Punjab-Haryana High Court
Puneet Jindal And Another vs State (Cbi) on 20 February, 2014
Author: Ritu Bahri
Bench: Ritu Bahri
Crl. Misc. No. M-4571 of 2012 (O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
Crl. Misc. No. M-4571 of 2012 (O&M)
Date of decision : 20.02.2014
Puneet Jindal and another
......Petitioners
versus
State (CBI)
...Respondent
CORAM: HON'BLE MS. JUSTICE RITU BAHRI
Present: Mr. Akshay Bhan, Advocate,
for the petitioners.
Mr. S.S. Sandhu, Advocate,
for CBI.
****
RITU BAHRI , J.
This petition under Section 482 Cr.P.C is for quashing of FIR No.12 dated 29.03.2006, under Sections 420, 467, 468, 471 IPC, registered at Police Station, CBI, Chandigarh and orders dated 25.05.2011 and 17.11.2011 (Annexures P-9 and P-10), passed by the Chief Judicial Magistrate, Chandigarh.
The allegations levelled in the FIR are that during the years 2003-04 and 2004-05, M/s Himalayan Advertising Agency, Chandigarh, was the sole agency for displaying advertisements on PEPSU Roadways Buses. During the period 2003 to 2005, Sh. C.S. Binji, AGM Marketing BSNL, Punjab, Chandigarh, entered into a criminal conspiracy with M/s Himalayan Advertising Agency, SCO 188-190, 3rd Floor, Sector 34-A, Chandigarh and some other officials of BSNL Department and prepared Prasher Ajay 2014.03.01 13:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Misc. No. M-4571 of 2012 (O&M) 2 forged and fake documents and by using the same, cheated the BSNL to the tune of Rs.27,80,556/- by dishonestly awarding work of display of various schemes of BSNL on the buses of PEPSU Roadways. M/s Himalayan Advertising Agency submitted a letter No.13921 dated 22.10.2003, which was purportedly issued by the Chief Auto Mobile Engineer-Technical-cum- Advise of PEPSU Road Transport Corporation, Patiala, to Sh. C.S. Binji, mentioning therein that the rates of displaying advertisement on the buses of PEPSU Roadways had been enhanced by 156%. Sh. C.S. Binji, AGM, Marketing, BSNL. Punjab, Chandigarh, dishonestly prepared two letters dated 22.10.2003. One letter bearing No. Mkt/Adv./Buses. PEPSU/03- 04/04 dated 22.10.2003 was forwarded by him to the Chief Auto Mobile Engineer, Technical-cum-Adviser of PRTC, Patiala, to confirm the enhanced rates of displays in advertisement on the buses of PEPSU Road Transport by 56%, whereas another letter dated 22.10.2003 was intentionally kept by him in record, in which the confirmation of enhancement of rates by 156% was shown, sought from above mentioned authority of PRTC, Patiala.
Letter bearing No. Mkt/Adv./Buses/PEPSU/03-04 dated 22.10.2003 was received in the office of Chief Auto Mobile Engineer, PEPSU, Patiala and confirmation was sought for enhancement of advertising rates by 56% only, which was duly confirmed by the Chief Auto Mobile Engineer, Technical-cum-Adviser, PRTC, Patiala, vide letter No.14071 dated 21.10.2003 to AGM Marketing, BSNL, Chandigarh. In the original letter No. 13921 dated 22.10.2003, issued by the Chief Auto Mobile Engineer-Technical-cum-Adviser of Pepsu Road Transport Corporation, Patiala, to M/s Himalayan Advertising Agency, the Prasher Ajay 2014.03.01 13:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Misc. No. M-4571 of 2012 (O&M) 3 enhancement of rates of displaying advertisement on PEPSU Road Transport Corporation buses was mentioned as 56%. M/s Himalayan Advertising Agency, in criminal conspiracy with Sh. C.S. Binji, the then AGM (Marketing), BSNL, Chandigarh, by making forgery in the said letter, inserted figure '1' before 56% and made it 156% to obtain 156% enhance rates, instead of 56%, on the basis of which, the said agency received the payments. Bills of the said agency were processed and recommended by Sh. C.S. Binji, AGM (Marketing) BSNL, Chandigarh. Due to the above said act of Mr. C.S. Binji and M/s Himalayan Advertising Agency and others, a loss of Rs.27,80,556/- was caused to the BSNL.
