Madhya Pradesh High Court
Virendra Pandey vs The State Of Madhya Pradesh on 5 September, 2019
Equivalent citations: AIRONLINE 2019 MP 968
Author: Rajeev Kumar Dubey
Bench: Rajeev Kumar Dubey
1 MCRC-35394-2019
The High Court Of Madhya Pradesh
MCRC-35394-2019
(VIRENDRA PANDEY Vs THE STATE OF MADHYA PRADESH)
Jabalpur, Dated : 05-09-2019
Shri Siddharth Sharma, counsel for the applicant.
Shri Harjas Singh Chhabra, standing counsel for the respondent/EOW.
Heard with the aid of case diary.
This is the first bail application under Section 439 of the Cr.P.C. Applicant Virendra Pandey was arrested on 27/07/2019 in connection with Crime No.12/2019 registered at Economic Offences Wing, Bhopal (MP) for the offence punishable under Sections 120-B, 420, 468, 471 of the IPC, Section 66, 67 of the Information Technology Act, 2000.
As per prosecution story, M.P. State Electronics Development Corporation Ltd. (hereinafter referred to as “MPSEDCâ€Â) 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 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 Nand Kishor 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 Digitally signed by RANJEET AHIRWAL Date: 06/09/2019 11:04:12 2 MCRC-35394-2019 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.
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 “MPJNMâ€Â) the computer displayed a message that “the contents of the document had been modifiedâ€Â. 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 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.
Thereupon, on the direction of Chief Secretary of M.P. Government a preliminary enquiry was conducted by the Economic Offence Wing. In the Digitally signed by RANJEET AHIRWAL Date: 06/09/2019 11:04:12 3 MCRC-35394-2019 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. 4981319 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.
On the basis of that preliminary evidences and findings of a probe report of the Computer Emergency Response Team, New Delhi, Crime No.12/2019 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.
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 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 Digitally signed by RANJEET AHIRWAL Date: 06/09/2019 11:04:12 4 MCRC-35394-2019 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.
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 Eprocurement 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 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 Digitally signed by RANJEET AHIRWAL Date: 06/09/2019 11:04:12 5 MCRC-35394-2019 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. Co-accused Harish Sorathia the owners of firms Sorathiya Velji Ratna Baroda and Raju Mantena,owner of M/s Max Mantena Micro JV Hyderabad were among the persons who were benefited from that manipulation in the bids.
During investigation it was also found that applicant, who was posted as Personal Secretary of the then Minister of Water Resources Department, M.P. Government was in frequent contact with co-accused Harish Sorathia and Raju Mantena, the owners of firms Sorathiya Velji Ratna Baroda and M/s Max Mantena Micro JV Hyderabad respectively. Some money was also transferred into the account of firms Sorathiya Velji Ratna Baroda from the treasury. Applicant Virendra Pandey was also involved in the crime.
Learned counsel for the applicant submitted that the applicant is innocent and has falsely been implicated in the offence. There is no direct evidence on record to connect the applicant with the crime. It is alleged that manipulation was done by co-accused Vinay Chaudhary and Varun Chaturvedi (the Managing Directors of OSMO Pvt. Ltd.) in connivance with co-accused Nand Kishor Brahme, Manohar M.N. and Sumeet Golwalkar (Marketing Director of OSMO Pvt. Ltd.). There is no evidence on record to show that applicant was in contact with these persons. Although, it is also alleged that some money was transferred into the account of Sorathiya Velji Ratna Baroda by the Water Resources Department, but said amount was transferred by the Officer of the concerned department through Government treasury which was the amount due on department regarding work done by Digitally signed by RANJEET AHIRWAL Date: 06/09/2019 11:04:12 6 MCRC-35394-2019 the firm Sorathiya Velji Ratna Baroda for the department. So only on the basis that applicant was frequently in contact with co-accused Harish Sorathia and Raju Mantena and some money was transferred into the account of Sorathiya Velji Ratna Baroda by the Water Resources Department, it cannot be said that the applicant was involved in the manipulation of said bids.
