Jharkhand High Court
Kumar Anuj vs The State Of Jharkhand Through C.B.I ... ... on 23 January, 2020
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No. 123 of 2016
Kumar Anuj, Son of Shri Bisheshwar Mahto, Resident of Tenu
Road, Chandrapura, P.O. & P.S.- Petarwar, District - Bokaro
... ... Petitioner
-Versus-
The State of Jharkhand through C.B.I ... Opposite Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Rahul Kumar, Adv.
For the C.B.I : Mr. Rohit Sinha, Adv.
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13/23.01.2020 Heard Mr. Rahul Kumar, learned counsel appearing
on behalf of the petitioner.
2. Heard Mr. Rohit Sinha, learned counsel appearing on behalf of the opposite party.
3. This revision has been filed for the following relief:
"The instant Criminal Revision Application is directed against the order dated 16.01.2016 passed by the learned court of Special Judge, CBI, Ranchi in R.C. Case No.11A/2009(R) whereby and whereunder the petition filed by the petitioner for discharge has been very mechanically and casually rejected and charge without any material/ evidence has been directed to be framed which is now pending before the learned court of Special Judge, CBI, Ranchi."
4. The R.C. Case No.11A/2009(R) was registered under Sections 120-B, 420, 467, 468 & 471 of IPC and Sections 13(2) r/w 13(1)(d) of P.C. Act, 1988. The C.B.I. has submitted Charge-sheet No.01/2011 dated 31-01-2011 under Sections 120-B r/w 420, 468, 471 of IPC and Sections 13(2) r/w 13(1)(d) of P.C. Act, 1988 and accordingly, the cognizance of the offence was taken by the learned court below on 02-02-2011 under Sections 120-B r/w 420, 468, 471 of IPC and Sections 13(2) r/w 13(1)(d) of P.C. Act, 1988 against the accused persons including the petitioner.
5. During the pendency of this case, charge for the offences under Sections 120-B r/w 420, 468, 471 of IPC was 2 framed against the petitioner vide order dated 20.01.2018 by the learned court below and accordingly I.A. (Cr.) No.5343 of 2019 was filed challenging the said order. I.A. (Cr.) No.5343 of 2019 was allowed vide order dated 18.06.2019 and accordingly, the order dated 16.01.2016 refusing to discharge the petitioner as well as the order dated 20.01.2018 framing charges against the petitioner are under challenge in the present criminal revision.
Arguments of the petitioner
6. The learned counsel for the petitioner submits that the F.I.R itself was filed pursuant to order passed by the High Court. He further submits that there is no allegation against the petitioner in connection with fake bills of Bitumen. The work was awarded in favour of M/s Classic Coal Construction (P) Ltd. and the fake Bitumen bills were submitted by M/s Classic Coal Construction (P) Ltd. and/or their Officers / Director, but so far as the petitioner is concerned, he neither had any role in the execution of the work nor had any role in connection with the fake bills and payment in connection with the work executed by M/s Classic Coal Construction (P) Ltd. He submits that the role of the petitioner, as alleged, is only relating to the formation of cartel which facilitated the tender work to be allotted to M/s Classic Coal Construction (P) Ltd. It is alleged that the petitioner was the partner of M/s Sidhartha Construction.
7. It has been brought to the notice of this Court by the learned counsel appearing for the petitioner that the order refusing to discharge the co-accused namely Jyotindra Kumar has been quashed by this Court vide order dated 26.11.2015 passed in Criminal Revision No.768 of 2014. It is submitted that Jyotindra Kumar was also the partner of M/s Sidhartha Construction and the specific case of the petitioner is that his 3 case is fully covered by the judgment passed in the case of Jyotindra Kumar.