Puneet Jindal-petitioner No.1 is the sole proprietor of M/s Himalayan Advertising Agency and Bhagwan Jindal-petitioner No.2, who is the proprietor of M/s Ad Global at Chandigarh, was authorized signatory of M/s Himalayan Advertising.
After registration of the FIR, the CBI took investigation and found that allegation against co-accused C.S. Binji could not substantiated and ultimately, challan (Annexure P-5) was was presented only against the petitioners. Thereafter, vide order dated 17.02.2010 (Annexure P-7), charges were framed against the petitioners, against which, the petitioners filed a revision petition. The Additional Sessions/Special Judge, CBI Court, Chandigarh, vide order dated 28.08.2010 (Annexure P-8) set aside the order of framing of charges and directed the trial Court to pass a fresh order in accordance with law. Thereafter, vide order dated 17.11.2011 (Annexure P-
10), charges were framed against the petitioners.
The case of the petitioners is that as per the agreement (Annexure P-1), M/s Himalayan Advertising Agency was having sole rights Prasher Ajay 2014.03.01 13:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Misc. No. M-4571 of 2012 (O&M) 4 of display of advertisement on the PRTC buses for the period of 15.09.2003 to 14.09.2006. Thereafter, on 19.09.2003, a notice was published by BSNL, Sector 34, Chandigarh (Annexure P-2), inviting rates from empanelled advertising agencies. In response to the said notice, four interested companies i.e. M/s Rashtriya Advertising Agency, Chandigarh, M/s Airads Ltd., Chandigarh, M/s Crayons Advertising Ltd., Chandigarh and M/s Himalayan Advertising, Chandigarh, applied for the same. The tender opening committee of BSNL opened the tender on 25.09.2003 and adjudged the rates offered by M/s Himalayan Advertising, Chandigarh as lowest. Thereafter, an Empowered Committee of BSNL, comprising of Shri A.K. Sanghi, GM (Marketing & Commercial), Shri K.K. Chopra, the then DGM (Marketing & Commercial), Shri R.A. Manuj, DGM (IA) and Shri S.K. Chopra, DGM (BBS), was constituted to evaluate the rates offered. The said committee negotiated with M/s Himalayan Advertising, Chandigarh and it agreed to lower the rates. As per the minutes of the Empowered Committee (Annexure P-3), the rates of M/s Himalayan Advertising Agency were although on the lowest side, yet the same appeared to be on higher side as compared to the rates of similar bus panels of Punjab Roadways. Reference was made to letter No.13921 dated 22.10.2003, issued by the Chief Automobile Engineer-cum-Technical Advisor, PRTC, Patiala. Thereafter, the Empowered Committee desired to verify the authenticity of the said letter. Accordingly, a letter was written to PRTC, Patiala, by AGM (Marketing) on 23.10.2003. Vide letter No.14074 dated 24.10.2003, the concerned authority confirmed the contends of letter dated 22.10.2003. The Committee eventually came to a conclusion that keeping in view the increase in tendered rates over a period of three years in Punjab Roadways Prasher Ajay 2014.03.01 13:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Misc. No. M-4571 of 2012 (O&M) 5 and PEPSU Roadways, it accepted the negotiated rates of M/s Himalayan Advertising Agency for 300 buse panels of each type and the monthly rent of which, would be Rs.3,33,720/- and painting charges would be Rs.85,860/-. The Empowered Committee recommended for advertisement on bus panels for a period of six months, for which expenditure of Rs.20,02,320/- was involved.
Learned counsel for the petitioners contends that since the rates of the Himalayan Advertising Agency were lowest at the time of opening of the tender, after further negotiation, the tender was given with due application of mind. There was no question of any fraud or forgery, which was committed in getting the said contract. Hence, the essential ingredients of cheating and forgery are not made out.
