Dismissed

Satish Chandra Shrivastava v. The State Of Jharkhand Through Vigilance Bureau Ranchi

Jharkhand HC6 Jan 2020Cr.M.P./1819/2016

Case brief

AI extract

What is this about?

Two petitions — one to quash a vigilance FIR and cognizance order, one revision against refusal of discharge — arising from alleged irregularities in an APDRP contract of the Jharkhand State Electricity Board. The court held that suppression of an earlier file noting proposing termination of the contract disclosed more than a prima facie case of criminal conspiracy, and declined to interfere.

What the court decided

AI extract

Satish Chandra Shrivastava Vs The State Of Jharkhand Through… — Corruption | Jharkhand HC (2020)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr.M.P. No. 1819 of 2016

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Satish Chandra Shrivastava … … … Petitioner

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-VersusState of Jharkhand through Vigilance Bureau, Ranchi … … Opposite Party

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With

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Cr. Rev. No. 1057 of 2018

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Pushpendra Kumar Sinha … … … Petitioner -Versus-

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The State of Jharkhand through S.P., Anti-Corruption Bureau, Ranchi … … Opposite Party

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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioner : Mr. Pandey Neeraj Rai, Advocate [in Cr. Rev. No. 1057 of 2018] Mr. Rajendra Krishna, Advocate [in Cr.M.P. No. 1819 of 2016] For the Opp. Party : Mr. T.N. Verma, Advocate [in Both the cases] ---

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18 /06.01.2020 Cr. Rev. No. 1057 of 2018

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1. Heard Mr. Pandey Neeraj Rai, learned counsel appearing on behalf of the petitioner in Criminal Revision No. 1057 of 2018.

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2. Heard Mr. T. N. Verma, learned counsel appearing on behalf of the Opposite Party- Anti-Corruption Bureau.

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3. This revision application has been filed against the order dated 04.07.2018 rejecting the discharge petition of the petitioner passed by the learned Special Judge, Anti-Corruption Bureau, Ranchi in Misc. Criminal Application 255/2018 arising out of Vigilance (Special) Case No. 02/2011 corresponding to Vigilance P.S. Case No. 02/2011 registered under Sections 409, 420, 467, 468, 471, 477(A), 120(B) of Indian Penal Code, 1860 and Section 13(2) r/w Section 13(1)(c)(d) of Prevention of Corruption Act, 1988 which is now said to be pending in the court of learned Special Judge, Vigilance, Ranchi.

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4. The facts giving rise to the present petition are as under:

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(a) A letter dated 30.07.2010 was written by the Secretary of Jharkhand State Electricity Board (JSEB) to the Director General of Police, Vigilance Bureau, Government of Jharkhand for the purposes of lodging First Information Report regarding malpractices and financial irregularities committed by Officers of the Board in connection with APDRP (Accelerated Power Development and Reform Program) project under Package ‘D’ for Jamshedpur vide work orders No. 28 & 29 /APDRP-64, both dated 27.01.2005.

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(b) It was contended in the said letter that in course of review of the pending projects of APDRP, JSEB has detected several malpractices committed by some of the officers of the Board in connection with the subject work and financial irregularities have come to surface which called for action to be taken against the officers of the Board for fraud, criminal conspiracy, misuse of project fund and financial irregularities. He submits that some of the particulars of alleged wrongdoings were mentioned as follows:

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(i) P.K. Sinha, Electrical Executive Engineer (APDRP) (Petitioner in Cr. Rev. No. 1057 of 2018) placed the file to Electrical Superintending Engineer (APDRP) for appointment of Arbitrator, waiver of penalty and agenda for further time extension incorporating the proposal for approval of revised bill of quantity.

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(ii) The proposal was contrary to the earlier decision of the Board taken vide Resolution No. 401 that - “the reasons of delay were reviewed and it was observed that progress has been unsatisfactory. Time extension was permitted upto July, 2007 without escalation of price, but with imposition of liquidated damages (LD). This time extension shall be subject to review of the progress made in the next two months. If the work is completed prior to extended time, the liquidated damages (LD) deducted, shall be released as incentive.”

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(iii) The chairman had observed that since M/s Ramji Power Construction Limited (RPCL-contractor) has not started the work even after extension of completion period, an agenda may be placed in the next Board’s Meeting for termination of the contract, which was criminally ignored by the petitioner namely, P. K. Sinha, the then Electrical Executive Engineer, APDRP in his proposal for further time extension amounting to fraud and criminal conspiracy.

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(iv) The proposal of Sri P. K. Sinha was against the decision of the Board and against the order of the Chairman. It has been endorsed by the then Electrical Superintending Engineer In-charge, APDRP, Sri S. C. Shrivastava indicating his complicity in the criminal conspiracy of continuing with the work despite the fact that the contractor failed to complete the work even after expiry of 30 months.

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(v) The sole Arbitrator was appointed at the behest of Sri P. K. Sinha, the then Electrical Executive Engineer, Sri S. C. Shrivastava (In-charge APDRP) and Sri Niranjan Roy, the then Director of Finance. The sole Arbitrator published the award and as per award, payment to the tune of Rs. 10.87 Crores was already made for which fund was not available for the said project and as such, Award should have been contested in the court of law. The Award also incorporated price variation which was not even asked for in the original letter of M/s RPCL for appointment of Arbitrator. This point as well as the award could have been agitated and contested before the Court.

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(vi) Although the opinion of the Advocate General was obtained, Sri P. K. Sinha directly placed the file with agenda note for approval of time extension by Central

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Purchase Committee (C.P.C.) on the basis of the Award without examining the merits of the Award and its consequences on the project. Again, based on the recommendation of the Central Purchase Committee of the Board, Mr. P. K. Sinha placed the proposal with agenda note to the Chief Engineer, APDRP for approval of the arbitral award. The then Chief Engineer Sri W.N.K. Horo without examining the consequences of the award, recommended for its approval by the Board. (vii) On the basis of aforesaid, it was alleged that it has been prima facie evident that Sri P. K. Sinha (petitioner) with malafide intention for wrongful loss to the Board, deliberately hiding the fact that the implementation of the Award would have financial impact of additional 11 Crores (approximately) against the revised approved cost of 33.13 Crores, as also the fact that no fund was available for this additional financial burden and since it was a Central Government’s Sponsored Project, additional fund could be arranged only after approval of the Ministry of Power, Government of India, induced the Board for implementation of the Award.

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(viii) It has been further alleged that the complicity of Sri P. K. Sinha (the present petitioner) dates back since issuance of two work orders where he proposed for issuance of separate work orders for supply and erection with a view to enable the agency to get payment separately, although the additional documents did not provide for the same.

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(ix) Financial irregularities have been committed by making payment to the contractor without approval by the competent authority. The bills so processed as per Board’s delegation of power, Member (Finance) and Chairman are only authorized to make payment to the

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contractor’s bill of Rs. 3 Crores and above. Umesh Kumar, the then Financial Controller-III usurped the authorities himself and ordered for release of payment and also that file be put up for post-facto approval causing great financial difficulty. Sri P. K. Sinha (Petitioner) vetted the bill without examining the basis of payment i.e. without practically examining the physical progress of work commensurate with the payment of earlier bills. As per Sri Amar Nayak’s note, Sri V. P. Dubey and Sri Devashish Mohapatra were also responsible for financial irregularities because they should not have allowed payment under improper order of Financial Controller-III Sri Umesh Kumar.

