P.PATNAIK, J. -
(1.) The above mentioned three separate appeals have been preferred by the respective appellants challenging the common judgment dated 24.04.2018 passed by the learned Special Judge (Vigilance), Sundargarh in CTR Case No.20 of 2007 convicting and sentencing each of the above named appellants and to undergo R.I. for two years and to pay a fine of Rs.10,000/- (rupees ten thousand) in default of payment of fine to undergo a further period of rigorous imprisonment for three months under each of the offences under Section 120-B, 468/120-B, 471/120-B and 420/120-B of the Indian Penal Code (in short the 'I.P.C.')
Further the appellants in CRLA Nos.363 of 2018 and 390 of 2018 being the public servant were also sentenced to undergo R.I. for two years and to pay a fine of Rs.10,000/- in default on payment of fine amount to undergo further period of R.I. for three months on each of the offences under Section 477-A, I.P.C. and under Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988.
All the above substantive sentences awarded to each of the convicts were directed to run concurrently with the benefit of set off.
(2.) The gravamen of the prosecution case, in a nut shell, is that on the basis of allegation of defalcation of Government money by recording inflated measurement in the execution of the road work "S/R to Lathikata-Timjore Road from RD 1/300 Mtrs. to 1/865 Mtrs. for the year 2001-2002, an enquiry was undertaken by the Vigilance Wing. During enquiry, it came to light that the said work was awarded to Contractor, Manoj Mohapatra vide Agreement no.308F/2 for value of Rs.1,99,857/- . Pursuant to the agreement, the items of the work were to be executed for metaling, earth work, surface dressing and seal coating. The work commenced on 09.01.2002 and completed before 31.03.2002. After completion of the work, appellant, Niranjan Jena, Junior Engineer took the measurement and the appellant, Tapan Kumar Garnaik, Assistant Executive Engineer conducted the check measurement and basing on their measurement and check measurement, final bill was prepared and appellant-Manoj Mohapatra, the Contractor was paid Rs.1,74,565/- after deducting Rs.25,068/- towards royalty, R.D., I.T. and O.S.T. The Technical Wing inspected the work on 11.01.2004 and 12.01.2004 in presence of appellant Niranjan Jena and Tapan Kumar Garnaik and found that works were executed for 200 meters from RD 1300 meters to RD 1500 meters and there was no work from 1500 meters to 1865 meters and the inspection team calculated the value of work executed to be Rs.77,829/- and there was excess payment of Rs.96,736/- after deducting Rs.25,685/-. After inspection, a memorandum was prepared.
On the basis of enquiry, the DSP (Vigilance), Rourkela lodged a written report before the Superintendent of Police (Vigilance), Sambalpur, and Sambalpur Vigilance P.S. Case No.05 of 2005 was registered and on the direction of the Superintendent of Police (Vigilance), Sambalpur, he continued with the investigation. During the course of the investigation, the DSP Vigilance seized the relevant measurement book, Tender file, Agreement, Tender Paper, final bill, running account bill, files relating to disputed work and other documents. During investigation, it revealed that the accused persons have entered into a criminal conspiracy to cheat the Government and by corrupt illegal means obtained pecuniary advantage of Rs.96,736/- by creating false bills.
Sanction order was obtained against the appellant Niranjan Jena and Tapan Kumar Garnaik. On completion of investigation, charge sheet was submitted against all the accused persons, namely, Niranjan Jena, Tapan Kumar Garnaik and Manoj Mohapatra.
(3.) The learned Trial Court on the basis of allegation and enquiry decided the case on the following points:-
(i) Whether all the accused persons were a party to a criminal conspiracy by agreeing to do or caused to be done any illegal act to cheat the Govt. and to cause loss of Rs.96,736/- to the Govt. Exchequer by creating false vouchers and falsifying accounts?
(ii) Whether all the accused persons in pursuance to their conspiracy have cheated the Govt. inducing to deliver an amount of Rs.96,737/-?
(iii) Whether all the accused persons in pursuance to their conspiracy created false vouchers/bills intending to be used for the purpose of cheating the Govt.?
(iv) Whether all the accused persons in pursuance to their conspiracy fraudulently used the false bills as genuine which they knew at the time of use to be a forged bill?
(v) Whether the accused persons, namely, Niranjan Jena and Tapan Kumar Garnaik during their incumbency as Junior Engineer and Assistant Executive Engineer and being public servants, obtained pecuniary advantage?
(vi) Whether accused Niranjan Jena and Tapan Kumar Garnaik being Govt. servants willfully and with intent to defraud, falsified the accounts and vouchers?;