Mr. Bhan has further argued that the petitioner was the lowest tenderer and after negotiation, the rates were further lowered. At the time of grant of contract, these negotiated rates were compared with the buses of Punjab Roadways and they were found to be lower than those rates. Hence, the contract has been awarded after comparing the negotiated rates with those of Punjab Roadways and PEPSU Roadways. He further argued that at the time of grant of the contract, the Punjab Roadways and PEPSU Roadways rates were higher than the negotiated rates, as offered by the petitioner-firm. These rates were three years old and thereafter, the Committee had recommended to accept the negotiated rates of M/s Himalayan Advertising Agency, Chandigarh. Hence, the rates of Punjab Roadways and PEPSU Roadways were made basis of grant of contract to the petitioner-firm. The letter dated 22.10.2003, where it is alleged that the enhanced rates were quoted by 156%, as compared to 56%, was not made Prasher Ajay 2014.03.01 13:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Misc. No. M-4571 of 2012 (O&M) 6 basis for grant of the contract to petitioner No.1. This letter was part of the record, but was not acted upon. Therefore, there was neither any gain to the petitioner(s) nor any loss caused to the PEPSU Roadways. Hence, offence under Sections 465, 467, 468 and 471 IPC would not be attracted. In the same manner, offence of cheating under Section 420 IPC is not made out either and continuation of trial against the petitioner(s) would amount to an abuse of process of Court. Therefore, the proceedings are liable to be quashed.
Learned counsel for the CBI, on the other hand, has vehemently argued that accused Bhagwan Jindal along with co-accused Puneet Jindal, placed on record a forged letter dated 22.10.2003 purportedly issued by the Chief Auto Mobile Engineer, PEPSU Road Transport Corporation, Patiala, by inserting '1' before 56% and made it 156%. The figure was changed to show that originally PEPSU Roadways, Patiala, had given contract to M/s Himalayan Advertising Agency at the enhanced rates of 156%. Moreover, the petitioners prepared a forged letter dated 10.11.2003 (Annexure VI) purportedly issued by the Punjab National Bank, Zonal Office, Ludhiana, with an intention to dishonestly induce the Empowered Committee/Finance Cell of BSNL to award the work of advertising on PRTC buses for the period of 2003 to 2005. As per original letter (Annexure VII), the advertisement rates were at the rate of Rs.1125/- per bus. Further, vide letter dated 25.08.2003 (Annexure VIII), some rates have been given for display of Government publicity Campaign through the medium of Bus Panels on Punjab Roadways Buses. These rates were not conveyed to M/s Himalayan Advertising Agency for display of Government publicity through the medium of PEPSU Roadways. In the minutes of meeting of Prasher Ajay 2014.03.01 13:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Misc. No. M-4571 of 2012 (O&M) 7 Empowered Committee, these rates were considered and thereafter, the contract has been given to M/s Himalayan Advertising Agency. Furthermore, vide letter dated 09.12.2003 (Annexure IX), an information was given to M/s Himalayan Advertising Agency, whereby rates for display of Government Publicity Compaign through the medium of Bus Panels on PEPSU Roadways Buses, were given. As per this letter, the rates were as under:-
S. No. Medium Size
Rental Charges Painting Charges
per penal per month
_________________________________________________________
1. Back Panel 39" x 24" Rs.375/- Rs.120/-
2. Side Panel 12' x 2' Rs.360/- Rs.130/-
3. Inside Panel 2' x 1' Rs.75/- Rs.25/-
Therefore, the petitioner No.1 has played an active role in using the forged document in getting the contract in question.
After hearing learned counsel for the parties, this Court is of the view that in order to constitute an offence of forgery under Section 467 IPC, the document used, must have been made with dishonest or fraudulent intention. In the present case when the Committee was considering the case of the petitioner-company for grant of contract, the letter issued by the PRTC, where the 56% was changed to 156%, was taken into consideration. Moreover, information sent by the Punjab National Bank vide letter dated 10.11.2003 (Annexure VII), was made basis to compare the rates of the petitioner-company. It was found that the rates were lower and hence, the contract was granted. After going through the written statement, filed by the CBI, it is apparent that the said letter (Annexure VII) was never issued to M/s Himalayan Advertising Agency. Letter (Annexure IX) displays rates Prasher Ajay 2014.03.01 13:32 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Misc. No. M-4571 of 2012 (O&M) 8 for Back Panel and Side Panel. The M/s Himalayan Advertising Agency was granted contrat at higher rate on the basis of information, which was presented before the Committee, which was factually incorrect. At the time of framing of charges, it is the prima facie evidence, which is to be assessed with regard to the fact, as to "whether an offence is made out or not." The real facts are to be examined by the trial Court on appreciation of the evidence, to be led by the parties during trial.
In the light of the above discussion, no ground is made out to quash the FIR in the present case.
Resultantly, the present petition is dismissed.
(RITU BAHRI) JUDGE 20.02.2014 ajp Prasher Ajay 2014.03.01 13:32 I attest to the accuracy and integrity of this document High Court Chandigarh