Jharkhand High Court
Pratosh Kumar vs The State Of Jharkhand on 9 May, 2019
Author: Anant Bijay Singh
Bench: Anant Bijay Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
A.B. A. No. 1325 of 2018
1. Pratosh Kumar
2. Harendra Kumar Singh ...... Petitioners
Versus
1.The State of Jharkhand
2. Jharkhand Urja Vikash Nigam Ltd, ...... Opposite Parties
With
A.B. A. No. 1338 of 2018
Vinod Kumar ...... Petitioner
Versus
The State of Jharkhand ...... Opposite Party
with
A.B. A. No. 1362 of 2018
1.Dhanesh Jha
2.Satish Chandra Srivastava ...... Petitioners
Versus
The State of Jharkhand & Anr. ...... Opposite Parties
With
A.B. A. No 1578 of 2018
Anant Sagar ...... Petitioner
Versus
The State of Jharkhand & Anr. ...... Opposite Parties
With
A.B. A. No. 1751 of 2018
Suresh Ram ...... Petitioner
Versus
The State of Jharkhand & Anr. ...... Opposite Parties
With
A.B. A. No. 2032 of 2018
Jugal Prasad ...... Petitioner
Versus
The State of Jharkhand ...... Opposite Party
with
A.B. A. No. 2068 of 2018
1.Gopal Manjhi @ Gopal Majhi
2. Kamal Herenz
3. Sukru Kharia
4. Mahesh Prasad
5. Chandrama Singh ...... Petitioners
Versus
The State of Jharkhand & Anr. ...... Opposite Parties
With
A.B. A. No. 2340 of 2018
Basgit Singh ...... Petitioner
Versus
The State of Jharkhand ...... Opposite Party
with
A.B. A. No. 2388 of 2018
Prabhu Ram ...... Petitioner
Versus
The State of Jharkhand ...... Opposite Party
CORAM: HON'BLE MR. JUSTICE ANANT BIJAY SINGH
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For the Petitioners :Mr. Abhishek Kuamr, Advocate Mr. Gaurang Jajodia, Advocate Mr. Prashant Pallav, Advocate, Mr. Rajiv Lochan, Advocate Mr. Bhola Nath Ojha, Advocate Mr. Krishna Murari,, Advocate Mr. Manoj Tandon, Advocate For the State :A.P.P. For the J.U.V.N.L : Mr. Nilesh Kumar, Advocate Mr. Suraj Kumar Verma, Advocate ........
C.A.V on: 03./05/2019 Pronounced on: 09/05/2019
1. Since all the anticipatory bail applications arise out of one and the same case, hence they are taken up together and disposed of by common order
2. Petitioners are apprehending their arrest in connection with Bistupur P.S. Case No. 150 of 2011, corresponding to G.R. No.1957 of 2011 for the offence under sections 406, 420, 467, 469, 471, 34 of the I.P.C lodged on the basis of written report of informant- Ajay Kumar alleging therein that the Jharkhand State Electricity Board vide order dated 05.06.2010 and 27.08.2010 has constituted a Five-Member-Committee to enquire into the excess payment made to Billing Agencies vide Electrical Supply Division, Jamshedpur and Ghatshila for the concerned illegalities.
3. The said committee has submitted its enquiry report dated 17.09.2010 which was not signed by Sri Amit Banerjee, the Finance Controller and the said enquiry report suggests that an amount of Rs. 01,89,65,495.92 for a period from September, 2002 to March, 2009 is to be recoverable from the petitioners' firm M/s Prakriti Enterprises.
4. The agencies were given work order vide work order no. 1698 dated 23.08.2002 with respect to Meter Reading, Meter Surveillance Work and Bill Distribution Work.
5. The work order was valid from September, 2002 to Semptember-2004 but without new NIT/work order, the extension of the work was given, which is the main reason for excess payment.
6. During enquiry, it was found that serious irregularities in violation of the work order has been made by the agencies with respect to meter reading work, meter surveillance work, Bill distribution work, monthly energy bill, consumer assessment ledger, cost of hard board binding, revenue statement-1 and other compile report, list of defaulter consumer, disconnected consumer etc and CD charges.
7. It is further alleged that the General Manager-cum-Chief Engineer vide office order dated 02.02.2010 has constituted a three -member-committee for justifying the expenditure upon the billing agencies.
8. The said Committee submitted its report dated 23.02.2010 on the basis of one month's assessment and an amount of Rs, 7,22,948.00 was found to be recoverable as an excess payment.
9. The Accounts Officer (Audit) JSEB also submitted the audit report dated 16.04.2010 and he has reported that an amount of Rs, 2,65,23,108.00 is the excess payment made to the Agencies.
10. On the basis of the aforesaid reports, the billing agencies including the petitioners' firm have violated the conditions of the work order and other rules and submitted the imaginary and forged bill and by committing forgery, have misappropriated the crores of rupees of the Board. On the basis of these and another allegations, the instant case has been lodged.
A.B.A. No.1325 of 2018 (Pratosh Kumar & Anr. Vs. State of Jharkhand & Anr.
11. Learned counsel for the petitioners while pressing the anticipatory bail application has submitted:
"(9) That it is stated that the Jharkhand State Electricity Board issued tender notice No. 119 dated 27.06.2002 inviting sealed tender for meter reading, meter surveillance, bill distribution under the jurisdiction of electricity supply area in Jamshedpur, Adityapur, Ghatshila etc. The last date for submission of the tender form was fixed 27.06.2002.
