Manoj Gupta Vs. The State of Jharkhand Through Cbi - Court Judgment

IN THE HIGH COURT OF JHARKHAND AT RANCHI A.B.A.No. 168 of 2016 Narendra Pal Garg ..... Petitioner Versus The State of Jharkhand through C.B.I .... Opposite party With A.B.A.No. 4601 of 2015 Manoj Gupta ..... Petitioner Versus The State of Jharkhand through C.B.I .... Opposite party --------- CORAM: HON'BLE MR. JUSTICE ANANT BIJAY SINGH --------- For the Petitioners : M/S Indrajit Sinha, Chandrajit Mukherjee, adv. For the C.B.I. : Mr. K.P.Deo, S.C. --------- C.A.V. on 19.07.2017 Pronounced on 27/ 07/2017 Both the applications are heard together and disposed of by this common order as both the cases arising out of same case being R.C.No.03(A)/2015-R, registered under Section 420/468/471 of the IPC read with Section 13(2) R/w 13 (1) (d) of the P.C. Act. The brief facts of the case is that one S.K.Khare, Superintendent of Police/HOB, CBI, ACB Ranchi got information from reliable source that one Narendra Pal Garg, the then OSD(Project) and Sri Abhay Nindakan Tigga, the then Electrical Engineer, both of Central University of Jharkhand (CUJ), Brambe, Ranchi, entered into a criminal conspiracy with Ranjit Kumar and other unknown during the period 2012-2013 and committed an offence of cheating and criminal misconduct and in pursuance thereof, the public servants as above, by abusing their official positions, caused a wrongful loss of Rs.4,51,500.00 (Approx) to the Central University of Jharkhand and corresponding wrongful gain to the above mentioned private firm, in the matter of procurement of 43 nos. of Split Air Conditioners of LG company at exorbitant and fraudulently declaring it as lowest bidder (L-1), whereas the rates quoted by the firm was much higher than the other bidding firms. It appears that the C.B.I., after investigation has submitted final form on 30.06.2015. From perusal of the final form, reveals that on 03.03.2012, A.N.Tigga, the the then Electrical Engineer, Central University of Jharkhand raised an indent for purchase of 40 nos. of 1.5. ton capacity split A.C for installation in 20 new class-room in the Academic complex and other rooms in the administrative block of the temporary campus of Central University of Jharkhand at Brambe. The file along with probable cost of A.Cs was marked to N.P.Garg, OSD, Project, Shri Garg marked the file to D.T.Khathing, Vice Chancellor and on 03.03.2012 itself, the V.C approved for tendering after due process. On 6.03.2012, a notice inviting tender was uploaded on the website of the University by N.P.Garg, OSD for the purchase of the aforesaid A.C. The A.Cs were to be heavy duty having BEE5star rating and the bidder was required to submit both the technical bid and the price bid. The rates were to be quoted inclusive of all taxes and levies. The said NIT was only available on the website of the University and was not published in the News Papers. In response to the said NIT, the following 8 firms submitted their tender bid. (a) Aircon Service Center, Kadru, Ranchi (b) Janhvi enterprises, Kadru, Ranchi (C) Bajaj Electrical Ltd, mahabir Chowk, Ranchi (d) Carrier Media (I) Pvt. Ltd. Main Road, Ranchi (e) Maruti Sales, Old H B Road, Ranchi (f) Divya Enterprises, Old H.B., Road, Ranchi (g) Swastik Supply Co, Upper Bazar, Ranchi (h) Pratibha & Co., Hehal, Ratu, Ranchi Investigation further disclosed that the technical and price bids were opened on 20.3.2012 by the Tender Committee comprising N.P.Garg, OSD Projects, Sitaram Swarnakar, Account Officer, Kumar Pankaj Anand, Sanjay Kumar Singh, A.N.Tigga and Kiran Jain in the presence of the bidders. On 22.3.2012 a comparative chart in respect of the 8 bidders who participated in the NIT was prepared by Shri A.N.Tigga. As per comparative chart out of the remaining three firms M/s Pratiba & Company was shown as L-1 as his rate was below 7.8% of the estimated rate. M/s Divya Enterprises was shown as L-2 at 5.5% and M/s Maruti Sales was shown as L-3 at 0.43% below the estimated rate. On 26.3.2012 a supply order vide No.CUJ/OSD Project/2011-12/15-77 was issued in favour of M/s Pratibha & Company, Ranchi by N.P.Garg, OSD, for supply of 40 numbers of 1.5 ton split AC heavy duty type with BEE5Star on 26.03.2012. Investigation further reveals that Shri Ranjit Kr. Sinha, Proprietor of M/s. Pratibha & Co. placed verbal order on Shri Manoj Gupta of M/s Maruti Sales for supply of 40 nos. of split A.C. Investigation further disclosed that Shri Manoj Gupta (petitioner in ABA No.4601/15) as proprietor of M/s Divya Enterprises, Ranchi and his brother Deepak Gupta Proprietor of M/s Maruti Sales, Ranchi both had also participated in tender bid for the work of Providing and Fixing of 1.5 ton AC in the 20 Classrooms constructed in the academic complex of Central university of Jharkhand, Brambe during March 2012. M/s Divya Enterprises had quoted rate of 42,500/- and M/s. Maruti Sales had quoted Rs.42,700/- for L.G15 ton split A.C5Star rating. Investigation further disclosed that Shri Manoj Gupta purchased 40 nos. of A.Cs from LG Electronic India Pvt. Ltd., Ranchi on behalf of the Shri Ranjit Kumar Sinha for installation of the same in the Central University, Ranchi. On the basis of the above mentioned facts the instant case has been registered. ABA No.4601 of 2015 Learned counsel for the petitioner, Manoj Gupta, has submitted that the petitioner has no concern with the firm of Ranjit Kumar Sinha, namely, M/s Pratibha and Company, which actually supplied the ACs to the University. That as per the order given by the University for supply of 2 and 3 star A.Cs, which was complied with by the petitioner and 40 units of A.Cs were supplied for installation in the University. It is further submitted that so far as allegation of tampering with the sticker of the A.C is concerned falls flat on the petitioner and if at all tampering has been done it has been done after supply of the units by M/s Maruti Sales. Lastly, it is submitted that the petitioner was never arrested during course of investigation and the