Madhya Pradesh High Court
Vinay Choudhary vs The State Of Madhya Pradesh on 11 November, 2020
Equivalent citations: AIRONLINE 2020 MP 1148
Author: Rajeev Kumar Dubey
Bench: Rajeev Kumar Dubey
1 MCRC-29740-2020
The High Court Of Madhya Pradesh
MCRC-29740-2020
(VINAY CHOUDHARY Vs THE STATE OF MADHYA PRADESH)
Jabalpur, Dated : 11-11-2020
Heard through Video Conferencing.
Shri T.S. Ruprah, senior advocate with Shri P.K. Shroti, learned
counsel for the applicant.
Shri Rajeshwar Rao, learned G.A. for the respondent/EOW.
Case diary perused.
This is fourth bail application under Section 439 of Cr.P.C. for grant of bail. Applicant Vinay Choudhary was arrested on 10/04/2019 in connection with Crime No.12/2019 registered at Police Station, Economic Offences Wing (EOW), Bhopal (M.P.) for the offence punishable under Sections 120- B, 420, 468, 471 of the IPC and Section 66 of the Information Technology Act, 2000 and Section 7 read with Section13(2) of the Prevention of Corruption Act, 1988.
2. The earlier bail applications filed by the applicant were dismissed on merit by this Court vide orders dated 25/06/2019, 27/09/2019 & 11/02/2020 passed in M.Cr.C.No.19435/2019, 38330/2019 & 476/2020 respectively.
3 . As per prosecution story, M.P. State Electronics Development Corporation Ltd. (hereinafter referred to as "ÂœMPSEDC"Â) 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 f o r 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 Single, Signature Not Verified SAN Unitary, Web Based e-Procurement Software (Portal) with the specified Digitally signed by ANURAG SONI Date: 2020.11.11 14:35:05 IST 2 MCRC-29740-2020 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. Co-accused 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.
4. 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 "ÂœMPJNM"Â) the computer displayed a message that " Âœthe contents of the document had been modified"Â. 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 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 Signature Not Verified SAN 30/04/2018 on E-Portal. On that the team of employees of Antares Systems Digitally signed by ANURAG SONI Date: 2020.11.11 14:35:05 IST 3 MCRC-29740-2020 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. 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 amounting to Rs.1135 Crore, M/s Max Mantena Micro JV Hyderabad & Sorathiya Velji Ratna Baroda were made a lower bidder, due to which companies earned illegal profits.
5. On the basis of that preliminary evidences 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.
6. From the report of the Computer Emergency Response Team, New Delhi and the other evidence collected by the investigating agency during Signature Not Verified SAN Digitally signed by ANURAG SONI Date: 2020.11.11 14:35:05 IST 4 MCRC-29740-2020 investigation it was found that in the year 2016, OSMO Pvt. Ltd. (applicant Vinay Choudhary and coaccused Varun Chaturvedi, 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 Etendering 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.
7. 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 eprocurement portal. That file was created using ID PT 4, which was given to 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 applicant Vinay Chaturvedi and was being used by co-accused Varun Chaturvedi. 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 co-accused 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. T he 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 Signature Not Verified SAN Digitally signed by ANURAG SONI Date: 2020.11.11 14:35:05 IST 5 MCRC-29740-2020 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 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 co-accused 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.
8 . Learned counsel for the applicant submitted that the applicant is innocent and has falsely been implicated in the offence. It is further submitted that it is alleged that applicant Vinay Choudhary and co-accused Varun Chaturvedi in connivance with other co-accused persons manipulated the bids, but the present applicant has no role in the functioning of e-Procurement Software (Portal). It is alleged that the manipulation was done by one of the user ID and bid IDs given to OSMO at the time of performance test and the IP address registered while creating the said demo file was 27.60.163.98 and 27.60.185.14, which were found linked with mobile No.9755092919. The SIM of this mobile number was registered in the name of applicant Vinay Chaturvedi and was being used by co-accused Varun Chaturvedi. But, OSMO in the year 2016 had left the job of performance testing and also gave the information to the effect to the MPSIDC. Thereafter there is no role of the applicant in the functioning of the e-procurement portal. The I.P. address of any device is automatically changed when that device moves from one place Signature Not Verified SAN Digitally signed by ANURAG SONI Date: 2020.11.11 14:35:05 IST 6 MCRC-29740-2020 to another place. At the time of incident co-accused Varun Chaturvedi was in New Zealand. Learned counsel further submitted that there is no direct evidence on record to show that the applicant committed any manipulation in the tenders. The security of e-procurement portal was with the ASL and not with the applicant. The digital signature of Mr. Praveen Kumar Guru and Keshav Rao Uike were prepared by E-mudra and not by the applicant. After preparing digital signature of officer and employee the said signatures are handed over to the officer and employee concern as per the Policy of the company and that person after changing the password starts using the same. There is no evidence on record to show that said digital signature of Mr. Praveen Kumar Guru and Mr. Keshav Rao Uike were not handed over to them. It is also alleged that some money was transferred by the Sarothia Velji in the account of Shricon Multi Infra Developers, in which the applicant Vinay Choudhary and his brother Avinash K. Choudhary were the partners, but that amount was transferred in the account of work done by the company as subcontractor for Sarothia Velji. There is no other evidence on record to connect the applicant with the crime. Police falsely implicated the applicant in the crime. There is no likelihood of his absconding or tampering with the prosecution evidence. Learned counsel further submitted that co-accused Nandkishore Bramhe against whom the allegations are similar in nature has been enlarged on bail by this Court vide order dataed 22/08/2019 passed in M.Cr.C.No.32164/2019, so on the ground of parity also the applicant is entitled for grant of bail. The applicant is in custody since 10/04/2019 and conclusion of trial will take time. On the strength of aforesaid submissions it is prayed that the applicant be released on bail.
