Madhya Pradesh High Court
Haresh Sorathia vs The State Of Madhya Pradesh on 9 September, 2019
Equivalent citations: AIRONLINE 2019 MP 988
Author: Rajeev Kumar Dubey
Bench: Rajeev Kumar Dubey
1
M.CR.C. No.34926/19
HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH: HON.SHRI JUSTICE RAJEEV KUMAR DUBEY,J.
M.CR.C. No.34926/2019
Haresh Sorathia
Versus
State of Madhya Pradesh
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Shri Manish Datt, Sr. Advocate with Shri Manish Kumar Tiwari,
learned counsel for the applicant.
Shri H.S. Chhabra, learned counsel for the respondent/EOW.
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O R D E R
(Reserved on 05/09/2019) (Delivered on 09/09/2019) This is the first application under Section 438 of Cr.P.C. as applicant Haresh Sorathia apprehends his arrest in connection with Crime No.12/2019 registered at Police Station Economic Offences Wing (EOW), Bhopal (M.P) for the offences punishable under Sections 120-B, 420, 468, 471 of the IPC, Section 66 of the Information Technology Act, 2000 and Sections 7, 13(2) of the Prevention of Corruption Act, 1988.
2. As per prosecution case, the M.P. State Electronics Development Corporation Ltd. (hereinafter referred to as "MPSEDC") 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 for 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 Digitally signed by VARSHA SINGH Date: 2019.09.11 11:14:38 +05'30' 2 M.CR.C. No.34926/19 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, Unitary, Web Based e-Procurement Software (Portal) with the specified 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.
3. 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 "MPJNM") the computer displayed a message that "the contents of the document had been modified". 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 Digitally signed by VARSHA SINGH Date: 2019.09.11 11:15:00 +05'30' 3 M.CR.C. No.34926/19 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 30/04/2018 on E-Portal. On that the team of employees of Antares Systems 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.
4. 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. 49813 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 and Sorathiya Velji Ratna Baroda were made a lowest bidder (L-1), due to which companies earned illegal profits.
5. On the basis of that preliminary evidence and findings of a probe report of the Computer Emergency Response Team, New Delhi, Crime No.12/2019 Digitally signed by VARSHA SINGH Date: 2019.09.11 11:15:13 +05'30' 4 M.CR.C. No.34926/19 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 investigation it was found that in the year 2016, OSMO Pvt. Ltd. (co-accused Varun Chaturvedi and Vinay Choudhary, 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 E-tendering 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 e-procurement 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 co-accused Varun Chaturvedi and was being used by co-accused Vinay Choudhary. 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 Digitally signed by VARSHA SINGH Date: 2019.09.11 11:15:27 +05'30' 5 M.CR.C. No.34926/19 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. The 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 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. The specific allegations against the present applicant is that he is the partner of firm Sorathiya Velji Ratna and Company Vadodara said Company was made the lowest bidder (L-1) after tampering the tender no. 49813 amounting to 15 crores of Madhya Pradesh Road Development Corporation, Tender nos. 10030 & 10044 total amounting to Rs.1135 Crore of Water Resources Department due to which company earned illegal profits. In lieu of Digitally signed by VARSHA SINGH Date: 2019.09.11 11:15:40 +05'30' 6 M.CR.C. No.34926/19 that applicant gave Rs. 3,33,53892/- to co-accused Varun Chaturvedi, Vinay Choudhary and Manish Khare.
9. Learned senior counsel appearing on behalf of the applicant submitted that the applicant is innocent and has falsely been implicated in the case. It is alleged that Sorathiya Velji Ratna and Company Vadodara was made the lowest bidder (L-1) after tampering the Tender nos. 10030 & 10044 total amounting to Rs.1135 Crore, of Water Resources Department due to which company earned illegal profits. But there is no evidence on record to show that the tender nos. 10030 & 10044 were manipulated. Regarding these tenders in the analysis report of Indian Computer Response Team ("CERT-in") only it is mentioned that the tampering with these tenders may have been attempted. There is no conclusive finding in the report that said tenders were manipulated. The Police only on the basis of suspicion made applicant an accused in the crime. Even these tenders were canceled by the department so there is no question to earn illegal profits by the company. The co-accused Manish Khare was a "Sub- Contractor" of the present applicant and applicant has business dealings with milestone importer and exporter owned by Manish Khare and he had done some work for applicant, due to which applicant paid money to him. However, co-accused Manish Khare could not performed whole work so he returned some money to applicant. So only on that basis also it cannot be said that the applicant was also involved in the manipulation of bid. The investigation is over and charge-sheet has been filed against the applicant. The applicant fully cooperate to police during investigation. The further custody of the applicant is not required. There is no apprehension of tampering with the evidence by the applicant, so applicant be released on anticipatory bail.