He further submitted that EOW has also registered offence under Section 7 C read with Section 13 (2) of P.C. Act while no permission under Section 17 of the P.C. Act was obtained by EOW before registration of aforesaid offence against the applicant. No uncountable property or tainted money or any incriminating document was seized from the possession of the applicant. There is no other evidence on record to show that the applicant was anyway connected with other co-accused person who allegedly manipulated the bids. Applicant is a Government servant. There is no likelihood of him absconding or tampering with the prosecution evidence. He is in custody since 27/07/2019 and conclusion of trial will take time. On the strength of aforesaid submissions, it is prayed that the applicant be released on bail.
Learned counsel for the respondent/EOW opposed the prayer and submitted that from the call details of applicant, it appears that the applicant was frequently in touch with co-accused Harish Sorathia and Raju Mantena, who were benefited by manipulation in bid. It also appears that some money was transferred in the account of Sorathiya Velji Ratna Baroda by the Water Resources Department at the instance of applicant. From the memorandum of Nirmal Awasti and Manish Khare also it appears that applicant was involved in the manipulation of bid. In this regard, investigation is going on. So, he should not be released on bail.
Only evidence against the applicant is that he was in contact with co- accused Harish Sorathia and Raju Mantena and some money was transferred into the account of Sorathiya Velji Ratna Baroda by the Water Resources Department at the instance of applicant. But according to prosecution story Digitally signed by RANJEET AHIRWAL Date: 06/09/2019 11:04:12 7 MCRC-35394-2019 alleged manipulation in the bids was done by co-accused Vinay Chaudhary and Varun Chaturvedi (the Managing Directors of OSMO Pvt. Ltd.) in connivance with co-accused Nand Kishor Brahme, Manohar M.N. and Sumeet Golwalkar (Marketing Director of OSMO Pvt. Ltd.). There is no evidence on record to show that applicant was in contact with these persons. Even in the report of investigation officer attached with the case diary it is only mentioned that from the call details it was found that between 05/12/2018 to 15/05/2019 applicant had talked to Raju Mantena, 15 times and to co-accused Harish Sorathia, 22 times between 19/07/2018 to 05/10/2018, while it is alleged that said manipulation was done on or before 06/03/2018. It is also alleged that between 13/07/2018 to 10/08/2018 a total Rs. 60663943/- was transferred into the account of Sorathiya Velji Ratna and company Baroda. But said amount was transferred by the Government treasury, not by the applicant. So looking to the facts and circumstances of the case and the fact that applicant is a Government servant, there is no likelihood of his absconding or tampering with the prosecution evidence, besides he is in custody since 27/07/2019 and conclusion of trial will take time, without commenting on the merits of the case, the application is allowed and it is directed that the applicant Virendra Pandey be released on bail upon furnishing personal bond in the sum of Rs.50,000/- (Rs. Fifty Thousand Only) with one surety in like amount to the satisfaction of the concerned Court for his appearance before the trial Court on all such dates as may be fixed in this behalf by the trial Court during the pendency of trial.
This order will remain operative subject to compliance of the following conditions by the applicant :
1. The applicant will comply with all the terms and conditions of the bond executed by him;
2. The applicant will cooperate in the trial;
3. The applicant will not indulge himself in extending inducement, threat or promise to any person acquainted with the fact of the case so as to Digitally signed by RANJEET AHIRWAL Date: 06/09/2019 11:04:12
8 MCRC-35394-2019 dissuade them from disclosing such facts to the Court or to the Police Officer, as the case may be;
4. The applicant shall not commit an offence similar to the offence of which he is accused;
5. The applicant will not seek unnecessary adjournments during the trial; and
6. The applicant will not leave India without prior permission of the trial Court.
Certified copy as per rules.
(RAJEEV KUMAR DUBEY) JUDGE (ra) Digitally signed by RANJEET AHIRWAL Date: 06/09/2019 11:04:12