Er. Laldawngliana Vs State of Mizoram and Anr.

[2.] Heard Mr. A.R. Malhotra, learned counsel for the appellants who submits that the appellants being aggrieved with the Judgment and Order dated 24.06.2022 and the sentence order dated 24.06.2022 passed by the learned Special Judge under

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the Prevention of Corruption Act, Mizoram, Aizawl in SR (PCA) No. 2/2016 have

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filed the appeals separately. By the impugned judgment and order, the learned Trial Court has convicted the appellant No. 1 under Section 120B/420/409/477A IPC read with Section 13(1)(c)(d) and Section 13(2) of the Prevention of Corruption Act, 1988 (P.C. Act) and the Appellant No. 2 under Section 120B/420/403 IPC and accordingly sentenced Appellant No. 1 to undergo Rigorous Imprisonment for a period of two years under Section 120B/420 IPC, two years under Section 120B/409 IPC, two years under Section 477A IPC and two years under Section 13(1)(c)(d) read with Section 13(2) of the P.C Act and to pay a fine of Rs. 3,63,000/- with a default clause while sentencing the Appellant No. 2 to undergo Rigorous Imprisonment for two (2) years under Section 120B/420 IPC and 1 year under Section 403 IPC and to pay fine of Rs. 3,63,000/- with a default clause. The learned Trial Court has directed that all the sentences would run concurrently.

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[3.] Mr. A.R. Malhotra, learned counsel for the appellants by referring to paragraph 17 of the impugned Judgment and Order submits that the charge framed against the appellants nowhere alleges that the 66 rolls of 4 SWG Chain Link Wire-mesh was never supplied for use in Kau-Tlabung Small Hydel Project but the learned Trial Court vide the impugned Judgment and Order held that the same was not supplied to the said Electrical Sub-Division. The learned counsel also submits that the appellants have been convicted mainly on the basis of the deposition of PW-29 whose evidence otherwise was not even corroborated by any other witnesses. He

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further submits that the evidence of the two defence witnesses produced and examined by the appellants was not taken into consideration by the learned Trial Court before passing the impugned Judgment and Order. He therefore submits that the impugned Judgment and Order of conviction and the order of Sentence are not sustainable in law and should be set aside.

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[4.] Mr. A.R. Malhotra, learned counsel also submits that the conviction of the appellants besides being on the basis of the evidence of PW-29 is also on the basis of the evidence of Appellant No.1 who is also DW-4. He submits that the Appellant No. 1 took the charge of SDO from PW - 29 and he wrote two (2) chits. The learned Trial Court while taking his statements into consideration for convicting the appellants failed to consider the evidence led by the other prosecution witnesses and also the defence witnesses including the statements made by the appellants and others under Section 313 Cr.PC. Drawing the attention of this Court to the statements made under Section 313 by Appellant No. 2, the learned counsel submits that the Appellant No. 2 stated that he supplied 66 rolls of Chain Link Wire-Mesh to Kau Electrical Sub-Division on the verbal instructions given by Mr. Vanlalduhsaka. He stated that he supplied the materials and also received payment for supply of fencing materials. The learned counsel submits that the same is corroborated by the evidence of PW-2 who had conducted the preliminary enquiry.

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[5.] The learned counsel further submits that the learned Trial Court has committed error in law by altering the charge from Section 409 IPC to Section 403 IPC during the time of passing the Judgment & Order. He submits that as per Section 216 of the Cr.PC, it is permissible to alter the charge at any time but it should be before passing the judgment. By the action of the learned Trial Court, the appellant has been prejudiced and for which reason, the impugned Judgment & Order should be set aside. He also submits that in invoking Section 216 Cr.PC, the learned Trial Court is also required to record the finding as to why the alteration of charge is necessary and as to whether any prejudice would be caused to the accused person. He submits that a perusal of the impugned Judgment & Order does not show that such exercise has been carried out by the learned Trial Court and as such, the same is not sustainable.

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[6.] The learned counsel further submits that burden is placed upon the prosecution to prove the charge made against the appellants with proof beyond reasonable doubt. However, the prosecution has miserably failed to prove the same. He submits that the appellants have been charge under Section 13(1)(c)(d)

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and 13(2) of the P.C Act, which is regarding criminal misconduct by a public servant. The learned counsel submits that the Appellant No. 2 is not a public servant or a government employee and could not have been charged under the P.C

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Act. He submits that the ingredients which is to be proved are (1) the public servant has abused his position and (2) by abusing that position, he has obtained for himself or for any other person any valuable thing or pecuniary advantage. He submits that the appellant No. 1 in bypassing the Executive Engineer has only failed to observe the formalities. It is not a case by which he has fraudulently misappropriated or converted for his own use the property entrusted to him or that has enriched himself illicitly during the period of his office. Under the circumstance, the prosecution has only failed to prove the charge against the appellants and therefore, the impugned Judgment & Order of conviction and the order of sentence should be set aside and the appellants acquitted from the charge. The learned

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counsel in support of his submissions has relied upon the following authorities:-

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(1) Harbeer Singh Vs. Sheeshpal & Ors. (2016) 16 SCC 418

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(2) A. Sivaprakash Vs. State of Kerala (2016) 12 SCC 273

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(3) Reena Hazarika Vs. State of Assam (2019) 13 SCC 289 and

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(4) Dr. Nallapareddy Sridhar Reddy Vs. State of Andhra Pradesh & Ors. (2020) 12 SCC 467.

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[7.] Ms. Mary L. Khiangte, learned Addl. Public Prosecutor submits that the PW29 was posted as SDO in Serchhip Sub-Division since 1995 to 1998. In the year

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1998, he was posted at Kau Electrical Sub-Division, Thenhlum. According to him, there was no construction of fencing wire around Thenhlum P&E quarters and Kau

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Project site before he was posted at Kau Electrical Sub-Division. He also stated that no wire mesh was received during his tenure. The learned Addl. Public Prosecutor therefore submits that it is clear from the evidence of the said witness that no Chain Link Wire-Mesh was supplied by the Appellant No. 2. She further submits that PW-51 was an employee of Appellant No. 2 during 1990 till the year 2000. In his examination-in-chief, he stated that although he was working for Appellant No. 2 at the relevant time and he did not know whether the Chain Link Wire-Mesh was actually delivered to the SDO, Kau Electrical Sub-Division, Thenhlum or not despite the fact that he was the one who wrote the challan. The learned Addl. Public Prosecutor therefore submits that even from the evidence of PW-29 and PW-51 alone, the prosecution has been able to prove the case and therefore, the impugned Judgment & Order may not be interfered with by this Court.

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[8.] I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. In order to find out as to whether the impugned Judgment & Order and the sentence order can be sustained, the evidence led by the witnesses may be examined as follows.