(10) That it is stated that there were different firms who have been awarded order which includes M/s Infosoft Data Services Private Limited for Electric Supply Division, Adityapur, Mr. Crystal Computer Informatics Centre Pvt. Ltd for supply Division, Jamshedpur (Sub-Division Chhota Govindpur and Mango) and M/s Prakriti Enterprises for electric Supply Division, Jamshedpur (Sub-Division, Karandih and Jugsalai).
(11) That it is stated that the General Manager-cum-Chief Engineer vide Memo No. 1698 dated 23.08.2002 issued work order in favour of M/s Infosoft Data Services Private Limited, wherein the scope of services, frequency of reports and other terms and conditions have been mentioned.
(12) That it is stated that in pursuance of issuance of the work order, an agreement was entered into between the firm and the Electricity Board by the authorized representative i.e General Manager cum- Chief Engineer, Jharkhand State Electricity Board, Singhbhum Area, Jamshedpur vide agreement no. AGG2/2/SA/2002-03 dated 07.09.2002, wherein also the entire details of the work, rate etc has been mentioned.
(13) That it is stated that in terms of the work order and agreement the work was to be discharged by the agencies which they have done and after September, 2004, the General Manager-cum-Chief Engineer had extended the period of work by different orders and continued till December, 2010.
(14) That it is stated that in terms of extension of the work by the Board, the Agencies continued to discharge the work in terms of initial work order as all the terms and conditions of the work remain the same.
(15) That it is stated that the Secretary, Jharkhand Electricity Board vide office order n. 698 dated 05.06.2010 has a Five Member Committee to look into the alleged excess payment by the Electricity Supply Division, Adityapur, Jamshedpur and Ghatsila to the Billing Agencies and other allied irregularities.
(16) That it is stated that the said order was modified with respect to the constitution of the Committee dated 2w7.08.2010 issued by the Secretary, State Electricity Board and Shri Ashok Kumar No.-II, Electrical Superintending Engineer has replaced to Shri C.M, Sharma.
(17) That it is stated that the Enquiry said to be conducted by the aforesaid 5 Member Committee which was done and one Member namely, Shri Ashok Kumar, Electrical Superintending Engineer, Revenue, vide letter no. 1136 dated 05.10.2010 prepared the enquiry report which has been signed by the four members of the Committee and it was sent by the aforesaid letter to Sri Amit Banerjee, Finance Controller, JSEB, Heqdquarters, Ranchi who was the Chairman of the Committee, but the said Finance Controller has returned the report with an observations that the same was not done with his consent and observed that in the file he has already ordered for meeting of the committee on Monday.
(18) That it is stated that one another three-Member Committee was constituted consisting of Chief Engineer (C& R), Finance Controller and Engineer-in-Chief for the purpose of enqiry with respect to excess payment to the billing agencies who have prepared their report dated 13.10./2010 stating therein that pending claims of the agencies may be released subject to submission of indemnity bond with undertaking that excess payment, if any found recoverable in future, the same shall be paid by the agencies concerned.
(19) That it is stated that the very basis of the present FIR, the enquiry report submitted by the Five Member Committee whereas the Chairman of the said Five Member Committee has made objection to the report as the same was not complete and as such, the findings given by the enquiry committee has no legal value in eye of law and cannot be said to be complete report.
(20) That it is stated that the Investigating Officer has made the petitioner in this case as accused on the ground that the petitioners have certified the eleven months bill of M/s Infosoft Data Private Limited with respect to meter surveillance but according to NIT and work order, the payment was to be made upto three months, whereas 8 months excess payment to the extent of Rs, 2,06,036/- be made to the agencies in meter surveillance and also in the Revenue Statement-I and other compile reports Rs, 19,62,863/- excess payment has been made to the billing agencies. It has been observed that the complete report and statement could have been taken into C.D as per the conditions in the work order and if those report would have been taken in CD then the excess payment could not have been made to the companies/agencies.
(21) That it is stated that similar is the statement made against petitioner no. 2 which is said to be given billing agency M/s Crystal Computer and M/s Prakriti Enterprises. It is stated that according to the work order 17 months payment was to be made to the billing agencies whereas said agencies were paid for 34 months, which is in excess and also an excess payment has been made towards Revenue Statement-1 and other compile report to the extent of Rs, 1,55,08,800/-. It has been stated that such compile reports could not have been taken in CD but that has not been done."
12. Further, it has been submitted that final form has been submitted, investigation is complete, petitioners have co-operated in the investigation, no prayer for custodial interrogation has ever been made by the I.O. So, considering the aforesaid facts, the petitioners deserve privilege of anticipatory bail.
13. Counter-affidavit has been filed duly sworn by Sudhir Kumar, Dy.S.P. CCR, Jamshepur and I.O of the case stating therein as under:
"5) That it is humbly submitted that earlier the charge sheet has been submitted agasint the named F.I.R accused Dineshwar Pandey, proprietor of M/s Crystal Computer Infrmatic Centre Pvt. Ltd DEv Kumar Singh, partner (Proprietor) of M/s Prakriti Enterprises, Sailndra KUamr Sharma and Binod Behal, Proprietor of VXL computers, (6) it is stated and submitted that in course of further investigation, involvement of number of employees of Jharkhand State Electricty Boad are also found and they made excess payment to the named F>I>R accused after violation of the work order and the amount which has been misappropriated by the employees of JSEB are as follows:-
That the petitioner no. 1 Pratosh Kumar embezzled/misappropriated Rs, 19,62,863/- (para 507 of the supplementary case diary) That the petitioner no. 2 Harendra Kumar Singh embezzled/misappropriated Rs, 1,55,08,800/- (para 503 of the supplementary case diary.)"