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(x) Payment against price variation are gross financial irregularities and misuse of funds since there was no provision for payment of this amount from the project cost and no payment should have been made till the fund was arranged for separately.

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(xi) The original cost of project was revised leading to total project cost becoming Rs. 33.13 Crores against which the cost of work done was Rs. 19,85,08,406/- whereas the actual payment made to the contractor was Rs. 28,90,95,479/- (including the income tax) as against gross bill of Rs. 37,87,80,485/-.

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(xii) Thus, Rs. 9,05,87,073/- had been paid in excess from the fund meant for APDRP project under Package ‘D’ for Jamshedpur and payment of Rs. 18,02,72,079/- has been accepted, which is attributable to fraudulent act and criminal conspiracy of Sri P. K. Sinha (petitioner) and Sri Umesh Kumar, the then Financial Controller-III in connivance with other officials of the Board including Sri S.C. Shrivastava, Electrical Superintendent Engineer.

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(xiii) Based on these allegations, a request was made to investigate the matter and take suitable action against appropriate officials of the Board.

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(c) Along with the said letter dated 30.07.2010, the alleged noting of Sri Amar Nayak, EEE (APDRP) was enclosed. The Noting relates to files pertaining to arbitration and payment qua the contractor. It refers to the claims of the contractor for waiver of penalty and grant of time extension.

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5. The learned counsel for the petitioner has submitted that the contractor had invoked the arbitration clause on 22.12.2006 and the file noting dated 27.12.2006 contains the Chief Engineer, R. P. Agrawal’s note about Chairman Shivendu’s oral order to put up contract termination proposal. The learned counsel has also submitted that this noting was the last noting of Mr. Agrawal till his retirement on 30.04.2007. The learned counsel also submits that on 02.01.2007, Mr. Shivendu left and on 05.01.2007, Mr. V. N. Pandey joined as Chairman and thereafter, the meeting was chaired by the new chairman Mr.V. N. Pandey on 06 and 07^th February, 2007 to take work from the contractor after making up Electricity Board’s defaults.

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6. The learned counsel for the petitioner then submits that as Mr. Shivendu had left and the termination of the contract was only at the stage of proposal, the new Chairman Mr. V. N. Pandey, having joined, the idea of terminating the contract, had totally evaporated and the letters were issued by the Electricity Board asking the contractor to continue to work. The learned counsel has also submitted that on 16.05.2007, the contractor’s request for time extension without penalty and with price variation was made and a demand was also made by the contractor vide another letter dated 18.05.2007 asking for interim arbitration and staying penalty deduction during the execution of the work.

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7. The learned counsel for the petitioner thereafter submits that on 21.05.2007, the superintending engineer Sri S. C. Shrivastava

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recorded note on the margin of both the letters of contractor dated 16.05.2007 and 18.05.2007 “P. K. Sinha, EEE. Pl. see and discuss”. The learned counsel also refers to letter dated 08.06.2007 which is contractor’s letter for re-invocation of arbitration clause wherein it is submitted by the counsel that the Superintending Engineer again endorsed the same to the petitioner by mentioning “P. K. Sinha, EEE”. On 08.06.2007, a note was made by the petitioner as follows:

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“Chairman’s instructions may be obtained on arbitrator appointment and penalty waiver in light of AG’s opinion in the matter of transmission and on putting agenda for time extension subject to BOQ approval.”

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Accordingly, on 18.06.2007, Superintending Engineer, S.C. Shrivastava solicited instruction of Member Technical on P. K. Sinha’s note and in turn, Member, Technical G.N.S. Munda asked for Director, Finance’s instructions on P. K. Sinha’s note. Accordingly, on 28.06.2007, Director, Finance namely, Niranjan Roy opined to follow same solution as in transmission matter in which Advocate General’s opinion was there. He recommended subject to Member, Technical agreeing to constitute committee of officers from Technical, Finance and Legal Department to suggest the name for appointment of Arbitrators.

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8. The learned counsel for the petitioner has specifically submitted that the petitioner had simply made file noting pursuant to the various requests/representations which were made by the Contractor M/s R.P.C.L. and having done so, there is no criminality involved in the present case. The learned counsel has also submitted that even if the entire allegation which has been levelled against the petitioner in the present case is taken as correct, no criminal case is made out against the petitioner.

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9. The learned counsel for the petitioner, while advancing his argument, has also submitted that in one public interest litigation which was numbered as C.W.J.C. No. 1793 of 2001, an order dated 28.03.2011 was passed wherein the matters relating to the Electricity

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Board were to be investigated by the Central Bureau of Investigation. He further submits that pursuant to such direction issued by this Hon’ble Court, the matter was taken up by Central Bureau of Investigation and ultimately, it was found that there is no criminality in the entire gamut of affairs.

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10. The learned counsel for the petitioner has referred to a letter dated 12.09.2011 and submits that this letter was issued by Central Bureau of Investigation to the Chairman, Jharkhand State Electricity Board in connection with affairs of JSEB relating to commissioning of APDRP Project in the State of Jharkhand. He submits that in this letter it has also been mentioned that during the enquiry, the CBI had received complaints from the present petitioner who was General Manager-cum-Chief Engineer, Transmission, Dumka as well as the co-accused of the present case Sri Umesh Kumar, Financial Advisor– cum-Secretary, D.V.C., Kolkata alleging that a false case had been lodged against them and others in the State Vigilance Bureau vide No. 2/2011 for payment of price escalation to the contractor-R.P.C.L. pertaining to APDRP, Jamshedpur Project on the basis of arbitration award supported by opinion of Advocate General and approval of CPC as well as approval of JSEB and accordingly, a request was made by the accused of the present case for impartial and fair justice. The learned counsel has also referred to the letter dated 16.11.2011 which was issued by the office of the Senior Superintendent of Police, C.B.I. and addressed to the Chairman, Jharkhand State Electricity Board seeking certain clarifications.

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11. The learned counsel for the petitioner submits that ultimately the Central Bureau of Investigation after preliminary enquiry, closed the matter and did not proceed any further. He has also referred to one counter-affidavit filed by C.B.I. in a case being Cr.M.P. No. 1298 of 2012 filed by one Sanjeev Kumar and refers to Para-13 of the said counter-affidavit to submit that it was the specific case of the Central Bureau of Investigation in the said Cr.M.P. No. 1298 of 2012 that C.B.I. sought clarification from J.S.E.B. as well as from the State

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Vigilance Bureau, but no worthwhile answer was received and based on the materials made available during enquiry, Vigilance P.S. Case No. 2 of 2011 was not taken over for further investigation and C.B.I. did not find sufficient materials showing criminality in the matter. The learned counsel, by referring to these documents and affidavit, has submitted that even the C.B.I. did not find any criminality against the petitioner and accordingly, there was no occasion for the Vigilance Bureau to proceed in the matter. 12. The learned counsel for the petitioner has relied upon a judgment passed by Hon’ble Supreme Court in the case of “Ashok Kumar Todi Vs. Kishwar Jahan and Others” reported in (2011) 3 SCC 758 (Para 42, 43, 46 and 52) to submit that the C.B.I. had investigated the matter pursuant to the order passed by this Court in C.W.J.C. No. 1793 of 2001 and accordingly, there was no occasion for the Vigilance Bureau to proceed in the matter and the continuation of the present criminal proceedings against the petitioner is an abuse of the process of law.