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[9.] PW-1 Sher Shing Thapa in his examination-in-chief stated that on 03.10.2008, Pu Vanlalruata and Pu R.L. Liantluanga, President and General Secretary of People’s Right to Information and Development Implementing Society

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of Mizoram (PRISM) submitted a complaint in writing to the Superintendent of

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Police (ACB) that there were certain irregularities or mis-utilization of funds in the construction of Kau-Tlabung/TuipangLuiMini Hydel Project on the re-revised estimate 2001 of the said projects. Accordingly, S.P (ACB) endorsed Inspector P.C. Lalrinmawia (PW-2) to conduct preliminary enquiry and to submit enquiry report. Based on the report submitted by PW-2, he filed the FIR on 25.05.2015 to the S.P (ACB) and the case was therefore registered for investigation. In his crossexamination, apart from reiterating what he stated in his examination-in-chief, PW1 stated that since he was not the Investigating Officer of the case, it is not possible for him to exactly spell out the charges brought against the accused person facing trial in the Court. That in the FIR submitted by him, the name of Mr. S.K. Roy, Mr. Lalnunmawia Sailo and Mr. Laldawngliana were not mentioned and he did not know what materials were available to implicate them as submitted in the report by the I/O.

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[10.] PW-2 P.C. Lalrinmawia in his examination-in-chief stated that he conducted the enquiry under the supervision of Pu. L.B. Chhetri, Addl. Superintendent of Police (ACB). He visited the project site of Tuipang Lui and Kau-Tlabung Mini-Hydel Projects along with him. In the process, he found out amongst others that culverts were not constructed as per the estimates, 66 rolls of Chain Link Wire-mesh allegedly supplied by M/S R.P. Processing Unit, Chanmari were not found at KauTlabung Project site and although diversion weir, Forebay, Penstock and power

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channel were already constructed by 31.03.1991, revised estimates amounting to Rs. 734.03 lakhs was made and sanctioned for construction of the same items and work in respect of Kau-Tlabung project. He therefore submitted the enquiry report with a recommendation for institution of departmental or criminal proceedings. In his cross-examination by the counsel for the accused Nos. 1 & 4, PW-2 stated that Kau-Tlabung Mini-Hydel Project was completed in the year 2001 and he visited the site in the year 2009. Only laborers were present when he visited the site and he did not find any officials to examine. On further being cross-examined by the counsel for the accused No. 2, PW-2 stated that when he visited the two (2) sites and Mini-Hydel Projects, he found that the transformer sub-station at Thenhlum and Kau-tlabung were fenced with Chain Link Wire-mesh. In fact, in his examination-in-chief, he stated that 66 rolls of Chain Link Wire-mesh supplied by M/S R.P. Processing Unit were not found at Kau-tlabung project site was only due to his misconception of barbed wire with Chain Link Wire-mesh. His statement that Chain Link Wire-mesh was not found at the site was due to his misconception of barbed wire with Chain Link Wire-mesh supplied by M/S R.P. Processing Unit that was not produced as it was not found. That it was a fact that Chain Link Wire-mesh was used to fence the power sub-station and transformer at the two (2) sites. He further stated that he was not acquainted with the CPWD Manual while conducting preliminary enquiry and he was not sure whether he had gone through the measurement book during his enquiry. PW-2 further stated that accused No. 2 Er.

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Lalnunmawia Sailo (later acquitted by the Trial Court) was not responsible for verification and checking of any material supplied, whether payment was made or not, or whether the materials supplied was entered in the measurement book or not. Accused No. 2 had simply regularized the previous Superintending Engineer’s (Mr. Duhsaka) verbal order for supply of Chain Link Wire-mesh by issuing a written supply order.

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[11.] PW-5 and PW-6, Ms. P.C. Zirsangpuii and Mr. SaitluangaSailo are the seizure witnesses, who were working as Junior Engineer in the Office of the Engineer-inChief, Power & Electricity Department at the time of their examination. They stated that on 02.06.2015 and 24.07.2015, Mr. Jimmy L. Renthlei, DSP (ACB) and his party came to the office and seized available documents in connection with the case. In their cross-examination by the counsel for the accused Nos. 1 & 4, they stated that they personally did not know the allegations and charges brought against the accused Lalliansanga and Swapan Kumar Roy.

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[12.] PW-7 Mr. K. Guite in his examination-in-chief stated that he held the post of Chief Engineer (Civil), P&E Department in the year 2008 till 2018. He was posted in the erstwhile Hydel Electricity Investigating Division, Lunglei in July 1989 as Executive Engineer and during his tenure in the Division, survey and investigation of Tuipang Lui Hydel Project and Kau-Tlabung Hydel Projects were completed. He was transferred out on 18.10.1994 and posted at Serlui ‘B’ Road & Building

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Division, Bilkhawthlir and thereafter, transferred out again to Maicham Project Division, North Vanlaiphai in the month of July, 1997. Subsequently, he was promoted to Superintending Engineer and posted in Hydel Circle in Aizawl (presently Project Circle - II) where he took charge on 14.12.1999. He stated that on 02.06.2015, 24.07.2015, 05.08.2015, 26.08.2015 and 28.09.2015 while he was the Chief Engineer, P&E Department, the case I/O and his party came and seized certain documents. In his cross-examination, he stated that he did not know the contents of the documents which were mentioned in his examination-in-chief and handed over by him to the ACB because it related to the period before he took charge as Chief Engineer, P&E in the year 2008.

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[13.] PW-8 Mr. Ranjit Singh in his examination-in-chief stated that he joined the post of Assistant Engineer, P&E Department in the year 1993 and was promoted to the post of Executive Engineer in the month of Oct, 1994 and on his promotion, he was posted as Executive Engineer, Hydro Electric Investigation, Lunglei and took the charge of Division on 18.10.1994 from Mr. K. Guite and the work looked after by the Division including the construction of Tuipang Small Hydel Project near Tuipang ‘L’ village in Siaha District. In his cross-examination, he stated that the delay in Erection, Testing and Commissioning (ETC) of the Project was due to the contractor and none of the officials including the accused persons were responsible

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for the delay in ETC. As far as he knew, actions were taken against the contractor

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for delaying the ETC. PW-8 also stated that he superannuated in the month of September, 2020.

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[14.] PW-9 Laldela Sailo is also a seizure witness who stated that while he was holding the post of Superintending Engineer, Project Circle – II, P&E Department, the case I/O and his party on 24.07.2015 and 05.08.2015 came to seize certain documents from the office. In his cross-examination, he stated that he does not know the charges brought against the accused persons in the case.

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[15.] PW-10 R. Lalthlanthanga in his examination-in-chief stated that on 25.08.1995, he joined Kau-Tlabung Small Hydel Project (SHP) as SDO (Civil) and took charge from Neihnghaka (L). At that time, Mr. Vulmawia was the Executive Engineer and they were going to start execution of SHP works when he joined. During his tenure from 25.08.1995 to 22.11.1996, he could finish survey and investigation and trace part cutting from PB road to the Project site and could only finish formationcutting for about 4 kms which was half the length of the road. He handed over the charge to Mr. Lalzawmthanga on 22.11.1996 on being transferred out. He also stated that when he was transferred to Kau-Tlabung Small Hydel Project, the construction work of diversion weir, power channel, penstock line and powerhouse building was started. In his cross-examination, he stated that as far as he knew, Liansanga, Lalnunmawia, Laldawngliana and others including himself

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were charged by the Department and departmental enquiry was conducted but all

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of them were exonerated by the Government. That he personally did not know the allegation brought out against the accused persons.