A.B.A. No. 1338/2018 (Vinod Kumar Vs. State of Jharkhand & Anr.)
14. Learned counsel for the petitioner by pressing the bail application has submitted that at the relevant point of time of committing the alleged offence the petitioner was not posted in Jamshedpur Division. As a matter of fact the petitioner was posted as Executive Engineer at Jamshedpur Electric Supply Division on 19.01.2001.
15. The petitioner remained there at Jamshedpur till 22.01.2002 and thereafter he has been transferred to Ranchi. The said fact about the posting of the petitioner at Jamshedpur and other places has been confirmed by the office of JBVNL on 18.12.2017.
16. It is further submitted that the allegation of payment of excess payment made during the year, September, 2002 to 2010 no occasion arose for the petitioner either to certify any bill of the contractor or to make any payment to them. The Executive Engineer was not authorized to make any payment to any of the contractors . As a matter of fact the payment to the contractor M/s VXL computer was made by the Electrical Superintendent Engineer and Accounts Officer of Jamshedpur Electric Supply Circle by the approval of the Board. It is further submitted that from the report of 2 committees.
17. It is further evident that all the mischief, if any, was done from September/October, 2002 but admittedly the petitioner was transferred from Jamshedpur on 22.01.2002 and he was relieved immediately w.e.f 22.01.2002 as such the petitioner cannot be held responsible for making any payment to any of the contractors.
18. Further, it has been submitted that petitioner is aged about 70 years, final form has been submitted, investigation is complete, petitioner has co-operated in the investigation, no prayer for custodial interrogation has ever been made by the I.O. So, considering the aforesaid facts, the petitioner deserves privilege of anticipatory bail.
19 I.A. No. 1195 of 2019 has been filed for modification of order 04.12.2018 by exempting the petitioner from making payment of 10% of defalcated amount.
20. It has been stated that the petitioner was never posted at Jamshedpur during the period of offence ie. Septermber 2002 to 2010. However, in order dated 04.12.2018 the petitioner has also been fastened the liability to pay 10% of the amount which was paid in the excess by him.
21. In view of the matter order dated 04.12.2018 is modified to the aforesaid extent. I.A. No.1195 of 2019 stands disposed of.
A.B.A. No.1362 of 2018 (Dhanesh Jha & Anr. Vs. State of Jharkhand & Anr.)
22. Learned counsel for the petitioners while pressing the bail application has submitted :
"(9) That it is stated that the Jharkhand State Electricity Board issued tender notice No. 119 dated 27.06.2002 inviting sealed tender for meter reading, meter surveillance, bill distribution under the jurisdiction of electricity supply area in Jamshedpur, Adityapur, Ghatshila etc. The last date for submission of the tender form was fixed 27.06.2002.
(10) That it is stated that there were different firms who have been awarded order which includes M/s Infosoft Data Services Private Limited for Electric Supply Division, Adityapur, Mr. Crystal Computer Informatics Centre Pvt. Ltd for supply Division, Jamshedpur (Sub-Division Chhota Govindpur and Mango) and M/s Prakriti Enterprises for electric Supply Division, Jamshedpur (Sub-Division, Karandih and Jugsalai).
(11) That it is stated that the General Manager-cum-Chief Engineer vide Memo No. 1698 dated 23.08.2002 issued work order in favour of M/s Infosoft Data Services Private Limited, wherein the scope of services, frequency of reports and other terms and conditions have been mentioned.
(12) That it is stated that in pursuance of issuance of the work order, an agreement was entered into between the firm and the Electricity Board by the authorized representative i.e General Manager cum- Chief Engineer, Jharkhand State Electricity Board, Singhbhum Area, Jamshedpur vide agreement no. AGF2/2/SA/2002-03 dated 07.09.2002, wherein also the entire details of the work, rate etc has been mentioned.
(13) That it is stated that in terms of the work order and agreement the work was to be discharged by the agencies which they have done and after September, 2004, the General Manager-cum-Chief Engineer had extended the period of work by different orders and continued till December, 2010.
(14) That it is stated that in terms of extension of the work by the Board, the Agencies continued to discharge the work in terms of initial work order as all the terms and conditions of the work remain the same.
(15) That it is stated that the Secretary, Jharkhand Electricity Board vide office order n. 698 dated 05.06.2010 has a Five Member Committee to look into the alleged excess payment by the Electricity Supply Division, Adityapur, Jamshedpur and Ghatsila to the Billing Agencies and other allied irregularities.
(16) That it is stated that the said order was modified with respect to the constitution of the Committee dated 27.08.2010 issued by the Secretary, State Electricity Board and Shri Ashok Kumar No.-II, Electrical Superintending Engineer has replaced to Shri C.M, Sharma.
