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Madhya Pradesh High Court

Balakdas Tiwari (B.D. Tiwari) vs Special Police Establishment on 9 January, 2020

Author: Vivek Rusia

Bench: Vivek Rusia

           THE HIGH COURT OF MADHYA PRADESH
                          CRA No. 11276/2019
     Balakdas Tiwari (B.D. Tiwari) V/s. Special Police Establishment.
                                    -: 1 :-
Indore, dated : 09.01.2020
               Shri Piyush Mathur, Sr. Advocate with Shri Akash
Vijayvargiya, Advocate for the appellant.
               Shri R.S. Raghuvanshi, Advocate for Respondent,

Special Police Establishment, Lokayukta, Indore.

Heard on the question of admission.

Appeal is admitted for final hearing.

Also heard on I.A. No.10864/2019, an application for suspension of custodial sentence.

The appellant has been convicted and sentenced as under, vide judgment dated 19/12/2019 passed by the Special Judge (established under the Prevention of Corruption Act, 1988 ) :

Section & Act. Imprisonment Fine Amount Imprisonment in lieu of default of payment of fine.

13(1)(d) r/w. 13(2) 4 years' RI 1,00,000/- 1 year RI of Prevention of Corruption Act.

120-B of IPC 4 years' RI 5,000/- 1 year RI

2. According to the prosecution case, the Special Police Establishment (SPE) registered a case in the 1.3.1995 vide Crime No. 20/1995, under Sections 13 (1) (d) and 13 (2) of the Prevention of Corruption Act, 1988 and Sections 420 and 120-B of IPC against seven Government employees, namely (i) Late P. K. Monda the then Chief Engineer, (ii) B. D. Tiwari the then Superintending Engineer,

(iii) A. K. Sojatiya the then Executive Engineer, (iv) V. K. Talsera the then Assistant Engineer in Criminal Revision No.671 of 2014,

(v) P. D. Gupta Sub Engineer (vi) M.L. Joshi the then THE HIGH COURT OF MADHYA PRADESH CRA No. 11276/2019 Balakdas Tiwari (B.D. Tiwari) V/s. Special Police Establishment.

Superintending Engineer and fours partners of M/s Pallanattil Construction Company, Kerala ( here in after referred as ' Contractor') , namely P.P. Thomas, P.P. Polus, Kurian Paul and P.P. George. The above case was registered on the directions of Dy. Inspector General, Special Police Establishment, Lokayukt, Bhopal against appellant and others .It was alleged in the FIR that a contract was awarded for construction of dam which is commonly known as 'Man Project' by order No. 115/17/MNM/90 dated 25.8.1990 to the 'contractor', Kerala and the 'contractor' was directed to complete the work within 29 months i.e. by 29.2.1993. The total cost of the contract was Rs.13.18 crores .As per the term No. 3.23.2 of the contract, the contractor was to be paid an advance for the purpose of bringing and purchasing machinery to be used for the purpose of construction of the Dam. Accordingly Superintending Engineer NVDA, Circular No. 10, Manawar by his letter dated 22.9.1990 ordered the payment of Rs. 110.95 lakhs to the contractor for purchasing the machines. The contractor purchased the various machines to be used in the construction work. On 23.9.1994, the Executive Engineer, Narmada Development Authority (NVDA), Division No. 10, Manawar informed the Director, Rehabilitation, Bhopal that the 'contractor' has removed the machines from the site on 10.6.1991 before completion of work during contract period. The preliminary inquiry was ordered in which it was revealed that the contractor has removed the machines on 10.6.1991 from the site, still the payments towards advance for machinery were made on 25.10.1991 of Rs. 6.38 Lakhs and of Rs.7.07 Lakhs on 6.4.1992, which ought not to have been done ,the machines were THE HIGH COURT OF MADHYA PRADESH CRA No. 11276/2019 Balakdas Tiwari (B.D. Tiwari) V/s. Special Police Establishment.

hypothecated with the department by the contractor and, therefore, the possession over the machines should have been continued by the department, but it was not done so, and the contractor has failed to complete the construction work in the specified period, as per the Term No. 4.32, even then the period of contract has been extended.