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[16.] PW-11, Mr. S.T. Lalzarmawia in his examination-in-chief stated that as far as he knew, the construction of Tuipang Lui Small Hydel Project started in the year 1994 – 1995 and he was allotted three (3) construction works i.e., construction of retaining wall, go-down and cause way at the P&E complex project road. The construction of Tuipang Small Hydel Project could not be completed and was commissioned in the year 2002. On 10.06.2015, Officer Bearers of PRISM from Aizawl came to their village and visited the project site and he along with his fellow friends were also present and interacted with the members of the PRISM. He also stated that his statements was recorded by the case I/O on 23.06.2015 and he had taken the case I/O and his party to the project site. In his cross-examination, he stated that he knew the accused Liansanga because he used to come personally to supervise the work. As far as he knew, the project was constructed during 1994 – 1995 and work was done properly and there were no irregularities. He also stated that at the time of commissioning of the project, all the works were executed properly by the concerned person and there was no complaint from the people of the locality.

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[17.] PW-12 Mr. Lalrinzuala in his examination-in-chief stated that he was the President of Tuipang Branch YMA from the year 2010 – 2013. In the year 1994, the

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jeepable road from Tuipang to Siaha was maintained by Hydro Electrical Division and also widened to make it truckable. As far as he knew, the Powerhouse, Rest House, J.E. Quarter and the quarters constructed within their village are fenced by using angle iron post and goat proof Wire-mesh about 5 feet high. Five (5) quarters and three (3) labor sheds were constructed at the powerhouse but presently, they may not be in good condition due to landslide and flood. When the members of PRISM came to their village for site inspection, they noticed that there are construction of 24 numbers of RCC culverts. That Tuipang Small Hydel Project was commissioned on 2004 and started generating power which was supplied to other village, Tuipang ‘V’, Zawngling, Khawpai and other surrounding villages. However, in October, 2012, the project was damaged by landslide and flood and has not been reconstructed till date. After the company took charge of the project, they did not maintain the project properly and due to the leakage of water from the power channel pipes, landslide and flood was caused. The case I/O and his party came to their village for site inspection in the year 2015 and they had showed them around. In his cross-examination by the counsel for the accused Nos. 1 & 4, PW-12 stated that the project was open officially in the year 2004 and was looked after by one company approved by the Government. However, it was completely damaged by landslide in October, 2004 and has not been restored since. When the PRISM authorities and ACB had come to inspect, almost 20 years had lapsed. The work was done properly and there was no reason to initiate any

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case against the accused persons. There was no complaint or whatsoever from any of the villagers till date regarding execution of the project. All the contractors had executed the work under the supervision of the concerned Government Department.

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[18.] PW-19 Mr. Z.D. Lalrotluanga in his examination-in-chief stated that he joined the post of Junior Engineer under the Chief Engineer, P&E Department on 25.06.1986 and later was transferred to Hydro Electric Investigation Division, Lunglei. From Lunglei, he was transferred to Micro Hydel Sub-Division, Lawntlai in 1993 and thereafter promoted to the post of Assistant Engineer under the Engineer-in-Chief, P&E Department on 02.06.2009. He further stated that in the year 1993, he was detailed to do survey and investigation in connection with Tuipang Lui Small Hydel Project, approach road, dam site, power channel, penstock and power house etc. Accordingly, he performed the duties and survey and investigation. In his cross-examination, he stated that as far as he knew, all the works which were to be done for approaching Tuipang Lui Small Hydel Project were executed.

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[19.] PW-21 K. Lallawmsanga in his examination-in-chief stated that he joined the post of Junior Engineer in year 1988 in the Office of the Executive Engineer, P&E Hydel Electric Investigation Division at Lunglei and he was transferred to Micro

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Hydel Sub-Station at Lawngtlai. The office was shifted to Tuipang in the year 1995

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and the Executive Engineer was Mr. Ranjit Singh. From the date he joined his post, they constructed survey alignment of power channel, penstock etc., under the supervision of Mr. Hrangkima, SDO. Since Mr. Z.D. Lalrotluanga, Junior Engineer was transferred to Lunglei HEID office, he took the charge of maintenance of Tuipang ‘L’ to powerhouse in addition to his work. Construction of approach road to diversion weir was finished during the tenure of Mr. Z.D. Lalrotluanga, J.E. In his cross-examination he stated that as he was in Tuipang Lui Small Hydel Project, he did not know anything in connection with Kau-Tlabung Mini Hydel Project or any kind of discrepancy or irregularities in respect of construction, implementation of both the project. Further, whatever he had stated in his examination-in-chief are not relevant to the instant case and he does not know why he has been cited as a witness in the case.

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[20.] PW-22 Mr. F. Lalrinpuia in his examination-in-chief stated that on 03.08.2005, he took charge of Executive Engineer (E.E), Serchhip Power Division from Mr. Thanglawra and was working there till 2009. He was relieved by Mr. J.H. Malsawma. That at the time he took charge of the post, Kau-Tlabung Small Hydel Project was under Serchhip Power Division as it was already commissioned on 05.05.2005. He used to visit the said project whenever there was generation problem to make repairs. Operation and maintenance of the said project was under Serchhip Power Division and therefore all LOCs were released under the operation

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and maintenance head, having its separate administrative approval and expenditure sanction. During his tenure, solenoid switch and proportional valve were damaged and they ordered spare parts from Eastern Overseas Corporation. The parts were received and bill was approved by Superintending Engineer, Transmission Circle by issuing Cheque dated 06.09.2006 amounting to Rs. 2,24,127/-. After repair, the project could properly generate power. On 17.08.2015, his statements was recorded by the case I/O. In his cross-examination, he stated that during his tenure as Executive Engineer, Serchhip Power Division from 2005 – 2009, they did not receive any complaint regarding the execution of Kau-Tlabung Small Hydel Project. Personally, he has nothing to say about the project but he knows that after the project was completed, they were generating power. During his tenure, there was no problem in generating power. However, as and when regular wear and tear happens in the machines, they use to rectify them Though Kau-Tlabung Small Hydel Project was complete and commissioned in the year 2005, the case I/O took his statements only in the year 2015.

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[21.] PW-23 Mr. Lalzawmthanga in his examination-in-chief stated that he was posted as SDO, Kau Project Sub-Division – I, Thenhlum under Hydel Circle, P&E Department with effect from 1996 to January, 2001. There were two (2) Civil SDOs and one (1) Electrical SDO under the project. When he joined Mr. Vulmawia was their Executive Engineer and later Mr. Laldela Sailo took charge from Mr. Vulmawia

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in the year 1997. Initially, their Superintending Engineer (S.E) was Mr. Vanlalduhsaka but Mr. Liannghinglova (L) took charge from Mr. Lalduhsaka in the year 2000. Other SDOs were Mr. Lalrema Pachuau (Civil) and Liansavunga (Electrical). During his tenure, two (2) J.Es namely, Vanlalfaka and Vanlalsanga were working under him and were engaged in constructing diversion weir, power channel, forebay and other civil works like maintenance of J.E. quarters and approach road. The works were completed during his tenure. He did not receive 66 rolls of wire mesh. He knew that the contractor of Forebay Mr. F. Lalrinchhana fenced the portion of fencing at his own cost. The length of fencing was around 200 feet in length and 4 feet in height. He also knows that Thenhlum Sub-Station was already fenced when he joined SDO-I. In his cross-examination, he stated that the Electrical SDO might have received the 66 rolls of Wire-Mesh. As far as his work was concerned, there was no requirement of Wire-Mesh and therefore, he did not have any knowledge about 66 rolls of wire mesh. He stated that two (2) bills dated 02.04.2001 submitted by M/S R.P Processing Unit for Rs. 3,63,000/- each was shown to him and it was written by the SDO and J.E of Kau Electrical SubDivision, Thenhlum and that the bills were verified and found to be correct. The Materials were entered in MB No. 3(K) page Nos. 27 & 28 amounting to Rs. 3,63,000/- each. Entered in site accounts for the month of July, 2001. Two (2) bills dated 02.04.2001 were signed by the SDO and J.E concerned.

