint Chief Engineer in TWAD Board, who also came out with same version.  But
\nhis statement under Section 161 Cr.P.C was not recorded.\n<\/p>\n
\t39.\tThe evidence of P.Ws.23, 27 and 38 would go to show that the list of
\ncontractors was not suggested by the TWAD Board. It goes without saying that the
\nlist originated only among BHEL authorities.  As far the mobilization advance,
\nit is the opinion of the Executive Engineer in CPWD P.W.8 that payment of
\nmobilization advance as 30% is excessive and that normally it would be in the
\nrange of 5% to 10%, but the tender committee has recommended payment of 30%
\nwithout any justification at all.  It is to be noticed that no suggestion was
\nput to him that his evidence as to the percentage of mobilization advance is
\nincorrect.  Since the execution of work was delayed and there was poor
\nperformance of the contract, the contract with M\/s.Entoma Hydro Systems was
\nterminated on 04.10.1996 as per Exs.P.77 and 78 dated 04.10.1996 by P.W.35
\nAssistant Manager (Civil).\n<\/p>\n
\t40.\tIn view of the above said discussions obtained from the appreciation
\nof oral evidence as well as the documents, the charges framed against A.1, A.3
\nand A.4 have been established before the Court.\n<\/p>\n
 \t41.\tIt is strongly contended on behalf of the accused that BHEL had not
\nsuffered any loss in awarding contract to M\/s.Entoma Hydro Systems. BHEL, on
\n27.09.1996 issued a letter to the Indian Bank stating that since M\/s.Entoma
\nHydro Systems has committed breach of contract, they invoked the bank guarantee
\nto the tune of    Rs.4,84,13,851\/-. It is an admitted fact.  But initially BHEL
\nsustained loss but it was compensated by invocation of bank guarantee on a later
\noccasion. M\/s.Entoma Hydro Systems gave bank guarantee to BHEL. On 07.10.1996
\nIndian Bank, Ethiraj Salai Branch, Chennai sent a communication to BHEL stating
\nthat they are enclosing a demand draft dated 07.06.1992 for a sum of
\nRs.4,84,13,851\/- in honour of their guarantee and on payment of that amount,
\ntheir liability against those guarantees are discharged.  They required BHEL to
\nreturn the original guarantee bonds.  The receipt of demand draft was
\nacknowledged by BHEL on 28.10.1996.  Since BHEL was made good loss, it is
\ncontended that there was no loss to the BHEL. Even though the loss sustained by
\nBHEL was compensated on a later occasion, it could not be stated that offences
\nas against the accused are not proved.  Wrongful loss was caused to HEL and
\nthereafter, bank guarantee was invoked.\n<\/p>\n
\t42.\tIn the considered view of this Court, even if the BHEL were
\ncompensated at a later point of time, the offences committed by the accused
\nwould entail penal action.\n<\/p>\n
Point: As regards the nexus of A.7 with the offence:-\n<\/p>\n
\t43.\tThe allegation against A.7 is that he took four demand drafts each
\nfor Rs.20,000\/- by applying, obtaining and sending them to BHEL to participate
\nin the tender process for various bogus companies with dishonest intention,
\nknowing full well that such companies were not in existence for which he is
\npunishable.  In this regard, come to the consideration of the Court Exs.P.66 and
\nP.76, P.90 and  P.92.  The following are the particulars of these exhibits.\n<\/p>\n
\t(i) Ex.P.66 is the application for demand draft for Rs.20,000\/- dated
\n17.12.1992 applied in the name of one M.Raghavan presented in Royapettah,
\nChennai.  As regards this document, P.W.22, the Senior Manager of Indian Bank
\nwas examined.  It is argued by A.7 that it is given by one M.Raghavan and A.7
\nhas no connection with the said M.Raghavan.\n<\/p>\n
\t(ii) Ex.P.76 is the application for demand draft of Rs.20,000\/- given by
\nMr.N.Ragunath, before the State Bank of India, Velacherry, Chennai.  As regards
\nthis document P.W.32, the then Branch Manager of the said bank was examined.