(17) That it is stated that the Enquiry said to be conducted by the aforesaid 5 Member Committee which was done and one Member namely, Shri Ashok Kumar, Electrical Superintending Engineer, Revenue, vide letter no. 1136 dated 05.10.2010 prepared the enquiry report which has been signed by the four members of the Committee and it was sent by the aforesaid letter to Sri Amit Banerjee, Finance Controller, JSEB, Heqdquarters, Ranchi who was the Chairman of the Committee, but the said Finance Controller has returned the report with an observations that the same was not done with his consent and observed that in the file he has already ordered for meeting of the committee on Monday.
(18) That it is stated that one another three-Member Committee was constituted consisting of Chief Engineer (C& R), Finance Controller and Engineer-in-Chief for the purpose of enqiry with respect to excess payment to the billing agencies who have prepared their report dated 13.10./2010 stating therein that pending claims of the agencies may be released subject to submission of indemnity bond with undertaking that excess payment, if any found recoverable in future, the same shall be paid by the agencies concerned.
(19) That it is stated that the very basis of the present FIR, the enquiry report submitted by the Five Member Committee whereas the Chairman of the said Five Member Committee has made objection to the report as the same was not complete and as such, the findings given by the enquiry committee has no legal value in eye of law and cannot be said to be complete report.
(20) That it is stated that the Investigating Officer has made the petitioner in this case as accused on the grounds that the petitioner no. 1 has certified the bill with regard to meters surveillance for 12 months more and paid excess amount of Rs. 2,61,849/- to M/s INfosoft Data Pvt Ltd.
Again it has been alleged that payment agasint Rs.I and other compile report and statements having total amount of Rs, 49,28,319/- has been paid in e xcess to the billing agtency. It has further been alleged that the other compile report and statements could have been taken in CD also and if that would have been done, the billing agency could not have been paid Rs, 43,11,771/-.
(21) That the allegation agasint the petitioner no. 2 is that he has paid 24 months meters surveillance bill to the billing agency Infosoft Data Pvt. Ltd amounting to Rs, 4,59,281/- in excess as he has certified the bills for 36 months nd the billing agency was entitled for only 12 months bill. It has also been alleged that the payment against the RS-I and other compile report and statements to the extent of Rs, 56,53,169/- has been paid in excess to the agency, although the other compile report and statements taken in CD and if that would have been done, then Rs, 36,40,714/- could have been saved.
(22) That the contention on the part of the Investigating Officer is not sustainable in the eye of law according to the work order, the scope of work has been defined to the billing agency and in the scope of work, which has been provided that surveillance of the condition of the meters and submit the quarterly report on the same to the Board. Any irregularity/tampering noticed in the meter or metering system to be highlighted in the meter reading system to be highlighted in the meter reading report, drawing special attention to that even nil reports are to be submitted. Subsequently, in the frequency of reports, it has been provided that the meter reading will be taken once every month and reports area /zone wise including preparation and issue of monthly status report as per requirement will be submitted and similarly the meter surveillance report. The surveillance of the condition of the meters, regarding condition of the body terminal covers meter box seal/condition of meter and the metering system and also issue the monthly status report of meter as required by EEE concerned. It has also been provided therein that other surveillance as and when prescribed by Board/local officer and the rate has been fixed to Rs, 1.15 per consumer per month."
23. Further, it has been submitted that petitioner is aged about 59 years, final form has been submitted, investigation is complete, petitioners have co-operated in the investigation, no prayer for custodial interrogation has ever been made by the I.O. So, considering the aforesaid facts, the petitioners deserve privilege of anticipatory bail.
24 Counter-affidavit has been filed duly sworn by Sudhir Kumar, Dy.S.P. CCR, Jamshepur and I.O of the case stating therein as under:
"(5) That it is humbly submitted that earlier the charge sheet has been submitted against the named F.I.R accused Dineshwar Pandey, proprietor of M/s Crystal Computer INfrmatic Centre Pvt. Ltd DEv Kumar Singh, partner (Proprietor) of M/s Prakriti Enterprises, Sailndra KUamr Sharma and Binod Behal, Proprietor of VXL computers, (6) it is stated and submitted that in course of further investigation, involvement of number of employees of Jharkhand State Electricity Board are also found and they made excess payment to the named F.I.R accused after violation of the work order and the amount which has been misappropriated by the employees of JSEB are as follows:-
That the petitioner no. 1 Dhanesh Jha embezzled/misappropriated Rs, 49,28,319/- (para 506 of the supplementary case diary) That the petitioner no. 2 Satish Chandra Srivastava embezzled/misappropriated Rs, 46,53,169/- (para 505 of the supplementary case diary.)"
A.B.A. No.1578 of 2018 (Anant Sagar Vs. State of Jharkhand & Anr.)
25. Learned counsel for the petitioner while pressing the bail application has submitted that the petitioner was on the post of General Manager and the date of tender has been mentioned as 27.06.2002. The petitioner was one of the member of the tender committee and the successful bidders was awarded the work. It is the case of the prosecution that there was any irregularity/illegality in the award of the work.
26. The case of the prosecution confines to excessive payment made to the contractors. The petitioner was subsequently transferred in the month of October, 2002 in the Head Quarters at Ranchi.
27. The petitioner was posted at Jamshedpur up till 17.10.2002. The aforesaid fact is evident from the information furnished to the petitioner under RTI.
28.. It is further submitted that out of the enquiry board that the NIT no 119/JSEB/PR/2002 dated 27.06.2002 was valid for up to two years i.e till September 2004, but without floating any new tender the work was being subsequently allotted to the contractors of the firm without having any reasonable authority.