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[22.] PW-24, Mr. Lalrema Pachuau in his examination-in-chief stated that he was

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posted as SDO, Kau Project Sub-Division-II, Thenhlum under Hydel Circle, P&E with effect from July, 1997 to March, 2000. When he joined, their Executive Engineer was Mr. Vulmawia and later, it was Mr. Laldela Sailo. Initially, their S.E as Mr. Vanlalduhsaka but Mr. Lalnghinglova Pachuau (L) took charge in the year 2000. During his tenure, four (4) J.Es namely Mr. R.C. Lalzuiliana, Mr. K. Zorammawia (L), Mr. P.C. Lianhmingthanga and Mr. J. Zoremsiama (L) were working under him. The works performed by them was construction of penstock, powerhouse including control room, maintenance of building and approach road project site. The works were completed during his tenure. Cross-examination of PW-24 was declined by the defense.

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[23.] PW-25 Mr. R.C. Lalzuiliana in his examination-in-chief stated that in the year 1997, he was posted as J.E (Civil), Kau Project Sub-Division and Mr. Lalzawmthanga was the SDO. He was transferred to Kau-Tlabung Sub-Division – II later in July, 1997 and Lalrema Pachuau was the SDO. He was in-charge of looking after the penstock. Cross-examination of PW-25 was declined by the defense. [24.] PW-26 Mr. Vulmawia in his examination-in-chief stated that he joined service in the year 1986 as Assistant Engineer and was promoted to Executive Engineer in the year 1993 and he was posted at Kau-Tlabung Project Division on 07.11.1994. As far as he knows, DPR and estimate for Kau-Tlabung Project was

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prepared in the year 1990 – 1991 and the estimate amount was Rs. 480 lakhs and is generate 2x750 KW. While preparing DPR, powerhouse was intended to be constructed below the highest fall and the power channel to be 300-400 meters long. However, due to difficulties in approach road construction, powerhouse site was changed to the present location. Due to the change of the site, the site of power channel, Forebay and penstock were also changed. Powerhouse was constructed by Mr. Silverthang, North Vanlaiphai. Forebay was constructed by Mr. F. Lalramchhana, Ramhlun North, Powerhouse by Mr. Ngurduhawma, Republic Veng and Mr. Vanlalchhawna, Chanmari. Due to the said circumstance and also construction of building, which was not included originally in the DPR/estimate, revised estimate was required. Construction of Kau-Tlabung Project was under the Chief Engineer and was looked after by two (2) Divisions namely, Serlui ‘B’ Electrical Division and Kau-Tlabung Project. Civil works were looked after by KauTlabung Project and electro-mechanical works were looked after by Serlui ‘B’ Electrical Division and as such, LOC was released by the Chief Engineer to the Executive Engineers of the two (2) Divisions. During his tenure, formation cutting and approach road weir was completed and approach road to powerhouse was almost completed. As the Executive Engineer, he put his signature in the two (2) cash books for the purchase of two (2) Gypsy and one (1) Truck as per the order made by the Chief Engineer. That advanced payment of supply and installation of turbines was made by him as per the terms and condition signed by Chief Engineer

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and the amount was Rs. 24,000,996/-. However, he did not know who made the

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final payment and when it was paid. In his cross-examination, he stated that he was in Kau-Tlabung Project Division from November, 1994 to August, 1997. Fencing was not taken up by civil wing and he was in charge of civil works under the project.

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[25.] PW-27 Mr. Vanlalduhsaka in his examination-in-chief stated that he was posted as Superintending Engineer (S.E), P&E Hydel Circle with effect from 21.01.1997 to 20.11.1999. During his tenure, Kau-Tlabung Circle civil works and electrical works were ongoing and the civil work was ready for installation for machinery and equipments. When he joined as S.E, Hydel Circle, he took charge from Mr. Lalrema Pachuau. Mr Vulmawia was the Executive Engineer but when left, Mr. Laldela Sailo was the Executive Engineer. During his tenure, he neither called for any tender nor placed verbal order for supply of Goatproof Wire-Mesh to any firm or person. There was no liability committed to regularize any liability. That he handed over the charge to Mr. K.K.K. Guite. During his tenure, works such as diversion weir and its attachment, power channel, forebay, penstock, powerhouse and its machinery foundation as well as EOT crane and approach roads were executed and completed. In his cross-examination, PW-27 stated that fencing was taken up by Electrical wing and he was only handling civil work portion. After he left the Hydel Circle on 20.11.1999, he did not go back to Kau-Tlabung Small Hydel

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Project and that he does not know anything about the supply of Wire-Mesh and fencing of both the Hydel Projects. He also stated that after he left the Hydel Project, departmental enquiry was initiated against him and he was exonerated. [26.] PW-28 Mr. C.L. Thangliana in his examination-in-chief stated that contract agreement for Kau-Tlabung and Tuipang Lui Small Hydel Project was signed between the Government and M/S Eastern Overseas Corporation, Mumbai on 29.12.1995. The works included erection, testing and commissioning of the projects on turnkey basis. He took charge of the post of Chief Engineer, P7E on 02.12.2002 and held meetings with the officers and staff with the implementation of the projects to sort out the problems and the delay in the project commissioning. Tuipang Lui Project was commissioned in December, 2004 and KauTlabung Project in the month of May, 2005. He stated that the total expenditure for both the projects were made available from the reconciliation statement between P&E Department and Accountant General, Shillong, which was also accepted by Comptroller &Accountant General of India. The expenditure for TuipangLui Small Hydel Project from 1994 – 1994 to 2005 – 2006 was Rs. 37,48,24,384/- whereas, revised administrative approval was Rs. 37.21 crores. There were excess expenditure of Rs. 27.25 lakhs, which is less than 10% of the total revised estimate approved and which is the permissible limit of excess expenditure of para 3.2.5 of PWD Works Manual, 2007. Expenditure for Kau-Tlabung Small Hydel Project from

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1994 – 1995 to 2005 – 2007 was Rs. 31,98,11,271/- whereas the revised administrative approval was Rs. 32.53 crores. The expenditure was less by Rs. 54.92 lakhs, which included Rs. 45.00 lakhs to be released by Ministry of New & Renewable Energy, Govt. of India (which is one time subsidy for the project). That since there was delay in commissioning, the government loss Rs. 2,38,00,000/approximately per year for the two (2) projects. In his cross-examination, PW-28 stated that from 02.12.2002, TuipangLui and Kau-Tlabung Small Hydel Projects were under the supervision as Head of Department. He took charge from Mr. B. Lalrinliana on 02.12.2002 and Mr. B. Lalrinliana took charge from Mr. Liansanga in the year 1998. PW-28 also narrated some of the important factors which according to him were necessary for commissioning of the projects. He also stated that he was initially included as one of the accused but later on discharged by the I/O. He further stated that all the expenditure incurred for the projects was approved by the concerned authority and there were no irregularities in the expenditure. He further stated that the calculation which he mentioned about the loss incurred by the government is based on his presumption. He however stated that the calculation made by him as stated in his examination-in-chief with regard to revenue loss is completely false.