8. The learned counsel for the petitioner has also referred to another judgment dated 11.02.2014 passed by this Court in the case of co-accused namely Gokul Agarwal in Criminal Revision No.1199 of 2013 whereby this Court has allowed the petition challenging the order refusing to discharge. The learned counsel submits that Gokul Agarwal was one of the Directors of M/s Bharat Vanijya Eastern (P) Ltd., Kolkata against whom similar allegations have been levelled alleging that M/s Bharat Vanijya Eastern (P) Ltd., Kolkata had formed cartel with M/s Classic Coal Construction (P) Ltd. in connection with tender of another agreement. The learned counsel has submitted that his case is squarely covered by the case of Gokul Agarwal also and in fact the judgment passed in the case of Gokul Agarwal(supra) was followed by this Court in the case of Jyotindra Kumar(supra).
9. The learned counsel has also referred to another judgment passed by this Court in the case of Ripu Sudan Dubey, who was the then Executive Engineer, Road Construction Department, Hazaribagh and submits that the criminal proceedings including order taking cognizance against co-accused Ripu Sudan Dubey was quashed by this court vide order dated 27.04.2012 passed in Cr.M.P. No.1136 of 2011.
10. The learned counsel submits that even if the allegation of forming any cartel and the allegation that M/s Sidhartha Construction stood as a dummy bidder is taken to be correct, the same does not indicate any criminal conspiracy by the petitioner for the purposes of alleged offence. The learned counsel submits that the conspiracy has been defined under Section 120A of Indian Penal Code and the basic ingredients of conspiracy, is totally missing, so far as the petitioner is 4 concerned. The petitioner has been made accused only by referring to the allegation of conspiracy under Section 120B of Indian Penal Code although there is no allegation of any active role or any overt act against the petitioner in the allegation of formation of cartel or in the matter of alleged offence committed by M/s Classic Coal Construction (P) Ltd and its/officers/directors and the government officials. He submits that since the case of the other partner of the firm namely, Jyotindra Kumar (supra) has already been quashed by this Court, therefore, there is no reason for this Court to take a different view so far as the present petitioner is concerned.
11. The learned counsel for the petitioner has referred to a judgment passed by Hon'ble Supreme Court reported in (2011) 15 SCC 541 (Shubhankar Biswa Vs. Sandeep Mehta) to submit that the plea of parity vis a vis that co-accused cannot be brushed aside by saying that Article 14 does not apply to criminal cases if otherwise the case of the petitioner is found to be on the same footing as that of the co accused namely Jyotindra Kumar(supra) whose criminal proceeding has been quashed by this Court.
12. The learned counsel for the petitioner has further submitted that the term 'cartel' has been defined under the Competition Act, 2002 and the definition of the term 'cartel' has been considered by this Court while quashing the criminal proceedings against the co-accused. He further refers to Section 19 of the said Competition Act, 2002 to submit that the competition commission has the exclusive jurisdiction to consider and decide the matter relating to contravention of the provisions of Competition Act, 2002 and the criminal courts have no role to play in the matter. He further submits that a reference can be made by the Central Government for seeking an opinion in connection with the alleged violation of the provisions of Competition Act, 2002 and in absence of such 5 reference in connection with the present case, no criminal proceedings alleging formation of cartel can be initiated and continued against the petitioner. The learned counsel submits that as the entire allegation against the petitioner relates to formation of cartel and no more, therefore the entire criminal proceedings as against the petitioner by referring to Section 120B of the Indian Penal Code is itself an abuse of the process of law and in order to meet the ends of justice, the impugned order refusing to discharge the petitioner be set aside.
13. The learned counsel has referred to judgment passed by Hon'ble Supreme Court reported in (2012) 9 SCC 512(Central Bureau of Investigation, Hyderabad Vs. K. Narayana Rao) para 24 to submit that 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. He submits that in absence of any material showing an agreement as required for alleging criminal conspiracy in the present case, no criminal case is made out under Section 120B of Indian Penal Code against the petitioner.
14. He also referred to judgment passed by Hon'ble Supreme Court reported in (2017) 15 SCC 560para 25 to submit that framing of charge is the first major step in a criminal trial where the court is expected to apply its mind to the entire records and documents placed therewith before the court and if the court finds that no offence is made out or there is a legal bar to such prosecution under the provisions of the Code or any other law for the time being in force, the accused is required to be discharged. He submits that on the one hand, no offence is made out against the petitioner and the allegation, if any, regarding formation of cartel is within the exclusive jurisdiction of the authority under the Competition 6 Act, 2002, the entire criminal proceeding against the petitioner is fit to be quashed and set-aside.
