Madhya Pradesh High Court
Nandkishore Bramhe vs The State Of Madhya Pradesh on 22 August, 2019
Equivalent citations: AIRONLINE 2019 MP 1080
Author: Rajeev Kumar Dubey
Bench: Rajeev Kumar Dubey
THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No. 32164/2019
(Nandkishore Bramhne Vs. State of M.P. through EOW)
1
Jabalpur, Dated : 22.08.2019
Shri Anil Khare, learned Senior Counsel with Shri
Abhinav Shrivastava, counsel for the applicant.
Shri H.S. Chhabra, learned counsel for the
respondent/EOW.
Heard with the aid of case diary.
This is the second bail application under Section 439 Cr.P.C.
2. Applicant Nandkishore Bramhe was arrested on 14/4/2019 in Crime No.12/2019 registered at Police Station P.S. Economic Offences Wing (EOW), Bhopal (M.P) for the offence punishable under Sections 120-B, 420, 467, 468, 471 of the IPC, Section 66 of the Information Technology Act, 2000 and Section 7 r/w 13(2) of the Prevention of Corruption Act, 1988.
3. The first bail application of the applicant was rejected on merit by this court vide order dated 25/6/2019 passed in M.Cr.C.No.18310/2019.
4. As per prosecution case, M.P. State Electronics Development Corporation Ltd. (hereinafter referred to as "MPSEDC") is a body working under State of M.P. Department of Science and Technology. Department of Information Technology, Govt. of Madhya Pradesh adopted the e-Tendering System using online platform in 2006. In the year 2012 Government of Madhya Pradesh appointed MPSEDC, as the Nodal Agency for MP e-procurement portal. MPSEDC selected M/s Tata Consultancy Services with Antares Systems Ltd. as the new Implementation Agency for end-to-end e-Procurement solutions. The agreement with TCS & Antares was signed in the year 2013. The New Service Providers undertook the Customization, Integration, Implementation and Maintenance of Digitally signed by VARSHA SINGH Date: 2019.08.26 11:05:51 +05'30' THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 32164/2019 (Nandkishore Bramhne Vs. State of M.P. through EOW) 2 Single, Unitary, Web Based e-Procurement Software (Portal) with the specified modules which also include E-Tendering. Co- accused Manohar M.N. was the Vice President of Antares Systems Ltd. and was the project in-charge on behalf of the company. Applicant Nandkishor Brahme was posted as OSD in MPSEDC from the year 2012 and was assigned the duty as Nodal Officer of E-Tendering Project. In E-Tendering Project, MPSEDC made a platform available to various Government Departments for floating tenders. In the tendering processes the concerned Department which issued the tender uploaded its tender on the portal, on which last date of filing tender and the time of its opening was mentioned. While issuing the tender, the concerned officer also attached the public key of his digital signature. The tenderer after registering himself on MP e- Procurement portal filled the tender and after filing the tender, submitted the tender on the portal after it was encrypted by the public key of the officer concerned attached with the tender. After submission of the tender, no departmental officer, e- tendering company or other person could open the tender before its opening time.
5. On 11th April, 2018 at the time of opening of three tenders Nos. 91, 93 & 94 floated by the Madhya Pradesh Jal Nigam Maryadit (here in after referred as "MPJNM") the computer displayed a message that "the contents of the document had been modified". On that service provider company Antares Systems Ltd. was directed to submit the report after inquiry. In the first report given by the team of Antares Systems Ltd after examining the system they mentioned that there was no irregularity and only attributed the message to technical defect. However, they also stated that further technical analysis was going on. Thereafter, on Digitally signed by VARSHA SINGH Date: 2019.08.26 11:06:09 +05'30' THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 32164/2019 (Nandkishore Bramhne Vs. State of M.P. through EOW) 3 05/05/2019 Antares Systems Ltd. again gave the Root Cause Analysis Report (R.C.A.) mentioning therein that the tenders had been tampered with. On that the then Managing Director of MPSIDC informed MPJNM for canceling these bids and also directed Antares Systems Ltd. to enquire all the tenders, which were floated by the various Government department between 01/01/2018 to 30/04/2018 on E-Portal. On that the team of employees of Antares Systems Ltd. Again enquired the matter and gave the report to the effect that during the check period six other tenders i.e. tender of MP Road Development Corporation No.786, Public Works Department Tender Nos. 49813, 49982 & 49985 and tender of Water Resources Department Nos. 10030 & 10044 were also manipulated similarly.