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[27.] PW-29 Mr. Liansangvunga in examination-in-chief stated that he joined service as Assistant Engineer/SDO in the year 1999 and was posted at Lunglei

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Electrical Circle. He had been posted as SDO in construction Sub-Division, Serchhip since 1995 – 1998. In the year 1998, he was posted at Kau Electrical Sub-Division, Thenhlum and the civil engineers of P&E Department carried out the project of Kau-Tlabung Small Hydel Project construction. Before joining his post as SDO. Mr. Lalzawmthanga (PW-23) was the SDO and he took the charge from him. During his time, he constructed 33 KV Sub-Station. At that time, Mr. Laldela Sailo was the Executive Engineer (Civil). He stated that there was no construction of fencing wire around Thenhlum P&E complex and Kau project site before he was posted at Kau Electrical Sub-Division. At the same time, no Wire-Mesh was received during his tenure. In his cross-examination, he stated that he was posted as SDO in Kau Electrical Sub-Division, Thenhlum during the period from 20.04.1998 to 27.03.2000. He did not know anything about the original tender documents and agreement of Tuipang Lui and Kau-Tlabung Small Hydel Project. He was one of the said witnesses in the departmental enquiry conducted against Mr. Duhsaka, S.E. He also stated that Sub-Station at Thenhlum was fenced during his tenure but however, the said Sub-Station at Kau Project was not fenced during his tenure. [28.] PW-30 Mr. V. Rodingliana in his examination-in-chief stated that he was currently posted as Chief Engineer (System Operations) in the P&E Department. During 1996 – 1997, he was posted as Executive Engineer, Serlui ‘B’ Electrical Division, camp at Aizawl. As the work at Serlui ‘B’ was at halt during the relevant

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period, there establishment was stationed at Aizawl to enable them do other works. He was holding the post from September, 1996 till 1999. While he was holding this post, payment of bill in respect of Kau-Tlabung Small Hydel Project particularly in respect of Electro-mechanical equipment was made to Eastern Overseas Company amounting to Rs. 51,813,659/-. During the same period, payment amounting to Rs. 66,866,591/- was made in favor of Eastern Overseas Company for supply of Electro-mechanical equipment. The amount was paid from Serlui ‘B’ Electrical Division as per the direction of Mr. Liansanga, the then Chief Engineer, P&E Department. In his cross-examination, he stated that as far as he knew, there was no discrepancy regarding payment of bill. Eastern Overseas Company, which was done by him and as per official instruction in writing. He did not know what the charge was against Mr. Liansanga and Mr. S.K. Roy as well. That

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payment was made for the work done by the company and not for the benefit of anybody else.

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[29.] PW-31 Mr. K. Lalnithanga in his examination-in-chief stated that on 26.08.2015 at about 12 pm, the case I/O and his party went to E-in-C, Electric Department and seized the file produced by Mr. K. Guite, C.E, P&E Department in his presence. That he put his signature on the seizure memo as one of the witness.

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[30.] PW-33, Mr. Thanglawra in his examination-in-chief stated that he was presently posted as Superintending Engineer (Rural Electrification) in the Office of

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the E-in-C, P&E Department, he was posted as SDO (Technical), Serchhip Power Division from September, 2001 and was holding the charge of Executive Engineer, Serchhip Power Division. Thereafter, he was promoted as Executive Engineer on February, 2002 and was posted there till August, 2005. The Kau-Tlabung Small Hydel Project was handed over to Serchhip Power Division before he joined. That the project work was already completed when he joined. However, there was pending bill in respect of contractor i.e. Eastern Overseas Corporation. Payment of bills was initially made as per the instructions of the Head Office on receipt of the LOC for the purpose. He frequently visit the project site of Kau-Tlabung Small Hydel Project. The turbine generator set was not functioning properly and he used to visit the site to rectify the problem. The site was properly fenced by chain-link wire fencing. The fencing was already there when he joined. It was repaired once after mudslide caused major damage subsequent to his joining. Payment was not made to suppliers of the fencing after he joined and that no payment can be made without his knowledge a he was the DDO. In his cross-examination, he stated that during his tenure, he did not receive any information regarding any financial irregularity in respect of Kau-Tlabung Project. The Engineer-in-Chief had no direct involvement regarding payment and receipt of cash as they are only sanctioning authority. Actual disbursement is done by the DDOs who use to be the Executive Engineer. As S.E, he used to deal with floating and accepting tenders. As far as his knowledge goes, there was no unsupplied fencing materials as well as unpaid

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money for the fencing material. Following safety norms, requisite fencing was there in the Kau-Tlabung Project.

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[31.] PW-34 Mr. P.C Ngurthanga in his examination-in-chief stated that he was allotted the earth work for construction of power channel by the P&E Department without tender but departmentaly in Kau-Tlabung Mini Hydel Project. He completed the work in December, 1998 and he received the bills amounting to about 12 lakhs. In his cross-examination, he stated that he was given work order by the then Executive Engineer whose name he does not remember. During that time, Mr. Liansanga was the Chief Engineer. He made his statements before the ACB and he does not know what Mr. Liansanga was charge with. He also does not know who S.K. Roy is. His cross-examination was declined by the learned counsel for the defence.

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[32.] PW-35 R. Lalrema in his examination-in-chief stated that he was holding the post of Executive Engineer, Serchhip Electrical Division during 1999 – 2000. During this period, he was verbally asked to support the electrical work in KauTlabung Project as it was delayed. There were problems in electro mechanical works basically in construction of the Sub-Station. Bill amounting to Rs. 13,63,577/- was paid by him to the Eastern Overseas Corporation, Mumbai against the LOC issued by the concerned C.E. P&E Department. There were two (2) machines of 1.5 MW capacity in Kau-Tlabung Project. One machine was

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commissioned in January, 2001. The other could not be commissioned due to problem. In his cross-examination, he stated that the Eastern Overseas Corporation engaged Gilkes Company and as per norms, security fence should be provided. Fencing materials were received by his department and he utilized the same for fencing of the Sub-Station at the project site. He did not know Mr. S.K. Roy and he also did not know the charge against the accused Liansanga.

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[33.] PW-37 Mr. K. Lalhlunthanga in his examination-in-chief stated that he was currently posted as Executive Engineer, Maicham Project Division, North Vanlaiphai. He was posted as SDO, Tuipang Lui Mini Hydel Sub-Division – II, Siaha district during 1997 – 1999. There were two (2) Sub-Division under the project. His SubDivision dealt with construction of diversion weir, power channel, approach road from Tuipang (L) to diversion weir and maintenance of building at Tuipang (L) and diversion weir. He did not know whether there was any revised estimate in respect of construction of diversion weir or Laying and fabrication of power channel as he was already stationed at Kolasib. In his cross-examination, he stated that he does not know Mr. S.K. Roy and also does not know what the charge against Mr. Liansanga was. The work was completed as per the work order.