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13. The learned counsel for the petitioner has also referred to another judgment passed by the Hon’ble Supreme Court which is reported in (2013) 3 SCC 594 to submit that the Central Bureau of Investigation functions as per their own C.B.I. manual known as C.B.I. (Crime) Manual, 2005 and non-compliance with Section 154 Cr.P.C. will not vitiate C.B.I. investigation, if the same is in compliance with C.B.I. (Crime) Manual, 2005.

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14. The learned counsel for the petitioner has thereafter referred to a judgment reported in (2012) 2 SCC 93 (Reva Electric Car Company Private Limited Vs. Green Mobil) (Para 33 and 34) to submit that referring the matter to arbitration by itself cannot be said to be a crime. He has also referred to another judgment passed by the Hon’ble Supreme Court in the case of “K.N. Sathyapalan (Dead) by LRS. Vs. State of Kerala and Another” reported in (2007) 13 SCC 43 (Para 18, 27, 31 and 34) to submit that even in cases where the original agreement did not contain a clause for escalation of rate, the

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Arbitrator had the power to consider the contract and to pass appropriate order. He submits that in the instant case, the learned Arbitrator has considered the entire contract and gamut of affairs between the contractor M/s R.P.C.L. and Electricity Board and has passed an Award, which has ultimately attained finality and therefore, it cannot be said that any criminality is involved in the present case.

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15. The learned counsel for the petitioner has emphasized that the letters submitted by the Contractor for referring the matter to Arbitration and extension of period of contract were simply endorsed for consideration with a note and by doing that, it cannot be said that any offence has been committed.

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16. The learned counsel for the petitioner further submits that three awards were passed by the learned Arbitrator on 25.11.2007, 14.02.2008 and 29.03.2009 in favour of the Contractor and the application under Section 34 of the Arbitration and Conciliation Act, 1996 was filed beyond the period of limitation. He submits that ultimately when the matter went upto the Hon’ble Supreme Court, the Award attained finality in judgment passed in Civil Appeal No. 9774 – 9775 of 2018 wherein it was held that the delay in filing application under Section 34 of Arbitration and Conciliation Act, 1996 was beyond the period prescribed by the parliament, which could not have been condoned. Accordingly, the learned counsel submits that the award having attained finality, the Board had no option, but to make payment of the same, failing which the same would have been executed by court of law, which would have carried interest @ 18%. Having made payment of the amount as per the Award, no criminality can be imputed against the officers of the Board including the petitioner.

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17. The learned counsel has also submitted that this Court has passed orders in the case of co-accused namely, Umesh Kumar in Cr.M.P. No. 2136 of 2015 on 05.02.2016 whereby the entire criminal proceedings against Umesh Kumar has been set-aside and the said

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judgment is under challenge before the Hon’ble Supreme Court. He has also referred to another judgment dated 12.04.2016 passed in W.P.(Cr.) No. 473 of 2015 to submit that the grant of sanction for prosecution of Virendra Pratap Dubey who is co-accused in the case, has been set-aside by this Court. Similarly, the grant of sanction for prosecution of Mr. Debashis Mahapatra, a co-accused in the instant case, has been set-aside by judgment dated 11.07.2016 passed in W.P.(Cr.) No. 525 of 2015 . The learned counsel for the petitioner however submits that he is not seeking parity in connection with the case of the co-accused whose criminal proceedings have already been quashed and case of the petitioner has to be examined vis-à-vis the materials collected against the petitioner during investigation and accordingly, he has argued his case independent of that of the coaccused in connection with whom criminal proceedings/order of sanction has been set-aside.

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18. Learned counsel for the petitioner has also submitted that a supplementary affidavit has been filed in the present case wherein the petitioner has brought on record the relevant Page No. 7 of File No. DDA (HQ) 372/2004-05 of the accounts wing and this page shows the suggestion of the petitioner regarding the way in line with the office order no. 243 dated 16.03.2006 as to how the payment could be made to the contractor-M/s R.P.C.L. for their bill of price variation, “payment may be made from working fund for Rs. 2,75,43,156.00 on returnable basis from APDRP fund.” He submits that it may be noted that the petitioner has not mentioned anything about Power Finance Corporation fund in his note. The learned counsel has also referred to the said supplementary-affidavit to bring on record the Financial Status Report of Ministry of Power, Government of India through N.T.P.C. dated 26.03.2009 indicating that there was no adverse remark in the report regarding the quality and/or quantity of the work and on the payment thereof. He has also referred to letter dated 26.03.2009, which is annexed as Annexure-29 to the supplementary-affidavit, to submit that all the scheme completion

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reports have been submitted to the Ministry of Power alongwith the allowable financial utilization for consideration of grant and this included the work executed by the contractor-M/s R.P.C.L. Accordingly, the learned counsel submits that even the Central Government has no objection to the manner in which the work has been executed by the Contractor in the present case.

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19. The learned counsel for the petitioner has also referred to the audit objection which was raised in connection with the work involved in this case and he submitted that the said audit objection was placed before the concerned Committee which was ultimately dropped. He submits that accordingly, there is no question of involvement of any financial irregularity in the present case. The learned counsel has referred to Annexure-25 of the present petition, which is a letter dated 14.03.2016 issued by the Joint Secretary, Jharkhand Vidhan Sabha, Ranchi intimating the dropping of the audit objection. The learned counsel has also referred to 2^nd Supplementary affidavit filed by the petitioner wherein while considering the audit objection, the submission of the Board was recorded that the Award is under challenge before the Sub-Judge, Ranchi.

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Arguments of the petitioner in Cr. M.P. No. 1819 of 2016

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20. The learned counsel for the petitioner in Cr.M.P. No. 1819 of 2016 has submitted that the present petition has been filed for quashing the entire criminal proceedings in connection with the Vigilance P.S. Case No. 2/2011 registered under Sections 409, 420, 467, 468, 471, 477(A), 120(B) of Indian Penal Code, 1860 and Section 13(2) r/w Section 13(1)(c)(d) of Prevention of Corruption Act, 1988 including the order taking cognizance dated 26.08.2015 passed by the learned court below. He submits that the cognizance of the offence under Sections 109, 409, 420, 467, 468, 471, 477A, 120B of Indian Penal Code and Section 13(2) r/w Section 13(1)(c)(d) of the Prevention of Corruption Act, 1988 has been taken.

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21. Learned counsel for the petitioner further submits that as per the status report which has been received from the learned court below vide communication dated 31.08.2019, it has been indicated that the police paper had been supplied to the petitioner namely, Satish Chandra Shrivastava on 11.07.2019 and charge has not yet been framed as deficient police paper had to be supplied to the petitioner namely, Satish Chandra Shrivastava.

