Jharkhand High Court
Binod Kumar Verma Aged About 63 Years vs The Union Of India Through Cbi ... ... ... on 24 September, 2018
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No. 1029 of 2018
With
Criminal Revision No. 1030 of 2018
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Binod Kumar Verma aged about 63 years, son of Late Radha Mohan Verma, resident of Kusum Niwas, Nadira Ganj, Sati Sthan, PO & PS Gaya, District Gaya ... Petitioner (in Cr. Revisiion No. 1029 of 2018) Binod Kumar Sahay aged about 70 years, son of Late Shiv Govind Sahay, resident of Road No. 4A, Kusum Vihar, Morabadi, PO & PS Morabadi, District Ranchi ... ... Petitioner (in Cr. Revision No. 1030 of 2018) Versus The Union of India through CBI ... ... Opposite Party (in both the cases)
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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
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For the Petitioners : Mr. R. S. Mazumdar, Senior Advocate
For the Opposite Party-CBI : Mr. Rajiv Nandan Prasad, Advocate
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4/24.09.2018 Heard Mr. R. S. Mazumdar, learned senior counsel for the petitioners and Mr. Rajiv Nandan Prasad, learned counsel for the CBI.
2. Since common question of law and fact are involved in both these applications, the same are being disposed of by this common order.
3. The petitioners are aggrieved by the order dated 02.07.2018 passed by the learned 1st Additional Sessions Judge cum Special Judge, CBI, Dhanbad in R. C. Case No. 06(A)/2010(R) registered for the offences punishable under Sections 120(B) read with Sections 420, 468 and 471 of the I.P.C. and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, whereby and whereunder the discharge application preferred by the petitioners have been rejected.
4. On the direction of the High Court in a Public Interest Litigation, a preliminary inquiry was made with respect to the precarious conditions of roads in the State of Jharkhand and since prima-facie criminality was found, an FIR was instituted being R. C. Case No. 06(A)/2010(R) wherein it was alleged that Sri Awadh Kishore Prasad Singh, the then Executive Engineer, R.W.D., Koderma during the period 2004-2007 entered into a criminal conspiracy with M/s. Sunny Construction & Co., Jhumari -2- Tilaiya, Koderma and unknown others and in pursuance thereof M/s. Sunny Construction & Co. submitted false/bogus invoices showing procurement of Bitumen for execution of contractual work awarded in its favour which caused a wrongful gain to the contractor and a corresponding wrongful loss to the Government of Jharkhand. It has been alleged in the FIR that the contractors were required to procure bitumen from PSUs like Indian Oil Corporation Ltd., Bharat Petroleum Corporation Ltd., Hindustan Petroleum Corporation Ltd. etc. and before using such bitumen in the contractually awarded work, the contractors are required to submit invoices for procurement of bitumen as well as a certificate regarding the quality of bitumen so procured. It has been alleged that M/s. Sunny Construction & Co. was awarded with a contract for improvement of road under PMGSY at a contractual value of Rs. 2,61,40,521/-. The contractor has submitted total 15 numbers of invoices showing procurement of bitumen against the aforesaid work which was purportedly issued from IOCL, Haldia and Bokaro respectively. Allegations have been levelled that out of 15 invoices, 12 invoices supposed to have been issued from IOCL, Haldia of bitumen valued at Rs. 20,66,303/- were not actually issued by IOCL, Haldia and the same were found to be false and fabricated which were dishonestly submitted by M/s. Sunny Construction & Co., Koderma. It has also been alleged that the then Executive Engineer R.W.D., Koderma by abusing his official position has dishonestly certified the bills of the contractor firm for payment and the firm had received a payment of around Rs. 2,19,04,1115/- on the basis of false certification of the Executive Engineer.
5. Investigation resulted in submission of charge-sheet and after cognizance was taken separate applications for discharge were preferred by the petitioners and other accused persons which were rejected vide order dated 02.07.2018 passed by the learned 1st Additional Sessions Judge cum Special Judge, CBI, Dhanbad and which is the order impugned to the present applications.
