Jharkhand High Court
Ramashish Yadav vs The State Of Jharkhand on 16 September, 2019
Author: Anant Bijay Singh
Bench: Anant Bijay Singh
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No.407 of 2019
Ramashish Yadav, aged about 77 years, son of Late Jhari Yadav; resident of B-155,
Medhuri Colony, Teliyarganj, PO- Teliyarganj, PS- Shivkuti, District - Allahabad
(Uttar Pradesh)-211004
... ... ... ... Petitioner
Versus
The State of Jharkhand, through Vigilance (A.C.B.) ... ... Opp. Party
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CORAM: HON'BLE MR. JUSTICE ANANT BIJAY SINGH
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For the Petitioner: M/s. Indrajit Sinha, Manoj Kumar Sah, Amarjeet Prasad,
Advocates
For the State: M/s. T.N. Verma, Spl. P.P.
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Reserved on: 08.08.2019 Pronounced on: 16.09.2019
1) This Criminal Revision application has been filed on behalf of the
petitioner against the order dated 01.03.2019 passed by the learned Special Judge, A.C.B., Chaibasa in Misc. Criminal Application No.360 of 2018, whereby he has rejected the discharge petition dated 19.12.2018 filed by the petitioner in connection with Vigilance Case No.37 of 2017 and held that there is sufficient material available on record for framing charge against the accused persons under Sections 420, 467, 468, 469, 471, 409, 201, 109, 120-B of the Indian Penal Code and Sections 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 and further fixed the case on 15.03.2019 for framing of charge.
2) Facts, giving rise to filing of instant Criminal Revision application, are that:-
(i) Government of India provided fund in the year 1995 to the Regional Institute of Technology, Jamshedpur for establishment of higher class computer centre. Prof. Laxmi Rai, the then Principal of R.I.T., Jamshedpur constituted a Purchase Committee under his Chairmanship for purchasing the computers. Tender was invited from the reputed computer suppliers and after consideration, M/s Micro-Inn, Patna was ordered to supply 60 Computers without disk and 15 Computers with disc total worth Rs.4,33,65,000/- and also ordered to M/s Advance Computer Industries, New Delhi to supply two Multimedia Computers, Network file, Server-2, 20 Notebook Computer Pentium-2, Sun-Spark Station-4, Unix Server-2, Note Book Computer-2 and Software total worth of Rs.63,85,756/-.2
(ii) In the light of the above orders, computers were supplied in May, 1996 in the Institute by M/s Micro Inn, Patna, but the computers were not inspected by the Expert.
(iii) After supply of the computers, there was no LAN (Local Area Networking) in the Institute, therefore, the computers were kept in the Store Room.
(iv) After supply of the computers, total amount of Rs.43,36,500/- was paid to M/s Micro Inn, Patna vide bill ED-2019 dated 15.02.1996.
(v) Similarly, the purchase order was given to M/s Advanced Computer Resources, New Delhi. The value of total purchase order worth Rs.150.00 Lakhs was given to these two suppliers as per the F.I.R.
(vi) It is further alleged that when the aforesaid computers and software were inspected by the Professor-in-Charge Sri S.P. Singh, it came to light that the computers were of below standard; M/s Micro Inn, Patna, neither deputed its engineer in the Institute nor maintained the computers during warranty period.
(vii) Further case of the prosecution is that M/s Advance Computer Resources, New Delhi supplied the Computers up till March, 1997 with delay. By that time, the price of computers became very low in the market, as a result of which supplier got much profit and the Institute sustained loss of huge amount worth Rs.16,89,630/- and the Institute was also deprived from the use of those computers.
(viii) The Engineers of the Institute did not inspect the computers at the time of supply by the firm nor did the Firm depute its Engineer to maintain the computers during warranty period nor did the Firm provide free training to train the staffs of the Institute, resultantly, the Institute sustained loss worth Rs.7,37,289/-. The total loss in the form of excess payment was estimated by Prof. S.P. Singh at Rs.14,88,280/-.
(ix) Further, the legal opinion was obtained and it was decided to take action against the supplier firm M/s. Micro Inn, Patna and M/s.
Advanced Computer Resources, New Delhi. After that, F.I.R. has been registered against several persons including the petitioner for the offence punishable under Sections 420, 467, 468, 471, 409, 201, 109, 120-B of the Indian Penal Code and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988.
3) Learned counsel for the petitioner, assailing the impugned order, submitted that prior to joining of the petitioner in the aforesaid Institute, following 3 persons had worked as Principal in the aforesaid Institute: -
(i) Prof. Laxmi Rai, from 05.07.1995 to 25.01.1997; (ii) Prof. S.R. Prasad, from 26.01.1997 to 31.05.1998;
(iii) Prof. Anant Prasad, from 01.06.1998 to 04.08.1998; and
(iv) Prof. S.N. Sinha, from 05.08.1998 to 14.07.1999, It is further submitted that on the basis of a deep-rooted conspiracy at the behest of certain persons not having cordial relationship with the petitioner, the instant case has been instituted, as after bifurcation of the State of Bihar, several persons wanted to become Principal.
