Allahabad High Court
Radhey Shyam Retd.Executive Director M ... vs U.O.I. Through Home Secretary Min.Of ... on 15 July, 2022
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 10 Case :- CRIMINAL REVISION No. - 310 of 2020 Revisionist :- Radhey Shyam Retd.Executive Director M And C Rdso Opposite Party :- U.O.I. Through Home Secretary Min.Of Home Affairas And 2 Ors. Counsel for Revisionist :- Vishal Srivastava,Narendra Kumar Mishra,Shrikant Mishra,Vivek Sharma Counsel for Opposite Party :- A.S.G.,Shiv P Shukla Hon'ble Dinesh Kumar Singh,J.
1. Heard Mr. Vivek Sharma, assisted by Mr. Vishal Srivastava, Advocate, learned counsel representing the revisionist, as well as Mr. Shiv. P. Shukla, learned counsel, representing the Central Bureau of Investigation (for short 'CBI'), and gone through the the record.
2. This criminal revision under Section 397/401 CrPC has been filed being aggrieved by the order dated 22nd January, 2020 passed by the Special Judge, Anti-Corruption, CBI, West, Lucknow, rejecting application of the revisionist for discharge filed under Section 227 CrPC in Criminal Case No.954 of 2017, arising out of RC0062014A0024, under Sections 120-B IPC read with Sections 420/468/471 and 201 IPC and Sections 13(2) and Sections 13(1)(d) of the Prevention of Corruption Act, Police Station CBI/ACB, Lucknow.
3. In the said RC it was alleged that from reliable sources an information was received that during the period 2008-2013, the revisionist, the then Executive Director (M & C), Research Design and Standards Organization (for short 'RDSO'), Lucknow and co-accused, named in the RC, as well as other unknown officials of RDSO and RITES, Railway Board and National Test House, Ghaziabad entered into a criminal conspiracy with Shri Ravindra Kumar Bhalotia with common object to cheat Indian Railways by supplying sub-standard medium phosphorus brake blocks at exorbitant rates to different Railways by the firm, namely, M/s Riddhi Siddhi Udyog, Kolkata.
4. Allegation is that named and unnamed persons abused their official position as public servant by illegally renewing the status of the said firm as approved vendor of RDSO, whereas the approved manufacturing unit of the said firm was non-functional at their given address. The officers of the RITES, Kolkata issued false inspection certificate without actually conducting inspection of the material at the manufacturing unit and also passed the sub-standard material, which was supplied to different Zonal Railways at exorbitant rates by the said private firm, leading to huge loss to the Railways.
5. In the year 2008, M/s Riddhi Siddhi Udyog became the single approved source for Indian Railway. It increased the price of brake block by more than 100% as in the year 2008. The other firms were delisted as approved vendor of RDSO. Due to further effort made by the Q A (Mechanical), Directorate of RDSO, few firms applied for registration e. g. M/s National Stores Supply Agency, Howrah and M/s Precision Industrial System, Gwalior, which were approved on 24.02.2011, after completing the process of inspection. M/s National Stores India Limited, Howrah applied for fresh registration on 31.05.2011 and was approved on 23.01.2012. However, these two firms were wrongly delisted with mala fide intent to perpetuate the monopolistic status of M/s Riddhi Siddhi Udyog.
6. As per approval dated 16.11.2010, registration of M/s Riddhi Siddhi Udyog having its manufacturing address at Baltikuri, Howrah was valid up-to 31.07.2013. In the certificate of registration, the factory address was mentioned as Unit-I, Howrah Amta Road, Village & Post Office Baltikuri, Howrah. Office address was mentioned as 238-A, AJC Bose Road, 5th Floor, Unit-5D, Kolkata.
7. Mr. R.K. Bhalotia, Proprietor of M/s Riddhi Siddhi Udyog submitted an application dated 13.03.2012 in the office of the revisionist, who was holding the post of Executive Director (M & C), RDSO, Lucknow on 22.03.2012 regarding addition of Unit-II in the certificate of approval. Co-accused Mr. Om Prakash, ARO, was deputed for verification of Unit-II on 27.03.2012 by the Executive Director. Mr. Om Prakash visited the factory on 30.03.2012 and 31.03.2012. Report of verification was put up by co-accused, Mr. Om Prakash on 02.04.2012. The revisionist approved the Unit-II on the very same day i.e. 02.04.2012 and issued certificate of approval. Thus, within 10 days, approval of additional unit of M/s Riddhi Siddhi Udyog was approved by the revisionist and other officials in the M & C Directorate, RDSO.