6. Mr. R. S. Mazumdar, learned senior counsel for the petitioners has assailed the impugned order by stating that the order does not contain appropriate reasons for rejecting the discharge application. It has been -3- stated that the materials which are unimpeachable in character and which were produced before the learned trial court were not at all considered and in fact the impugned order dated 02.07.2018 is basically a recital of the prosecution case as put forward by the CBI. Learned senior counsel submits that none of the petitioners were named in the FIR and only allegation against the petitioners is that they had dishonestly and fraudulently signed on 11 numbers of forged bitumen invoices in order to extend undue benefit to the contractor. Learned senior counsel submits that the FIR was instituted on the basis of a preliminary inquiry conducted by the CBI on the directions of the High Court regarding the precarious conditions of the roads in the State of Jharkhand, but the CBI appears to have diverted its investigation from the main issue as nothing has been stated by the CBI that the roads in the State of Jharkhand are sub-standard and is not in a very good condition. Learned senior counsel in support of such contention submits that from the various documents appended to these applications and which were brought to the notice of the learned trial court, no documents have been prepared by the CBI relating to the condition of the roads. In fact, according to learned senior counsel for the petitioners, after completion of the work, JRRDA and NRRDA have submitted their reports that the work is satisfactory. It has further been submitted that the petitioners have no role to play in the sanction and payment of bills, as it is the duty of the Accountant, moreso, in view of the fact that the petitioners were carrying on their duty in the field and therefore, it was not the duty of the petitioners to certify the invoices. Learned senior counsel has stated that the duty with respect to certification of the invoices lay with the Executives and the petitioners being Engineers were not at all concerned or involved in the certification of the invoices which were subsequently found to be forged and fabricated. Reference has also been made to the information obtained under Right to Information Act in order to nail the contention of the petitioners that the work was found to be satisfactory. Learned senior counsel once again reiterates his submission with respect to learned trial court having not considered the documents produced from the side of the petitioners and in support of his contention has referred to the judgments in the case of "Central Bureau of Investigation, -4- Hyderabad Vs. K. Narayana Rao" reported in (2012) 9 SCC 512 and "Sajjan Kumar Vs. Central Bureau of Investigation" reported in (2010) 9 SCC 368. He concludes his argument by stating that the impugned order dated 02.07.2018 being shorn of appropriate reasons deserves to be quashed and set aside.
7. Per contra, Mr. Rajiv Nandan Prasad, learned counsel appearing for the CBI submits that the charge against the petitioner is not with respect to the quality of the work, but with respect to certification of false invoices which led to a wrongful loss to the State and a corresponding wrongful gain to the contractor as well as the conspirators who were involved in getting the said amount released in favour of the contractor. Mr. Prasad, further submits that charge is of non-supply of bitumen and it was shown that the supply was made to the contractor and since the learned trial court has while commenting on the submissions advanced by the respective parties also looked into the case-diary and having found more than a prima-facie case in existence against the petitioners has rightly rejected the discharge application preferred by them.
8. On consideration of the arguments advanced by the learned counsel for the respective parties, the charge-sheet as well as the various documents brought on record on behalf of the petitioners has been perused.
9. The petitioner in Criminal Revision No. 1029 of 2018 was posted as an Assistant Engineer in RWD, Works Department, Koderma during the relevant point of time. It has been stated in the charge-sheet that the said petitioner was apart from inspecting/verifying the work being executed under his sub-division was also required to counter-sign all the documents submitted by the contractor, measurement books and account bills prepared by the Junior Engineer after being satisfied about the entries. The petitioner appears to have dishonestly and fraudulently signed on the 11 numbers of forged bitumen invoices in order to extend undue benefit to the contractor by facilitating payment of the bills of the contractor.
10. So far as the charge against the petitioner in Criminal Revision No. 1030 of 2018 is concerned, it appears that the said petitioner was posted as a Junior Engineer RWD, Works Division, Koderma and he had -5- prepared the measurement books as also the on account bills for payment which included bituminous work of Nawadih to Gharbariyabar Road executed by the contractor - M/s. Sunny Construction & Co. The said petitioner has also been alleged to have dishonestly and fraudulently prepared measurement books and bills of the contractor showing required utilization of bitumen in order to extend undue benefit to the contractor by facilitating payment of the bills of the contractor.
11. Thus, the common thread which runs through the case of both the petitioners which has come to the fore on completion of the investigation is that, they were responsible with respect to certification of the 11 numbers of forged and fabricated invoices and showing proper utilization of bitumen, although a huge quantity of bitumen was never ever procured and utilized, but for which the amount was also realized in favour of the contractor.
12. Learned senior counsel has referred firstly to an order passed by the learned trial court dated 23.01.2018 wherein it has been admitted by the CBI that there is no document which has been prepared with respect to verification report of the road. The progress report certified by the Executive Engineer, REO (W) Division, Koderma also indicates that the work with respect to repair of the roads have been completed. Similarly, a communication was made by the Central Public Information Officer dated 23.03.2010 wherein while considering the audit report, it was indicated about the responsibility of the Executive Engineer to prescribe the form, if any on account of bitumen brought to site will be kept by the contractor. While further assailing the contentions with respect to satisfactory completion of work and non-availability of any physical verification report by the CBI, the same tends to appear from certain information which were asked for and which finds reflected in the communication of the Under-Secretary, Rural Development Department dated 14.03.2016.