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[34.] PW-38 Ex-Sub F. Lalramchhana in his examination-in-chief during the year 1997 – 1998. He was allotted the contract work by the P&E Department for construction of Forebay in Kau-Tlabung Mini Hydel Project. He completed his work

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in December 1998. He does not remember the amount of bill he received and the

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work was allotted to him departmentally and not through tender. In his crossexamination, he stated that he gave his statement before the ACB that he received Cheque of Rs. 40 lakhs. He was given the work order by S.E A.K. Das and his work was supervised by Mr. Vulmawia and Mr. Zawma and the J.E/ his work was properly measured and he received the bill in full. He does not know the charge made against Mr. Liansanga and he does not know who Mr. S.K. Roy is. The crossexamination of PW-38 was declined by the defense.

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[35.] PW-39 Lalhmingthanga in his examination-in-chief stated that he was employed as a driver in the P&E department during the year 1989 – 2008 and was posted at Kau-Tlabung Project during 1996 – 1999. He used to drive vehicles lie Truck, Tractor etc. The handyman attached to him was Chawimawia and he never transported chain ling wire mesh to Kau-Tlabung Project. In his cross-examination, he stated that he was concerned with loading and unloading of goods in the vehicle driven by him. Even if he had transported packed chain link wire mesh, he would not have known that he was transporting such materials. During the tenure of Mr. Vulmawia Executive Engineer, he use to drive truck and he cannot say who the Executive Engineer and SDO during July, 1999.

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[36.] PW-40 Mr. Chawimawia in his examination-in-chief stated that he work in the P&E Department some time during 1997 – 1998 as Muster Roll handyman and

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was stationed at Kau-Tlabung. He work with Mr. Lalhmingthanga, driver and that

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he does not transport chain link wire mesh fencing at the Project site of KauTlabung.

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[37.] PW-41 Mr. Lalnunenga in his examination-in-chief stated that he was currently holding the post of J.E in Distribution Sib-Division-I, Aizawl South in the P&E department. During the year 1987, he was posted at Maicham project SubDivision. He was stationed at Aizawl for doing the needful in respect of the SubDivision. His superiors were in charge of the Kau-Tlabung Project. He never approach the accused Mr. S.K. Roy during that said period and he has not been asked to send Goat Proof Wire Mesh for Kau-Tlabung Project during the relevant period.

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[38.] PW-42 Mr. B. Lalrinliana in his examination-in-chief stated the he was holding the post of Chief Engineer, P&E department from June 1998 till December, 2002. During his tenure, the cost of Kau-Tlabung Small Hydel Project was revised to 1470 lakhs. He knew that the cost was already revised earlier before he took over the charge as Chief Engineer. He does not know the reason why the cost was required to be revised as the project was taken by the Civil Wing of the Department and he was the electrical engineer. However, as Head of Department, the files were routed through him and that was why he knew about the revised

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estimate. In his cross-examination, he stated that so far as he knows, there was no

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discrepancy in the work of Kau-Tlabung Small Hydel Project.

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[39.] PW-43 Mr. V. Lalzarliana in his examination-in-chief state that he was presently holding the post of J.E. in Hnahthial Power Sub-Division. He was the seizure witness to the seizure of the file by the ACB.

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[40.] PW - 45 Mr. R. Lalhmachhuana in his examination-in-chief stated that he joined the post of Tracer in the PWD in 1979 and was promoted to Draftman - II in P&E department in 1990. Thereafter he was promoted in the year 1995 to Draftman – I. He stood as one of the seizure witness when the ACB seized the file in the office of S.E, Transmission Circle at Tuikhuahtlang on 15.09.2015. In his cross-examination, he stated that he does not know the contents of the seized file and who are facing trial and what the allegations were.

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[41.] PW-50 Smt. Z.D. Lalthanbuangi in her examination-in-chief stated that she joined the post of J.E, Hydro Electric Investigation Division, Lunglei on 18.01.1993 from where she was transferred to Transmission Circle, Aizawl and later was again transferred to Rural Sub-Division, Lunglei in 2003. That she was interrogated by the case I/O on 22.09.2015 and her statements was recorded. She also gave the details of the file that she had handled at the relevant time.

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[42.] PW-51 Mr. Chiranjit Dey in his examination-in-chief stated that he work under Mr. S.K. Roy during 1990 till 2000 and he was responsible for flight handling at the airport at Tuirial and Lengpui. Challan dated 12.07.1999 (Ext.P-26) was

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written by him as per the instruction of Mr. S.K. Roy. However, he did not know whether the material (chain link mesh wire) was actually delivered to the SDO, Kau-Tlabung Electrical Sub-Division, Thenhlum or not. In his cross-examination, he stated that he wrote in the challan ‘materails sent through Driver of Truck No. MZ01 4871 (Dept. vehicle)’. He also stated that he was concentrating with the business of ticketing, handling and operating airlines under the name and style of Quality Tours and Travels and he personally does not handle the other business run by R.P Processing Unit. Though he had filled up Ext. P-26, he personally did not take part in the actual handling over of the materials to the driver.

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[43.] PW-52 Mr. Isac Singson in his examination-in-chief stated that he was working in the PWD from 1977 till 2011 and retired as Assistant Engineer. He was in the P&E Department some time during the year 2000 till 2003 in the Office of the S.E Transmission Circle. He knew that supply order was issued by the S.E (Transmission Circle) to R.P Processing Unit for supply of 66 rolls of Chain Ling Wire Mesh. In his cross-examination, he stated that proposal for purchase of 66 rolls of Chain Link Wire Mesh was initiated by the dealing J.E and the file was routed through him. He checked the spelling and format in the supply order. As it was in order, he marked the file and the draft to the Executive Engineer. He also stated that except issuing of supply order, the S.E has no role in receiving the material or verifying whether the materials were put to use and payment made for

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the materials, if any.

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[44.] PW-53 Smt. R. Zothanpari, in her examination-in-chief stated that she was working in the P&E Department from 2008 – 2016 as P.A to C.E (Civil). Officials of the ACB including the case I/O came to the personal branch of the C.E (Civil) on 28.09.2015 and seized cash books and vouchers etc., and witness the same as seizure witness. In her cross-examination, she stated that she does not deal with cash books and vouchers and she put her signature merely as a seizure witness.

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[45.] PW-56 Mr. Vanlalrinawma and PW-57 Mr. C. Lalengzauva in their examination-in-chief stated that they were working as Head Constable in the ACB and seizures were made on 07.10.2015, which was a Cheque Book No. 003423 (Ext. M-5).

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[46.] PW-58 Mr. Jimmy L. Renthlei, in his examination-in-chief stated that he was endorsed to investigate the case and in the process, he seized a number of files and other documents from the office of the C.E, P&E Department, the details of which have been listed out in his deposition. During the investigation, it was ascertained that two (2) NIT having specific terms and conditions were floated for Tuipang Lui on 12.09.1994 and for Kau-Tlabung on 06.12.1994. Amongst seven (7) eligible contractors, the fourth lowest bidder i.e., M/S Eastern Overseas Corporation was accepted and selected. During the investigation, it was ascertained that the delay in ETC had cost wrongful loss in power generation amounting to Rs.