It is further submitted that the first charge against the petitioner is that no efforts were made to install and update the computers purchased in the year 1995-96 and instead purchased new computers worth Rs.120.00 Lakhs in connivance with the Registrar Sri S.A. Hussain. Had these computers of 1995-96 been installed, updated and used, there could have been no need of purchasing new computers in 1999-2000. Such charge is wholly baseless, without evidence, without any expert's opinion and due to lack of awareness about requirement of computers in Engineering Institute and useful life of the Computers for scientific works. This besides, no earmarked fund was made available for updating such old computers and Rs.120.00 Lakhs was made available by the Government of India only for purchasing new and latest Computers.
If the petitioner had diverted such fund to upgrade old computers, such act would have come under the financial irregularities. It is submitted that any effort to upgrade old computers would have been wastages of fund and the petitioner also got information that after purchase of new computers in 1999-2000 by the petitioner and after expiry of its useful life of three years, again 260 nos. of new computers were purchased by the Institute in 2003-04.
Further it is submitted by the counsel for the petitioner that the Investigating Officer during investigation indicated that the old computers purchased in 1995-96 under the regime of then Principal Prof. Laxmi Rai were of 486 Version in which there were 35 computers with disk, 20 Notebook Computers and 60 were Diskless Computers without networking facility. The diskless computers numbering 60 cannot function without networking facility and there was no network facility made available at the time of purchase of computers in 1995-96 and hence, these became useless since the time of purchase. It is further submitted that these 486 version computers became obsolete in the year 1998 itself and newer 4 version of Computer namely Pentium-I, Pentium-II and then in 1999 Pentium-III were launched in the market.
Counsel for the petitioner further submits that the guidelines issued by Ministry of Corporate Affairs also suggest that useful life of a Computer is only for three years. The outdated old computers 486 version could not have been updated and there was no earmarked fund for this purpose. The expenditure incurred in this would have been a complete wastage of Government money and the petitioner would have been charged for wastage of the fund. This besides, the Computer Science Department never sent any requisition to update those old computers as they being experts in that field knew the reality better.
It is further submitted that there was an urgent need for purchase of latest Pentium-III Computers, servers, UPS and LAN facility as per norms of All-India Council for Technical Education (AICTE) to provide quality education to boost the placement and improve brand name of Institute.
It is further stated that about 80% placement was in IT Sector and students and teachers were getting deprived of working on latest computers. Hence, 280 nos. of Computers were needed for B.Tech Students, 20 Computers were needed for M.Tech students and 45 Computers were needed for MCA Students. So the total Computers needed for those students were 345 Computers, leaving aside computers needed for offices, library and teachers. Even in 2004 the Institute purchased only 260 Pentium-IV computers in view of the rules/guidelines.
It is also submitted that since the fund had been made available by MHRD-GOI for purchase of new Computers before joining of the petitioner on 15.07.1999, so the purchase of 110 nos. of IBM Pentium- III Computers, Servers was processed by the petitioner. The Computers were directly imported from Singapore and UPS, LAN and Software were procured from India after adopting proper procedure and were installed in the newly built Computer Centre which was inaugurated on 18.05.2000 by Hon'ble Minister of Technical Education Sri Chandrika Rai.