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22. The learned counsel submits that upon perusal of the chargesheet even if the entire allegation made against the petitioner is taken to be correct, no criminal case is made out against the petitioner. 23. The learned counsel has submitted that on 06.02.2007 and 07.02.2007, a meeting was called for by Sri V. N. Pandey, the new Chairman to resolve the issue relating to the contractor-M/s R.P.C.L. In the said meeting, the petitioner was not present since he was not posted for APDRP Project. Only the then Chief Engineer, APDRP Mr. R. P. Agrawal with some other officials along with the consultants was present. He has referred to the minutes of meeting held on 06.02.2007 and 07.02.2007 which has been annexed as Annexure-4 to the present petition. The learned counsel has also submitted that from the perusal of the minutes of meeting prepared, it is quite evident that the contractor-M/s R.P.C.L. was allowed to proceed with the work and therefore, the so-called verbal decision of the Chairman to terminate the contract of contractor- R.P.C.L. stands superseded. However, Mr. Agrawal retired on 30.04.2007. On 07.05.2007, the petitioner was holding the charge of Project Manager (Technical) and was given additional charge of In-charge, Electrical Superintending Engineer, APDRP. On 08.06.2007, Mr. P. K. Sinha, the then Electrical Executive Engineer has forwarded the notes relating to appointment of an Arbitrator upon representation of contractor -M/s R.P.C.L. In the aforesaid note, Mr. P. K. Sinha sought instruction by the Chairman. On 18.06.2007 the petitioner, on receiving the note of Mr. P. K. Sinha dated 08.06.2007 seeking instruction of Chairman on the issues, forwarded file to the Member

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(Technical) seeking instruction on the note of Mr. P. K. Sinha which is also evident from the file. Thereafter on 17.07.2007, the Chairman had given his instruction putting his note “same as file 620” and accordingly, the action was taken. On 01.08.2007, the Electrical Executive Engineer Mr. P. K. Sinha had forwarded his note to the Member (Technical) for further necessary action upon the affidavit filed by contractor-M/s R.P.C.L. in the context of appointment of Arbitrator. The aforesaid file was to be routed through the petitioner and therefore, the petitioner had simply made an endorsement note and forwarded the file to the Member (Technical). On 10.08.2007, the additional charge of the petitioner was withdrawn from the petitioner. The specific case of the petitioner is that no offence at all is made out against the petitioner taking into consideration the notes /endorsements made by him in the concerned file. It is submitted that on this ground alone, the entire criminal proceedings against the petitioner appears to be an abuse of the process of law.

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Arguments of Opposite Party- Anti-Corruption Bureau

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24. Learned counsel appearing on behalf of the opposite party, Mr. T. N. Verma, on the other hand, has submitted that in the present case, several officials including the petitioners and some top officials of Jharkhand State Electricity Board have entered into criminal conspiracy with the contractor M/s R.P.C.L. and in conspiracy with the Contractor, they have abused their official positions and have dishonestly caused huge loss running into several crores rupees to JSEB and to the public exchequer and huge wrongful gain to the contractor- R.P.C.L. and also to themselves.

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25. While elaborating his arguments, learned counsel submits that the JSEB issued Notice Inviting Tender for work under APDRP Package ‘D’ for Jamshedpur town and as per the clause 15 of the contract, it was clearly mentioned that the work is a targeted work and time is the essence of the contract. He further submits that it was clearly stated in the tender that the price quoted by the bidder shall be firm during the completion of the project and shall not be subject

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to variation on any account and no escalation in prices shall be admissible on any account to the bidder. The work was to be completed by 26.09.2005. The contractor had applied for extension of time which was granted up to 31.07.2007.

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26. He further submits that even after time extension granted up to 31.07.2007, the Contractor i.e. M/s R.P.C.L. did not start the work. Accordingly, in the meeting held on 21.12.2006 in the office of the then Chairman, JSEB, it was reported that the contractor i.e. M/s R.P.C.L. did not start the work even after extension of time period. The then Chairman, J.S.E.B. Mr. Shivendu, I.A.S. directed the Chief Engineer, APDRP to put up agenda for termination of the contract of M/s R.P.C.L. for the next meeting of the Board of JSEB. The then Chief Engineer, APDRP complied with the instruction and put up draft agenda. Accordingly, through his note dated 27.12.2006, the then Member (Technical) placed the matter.

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27. Learned counsel for the opposite party submits that in the aforesaid circumstances, the draft agenda was already prepared and accordingly, the same should have been placed for the purposes of termination of contract in accordance with the instructions dated 21.12.2006 of the then Chairman, J.S.E.B. In spite of such agenda been submitted through the aforesaid note dated 27.12.2006 of the then Chief Engineer, APDRP on the aforesaid instruction of the then Chairman, the then Member, Technical, J.S.E.B. did not comply with the same. On the said note dated 27.12.2006 of the then Chief Engineer, APDRP, the then Member, Technical, J.S.E.B. wrote (please discuss) and marked it back to the Chief Engineer, APDRP. The next noting on the file is dated 08.06.2007 after a period of six months by the then Electrical Executive Engineer (EEE), APDRP Sri P.K. Sinha (the petitioner) and it is very surprising as to how the file reached Sri P.K. Sinha (the petitioner) without going through the then Chief Engineer, APDRP.

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28. The learned counsel for the opposite party further submitted that not only this, Sri P.K. Sinha (the petitioner) had prepared the file

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noting dated 08.06.2007 totally suppressing the earlier file noting dated 27.12.2006 and also suppressing about the preparation of Agenda No. 397 wherein a proposal for termination of the contract was already prepared and was kept in the record and was under consideration.

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29. The learned counsel for the opposite party has submitted that the noting dated 08.06.2007 referred to the letters issued by the Contractor M/s R.P.C.L. requesting for appointment of an Arbitrator and the opinion of Advocate General, Jharkhand in the context of the matter regarding transmission wing. The learned counsel submitted that in the file noting dated 08.06.2007, three proposals were made:

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(a) Appointment of an Arbitrator in the light of the advice of the AG, Jharkhand,

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(b)Waiver of penalty in the light of the advice of AG, Jharkhand, and

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(c) Putting the agenda for further time extension incorporating the condition of approval of revised BOQ which could not be given till date.

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30. The learned counsel for the opposite party submitted that there is clear allegation against the petitioner that in the proposal dated 08.06.2007, the then Electrical Executive Engineer, APDRP Sri P. K. Sinha (present petitioner) dishonestly concealed several critical and vital facts with intention to cause huge wrongful gain to the contractor and to himself and it caused huge wrongful loss to J.S.E.B. and such facts which were concealed are as follows:

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(i) The then Chairman, J.S.E.B. Mr. Shivendu had directed the then Chief Engineer, APDRP to put up an agenda for termination of contract of M/s R.P.C.L. for the next Board meeting of JSEB and the then Chief Engineer, APDRP had put up the draft agenda accordingly, through his noting dated 27.12.2006.

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(ii) That M/s R.P.C.L. had earlier submitted 14 fake and forged bank guarantee bonds amounting to Rs. 19,64,85,959/- in favour of J.S.E.B. regarding which Umesh Kumar, the then

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Director (Finance) of J.S.E.B. had registered Dhurwa P.S. Case No. 153 dated 11.08.2005 against Sri Ashok Kumar Singh, Managing Director of M/s R.P.C.L. and others as accused. After investigation of the case, it was found true and Chargesheet No. 164 dated 30.06.2007 under Section 467, 471, 409, 420, 120B of the Indian Penal Code was submitted to the learned court below against Sri Ashok Kumar Singh, the Managing Director of the contractor M/s R.P.C.L.

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(iii) M/s R.P.C.L. was asking for price escalation in arbitration proceedings although under the provisions of the concerned tender documents, work orders and agreement, time was the essence of contract and there was a clear, explicit and express prohibition against any price or statutory variation on any account whatsoever.

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(iv) According to J.S.E.B. Resolution No. 401, the progress of work done by M/s R.P.C.L. was unsatisfactory and time extension was permitted to M/s R.P.C.L. upto July, 2007 without escalation of the price and with imposition of liquidated damages.