6. Thereupon, on the direction of Chief Secretary of M.P. Government a preliminary enquiry was conducted by the Economic Offence Wing. In the preliminary enquiry it was found that after changing the bid price of tender Nos. 91, 93 & 94 of MPJNM amounting to Rs.1,769 crore the M/s GVPR Engineers Limited Hyderabad for tender No.91, M/s the Hume Pipe Company Limited Mumbai for tender No.93 and M/s JMC Projects India Limited Mumbai for tender No. 94 were made lowest bidder (L1), likewise by tampering the two tenders of the Public Works Department Tenders Nos.49985 & 49982 amounting to Rs.13.46 crores, M/s Ramkumar Narwani Bhopal, were made lowest bidder, in the Tender no. 4981319 amounting to 15 crores, Sorathiya Velji Ratna and Company Vadodara were made lowest bidder. After tampering the tender of Madhya Pradesh Road Development Corporation amounting to Rs.7.86 crores M/s Madhav Infra projects Vadodara, Water Resources Department tender Nos.10030 & 10044 total Digitally signed by VARSHA SINGH Date: 2019.08.26 11:06:21 +05'30' THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 32164/2019 (Nandkishore Bramhne Vs. State of M.P. through EOW) 4 amounting to Rs.1135 Crore, M/s Max Mantena Micro JV Hyderabad and Sorathiya Velji Ratna Baroda were made a lowest bidder (L-1), due to which companies earned illegal profits.
7. On the basis of that preliminary evidence and findings of a probe report of the Computer Emergency Response Team, New Delhi, Crime No.12/2019 was registered at Economic Offences Wing, Bhopal (M.P.) for the offence punishable under Sections 120-B, 420, 468, 471 of the IPC, Section 66 of the Information Technology Act, 2000 and Section 7 read with Section 13(2) of the Prevention of Corruption Act against applicant and other co- accused persons.
8. From the report of the Computer Emergency Response Team, New Delhi and the other evidence collected by the investigating agency during investigation it was found that in the year 2016, OSMO Pvt. Ltd. (co-accused Varun Chaturvedi and Vinay Choudhary , the Managing Directors of OSMO and co- accused Sumit Golwalkar, the Marketing Director of that company entered into an agreement with Antares Ltd. in order to check the reasons why the whole system of E-tendering had slowed down and was engaged to conduct a performance test of the E-tendering system and come up with concrete steps to tackle the slow speed. During the performance test, OSMO was provided with user IDs and Bidder IDs by the Antares Ltd. In the month of June, 2016 OSMO stated that it was not able to conduct a performance test of the whole system and thus could not complete the process of testing.