4) Counter affidavit has been filed by Anti-Corruption Bureau (ACB) on 13.05.2019 stating therein that Government of India provided fund to R.I.T., Jamshedpur for establishment of higher class Computer Centre in 1995. Prof. Laxmi Rai, the then Principal of R.I.T., Jamshedpur, constituted a Purchase Committee under his Chairmanship for purchasing Computers. Tender was invited from the computer suppliers and after consideration, 5 M/s Micro-Inn, Patna was ordered to supply 60 computers without disc and 15 computers with dick, total worth Rs.43,36,500/- and M/s Advance Computers, New Delhi was also ordered to supply 02 Multimedia Computer, Network File, Server-2, 20 Note Book Computer Pentium-2, Sunspark Satiation-4, Unix Server-2, Not Book Computer-20 and Software, total worth Rs.63,85,765/-. In light of the aforesaid orders, computers were supplied in May, 1996 in the Institute by M/s Micro-Inn, Patna, but the computers were not inspected by the Experts. After supply of the computers, there was no LAN in the Institute, therefore, computers were kept in the Store Room. After the supply, an amount of Rs.43,36,500/- was paid to M/s Micro-Inn, Patna by Bill Ed-2019 dated 15.02.1996. Similarly, purchase order for Computers worth Rs.63,85,765/- was given to M/s ACR, New Delhi. The aforesaid Computers and Software were inspected by the Professor Incharge Sri S.P. Singh, whereupon it came into light that the computers were of below standard. Besides this, M/s Micro Inn, Patna, neither deputed its engineer in the Institute nor maintained the computers during warranty period. Further case of the prosecution is that M/s Advance Computer Resources, New Delhi supplied the Computers up till March, 1997 with delay. At that time, the price of computers became very low in the market, as a result of which supplier got much profit and the Institute sustained loss of huge amount worth Rs.16,89,630/- and was also deprived from the use of computers. Besides this, Engineers of the Institute did not inspect the computers at the time of supply by the firm. The firm did not depute the Engineer to maintain the computers during warranty period and did not provide free training to train the staffs of the Institute. As a result, the Institute sustained loss worth Rs.7,37,289/-. Further, a legal opinion was obtained and it was decided to take action against the suppliers M/s Micro Inn, Patna and M/s. Advanced Computer Resources, New Delhi. In the light of the said decision, the then Principal Sri S.N. Sinha directed the Acting Registrar Sri M.K. Agarwal for adjustment of all the bills and preparing the details of accounts immediately. In the meantime, on 16.06.1999 Sri S.A. Hussain, another co-accused of this case, joined as Registrar in the Institute and under the conspiracy, he opened a part file in the place of original computer purchasing register to delay the proceedings against the firms. The petitioner joined on 15.07.1999 as Principal in R.I.T., Jamshedpur. He along with S.A. Hussain did not take legal action deliberately to obtain back the excess amount paid to the suppliers and they also did not try to install earlier purchased computers and software. In the 6 meantime, Government of India further provided Rs.80.00 Lacs for purchase of computer to the Institute. Thereafter, the accused petitioner with connivance of the then Registrar S.A. Hussain purchased computers, software and UPS worth Rs.One Crore Twenty Lacs. If the earlier purchased computers and software had been updated and utilized by the accused petitioner and the Registrar, then there was no further need to purchase computers worth Rs.1.20 Crore. On the basis of the aforesaid written complaint, ACB (Vigilance) P.S. Case No.37 of 2017 was registered under Sections 420, 467, 468, 471, 409, 201, 109, 120-B of the Indian Penal Code and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 against the accused persons including the petitioner. After completion of investigation, charge-sheet was submitted against the petitioner, on the basis of which cognizance was taken.
It is also stated in the counter affidavit that the accused petitioner being Principal of R.I.T. had not taken any legal action against M/s Micro Inn, Patna and M/s Advance Computer Resources, New Delhi for returning the excess amount paid to them by his predecessor Principal Laxmi Rai, thus facilitated wrongful gains to the firms. The petitioner also did not get the computers updated and used and he purchased computers worth Rs.1.20 Crores in connivance with the other co-accused and thereby caused huge loss to the Public exchequer. As such, there is ample material to frame charge against the petitioner and the instant application is fit to be dismissed.
5) In reply to the counter affidavit, an affidavit has been filed on behalf of the petitioner stating therein that the document with respect to excess payment made by his predecessor Sri Laxmi Rai was never brought before the petitioner and only after institution of the F.I.R., the petitioner came to know that the then Principal Sri S.N. Sinha has ordered to file Money Suit against the said firms and for this after seeking required legal opinion on 19.03.1999, he ordered for filing of Money Suit to the then Registrar Dr. M.K. Agarwal. Dr. M.K. Agarwal engaged Sri Manoranjan Das, Advocate to file Money Suit on 02.07.1999. After that, Sri Manoranjan Das, Advocate demanded financial details. Thereafter, the then Principal Prof. S.N. Sinha wrote letter to the then Registrar Sri S.A. Hussain to furnish financial details to Sri Manoranjan Das, Advocate on 09.07.1999 with a remark, "Immediately and No Delay". This particular order of then Principal was not executed by the concerned officials till joining of the petitioner i.e. on 15.07.1999 and the then Principal Prof. S.N. Sinha, in his 7 11 months' tenure and after about 04 months of legal opinion, could not get the Money Suit filed. The part file was opened by the order of the Registrar Sri S.A. Hussain on 28.08.1999 and not by the petitioner. This fact also appears in running page no.74 of the F.I.R. It is further submitted that there was no need to open part file on 28.08.1999, which was placed before the petitioner (after 10 months of the joining of the petitioner) without mentioning any word of excess payment. Legal opinion and the order of previous Principal Sri S.N. Sinha with respect to filing of Money Suit immediately and handing over financial details to the Advocate had happened before joining of the petitioner, so the petitioner was unaware about recovery of the excess payment. The part file produced before the petitioner was having the note of Sri R.R. Suman, Prof. I/c Computer Lab, about explanation and observation of account and suggestions given by the Ex. Prof. Incharge of Computer Centre and the petitioner made a noting based on the noting of Sri R.R. Suman, Prof. I/c, Computer Centre.
