Madhya Pradesh High Court
Sumeet Golwalkar vs The State Of Madhya Pradesh on 17 March, 2021
Equivalent citations: AIRONLINE 2021 MP 252
Author: Rajeev Kumar Dubey
Bench: Rajeev Kumar Dubey
1 MCRC-26178-2020
The High Court Of Madhya Pradesh
MCRC-26178-2020
(SUMEET GOLWALKAR Vs THE STATE OF MADHYA PRADESH)
Jabalpur, Dated : 17-03-2021
Shri Sankalp Kochar, learned counsel for the applicant.
Shri Rajeshwar Rao, learned G.A. for the respondent/State.
This is third application under Section 439 of the Cr.P.C. for grant of bail. Applicant Sumeet Golwalkar was arrested on 11/04/2019 in connection with Crime No.12/2019 registered at Economic Offences Wing, Bhopal (MP) for the offence punishable under Sections 120-B, 420, 467, 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.
2. The earlier bail applications filed by applicant were dismissed on merit by this Court vide orders dated 25/06/2019 & 31/10/2019 passed in M.Cr.C.Nos.19786/2019 & 40800/2019 respectively.
3. As per prosecution story, M.P. State Electronics Development Corporation Ltd. (hereinafter referred to as “MPSEDCâ€Â) is a body working under the State of M.P. Department of Science and Technology. The Department of Information Technology, Govt. of Madhya Pradesh adopted the e-Tendering System using an online platform in 2006. In the year 2012 Government of Madhya Pradesh appointed MPSEDC, as the Nodal Agency for MP e-procurement portal. MPSEDC selected M/s Tata Consultancy Services with Antares Systems Ltd. as the new Implementation Agency for end-to-end e-Procurement solutions. The agreement with TCS & Antares was signed in the year 2013. The New Service Providers undertook the Customization, Integration, Implementation and Maintenance of Single, Unitary, Web-Based e-Procurement Software (Portal) with the specified modules which also include E-Tendering. Co-accused Manohar M.N. was the Vice President of Antares Systems Ltd. and was the project in-charge on behalf of the company. Co-accused Nandkishor Brahme was posted as OSD Signature Not Verified SAN in MPSEDC from the year 2012 and was assigned the duty as Nodal Officer Digitally signed by ANURAG SONI Date: 2021.03.18 18:22:43 IST 2 MCRC-26178-2020 of E-Tendering Project. In the 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 the 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 another person could open the tender before its opening time.
4. On 11th April 2018 at the time of opening of three tenders Nos. 91, 93 & 94 floated by the Madhya Pradesh Jal Nigam Maryadit (hereinafter referred as “MPJNMâ€Â) the computer displayed a message that “the contents of the document had been modifiedâ€Â. On that service provider company, Antares Systems Ltd. was directed to submit the report after inquiry. In the first report given by the team of Antares Systems Ltd after examining the system, they mentioned that there was no irregularity and only attributed the message to technical defect. However, they also stated that further technical analysis was going on. Thereafter, on 05/05/2019 Antares Systems Ltd. again gave the Root Cause Analysis Report (R.C.A.) mentioning therein that the tenders had been tampered with. On that, the then Managing Director of MPSIDC informed MPJNM for cancelling these bids and also directed Antares Systems Ltd. to enquire all the tenders, which were floated by the various Government departments between 01/01/2018 to 30/04/2018 on E-Portal. On that, the team of employees of Antares Systems Ltd. again enquired the matter and gave the report to the effect that during the check period six other tenders i.e. tender of MP Road Development Corporation No.786, Public Works Department Tender Nos. 49813, 49982 & Signature Not Verified SAN 49985 and tender of Water Resources Department Nos. 10030 & 10044 were Digitally signed by ANURAG SONI Date: 2021.03.18 18:22:43 IST 3 MCRC-26178-2020 also manipulated similarly.
5. 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 & Sorathiya Velji Ratna Baroda were made a lower bidder, due to which companies earned illegal profits.
6. On the basis of that preliminary evidence 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.
7. 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 Vinay Choudhary and Varun Chaturvedi, the Managing Directors of OSMO and applicant Sumit Golwalkar, the Marketing Director of that company Signature Not Verified SAN Digitally signed by ANURAG SONI Date: 2021.03.18 18:22:43 IST 4 MCRC-26178-2020 entered into an agreement with Antares Ltd. in order to check the reasons why the whole system of E-tendering had slowed down and was engaged to conduct a performance test of the E-tendering system and come up with concrete steps to tackle the slow speed. During the performance test, OSMO was provided with user IDs and Bidder IDs by 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.