8. Undue preference was given by the revisionist and his team to M/s Riddhi Siddhi Udyog by approving the additional unit and it was impossible that the required parameters could have been verified within 2 days inasmuch as the inspection of II-Unit was made on 30 and 31.03.2012 and on 02.04.2012 certificate was issued.
9. It is further noticed during the course of investigation that registration of two firms, namely, M/s Precision Industrial System, Gwalior and M/s National Stores Supply Agency, Howrah were refused promptly by Mr. Radhey Shyam, revisionist so that monopolistic status of M/s Riddhi Siddhi Udyog could continue. The applications were made in June, 2012, but their applications for renewal of registration was delayed by asking the documents and putting unnecessary objections. Despite submitting all the documents to remove deficiency, as pointed out, the revisionist delisted them on 03.12.2012 in order to facilitate continuation of monopolistic status of M/s Riddhi Siddhi Udyog, which was enjoying the same since 2008.
10. It has been alleged that the revisionist and his team resorted to flimsy grounds for temporarily delisting other competitors of M/s Riddhi Siddhi Udyog, without issuing any show-cause-notice and abnormally delayed renewal process of other companies. There was only one part-I source for supply of medium phosphorus brake blocks i.e. M/s Riddhi Siddhi Udyog and out of three part-II sources, two of the older one i.e. M/s National Stores Supply Agency, Howrah and M/s Precision Industrial System, Gwalior were delisted by M & C Directorate, RDSO headed by the revisionist. It had been said that both the firms were at the verge of becoming part-I source on the basis of criteria fixed for up-gradation, but they had been deliberately delisted to perpetuate the monopolistic status of M/s Riddhi Siddhi Udyog.
11. Further allegation against the revisionist is that on complaint of Mr. B.N. Ghosh regarding forged electricity bill used by M/s M/s Riddhi Siddhi Udyog and letter of Deputy CMM, Bilaspur forwarding therewith a copy of the letter of NSIC, cancelling the certificate issued to M/s Riddhi Siddhi Udyog were received in the office of M & C Directorate, but the revisionist, who was holding the post of ED did not take any action on these complaints received against M/s Riddhi Siddhi Udyog. Further, in the month of February/March, 2012 the Income Tax Department and Central Excise Department had conducted searches at the premises of M/s Riddhi Siddhi Udyog and many undisclosed accounts and evasion of excise duty were detected and M/s Riddhi Siddhi Udyog in order to cover up the matter, got the Unit-II approved within no time with the active support of the revisionist inasmuch as he approved the II-Unit within 10 days of the application, without following the procedure and, thus, facilitated the firm to maintain its part-I status having supply of 85%.
12. The two firms were delisted to prevent their up-gradation as Part-I supplier in order to avoid competition to the sole supplier i.e. M/s Riddhi Siddhi Udyog. Delisting of the firms ensured that M/s Riddhi Siddhi Udyog to enjoy single Part-I source status. The revisionist and other officials of the M & C Directorate in order to illegally favour M/s Riddhi Siddhi Udyog resorted to delisting the firms on flimsy grounds. In the process, the Railways suffered losses of Rs. 22 Crores which was corresponding gain to M/s Riddhi Siddhi Udyog.
13. It has been held that the investigation disclosed commission of offence under Sections under Sections 120-B IPC read with Sections 420/468/471 and 201 IPC and Sections 13(2) and Sections 13(1)(d) of the Prevention of Corruption Act against the revisionist and co-accused, named in the charge-sheet.
14. The revisionist approached this Court by way of filing writ petition bearing Misc. Bench No.3961 of 2017 for quashing of the FIR. The said writ petition was dismissed, however, the CBI was directed to conclude the investigation, preferably within two months from the date of production of certified copy of the order. The revisionist thereafter filed application under Section 482 CrPC for quashing of the charge-sheet bearing Application U/s 482 No.878 of 2018. However, this Court, while dismissing the 482 Application No.878 of 2018 vide order dated 20.02.2018, held that from perusal of the material on record and looking into facts of the case, at this stage, it cannot be said that no offence is made out against the applicant, revisionist herein. All the submissions made at the bar related to the disputed question of fact, which could not be adjudicated upon by this Court in exercise of power conferred under Section 482 CrPC. At this stage only prima facie had to be seen. The disputed defence of the accused could not be considered at that stage. The prayer for quashing of the charge-sheet was rejected. However, the revisionist was granted 30 days time to surrender before the trial Court and apply for bail. It was said that his application should be considered and decided in accordance with law laid down in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290.