9. It is further stated that the manipulation was done by one of the user ID and bid IDs. For manipulating the tenders of MPJNM, a demo file was created on MP e-procurement portal. That file was created using ID PT 4, which was given to Digitally signed by VARSHA SINGH Date: 2019.08.26 11:06:36 +05'30' THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 32164/2019 (Nandkishore Bramhne Vs. State of M.P. through EOW) 5 OSMO IT Solutions at the time of performance testing and they also used digital signature certificate (DSC) of Keshav Rao Uikey. The IP address registered while creating the said demo file was 27.60.163.98 and 27.60.185.14 which was linked with mobile No. 9755092919. The SIM of this mobile number was registered in the name of co-accused Varun Chaturvedi and was being used by co-accused Vinay Choudhary. Thereafter, hackers entered into the database through the staging server, where original tenders were stored and this process was done through virtual private network (VPN), the access of which was only with applicant Nandkishore Bramhe. After reaching the database server hackers accessed the file where the original tenders were saved. They copied the details of all the bidders, who submitted the bids, which were encrypted. After copying the bids they again came back to the demo tender file created by them earlier and by using bidder ID number 15597 and vendor ID number QK 829 846 pasted the said bids in demo file. The vendor ID used for this purpose was the same, which was issued to OSMO for performance testing in the year 2016. After pasting the encrypted bid in the demo file, the hackers assessed the system again on 03-03-2018 i.e. the date on which the said bids stood decrypted as the date of opening the demo tender was mentioned as 03-03-2018. Thus, they were able to see the figures/bids submitted by all the bidders in encrypted form. After seeing the amount filed by each bidder another demo file was created in the second demo file, the encrypted bids as visible in the first demo file were pasted in the second demo file. Again by using the bidder ID No.15597 having vendor ID number QK29846 they manipulated the bids and made the person they wanted to benefit as the lowest bidder. After making the change in the second demo Digitally signed by VARSHA SINGH Date: 2019.08.26 11:06:50 +05'30' THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 32164/2019 (Nandkishore Bramhne Vs. State of M.P. through EOW) 6 file and placing a wrong bidder L1 hackers copied the encrypted/manipulated bid value and again by using the staging server reached the database server through a VPN, access of which was given to applicant Nandkishore Bramhe, opened the original tender file and pasted the said encrypted manipulated bid value next to the name of the bidder they wanted to benefit and thus manipulated the bids.
10. Learned senior counsel appearing on behalf of the applicant submitted that the applicant is innocent and has falsely been implicated in the case. Although, earlier bail application of the applicant was rejected on merit by this court vide order dated 25/6/2019 passed in M.Cr.C.No.18310/2019, but at that time investigation was going on, so this Court rejected applicant's bail application observing that at this stage this Court is not inclined to grant bail to the applicant. Now, the investigation is over and charge-sheet has been filed so far as it relates to the applicant. It is further submitted that the applicant was posted in MPSEDC in the year 2012 and since then he had been working there. The duties/role of the applicant in MPSEDC were registration of different department on the e-Procurement portal and forward the complaints received in respect of the same to the appropriate authority. It is further submitted that on the e-procurement portal, any of the Government department can register itself by filing form available on the website and then concerning department can upload tenders on e-procurement portal. The applicant has no role in tender process. It is alleged that the hackers used the VPN access to manipulate the data of bids by using VPN allotted to the applicant, but there is no evidence on record to show that the hackers used the VPN allotted to the applicant with the knowledge of the applicant. The duty of the security of e-
Digitally signed by VARSHA SINGH Date: 2019.08.26 11:07:05 +05'30'THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 32164/2019 (Nandkishore Bramhne Vs. State of M.P. through EOW) 7 procurement portal was with Antares Systems Ltd. and TCS. Applicant was the first person who complained regarding manipulation in tenders. It is further submitted that the only allegation against the applicant is that he provided VPN Access to other co-accused persons who manipulated the bid and thereby applicant is a part of a conspiracy, but there is no clinching evidence on record to show that it is the applicant who provided VPN access to other co-accused persons. There is no evidence on record to show that the applicant anyway connected with other co-accused person who manipulated the bids. Even, EOW had also conducted a search of the residential premises of the present applicant, but nothing objectionable was seized from his house. No unaccountable property or tainted money was seized by the Police from the possession of the applicant. Similarly, no other incriminating document was seized by the police from the possession of the applicant. Applicant is a Government servant. There is no likelihood of him absconding or tampering with the prosecution evidence. The Charge-sheet has been filed, applicant is in custody since 14/04/2019 and conclusion of trial will take time because the investigation regarding other co-accused persons is going on, so applicant be released on bail.