13. The entire episode as narrated above and which has been strenuously argued by the learned senior counsel for the petitioners appears to run contrary to the basic allegations levelled against the petitioners. The investigating agency had come to a conclusion that 11 numbers of invoices purportedly procured from IOCL, Haldia were -6- detected to be forged and fabricated in which the role of the petitioners were also ascertained and merely because of no aspersions having been cast with respect to the qualitative performance of work undertaken by the contractor, the same cannot dilute the allegations of wrongful gain to the contractor and a corresponding wrongful loss to the State of Jharkhand. The work of repair/construction of roads as had been undertaken by the contractor may have been satisfactory and no physical verification report has been obtained by the CBI, but the same will not wash out the allegations with respect to submission of forged and fabricated invoices certified by the concerned officials including the petitioners. Learned senior counsel for the petitioners has strongly placed reliance in the case of Central Bureau of Investigation, Hyderabad Vs. K. Narayana Rao" (supra) while stating that merely because the initials of the petitioners have been put in the invoices, the same will not amount to a conclusion that there was a prior meeting of mind between the accused and the contractor and under a criminal conspiracy, the amount was sanctioned and was released in favour of the contractor. He had also submitted that the petitioner in Criminal Revision No. 1030 of 2018 is alleged to have prepared the measurement books and the bills of the contractor which also cannot be construed to mean that a criminal conspiracy has been hatched between the parties concerned. In order to appreciate such contentions, reference is being made to the relevant portion of the judicial pronouncement referred to above and the same reads as under:
24. "The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have been committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable -7- explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence."
14. It is not the case of the prosecuting agency that merely on suspicion, the petitioners have been proceeded against. The invoices which formed the subject matter of the offences alleged contains the initials of the petitioners and the measurement books and bills were also prepared and in such context therefore, a prima-facie adverse inference can be drawn against the petitioners that the false invoices were submitted in concert with the contractor and other government officials. Such prima-facie evidence dispels the contention of the petitioners that there were no involvement of the petitioners and therefore, the judgment under reference is not helpful to the cause of the petitioners in the facts and circumstances of the case narrated above.
15. Reference has also been made to the case of "Sajjan Kumar Vs. Central Bureau of Investigation" (supra) and emphasis has been placed on paragraph 21 (iii).
16. The Hon'ble Supreme Court while considering the scope of discharge under Sections 227 and 228 of the Code of Criminal Procedure had enumerated certain principles which read as under:
Exercise of jurisdiction under Section 227 and 228 Cr.P.C.
21. "On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the charges under Section 227 Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.
(ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.
(iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basis infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as it he was conducting a trial."
(iv) If on the basis of the material on record, the court form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.-8-
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal."
17. While citing this judgment, learned senior counsel has tried to impress this court that the learned trial court has merely acted as a mouth-piece of the prosecution and has not considered the probabilities of the case. However, on a perusal of the impugned order dated 02.07.2018, such assertion is not acceptable by this court simply for the reason that the learned trial court had appropriately discussed the materials as collected in course of investigation and has specified the role of the petitioners while rejecting the said applications. The probative value of the materials collected have not been gone into by the learned trial court nor has a roving inquiry conducted by it, but it has considered the documents and evidences produced before it while rejecting the discharge application.
18. Since it has been emphasized by the learned senior counsel for the petitioners that the conditions of the roads after completion of the work by contractor was found to be satisfactory and such documents have not at all been considered by the learned trial court, it would be apposite to refer to the case of "State of Orissa Vs. Devendra Nath Padhi" reported in (2005) 1 SCC 568, wherein it was held as follows:
18. "We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced. The scheme of the Code and object with which Section 227 was incorporated and Sections 207 and 207-A omitted have already been noticed.
Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini-trial at the stage of framing of charge. That would defeat the object of the Code. It is well settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the -9- learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well-settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression "hearing the submissions of the accused" cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the stage of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police."
19. It has categorically been held in the aforesaid judgment that the case at the time of discharge has to be considered only on the basis of the submission of the accused on the records of the case and the documents submitted by the prosecuting agency. Even if it is considered that the documents submitted by an accused are unimpeachable in character, but a connection with respect to the allegations levelled and in respect to the relevancy of the documents so submitted on behalf of the accused as has been repeatedly noted above, mere satisfactory completion of work will not dilute the allegations of certification of 11 numbers of invoices which were found to be forged and fabricated and which caused a loss to the government and on such parameters therefore, the learned trial court had rightly rejected the discharge application preferred by the petitioners vide impugned order dated 02.07.2018.
20. There being no reason to conclude otherwise, these applications fail and the same are hereby dismissed.
(Rongon Mukhopadhyay, J) R. Shekhar Cp 3