Ramesh Laxman Naik Mandrekar and Others Vs. State - Court Judgment

1. All the three Criminal Revision Applications are being disposed of by this common judgment and order as the issue involved in all the three revisions is same inasmuch as the revision petitioner/original accused nos.3,4 and 5 have asked for discharge from Special Case No.4/2003 pending before Special Court, North Goa, Panaji. All the three revision petitioners have prayed for quashing and setting aside the order dated 25/06/2008 passed by learned Special Judge, North Goa, Panaji vide which charges were directed to be framed against the present petitioners along with other co-accused.

2. Heard learned Counsel for respective petitioners. Also heard learned Public Prosecutor for the respondent, State, through CBI, Panaji-Goa. Prior to appreciating the rival submissions on the aspect whether the petitioners can be discharged from the proceedings, certain earlier events and certain admitted position can be narrated in order to have proper perspective of the case.

3. On or about 25/10/1999, First Information Report came to be lodged against the present petitioners and other co-accused for the offences punishable under Sections 420 and 120-B of the Indian Penal Code and also punishable under Sections 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988. The prosecution case in nutshell is that sometime during the years from 1992-97 the original accused no.5, the petitioner in Criminal Revision Application No.45/2011, then Superintendent Engineer, PWD, Goa and working as Deputy General Manager (Engineering) of Economic Development Corporation (EDC), entered into a conspiracy with original accused no.1, then General Manager and Managing Director of EDC, accused no.2, then Executive Engineer, PWD, accused no.3 i.e. petitioner in Criminal Revision Application No.50/2011, Managing Director of M/s. Shrikhande Consultants Private Ltd. and accused no.4 i.e. petitioner in Criminal Revision Application No.58/2011, the partner of M/s. Shirwaikar Electrical Enterprises (for short, S.E.E.). In pursuance of said conspiracy accused nos.1 and 5 abused their official position as public servants and in furtherance of the said conspiracy a pecuniary loss was caused to the Government of Goa to the tune of Rs.39.00 lakhs and odd in the matter of giving tender for construction of Sewerage Treatment Plant (for short, STP) on the land as EDC Plaza at Patto, Panaji. Without going much into details as to what had earlier happened and how the said tender/contract was given to accused no.4 i.e. petitioner in Criminal Revision Application No.58/2011 at the instance of directions from the Hon'ble Apex Court, suffice it to say that accused no.4 was allotted the said contract for Rs.82.00 lakhs and odd. As per the terms and conditions of the tender the contract work of sewerage treatment plant was to be completed by March, 1994, but it was not so done and EDC paid total Rs.123.00 lakhs and odd to M/s. S.E.E. of accused no.4 and even after 8 years the work was not completed or commissioned.

4. On or about 27/09/2006, the Special Court heard the arguments on framing of the charge and the impugned order was passed on 25/06/2008 thereby charges were framed against all the accused including the present petitioners for offences punishable under Section 120-B and 420 of Indian Penal Code and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. On this framing of charge Criminal Revision Application No.61/2008 and other revision applications were preferred by the petitioners before this Court. On or about 29/10/2010, this Court remanded back the matter for consideration of the special Judge on certain grounds which were taken by amending the revision application. While remanding back the matter the order dated 25/06/2008 was set aside. Thereafter, on or about 5/04/2011, another order came to be passed by the Special Court discharging original accused nos.1 and 2 from the Special Case no.4/2003. However, accused nos.3, 4 and 5 i.e. the present applicants were not discharged and were directed to be tried for the offences earlier charged.

5. After the above, without going into much details, it can be mentioned that appropriate steps were taken by CBI so far as discharge of accused nos.1 and 2 and as the present position stands the said accused nos.1 and 2 are again arraigned as accused persons along with the present petitioners and, as such, all the 5 accused persons are required to face the charges already framed vide order dated 25/06/2008 and, as such, being aggrieved by the said earlier order and as the liberty was given to the present petitioners to again reagitate the issue of framing of charges on merits and also on other legal aspects, present Criminal Revision Applications are preferred and are being considered in this order.

6. This Court has gone through the impugned order dated 25/06/2008 and the reasoning given by then Special Court while framing the charges against the applicant and other co-accused.

7. Needless to mention that at the time of framing of the charge what is to be ascertained by the Court is if the material collected during the investigation is accepted as it is and still there cannot be any case spelt out against any of the accused for the alleged offences, the said respective accused can be discharged. Bearing in mind this basic principle, the material as available against the respective applicants is scrutinized.

