Jharkhand High Court
Ferdinand Kispotta vs State Of Jharkhand Through Cbi on 6 July, 2011
Author: Jaya Roy
Bench: Jaya Roy
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P.No.402 of 2011
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Ferdinand Kispotta ... Petitioner
---Versus--
The State of Jharkhand, through C.B.I.... Opposite Party
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CORAM : HON'BLE MRS. JUSTICE JAYA ROY
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For the Petitioner: : Mr. Indrajit Sinha, Advocate
For the C.B.I. : Mr.Mokhtar Khan,
Advocate
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06/ 06.07.2011The petitioner has filed this application for quashing the entire proceedings initiated against the petitioner in connection with 14(A)/2009(R) registered for the alleged offence under Sections 420, 467, 468, 471 read with Section 120B of the I.P.C. and under Section 13(2) read with Section 13 (1)(d) of the Prevention of Corruption Act, 1988 and also for quashing the order dated 5.1.2011 whereby the Special Judge, C.B.I., Ranchi has taken cognizance of the aforesaid offence against the petitioner.
2. The prosecution case in brief is that the Superintendent of Police (C.B.I) A.C.B., Ranchi has lodged the First Information Report on 16.9.2009, stating therein that in compliance to the order dated 30.6.2009 of the Hon'ble High Court of Jharkhand passed in Writ Petition (PIL) No. 803 of 2009 for enquiring into the matters and finding the persons responsible for irregularities and for taking proper action. The contents of the F.I.R. further shows that Baleshwar Baitha, the then Executive Engineer, Road Division, Road Construction Department, Daltonganj, during the period of 2003-04 entered into a criminal conspiracy with M/s Kalawati Construction, Chinia More, Garhwa and other unknown persons and in pursuance thereof M/s Kalawati Construction which was executing the said contract on the basis of Sub-contract awarded by M/s Engineering Projects (India) Limited, New Delhi, submitted false and bogus invoices showing procurement of Bitumen for execution of the contractual work. According to the agreement, the construction materials like Bitumen, Cement, Steel etc. is to be supplied by the contractor for the works exceeding Rs. Ten Lacs. The contractors are 2 required to procure Bitumen from M/s Indian Oil Corporation Limited (IOCL), Bharat Petroleum Corporation Limited (BPCL), Hindustan Petroleum Corporation Limited (HPCL) etc. and before issuing such Bitumen in the contractually awarded work, the contractors are required to submit (a) Invoice for procurement of Bitumen and (b) a certificate regarding quality of the Bitumen procured. The procured materials were supposed to be allowed to put to use in construction work by the contractors only after verification of quality of the Bitumen and other materials from Departmental Quality Control Unit.
3. M/s Kalawati Consruction was awarded a contract for widening and strengthening the Chhatarpur - Japla Road from 0 K.M. to 32.5 K.M at an contractual value of Rs.7,59,05,000/-. The contractor has submitted a total 114 nos. of Invoices showing procurement of Bitumen, against the aforesaid work out of which 14 invoices were purportedly issued by Indian Oil Corporation Limited, Jamshedpur Depot. Out of 14 Invoices, 11 Invoices were not actually issued by the Indian Oil Corporation Limited Depot, Jamshedpur, and hence, the same were false and fabricated. The accused Baitha, the Executive Engineer abusing his official position dishonestly and fraudulently certified the bills of the Contractor-firm for payment.
4. The counsel for the petitioner has submitted that earlier the petitioner is not named in the F.I.R. but thereafter the petitioner has been implicated in this case and the allegation against him is that on his false certification, the said firm received payment of around Rs.7,76,69,782/-.
5. The counsel for the petitioner has raised the only point regarding sanction and it is said that the sanction has not been taken from the proper authority. To support his contention, the sanction order dated 31.12.2010 has been annexed in this application.
6. It is further contended that the sanctioning authority has mechanically passed the order of sanction.
7. It is also contended that according to Section 6, the sanctioning authority ought to consider the fact of each case and to decide whether that public servant has to 3 be prosecuted or not. But in the present case, the sanctioning authority has not exercised the right conferred upon it and it has failed to appreciate that Section 6 of the Act clearly prohibits the Court from taking cognizance of the offence specified therein which envisages that the authority has not only the right to consider the question of grant of sanction, it has the discretion to grant or not to grant. Furthermore, in the present case, no necessary document or record has been made available before the sanctioning authority even then, the sanctioning authority only on the basis of presumption, has accorded the sanction.
8. The counsel for the C.B.I. Mr. Mokhtar Khan has filed counter affidavit and has submitted that in the investigation it has come that the petitioner namely Ferdinand Kispotta was the Assistant Engineer, R.C.D. Road Division, Daltonganj at that point of time and was In-charge of the Sub- Division, and he supposed to inspect and verify the work being executed under his Sub-division. He was also required to countersign on the documents submitted by the contractors, Measurement Books and Bills prepared by the Junior Engineers. But the petitioner dishonestly and fraudulently by abusing his official position countersigned on the Measurement Book including the Bills which included Bituminous Work though the fake Bitumen Invoices were produced by the contractor-firm. The present petitioner abusing his official position allowed the said forged documents as genuine in order to cheat the Department with such a huge amount. Therefore, it cannot be said that the petitioner has been implicated in this case falsely.
9. The counsel for C.B.I has further submitted that the sanction order dated 31.12.2010 clearly shows that after going through the F.I.R. the Case Diary, Supervision Report and other records according to the order of the Governor, the sanction has been granted to the prosecution. Therefore, it cannot be said that sanctioning authority without going through the papers, mechanically accorded the sanction.
410. Considering the submissions made by the parties, and the materials available on the record, I find that there are sufficient materials which show the involvement of the petitioner in this case. Furthermore, the sanction order, which is annexed in this application clearly shows that after going through all the necessary documents such as F.I.R., the Case Diary, Supervision Report and other records, the sanction has been granted by the proper authority.
11. Considering all these aspects, in totality, I do not find any illegality in the order taking cognizance. Further, as discussed above, as the sufficient materials have come against the petitioner regarding his involvement in this case, I do not find any reason for quashing the entire criminal proceedings at this stage. Accordingly, this Criminal Miscellaneous Petition is, hereby, dismissed.
(JAYA ROY, J.) SI/-