29. In this regard it is submitted that the petitioner was having no role to play in this regard.
30. Neither the petitioner is the competent authority for floating tenders nor the petitioner was involved in any capacity for processing the bills of the contractors & making payment.
31. It has further been submitted that the tender was finalized in September, 2002 whereas the petitioner was transferred in October, 2002. The first bill was presented only in November, 2002.
32. Further, it has been submitted that petitioner is aged about 71 years, final form has been submitted, investigation is complete, petitioner has co-operated in the investigation, no prayer for custodial interrogation has ever been made by the I.O. So, considering the aforesaid facts, the petitioner deserves privilege of anticipatory bail.
33. Counter affidavit has been filed on behalf of opposite party duly sworn by Sudhir Kumar Dy. S.P. CCR, Jamshedpur and I.O of the case stating therein that the petitioner who happens to be General Manager-cum-Chief Engineer was involved in finalizing of tender and also accordingly work order was issued to the companies.
34. During investigation, it was found that the petitioner was not only liable for finalizing the tender but also left faulty work orders which were issued to the companies against the term of BOQ of NIT. In para 77 of the case diary statement of petitioner has been recorded by the I.O wherein no satisfactory reply was given by the petitioner.
A.B.A. No. 1751 of 2018 (Suresh Ram Vs. State of Jharkhand & Anr.)
35. Learned counsel for the petitioner while pressing the bail application, has submitted that the petitioner worked as Electrical Executive Engineer in ESD Ghatshila where VXL agencies was authorized to work vide G.M CE Order No. 1665 dated 21.06.2011.
36. The petitioner is very pretty official of JSEB whereas the jurisdiction relating to allotment of work through NIT or extension of period of contract etc relates to the officials at rank of General Manager.
37. The petitioner superannuated in 2014 and he is suffering from various ailment including psychiatric in support of his contention, copy of medical prescription has been annexed by way of supplementary affidavit.
38. It is further submitted that even the report dated 04.08.2016 of the constitutional body principle accountant General Audit Jharkhand Ranchi office has also not found any charge against the petitioner.
39. It is also submitted that one member of the Five Members Committee Mr. Amit Banerjee has opined that there is no clarity with Jharkhand State Electricity Board as to whether the amount received by the companies/firms are in fact excess of their entitlement.
40. Further, it has been submitted that petitioner is aged about 64 years, final form has been submitted, investigation is complete, petitioner has co-operated in the investigation, no prayer for custodial interrogation has ever been made by the I.O. So, considering the aforesaid facts, the petitioner deserves privilege of anticipatory bail.
41. Counter-affidavit has been filed duly sworn by Sudhir Kumar, Dy.S.P. CCR, Jamshepur and I.O of the case stating therein as under:
"(5) That it is humbly submitted that earlier the charge sheet has been submitted against the named F.I.R accused Dineshwar Pandey, proprietor of M/s Crystal Computer INfrmatic Centre Pvt. Ltd DEv Kumar Singh, partner (Proprietor) of M/s Prakriti Enterprises, Sailndra KUamr Sharma and Binod Behal, Proprietor of VXL computers, (6) That it is stated and submitted that in course of further investigation, involvement of number of employees of Jharkhand State Electricity Board are also found and they made excess payment to the named F.I.R accused after violation of the work order and the amount which has been misappropriated by the employees of JSEB are as follows:-
That the present petitioner Suresh Ram embezzled/misappropriated Rs, 29,96,776/-/- (para 515 of the supplementary case diary.)"
A.B.A. No. 2032 of 2018 (Jugal Prasad Vs. State of Jharkhand)
42. Learned counsel for the petitioner while pressing the bail application, has submitted that the petitioner is innocent and has falsely been implicated in this case as he was posted as Electric Executive Engineer for a period of eight months from August, 2006 to March, 2007.
43. It has also been submitted that that high level committee comprising of three members was formed for settling the dispute and the said committee has submitted its report on 31st October, 2010 whereby and whereunder it has been submitted that the pending claim of the billing agencies who were the named accused in the present case may be released subject to submission of indemnity bond along with an undertaking that the excess amount if any found would be recoverable in future and that shall be paid by the agency.
44. It is further submitted that the committee was headed by the Deputy Director of Accounts and a letter was sent to G.M-cum-C.F Electrical Supply Area, Jamshedpur, Chaibasa on 3rd November, 2010 directing to pay all the dues of the billing agency and after due examination recoverable of any excess amount paid to the billing agency can be done. The petitioner has no concern with respect of billing and there is no role of the petitioner as to how they connived with the billing agency to whom the excess amount was paid..
45. It is further submitted that it is apparent that it is not a case of financial irregularities rather the I.O has come to its own conclusion that an excess amount has been paid by this petitioner during his tenure to the billing agency and that amount was excess amount as per his own calculation and is just based on the conjuncture and surmises.
46. Further, it has been submitted that petitioner is aged about 62 years, final form has been submitted, investigation is complete, petitioner has co-operated in the investigation, no prayer for custodial interrogation has ever been made by the I.O. So, considering the aforesaid facts, the petitioner deserves privilege of anticipatory bail.