\nBut he did not work in the said branch during the relevant period.\n<\/p>\n
\t(iii)\tEx.P.90 is application for demand draft dated 17.12.1992 for
\nRs.20,000\/-.  It was given by one V.K.Eswar before the Bank of Madura.  P.W.40,
\nthe then Manager was examined.  However, his statement under Section 161 Cr.P.C
\nwas not recorded by the investigation officer.\n<\/p>\n
\t(iv)\t\tEx.P.92 is an application for demand draft for Rs.20,000\/-
\ndated 17.12.1992 which was presented into the State Bank of Mysore, T.Nagar
\nBranch, by Mr.N.Ragunath.  P.W.41 was brought to box to say about this.  He was
\nnot enquired by the investigation officer at the time of investigation and no
\nstatement was recorded from him under Section 161 Cr.P.C.\n<\/p>\n
\t 44.\tThe expert has given Nos.Q.169, Q.174, Q.175 and Q.172 in the
\nabovesaid documents.  Though handwritings in Ex.P.66,76,90 and 92 respectively
\nwere marked by him as above, he has not furnished any opinion in his report as
\nto their comparison.\n<\/p>\n
\t45.\tBy production of all the four applications for demand drafts and
\nexamination of the concerned Managers who were working in the respective banks,
\nthe prosecution claims that they have been proved.  It is pertinent to note that
\neven though the investigation officer got the sample handwritings and signatures
\nof A.7 under Ex.P.75 series, they were not compared by the handwriting expert,
\nP.W.30.  He compared and gave opinion Exs.P.68 and 69 as regards handwritings of
\nthe other accused, who are no more.  He has not compared the admitted and
\ndisputed handwritings and signatures of A.7.  His report does not contain any
\nopinion as to the handwritings and signatures of A.7.\n<\/p>\n
\t46.\t The trial Court Judge has observed that P.W.30 has not mentioned
\nabout Ex.P.75 series in relation to demand draft application in the report,
\nEx.P.69.  However, in the following paragraphs of the judgment, he has recorded
\nfinding that A.7 cannot disclaim knowledge about the diversion of funds into the
\naccount of M\/s.Insecticide and Allied Chemicals, in which firm, he is also one
\nof the partners.\n<\/p>\n
\t47.\tEx.P.12 is the Partnership Deed brought about among the family
\nmembers of  A.5 to 7 for the constitution of M\/s.Insecticide and Allied
\nChemicals.  It is stated that it pertains to 1977 and at that time, both 5th and
\n7th accused were minors.  However, Ex.P.65 is the details of transaction in the
\nAccount No.3084 relating to M\/s.Entoma Hydro Systems for the period from
\n01.08.1994 to 31.12.1994.  On 04.08.1994, a sum of Rs. 4,23,34,500\/- was
\ncredited which was received as mobilization advance from BHEL.  There is no
\nmaterial to show that A7 was minor during relevant period and there was no
\nquestion put to witnesses as to this aspect.\n<\/p>\n
\t48.\tEx.P.65 transactions shows diversion of funds to M\/s.Insecticides &
\nAllied Chemicals on three occasions i.e. Rs.2,50,000\/- and Rs.72,00,000\/-, both
\non 09.08.1994 and Rs.78,00,000\/- on 12.08.1994 totalling a sum of
\nRs.1,52,50,000\/-.   Within one week, out of the advance amount received from
\nBHEL, to the tune of Rs.1,52,50,000\/- has been diverted to M\/s.Insecticides &
\nAllied Chemicals which is the family firm of A.5 to A.7.  Hence, A7 cannot plead
\nignorance of receipt of such a hefty amount in the account belonging to
\nM\/s.Insecticides & Allied Chemicals.  It could be seen that he knew very well
\nabout existence of M\/s.Entoma Hydro Systems run by his brother A.5.  This is a
\npiece of evidence to infer the dishonesty on the part of A.7.\n<\/p>\n
\t49.\tIt is true to say that the admitted handwriting and signatures were
\nnot compared by the handwriting expert.  But, on this score alone, it cannot be
\nstated that the link for proof is missing in this case. Section 73 of the Indian
\nEvidence Act empowers the Court to compare disputed signatures and handwritings.