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(v) In the meeting dated 06.02.2007 and 07.02.2007, M/s R.P.C.L. had clearly agreed that they would complete the work within the extended time period i.e. July, 2007 and would not go for arbitration/court of law.

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(vi) M/s R.P.C.L. did not do the work on time, asked for extension of time and did not start the work even within the extended time. Thus, the same agency i.e. M/s R.P.C.L. which at the earlier point of time had itself asked for extension of time, was subsequently asking for arbitration for price escalation due to extension of time.

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31. The learned counsel for the opposite party submitted that the aforesaid allegations have been clearly mentioned in the chargesheet. He submits that the value of the contract was Rs.19,85,08,406/out of which, the payment which has been shown is Rs.

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28,51,49,080/- although the actual payment was Rs. 32,16,85,120/-. Accordingly, he submits that there has been huge defalcation of money, which clearly involves the petitioner namely, Sri P. K. Sinha in criminal conspiracy with the contractor-M/s R.P.C.L. and other officials of the Board including S.C. Shrivastava (Petitioner in Cr. M.P. No. 1819 of 2016).

¶99

32. The learned counsel for the opposite party also submitted that there is prima facie case under Sections 109, 409, 420, 467, 468, 471, 477A, 120B of Indian Penal Code and Section 13(2) r/w Section 13(1)(c)(d) of the Prevention of Corruption Act, 1988 and accordingly, cognizance was taken against Pushpendra Kumar Sinha (Petitioner in Cr. Rev. No. 1057 of 2018) on 11.01.2016.

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33. The learned counsel for the opposite party has referred to the impugned order dated 04.07.2018 whereby the petition for discharge of Pushpendra Kumar Sinha has been rejected by the learned court below. He submits that the learned court below has passed a wellreasoned order and has rejected the petition filed by Sri P.K. Sinha (Petitioner in Cr. Rev. No. 1057 of 2018).

¶101

34. The learned counsel for the opposite party also submits that various paragraphs of the case-diary have been referred to in the order refusing to discharge and the learned court below has made particular reference to Paragraph Nos. 16, 34, 37, 62, 86, 87, 182, 210, 241, 242, 340, 341, 368 and 513 apart from other paragraphs of the case-diary. He submits that more than prima-facie case is made out against Sri P. K. Sinha (Petitioner in Cr. Rev. No. 1057 of 2018) and the impugned order refusing to discharge Sri P. K. Sinha does not call for any interference.

¶102

35. He further submits that so far as the allegation in connection with criminal conspiracy is concerned, the evidences may be direct or indirect and at the stage of discharge, this Court has to simply examine as to whether a prima facie case is made out against the accused or not to put the accused for trial.

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The learned counsel for the opposite party also submits that the very fact that the petitioners had suppressed the earlier file noting while putting up the record before the new Chairman, indicates sufficient complicity of the petitioners in the matter of commission of the alleged offence and accordingly, the impugned orders in both the cases do not call for any interference.

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36. The learned counsel for the opposite party further submits that so far as the investigation by the C.B.I. is concerned, the C.B.I. has never entered into any investigation in connection with the allegations which were levelled against the petitioners and coaccused in the present matter and accordingly, no case was instituted by C.B.I.. He has also submitted that there was no direction passed by this Court in the Public Interest Litigation, asking the C.B.I. to take over all the cases which were already under investigation. He submits that accordingly the contention of the petitioners that the C.B.I. had given a clean chit in connection with the execution of the present contract is misconceived and is fit to be rejected. He submits that at the stage, when the C.B.I. had made certain enquiries, the present vigilance case was already pending, which is apparent from the letter issued by the C.B.I. itself and, in fact, the accused had made certain allegations before the C.B.I. and had alleged that false case has been lodged against the accused. The learned counsel submits that after due investigation of the entire matter, the allegations against the petitioners and other co-accused were found true and charge-sheet was submitted.

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37. The learned counsel has also submitted that although the petitioners have annexed copy of orders passed by this Court in connection with the case of the co-accused persons, but the allegations against the present petitioners should be examined on their own merits and the case of the co-accused has no bearing in these cases. The learned counsel has also referred to a judgment dated 27.11.2019 passed by this Court in connection with another coaccused namely, Niranjan Roy @ Niranjan Rai passed in W.P.(Cr.)

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No. 12/2016 and submits that this Court has refused to interfere with the criminal proceedings against the co-accused Niranjan Roy @ Niranjan Rai.

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38. The learned counsel while opposing the prayer of the petitioner in Cr.M.P. No. 1819/2016, Sri S.C. Shrivastava submits that there is no dispute that the petitioner was holding the post of In-charge Electrical Superintending Engineer, APDRP who is the immediate higher authority of the co-accused Electrical Executive Engineer Sri P.K. Sinha. He further submits that the file noting in the file on the part of the petitioner in Cr.M.P. No. 1819 of 2016 cannot be said to be a mere endorsement. Rather, the petitioner (Sri S. C. Shrivastava) being higher in rank to the Electrical Executive Engineer, was also responsible and was also under an obligation to refer to the earlier file noting.

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39. In such circumstances, the petitioner (Sri S. C. Shrivastava) cannot be absolved merely on the ground that he was holding the post for a short period of time. He further submits that the conspiracy angle between the petitioner and the other co-accused with particular reference to Mr. P. K. Sinha has to be examined in details at appropriate stage and there is enough evidence on record to constitute a prima facie case against the petitioners in both the cases. The learned counsel further submits that so far as Sri S. C. Shrivastava is concerned, only the order taking cognizance is under challenge and admittedly, charge has not been framed by the learned court below and he has not even filed his application for discharge. The learned counsel submits that the materials collected during investigation and the complicity of Sri S. C. Shrivastava can be examined by the learned court below at appropriate stage including at the stage of discharge, but on the face of the allegations which have been found against Sri S. C. Shrivastava considering the allegation in the charge-sheet, it cannot be said that ex-facie no case is made out against him.

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40. The learned counsel for the opposite party further submitted that there is no dispute that the entire file noting which was made in the file, till Mr. Shivendu was the Chairman, including the agenda regarding termination of the contract, was totally suppressed when this matter was placed before the successor Chairman of the Board. The learned counsel submits that had the said file noting was placed and taken care of, then there could not have been any occasion for extension of time to the Contractor for execution of work which would have prevented causing of huge loss to the State Exchequer. He further submits that there is no dispute that there are clear allegations of excess payment having been made to the Contractor over and above the contract value. He submits that even the C.A.G. had pointed out the irregularities, but the Board had pointed out before the concerned committee that the arbitration award was under challenge before the learned Sub-Judge. In this background, the C.A.G. audit objection report was dropped by the committee. He submits that merely because the C.A.G. objection was dropped, the same does not absolve the accused persons from their criminal liability when the investigation discloses more than prima facie case against the accused including the petitioners for the alleged offence.

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Arguments of the petitioner in Cr. Rev. No. 1057 of 2018 by way of rejoinder

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41. In response, the learned counsel for the petitioner in Cr. Rev. No. 1057 of 2018 submits that the case of Niranjan Roy @ Niranjan Rai, which has been decided in W.P.(Cr.) No. 12/2016 on 27.11.2019 stands on different footing. He submits that in the said case, this Court refused to interfere with the proceedings and took into consideration that Niranjan Roy was neither on anticipatory bail, nor on regular bail and the Anticipatory Bail No. 1302 of 2013 filed by him was rejected as back as on 18.10.2013 and his non-appearance before the learned trial court held up the trial and finding no merits in the writ petition, the case was dismissed. The learned counsel for the petitioner submits that the petitioner has been enlarged on bail

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and it cannot be said that they are not co-operating with the criminal proceedings.