47. Counter-affidavit has been filed duly sworn by Sudhir Kumar, Dy.S.P. CCR, Jamshepur and I.O of the case stating therein as under:
"(5) That it is humbly submitted that earlier the charge sheet has been submitted against the named F.I.R accused Dineshwar Pandey, proprietor of M/s Crystal Computer INfrmatic Centre Pvt. Ltd DEv Kumar Singh, partner (Proprietor) of M/s Prakriti Enterprises, Sailndra KUamr Sharma and Binod Behal, Proprietor of VXL computers, (6) That it is stated and submitted that in course of further investigation, involvement of number of employees of Jharkhand State Electricity Board are also found and they made excess payment to the named F.I.R accused after violation of the work order and the amount which has been misappropriated by the employees of JSEB are as follows:-
That the present petitioner Jugal Prasad embezzled/misappropriated Rs, 7,70,158/- (para 531of the supplementary case diary.)"
A.B.A. No. 2068 of 2018 (Gopal Manjhi @ Gopal Majhi & Ors. Vs. State of Jharkhand & Anr.
48. Learned counsel for the petitioners while pressing the anticipatory bail application has submitted the petitioners are innocent and they have been falsely implicated in this case. It has been submitted that according to Work Order and Requisition, the contractor was performing the work since the beginning of transaction whereas petitioner no.1 came to be posted as Executive Engineer, Chakradharpur Division during the period 19.01.2004 to 20.10.2005 and was verifying and processing the Bills raised by M/s VXL Computer as per the works which were being taken according to requisition since 2002 itself and thereafter transferred to different places and worked with no allegation there.
49. Similarly, petitioner no. 2 was posted at Chakradharpur as Executive Engineer and worked there f rom November, 2005 to November, 2009 and verified and processed the Bills of M/s VXI Computes as such on the basis of requisition and volume of work performed by the said contractor during the relevant time.
50. Further, it has been submitted that petitioner no. 3 was posted at Ghatlisa as Executive Engineer and worked there for the period 29.09.2004 to 07.05.2007 and verified and processed the bills of M/s VXI Computers as such on the basis of requisition and volume of work performed by the said contractor during the relevant time.
51. It has also been submitted that petitioner no. 4 was posted at Seraikella as Executive Engineer and workd there for the period 17.08.20041 to 15.11.2002 and then in Ghastsila Division between 16.07.2004 to 18.09.2004. He also verified and processed the Bills of M/s VXI computes as such on the basis of requisition and volume of work performed by the said contractor during the relevant time.
52. It has further been submitted that petitioner no. 5 was posted at Chakradharpur as Executive Engineer and worked there for the period of about one year sometime around first quarter of 2001 to second quarter of 2002 and verified and processed the bills of M/s VXL Computers as such on the basis of requisition and volume of work performed by the said contractor during the relevant time. It is further submitted that in the meantime, since the aforesaid work contract with respect to all four agencies were being extended from time to time till 2010 at Head quarter lever for all the aforementioned companies leading to allegations of so-called excess work and excess payment thereof, one Five Man Committee dated 05.06.2010 was constituted by the Electricity Board to enquire into the matter headed by one Amit Banerjee.
53. It is further submitted that the said Five Man Committee enquired into the matter and on 17.09.2010 reported specific irregularities only against three companies/Agencies excluding M/s VXL Computer. However, since the payment of bill was stopped from August, 2010 of M/s VXL computer also which was engaged in billing works of Chaibasa, Chakradharpur, Ghatsila and Seraikella Division, a protest was made with assertion that since there was no specific attribution against it the payment should be released.
54. It is further submitted that after institution of the F.I.R the concerned agency namely, M/s VXL computer to which the petitioners are related raised objection that sicne there was no enquiry against the said Agency nor anything was reported against it, nor there was any basis to lodge F.I.R against it hence the name of the said company may be deleted from the list of the accused persons.
55. Further, it has been submitted that main accused persons/contractors who are actual beneficiaries have been granted anticipatory bail vide A.B.A. No. 277 of 2014, A.B.A. No. 1073 of 2015, A.B.A. No. 1072 of 2015 by this Hon'ble Court.
56. A supplementary affidavit has been filed on behalf of the petitioners stating therein that the matter was taken up at the Board Level of JUVNL and considering the Spl. Audit report dated 04.08.2016 (Annexure-6) which concludes in saying that though there is no excess or disproportionate payment yet the justification for high volume of work taken by the respective officials would be best offered by the JUVNL Management constituted the High Power Committee of three persons as enumerated in office order no. 313 dated 14.03.2019 issued under the signature of General Manager (Human Resource) to enquire into the alleged matter of so called excess work taken from the contractor and submit report.
57. Further, it has been submitted that final form has been submitted, investigation is complete, petitioners have co-operated in the investigation, no prayer for custodial interrogation has ever been made by the I.O. So, considering the aforesaid facts, the petitioners deserve privilege of anticipatory bail.
A.B.A. No. 2340 of 2018 (Basgit Singh Vs. State of Jharkhand)
58. Learned counsel for the petitioner while pressing the bail application, has submitted that the petitioner is innocent and he has committed no offence at all and has ben falsely implicated in this case. The petitioner retired from the post of electrical superintending engineer, Rural Electrification, Headquarters Ranch on 31.07.2008 and the F.I.R is said to be lodged on 12.09.2011, wherein the name of petitioner is not mentioned. However, a requisition was submitted by the I.O on 22.09.2017 i.e after nine years of the date of retirement of this petitioner to the learned court below for issuance of the arrest warrant against six persons including the petitioner.