3. It was also found that the contractor was already having machines which he has shown as new machines and recovered money from the Government. The appellant and other government officers have failed to assess the correct value of those machines, at the time of payment of bills of purchase and thereby caused heavy losses to the government and gave undue financial benefit to the contractor. It was also found that though an advance of R. 1.10 crores was given to the contractor and as per the terms of the contractor, recovery of 10% of the total amount of advance should have been made from the running bills. It was also found that the contractor did not complete the work within the prescribed period from September, 1990 to February 1993 as per the terms of the contract and he did work of only Rs. 1.32 Crores out of 13.18 Crores within this period, but no action was taken by the concerning officers against the contractor and they allowed him to take the machines out of the project area and wrongly extended the period of contract. No information regarding these facts was given to the higher officers in time and thereby present appellant and other government servant have illegally benefited the contractor and caused a loss to the Government and, therefore, they misused their official position and committed the offences punishable under THE HIGH COURT OF MADHYA PRADESH CRA No. 11276/2019 Balakdas Tiwari (B.D. Tiwari) V/s. Special Police Establishment.

Sections 13 (1) (d) and 13 (2) of the Prevention of Corruption Act and Sections 420 and 120-B of IPC.

4. After registration of the case investigation was conducted by the Special Police Establishment and a report was sent to the State Government and permission for prosecution of the present appellants was sought. That permission was refused by the Government in the meeting of Permanent Sub Committee of the Council of Minsters dated 13.7.2002. Special Police Establishment, Lakayukt again made a request to the Government to reconsider its decision by way of letter dated 21.7.2004, then again a meeting of Cabinet was held on 26.10.2005 and again sanction was refused and the Special Police Establishment, Lokayukt was informed by the Water Resources Department, to close the matter again six officers including the present appellants. But ultimately, after superannuation of the present appellant charge sheets against his was filed before the Special Court.

5. As per charges framed against the appellant by learned Special Judge, from 20.9.1990 to the year 1994 he was posted as superintending engineer in Maan Project of NVDA and during this period he has made the payment of Bills of Rs.13.45 lakhs and 39 lakhs to the contractor despite to the fact hypothecated machineries worth of Rs. 55 lakhs have been removed from the site and he did not recover the money paid in advance from the running bills. He has also recommended for extension of contract period, and by doing so he gave undue benefits of the contractors and caused the financial loss to the state government.

THE HIGH COURT OF MADHYA PRADESH CRA No. 11276/2019 Balakdas Tiwari (B.D. Tiwari) V/s. Special Police Establishment.

6. That during pendency of the trial for 15 years accused no. Arvind Joshi, No.3 Purshottam das Gupta & No.4 P.P.Jorge have expired and No.2 Ashok Sajotia has been discharged in view of the order dtd .14.2.2013 passed by the Apex court.

7. The prosecution examined the number of witnesses and got exhibited the voluminous documents in order to prove the charges against the appellant. After prolonged trial of 15 years the learned counsel Special Judge has discharged the appellant and other remaining accused under section 420 of IPC but convicted under section 13(1)(d) r/w. 13(2) of Prevention of Corruption Act,1988 and 120-B of IPC and sentenced as mention above, hence the present Criminal Appeal before this the High Court .

8. Shri Piyush Mathur Learned Sr. Counsel appearing for the appellants has drawn our attention to various clauses of the agreement and documents and submitted that, so far as charge under Section 120B of IPC is concerned, the prosecution agency has not procured any sanction whereas, the same is essential in the light of provisions contained under Section 197 of Cr.P.C and in absence of any sanction, the appellant has wrongly been tried and convicted. The state government has refused to grant the sanction of prosecution of the appellant and despite that SPE has filed the Charge Sheet after the retirement of the appellant which is not permissible in view of the decision of the apex court in the case of A.K.Sojatiya EE vs. State of M.P. [Criminal Appeal No. 308/2013 dated 14.2.2013] who was one of the accused in this trial along with the appellant. The appellant ought to have been discharged by the trial judge.