11. Learned counsel for the respondent/EOW opposed the prayer and submitted that from the evidence collected by EOW during investigation it is revealed that the applicant was known to co-accused Vinay Choudhary since 2007 when the applicant was working with NVDA. It was the applicant who pitched the OSMO Solutions in the year 2016 under the pretext of performance testing in the E-tendering process. The role of applicant was to make sure that no untoward incident takes place in the whole process of E-tendering. It was also his duty that Digitally signed by VARSHA SINGH Date: 2019.08.26 11:07:19 +05'30' THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 32164/2019 (Nandkishore Bramhne Vs. State of M.P. through EOW) 8 there are no security lapses in the whole process of E-tendering. On the request of applicant Nandkishore Brahme, VPN Access was given to him. That VPN was used in the tender manipulation. There is apprehension of tempering with the evidence by applicant Mr. Nandkishore Brahme. He further submitted that two laptops and one pen drive were seized from the possession of the applicant and analysis of said seized material is going on and report is yet to come, so he should not be released on bail. In this regard he also placed reliance on Apex Court judgement passed in the case of State of U.P. through CBI Vs. Amarmani Tripathi, 2005 (8) SCC 21, State of Bihar Vs.Rajballav Prasad @ Rajballav Prasad Yadav, 2017 (2) SCC 178 and the judgement passed by the Division Bench of this Court in the case of Sudhir Sharma Vs. State of M.P., passed in M.Cr.C.No.1258/2015 vide order dated 30/10/2015.
12. The facts of the cases State of U.P. through CBI Vs. Amarmani Tripathi (Supra), State of Bihar Vs.Rajballav Prasad @ Rajballav Prasad Yadav (Supra) and Sudhir Sharma Vs. State of M.P., (Supra) relied on by the learned counsel for the respondent/EOW do not match with the present case. In the first case accused were the Ex minister of U.P. and his wife and Apex Court cancelled their bail on the ground that there was an apprehension of tampering with the evidence by them. In the second case also Apex Court cancelled the bail of accused on the ground that accused had extended threats to the prosecutrix as well as her family members and material witnesses of the case. In the third case there were four cases registered against the accused and the Division Bench of this Court looking to the facts and circumstances of the case, rejected the bail application of the accused. While in this case, the applicant has no criminal past Digitally signed by VARSHA SINGH Date: 2019.08.26 11:07:34 +05'30' THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 32164/2019 (Nandkishore Bramhne Vs. State of M.P. through EOW) 9 and there is no apprehension of him tempering with the evidence. So these judgements do not assist the non-applicant / EOW.
13. It is alleged that the applicant provided VPN Access to other co-accused persons who manipulated the bid and thereby applicant is a part of a conspiracy, but there is no direct evidence on record to show that it is the applicant who provided VPN access to other co-accused persons. It is also alleged that two laptops and one pen drive were seized by the police from the possession of the applicant and the analysis of said seized material is going on and report is yet to come. But said articles were allegedly seized by the Police on 16/04/19, while report is not received as yet. EOW had also conducted a search of the residential premises of the present applicant, but nothing objectionable was seized from his house. No unaccountable property or tainted money was seized by the Police from the possession of the applicant. Similarly, no other incriminating document was seized by the police from the possession of the applicant. Applicant is a Government servant. There is no likelihood of him absconding or tampering with the prosecution evidence. The Charge-sheet has been filed, the applicant is in custody since 14/04/2019 and conclusion of the trial will take time, so without commenting on the merits of the case, the application is allowed and it is directed that the applicant be released on bail upon his furnishing personal bond in the sum of Rs.50,000/- (Rs. Fifty Thousand Only) with one surety in the like amount to the satisfaction of the concerned C.J.M/trial Court for his appearance before the concerned Court on all such dates as may be fixed in this behalf by the trial Court during the pendency of trial.
Digitally signed by VARSHA SINGH Date: 2019.08.26 11:07:50 +05'30'THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 32164/2019 (Nandkishore Bramhne Vs. State of M.P. through EOW) 10
14. This order will remain operative subject to compliance of the following conditions by the applicant :-
i. The applicant will comply with all the terms and conditions of the bond executed by him;
ii. The applicant will cooperate in the trial; iii. The applicant will not indulge himself in extending inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the Court or to the Police Officer, as the case may be; iv. The applicant shall not commit an offence similar to the offence of which he is accused;
v. The applicant will not seek unnecessary adjournments during the trial; and vi. The applicant will not leave India without previous permission of the trial Court.
C.C. on payment of usual charges.
(Rajeev Kumar Dubey) Judge vs Digitally signed by VARSHA SINGH Date: 2019.08.26 11:08:07 +05'30'