8. 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 Vinay Choudhary and was being used by co-accused Varun Chaturvedi. Thereafter, hackers entered into the database through the staging server, where original tenders were stored and this process was done through a virtual private network (VPN), the access of which was only with co-accused Nandkishore Bramhe. After reaching the database server hackers accessed the file where the original tenders were saved. They copied the details of all the bidders, who submitted the bids, which were encrypted. After copying the bids they again came back to the demo tender file created by them earlier and by using bidder ID number 15597 and vendor ID number QK 829 846 pasted the said bids in the 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 Signature Not Verified SAN Digitally signed by ANURAG SONI Date: 2021.03.18 18:22:43 IST 5 MCRC-26178-2020 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. After making the change in the second demo file and placing a wrong bidder L1 hackers copied the encrypted/manipulated bid value and again by using the staging server reached the database server through a VPN, access of which was given to co-accused Nandkishore Bramhe, opened the original tender file and pasted the said encrypted manipulated bid value next to the name of the bidder they wanted to benefit and thus manipulated the bids.
9. The specific allegations against the applicant Sumit Golwalkar is that digital signature certificate of Praveen Guru and Keshav Rao Uike were registered by applicant Sumeet Golwalkar, who was the Marketing Director of OSMO and the manipulation in the bids was done by using said DSC of Praveen Guru and Keshav Rao Uikey. Applicant was also partner in Shricon Multi Infra along with co-accused Vinay Choudhary and Avinash K. Choudhary (brother of Vinay Choudhary). Sarothia Velji, who was made L1 bidder by manipulating the bids, transferred money in the account of Shricon Multi Infra Developers, which shows the nexus of the applicant in the crime.
10. Learned counsel appearing on behalf of the applicant submitted that the applicant is innocent and has falsely been implicated in the offence. He further submitted that the applicant was not the Marketing Director of OSMO Company. It is alleged that co-accused Vinay Choudhary & Varun Chaturvedi in connivance with the present applicant and other co- accused persons manipulated the bids, but the present applicant is merely an employee of the company OSMO IT Solutions. It is alleged against the present applicant that he had registration authority of digital signature of the tender opening authority Mr. Praveen Kumar Guru and Keshav Rao Uikey. But the said allegation is not true. The Registration authority associate Signature Not Verified SAN Digitally signed by ANURAG SONI Date: 2021.03.18 18:22:43 IST 6 MCRC-26178-2020 agreement was executed between M/s Samadhan Technologies, Cosmo IT Solution Private Limited and E-mudra. Samadhan Technology was the registration authority while OSMO was the Registration Authority Associate and E-Mudra was the certifying authority. The digital signature of Mr. Praveen Kumar Guru and Keshav Rao Uikey were prepared by E-mudra and not by the applicant. After preparing digital signature of the officer/employee, the said signatures are handed over to the officer/employee concerned as per policy of company and that person after changing the password starts using the same. There is no evidence on record to show that said digital signature of Mr. Praveen Kumar Guru and Keshav Rao Uikey were not handed over to them. It is also alleged that some money was transferred by the Sorathiya Velji in the account of Shricon Multi Infra, in which the applicant was one of the partners, but that amount was transferred on account of work done by the company as subcontractor for Sorathiya Velji. There is no other evidence on record to connect the applicant with the crime. Police falsely implicated the applicant in the crime. There is no likelihood of his absconding or tampering with the prosecution evidence. He has been in custody since 11/04/2019 and the trial is still pending. On the strength of aforesaid submissions, it is prayed that the applicant be released on bail.