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8,61,81,250/- in respect of Tuipanglui Small Hydel Project for a period with effect from 01.03.2001 to 17.12.2004 and for the period from 01.03.2001 to 05.05.2004, there was a loss of Rs. 9,77,28,750/- in respect of Kau-Tlabung Small Hydel Project. The total loss was Rs. 1839.10 lakhs and for the loss, accused No. 1 (Er. Liansanga) was liable to be proceeded with and punished under the relevant Sections of IPC and the P.C Act. As for Appellant No. 1, he was posted as SDO, Kau Electrical Sub-Division and based on a challan of M/s R.P. Processing Unit, Chanmari, Aizawl dated 12.07.1999 addressed to the SDO, Kau Electrical SubDivision to receive 66 rolls of Chain Link Wire-Mesh “5 feet x 100” wrote two (2) letters dated 19.03.2001 and 23.03.2001 for payment of 66 rolls of Chain Link Wire-Mesh to M/s R.P Processing Unit, Chanmari. Appellant No. 1 directly wrote two (2) letters to S.E bypassing his immediate officer i.e., Executive Engineer. No one witness the supply of the materials and payment of Rs. 7,26,000/- in two (2) bills both dated 02.04.2001 was made to M/s R.P. Processing Unit. Therefore, the Accused Nos. 2 and the 2 (two) appellants had committed offence punishable under Section 120B/420/409/477A/34 read with Section 13(1)(c)(d) and 13(2) P.C Act. He therefore filed the chargesheet on 18.01.2016 and sent all the accused to the Court to the Court to face trial under the aforesaid Sections of law. In his crossexamination amongst others he stated that he visited the site i.e., Kau-Tlabung Mini Hydel Project as well as the Sub-Station at Thenhlum and saw that the SubStation and residential quarter was fenced. In other words, there was fencing.

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[47.] After the prosecution witnesses were examined, the Appellant No. 1 was examined under 313 Cr.PC. He stated that when he took charge of SDO, Kau Electrical Sub-Division, he found 66 rolls of Chain Link Wire-Mesh “5 feet x 100” already been utilized for fencing at Kau-Tlabung Sub-Station, forebay and Thenhlum Sub-Station under Kau Electrical Sub-Division. He also saw the utilization of the 66 rolls of Chain Link Wire-Mesh “5 feet x 100”. He further stated that when Accused No. 2 visited the Project site he had instructed him to report any pending liability directly to him and he complied with the instruction as he was his superior and since the project was to be commissioned soon. He reported the utilization of the fencing materials since the same was not regularized by his predecessor. Appellant No. 1 also stated that he would like to examine Defence Witness such as Mr. C. Rokima, Mr. P. Lianzuala and he himself.

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[48.] Appellant No. 2 in his examination under 313 Cr.PC stated that he submitted that challan to the then SDO, Kau Electrical Sub-Division and before submitting the challan, he had supplied the fencing materials at Kau Electrical Sub-Division. Mr. Vanlalduhsaka had given a verbal instruction to supply fencing materials and accordingly he supplied the fencing materials and it was later regularized by Accused No. 2 (Er. Lalnunmawia Sailo). He also stated that he would like to examine Defence Witness such as Mr. C. Rokima, Mr. P. Lianzuala

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and he himself.

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[49.] DW-1 Mr. P. Lianzuala in his examination-in-chief stated that he was working as Muster Roll Skilled – II in the P&E Department since the year 1989. He was transferred from Maicham Mini Hydel Project, North Vanlaiphai to Kau Electrical Sub-Division, Thenhlum to look after the Kau-Tlabung Mini Hydel Project and 33KV Sub-Station, Thenhlum in the year 1997 till date. He also stayed there during the privatization of Kau-Tlabung Mini Hyder Project in the year 2010 and that he was stationed at Thenhlum presently. According to him, while posted at Kau Electrical Sub-Division, a bundle of Chain Link Wire Mesh reached the site and they started fencing the Kau-Tlabung and Thenhlum SubStations with the chain link wire mesh from the end of the year 1999. Overflow of the stream destroyed the fencing in the year 2003 and they did the fencing again by replacing the destroyed material using chain link wire mesh which were available at the site. In his cross-examination, he stated that he did not receive the bundle of chain link wire mesh and also does not know who received the same. He also stated that Mr. Liansangvunga was the SDO when they did fencing of Thenhlum Sub-Station. He did not know from where and when the chain link wire mesh were procured. He also stated that he does not remember who was the in-charge of store/site account.

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[50.] DW-2 Mr. C. Rokima in his examination-in-chief stated that he was a

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Muster Roll Skilled – I in the P&E Department since the year 1984 till March 2021. He was transferred to Kau Electrical Sub-Division, Thenhlum to look after the Mini Hydel Project and 33KV Sub-Station in the year 1998 and stayed there till privatization of the project in the year 2010. That while he was posted there, a bundle of chain link wire mesh reached the site and they started fencing the Kau-Tlabung and Thenhlum Sub-Stations with the chain link wire mesh from the end of the year 1999. Overflow of the stream destroyed the fencing in the year 2003 and they did the fencing again by replacing the destroyed material using chain link wire mesh which were available at the site. In his cross-examination, DW-2 also stated that Mr. Liansangvunga was their SDO when they did the fencing of Thenhlum Sub-Station. He also stated that he did not know from where and when the chain link wire mesh were procured. He also stated that he does not remember who was the in-charge of store/site account.

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[51.] DW-3 Mr. Lalnunmawia Sailo who is also accused No. 2 in his examination-in-chief stated that he took over charge of S.E, Transmission Circle with effect from 05.11.1999. Since the early part of 2000, Transmission Circle, together with one of its Division i.e., Serchhip Electrical Division was entrusted with additional task of commissioning electro mechanical portion of its associated components of Kau-Tlabung Mini Hydel Project while the entire project was still under Hydel Circle, Aizawl. Before the project could be

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commissioned, he was transferred on 28.06.2001 from the Transmission Circle to Aizawl Power Circle. That he placed two (2) supply orders for 66 rolls of Chain Link Wire Mesh in connection with the work of commissioning the electro mechanical portion of Kau-Tlabung Mini Hydel Project based on the information conveyed by the SDO, Kau Electrical Sub-Division. He also stated that he remember seeing the chain link wire mesh being utilized for the on-going fencing work of Thenhlum Sub-Station while visiting the project site during December, 2000 which gave him no doubt about the letters of the SDO. [52.] DW-4 Mr. Laldawngliana who is also the Appellant No. 1 in his examination-in-chief stated that Mr. C. Lalnunmawia Sailo, S.E (T) used to visit the project site oftenly and since the project was at the stage of commission and he instructed him to report any pending liabilities directly to him so that no liabilities would be left behind. He found that chain link wire mesh used for fencing of Kau-Tlabung Sub-Station and Thenhlum Sub-Station were not regularized and wrote two (2) chits to S.E (T) reporting that the same was supplied an utilized at the project site but not regularized and to take further necessary action. Formal order was issued by the S.E (T) which was received by his office. Afterwards, the supplier submitted the bills to the paying authority through the office of the SDO. Since he found that the chain link wire mesh were received and used for fencing of Sub-Station at Thenhlum and Sub-Station

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of Kau-Tlabung as clearly shown in the delivery challan. Entry was made by the concerned J.E into MD and site account as per procedure and submitted for payment to the concerned Division. DW-4 in his cross-examination reiterated what he stated in his examination-in-chief. He also stated that before writing chits, he asked the concerned J.E to look at the site account to ensure that the materials were actually received. He also stated that before he wrote the chit, he had personally verified the material supplied and used for fencing the SubStations. That Departmental Enquiry was initiated against him and other officials who were dealing with Kau-Tlabung and Tuipang Lui Mini Hydel Project and all the officials including him were exonerated.

