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It has been further alleged that contractor was required to procure Bitumen from Indian Oil Corporation, Bharat Petroleum Corporation Limited or Hindustan Petroleum Corporation Limited and was further required to submit invoices showing procurement of Bitumen and a certificate pertaining to quality of Bitumen so procured and only after verification of the quality, materials were supposed to be used. The contractor who had been given contract for construction of Seraikella-Chaibasa Road submitted 37 number of invoices showing procurement of Bitumen from the Indian Oil Corporation Limited, Tatanagar Depot but out of those, six invoices had never been issued by the Indian Oil Corporation, Tatanagar Depot, still that much quantity of Bitumen covered under six invoices was shown to have been used in execution of the work and that the then executive engineer dishonestly and fraudulently certified the bills of the contractor for payment facilitating the contractor to draw a sum of Rs.89,68,966/- on the basis of false certificate.

In this regard it was placed that the contractor had been awarded three works. For one of the works, he had procured Bitumen from Indian Oil Corporation Limited/Nationalized Company in excess which was utilized in the work in question and under this situation, if the Bitumen was not procured in the manner as has been prescribed under the circular, it cannot be a case of criminal misconduct, rather may be an error of judgment on the part of the executive engineer allowing the contractor to use the Bituman which was lying from before in the stock of the contractor and if it is so, no case of criminal misconduct is made out, in view of the decision rendered in a case of State of Madhya Pradesh vs. Sheetla Sahay and others [(2009) 8 SCC 617] .

It was also submitted that any misconduct coming within the mischief of clause of (i)(ii) or (iii) of Section 13(1)(d) of the Prevention of Corruption Act gets attracted in the event one gets undue pecuniary advantage/gain but here in the instant case, not a single word is there in the charge sheet showing any pecuniary advantage/gain to the petitioners for alleged favour shown to contractor.

Mr.Khan, learned counsel appearing for the C.B.I by referring to the statements made in the counter affidavit submitted that as per the work order issued by the accused Basudeo Tiwary, Executive Engineer, the contactor was required to purchase Bitumen from the Government Oil Companies for execution of the work and was also required to submit invoices/receipts showing procurement of Bitumen and those documents were required to be verified by the accused persons as to whether Bitumen was brought at the site or not but from the evidences collected in course of investigation, it has transpired that the contractor did not procure entire Bitumen as claimed by the contractor under 37 invoices from the Government Oil Companies under the order of the Executive Engineer for execution of the work, rather 27.234 M.T claimed to have purchased under six invoices, had never been purchased from the Indian Oil Corporation Limited, Depot Tatanagar, still measurement book and bills were prepared by the Junior Engineer, Arun Kumar Singh and entries made in the measurement book were counter signed by the Assistant Engineer and thereby they facilitated the contractor to draw the amount of the bill which never accompanied the relevant invoices. Subsequently, in order to cover up the irregularities, photo copies of the invoices, showing purchase of Bitumen which had been used in connection with other work, were submitted after passing of its bill and thereby sufficient evidences were collected showing that the Executive Engineer, Assistant Engineer and the Junior Engineer in connivance with each other allowed the contractor to draw the amount which he was not entitled to get and thus, charge sheet has been submitted under Section 120(B) of the Indian Penal Code read with under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and therefore, under this situation, where prima facie case is there against the accused persons, order taking cognizance never warrants to be quashed.

Having heard learned counsel appearing for the parties and on perusal of the record, what have been emerging is that on one hand it is a case of the petitioners that though under the terms of the NIT and also work order, Bitumen was to be procured from the Government Oil Companies under the requisition of the Executive Engineer and then quality of it has got to be certified by the Department of Quality Control Unit which procedure was a cumbersome which could have consumed more than 21 days whereas the petitioner in terms of the contract was to complete the job within 21 days and therefore, excess Bitumen, which had been purchased from the Government Oil Companies in connection with other work, was used in the instant case and under the situation, there may be some deviation in the procedure for procuring Bitumen but it was in the public interest and thereby it may be administrative lapses on the part of the Executive Engineer to allow the contractor to draw the bills but certainly there was no criminal intent either on the part of the Executive Engineer, Junior Engineer or the contractor.