Manohar M.N. vs The State Of Madhya Pradesh on 5 September, 2019

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Madhya Pradesh High Court

Manohar M.N. vs The State Of Madhya Pradesh on 5 September, 2019

Equivalent citations: AIRONLINE 2019 MP 963

This is second application filed under section 439 Cr.P.C. Applicant Manohar M.N. was arrested on 02.05.2019 in Crime No. 12/2019 registered at Police Station Economic Offences Wing (EOW) Bhopal, District Bhopal for the offence punishable under Section 120-B, 420, 467, 468, 471 of the IPC, Section 66 of the Information Technology Act, 2000, Section 7 read with Section 13(2) of the Prevention of Corruption Act and also under Section 34(a) of the M.P. Excise Act, 1915.

The first bail application of the applicant has been dismissed on merits vide order dated 25.06.2019 passed in M.Cr.C. No. 23179/2019.

2. As per prosecution story, 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 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. Applicant 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 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.35958/2019 (Manohar M.N. Vs. State of M.P through EOW.) 2 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 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.

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.35958/2019 (Manohar M.N. Vs. State of M.P through EOW.) 3 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. 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.

5. 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.

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.35958/2019 (Manohar M.N. Vs. State of M.P through EOW.) 4

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 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 Etendering 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 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 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.35958/2019 (Manohar M.N. Vs. State of M.P through EOW.) 5 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 (L-1). After making the change in the second demo file and placing a wrong bidder L-1 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. Learned counsel of the applicant submitted that the applicant is nowhere involved in that scam. He is the Assistant vice President of the ASL Company. ASL is a company specializing in software management particularly pertaining to the public e-procurement, since the year 1997 and ever since has been working to the satisfaction of the Government Agencies throughout the Country. ASL has continuously been providing the software e-procurement services to the State of Punjab, Goa and certain other States. The applicant has been successfully working as a marketing personnel targeting business development in ASL since the year 2004. It is further submitted that TCS alongwith ASL had participated in the bid THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.35958/2019 (Manohar M.N. Vs. State of M.P through EOW.) 6 and looking to the reputation of the companies and other relevant factors. TCS along with ASL were successful bidders and accordingly a Tri- Party agreement was executed between MPSEDC, ASL and TCS. It is further submitted that they had a pre-defined duty in their respective expertise in managing the aforesaid e- procurement portal. Accordingly, the security of the portal entirely rested with MPSEDC. In this regard applicant is also filed the copy of said Tri-Party agreement. Learned counsel of the applicant further submitted that the allegations against the present applicant is that Antares Ltd was allegedly entrusted with the security of the portal. During the process of performance test, OSMO was provided with user IDs and bidder IDs by the Antares Ltd. The bids were altered by using that user IDs and bidder IDs. However, from the material available on record it is clearly manifested that the duty of the security squarely belongs to the MPSEDC. The bids were altered at the user ID level, which had nothing to do with the operations of the software functions, which was being performed by ASL. The applicant has falsely been implicated in the crime. The applicant is a reputed citizen of the locality and there is no likelihood of his absconding or tampering with the prosecution evidence. He is in custody since 02/05/2019 and conclusion of trial will take time. On the strength of aforesaid submissions it is prayed that the applicant be released on bail.

9. On the other hand, learned counsel for the respondent/EOW opposed the prayer and submitted that the whole responsibility of security of e-procurement portal was with the applicant Manohar M.N. since he was the head of Antares in respect of e-procurement portal at Bhopal. In the latter produced by Suresh Kumar CEO of Antares this fact is mentioned. Applicant Manohar M.N. was hand and gloves with all the co-accused persons and just to benefit them came with the first report dated 17/04/2018 that there was no tempering in the bids. Even prior to that Antares also sent an Email THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.35958/2019 (Manohar M.N. Vs. State of M.P through EOW.) 7 on 11/04/2018 mentioning that no irregularity was found. Later, when the said tempering came to the knowledge of higher officials second finding report was given accepting that the tempering had happened in the whole tendering process, which shows that he was also involved in the conspiracy. No manipulation could have taken place without the knowledge of applicant Manohar M.N. The demo files which were used in the manipulation in the bids were created and made available to OSMO by the applicant Manohar M.N. and by using the bidder ID, bids were changed and manipulated. On the request of co-accused Nandkishore Brahme VPN Access was given to him, which was also used by the Antares from his Bangalore office for maintenance of the eprocurement portal. That VPN was used in the tender manipulation. In the report of CERT it is mentioned that the Staging server had access to the main database, which should ideally not be the case. By assessing the database through the staging server, data had been read from genuine tenders and copied to blank tenders name Demo. The said faulty process was created by applicant Manohar M.N. so that the other co-accused persons could access the main database seamlessly and manipulation could be done. This clearly shows that applicant Manohar M.N. was involved in the conspiracy. The investigation is still going on, so he should not be released on bail.

10. Although earlier bail application of the applicant was rejected on merit by this Court vide order dated 25.06.2019 passed in M.Cr.C. No. 23179/2019 but at that time investigation was going on, so this Court rejected applicant's bail application observing that, at this stage, this Court is not inclined to grant bail to the applicant. Now investigation is over and charge sheet has been filed. Applicant Manohar M.N. was the Vice President of Antraes Systems Ltd and was the project in-charge of e- Procurement Softwar (Portal) on behalf of the company. It is alleged that the demo files which were used in the manipulation in the bids were created and made available THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.35958/2019 (Manohar M.N. Vs. State of M.P through EOW.) 8 to OSMO Pvt. Ltd. by the applicant Manohar M.N. But according to prosecution story said demo files were made available to OSMO Pvt. Ltd. by the applicant to conduct a performance test in the year 2016 while manipulation took place in the year 2018. There is no direct evidence on record to show that applicant has any connection with co-accused Varun Chaturvedi and Vinay Choudhary, the Managing Directors of OSMO Pvt. Ltd and Sumit Golwalkar, the Marketing Director of OSMO Pvt. Ltd. No unaccountable property or tainted money was seized by the Police from the possession of the applicant. Similarly, no other incriminating document was seized by the police from the possession of the applicant. There is no likelihood of him absconding or tampering with the prosecution evidence. The Charge- sheet has been filed, the applicant is in custody since 02.05.2019 and conclusion of the trial will take time, so without commenting on the merits of the case, the application is allowed and it is directed that the applicant be released on bail upon his furnishing personal bond in the sum of Rs.50,000/- (Rs. Fifty Thousand Only) with one surety in the like amount to the satisfaction of the concerned C.J.M/trial 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 investigation/trial, as the case may be;

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 dissuade him 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 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.35958/2019 (Manohar M.N. Vs. State of M.P through EOW.) 9

6. The applicant will not leave India without prior permission of the trial Court/Investigating Officer, as the case may be.

C.C. on payment of usual charges.



                                                          (Rajeev Kumar Dubey)
sarathe                                                           Judge




          Digitally signed
          by NAVEEN
          KUMAR
          SARATHE
          Date: 2019.09.05
          17:30:01 +05'30'

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