Madhya Pradesh High Court
Dr. Yogiraj Sharma vs The State Of Madhya Pradesh on 4 August, 2015
Author: G.S. Solanki
Bench: G.S. Solanki
(1)
HIGH COURT OF MADHYA PRADESH : JABALPUR
Criminal Revision No. 361/2015
Ashok Nanda
Vs.
The State of M.P.
Criminal Revision No. 391/2015
Dr. Yogiraj Sharma
Versus
The State of M.P.
Division Bench : Hon'ble Shri Justice Shantanu Kemkar &
Hon'ble Shri Justice G.S. Solanki
Present :
Shri Surendra Singh, Senior Counsel with Shri Manish Mishra
and Shri Siddharth Gupta, Advocates for the applicant.
Shri Pankaj Dubey, Advocate for the respondent.
Order heard on : 16.07.2015
Order passed on : 04.08.2015
ORDER
Per : G.S. Solanki, J.
1) This order shall govern the disposal of both the aforesaid revisions as they have been filed against the common impugned order.
2) The applicants have preferred these revisions under Section 397/401 of the Cr.P.C. being aggrieved by order dated 28.1.2015 passed by First Additional District and Sessions Judge, Bhopal in Special Case No. 3/2014 wherein the charges under (2) Section 13(2) of the Prevention of Corruption Act read with Section 120-B of the IPC and Section 418 read with Section 120- B of the IPC have been framed against applicant Ashok Nanda and the charges under Section 13(1)(d), 13(2) of the Prevention of Corruption Act read with Sections 120-B, 418 of the IPC have been framed against applicant Dr. Yogiraj Sharma
3) The facts, in short, giving rise to this revision are that a complaint was filed to the Secretary, M.P. Lokayukta. During enquiry of the aforesaid complaint, prima facie it was found that loss of lacs of rupees has been caused to the Government exchequer by committing financial irregularities, therefore, offence was registered and matter was made over to Special Police Establishment for investigation. During investigation, it was found that in the year 2006, the Central Government had allotted first installment of Rs.23.34 Crore on 28.3.2006 under National Rural Health Scheme for the purpose of purchasing the medicine kits. On 7.8.2006, a letter was issued by the Central Government for purchasing 102 medicines under the Purchase Preference Policy (PPP). It was specifically mentioned in the letter that the aforesaid 102 medicines should be purchased from Central Public Sector Enterprises. It was further mentioned that some medicines may be purchased from the market but it was not binding upon the State Government. During investigation, it was further found that applicant Dr. Yogiraj Sharma entered into a conspiracy with applicant Ashok Nanda (3) with intention to misappropriate aforesaid huge amount, thereafter, they created a temporary firm namely Neptune Remedies under the proprietorship of co-accused Satyendra Sahu. The firm was registered on 12.7.2006. The Central Government declared the equity policy on 7.8.2006 with the aforesaid directions. Applicant Yogiraj Sharma being the Director, Public Health and Family Welfare Department prepared a note-sheet on 18.9.2006 to the effect that the majority of medicines of Drugs Kit comes under CPSU, therefore, open tenders should be invited and the medicines should be purchased through M.P. Laghu Udyog Nigam (for short MPLUN). During tender proceedings, tender of Karnataka Antibiotics and Pharmaceuticals Limited (for short KAPL) was found to be the lowest, same was accepted on 25.11.2006. However, before this date, on 14.11.2006 KAPL had already made Neptune Remedies its marketing associate by entering into a contract. It was further found that on 21.11.2006, an account of Neptune Remedies was opened in Punjab National Bank, Govindpura Branch. Applicant Ashok Nanda was the introducer of the aforesaid account. It was further found that a sum of Rs. 45 Lacs were transferred as demand loan from Vignes Housing Firm, which was registered in the name of Smt. Shashi Sharma and Gaurav Sharma, wife and son of applicant Yogiraj Sharma respectively. After tender process, a sum of Rs.6.72 Crore was released as advance to KAPL on 1.12.2006. It was further found (4) that during the period of 30.12.2006 to 31.1.2007 (one month), payment of Rs.23.32 Crore was made to KAPL, out of which, a sum of Rs.21.28 Crore was paid to Neptune Remedies, while the medicines were alleged to have been supplied upto the period of one year. It was further found that the Kits were prepared in the premises of Isomatrix Company at Mandideep, which was belonging to applicant Ashok Nanda. It was further found that the account of Satyendra Sahu remained operative from 21.11.2006 to 13.8.2007 and thereafter it was closed. It was further found that a sum of Rs. 11 Lacs was transferred from the account of Neptune Remedies to the account of HIPL, which was belonging to applicant Ashok Nanda.