\nWithout the aid of the handwriting expert, the Court of its own can compare
\nhandwritings and signatures and definite conclusion could be arrived which is
\npermissible in law.  So far as the present case is concerned, the admitted
\nhandwritings and the signatures of A.7 were obtained  by the investigating
\nofficer, which are available for comparison with Exs.P.66, 76, 90 and 92.\n<\/p>\n
\t50.\tIn view of this Court, as the handwriting and signature of A.7 are
\nunique and peculiar in nature they could be easily compared with the writings
\nand signatures in the disputed records, in the backdrop of other circumstances
\nof this case. This Court has no hesitation to hold after taking a careful
\ncomparison of the admitted handwritings and signatures of A.7 with disputed
\nhandwritings and signatures reportedly put by A.7, that the disputed signatures
\nand  the handwritings belong to A.7.  Even though A.7 has signed in Ex.P.76 and
\nP.92 in a different manner which do not tally with his admitted signature,
\nhandwritings found in all the four applications for demand draft would
\nclinchingly expose  resemblance as his handwriting is unique in appearance, that
\ncould be discerned from comparison.  Ex.P.66 was given in the name of one
\nN.Ragunath in the same name (of A7) with different address. The investigation
\nofficer should have taken initiatives during his investigation to ascertain the
\npersons available in the addresses found in the four Exhibits.\n<\/p>\n
\t51.\tSection 73 of the Indian Evidence Act reads as follows, which
\nenables the Court to compare the handwriting and signatures while dispute arises
\nas to the genuineness of the handwriting and signature challenged before the
\nCourt.\n<\/p>\n
“73. Comparison of signature, writing or seal with others admitted or proved –
\nIn order to ascertain whether a signature, writing, or seal is that of the
\nperson by whom it purports to have been written or made, any signature writing
\nor seal admitted or proved to the satisfaction of the Court to have been written
\nor made by that person may be compared with the one which is to be proved,
\nalthough that signature, writing or seal has not been produced or proved for any
\nother purpose.\n<\/p>\n
\tThe Court may direct any person present in Court to write any words or
\nfigures for the purpose of enabling the Court to compare the words or figures so
\nwritten with any words or figures alleged to have been written by such person.\n<\/p>\n
\tThis section applies also, with any necessary modifications, to finger
\nimpressions.”\n<\/p>\n
\t52.\tThe Supreme Court is of the view that there is no impediment for the
\nCourt to exercise the power conferred upon it to compare the signatures and
\nhandwritings for which the aid of handwriting expert is not at all essential.
\nWhen the Court is of the opinion that even without the opinion of the
\nhandwriting expert before it, it can compare the disputed handwritings and
\nsignatures with those of admitted ones, it can do.  When the report of the
\nexpert is placed before the Court, it has to decide whether the expert’s opinion
\nhas to be corroborated or not.  Even if there were no opinion of the expert,
\nSection 73 of the Act paves way to the Court for comparison. Irrespective of an
\nopinion of the handwriting Expert, the Court can compare the admitted writing
\nwith disputed writing and come to its own independent conclusion.  Such exercise
\nof comparison is permissible under Section 73 of the Evidence Act. The following
\nare the decisions of the Apex Court relating to these positions.\n<\/p>\n
\t1. (1999) 6 Supreme Court Cases 104,
\n        K.B.Satyanarayana Vs. V.R.Narayana Rao,<\/p>\n
\t2. 2003 (3) CTC 494, Lalit Popli Vs. Canara Bank
\n        and others,<\/p>\n
\t3. 1980 (1) SCC 704, Murari Lal Vs. State of
\n        Madhya Pradesh,\n<\/p>\n
\t4. Division Bench decision of this Court in
\n       2006 (3) CTC 39, Central Bank of India V
\n       Antony Harware Mart<\/p>\n
\t53.\tThis Court compared the hand writings and signatures, exercising the
\npower vested by Section 73 of the Evidence Act. It has also considered another
\ncircumstance where diversion of funds to M\/s.Insecticides & Allied Chemicals
\nfrom BHEL.  It cannot be said that A.7, being one of the partners in the said
\nfirm, had no knowledge about diversion of funds in favour of the firm.  He
\ncannot plead ignorance of the fund diversion.  When this instance is considered
\nduring the process of comparing, it comes to light that A.7 is the author of the
\nwritings in the disputed documents.  In other words, the circumstance of
\ndiversion of funds from BHEL to the firm would support the opinion of this Court
\nobtained in the of comparison of disputed writings with admitted writings.\n<\/p>\n
\t54.\tThe seventh accused has not only given wrong addresses while he
\napplied for demand draft in different banks but also affixed his signatures in
\nall  the four application forms in different fashions.  Further, he has taken
\nthe risk of applying in imaginary names  and addresses.  The above said acts of
\nthe seventh accused could easily be brought under the purview of the provisions
\nof Sections 468  and 471 IPC.  Even if the evidence of concerned bank officials
\nwere not there, it is found that the disputed handwritings in the above said
\nfour exhibits certainly belong to the seventh accused by a careful and cautious
\ncomparison by this Court.  The connection of A-7 with offences has been proved.\n<\/p>\n
\t55.\tThe learned Senior Counsel appearing for the first accused would
\nplace reliance upon a decision of the Supreme Court reported in 2008 (1) SCC
\n(Cri) 573 [Anil Ritolla alias A.K.Ritolia v. State of Bihar and another] wherein
\nTheir Lordships have observed that the prosecution has to show that the accused
\nhad mala fide intention that he has induced the complainant to enter into the
\ntransaction so as to deceive him with a view to cause unlawful losses to them
\nand to make unlawful gain.\n<\/p>\n
\t56.\tIt is his contention that since there was no wrongful loss to the
\nBHEL, no dishonest intention could be inferred on the part of the first accused.