Arguments of the opposite party
15. The learned counsel for the C.B.I., on the other hand, submits that although at the initial stage of filing of the F.I.R., the allegation was made in connection with large scale embezzlement of public money relating to execution of work under Road Construction Department, but after investigation, larger conspiracy was found and it was found that even at the stage of entering into the agreement, the second bidder for each work entered into criminal conspiracy with the common bidder of the various works, namely, M/s Classic Coal Constriction Private Limited by forming a cartel and becoming a dummy bidder, in order to facilitate award of the work to M/s Classic Coal Constriction Private Limited. This act by itself facilitated the work to be awarded to M/s Classic Coal Constriction Private Limited, who in turn, raised fake bills of bitumen and embezzled huge public money. He further submits that merely because the allegation in relation to formation of cartel can also be inquired into by the authority under the Competition Act, 2002, that by itself does not mean that no criminal offence can arise out of the alleged transactions, if the basic ingredients of alleged offence under various provisions of Indian Penal Code is also made out. He has referred to Section 62 of the Competition Act, 2002 to submit that the provision of Competition Act, 2002 is in addition to and not in derogation of the provision of any other law for the time being in force. He submits that the legislature has consciously incorporated Section 62 in the Competition Act, 2002 to ensure that any violation of any other law, if found in any transaction, the proceedings under other laws are not excluded if the essential ingredients relating to such law is present in a case.
716. So far as specific role of the petitioner is concerned, the learned counsel for the opposite party has referred to the statement of the petitioner recorded in the case-diary under Section 161 of Cr.P.C. and submits that the statement of the petitioner is fully supported by statements of other witnesses including the officers of the post-office which clearly indicate that the petitioner had played active role in the commission of offence and there was already a meeting of mind between the petitioner and the co-accused M/s Classic Coal Construction Company (P) Ltd. and accordingly, prima facie, the basic ingredient of criminal conspiracy under Section 120A is made out against the petitioner.
17. He also submits that the case of the petitioner is on different footing from that of Jyotindra Kumar (Petitioner in Criminal Revision No. 768 of 2014), in as much as, in the charge-sheet itself, no active role has been alleged as against Jyotindra Kumar and it is only against the petitioner active role has been alleged although the petitioner as well as Jyotindra Kumar (supra) were the partners of the same firm namely M/s Sidhartha Construction and accordingly there is no parity between the petitioner and Jyotindra Kumar.
18. So far as the case of Gokul Agrawal is concerned, this Court recorded in Criminal Revision No.1199 of 2013 that though it is the case of the prosecution that the company of the Gokul Agrawal had formed cartel, but it never happens to be the case of the C.B.I that there was any kind of agreement in between M/s Bharat Vanijya Eastern Private Ltd., Kolkata and M/s Classic Coal Constriction Private Limited to stop other bidders from participating so that they may acquire monopoly in the field. Therefore, the C.B.I. may not be correct in levelling the accusation against Gokul Agrawal that his company had formed cartel. It was also recorded by this Court that there was no specific allegation against Gokul Agrawal being 8 Director of the company, to have done anything so as to attract offence under Section420 of Indian Penal Code or forgery or even an offence under Prevention of Corruption Act, 1988 and in order to draw vicarious liability, it was obligatory on the part of the complainant to make requisite allegation which will attract the provisions constituting vicarious liability. He submits that the case of Gokul Agarwal was on a different footing as he was made an accused only because he was the director of the company, against whom certain allegations were made. Since there was no role played by Gokul Agarwal, this court quashed the criminal proceedings against Gokul Agarwal.