4) During investigation, it was further found that Satyendra Sahu, who was the proprietor of Neptune Remedies had given the address of business as 26-27, Kamali Mandir Road, Sabzi Mandi but no such business of medicines was found at the aforesaid address, on the contrary, it was found that one Tea shop and one Flower shop were running on the aforesaid address for the last 15 years. On the basis of aforesaid investigation, TIN number of Satyendra Sahu was cancelled by the Commercial Tax Department. It was further found that co- accused D.L. Naigaonkar, authorised signatory of KAPL had signed an MOU with Neptune Remedies on a stamp paper, which was purchased on the next day of the agreement, which prima facie was found to be forged document. It was further found that (5) applicant Yogiraj Sharma had signed MOU with D.L. Naigaonkar and further some payment was directly made by Yogiraj Sharma to Neptune Remedies. It was further found that KAPL only supplied two medicines and all other medicines were alleged to have been purchased through Neptune Remedies and kits were prepared in the premises of the company, which was belonging to applicant Ashok Nanda. It was further found that, initial note- sheet was prepared by applicant Yogiraj Sharma and thereafter, he also remained present in the meetings of Purchase Committee as the Member of Medicine Procurement Cell. It was further found that according to minutes of meeting dated 5.10.2006 of the Purchase Committee of MPLUN, further action was to be taken in regard to inviting the tenders from Public Sector Undertaking for purchasing the medicines as a Kit and same was to be done by Health Department of MPLUN and being the Director of Public Health and Family Welfare Department, applicant Yogiraj Sharma was duty bound to protect the interest of State Government and to save wrongful loss to the State Government. Despite this liability, applicant Yogiraj Sharma, being an invitee member of Rates Determination Committee and member of Procurement Cell of the medicines kits did not apprise the committee in regard to exorbitant rates alleged to have been proposed by other co-accused persons. It was found that as per the list of medicines kept by MPLUN, the rate of Kit A was 2090/- per kit but the same was purchased at Rs.5390/- per (6) kit, therefore, the loss of Rs.3300/- per kit was caused to the government and total loss caused was worth Rs.2.92 Lacs. Further, cost of Kit A was accelerated by estimate prepared by applicant Yogiraj Sharma and total loss worth Rs. 38,80,03,868/- was caused and in the purchase of Kit B, total loss caused was worth Rs.2,94,28,937/-. Further, total loss caused to the government in purchasing of Asha Kit was found to be worth Rs.54,72,500/-.
5) On the basis of the aforesaid evidence, the applicants along with other co-accused persons were charge sheeted and the trial Court framed the charges against the applicants as mentioned hereinabove, hence these revisions.
6) Learned Senior Counsel appearing on behalf of the applicants has submitted that applicant Yogiraj Sharma was neither a member of the technical committee nor he was a member of the purchasing committee. He was the member of Procurement Cell for a short period of only 5 days w.e.f. 25.8.2006 to 30.8.2006. Thus, there is no evidence on record to show that applicant Yogiraj Sharma has acted in a corrupt or illegal manner or has abused his position as a public servant. He has further submitted that the order of supplying the Kits was executed by the firm Neptune Remedies and applicant Yogiraj Sharma has not received any pecuniary advantage. He was not indulged in any deceitful or dishonest practice of supplying the Kits by Neptune Remedies. Applicant Yogiraj Sharma had no (7) knowledge in regard to the fact that any wrongful loss is caused in the aforesaid transaction. He has further submitted that there is no evidence on record to show that applicant Yogiraj Sharma has caused wrongful loss to the government by entering into a conspiracy along with other co-accused persons, who had supplied the medicine Kits to the government.