9. Learned counsel for the respondent/EOW submitted that applicant Vinay Chaudhary and co-accused Varun Chaturvedi are the Managing directors of OSMO Private Ltd. and co-accused Sumit Golwalkar is the Marketing Director of OSMO. He further submitted that from the evidence collected by the EOW it is revealed that the manipulation in the tenders was Signature Not Verified SAN Digitally signed by ANURAG SONI Date: 2020.11.11 14:35:05 IST 7 MCRC-29740-2020 d o ne by using the user ID PT4 and Bidder ID QK29846, which were provided to OSMO in the year 2016. The IP address registered while creating the said demo file was 27.60.163.98 and 27.60.185.14, which were found linked with mobile No.9755092919. The SIM of this mobile number was registered in the name of applicant Vinay Choudhary and was being used by co-accused Varun Chaturvedi. The mobile bill produced by the co-accused Varun Chaturvedi in support of his application is for the period 02/02/2018 to 01/03/2018 and not for 2nd - 3rd March, 2018 when those manipulations were taking place.
10. Learned counsel further submitted that it is also revealed that digital signature certificate of Keshav Rao Uike was registered by co-accused Sumeet Golwalkar, who was the Marketing Director of OSMO and was also a partner in Shricon Multi Infra along with applicant Vinay Choudhary and Avinash K. Choudhary (brother of Vinay Choudhary). Sarothia Velji, who was made L1 bidder by manipulating the bids, transferred money in the account of Shricon Multi Infra Developers, which shows the nexus of applicant in the crime. He further submitted that there are transactions between Shricon Multi Infra Developers and Milestone Builders belonging to Manish Khare, who is also an accused in the present case. From the memorandum of Manish Khare recorded by the police under Section 27 of the evidence act it is revealed that Sarothia Velji gave money to him regarding manipulation in the bids and he transferred that amount in the account of Shricon Multi Infra. It is further revealed that money was also deposited in the account of Avinash Enterprises belonging to Avinash Choudhary, the brother of applicant Vinay Choudhary. The amount was deposited by Sorathia Velji and Mantena Infra. The said companies are also accused in the present crime and have benefited by the bid manipulation. The investigation is still going on. The earlier two bail applications filed by the applicant have been dismissed on merit and since then there is no change in circumstance, so the applicant should not be released on bail.
Signature Not Verified SAN Digitally signed by ANURAG SONI Date: 2020.11.11 14:35:05 IST8 MCRC-29740-2020
11. The case of the applicant is not similar to co-accused Nandkishore Bramhe who has been enlarged on bail by this Court vide order dated 05/09/2019 passed in M.Cr.C.No.32164/2019. The SIM bearing No.9755092919 which was being used for tempering the bids was registered in the name of applicant and after granting bail to co-accused Nandkishore Brahme vide order dated 05/09/2019, this Court rejected the second and third bail applications filed by the applicant vide orders dated 27/09/2019 & 11/02/2020 passed in M.Cr.C.Nos.38330/2019 & 476/2020 respectively on merit after considering the facts and circumstances of the case. So, the applicant is not entitled to get bail on the ground of parity.
12. The earlier bail applications filed by the applicant were dismissed o n merit by this Court vide orders dated 25/06/2019, 27/09/2019 & 11/02/2020 passed in M.Cr.C.No.19435/2019, 38330/2019 & 476/2020 respectively and thereafter there is no change in circumstance, except custody period.
13. Hon'ble Apex Court in the case of Rajesh Ranjan Yadav alias Pappu Yadav v. CBI Through its Director reported in (2007) 1 SCC 70 held that bail, can not be granted solely on the ground of long incarnation in jail and inability of accused to conduct the defence. Hon'ble Apex Court in the case of State of M.P. v. Kajad, (2001) 7 SCC 673 observed “It is true that successive bail applications are permissible under the changed circumstances. But without the change in the circumstances the second application would be deemed to be seeking review of the earlier judgment which is not permissible under criminal law as has been held by this Court in Hari Singh Mann v. Harbhajan Singh Bajwa [(2001) 1 SCC 169 : 2001 SCC (Cri) 113] and various other judgments.
14. Applicant Vinay Chaudhary and co-accused Varun Chaturvedi are t h e Managing Directors of OSMO Private Ltd. and co-accused Sumit Golwalkar is the Marketing Director of OSMO. It is alleged that manipulation Signature Not Verified SAN in the tenders was done by using the userID PT4 and Bidder ID QK29846, Digitally signed by ANURAG SONI Date: 2020.11.11 14:35:05 IST 9 MCRC-29740-2020 which were provided to OSMO in the year 2016. The IP address registered while creating the said demo file was 27.60.163.98 and 27.60.185.14, which were found linked with mobile No.9755092919. The SIM of this mobile number was registered in the name of applicant Vinay Choudhary and was being used by co-accused Varun Chaturvedi. So looking to the allegations as mentioned above this Court is not inclined to grant bail to the applicant.
15. Accordingly, M.Cr.C. is rejected.
(RAJEEV KUMAR DUBEY) JUDGE as Signature Not Verified SAN Digitally signed by ANURAG SONI Date: 2020.11.11 14:35:05 IST