8. So far as the material as against accused no.5, then public servant is concerned, during January 1992, he was working as Deputy General Manager (Engineering) and issued tender documents to M/s. S.E.E. of accused no.4, though the said party was not eligible for issue of said tender documents as per conditions of said tender notice. The tender notice was published in daily Herald dated 1/02/1992 and one of the conditions was satisfactory completion of at least one work and water/sewerage treatment plant of Rs.30.00 lakhs or more. The said firm M/s. S.E.E. had disclosed the experience certificate for the work done of Rs. 1.00 lakh and odd and said firm did not have any tie up with reputed firms engaged in construction of sewerage treatment plant. As such, prima facie, said party M/s. S.E.E. of accused no.4 i.e. petitioner in Criminal Revision Application No.58/2011 was not qualified for the work. However, accused no.5 requested the architect engaged by EDC to issue tender documents to accused no.4. That time, the architect was not informed regarding no fulfillment of tender condition by the firm of accused no.4. Apart from this, the quotation of accused no.4 was fourth lowest as it had quoted Rs.1,11,00,000/- and odd, whereas one another company M/s. Alcon Constructions had quoted Rs.93,57,000/- and odd. On this aspect, the statement of one Bipin Bepari and also the statement of one Arwind Ghatkar are of much relevance and the statement of Ghatkar was recorded on various dates such as 31/01/2001, 22/02/2001, 23/03/2001, 27/03/2001, 28/03/2001, 29/03/2001, 2/04/2001, 3/04/2001 and 4/04/2001. All these statements give minute details as to what had transpired and show the involvement of the accused persons including the applicants. Minute details contained in the said statements need not be explained and reproduced at this juncture as the rowing inquiry as to pros and cons of the said statements is not warranted while deciding the application for discharge.

9. According to the prosecution witnesses, and mainly the statements of Ghatkar, accused no.1 R.R. Borkar took charge as full fledged Managing Director of EDC as on 20/02/1995 and in that position he has agreed that the views taken by accused no.5 which were prima facie incorrect. Apparently, it was already decided by accused nos.1 and 5 to give the contract to M/s. S.E.E. of accused no.4 by rejecting other tender and on this M/s. Alcon Constructions approached this Court challenging award of work to M/s. S.E.E. This Court granted status quo, but on this office of EDC approached the Hon'ble Supreme Court and then the directions were given by the Hon'ble Supreme Court for reinviting the tenders and work to be allotted to the lowest tenderer. By this time, M/s. S.E.E. of accused no.4 had given the lowest bid of Rs.82.00 lakhs and odd when in fact the estimated costs of the work as per the EDC was Rs. 87.25 lakhs. On this aspect, learned Counsel on behalf of the accused nos.3 and 5 submitted that the Technical Advisory Committee has also granted the sanction and in the meeting held on 14/08/1992 of Technical Advisory Committee various other persons, not arraigned as an accused, were also present and they gave their expert opinion. It is argued on behalf of the applicants that said other persons include one advocate from Supreme Court, giving legal advise to EDC, other persons i.e. M.D. Lalmalsawma and Joint M.D. Dr. Modassir are also equally responsible for taking the decision for award of the contract to the firm of accused no.4. On this aspect, the reasoning given by the Special Court is gone through by this Court wherein it is specified that whether or not other persons are arraigned as accused is not a question to be agitated at this stage, but what is necessary to be seen is prima facie involvement of the accused persons including the present applicants. Again on this aspect, it is vehemently argued on behalf of the applicants that even the said decision of giving contract to M/s. S.E.E. was further approved by the Board and, as such, any wrongful decision taken by the accused nos.1 and 5 could have been reversed by the Board. Again on this aspect, there is a statement of witness Arwind Ghatkar recorded on 22/02/2001 from which it is revealed that the Board was apprehensive of awarding work to M/s. S.E.E. and then accused no.5 took the opinion of advocate from the Supreme Court and then accused no.1 proposed that the approval of the Board be taken by circular and, as such, it was subsequently got approved for awarding contract to M/s. S.E.E. Again on this argument, there is a similar answer inasmuch as whether other persons are accused or not is not a question, but prima facie involvement of the applicants is to be construed.

