JASWANT SINGH -
(1.) THE above noted two criminal appeals which are directed against the common Judgment and Order dated 6/08/1975 of the High Court of Judicature at Bombay affirming on appeal the Judgment and Order dated 6/08/1973 of the Special Judge Greater Bombay, convicting S. P. Bhatnagar, appellant in the aforesaid first appeal, (hereinafter described as A-1) under Section 120-B read with Sections 409 and 109 of the Indian Penal Code and Section 5 (1) read with Section 5 (2) of the Prevention of Corruption Act, 1947, and sentencing him to six months simple imprisonment on each of the said two counts as well as convicting A. S. Krishnaswami, appellant in the aforesaid second appeal (hereinafter described as A-2) under the aforesaid two counts but reducing his sentence from nine months' imprisonment to six months' simple imprisonment on each one of those counts shall be disposed of by this judgment.
(2.) BRIEFLY put the case as set up by the prosecution was :
In 1964, the Indian Oil Corporation (hereinafter referred to as 'the Corporation') which is a Government owned company, decided to purchase 13 acres and odd of a hilly tract of land situate in village Mahul in Trombay (Bombay) from the Tatas for the purpose of erecting black furnace oil storage tanks and construction of administrative buildings. After the area was taken over by the Corporation, Varandani (P. W. 20), Junior Engineer of the Corporation, surveyed the land in October, 1964, under the directions of A-1 and A-2, the Engineering Manager and Senior Engineer respectively of the Engineering Department of the Marketing Division of the Corporation, with a view to find out the extent of rock cutting and filling which might be required to be done for levelling the area of 7 acres out of the said tract of land. The kacha level plan (Exh. 125) and work-sheets prepared by Varandani on 13/10/1964 and 3/11/1964, respectively during the course of his aforesaid survey (which were signed by A-1 and A-2), showed that 16,80.000 cft. of rock cutting work and 8,00,000 cft. of filling work would have to be done to suit the purpose for which the land was acquired. Estimate (Exh. 27) prepared by Varandani indicated that expenditure at the rate of Rs. 30.00 per 100 cft. for rock cutting and Rupees 10/- per 100 cft. for filling would have to be incurred. Pucca tracing (Exh. 34) of level plan (Exh. 125) and copies thereof signed by A-1 and A-2, and contour plan prepared by Varandani and approved by Engineering Manager were kept on the record. On the basis of the survey and the estimate of expenditure made by Varandani notice (Exh. 28) inviting tenders from experienced civil contractors for rock cutting, filling and levelling of the land in question was prepared by A- 2/02/1965, and was forwarded (under his signatures) by A-1 to the Finance Department for approval on 5/02/1965. After the approval of the Finance Department, the Public Relations Officer of the Corporation by his letter (Exh. 29) dated 11/02/1965 requested Times of India, Indian Express and Free Press to publish the tender notice (Exh. 28) wherein it was stated that the tenders which should reach the Corporation by 2.30 P.M. on 2/03/1965 would be opened at 3.00 P.M. on that date. In response to this notice eleven firms of contractors including Ram and Co. submitted their tenders. N. N. Desai (hereinafter described as A-4) however abstained from submitting his tender. In the meanwhile, it was decided that instead of having stack measurements as provided in Exhibit 28, it would be desirable to have the measurements on the basis of differences between the existing and finished levels. Accordingly, on 5/03/1965, the aforesaid eleven tenderers were asked to submit revised tenders on the basis of the amended tender notice by 15/03/1965.