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Findings of this Court

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42. After hearing the counsel for the parties and considering the facts and circumstances of these cases, this Court finds that the specific case of the opposite party is that JSEB had issued Notice Inviting Tender for undertaking work under APDRP under package ‘D’ for Jamshedpur town stipulating therein that the work would be targeted one, which was required to be completed within the time schedule. Further case of the opposite party is that in addition to the above, it was also stipulated that the price quoted by the bidder shall not be subjected to variation on any account and thereby, no escalation in price will be admissible on any account to the bidder. It is also the case of the opposite party that the said clauses were reiterated when the work orders were issued to the Contractor - R.P.C.L. and said stipulations were part of the terms and conditions of the agreement which was entered into between the parties. Admittedly, M/s R.P.C.L. could not execute the work within the due date i.e. 26.09.2005. However, the time was extended from 26.09.2005 to 31.07.2007 without putting any clause for escalation of price, but with imposition of liquidated damages (L.D.) with a stipulation that this time extension shall be subject to review of the progress of work in next two months and if the work is completed prior to the extended time, the L.D. deducted shall be released as an incentive. As per letter issued by RPCL dated 16.05.2007 (Annexure-11), the letter granting time extension till 31.07.2007 was issued on 13.11.2006.

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43. The petitioner has not referred to and/or annexed any immediate communication between the JSEB and the contractor after the said decision on extension of time, but has annexed letter dated 16.05.2007 (Annexure-11) issued by contractor-RPCL wherein some of the subsequent events have been mentioned. Annexure 10/A indicates about the progress of the work.

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44. At this stage it would be relevant to refer to the annexure 10/A and 11 filed by the petitioner.

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Annexure-10/A , is a letter No. 136 dated 05.04.2007 issued by R.P. Agrawal, Chief Engineer (APDRP) to the contractor which clearly indicates that the completion period of above work was extended up to July 2007 vide office Letter No. 765 dated 13.11.2006, but it was observed that the contractor had erected only 4 (four) poles from September, 2005 to till date whereas more than 1000 poles and other materials were lying in the store of the contractor and accordingly, it was alleged that the progress is very poor. Accordingly, a request was made to engage more labourers immediately and arrange to complete the work by July 2007 positively failing which, it was stated that L.D. amount will not be released.

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Annexure-11 was issued by the contractor to Electrical Superintending Engineer-cum-In-charge, APDRP wherein it was inter alia , stated as follows: -

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“ After much deliberation and after waste of 14 months agenda for extension of time was placed in 49th meeting of the JSEB Board. In the said meeting at Agenda item no. 395/06-07 the following decision was taken “time extension is granted with imposition of L.D. and if the work is completed prior to the extended time, the L.D. deducted shall be released as an incentive”. After the said decision an extension letter granting time extension up to 31.07.07 was issued on 13.11.2006 by Chief Engineer, APDRP. The time extension was unique of its kind. Following facts were completely ignored while deciding on the matter of time extension.

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a. In draft agenda prepared by Chief Engineer, APDRP there have been various delays as pointed out on part of JSEB which has contributed to delay in project, and without approval of revised BOQ prepared and approved by committee of JSEB completion of work is not possible.

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b. E.S.E. cum C.E.O, Jamshedpur who is supervising authority of the project has himself admitted in writing that delays have been on part of consultant and JSEB.

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c. Order passed by Hon’ble High Court of Jharkhand was ignored which has clearly emphasized on taking decision on the matter of time extension as per Tender Condition Para 1.3.2 (e) (a).

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d. Proposal for refund of LD at later stage clearly indicates that there has been no delay on part of contractor.

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We had lodged our protest vide our letter dated 15.11.2006 regarding imposition of penalty. We had invoked interim arbitration on

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22.12.2006 as per arbitration clause of NIT to protect our interest. We request you to appoint any impartial arbitrator to decide and adjudicate upon all the disputes arising out of in relation to the above work and till decision of arbitrator comes, no penalty may please be deducted from running bills considering prima-facie merit in our case.

¶132

Due to non-approval of revised BOQ and non-release of payment and due to arbitrary imposition of penalty, the above work can not be completed during the extended period i.e. by 31.07.07. In the meantime, price of materials, labour has gone up. Therefore, it is requested that the time extension without penalty and with price variation on material and erection as per IEEMA/RBI/JSEB formulae for the extended period (i.e. after 26.09.2005) may please be granted up to 31.03.2008 and revised BOQ may please also be approved. Anticipating your confirmation on extension and on approval of revised BOQ by 31.07.2007.”

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45. It appears that immediately after receipt of the letter of extension of time issued on 13.11.2006 by the Chief Engineer, APDRP, a protest to the same was lodged by contractor-RPCL vide Letter dated 15.11.2006 in connection with imposition of penalty and it was also mentioned that they had invoked interim arbitration on 22.12.2006 to protect their interest.

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It is further case of the prosecution that even after time extension granted up to 31.07.2007, the Contractor i.e. M/s R.P.C.L. did not start the work. Accordingly, in the meeting held on 21.12.2006 in the office of the then Chairman, JSEB, he directed the Chief Engineer, APDRP to put up agenda for termination of the contract of M/s R.P.C.L. for the next meeting of the Board of JSEB. The then Chief Engineer, APDRP complied with the instruction and put up draft agenda and through his note dated 27.12.2006, the then Member (Technical) placed the matter, which reads as follows:

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“ Member(Technical)

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A meeting was held on 21.12.2006 in the office of the Chairman along with GM-cum-CE, Jamshedpur, ESE, Jamshedpur, CEs of Trans and Gen. etc. and progress of the on-going projects were reviewed by the Chairman. During the course of discussion, ESE/S/Jamshedpur had pointed out that M/s RPCL have not started the work of APDRP - even after extension of completion period. After discussion with me

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the Chairman instructed to place Agenda for next Board Meeting for termination of the contract of M/s RPCL. Accordingly, daft Agenda note is placed at C/397 for approval by Chairman.

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Chief Engineer (APDRP)”

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46. It is the specific case of the opposite party that in spite of such agenda been submitted through the aforesaid note dated 27.12.2006 of the then Chief Engineer, APDRP under instruction of the then Chairman, the then Member, Technical, J.S.E.B. did not comply with the same and the then Chairman, JSEB left his office on 02.01.2007. It is alleged that the then Member (technical), JSEB, in connivance with the other accused persons, held back the concerned file till the then Chairman, J.S.E.B continued in his office. The new chairman joined his office on 05.01.2007. On 19.01.2007, the Member (Technical) wrote “please discuss” on aforesaid agenda note dated 27.12.2006 and marked it back to the Chief Engineer, APDRP. There is no further note of the Chief Engineer, APDRP on the said agenda note dated 27.12.2006 and the next noting in the file is dated 08.06.2007 by the then Electrical Executive Engineer (EEE), APDRP Sri P.K. Sinha (Petitioner in Cr. Rev. No. 1057 of 2018) and it is not clear, at this stage, as to how the file reached to Sri P.K. Sinha (Petitioner in Cr. Rev. No. 1057 of 2018) without being placed before the Chief Engineer, APDRP. This is coupled with the allegation that Sri P.K. Sinha (Petitioner in Cr. Rev. No. 1057 of 2018) had prepared the file note dated 08.06.2007 totally suppressing the earlier file noting dated 27.12.2006 of the then Chief Engineer and also suppressing the Agenda No. 397 wherein a proposal for termination of the contract was already prepared and was kept in the record and was under consideration. It is alleged that, instead of taking the matter regarding termination of agreement forward, Mr. P.K. Sinha (Petitioner in Cr. Rev. No. 1057 of 2018), who was the Electrical

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Executive Engineer, APDRP, had put the said note dated 08.06.2007 seeking instructions on the following points:-

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i. Appointment of arbitrator, in the light of the advice of AG Jharkhand

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ii. Waiver of penalty, in the light of the advice of the A.G Jharkhand and

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iii. Putting the agenda for time extension incorporating condition of approval of revised BOQ which could not be given till date.