\nBut the fact remains that he was instrumental in calling for the limited tenders
\nfrom the firms which are not in existence and his nexus with A.5.   Somehow or
\nthe other, the list of contractors was known to A.1 being superior and deciding
\nauthority, who asked P.W.16 to arrange for calling for the tenders.  At the time
\nof approval of the tender committee minutes, just like A.3 and A.4, the first
\naccused has also ignored the procedures to be followed in the matter of awarding
\ncontract to the contractor who was a new entrant to execute the work awarded to
\nthem.\n<\/p>\n
\t57.\tA.1, A.3 and A.4 had no concern and not been attentive to the
\ncredentials of the firm, previous experience, the working efficiency, financial
\ncapacity, capability and registration of the contractors. A deep analysis of the
\nconcerned materials would amply amplify their connection with the contractor who
\ndid not know even a little in the filed of desalination, who proceeded to award
\ncontract in his favour without any basis.\n<\/p>\n
\t58.\tThe learned Senior Counsel for A.1 also placed reliance upon a
\ndecision of the Supreme Court reported in (2008) 1 Supreme Court Cases (Cri)
\n578, Thelapalli Raghavaiah Vs. Station House Officer, wherein it is observed
\nthat though a case of breach of trust may be both a civil wrong and a criminal
\noffence but there would be certain situations where it would predominantly be a
\ncivil wrong and may or may not amount to a criminal offence.  A careful scrutiny
\nof the materials shows that ingredients in relevant provisions under which A1 is
\ncharged are attracted.\n<\/p>\n
\t59.\tThe learned Senior Counsel appearing for A.3 and A.4 cites a
\ndecision rendered a learned single Judge of this Court in Crl.O.P.No.24756 of
\n2008 dated 23.12.2008, wherein it is observed as follows:
\n\t” 22. Another factor to be taken into consideration is that admittedly
\nthere is no dispute at all between the petitioners herein and the second
\nrespondent and even before any dispute was raised, the entire loan amounts with
\ninterest have been admittedly paid and without claiming any concession
\nwhatsoever and only thereafter the First Information Report has been registered
\nthat too not at the instance of the second respondent, but on the basis of an
\noral anonymous information.”\n<\/p>\n
\t60. The above said circumstance was considered by this Court on a
\ndifferent occasion while quashing of a First Information Report.  Further the
\nfacts available in this case are different.  Even though F.I.R was registered
\nunder source information, leads obtained by the investigator during the
\ninvestigation were abundant which were placed before the court during the trial,
\nthose were appreciated and a judgment of conviction has been rendered by the
\ntrial Court. This Court is also of the view that the informations contained in
\nF.I.R are supported by ample evidence available on record. Hence, the above said
\ndecision is not applicable to this case.\n<\/p>\n
\t61. In the above said case, a decision of the Supreme Court reported in JT
\n2008 9 SCC 192 [Nikil Merchant v. Central Bureau of Investigation & Anr.]