10. Learned counsel for the respondent/EOW submitted that from the prosecution evidence, it is clear that manipulation in bids was done by the co Digitally signed by VARSHA SINGH Date: 2019.09.11 11:15:58 +05'30' 7 M.CR.C. No.34926/19 accused Varun Chaturvedi and Vinay Choudhary, by using user IDs and Bidder IDs which were provided to them by the Antares Ltd. during the performance test and they asses database server through a VPN, access which was allotted to co-accused Nandkishore Bramhe. Applicant is the partner of Sorathiya Velji Ratna and Company Vadodara, who made the lowest bidder (L-1) after tampering the tender no. 49813 amounting to 15 crores of Madhya Pradesh Road Development Corporation, Tender nos. 10030 & 10044 total amounting to Rs.1135 Crore, of Water Resources Department.
11. He further submitted that in the report of "CERT-in" it is mentioned that the copies of encrypted L1 bids of tender nos. 10030 & 10044 were found in other tenders named "DEMO". These encrypted bids were entered in these "DEMO" tenders prior to actual opening date of original tenders. This indicates that tampering with these tenders may have been attempted. This fact is also mentioned in the Root Cause Analysis Report (R.C.A.) which was given by Antares Ltd. which clearly shows that said bids were manipulated. In the memorandum of co-accused Manish Khare recorded by the EOW under Section 27 of the Evidence Act, it is mentioned that Haresh Sorathia gave money to him regarding manipulation in the bids and he transferred that amount in the account of Shricon Multi Infra.
12. It is further submitted that applicant Haresh Sorathia talked to co- accused Vinay Choudhary through Manish Khare for getting tender No.10044 and other tender for that between 23/1/2017 to 19/2/2018 Rs.3,33,53,892/- was transferred by applicant from the bank account of Sorathiya Velji Ratna and Company Vadodara to the account of Manish Khare's firm Milestone Builders and Developers. From that amount Manish Khare transferred total of Rs.1,23,00,000/- in the account of Shricon Multi Infra which belongs to Avinash K. Choudhary, brother of co-accused Vinay Choudhary, co-accused Digitally signed by VARSHA SINGH Date: 2019.09.11 11:16:15 +05'30' 8 M.CR.C. No.34926/19 Vinay Choudhary and Sumit Golvalkar and Avinash Enterprises belongs to Avinash K. Choudhary, brother of co-accused Vinay Choudhary and the account of co-accused Sunil Dubey. Applicant also transferred total amount of Rs. 1,75,97,950/- in the bank account of Shricon Multi Infra and Avinash Enterprises. From that amount Manish Khare re-transferred Rs.98 Lakh in the applicant's bank account because tender No.10044 was canceled which clearly shows that applicant gave money to co-accused persons for manipulation in the bid and became L1 in the bid Nos. 49813, 10030 & 10044. Investigation is still going on regarding the tender no. 49813. Trial court has issued an arrest warrant against the applicant for securing his presence but he is still absconding. Applicant also filed the petition before the Division Bench of this Court for cancellation of his arrest warrant issued by learned trial Court which was rejected by the Division Bench of this Court. Even then, the applicant did not surrender before the trial Court and he is still absconding. So, looking to the seriousness of the crime, he should not be released on anticipatory bail.
Looking to the nature and seriousness of the proposed charges and contentions of learned counsel of EOW, this Court is not inclined to grant anticipatory bail to the applicant. Hence, the anticipatory bail application of the applicant is dismissed.
(Rajeev Kumar Dubey) Judge vs Digitally signed by VARSHA SINGH Date: 2019.09.11 11:16:30 +05'30'