Delhi District Court
Cbi vs V.K. Panchal & Ors. on 31 May, 2014
IN THE COURT OF MS. MADHU JAIN: SPECIAL JUDGE: CBI: PATIALA
HOUSE COURTS, NEW DELHI
CC No.03/2013
FIR No. RC ACI 2011 A 0007
U/s 120B/420 IPC & 13(2) r/w 13(1)(d) of PC Act, 1988
CBI VERSUS V.K. Panchal & Ors.
ORDER
1. CBI has filed a closure report in FIR No.RC ACI 2011 A 0007 registered on 12.09.2011 u/s 120 B IPC r/w 420 IPC and Section 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act(hereinafter referred to as PC Act), 1998.
2. The brief facts of the case are that the present case was registered by the CBI against Shri Vinod Kumar Panchal, Retired Chief Engineer, DDA, Shri N.C. Godlaw, Executive Engineer, DDA, Shri Prem Balani, Junior Engineer, DDA, Shri Kali Charan, Assistant Engineer, DDA, Shri Sushil Jain, Assistant Engineer, DDA, Shri Subodh Kumar Jain, Executive Engineer, DDA, Shri Lachhman Singh, Superintendent Engineer, DDA, Shri Lal Singh, Assistant Engineer, DDA, Shri R.C. CBI Vs. V.K. Panchal & ors.
FIR No. RC ACI 2011 A 0007 Page no.1 of 8 Saini, Assistant Engineer, DDA, Shri P.K. Nanda, Superintendent Engineer, DDA, M/s B.E.Billimoria Ltd. and Shri N.C. Parmeswaran, Ex. Chairman, M/s B.E. Billimoria Ltd. on the allegations of criminal conspiracy and abuse of official position for the purpose of cheating and causing undue favour to the accused contractor (A11) M/s B.E. Billimoria Ltd. during 200810 in the award of contract for construction of indoor stadium for Badminton and Squash for CWG2010 at Sirifort Sports Complex, New Delhi causing undue loss to the Govt. of India and undue gain to the accused contractor to the tune of Rs. 36.00 crores.
3. Investigation has revealed that the above noted project was part of the DDAs four projects in which M/s Peddle Thort Architect Pvt. LTD., Melbourne (M/s PTM) was appointed as a Design consultant in May 2007 and M/s Price Waterhouse Coopers was appointed as financial consultants. During the process of prequalification, 8 agencies were selected by global tendering among which 6 agencies were found eligible for the project inquestion. Estimate as per the specifications was prepared by M/s PTM due to DDAs inability on account of specialized nature of the work and its international standards. The said estimate was at Rs. 1,29,99,91,377/ and was prepared by M/s PTM on data base without rate analysis. Prebid meeting by DDA on 19/05/2008 inviting all the 6 prequalified firms was attended by 4 CBI Vs. V.K. Panchal & ors.
FIR No. RC ACI 2011 A 0007 Page no.2 of 8 agencies in which the estimated cost was reduced to Rs. 1,27,68,69,995/ due to deletion/substitution of certain electrical items. Tender documents were purchased by 3 prequalified firms but the bids were submitted by 2 firms namely M/s Sportina Payce Infrastructure P. Ltd. at Rs. 185,53,82,579/ and M/s Billimoria & Co. at Rs. 1,59,96,96,708/.
4. However, during tender processing, 30 items containing in 3 pages were found missing in the tenders due to the inadvertent omission on the part of Shri N.C. Godlaw, EE (A2) who had sent the tender documents through email but missed 3 pages thereof containing 30 items. M/s Billimoria (A11) emerged as L1 during comparison of tenders and further negotiation brought its amount down to Rs. 1,75,89,07,706/ including the 30 items which were left out. The consultant M/s PTM also prepared its justification on data base without analysis at Rs. 1,53,96,13,382/ (including 30 items) which was 20.58% above the estimated cost. A1 Shri Panchal recommended award of contract in favour of M/s Billimoria (A11) quoting the negotiated amount of Rs. 1,68,80,98,698/ seeking approval of Works Advisory Board.
5. The Board in its meeting on 27/06/2008 rejected PTMs justification due to absence of rate analysis and asked the Chief Engineer (A1) to re work the justification with proper analysis, also asking the CE to fix CBI Vs. V.K. Panchal & ors.
FIR No. RC ACI 2011 A 0007 Page no.3 of 8 responsibility in respect of the gross error of not sending 3 pages of tender document containing 30 items to the agencies thorough email. On 05/07/2008, the WAB accepted the recommendations of the Chief Engineer (A1) to award the contract at Rs. 1,54,39,81,425/ excluding 30 items for which separate tenders were floated by the CE(A1) but without any response. Subsequently, the WAB on 23/01/2009 there upon directed for execution of the said 30 items by M/s Billimoria (A
11) as extra items on the terms of payment as per market rates. The action taken against Shri N.C. Godlaw (A2) was in the form of his transfer from the erstwhile office. Nothing adverse has been found in respect of the quality of work at any stage or on completion of the project.