59. It has been submitted that the petitioner retired on 31.07.2008 itself and now at this old age, he is being sought to be arrested in connection with a case which was lodged in the year, 2011 by a requisition which was made on 22.09.2017 by the police to the learned court below. That vague and omnibus allegation have been levelled against the petitioner.
60. It is submitted that on perusal of the F.I,R, it appears that the main allegation is against the agencies referred in the F.I.R, Sri Dineshwar Pandey filed anticipatory bail application before the Hon'ble Court being A.B.A. No. 277 of 2014 praying for his release in the event of his arrest or surrender on the ground that his company w as one of the billing agencies. It is submitted that partners of M/s Prakriti Enterprises, one of the agencies referred in the F.I.R, also filed A.B.A. No. 1073 of 2015 Shailendra Kumar Sharma and Dev Kumar Singh, bot partners of M/s Prakriti Enterprises, filed this anticipatory bail and this Hon'ble Court extended the benefit of anticipatory bail by order dated 21.08.2017 passed in A.B.A. No. 1073 of 2015.
61. It is further submitted that co-accused against whom there is allegation of receiving excess payment, have been extended the benefit of anticipatory bail, the petitioner also deserves to be enlarged in the event of his arrest or surrender. Further, it has been submitted that petitioner is aged about 69 years, final form has been submitted, investigation is complete, petitioner has co-operated in the investigation, no prayer for custodial interrogation has ever been made by the I.O. So, considering the aforesaid facts, the petitioner deserves privilege of anticipatory bail.
62. Counter-affidavit has been filed duly sworn by Sudhir Kumar, Dy.S.P. CCR, Jamshepur and I.O of the case stating therein as under:
"(5) That it is humbly submitted that earlier the charge sheet has been submitted against the named F.I.R accused Dineshwar Pandey, proprietor of M/s Crystal Computer Infrmatic Centre Pvt. Ltd DEv Kumar Singh, partner (Proprietor) of M/s Prakriti Enterprises, Shailndra Kumar Sharma and Binod Behal, Proprietor of VXL computers, (6) That it is stated and submitted that in course of further investigation, involvement of number of employees of Jharkhand State Electricity Board are also found and they made excess payment to the named F.I.R accused after violation of the work order and the amount which has been misappropriated by the employees of JSEB are as follows:-
That the present petitioner Basgit Singh
embezzled/misappropriated Rs, 1,03,05,114/-/- (para 501 of the
supplementary case diary.)"
A.B.A. No. 2388 of 2018( Prabhu Ram Vs. State of Jharkhand)
63. Learned counsel for the petitioner while pressing the bail application, has submitted that the petitioner is innocent and he has committed no offence at all and has been falsely implicated in this case.
64. It is submitted that from perusal of the F.I.R it would be evident that three companies namely M/s Crystal Computer, M/s Prakrit Enterprises an M/s Infor Soft Data Pvt. Ltd have been shown as accused having in different allegations to that of 4th accused namely M/s VXL Computer, where against only on speculation, it has been vaguely alleged that if enquiry is conducted, it may be found that the said company has also performed excess work and have taken 70- 80% excess payment.
65. That from perusal of aforesaid work order and requisition of work, it would b evident that the contractor/company-M/s VXL computer was required to supply the printed statement and Datas in three copies ie, only copy for each at section, subdivision and division and further statement of bills were supposed to be in fragmented weays for all types of consumers ie. connected disconnected, running defaulter etc with further sub fragmentation in different tariffs ie commercial, domestic rural urban, State Establishment Consumers, Government of India, Establishment Consumers, Low Tension Industrial Irrigation, Street Light etc.
66. As per the aforesaid work order and requisition the contractor was performing the work since the beginning of transaction, the petitioner who was posted as Electrical Executive Engineer, Chaibasa Division during the period 2002 to 2010 was verifying and processing the Bills raised by M/s VXL Computer as per the work order and works thereof, which were being taken according to requisition since 2002 itself since beginning.
67. It is submitted that in the meantime, since the aforesaid work contract with respect to all four Agencies were being extended from time to time till 2010 at Headquarter Level for all the aforementioned companies, leading to allegations of so called excess work and excess payment thereof, one Five Man Committee dated 05.06.2010 was constituted by the Electricity Board to enquire into the matter headed by one Amit Banerjee.
68. It is submitted that the said Five Man Committee enquired into the matter and on 17.09j.2010 reported specific irregularities only against three companies/agencies excluding M/s VXL Computer. However, since the payment of bill was stopped from August, 2010 of M/s VXL Computer also, which was engaged in billing works of Chaibasa, Chakradharpur, Ghatsila and Seraikella Division, a protest was made with assertion that since there was no specific attribution against, the payment should be released.
69. It is further submitted that that pursuant to objection raised, a very High Level Committee comprising of Engineer-in-Chief, Finance Controller and Chief Engineer (C and R) was constituted, which concluded the enquiry and while superseding the previous Five Men Committee headed by Sri Amit Banerjee, came to the finding that there is no irregularity in taking the work in Triplicate and further by various mode. Therefore, the same cannot be treated as multiplicity of same work. Consequently, a Report dated 13.10.2010 was submitted which was approved not only by the Member Finance, but also by the Chairman of the Jharkhand State Electricity Board.