\nwherein it is held as under:\n<\/p>\n
\t“21. The basic intention of the accused in this case appears to have been
\nto misrepresent the financial status of the company, M\/s. Neemuch Emballage
\nLimited, Mumbai, in order to avail the credit facilities to an extent to which
\nthe company was not entitled.  In other words, the main intention of the company
\nand its officers was to cheat the Bank and induce it to part with additional
\namounts of credit to which the company was not otherwise entitled.\n<\/p>\n
\t22…\n<\/p>\n
\t23. In the instant case, the disputes between the Company and the Bank
\nhave been set at rest on the basis of the compromise arrived at by them
\nwhereunder the dues of the Bank have been cleared and the Bank does not appear
\nto have any further claim against the Company.  What, however, remains is the
\nfact that certain documents were alleged to have been created by the appellant
\nherein in order to avail the credit facilities beyond the limit to which the
\nCompany was entitled.  The dispute involved herein has overtones of a civil
\ndispute with certain criminal facets.\n<\/p>\n
\t24. …. keeping in mind the decision of this Court in B.S.Joshi’s case
\n(supra) and the compromise arrived at between the Company and the Bank as also
\nclause 11 of the consent terms filed in the suit filed by the Bank, we are
\nsatisfied that this is a fit case where technicality should not be allowed to
\nstand in the way in the quashing of the criminal proceedings, since, in our
\nview, the continuance of the same after the compromise arrived at between the
\nparties would be a futile exercise”\n<\/p>\n
In the aforestated case there was a compromise between the parties and the
\nSupreme Court observed that  continuance of the proceeding after the compromise
\nwould be a futile exercise.  But the facts in this case are otherwise. No
\ncompromise was ever entered into between the parties. BHEL invoked bank
\nguarantee since the funds were wrongfully lost by it. In invocation of funds
\nfrom the bank by the BHEL, the accused had no hands. The Supreme Court has
\nreferred to another decision in (2003) 4 SCC 785 [B.S. Joshi v. State of
\nHaryana] wherein it is observed as follows:\n<\/p>\n
\t“(iii) Judgment, dated 16.10.2008 of the Hon ‘ble Apex Court rendered in
\nthe case of Manoj Sharma v. State and others in Crl.A.No.1619 of 2008 (SLP (Cri)
\nNo.5265 of 2007.  In this case the very question which came up for consideration
\nbefore the Hon ‘ble Apex Court was that whether a First Information Report under
\nSections 420, 468, 471, 34, 120-B IPC can be quashed either under Section 482 of
\nthe Cr.P.C. or under Article 226 of the Constitution, when the accused and the
\ncomplainant have compromised and settled the matter between themselves.  The Hon
\n‘ble Apex Court while considering the aforesaid question basing reliance on the
\ndecision rendered in the case of B.S.Joshi v. State of Haryana and reported in
\n(2003) 4 SCC 675 and Nikhil Merchant’s case and the facts of that case, held as
\nunder:-\n<\/p>\n
\t“8. …. Once the complainant decided not to pursue the matter further,
\nthe High Court could have taken a more pragmatic view of the matter.  We do not
\nsuggest that while exercising its powers under Article 226 of the Constitution
\nthe High Court could not have refused to quash the First Information Report, but
\nwhat we do say is that the matter could have been considered by the High Court
\nwith greater pragmatism in the facts of the case.  As we have indicated
\nhereinbefore, the exercise of power under Section 482 Cr.P.C. or Article 226 of
\nthe Constitution is discretionary to be exercised in the facts of each case.\n<\/p>\n
\t9. In the facts of this case we are of the view that continuing with the
\ncriminal proceedings would be an exercise in futility.””\n<\/p>\n
\t62. As adverted to supra, the Apex Court has held that when the accused
\nand complainant have compromised and settled the matter between themselves,
\nthere is no question of further proceeding with the criminal action and hence
\nthe powers under Section 482 of Cr.P.C could be exercised. But in this case, as
\nalready stated, no such compromise is involved.  Hence the accused could not
\nderive any benefit from the above said decisions.\n<\/p>\n
 \t63. The learned Senior counsel for A3 and A4 also pointed out that BHEL
\nadministration had refused to accord sanction to prosecute A.3 and A.4 and the
\nletter in this connection dated 24.11.2000 by the Chairman and Managing Director
\nto the Chief Vigilance Commissioner would show that both A.3 and A.5 are
\nmeritorious officers with an unblemished record, that despite mental tension
\nsuffered by them since the filing of the FIR in January,1997, these two officers
\nhave been performing their duties with whole hearted devotion and in the best
\ninterests of the company and  while Thyagarajan has been ably heading the
\nfinance function of a large unit such as Trichy with operations of over Rs.1500
\nCrores worth specially highlighting, in respect of Chandrasekharan in his
\ncurrent assignment of modernising BHEL Trichy’s facilities under BHEL Board
\napproved schemes with sanctioned costs totalling about Rs.185 crores, he has
\nsucceeded in getting the  best prices and terms for the benefit of BHEL Trichy.\n<\/p>\n
\t64.\tTheir administration might have refused to give sanction for
\nprosecution against them, but it could not constitute a ground to reject the
\nprosecution case which is based on the records for which they are the authors.