Although fresh tenders were restricted to the original eleven tenderers, a tender form was issued to A-4 in response to the application made by him on 8/03/1965. On opening the tenders on 15/03/1965, it was found that five out of the eleven original tenderers and four new ones including A-4 had submitted their tenders, that the tender of Ram and Co. whereby it had quoted Rs. 28.00 per 100 cft. for cutting work and 'nil' amount for filling was the lowest and that the second lowest tender was of A-4 who had quoted Rs. 26.00 per 100 cft. for cutting and Rs. 6.00 per 100 cft. for filling work. Thus, the actual amount as per quotation of Ram and Co. was Rs. 4,70,400.00 and that of A-4 was Rs. 4,84,800.00 for 16,80,000 cft. of cutting work and 8,00,000 cft. of filling work. On discovering that the tender of his firm was lowest, Roshan Lal, a partner of Ram and Co. addressed communication dated 20/03/1965 to the Managing Director of the Corporation requesting him that the aforesaid job of rock cutting and filling be entrusted to his firm in view of its working experience detailed therein but handed over the same to A-1. At or about this time, Messrs Labitos Oil Fields Limited, a British firm, with whom the Corporation was trying to collaborate in its project advised the Corporation that instead of three levels (steppings) which had been planned as per contour map (Exh. 34) there should be a single level and instead of the survey being on the basis of 100 ft. spacing as done earlier by Varandani, it should be on the basis of 10 ft. spacing. Accordingly A-1 and A-2 told Varandani (P. W. 20) and S. D. Vaidya, another Assistant Engineer (hereinafter described as A-3) to make a fresh survey along with A-4 according to the advice of Messrs Labitos Oil Fields Limited as it had been almost decided to entrust the aforesaid work to A-4. Pursuant to the instructions of A-1 and A-2, B. N. Desai a representative of A-4 was associated with the revised survey which was carried from March 21 to March 26, 1965. As a result of the joint survey kacha level plan (Exh. 22) and work-sheet (Exh. 23) were prepared by A-3 under the directions of Varandani. As a result of this survey, it was found that rock cutting and filling would have to be done to the extent of 23,30,454 cft. and 31,500 cft. respectively as against 16,80,000 cft. and 8,00,000 cft. respectively as found as a result of the earlier survey. Notwithstanding the large variations in the cutting and filling work which required to be done as a result of the revised joint survey, the Engineering Department did not invite fresh tenders but instead prepared another comparative statement on the basis of the rates quoted by Ram and Co. and A-4 in their tenders opened on 15/03/1965 and showed therein that the tender of A-4 had turned out to be the lowest and that of Ram and Co. to be the second lowest. On 7/04/1965 A-2 drew up tender committee proceedings (Exh. 16) as reproduced below and got them signed by A-1 in the hope that the recommendations made therein would be accepted by Srivastava (P. W. 5), the Financial Controller, and Mr. Patel, the Operation Manager, of the Corporation, who were the other members of the Tender Committee, in addition to A-1 and finally by Gopal Krishan, the then Chairman of the Company:-
"Ref. No. ENG/ASK/Q/250
Subject: Tender Committee proceedings for the finalisation of rock cutting, levelling of plot, taken over from M/s. Tata at Bombay.
(1) We had taken over 13.5 acres of land from M/s. Tata Power House at Trombay. It was intended to level this plot of land and recover about 7 acres of land by cutting and levelling in order to put up our Black Storage tanks and other allied facilities. Due to the uneven terrain, it was decided to have two steppings so that the storage tanks may be installed at a higher level and the remaining administrative blocks, warehouse, stores etc., at a lower level. Accordingly Public Tenders were invited for rock cutting and filling this area on 100 cft. basis.
(2) Subsequently, M/s. Lobitos Oil Fields Ltd. Ellesmere Port, Wirral, Cheshire, had negotiations with us for putting up a Transformer Oil Blending Plant at this site. The representatives of the above firm during their discussions with C. and S. M. and M. E. (accused No. 1) stated, that they would like to have only plain piece of land instead of steppings as was decided by us previously. This will entail additional cutting and minimise the quantity of filling.
(3) Our estimated quantity previously was 16,80,000 cft. of cutting and 8,00,000 cft. of filling. As per the revision in the levels to be maintained at this site that the total quantity of cutting comes to 23,30,456 cft. The quantity of filling comes to 31,500 cft. The total estimated cost for the original work was Rs. 6,13,200.00.
A comparative statement has been drawn as per the tendered rates quoted by the various parties and the position of the first three is as follows:-
M/s. N. N. Desai, Contractor are the lowest. The Tender Committee therefore recommends that this work may be allotted to M/s. N. N. Desai, Contractor at their quoted rate of Rs. 6,07,807.00 being the lowest tenderer.