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47. Apart from the aforesaid allegation of suppression while preparing file noting dated 08.06.2007, it has also been alleged that the same is misleading and far from truth. It is alleged that the terms and conditions of the transmission wing was totally different from the terms and conditions of the contract involved in this case and the opinion of learned Advocate General, Jharkhand which was referred to in the aforesaid note dated 08.06.2007 was with respect to transmission wing which had no relevance for the work involved in this case. It is alleged that the intention to mislead is apparent from earlier file note relating to termination of the contract, but Mr. P.K. Sinha (Petitioner in Cr. Rev. No. 1057 of 2018) ignored the earlier file noting and prepared file note dated 08.06.2007 with a view to cause wrongful gain to the contractor in conspiracy with the contractor and other co-accused.

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48. It is alleged that as a consequence, the matter regarding termination of the contract was not taken forward and the Arbitrator was appointed who gave the Award and pursuant thereto, payments were made to the Contractor- M/s R.P.C.L. It is also alleged that such amount included amount on account of price variation which was never the subject matter of dispute. It is also alleged that Mr. P.K. Sinha (Petitioner in Cr. Rev. No. 1057 of 2018) in conspiracy with the other co-accused and with a malafide intention, deliberately suppressed the fact that the implementation of the Award would have a financial impact of additional 11 Crores which amount was not available for making payment to the Contractor and that such

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additional fund could be arranged only after approval of the Ministry of Power, Government of India. It is also alleged that the file was moved for making payment of bill amounting to Rs. 7 crores and odd and net value of Rs. 4.8 Crores and odd was paid after order was passed by the Financial Controller, though he had no authority to pass an order for making payment for the sum of Rs. 3 Crores and above and such authority was either lying with the Member, Finance or Chairman of the J.S.E.B. Likewise, the payment of Rs. 2.75 Crores and odd was made towards price variation from the project cost. Ultimately, it has been alleged that the total cost of project was Rs. 33.13 Crores as against that, the work done including the cost of material was worth Rs. 19.85 Crores and odd, but the contractor was paid a sum of Rs. 28.90 Crores and odd and thereby, a sum of Rs. 9.05 Crores and odd has been paid in excess.

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49. It has also been alleged that while putting up the file before the learned Advocate General for opinion, one of the queries which was put before the learned Advocate General was whether the Award of the learned Sole Arbitrator for claim under “price variation”, in absence of such provision in the agreement, is maintainable. It is alleged that it was not brought to the notice of the learned Advocate General that there is a negative covenant in connection with the price variation and accordingly, the learned Advocate General had opined that the Award of learned sole Arbitrator in respect of price variation is justified and the same is maintainable. Consequently, an incorrect decision was taken to implement the Award. Subsequently, when a decision was taken to challenge the Award, much time had elapsed and the challenge to the Award had become time-barred.

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50. So far as the petitioner in Cr.M.P No. 1819 of 2016, Sri. S.C Shrivastava, the then Electrical Superintending Engineer (In-charge), APDRP is concerned, it is alleged that he, in criminal conspiracy with P. K. Sinha (Petitioner in Cr. Rev. No. 1057 of 2018) and other coaccused had marked the file to the co-accused Niranjan Ray in the light of the aforesaid file noting which suffered from material

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suppression as stated above. It is not in dispute that Sri S.C Shrivastava was holding the post of In-charge Electrical Superintending Engineer, APDRP who is the immediate higher authority of the co-accused Electrical Executive Engineer Sri P.K. Sinha. Under such circumstances, it cannot be said, prima-facie, that the file noting by Sri S.C. Shrivastava was a mere endorsement particularly when there is an allegation of criminal conspiracy amongst the petitioners in both these cases alongwith other coaccused. It is alleged that the petitioner (Sri S. C. Shrivastava) being higher in rank to the Electrical Executive Engineer, P.K Sinha, was also responsible and was also under an obligation to refer to the earlier file noting and he cannot be absolved merely on the ground that he was holding the post for a short period of time.

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51. This Court is of the considered view that prima-facie, the allegations reveal that at an earlier stage, extension of time was given to the Contractor with certain condition, which was protested by the contractor and thereafter, when the Contractor did not take any steps for completion of work, there were certain file noting under the instructions of the then chairman of JSEB to prepare an agenda for the purposes of termination of the contract with the contractor and a draft agenda for such steps was also prepared and was under consideration. However, the petitioners i.e. Mr. P. K. Sinha, the then Electrical Executive Engineer, made the subsequent file note on the basis of request/representation made by the Contractor and Sri S.C. Shrivastava, the then Electrical Superintending Engineer endorsed the file note prepared by Mr. P.K. Sinha, but there is no whisper about the earlier file noting and the related agenda for termination of the contract. Apart from this, there are other allegations in connection with wrongful decision in referring the matter to arbitration, decision in connection with implementation of the award and belated decision to challenge the award which was ultimately not interfered on account of delay.

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52. Considering the aforesaid aspects of the matter, this court is of the considered view that more than prima-facie case is made out against the petitioners in both these cases and there are enough materials on record to proceed for trial against the petitioners. The conspiracy angle amongst the petitioners and the other co-accused has to be examined in detail at appropriate stage.

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53. This Court finds that the learned court below, while considering the discharge petition of the petitioner, has considered the law laid down by the Hon’ble Supreme Court in various judicial pronouncements that at the stage of framing of charge, the court is not to see as to whether there is sufficient ground for conviction of the accused or the trial is sure to end in conviction, but it has only to be seen by weighing the materials collected during investigation that if upon whole consideration of the materials collected by the investigating officer during investigation, a prima facie case is made out to proceed for the trial against the accused or not. There is also no doubt that the direct evidence of conspiracy is very rarely found and there can be direct as well as indirect evidences so far as conspiracy aspect is concerned.

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54. There are three judgments passed in the case of co-accused which have been relied upon by both the petitioners. They are: -

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i. Judgment dated 05.02.2016 passed in the case of Umesh Kumar in Cr.M.P. No. 2136 of 2015,

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ii. Judgment dated 12.04.2016 passed in the case of Virendra Pratap Dubey in W.P.(Cr.) No. 473 of 2015,

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iii. Judgment dated 11.07.2016 passed in the case of Debashis Mahapatra in W.P.(Cr.) No. 525 of 2015,

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All the petitions have been allowed in favour of the respective petitioners.