\nThe said letter does not form part of records.\n<\/p>\n
\t65.\tOn behalf of the 7th accused, the following decisions were relied
\nupon:\n<\/p>\n
\t65.(1) In AIR 1980 SC 499 [Abudlla Mohammed Pagarkar etc., Vs. State
\n(Union Territory of Goa, Daman and Diu)], while dealing with the offences under
\nSections 420, 468, 471 I.P.C and Section 5(1)(d) of Prevention of Corruption
\nAct, the Supreme Court has held as follows:\n<\/p>\n
“15. Learned counsel for the State sought to buttress the evidence which we have
\njust above discussed with the findings recorded by the learned Special Judge and
\ndetailed as Items (a) to (e) in para 9 and Items (i) and (iii) in para 10 of
\nthis judgment. Those findings were affirmed by the learned Judicial Commissioner
\nand we are clearly of the opinion, for reasons which need not be restated here,
\nthat they were correctly arrived at. But those findings merely make out that the
\nappellants proceeded to execute the work in flagrant disregard of the relevant
\nrules of the G.F.R. and even of ordinary norms of procedural behaviour of
\ngovernment officials and contractors in the matter of execution of works
\nundertaken by the Government. Such disregard however has not been shown to us to
\namount to any of the offences of which the appellants have been convicted. The
\nsaid findings no doubt make the suspicion to which we have above adverted still
\nstronger but that is where the matter rests and it cannot be said that any of
\nthe ingredients of the charge have been made out.”\n<\/p>\n
 \t 65.(2) In AIR 1979 SC 1890 [Chatt Ram v. State of Haryana] the Supreme
\nCourt has observed as follows:\n<\/p>\n
\t25. Even if it is assumed for the sake of argument that the number on Ex.
\nP-3 had been forged, that by itself would not show that Chatt Ram, appellant
\nforged it or participated in its forgery. Nor would the mere fact that Chatt Ram
\npresented this ticket before the officers concerned and claimed the special
\nprize on its basis, necessarily stamp him with the knowledge or belief of its
\nforged character.\n<\/p>\n
\t26. Nor were the two circumstances pointed out by the counsel for the
\nState such as would unerringly raise an inference that the appellant possessed
\nthe mens rea requisite for an offence under Section 471 of the Penal Code, when,
\nhe presented Ex. P-3 to the officers concerned for claiming the special prize.
\nThese two circumstances (which have been set out in a foregoing part of this
\njudgment), at the most raise a suspicion about the requisite guilty knowledge or
\nbelief on the part of the appellant. But suspicion is no substitute for proof.\n<\/p>\n
\t27. To sum up, even if the evidence of PWs 6, 12, 22, and 26 was assumed
\nto be admissible under Section 45 of the Evidence Act, it was not sufficient to
\nestablish beyond reasonable doubt that the ticket Ex. P-3 was a forged document.
\nFurther, even on the assumption that the ticket Ex. P-3 was a forged document,
\nthe evidence on the record did not indubitably lead to the conclusion that the
\nappellant Chatt Ram was concerned in forging it or had the requisite guilty
\nknowledge of its forged character when he presented it and claimed prize on its
\nbasis before the officers concerned. It is immaterial if at any subsequent point
\nof time he came to know of its forged character.”\n<\/p>\n
But in the case on hand, it has been shown that A7 has participated in forging
\nof Exs.P.66, 76, 90 and 92.  Hence he could not take recourse to the advantages
\nof the above said decisions.\n<\/p>\n
\t65.(3) In 2004 Crl.L.J.4075 [Dhara Ram v. State of Rajasthan] it is held
\nthat even if the offences are alledged under Section 419,  467, 471 and 120-B
\nI.P.C., it is not sufficient that the accused indulged any dishonest act but
\nmens rea on his part shall also be established. In the present case, the mens
\nrea on part of A7 is the discernible from the circumstance where he presented
\nthe applications for obtaining demand drafts from four banks with fictitious
\nnames and addresses on a same day and on the subsequent occasion, he maintained
\nsilence even though he very well knew about the accumulation of considerable
\nfunds in the account of M\/s.Insecticides and Allied Chemicals.\n<\/p>\n
\t65.(4) In AIR 1979 SC 826 [S.P. Bhatnagar v. State of Maharashtra<\/a>] it is
\nheld that circumstantial evidence adduced by prosecution does not lead to
\nunerring certainty that appellant No.1 and 2 acted with any dishonest intention
\nor corrupt motive or abused their position; that the position of A-2 is also not
\nmaterially different as in his case also the prosecution has not been able to
\nshow that he derived any monetary gain out of the transaction.  But the facts in
\nthe present case are distinguishable.  Being one of the partners in
\nM\/s.Insecticides and Allied Chemicals, A7 was fully aware that funds got
\ndiverted into its account and he was fully conscious of the said accumulation.\n<\/p>\n
\t65.(5) Two unreported decisions rendered by a learned single Judge of this
\nCourt were also cited on behalf of   A-7, which are common judgments in
\nCrl.A.Nos.253, 254, 287, 298, 313 and 381 of 2000 [Selvaraju and others v.