11. Learned counsel for the respondent/EOW submitted that co- accused Vinay Chaudhary and Varun Chaturvedi are the Managing directors of OSMO Private Ltd. and applicant Sumit Golwalkar is the marketing director of OSMO. He further submitted that from the evidence collected by the EOW it is revealed that the manipulation in the tenders was done by using the user ID PT4 and Bidder ID QK29846 which were provided to OSMO in the year 2016. The IP address registered while creating the said demo file was 27.60.163.98 and 27.60.185.14, which were found linked with mobile No.9755092919. The SIM of this mobile number was registered in the name co-accused Vinay Choudhary and was being used by co-accused Varun Chaturvedi. It is also revealed that digital signature certificate of Keshav Rao Signature Not Verified SAN Digitally signed by ANURAG SONI Date: 2021.03.18 18:22:43 IST 7 MCRC-26178-2020 Uike and Praveen Guru were registered by applicant Sumeet Golwalkar, who was the Marketing Director of OSMO and was also a partner in Shricon Multi Infra along with co-accused Vinay Choudhary and Avinash K. Choudhary (brother of Vinay Choudhary). Sarothia Velji, who was made L1 bidder by manipulating the bids, transferred money in the account of Shricon Multi Infra Developers, which shows the nexus of the applicant in the crime. He further submitted that there are transactions between Shricon Multi Infra Developers and Milestone Builders belonging to Manish Khare, who is also an accused in the present case. From the memorandum of Manish Khare recorded by the police under Section 27 of the Cr.P.C. It is revealed that Sarothia Velji gave money to him regarding manipulation in the bids and he transferred that amount in the account of Shricon Multi Infra. It is further revealed that money was also deposited in the account of Avinash Enterprises belonging to Avinash Choudhary, the brother of co-accused Vinay Choudhary. The amount was also deposited by Sorathia Velji and Mantena Infra. The said companies are also accused in the present crime and have benefited by the bid manipulation. The earlier two bail applicants filed by the applicant were dismissed on merit and thereafter there is no change in circumstance, except custody period of the applicant. So the applicant should not be released on bail.
12. The earlier bail applications filed by applicant were dismissed on merit by this Court vide orders dated 25/06/2019 & 31/10/2019 passed in M.Cr.C.Nos.19786/2019 & 40800/2019 respectively and thereafter there is no change in circumstance except custody period of the applicant. Hon'ble Apex Court in the case of Rajesh Ranjan Yadav alias Pappu Yadav v. CBI Through its Director, (2007) 1 SCC 70 held that bail, cannot be granted solely on the ground of long incarnation in jail and inability of accused to conduct the defence. Apex Court in the case of State of M.P. v. Kajad, (2001) 7 SCC 673 observed "It is true that successive bail applications are permissible under the changed circumstances. But without the change in the Signature Not Verified SAN Digitally signed by ANURAG SONI Date: 2021.03.18 18:22:43 IST 8 MCRC-26178-2020 circumstances, the second application would be deemed to be seeking review of the earlier judgment which is not permissible under criminal law as has been held by this Court in Hari Singh Mann v. Harbhajan Singh Bajwa [(2001) 1 SCC 169 : 2001 SCC (Cri) 113] and various other judgments."
13. In the instant case, prima facie it is revealed that Online bidding processes were rigged to favour a few private players. E- Procurement portal was tampered in nine tendering processes to provide benefits to five private companies, which were based in Hyderabad, Mumbai, Baroda and Bhopal. They include GVPR Ltd, Max Mantena Ltd, The Hume Pipe Ltd, JMC Ltd and Sorthiya Belji Pvt Ltd. The allegation against the applicant is that the digital signature certificate of Praveen Guru and Keshav Rao Uike were registered by applicant Sumeet Golwalkar, who was the Employee of OSMO and the manipulation in the bids was done by using DSC of Praveen Guru and Keshav Rao Uikey. Applicant was also partner in Shricon Multi Infra along with co-accused Vinay Choudhary and Avinash K. Choudhary (brother of Vinay Choudhary). Sarothia Velji, who was made L1 bidder by manipulating the bids, transferred money in the account of Shricon Multi Infra Developers, which prima facie shows the nexus of applicant in the crime. Such scams will not only send a wrong message to the society but also affect the credibility of the Government authorities. It has also shaken the confidence of the general public in the functioning of the Government and gave the impression that everything is possible by manipulation. So such acts should be dealt with severely. It is alleged that applicant is one of the main accused person of the crime who committed manipulation in the bids and gained a huge amount of money from the firm which they made the lowest bidder by manipulation.
14. So looking to the seriousness of the crime and the contention of the learned counsel of the EOW, this Court is not inclined to grant bail to the applicant.
15. Hence, the application is hereby dismissed.
Signature Not Verified SAN Digitally signed by ANURAG SONI Date: 2021.03.18 18:22:43 IST9 MCRC-26178-2020 (RAJEEV KUMAR DUBEY) JUDGE as Signature Not Verified SAN Digitally signed by ANURAG SONI Date: 2021.03.18 18:22:43 IST