6. Status of FIR based allegations as per the investigation, therefore, emerges as follows:
7. Omission of A2 Shri N.C. Godlaw, EE by not sending 3 pages containing 30 items of tender documents resulting into revision of estimate and segregation of their execution: The said lapse on the part of Shri N.C. Godlaw, EE (A2) was pointed out by himself while processing the tenders and preparing the tender forwarding note to the Chief Engineer (A1) Shri V.K. Panchal. This lapse is proved to the effect that the estimate had to be reworked and decision in respect of the left out 30 items had to be taken at the level CBI Vs. V.K. Panchal & ors.
FIR No. RC ACI 2011 A 0007 Page no.4 of 8 of the Board which got then executed as extra items but ultimately it did not affect the process and outcome of the tender. Further, there is no indication of collusion or criminal intent on the part of Accused Shri Godlaw, A2 or anybody else therein.
8. Acceptance and consideration of nonprequalified M/s SportinaPayce Infrastructure Private Limited in the guise of the pre qualified M/s SportinaPayce Construction Private Limited by A2 Shri N.C. Godlaw.
Although facts of this allegation are proved in as much as the tender processing officer Shri N.C. Godlaw (A2) sold tender documents to the prequalified firms, including one nonprequalified firm M/s Sportina Payce Infrastructure Pvt. Ltd. presumably against the name of the prequalified firm M/s Sportina Payce Construction (India) Pvt. Ltd. and that M/s Sportina Payce Infrastructure Pvt. Ltd. happened to be the second bidder after M/s Billimoria Co., there is no evidence to establish that the said accused DDA officer or anyone else in the DDA team was involved therein with the intention of causing undue favour to the accused contractor by falsely creating a two bid situation in place of the probable one bid situation due to the presence of nonpre qualified bidder M/s SportinaPayce Infrastructure Pvt. Ltd. In fact, even in the event of the single bid situation, Works Advisory Board was the final authority which had granted the final approval without pointing CBI Vs. V.K. Panchal & ors.
FIR No. RC ACI 2011 A 0007 Page no.5 of 8 out this anomaly. As such nothing actionable remains to be considered with reference to this allegation.
9. Inflated justification of rates by accused DDA officials for undue benefit to the accused firm and also to avoid LG's sanction: As per the investigation, initially estimate was prepared by M/s PTM which was only on the basis of their database without any rate analysis and in the similar way justification of rates was also prepared by M/s PTM. WAB did not approve it and advised the CE (A1) to come back with the justification of rates on the basis of rate analysis which was duly complied with, arriving at an amount of Rs. 1,43,96,26,040/ and the same was accepted by the Board. During investigation, evidence collected shows that the said justification was proper and based on requisite parameters as per the prevalent guidelines. Regarding the lapse in respect of the rate of Yamuna Sand in which Rs. 3571/ per cubic meter was quoted in place of Rs. 357.1, creating excess of of Rs. 3.62 crores, investigation shows the lapse to be a clerical mistake without any mala fide. Further, the accused contractor has not been paid at the allegedly inflated rate for the said item. Hence, this allegation is not proved by any evidence for want of any criminal intent. The allegation against the DDA officials that the justification of rates was manipulated to get the quoted amount within permissible limit of 10% beyond which approval of Lt. Governor was required is also not CBI Vs. V.K. Panchal & ors.
FIR No. RC ACI 2011 A 0007 Page no.6 of 8 founded by any evidence, as the entire exercise of justification has been found to be in order.
10.Irregular payments to M/s Billimoria in respect of 5 items among 30 left out items.
It is revealed that out of left out 30 items, 9 items were not executed, other 21 items were executed and paid as Extra Item on due approval. The increase in the amounts paid for some items has been due to increase in the quantity as revealed by investigation.
11.Unauthorized subcontract by M/s Billimoria of 70% contract to M/s Globe Civil Projects: Investigation has revealed that during execution of work by Billimoria, it was not 70% but 30% of the civil work that had been subcontracted by the accused firm to Globe Civil Projects without requisite permission(as per Tender clause) from DDA. But the major procurements and their billing had been done by Billimoria. Also, the whole contract was not subletted for marginal profits. There is no bar as per tender condition to get the work done in piece meal through different agencies to augment the resources. Investigation does not establish explicit knowledge on the part of DDA officials about this sub contract.
12.Loss of 36 crores by the accused on account of their conspiratorial and power -abusive acts.
FIR No. RC ACI 2011 A 0007 Page no.7 of 8 No loss to DDA or Govt. Exchequer, whatsoever, is established in this case by investigation.
13.The investigation in this case has, therefore, not substantiated any allegation against the accused DDA officials as well as the private contractor and also has not shown involvement of any other person, by any acts of commission or omission warranting criminal action.
14.Hence, this report with the prayer that this case be closed.
15.I have perused the records including the crime file brought by the IO Inspector J.B. Vashisth in the court. No incriminating evidence against any of the accused persons could be gathered by the IO during investigation of the case, therefore, the present report filed by the IO regarding closure of the case is accepted. The case property or documents if any, seized by the IO during the investigation of the case be returned to their rightful owner by the IO after the expiry of period of appeal or revision if any. File be consigned to record room.
Announced in open court (MADHU JAIN)
Dt.31.05.2014 SPECIAL JUDGE:CBI,
PATIALA HOUSE COURTS,
NEW DELHI.
CBI Vs. V.K. Panchal & ors.
FIR No. RC ACI 2011 A 0007 Page no.8 of 8