19. The learned counsel, by referring to the judgment passed in the case of co-accused, namely, Ripu Sudan Dubey in Cr.M.P. No.1136 of 2011, submits that the case of Ripu Sudan Dubey stands on different footing. He was a government servant and had entered into agreement with M/s Classic Coal Constriction Private Limited in connection with two works on behalf of the government. He had no role to play in the matter of decision regarding award of contract or in connection with payment of forged bills of bitumen in connection with the work to M/s Classic Coal Constriction Private Limited. He was being prosecuted for the reason that, in spite of knowing that both the bidders i.e. M/s Classic Coal Constriction Private Limited and M/s Siddhartha Construction, Hazaribagh were hand in gloves in facilitating award of work in favour of M/s Classic Coal Constriction Private Limited, whose bid amount was excessive, and it was held that there was no fault on his part in awarding the contract to the company on much higher rate and as such, it was held that there was no culpability on the part of Ripu Sudan Dubey.
920. He submits that so far as the present petitioner is concerned, specific role has been alleged against him in the commission of offence and there is enough material against the petitioner to put him on trial and more than prima-facie case is made out against the petitioner.
21. At the end, the learned counsel for the opposite party submits that the case of the petitioner stands on different footing when compared to the case of co-accused persons whose criminal proceedings have been quashed by this Court in different cases. He further submits that the impugned order is an order refusing to discharge and in view of the materials collected during investigation, more than prima facie case is made out against the petitioner, which does not call for any interference in this criminal revision application. He submits that the learned court below has not committed any illegality and /or perversity in rejecting the petition for discharge of the petitioner and consequently framing charge against the petitioner. He refers to various paragraphs of the case diary where the statement of the petitioner as well as statement of witnesses as well as other co-accused have been recorded.
22. It has also been pointed out by the learned counsel appearing on behalf of the opposite party that the trial has begun and number of witnesses have already been examined and it is submitted that no interference is called for at this stage of the proceedings.
Findings of this Court
23. Upon perusal of the F.I.R, it appears that the F.I.R was filed in compliance of order dated 30.06.2009 passed by this Court in W.P.(PIL) No.803 of 2009. Pursuant to the said order a preliminary enquiry was taken up into the allegation of large scale irregularities and embezzlement of crores of rupees by government officers of Road Construction Department, Government of Jharkhand, contractors and other persons in 10 the matter of purported procurement of Bitumen for construction of road by private contractors and when the enquiry prima facie revealed criminality in the matter, the F.I.R was instituted. It is alleged that during the period 2002 to 2007,the accused entered into criminal conspiracy amongst themselves with M/s Classic Coal Construction (P) Ltd. and other unknown and M/s Classic Coal Construction (P) Ltd submitted false/bogus invoices showing procurement of Bitumen for execution of 7 contractual works awarded to M/s Classic Coal Construction (P) Ltd. through tender process which caused wrongful gain to the contractors and corresponding wrongful loss to the Government of Jharkhand. All the 305 bitumen invoices submitted by M/s Classic Coal Construction (P) Ltd. in the 7 works in question were alleged to be fake and forged.
24. After investigation of the case, charge sheet was submitted vide Charge Sheet No.1 of 2011 against Sri Ripu Sudan Dubey, the then Executive Engineer, Road Construction Department, Hazaribagh and 8 other government servants of Road Construction Department of Hazaribagh and 8 other private persons which includes the petitioner.
25. So far as the petitioner is concerned, the allegation relates to the work Agreement No.02F2/2002-03 and work agreement No.03F2/2002-03. It is not in dispute that the petitioner was one of the partners of M/s Sidhartha Construction, Hazaribagh.