7) Learned Senior Counsel has further submitted that there is no evidence on record to show that applicant Ashok Nanda was a defacto owner of Neptune Remedies. The proprietor of Neptune Remedies was Satyendra Sahu. Applicant Ashok Nanda was not the signatory of any agreement or MOU with KAPL. He has been made accused on the basis of some documents found in his house relating to Neptune Remedies and he was found to be the introducer for opening an account of Neptune Remedies. Learned counsel has further submitted that the order of Income Tax Officer has been set aside by the appellate Tribunal with the observation that Satyendra Shu is assessed separately under the Income Tax Act and his company has a separate Sales Tax registration and drugs licence. Thus, applicant Ashok Nanda is not involved in any cheating alleged to have been committed by the co-accused persons. It is further submitted that no evidence has been collected by the prosecution agency in regard to the fact that applicant Ashok Nanda had agreed with any of the co- accused person to commit any illegal act. The prosecution is based only on conjectures and surmises.
(8)
8) Learned Senior Counsel appearing on behalf of the applicants has placed reliance on the decisions of the Apex Court in Ram Narayan Popli Vs. Central Bureau of Investigation along with other connected matter - (2003) 3 SCC 641, Depot Manager, A.P. State Road Transport Corporation Vs. Mohd. Yousuf Miya and others - (1997) 2 SCC 699, P.K, Narayanan Vs. State of Kerala - (1995) 1 SCC 142, K.R. Purushothaman Vs. State of Kerala - (2005) 12 SCC 631, Iridium India Telecom Ltd. Vs. Motorola Incorporated and others - AIR 2011 SC 20, R. Sai Bharathi Vs. J. Jayalalitha and others - 2004(2) SCC 9.
9) Learned counsel for the applicants has further placed reliance on the decision of Apex Court in State of Madhya Pradesh Vs. Sheetla Sahai and others - 2009(8) SCC 617 to submit that merely because a wrong decision was taken, it would not render a member of committee liable for any conspiracy.
10)On the basis of aforesaid arguments, learned Senior Counsel appearing on behalf of the applicants has prayed that the impugned order be set aside and the applicants be discharged from the aforesaid charges.
11) On the contrary, learned counsel appearing on behalf of the respondent has supported the order passed by the trial Court and has submitted that there is sufficient evidence on record to show that the applicants were involved in the conspiracy. They created a firm in the name of Neptune Remedies under the (9) Proprietorship of Satyendra Sahu. Applicant Yogiraj Sharma being a government servant and Kingpin of aforesaid conspiracy initiated the note-sheet and entered into an MOU with such a company which was only manufacturing few medicines. Further, he was the invitee member of purchasing committee as well as the member of Procurement Cell, the object of which is to procure proper medicines and equipments from market. However, during investigation it was found that number of medicines were purchased on higher rates from Neptune Remedies than the rate list of MPLUN,. Being the Director of Public Health and Family Welfare Department, applicant Yogiraj Sharma was duty bound to protect the wrongful loss to be caused to the government exchequer. On the contrary, he conspired along with other co-accused persons along with applicant Ashok Nanda and caused huge loss of about Rs. 7 Crore to the government. Learned counsel has further submitted that it is well established principle of law that at the time of framing of charge, the trial Court as well as in revision, the High Court cannot appreciate the evidence meticulously. He has placed reliance in Joginder Kumar Vs. The State - 1991 Cri.L.J. 2897, Munna Devi Vs. State of Rajasthan and another - (2001) 9 SCC 631.
12)On the basis of the aforesaid arguments, learned counsel for the respondent has prayed for dismissal of the revisions. (10)
13)We have heard the learned counsel for the parties at length and gone through the impugned order and other material on record. It is well established principle of law that in proof of a conspiracy, direct evidence is seldom available. The offence of conspiracy can be proved by either direct or circumstantial evidence. In the light of the aforesaid principle along with the stage of case, wherein the trial Court on the basis of material produced before it, has come to the conclusion that prima facie there is sufficient ground for assuming that the applicants/accused were involved in criminal conspiracy to cause huge loss to the government exchequer and applicant Yogiraj Sharma being a government servant was duty bound to protect the interest of the government exchequer, but he has not done so. On the contrary he conspired along with other co-accused persons and abused his position as a government servant.
14) It is true that in State of Madhya Pradesh Vs. Sheetla Sahai and others (supra), the Apex Court has held that merely because a wrong decision was taken, it would not render a member of committee liable for any conspiracy, however, at the same time it has also been observed by the Apex Court that if on perusal of entire material on record, the Court arrives at an opinion that two views are possible, the charges can be framed but if only one and one view is possible to be taken, the Court shall not put the accused to the harassment by asking him to face trial. In Amit Kapoor Vs. Ramesh Chander and another- (11) (2012) 9 SCC 460, the Apex Court has laid down the principles which govern the stage of framing of charge and has held that at this stage the Court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which if put to trial, could prove him guilty. We are also of the firm view that at the time of framing of the charge, if any strong suspicion arises on perusal of material placed before the Court, the charges can be framed against the accused persons. The probative value of the material on record cannot be assessed at this stage.