THE HIGH COURT OF MADHYA PRADESH CRA No. 11276/2019 Balakdas Tiwari (B.D. Tiwari) V/s. Special Police Establishment.

9. Learned senior counsel has also submitted that not a single material is available against appellant, who was at that relevant point of time posted as Superintendent of Engineer, Narmada Valley from 20.9.1990 to the year 1994. The charge-sheet against him and also against co-accused persons was filed on 21.9.2004. He got retired only on 28.2.1995. He submitted that, there is no material against him, except recommendation of extension of time of contract. The decisions taken by the appellant were based on the recommendations of A.K.Sojatiya EE who was in-charge of the entire project and he has been discharged by the apex court. The appellant had initiated the proceeding for recovery against the contractor but same has been stayed by this court. The payment of Bills of Rs.13.45 lakhs and 39 lakhs were made as per terms of the contract and recommendations of the A.K.Sojatiya E.E.hence no criminal liability can be fasten on the appellant. The extension of contract period was granted as per the terms and conditions of the contract and in order to save government money and future litigation which is very normal in almost all the works contract and no criminality can be attached to it.

10. Shri Mathur learned sr. counsel finally submitted that the appellant is at present aged about 82 years . He remained on bail during pendency of trial and he never misused it. He has faced the agony of the trial for 15 long years. The appellant has good prima- facie case and he hopes to succeed in it. The appeal may take time to come up for final hearing hence the jail sentence be suspended in the interest of justice.

THE HIGH COURT OF MADHYA PRADESH CRA No. 11276/2019 Balakdas Tiwari (B.D. Tiwari) V/s. Special Police Establishment.

11. Shri R.S. Raghuvanshi learned counsel appearing for the respondent submitted that it is not in dispute that Rs.110.63 lacs towards mobilization advanced against machinery was given to the contractor. The contractor after purchasing of equipment and vehicles hypothecated the same to the Government and as per Clause 1 of hypothetical deed, it will not be dispossessed by the contractor till the said advance is fully repaid. It has also come on record that the contractor was permitted to use equipment and vehicle for some other contract and for that they were permitted to remove from the site for carrying out the work of some other contractor. This was with the knowledge of the appellant and other co-accused persons, but they have not taken any action against the contractor nor intimated the same to the higher authorities. It was the duty of appellant, to go through the record and then recommend the case, for extension of time to the Chief Engineer. Learned counsel for the SPE Lokayukt has further submitted that in view of the law laid down by the Apex Court in the case of Himachal Pradesh v/s. M.P. Gupta reported as AIR 2004 SC 730 wherein, the Apex Court held that, it is no part of the duty of a public servant, while discharging his official duties, to enter into the criminal conspiracy or to indulge into the criminal misconduct. Want of sanction under Section 197 of Cr.P.C is, therefore, no bar.

12. Shri Raghuvanshi has further submitted that appellant, during his posting as Superintendent of Engineer, from a period between 20.9.1990 to year 1994, misused his position as Superintendent of Engineer, and caused wrongful gain to the co- accused contractor namely 'contractor'. The employees of THE HIGH COURT OF MADHYA PRADESH CRA No. 11276/2019 Balakdas Tiwari (B.D. Tiwari) V/s. Special Police Establishment.

'contractor' violated the terms and conditions of the contract and did not execute the work and despite this appellant, made a payment as advances and allowed the contractors to remove the machinery from the site of work when the same were hypothecated with the Government of Madhya Pradesh. Appellant did not take any steps to recover the amount of machinery hypothecated under the contract from the running bills of the 'contractor' and did not take steps to recover the machines, as a result of which, huge financial loss was caused to the State Government. Appellant, being the Superintending Engineer was under the obligation to see to it that the contractor 'contractor' strictly adheres to the terms and condition of the contract, but he failed to discharged his duty and caused wrongful gain to the 'contractor'. The case of the present appellant is different from the case of A.K.Sojatiya EE (supra) as the appellant filed the Criminal Revision before this High Court against the charges framed by the learned Special Judge but same has been dismissed and against which no SLP was filed. The learned Special Judge considering each and every aspect of the matter has rightly convicted all of them; hence they are not entitled for suspension of sentence.