26. So far as the petitioner is concerned, it has been inter- alia, alleged in the charge sheet that at the time of submission of tender relating to work agreement no. 02F2/02-03, it has been alleged as follows:-
Investigation further disclosed that, even at the time of submission of the tender, the contractor M/s. Classic Coal Construction (P) Ltd. and the second bidder M/s. Sidhartha 11 Construction, Hazaribagh connived with each other. They, with dishonest and fraudulent intention, formed a cartel to get the tender awarded in favour of M/s. Classic Coal Construction (P) Ltd. Bank Drafts of Rs.10,000/- each for obtaining Tender documents for both the bidders were purchased by M/s. Classic Coal Construction (P) Ltd. In the subject tender, as Earnest Money Deposit, NSCs worth Rs.5,36,000/- each were deposited by both the bidders i.e M/s Classic Coal Construction (P) Ltd. and M/s. Sidhartha Construction. NSCs submitted by both the bidders were purchased from Hindpiri Sub Post Office, Ranchi on the same date i.e., 11/10/2001 in the names of Shri Pawan Kumar Singh and Kumar Anuj respectively. In the NSC purchase application submitted by Shri Pawan Kumar Singh as well as Kumar Anuj, the address was shown as 2D, Shishir Kunj, Bariatu Road, Ranchi, which was the address of M/s Classic Coal Construction (P) Ltd. shown in the tender documents. After the tender was decided in favour of M/s Classic Coal Construction (P) Ltd., the NSCs held in the name of Kumar Anuj of M/s. Sidhartha Construction were submitted as Security Deposit by M/s Classic Coal Construction (P) Ltd., which was allowed by the then Executive Engineer Shri Ripusudan Dubey. Subsequently, NSCs purchased in the name of Kumar Anuj of M/s. Sidhartha Construction were got transferred in the name of Shri Pawan Kumar Singh, Managing Director of M/s Classic Coal Construction (P) Ltd., Ranchi.
Similar allegations have been levelled in connection with submission of tender relating to work agreement no. 03F2/02-03 as follows:-
Investigation further disclosed that, even at the time of submission of the tender, the contractor M/s Classic Coal Construction (P) Ltd. and the second bidder M/s. Sidhartha Construction, Hazaribagh connived with each other. They, with dishonest and fraudulent intention, formed a cartel to get the tender awarded in favour of M/s Classic Coal Construction (P) Ltd. Bank Drafts of Rs.10,000/- each for obtaining Tender documents for both the bidders were purchased by M/s. Classic Coal Construction (P) 12 Ltd. In the subject tender, as Earnest Money Deposit, NSCs worth Rs.2,82,000/- each were deposited by both the bidders i.e M/s. Classic Coal Construction (P) Ltd. and M/s. Sidhartha Construction. NSCs submitted by both the bidders were purchased from Hindpiri Sub Post Office, Ranchi in the names of Shri Pawan Kumar Singh and Kumar Anuj respectively. In the NSC purchase application submitted by Shri Pawan Kumar Singh as well as Kumar Anuj, the address was shown as 2 D, Shishir Kunj, Bariatu Road, Ranchi, which was the address of M/s. Classic Coal Construction (P) Ltd. shown in the tender documents. After the tender for the work Widening & Strengthening work of Gola - Muri Road from 0 KM to
14. 2 Km. (Work Agreement No.02F2/02-03) was decided in favour of M/s. Classic Coal Construction (P) Ltd., the NSCs worth Rs.2,82,000/- held in the name of Kumar Anuj of M/s. Sidhartha Construction were submitted as Security Deposit by M/s. Classic Coal Construction (P) Ltd. which was allowed by the then Executive Engineer Shri Ripusudan Dubey. Subsequently, NSCs purchased in the name of Kumar Anuj of M/s Sidhartha Construction were got transferred in the name of Shri Pawan Kumar Singh, Managing Director of M/s. Classic Coal Construction (P) Ltd.
27. Thus, this Court finds that at the time of filing of the F.I.R, the allegation was made in connection with large scale irregularities and embezzlement of crores of rupees in connection with the execution of various works relating to Road Construction Department. However, at the time of filing of the charge sheet, a larger conspiracy was alleged by stating that even at the time of submission of tender by M/s Classic Coal Construction (P) Ltd., the second bidder, who participated in the respective tender entered into criminal conspiracy and formed a cartel and facilitated the award of work in favour of M/s Classic Coal Construction (P) Ltd. The present petitioner is alleged to be partner of one such firm, namely, M/s Sidhartha Construction and it is alleged that in 13 the tender process it is alleged that M/s Sidhartha Construction was a dummy bidder sponsored by M/s Classic Coal Construction (P) Ltd.