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[53.] Both the appellants have been charged under the IPC Sections and under the P.C. Act. While the appellant No. 1 has been convicted under both the criminal laws, the appellant No. 2 has been convicted under the IPC only. From the charge framed against them, the entire case of the prosecution is with regard to the submission of two (2) supply bills amounting to Rs. 3,63,000/each and thereby committing of criminal conspiracy, criminal breach of trust, cheating etc,. The charge framed against the appellants however does not indicate that the materials to be supplied i.e., 66 rolls of 4SWG Chain Link-Wire Mesh for which, the supply bills had been generated was never supplied. From the evidence of PW-2, who conducted preliminary enquiry in his examination-in-

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chief stated that he did not find the 66 rolls of Chain Link-Wire Mesh allegedly supplied by M/S R.P Processing Unit, Chanmari. However, in his crossexamination, he stated that when he visited two (2) sites and the Mini-Hydel Projects, he found that the transformer of Sub-Station at Thenhlum and KauTlabung were fenced with Chain Link-Wire Mesh. In fact, he stated in his examination-in-chief that the same was not found because of his misconception of barbed wire with Chain link Wire Mesh. He also stated that the accused No. 2 had simply regularized the verbal order for supplying the materials given by the previous Superintending Engineer (S.E) Mr. Lalduhsaka by issuing a written supply order.

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[54.] PW-12 in his evidence had stated that the ACB came to inspect the allegation/complaint submitted by the PRISM almost after 20 years had from the commissioning of the project. The work was done properly and there was no reason to initiate any case against the accused persons. There was no complaint whatsoever from any of the villages regarding execution of the project. [55.] PW-23 in his evidence stated that he was posted as SDO Kau-Tlabung Project Sub-Division – I from the year 1996 – 2001. He did not receive 66 rolls of Wire Mesh. However, in his cross-examination, he stated that the electrical SDO might have received the same. He also stated that as far as the work was concerned, there was no requirement for Wire Mesh and therefore, he has no

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knowledge about the 66 rolls of Wire Mesh. PW-27 also stated that fencing was taken up by the electrical wing while he was handling civil work portion. Although he was stated to have given verbal order for the material in question but PW-27 denied knowledge about the supply of Wire Mesh and fencing of both the Hydel Projects.

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[56.] PW-28 stated that there was delay in commissioning of the project and for which, the Government suffered a loss of Rs. 2,28,00,000/- approximately per year but again in his cross-examination, he stated that the same was based on his presumption. PW-29 stated that during his posting as SDO at Kau Electrical Sub-Division, Thenhlum, he did not receive Wire Mesh during his tenure but in his cross-examination, he stated that the Sub-Station at Thenhlum was fenced during his tenure.

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[57.] PW-33 stated that he was posted as SDO (Technical), Serchhip Power Division from September, 2001. That Kau-Tlabung Small Hydel Project was handed over to Serchhip Power Division before he joined and that the project work had already been completed. He further stated that the site was properly fenced by Chain Link-Wire fencing and the fencing was already there when he joined. PW-51 acknowledged that he had written the challan as per instruction of the appellant No. 2. He also stated that he was mainly concentrating in the business of conducting, handling and operating airlines and therefore, he

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personally does not handle business run by the M/S R.P Processing Unit. Further he did not take part in the actual handing over of the material to the driver concerned. PW-58, who is the Case I/O had stated that appellant No. 1 by directly writing two letters to the Superintending Engineer and bypassing his immediate officer i.e., the Executive Engineer had committed offence punishable under the relevant Sections of IPC and PC Act and as such, he had submitted the charge-sheet.

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[58.] DW-3, who is also the accused No. 2 in the case and acquitted by the Trial Court stated that he remembered seeing the Chain Link-Wire Mesh being untilized for the ongoing fencing work at Thenhlum Sub-Station while visiting the project site in December, 2000 which gave him no doubt about the letters of the SDO for regularization of the supply of the materials. DW-4, who is also the appellant No. 1 stated that on being posted in the project, he found that Chain Link-Wire Mesh being used for fencing at Kau - Tlabung Sub-Station and Thenhlum Sub-Station and that the same had not been regularized. He therefore wrote two (2) chits to the Superintending Engineer (Technical) reporting the same was supplied and utilized at the project site but had not been regularized. He also stated that he had personally verified the materials supplied before writing the chits. The appellant No. 1 again in his examination under Section 313 Cr.PC had maintained the said version. The appellant No. 2

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also in being examined under Section 313 Cr.PC stated that he had supplied the fencing materials on the verbal instruction given and the same was regularized later on and he received the payments.

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[59.] From the evidence on record, it appears that the appellant No. 1 instead of writing to the Executive Engineer concerned had written directly to the Superintending Engineer (Technical), who is also the accused No. 2. The act of having bypassed his immediate superior would at best amount to procedural irregularity and cannot be a ground to invite criminal prosecution. From the evidence discussed, including the statements recorded under Section 313 Cr.PC, it cannot be said that the fencing materials had not been supplied for use at the project site. Under such circumstance, it cannot be held that the prosecution has discharged the burden of proving the case beyond all reasonable doubt against the appellants. The Apex Court in Harbeer Singh (supra) in the given facts of that case held that it is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. In Reena Hazarika

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Page No.# 44/45

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(supra) the Apex Court held that Section 313 Cr.PC cannot be seen simply as a part

¶176

of audi alteram partem. It confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right as a Constitutional right to a fair trial under Article 21 of the Constitution, even if it is to be considered as a piece of substantive evidence not being on oath under Section 313(2) Cr.PC. The solemn duty according to the Apex Court is therefore cast on the court in dispensation of justice to adequately consider the defence of the accused taken under Section 313 Cr.PC and to either accept or reject the same for reasons specified in writing.

¶177

[60.] It is also seen that the learned Trial Court had altered the charge from Section 409 IPC to Section 403 IPC at the time of passing the Judgment & Order. Although the punishment prescribed under Section 403 IPC is less severe but the fact remains that under Section 216 Cr.PC, Court is only authorized to alter or add to the charge at any time before the judgment is pronounced. Whenever such alteration or addition is made, it is to be read out and explained to the accused. The same apparently appears to have not been done in the instant case.

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[61.] Therefore, upon careful consideration of the materials available on record, the impugned Conviction & Sentence orders are found to be unsustainable and accordingly, they are set aside. Bail granted to the appellants is made absolute and

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Page No.# 45/45

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the bail bonds are discharged. Both the appeals are thus disposed of as allowed.

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Registry is directed to send back the LCR immediately.

¶182

JUDGE

¶183

Comparing Assistant

Er. Laldawngliana v. State of Mizoram and Anr.

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Er. Laldawngliana v. State of Mizoram and Anr.

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