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55. From perusal of the judgment dated 05.02.2016 passed in the case of co-accused Umesh Kumar in Cr.M.P. No. 2136 of 2015, this Court finds that the entire criminal proceedings against Mr. Umesh Kumar was quashed, inter-alia , on the ground that the only role

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played by Mr. Umesh Kumar was that he came into picture only at the stage of disbursal of the amount after the Award was passed. However, during the course of hearing, it has been brought to the notice of this court that the judgment passed in the case of Mr. Umesh Kumar is pending consideration before the Hon’ble Supreme Court in SLP (Criminal) No. 004062 of 2017 which has been registered on 05.05.2017. This Court finds that said judgment is clearly distinguishable from the facts and circumstances of the case of the present petitioners as the roles of the present petitioners start much prior to that of Mr. Umesh Kumar. Thus, the judgment passed in the case of the co-accused Mr. Umesh Kumar does not help the petitioners in any manner whatsoever.

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56. From perusal of the judgment dated 12.04.2016 passed in the case of Virendra Pratap Dubey in W.P.(Cr.) No. 473 of 2015 and judgment dated 11.07.2016 passed in the case of Debashis Mahapatra in W.P.(Cr.) No. 525 of 2015, this court finds that the criminal case against them were quashed on the ground that earlier the sanction for prosecution against them was rejected and subsequently, there was a review of sanction order without any fresh material for consideration. Accordingly, this Court finds that these judgments do not apply to the facts and circumstances of this case.

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57. Learned counsel for the petitioner has raised a point that the audit objection, which was raised, was dropped by the Legislative Assembly after its due consideration. This Court finds that at the time of dropping of the audit objection, it was observed that the Award itself is under challenge before a competent court of law and considering this aspect of the matter, the audit objection was dropped. This Court is of the considered view that merely because an audit objection has been dropped, it does not give a clean chit to the petitioners or other accused persons in the criminal case, if otherwise a criminal case is made out against the accused persons.

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58. Learned counsel for the petitioners has also raised a point that C.B.I. had also taken up the matter and ultimately, the C.B.I. also did

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not find any criminal case. He has further referred to the fact that the matter was taken up by the C.B.I. pursuant to certain orders passed in the Public Interest Litigation. In this regard, the petitioner has produced a copy of the order dated 28.03.2011 passed in C.W.J.C. No. 1793 of 2001 with W.P.(PIL) No. 4611 of 2009 with W.P.(PIL) No. 2918 of 2010 and has referred to Paras-30 and 31 of the said order, which read as follows:

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“30. Proceedings were initiated as far back as in the year 2001. Various assurances have been made on behalf of the State Government and the Board but none of them had ever been fulfilled. The kind of approach which is obtaining on record requires a thorough investigation. Therefore, it is ordered that an investigation by Central Investigating Agency be made in the affairs of the Jharkhand State Electricity Board and the Government officials who have handled the issue and have not been able to bring up a utility service Board to its expectation even with the interference of this Court which had started as far back as in the year 2001.

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31. In this regard, The Registrar General of this Court will forward a letter to the Director, Central Bureau of Investigation, New Delhi, to look into the affairs of the Jharkhand State Electricity Board and other concerned officers of the State Government who have not made any necessary efforts to make the supply of electricity convenient. If need be and if it is found by the C.B.I. that criminality is involved, they will register proper F.I.R against the concerned, C.B.I. may involve with it a technical expert and a financial expert, who will do the necessary technical support to the Investigating Agency.”

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59. This Court finds that in the said Public Interest Litigation, a direction was made to the Registrar General of this Court to forward a letter to the Director, Central Bureau of Investigation, New Delhi to look into the affairs of the Jharkhand State Electricity Board and other concerned officers of the State Government who have not made

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necessary efforts to make the supply of electricity convenient and it was also observed that if the C.B.I. finds any criminality, then they will register a proper First Information Report against the concerned persons. It was also observed that for this purpose, the C.B.I. may involve with it a technical expert or financial expert who will give the necessary technical support to the investigating agency. This Court finds that the present First Information Report in connection with the alleged offence in the present case was instituted as back as on 20.01.2011 and on the date, the aforesaid order dated 28.03.2011 was passed by this Court in the PIL, the matter was being investigated by the Vigilance Bureau. There is no such direction passed by the Hon’ble Division Bench of this Court to transfer the pending investigations of the offence involved in the present case to C.B.I. Accordingly , this court is of the considered view that the order dated 28.03.2011 passed by this Court in the PIL has no bearing in this case. 60. This Court also finds that certain complaints were made to the C.B.I. by the accused of the present case that they are being harassed at the hand of the Vigilance Bureau and ultimately, the C.B.I. did not institute any case. This Court finds that in such circumstances, it cannot be said that the C.B.I. had investigated the matter regarding the allegations made in the present case and ultimately, did not lodge the First Information Report. The present F.I.R., having been lodged as back as on 20.01.2011 and after due investigation charge-sheet has been submitted, the contention of the petitioner that the C.B.I. had investigated the matter and had given a clean chit by not instituting an F.I.R., has no bearing in the present case and accordingly, this submission is hereby rejected. In the aforesaid view of the matter, the judgments relied upon by the petitioners in the case reported in (2011) 3 SCC 758 and (2013) 3 SCC 594 do not apply to the facts and circumstances of this case.

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61. The learned counsel for the petitioners has relied upon a judgment reported in (2012) 2 SCC 93 (Reva Electric Car Company Private Limited Vs. Green Mobil) (Paras-33 and 34) to submit that

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referring the matter to arbitration by itself cannot be said to be a crime. There is no dispute so far as this proposition of law is concerned. However, the said judgment has no bearing in the present case as the allegations relate to the manner in which the decision was taken by suppression of material facts in connivance with the contractor and other co-accused while preparing, forwarding and placing file note before the competent authority for taking a decision in the matter and had the file note been properly prepared and put up before the competent authority, the agenda to terminate the contract could have been taken to a logical end and could have a bearing in the decision to send the matter to arbitration. The allegations also allege criminal conspiracy in the manner in which decision was taken not to challenge the award and further decision to implement the award and make payment as per the award. Some of the details of such allegations have been mentioned in the above paragraphs. Considering the nature of allegations involved in the present case and the materials relied upon by the opposite party collected during investigation, the aforesaid judgment does not help the petitioners in any manner at this stage of the case.

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62. So far as the judgment passed by the Hon’ble Supreme Court in the case of “K.N. Sathyapalan (Dead) by LRS. Vs. State of Kerala and Another” reported in (2007) 13 SCC 43 (Paras-18, 27, 31 and 34) is concerned, the same also does not apply to the facts and circumstances of this case as this court, at this stage, has no occasion to examine the legality or validity of the award, challenge to which was ultimately declined being time barred. It is the decision-making process initially taken not to challenge the award and the decision to implement the award and the manner of providing the finance to satisfy the award, which are under cloud in the present criminal case against the petitioners and other co-accused including the contractor alleged to be in criminal conspiracy amongst each other and causing wrongful loss to the JSEB and wrongful gain to the contractor.

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63. As a cumulative effect of the aforesaid findings and considering the facts and circumstances of the case, this Court does not find any merit in these petitions calling for any interference at this stage and accordingly, the present petitions are dismissed.

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64. However, it is made clear that dismissal of these petitions will not prejudice the case of the petitioners before the learned court below.

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65. Pending interlocutory application, if any, is dismissed as not pressed.

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66. Interim order, if any, stands vacated.

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67. Let a copy of this order be immediately communicated to the learned court below.

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(Anubha Rawat Choudhary, J.)

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Pankaj