petitioner has fully cooperated and helped the CBI during the investigation and the investigation was completed and final form has been submitted and the petitioner has no criminal antecedent and the trial will take some time. So the petitioner deserves privilege of anticipatory bail. ABA No. 168 of 2016 Learned counsel for the petitioner, Narendra Pal Garg, has submitted that the petitioner is the then OSD, Central University of Jharkhand and he has not himself evaluated and awarded the works for installation of A.Cs. It is further submitted that the petitioner had no role in rejection of bids of other firms which are done by other co- accused, namely, Nindkan Tigga, the then Electrical Engineer, who had prepared the comparative statement. It has submitted that the Central University of Jharkhand was established through Central Universities Act, 2009 the entire universities is governed under the norms of this Act, which reveals that the president of India shall be the Visitor of the University and it is well settled that if any irregularity or illegality done by anyone the complain should be made before the Visitor or the University. In this case there was no any compliant made before the Visitor or the Visitors has not found any irregularity in the entire alleged work. It is further submitted that the CBI had not collected any evidence showing Quid pro quo and in support of the same he has referred a judgment passed in the case of A. Sivaprakash Vs. State of Kerala reported in (2016) 12 SCC273 para 18 of the aforesaid judgment reads as follows:

18. ?? It was not even the case set up by the prosecution that appellant had taken that money from some person and had obtained any pecuniary advantage thereby. It was the obligation of the prosecution to satisfy the aforesaid mandatory ingredients which could implicate the appellant under the provisions of Section 13 (1) (d)(ii). The attempt of the prosecution was to bring the case within the fold of clause (ii) alleging that he misused his official position in issuing the certificate utterly fails as it is not even alleged in the charge-sheet and not even iota of evidence is led as to what kind of pecuniary advantage was obtained by the appellant in issuing the said letter”. It is further submitted that the petitioner has a brilliant career and there is absolutely no any adverse remarks or allegation in his entire career and whenever the court directed him he was physically present before the court and the petitioner has always cooperated and helped the CBI in the investigation and the petitioner was never arrested during course of investigation and the investigation was completed and final form has been submitted and the trial will take some time. So the petitioner deserves privilege of anticipatory bail. On the other hand, learned standing counsel for the C.B.I. has opposed the prayer for anticipatory bail and submitted that during investigation of the case, sufficient and documentary evidence have been collected to prove the charge levelled against these petitioners, and during investigation of the case active role of the accused persons have been found and by abusing their official position, caused a wrongful gain of Rs. 4,51,500.00 (Approx) to the above mentioned private firms and corresponding wrongful loss to the Central University of Jharkhand, Ranchi. It is further submitted that similarly situated co-accused Ranjit Kumar Sinha @ Ranjit sinha and Abhay Nindkan Tigga had preferred anticipatory bail being ABA Nos. 3694/15 and 3818/15 and their anticipatory bail applications were rejected vide order dated 15.12.15 and 7.12.2015 respectively by a coordinate Bench of this Court. So the petitioners do not deserve anticipatory bail. Having heard the learned counsel for the parties and after going through the records, final form, material collected by the C.B.I. against the petitioners and also the fact that final form has been submitted in this case, trial will take some time and during investigation, these petitioners have fully co-operated in the investigation and they were never arrested by the C.B.I. Admittedly, anticipatory bail applications of similarly situated co-accused, namely, Ranjit Kumar Sinha @ Ranjit sinha and Abhay Nindkan Tigga in ABA Nos. 3694/15 and 3818/15 respectively have been rejected by other Coordinate Benches of this Court, but in those cases, the point was not argued that during investigation, petitioners therein had fully cooperated in the trial and they were not apprehended by the police. In the facts and circumstances of the case, I am inclined to admit these petitioners on anticipatory bail. The above named petitioners are directed to surrender in the court below within four weeks and in the event of their arrest or surrender, the court below shall release them on bail on their furnishing bail bond of Rs.25,000/- (twenty five Thousand) each with two sureties of the like amount each to the satisfaction of learned Special Judge, CBI, Ranchi, in connection with R.C.03(A)/2015-R, subject to the condition as laid down under Section 438(2) of the Cr.P.C. Subject to further conditions that one of the bailors must be a local resident of Ranchi district. Petitioners shall fully cooperate with the CBI and also physically appear on each and every date before the trial court till framing of charge. If they want exemption from appearance, they will inform the CBI in advance and after taking necessary permission from Special Court, CBI, they may be exempted from personal appearance. The petitioners shall not try to influence the prosecution witnesses during trial. The petitioners shall deposit their passport, if any, before the trial court and if the petitioners fail to do so, as directed by this Court, the CBI shall file an application for cancellation of their bail before this Court. Let a copy of this order be communicated to the trial court as well as a copy of this order be handed over to the learned standing counsel for the C.B.I. (Anant Bijay Singh, J.) Fahim/-