15. The revisionist filed Petition for Special to Appeal No.18517 of 2018 against the order dated 06.09.2018 passed in Bail No.2240 of 2018 passed by this Court. However, the said special appeal came to be dismissed vide order dated 11.12.2018 in limine.
16. Shri Vivek Sharma, learned counsel for the revisionist, has submitted that there is not even iota of evidence to support the charge against the revisionist. The impugned order of the trial Court, rejecting the discharge application, is against law. It has been further submitted that in identical charge, disciplinary proceedings got conducted by the department vide order dated 8th July, 2019 and the department exonerated the revisionist of all the charges. It has been further submitted that the revisionist took business/commercial decision in discharge of his official duty, without there being any mala-fide or criminal intent. It has been further submitted that the allegations made by the CBI in charge-sheet that the Indian Railways suffered losses to the extent of Rs. 22 Crores is notional loss, and there is no evidence to support the same. It has been further submitted that M/s Riddhi Siddhi Udyog acquired monopolistic status in the year 2008 due to delisting of other approved firms by the concerned authorities of Quality Assurance, Mechanical Directorate and, during this time, the revisionist was not remotely in picture and he was appointed as ED (M & C) in RDSO on promotion with effect from 19.09.2011 and held the said post till 31.01.2014 when he retired from the said post on attaining the age of superannuation. It has been further submitted that the revisionist is being held responsible for the acts of others with which he had no concern.
17. On behalf of the revisionist, it has further submitted that the settled legal position regarding deciding an application for discharge is that the Court on first instance should encompass the entire conspectus of the case so as to arrive at a just and equitable decision as to whether prima facie case is made out against the accused, who is seeking discharge, or not. In the present case, the learned trial Court has failed to consider the entire conspectus of the case while deciding the revisionist's application for discharge. It has been further submitted that if a criminal prosecution is instituted against a delinquent public servant on the same and identical set of charges, which are subject matter of the departmental inquiry, and the public servant is exonerated of all charges by the disciplinary authority, no useful purpose would be served by continuing with the criminal prosecution of the public servant in the given facts and circumstances of the case. It has been further stated that the standard of proof required to establish the guilt in the criminal cases is far higher than the standard of proof required to establish guilt in departmental inquiry. In a criminal case, the charge is required to be proved beyond reasonable doubt, however, in departmental proceedings the guilt/charge can be established on preponderance of probability of the guilt/charge. It has been further submitted that the impugned order, passed by the learned trail Court, is unsustainable and, therefore, the same is liable to be set-aside.
18. On the other hand, Mr. Shiv P. Shukla, learned counsel for the CBI, has submitted that at the time of framing of charge/considering discharge application what is required to be seen is the material/evidence available on record to find out whether strong suspicion will arise regarding commission of the offence by the accused upon consideration of the materials available before the Court to form a presumptive opinion as to the existence of prima facie case. It has been further submitted that the revisionist was in-charge of the department from 21.03.2012 to 21.02.2013 and during this period he had dealt with the file of M/s Riddhi Siddhi Udyog. The learned counsel for the CBI has drawn attention of the Court on several paragraphs of the charge-sheet in respect of the revisionist which clearly indict the revisionist for the offence for which the charge-sheet has been filed. It has been further submitted that the trial Court's order is neither against the law nor beyond jurisdiction and there is no ground to interfere with the well-reasoned order passed by the learned trial Court, rejecting discharge application of the revisionist.
19. I have considered the submissions advanced by Mr. Vivek Sharma for and on behalf of the revisionist and Mr. Shiv P. Shukla for and on behalf of the CBI.
20. The facts, in brief, have been stated in preceding paragraphs of this order. From the allegations against the revisionist, which are part of the charge-sheet, it cannot be said that no prima facie case exists against the revisionist. At the time of framing of charge/considering discharge application the Court is required to consider the material/evidence available on record to find out whether strong suspicion arises to form an opinion as to the existence of prima facie case against the accused or not. Detailed evaluation of the evidence/material is not required at this stage. This Court is in agreement with the view of the learned trial Court that there is sufficient evidence/material available against the accuse-revisionist, which raises strong suspicion regarding his involvement in commission of the offence and supports the charge prima facie for which the charge-sheet has been filed.
21. In view thereof, this Court does not find that the trial Court has committed any error of jurisdiction or law which requires interference by this Court in exercise of revisional jurisdiction and, therefore, this revision, being devoid of merit and substance, is hereby dismissed.
Order Date :- 15.7.2022 MVS/-