(S. P. Bhatnagar)(A. K. Srivastava)
(H. B. Patel)
(P. A. Gopalkrishnan)Chairman"
Contrary to the expectations of A-1 and A-2, Srivastava (P. W. 5) refused to be a party to the Tender Committee recommendations. Ignoring not only the opposition of Srivastava and the suggestion of the Accounts Officer of the Finance Department and the Assistant Finance Controller of the Corporation made vide Exhibit 68 and Exh. 31 respectively while processing the tender committee proceedings that in view of the fact that both the quantity and value of the work had increased substantially as a result of the revised survey, it would be fair and proper to ask all the contractors who had responded to the tender notice to re-submit their quotations but also the offer made by Ram and Co. (which possessed the requisite skill and equipment) to execute the contract at the lower rates of Rs. 20.00 per 100 cft. for rock cutting and Rs. 15.00 per 100 cft. for filling as well as the flat refusal to reduce his rates given by A-4 during the negotiations conducted at the suggestion of the Accounts Department of the Corporation on 17/04/1965 with the three contractors mentioned in Exhibit 16. A-2 carried on in pursuance of the conspiracy entered into between himself and A-1 and A-4, fresh negotiations with A-4 on or about 20/04/1965 without associating any member of the Finance Department and persuaded him to accept the lowest revised rates offered by Ram and Co. although he did not possess the requisite experience in and equipment for rock cutting and filling and bypassing the Financial Controller forwarded the papers to the Operation Manager who not being conversant with the proceedings supported A-2 for entrusting the contract to A-4 at the lowest rates offered by Ram and Co. On the Tender Committee recommendations reaching him in circulation, Srivastava put on record his bold and emphatic protest but eventually reluctantly gave his concurrence to the recommendations made by A-1 and the Operation Manager as is evident from the concluding sentence of the Note:
"The case is recommended for acceptance of the Chairman only because the Engineering Manager has certified that he would not be able to accept any responsibility about the deadline if work is not given to Desai."
(3.) ALTHOUGH according to A-2's note (Exh. 33) dated 19/04/1965, the Co-ordinator and Sales Manager was keen to have the site developed as early as possible, the latter held up the matter for nearly three months in the vain expectation that the work would be done free of cost either by the Government of Maharashtra or the Bharat Sevak Samaj and it was not before 15/07/1967 that he gave his approval to A-1's proposal to award the contract to A-4 whereafter accepting the said proposal the Managing Director of the Marketing Division and Chairman of the Board of Directors of the Corporation accorded sanction to the entrustment of the work to A-4. On receipt of the sanction, A-1 forwarded the papers with his endorsement to the Financial Controller on 29/07/1965. On Ju 30/07/1965, work order (Exh. 19) (manifesting quantity of rock cutting work as 29,30,450 cft. filling work as 90,000 cft. and value of the work as Rs. 5,99,590.00 as against the corresponding figures of 23,30,450 cft., 31,500 cft. and Rs. 4,70,000.00 respectively as specified in the final sanction which was based on the aforesaid level statement (Exh. 22) and work sheet (Exh. 23)) was prepared and handed over by A-2 to A-4. Copies of the work order were also endorsed by A-2 to the Bills Section of the Engineering Department and the Accounts Section of the Finance Department of the Corporation with the endorsement "the above has Chairman's approval on our note of even reference dated 7/04/1965. Please have the agreement executed. Earnest money of unsuccessful tenderers may also please be refunded early." On 30/07/1965, formal contract (Exh. 74) mentioning only the number and date of the work order in the blank columns of the printed form was prepared and signed by A-4 and a representative of the Company. The joint level statement Exhibit 22 and the work sheet Exhibit 23 in respect of the joint survey made between March 21 and 26, 1965 for ascertaining the extent of rock cutting and filling which formed the basis for invitation of tenders and the final sanction in favour of A-4 were not only left unsigned by the concerned but were actually removed from the file and were substituted by spurious level plan (Exh. 24) and its copy (Exh. 38) which were fabricated by A-3 to justify the inflated figures of rock cutting and filling work mentioned in the work order (Exh. 19) dated July 29/30, 1965. On 19/08/1965, fabricated level plans (Exhibits 24 and 38) prepared by A-3 were sent to A-4 as annexures to Exhibit 106 which ran as under :-
"We are enclosing herewith two prints of spot level of land area to be dressed and levelled at our Trombay plot.
The whole plot should be brought to a level of 102.00 as directed.
Please return to us a copy of the Blue Print showing spot levels duly signed as a token of acceptance of the same for payment."
While A-4 retained one of the spurious plans viz. Exhibit 38 with himself, he returned the other viz. Exhibit 24 after putting his initials thereon. Thereafter A-3 endorsed on the letter Exhibit 106 that 'the print signed by A-4 should be filed by Sukhtankar (P. W. 13) who is in charge of the filling section.' Accordingly, Sukhtankar filed Exhibit 106 along with Exhibit 24 in the Bill Section. The actual rock cutting operations commenced with effect from 1/08/1965 and on 27/08/1965, A-4 prepared and submitted the first running bill (Exhibit 51) indicating that 8,00,000 cft. of cutting work and 80,000 cft. of filling work had been completed. This bill was accompanied by the certificate of A-3 reading as under:-
"The measurements on which column No. 3 of this bill are based were taken by me on 24-8-1965 and recorded at pages of MMC No. 7201. Certified that the quantities of work actually executed as shown in column No. 4 has actually been done and in no case less than the on account payments claimed".