13. I have heard the learned counsel for the parties and peruse the records.

14. That it is not in dispute that the during service tenure of the co-accused/Govt. Officers, the State Government has twice refused to grant the sanction of prosecution. SPE Lokayukt registered the FIR and filed the Final Report after the retirement of the Govt. officers. On this ground alone the Hon,ble Apex court has THE HIGH COURT OF MADHYA PRADESH CRA No. 11276/2019 Balakdas Tiwari (B.D. Tiwari) V/s. Special Police Establishment.

quashed the prosecution of the A.K.Sojatiya EE .Relevant part of the order is reproduced below:-

"Learned counsel appearing for the appellant submits that the order of the High Court was not capable of being sustained in view of the law, as laid down by this Court regarding continuing with criminal proceedings after an employee had retired from service. In this connection, he first referred to the decision of this Court in Chittaranjan Das v. State of Orissa (2011) 7 SCC 167, wherein this Court has categorically indicated that proceedings could not be validly taken against an employee who had retired from service, when the charge-sheet had not been filed against him earlier. In the said case also the appellant had superannuated from service on 30th June, 1997, and a fresh attempt was made by the Vigilance Department to obtain sanction when it had been refused earlier on 25th March, 1998. In the said background, this Court held that in a case in which sanction sought for is refused by the competent authority, while public servant is in service, he cannot be prosecuted later after retirement, notwithstanding the fact that no sanction for prosecution under the Prevention of Corruption Act is necessary after the retirement of the public servant. The view taken in the said decision is preceded by a similar decision in the case of Louis Peter Surin v. State of Jharkhand (2010) 12 SCC 497, where in similar circumstances, a similar judgment was delivered.

The principle which has been laid down in the aforesaid decisions, squarely covers the facts of this case as well, and, accordingly, we have no option, but to allow the appeal and to set aside the judgment of the High Court,l as well as the cognizance taken by the Trial Court by its order dated 16 th Feberuary, 2006."

15. Prima facie, A.K.Sojatiya, Executive Engineer was in- charge of the project and he recommended for payment of bills and extension of contract period. At the relevant point of time the action has been initiated against the contract for cancellation of contract and recovery of the amount. The mobilisation amount was released as per terms of the contract and extension of contract was well within authority of the department and same is very normal procedure in works contract in the Government Departments. If any THE HIGH COURT OF MADHYA PRADESH CRA No. 11276/2019 Balakdas Tiwari (B.D. Tiwari) V/s. Special Police Establishment.

dispute is cropped up that would be adjudicated in arbitration tribunal, no criminality is attached to it. That appellant is aged about 82 years and he was on bail during trial and he never misused the liberty of the bail. The trial remained pending for 15 years. There is no possibility of final hearing of this appeal in near future in view of the pendency of number of appeals.

16. In view of the foregoing discussion, I find it is to be a very fit case to suspend the custodial sentence of the appellant.

17. Accordingly, I.A. No.10864/2019 is allowed and it is directed that subject to deposit of fine amount with the trial Court and on furnishing personal bond by the appellant in the sum of Rs.1,00,000/- (One Lakh only), with one solvent surety in the like amount to the satisfaction of learned trial Court for his appearance before the Registry of this Court, the execution of custodial part of the sentence of the appellant shall remain suspended till the final disposal of this appeal.

18. The appellant after being enlarged on bail he shall mark his presence before the Registry of this Court on 15.12.2020 and on all such subsequent dates, which are fixed in this behalf.

19. List the matter for final hearing in due course.

C.C. as per rules.

( VIVEK RUSIA ) JUDGE Alok/-

Date: 2020.01.14 11:00:49 +05'30'