\nState, Addl Deputy Superintendent of Police] dated 24.8.2009 and in
\nCrl.A.Nos.452 to 458 and 498 of 2000 [Sathiamurthy and others v. State of
\nTamilnadu and others] dated 21.8.2009.  In both the judgments the discussion
\nproceeds to the effect that the prosecution has miserably failed to establish
\nthe guilt of the accused beyond all reasonable doubts.  So far in this case,
\nthere are direct evidence to connect A-7 in the offence.\n<\/p>\n
\t\t66.\tIn 2003 SCC (Crl) 1121, Hira Lal Hari Lal Bhagwati V. CBI, it
\nis observed that to constitute offence under Section 420, existence of
\nfraudulent or dishonest intention must be necessary at the time of making
\npromise or representation.  In order to constitute the offence against A.7 under
\nSection 109 IPC read with Section 13(1)(d) of the Prevention of Corruption Act,
\nit must be shown that he abetted the other accused to commit the offence.  It is
\nargued by the respondent that inaction on his part even after knowing that the
\namount as afore-mentioned have been deposited into the firm of M\/s.Pesticides
\nand Allied Chemicals would show that he had cheated BHEL. He got wrongful gain
\nand obtained pecuniary advantage dishonestly. Hence, the above said charge has
\nbeen proved against him.  As far as presentation of Exs.P.66, 76, 90 and 92 into
\nthe respective banks is concerned, the act of the seventh accused could be
\nbrought within the purview of  Sections 468 read with Section 471 IPC.\tThe
\nprosecution has brought home guilt of the accused beyond all reasonable doubt.
\nThis point is answered in the affirmative.\n<\/p>\n
\t\t67.  A conspectus of the materials available in this case would pave
\nway to conclude that the charges under which the accused have been convicted and
\nsentenced by the trial Court have been established by the prosecution beyond
\nreasonable doubt.  This Court does not find any infirmity either legally or
\nfactually in the judgment challenged before this Court.  The ingredients of the
\nprovisions of law under which the accused have been charged have been proved.
\nThere is no valid ground to modify or set aside the conclusion arrived at by the
\ntrial Court.  The conviction and sentence recorded by the trial Court need not
\nbe disturbed.  The judgment challenged before this Court deserves to be
\nconfirmed and accordingly, it is confirmed. These appeals have to suffer
\ndismissal.\n<\/p>\n
\t\tIn the result, all the three appeals in Crl.A.Nos.437,445 and 469 of
\n2006 are dismissed.  The trial Court is directed to issue warrant to commit the
\nappellants\/accused to prison to suffer the remaining portion of sentence.\n<\/p>\n
ssm\/ggs<\/p>\n
To
\nThe Principal Special Judge for CBI Cases
\nMadurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court A.Srinivasulu vs The State on 17 September, 2010 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 17\/09\/2010 CORAM THE HONOURABLE MR.JUSTICE S. PALANIVELU Criminal Appeal(MD)No.437 of 2006 Criminal Appeal(MD)No.445 of 2006 and Criminal Appeal(MD)No.469 of 2006 A.Srinivasulu … Appellant in Crl.A.No.437 of 2006\/A1 1.R.Thiagarajan 2.K.Chandrasekaran … Appellants in Crl.A.No.469 of 2006\/ […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-161136","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nA.Srinivasulu vs The State on 17 September, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/a-srinivasulu-vs-the-state-on-17-september-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"A.Srinivasulu vs The State on 17 September, 2010 - 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