R.R. Prasad, J. - (1.) BOTH the appeals since arising out of same judgment and order were heard together and are being disposed of, by the common judgment and order. Both the appeals are directed against the judgment of conviction dated 13.7.2012 and the order of sentence dated 19.7.2012, passed in R.C. Case No. 15A/1994 -D, whereby and whereunder, the appellants having been found guilty for the offences punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act and also under Section 420 of the Indian Penal Code were sentenced to undergo R.I. for two years and a fine of Rs. 5,000/ - for the offences under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. In default to undergo S.I. for two months. Further they were sentenced to undergo R.I. for three years under Section 120 -B read with Section 420 of the Indian Penal Code and to pay fine of Rs. 5,000/ -, with a default clause to undergo S.I. for two months.
(2.) THE case of the prosecution is that B.C.C.L. had constructed some quarters at Matigarha section of Kesargarh Colliery, which were to be provided with water supply through over -head tank. For construction of overhead tank, an estimate of Rs. 1,83,782.14/ - was prepared for having overhead water tank of a capacity of 50,000 gallons. On the basis of the said estimate, tenders were invited. Pursuant to that on amongst others, M/s. Rajesh Trading Company. Dhanbad submitted its tender papers. A Tender Committee consisting of the Deputy General Manager, Deputy Chief Finance Manager, Area Civil Engineer, Block II Area, was constituted for the purpose of detail scrutiny of the tender papers and to take decision for recommending the name of the successful bidder for awarding contract. In the N.I.T., it was provided that the tendered should have prior experience of construction of overhead water reservoir. M/s. Rajesh Trading Company, Dhanbad though had no such experience, but the Tender Committee made recommendation for awarding work to him by showing undue favour. The said recommendation was even approved by the General Manager, Block II Area of B.C.C.L. Accordingly, work order was issued in favour of M/s. Rajesh Trading Company, Dhanbad on 25/27.6.1990. Thereafter work got started and it was completed in December 1991. After more than a year, to test it as to whether it does have any fault or not, the overhead tank was partially charged with water on 18.1.1993. On the following day it was further charged with water. In the afternoon, overhead water tank got collapsed with heavy sound which attracted attention of Bishwanath Rawani (P.W.2), Tapan Kumar Singh (P.W.5), and Awadhesh Prasad Srivastava, Assistant Engineer (P.W.6), who reported the matter to Nikhilesh Kumar Jha, General Manager, (Construction) (P.W.1). On enquiry, P.W.6 found that quality of reinforced cement was quite poor which resulted into collapse of water tank. When the matter was reported to the C.B.I., it got a First Information Report (Ex -hibit -13) lodged which was registered as R.C. 15A/1994 -D, under Sections 120 -B read with Sections 420, 468, 471 and 477A of the Indian Penal Code and also under Section 13(2) read with Section 13(1)(d) of the P.C. Act not only against the appellant No. 1, who happened to be the Senior Executive Engineer (Civil) and the appellant No. 2 the then Senior Overseer, Block II Area, B.C.C.L., but also against five others including the General Manager, (Safety), the Deputy General Manager, the Deputy Chief Finance Manager, Area Civil Engineer and the proprietor of M/s. Rajesh Trading Company, Dhanbad.
(3.) WHILE the matter was under investigation by the C.B.I., Anjani Kumar Verma (P.W.7), the Superintending Engineer on holding enquiry submitted an enquiry report to P.W.1 -Nikhilesh Kumar Jha, who held both the appellants responsible for collapse of water tank and hence, submitted its enquiry report against the appellants vide Exhibit 1 and Exhibit 1/1. The I.O., Manoj Kumar Sharma (P.W.16) during investigation, in presence of Md. Jalaluddin (P.W.12), Assistant Surveyor, C.P.W.D. and other officials of the B.C.C.L. took the sample of the north side of the wall of the collapsed dome on 6.9.1993, and prepared a memorandum (Exhibit -11). Similarly on collecting sample of shaft wall as well as southern side of dome wall on 7.4.1993, a memorandum (Exhibit 12) was prepared. The said samples were sent to Bhawani Kumar. Bishwash (P.W.11), Scientist of the National Test House, Calcutta for its chemical examination. On examination, ratio of cement, sand and coarse aggregate by weight was found in case of shaft wall as 1:5.1:11.5 and in case of dome wall (South side), as 1: 6.2: 13.3 and in case of unmarked sample, as 1: 5.1: 8.6. P.W.11 accordingly submitted its report (Exhibit -9). The C.B.I. having completed investigation, sought for, sanction for prosecution from competent authority. Accordingly, the competent authority accorded sanction for prosecution of the appellants, Shashi Bhushan Azad and Maheshwari Prasad. P.W.3, Tapan Kumar Mazumdar has proved the order sanctioning prosecution of the appellant -Shashi Bhushan Azad as Exhibit -4, whereas. P.W.4 has proved the order of sanction for prosecution of Maheshwari Prasad as Exhibit 4/1. Accordingly, the I.O. submitted charge -sheet against these two appellants as well as proprietor of M/s. Rajesh Trading Company only. Upon which cognizance of the offences was taken. Subsequently, charges were framed against the appellants and the proprietor to the effect that the appellants being public servant employed as the Executive Engineer (Civil) and the Overseer (Civil), respectively Block II Area, BCCL, Dhanbad committed criminal mis -conduct punishable under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act as they obtained work order of contract for Om Prakash Gupta, proprietor of M/s. Rajesh Trading Company and also obtained pecuniary advantages of Rs. 2,61,340/ - from the B.C.C.L., Dhanbad and that they in furtherance of criminal conspiracy got the work in favour of M/s. Rajesh Trading Company for construction of reservoir which collapsed due to use of substandard material in its construction and fraudulently and dishonestly induced to deliver Rs. 2,61,340/ - to the accused -Om Prakash Gupta and thereby, committed offence under Section 120B and also under Section 420 of the Indian Penal Code.;