6) Counsel for the petitioner has also relied upon the judgment of Hon'ble Supreme Court rendered in the case of State of Madhya Pradesh v. Sheetla Sahai and others reported in (2009) 8 SCC 617 as under: -
"35. Section 13 of the Act provides for criminal misconduct by a public servant. Such an offence of criminal misconduct by a public servant can be said to have been committed if in terms of Sections 13(1)(d)(ii)-(iii) a public servant abuses its position and obtains for himself or for any other person any valuable thing or pecuniary advantage; or while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest. Sub-section (2) of Section 13 provides that any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.
36. Criminal conspiracy has been defined in Section 120-A of the Penal Code, 1860 to mean:
"120-A. Definition of criminal conspiracy.--When two or more persons agree to do, or cause to be done,--
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such 8 agreement in pursuance thereof.
Explanation.--It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."
Section 120-B of the Penal Code provides for punishment for criminal conspiracy.
37. Criminal conspiracy is an independent offence. It is punishable separately. Prosecution, therefore, for the purpose of bringing the charge of criminal conspiracy read with the aforementioned provisions of the Prevention of Corruption Act was required to establish the offence by applying the same legal principles which are otherwise applicable for the purpose of bringing a criminal misconduct on the part of an accused.
38. A criminal conspiracy must be put to action inasmuch as so long a crime is generated in the mind of an accused, it does not become punishable. What is necessary is not thoughts, which may even be criminal in character, often involuntary, but offence would be said to have been committed thereunder only when that take concrete shape of an agreement to do or cause to be done an illegal act or an act which although not illegal by illegal means and then if nothing further is done the agreement would give rise to a criminal conspiracy. Its ingredients are:
(i) an agreement between two or more persons;
(ii) an agreement must relate to doing or causing to be done either
(a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means.
39. What is, therefore, necessary is to show meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means. While saying so, we are not oblivious of the fact that often conspiracy is hatched in secrecy and for proving the said offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence.
47. Even under the Act, an offence cannot be said to have been committed only because the public servant has obtained either for himself or for any other person any pecuniary advantage. He must do so by abusing his position as a public servant or holding office as a public servant. In the latter category of cases, absence of any public interest is a sine qua non. The materials brought on record do not suggest in any manner whatsoever that Respondents 1 to 7 either had abused their position or had obtained pecuniary advantage for Respondents 8, 9 and 10, which was without any public interest."
7) Counsel for the petitioner further submitted that the learned Special Judge, 9 while rejecting the discharge petition being Misc. Cr. Application No.360 of 2018 vide order dated 01.03.2019, has failed to take into consideration that admittedly the Computers were not purchased during the tenure of the petitioner, rather the same were purchased during the tenure of Prof. Laxmi Rai and the fact with respect to excess payment came to the notice of the petitioner after institution of the F.I.R. Even the steps for filing Money Suit was taken by his predecessor Sri S.N. Sinha and these facts were never brought before the petitioner. Hence, in view of the aforesaid judgment of the Hon'ble Supreme Court, the instant prosecution against the petitioner cannot be sustained in the eyes of law.
8) In view of the discussions made above, I am of the considered view that the matters with respect to excess payment and filing of Money Suit had occurred prior to joining of the petitioner to the post of Principal of the Institute and these facts were never brought to his knowledge. Such grounds have not been considered by the learned Court below in its true perspective while rejecting the discharge petition dated 19.12.2018. This besides, no earmarked fund was made available for updating such old computers and the fund was made available by the Government of India for purchasing new and latest Computers only. It has also been submitted by the learned counsel for the petitioner that useful life of such computers was only for about three years and even after purchasing of computers in 1999- 2000, again in 2003-04, 260 nos. of new computers was purchased by the successor of the petitioner.
9) Taking note of these facts, I am of the considered view that the learned Special Judge has exceeded his jurisdiction and has failed to exercise it in accordance with law and, therefore, the impugned order 01.03.2019 passed by the learned Special Judge, A.C.B., Chaibasa in Misc. Criminal Application No.360 of 2018 is set aside. The Court below is directed to hear the matter afresh and pass a fresh order on the petition dated 19.12.2018, within a period of 12 weeks from the date of receipt/production of a copy of this order.
10) With the aforesaid observations and directions, this Criminal Revision application stands disposed of.
Manoj/ (Anant Bijay Singh, J)