28. The case diary in the present case has been produced by the opposite party and the learned counsel for the opposite party has referred to a number of pages of the case diary showing the role of the petitioner in the commission of alleged offence including the statement of this petitioner which has been recorded in page 34 of the case diary. The petitioner in his statement has categorically stated that he was the partner of M/s Siddhartha Construction and it was decided that M/s Siddhartha Construction would help M/s Classic Coal Construction Private Limited of Shri Pawan Kumar Singh in managing tenders. Accordingly, M/s Classic Coal Construction Private Limited managed to get two tenders awarded in its favour and the petitioner had signed tender papers at the instance of Shri Pawan Kumar Singh, the rates were written beforehand and he had no knowledge as to how the rates were quoted. He has also stated that the NSC application form of Registration No. 199 against which NSC worth Rs. 5,36,000/-were purchased, were the money belonging to Shri Pawan Kumar Singh and later on Shri Pawan Kumar Singh went to the post -office with staff to get the NSC transferred in the name of Shri Pawan Kumar Singh of M/s Classic Coal Constriction Private Limited. The statement of Manhar Verma, who was the Senior Accounts Clerk of Road Construction Department, Koderma has also been recorded. He has stated that the NSC was released on 02.04.2002, entries for which were made by one Ram Narayan Singh. The statement of Ram Narayan Singh has also been recorded in the case diary. It is relevant to note that the statement of Shri Madan Pandey, retired postmaster of Hindpirhi post-office has also been recorded in the case diary.
14The aforesaid are some of the witnesses who have supported the allegations made against the petitioner that he was instrumental and participated actively in conspiracy inter-alia with M/s Classic Coal Construction (P) Ltd., in commission of the alleged offence and dishonestly supported in getting the tenders and the petitioner along with other co-accused committed the alleged offence. In view of the statement of the petitioner supported by the statement of the various witnesses as recorded in the case diary, this Court finds that prima facie there is an allegation of overt act against the petitioner showing connivance with Shri Pawan Kumar Singh of M/s Classic Coal Constriction Private Limited and others in the matter of managing tender by participation of his partnership firm namely, M/s Sidhartha Construction as a dummy bidder, so that it could be awarded to M/s Classic Coal Construction Private Limited.
29. It further appears that no such corresponding allegation of any overt act is there in connection with co- accused, Mr. Jyotindra Kumar who is was also the partner of M/s Sidhartha Construction. Accordingly, this Court is of the considered view that the case of Jyotindra Kumar stands on different footing as that of the petitioner, although both were partners of M/s Siddhartha Construction. Accordingly, this court is of the considered view that the petitioner cannot claim any parity with the case of Mr. Jyotindra Kumar, whose case has been quashed by this Court in Criminal Revision No. 768 of 2014 vide order dated 26.11.2015.
30. So far as the case of the co-accused, Gokul Agrawal is concerned, he was the Director of Bharat Vanijya Eastern Private Limited, Kolkata and in connection with another contract, it was alleged that M/s Classic Coal Constriction Private Limited formed a cartel with Bharat Vanijya Eastern Private Limited, Kolkata in order to grab one of the contract 15 mentioned in the First Information Report. This Court while deciding the case of Gokul Agrawal held that simply for the reason that the petitioner's company happens to be a dummy bidder, the petitioner's company cannot be said to have committed any offence of cheating or forgery in absence of any act forming necessary ingredients for constituting offence of forgery or cheating. Further, the court found that Mr. Gokul Agrawal was made accused in the capacity of the Director of the company and it was held that whatever act was done, it was done by the company namely Bharat Vanijya Eastern Private Limited, Kolkata and not by the petitioner in its individual capacity and that the question which arose before the court was as to whether the petitioner can be prosecuted on the principle of vicarious liability for commission of offence allegedly committed by the company. While answering this question, this Court held that the petitioner could not be held vicariously liable for commission of offence committed by the company and accordingly, quashed the order refusing to discharge Gokul Agrawal.