70. It has been further submitted that pursuant to the a forersaid Report submitted by the High Level Committee which was approved up to the Chairman, Jharkhand State Electricity Board, a Letter dated 3.11.201 was also circulated by the Deputy Director of Accounts to all the General Managers-cum-Chief Engineers particularly the Electrical Supply Area, Jamshedpur and the Electrical Superintending Engineer, Electrical Supply Area, Electrical Supply Circle, Jamshedpur/Chaibasa to reimburse the outstanding bills to the Agencies under the Administrative Head.
71. It is further submitted that cutting across the aforesaid report of the High Level Committee and consequent direction for payment of entire outstanding bills and further in total violation of the Administrative Discipline suddenly the F.I.R in question was lodged on 12.09.2011 under the signature of one Ajay Kumar and as such, the prosecution in question was launched without authority of law.
72. It is further submitted that after institution of the F.I,R the concerned Agency namely, M/s VXL computer to which the petitioner is related raised objection that since there was no enquiry against the sd aid agency nor anything was reported against it, not there was nay basis to lodge FIR against it, hence the name of the said company may be deleted from the list of the accused persons.
73. It is further submitted that consequently, the matte was being considered at the level of the Board as well s the police and after being protracted investigation, it was found that prosecution of M/s VXL computer is non-est in the eyes of law, which would be evident from the letter bearing Memo No. 1812 dated 3 1.12.2015 written by the I.O to the Secretary, Energy Department wherein it is clearly recorded that till then, there was no material to take any decision over the acquisition of M/s VXL computer and further since there is contrary different enqury reports and the matter involves work of accounting therefore the matter may be referred for special audit by the Accountant General.
74.. It is further submitted that pursuant to the aforesaid letter of request-cum- requisition made by the I.O to the Secretary, Energy Department, Govt. of Jharkhand the matter was consigned for special audit by the Accountant Genera, which conducted the same accordingly and finally vide report dated 04.08.2016 ultimately held that it is not a case of excess billing at all nor to that of excess expenditure, particular for the reasons that it was a rate contract wherein neither the volume of work nor the periodicity was defined and thereby, it is at best a case of infirm contract arising out of poorly devised contract. And cutting across the aforesaid opinion of the Special Audit Repot of the Constitutionally Expert Body, the petitioner was noticed within he meaning of Section 41-A Cr.P.C by the I.O vide letter dated 231.09.2017 and in pursuance thereof, he repeatedly appeared as and when called by the I.O and thereby extended fullest co-operation establishing his bona fide.
75. Further, it has been submitted that petitioner is aged about 63 years, final form has been submitted, investigation is complete, petitioner has co-operated in the investigation, no prayer for custodial interrogation has ever been made by the I.O. So, considering the aforesaid facts, the petitioner deserves privilege of anticipatory bail.
76. Counter-affidavit has been filed duly sworn by Sudhir Kumar, Dy.S.P. CCR, Jamshepur and I.O of the case stating therein as under:
"(5) That it is humbly submitted that earlier the charge sheet has been submitted against the named F.I.R accused Dineshwar Pandey, proprietor of M/s Crystal Computer Infrmatic Centre Pvt. Ltd DEv Kumar Singh, partner (Proprietor) of M/s Prakriti Enterprises, Sailndra KUamr Sharma and Binod Behal, Proprietor of VXL computers, (6) That it is stated and submitted that in course of further investigation, involvement of number of employees of Jharkhand State Electricity Board are also found and they made excess payment to the named F.I.R accused after violation of the work order and the amount which has been misappropriated by the employees of JSEB are as follows:-
That the present petitioner Basgit Singh embezzled/misappropriated Rs, 7949,204- (para 523 of the supplementary case diary.)"
77. Having heard the learned counsel for the petitioner, learned A.P.P, learned counsel for the JBVNL, admitted facts is that F.I.R was lodged after a long period, the petitioners have co-operated in investigation, investigation is complete, final form has been submitted, no prayer for custodial interrogation has ever been made by the I.O, Five Member Committee has been constituted, I am inclined to grant anticipatory bail to the above named petitioners.
78. Accordingly, the above named petitioners are directed to surrender before the court below within four weeks from the date of this order and in the event of their arrest or surrender, the court below shall enlarge the above named petitioners on bail on furnishing bail bond of Rs. 30,000/- (Rupees Thirty thousand)each, with two sureties of the like amount each to the satisfaction of the Court of learned C.J.M, Jamshedpur in connection with Bistupur P.S. Case No. 150 of 2011, corresponding to G.R. No.1957 of 2011, subject to the conditions as laid down under section 438(2) Cr.P.C and also subject to the conditions that one of the bailors must be local resident of East Singhbhum District solvent person. Further, the petitioners are directed to deposit Rs. 5,000/- each by way of cost in the account of Army Welfare Fund Battle Casualties being A/C No. 90552010165915, IFSC Code-SYNB0009055, Syndicate Bank, Branch, South Block, Defence Headquarter, New Delhi, Branch Code-9055 and will submit a receipt of the same before the court below at the time of their surrender. The petitioners are directed to remain physically present before the trial court as when directed by the trial court, failing which the trial court will be at liberty to cancel the bail bonds of the petitioners.
79. The petitioners are directed to furnish copy of their Aadhar card before the court below on the date of their surrender.
80. Let a copy of this order be communicated to the court below through FAX and a copy of this order be handed over to the learned counsel for the petitioners, learned counsel for JUVNL and learned A.P.P for the State.
Satyarthi/- (Anant Bijay Singh, J.)