15)We have gone through the evidence collected during investigation, it has come on record that applicant Yogiraj Sharma being the Director of Public Health and Family Welfare Department had initiated a note-sheet and after tendering process, it was found that KAPL entered into an agreement with Neptune Remedies and applicant Ashok Nanda was the introducer of opening the account of Neptune Remedies and a sum of Rs. 45 Lacs were transferred as demand loan from Vignes Housing Firm, which was registered in the name of Smt. Shashi Sharma and Gaurav Sharma, wife and son of applicant Yogiraj Sharma respectively. It has also come on record that within a short period of one month a sum of Rs.23.32 Crore was paid to KAPL, out of which a sum of Rs.21.28 Crore was paid to Neptune Remedies while the medicines were alleged to have been supplied upto the period one year. At the time of raid of Income (12) Tax Department, the documents of Neptune Remedies were found in the house of applicant Ashok Nanda, which shows his complicity in the aforesaid transaction. The medicines are alleged to have been prepared in the premises of Isomatrix Company at Mandideep, which was belonging to applicant Ashok Nanda. It has also come on record that Satyendra Sahu was only ostensible proprietor of Neptune Remedies. He was also involved in conspiracy and was a beneficiary. It was further found that Satyendra Sahu, who was the proprietor of Neptune Remedies had given the address of business as 26-27, Kamali Mandir Road, Sabzi Mandi but no such business of medicines was found at the aforesaid address, on the contrary, it was found that one Tea shop and one Flower shop were running on the aforesaid address for the last 15 years.
16)During the course of arguments, learned counsel for the applicants has contended that KAPL had filed a writ petition and this Court as well as the Apex Court passed the order in its favour and thereafter the government of M.P. has paid the amount to KAPL, in our opinion, since it was a privity of contract between the Public Health and Family Welfare Department of Govt. of M.P. and KAPL and there was a civil liability in the aforesaid contract, the government was bound to pay the agreed money but at that time the fact of conspiracy or cheating has not been considered, therefore, the decision of this Court as well as (13) the Apex Court shall not come in the way of framing the charges against the applicants.
17) Learned Counsel for the applicants has placed reliance on K.R. Purushothaman Vs. State of Kerala (supra) and Ram Narayan Popli Vs. Central Bureau of Investigation (supra). The facts of the aforesaid cases are altogether different than the instant case. In the instant case there is sufficient circumstantial evidence placed on record to show that the applicants are involved in the conspiracy to cause loss to the government by supplying the medicines at exorbitant rates than the cost of market as well as the cost of rate list of MPLUN. In these circumstances, the aforesaid authorities are not applicable to the facts of this case.
18)So far as cheating and conspiracy of cheating is concerned, as discussed hereinabove, applicant Yogiraj Sharma, being a government servant was involved in the conspiracy with applicant Ashok Nanda and he made some direct payment to Neptune Remedies. The papers of Neptune Remedies were found in the house of applicant Ashok Nanda and it was further found that on the basis of false and wrong facts shown for place of business, TIN number of aforesaid company was cancelled by the Commercial Tax Department.
19)We have found that it is a case in which a huge amount of about Rs.7 Crore, which was allotted by the Central Government to the State Government for improving the health conditions of poor (14) persons of the downtrodden society under the NRHS scheme, said to have been misappropriated by indulging in the conspiracy to gain undue advantage, causing loss to government exchequer and such activities cause damage to poor health sector of State as well as the economy of the country.
20)Considering overall facts and circumstances of the case, the evidence available on record and in view of the aforesaid discussion, we are of considered view that the trial Court has not committed any illegality in not appreciating the evidence on record meticulously at this stage and further has not committed any illegality in framing the aforesaid charges against the applicants.
21) Consequently, we do not find any ground to make interference in the order passed by the trial Court. The revisions being devoid of merits, are hereby dismissed.
(Shantanu Kemkar) (G.S.Solanki)
Judge Judge
PB