The aforesaid judgement passed in the case of Gokul Agrawal also does not help the petitioner in any manner whatsoever considering the allegations based on materials collected during investigation, some of which have been mentioned above. It appears that the petitioner has been made accused for his acts in connection with the alleged conspiracy so that the tender could be awarded in favour of M/s Classic Coal Constriction Private Limited at much higher rate and thereby causing wrongful loss to the government and wrongful gain to the other co-accused including M/s Classic Coal Constriction Private Limited.
31. So far as the case of co-accused namely Ripu Sudan Dubey, is concerned, his case also stands on different footing. He was a government servant and had entered into agreement 16 with M/s Classic Coal Constriction Private Limited in connection with two works on behalf of the government. It has been held by this court that he had no role to play in the matter of decision regarding award of contract or in connection with payment of forged bills of bitumen in connection with the work to M/s Classic Coal Constriction Private Limited. It has also been held that he was being prosecuted for the reason that, in spite of knowing that both the bidders i.e. M/s Classic Coal Constriction Private Limited and M/s Siddhartha Construction, Hazaribagh were hand in gloves in facilitating award of work in favour of M/s Classic Coal Constriction Private Limited, whose bid amount was excessive, there was no fault on his part in awarding the contract to the company on much higher rate and as such, it was held that there was no culpability on the part of Ripu Sudan Dubey. The allegations against the petitioner is totally different from that of Ripu Sudan Dubey and accordingly the judgement passed in the case of Ripu Sudan Dubey does not apply to the facts and circumstances of the case of the petitioner.
32. The learned counsel for the petitioner on the point of conspiracy has relied upon para 24 of the judgment reported in (2012) 9 SCC 512 CBI v. K. Narayana Rao which is quoted below:
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 17 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 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.
33. This Court, at this stage, finds that there is allegation against the petitioner and co-accused M/s. Classic Coal Construction Company/its Director showing an agreement to act in such a manner so that the bid could be awarded in favour of M/s Classic Coal Construction Company and it is alleged that the bid by the petitioner/firm of the petitioner was sponsored by M/s Classic Coal Construction Company Ltd./ its Director. The allegations on record are sufficient to constitute prima facie case of criminal conspiracy against the petitioner and co-accused in which the petitioner is accused of active participation. Accordingly, at this stage, the said judgement reported in (2012) 9 SCC 512 does not help the petitioner. In the said case it has been clearly held that 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 and there can be direct or even circumstantial evidence to that effect.
34. This Court is also of the considered view that at the stage of discharge only a prima facie case is required to be seen 18 considering the materials collected during investigation. Considering the allegations and materials against the petitioner, it cannot be said, as argued by the petitioner, that ex-facie no case is made out against the petitioner even if the allegations made in the charge-sheet is taken to be correct. This court is of the considered view, at this stage, that more than prima-facie case is made out against the petitioner and the learned court below has passed a well-reasoned order refusing to discharge the petitioner and has framed charges against the petitioner by the impugned orders.
35. So far as the contention of the petitioner that the competition commission under the Competition Act, 2002 has the exclusive jurisdiction in connection with the allegations made against the petitioner is concerned, this Court finds that as per the provisions of Section 62 of the Competition Act, 2002, the provision of Competition Act, 2002 are in addition to and not in derogation of the provisions of any law for the time being in force. This itself indicates that the application of the other laws, including the filing of criminal case for offence under the provisions of Indian Penal Code is not barred, if the basic ingredients of commission of offence under IPC is made out in a particular case.
36. As a cumulative effect of the aforesaid findings, there being no illegality or perversity in the impugned order refusing to discharge the petitioner or in framing charge against the petitioner, the present revision application is hereby dismissed.
37. The observations and references to the case-diary has been made by this Court with a view to consider as to whether the case of the petitioner stands on identical footing vis-à-vis the case of co-accused persons against whom the criminal proceedings have been quashed by this court. Any observation made in this judgment will not prejudice the case of either 19 parties before the learned court below and they will certainly be free to take all points, which are available to them under law, at the stage of trial.
38. Interim order, if any, stands vacated.
39. Pending interlocutory applications, if any, are dismissed as not pressed.
40. Let this order be immediately communicated to the learned court below.
(Anubha Rawat Choudhary, J.) Saurav/