10. So far as accused no.3 i.e. the petitioner in Criminal Revision Application No.50/2011 is concerned, it is argued that he was a third party to the entire episode of giving contract work to accused no.4 by EDC and said accused no.3 is the sewerage expert in PWD. On this aspect, there are statements of witnesses and mainly that of Ghatkar that in the year 1994 when accused no.1 became Managing Director of EDC, he made personal attempts and made proposals to appoint new consultants for the work and then introduced accused no.3 as its new consultant. It is revealed through the statement of Shri Ghatkar that the initial requirement as per the tender for one particular item known as aerator of the capacity of 10 HP. However, accused nos.2 and 5 visited Mumbai and then took the decision to change the said capacity from 10 HP to 15 HP. For this change, there was no prior approval of Technical Advisory Committee or Board. Even the tender was only for the supply and erection of two 10 HP aerators. In fact, these two items were abnormally quoted by accused no.4. As such, accused no.4 changed the said aerators and charged some amount of Rs.5.4 lakhs and this was recommended by accused no.3, the sewerage expert appointed by accused no.1. According to the statement of Ghatkar recorded on 4/04/2001 basic price of 15 HP aerators was only Rs.1.32 lakhs, but the payment was made double the amount for each aerator and, as such, this circumstance coupled with other circumstances lead to the inference that there was conspiracy amongst these accused persons and of course this required to be established at the time of the trial. However, prima facie the involvement of the applicants is required to be accepted.

11. Again the prima facie involvement of accused no.3 can be ascertained from the another circumstance that M/s. S.E.E. had quoted Rs.5/- per meter for aluminium armoured cables, but accused no.3 recommended Rs.330/- per meter for the same cables on an extra item rate since the specification of the work was changed. In fact, it is revealed from the statement of Ghatkar and as per tender documents accused no.4 was not entitled to undertake any extra work not included in the list of items listed in the schedule of quantities and rates, but it was so undertaken and further expert opinion was given by accused no.3.

12. It is argued that simpliciter enhancement of the tender amount from Rs.82.00 lakhs to Rs.123.00 lakhs cannot be merely accepted as done with malafide intention to cause loss to the State exchequer. On this aspect, considering the statements of the witnesses as discussed earlier the said escalation in the price is not innocuous. Moreover, that aspect is to be dealt in detail by the trial Court when the matter will be put to trial after the charge and at the threshold a clean chit cannot be given to the applicants, opining that false case is lodged against them.

13. Lastly, the argument advanced on behalf of the petitioners as to CBI had no authority to file charge sheet or even authority to investigate the matter in the absence of any specific notification from the State Government is required to be discussed. On this aspect, it is strongly submitted on behalf of the petitioners that there is neither the consent given by the Government of Goa nor mandatory provisions prescribed under Section 3,5 and 6 of Delhi Special Police Establishment Act, 1946 have been complied with. Further argued that in that event the entire prosecution is vitiated and liable to be quashed and set aside. On this count, provisions of Section 3,5 and 6 of the said Act of 1946 are brought to the notice of this Court. The same are reproduced as under:

3. Offences to be investigated by special police establishment — The Central Government may, by notification in the official Gazette, specify the offences or classes of offences which are to be investigated by the Delhi Special Police Establishment.

5. Extension of powers and jurisdiction of special police establishment to other areas —

(1) Central Government may by order extend to any area (including Railway areas) a State, not being a Union Territory the powers and jurisdiction of members of the Delhi Special Police Establishment for the investigation of any offences or classes of offences specified in a notification under Section 3.

(2) When by an order under sub -section (1) the powers and jurisdiction of members of the said police establishment are extended to any such area, a member thereof may, subject to any orders which the Central Government may make in this behalf, discharge the functions of a police officer in that area and shall, while so discharging such functions be deemed to be a member of the police force of the area and be vested with the powers, functions and privileges and be subject to the liabilities of a police officer belonging to that police force.

6. Consent of State Government to exercise of powers and jurisdiction. — Nothing contained in Section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union Territory or Railway, area, without the consent of the Government of that State.

14. Counter to these arguments learned Prosecutor brought attention of this Court towards the notifications issued by Government of Goa dated 10/08/1998 and also the notification issued by Under Secretary to the Government of India dated 25/09/1998. Contents of both these notifications are reproduced hereunder for the sake of ready reference and plain reading of both the notifications need no further explanation and give answer to the objection raised on behalf of the petitioners on the locus of CBI. Said notifications are as under:

NOTIFICATION

In supersession of the notification of even number dated 10th July, 1998 referred to above and in pursuance of the provisions of Section 6 of the Delhi Special Police Establishment Act, 1946 (XXV of 1946), the Governor of the State of Goa is pleased to accord consent to the extension of powers and jurisdiction of the members of the Delhi Special Police Establishment to the entire State of Goa for investigation of offences as in the enclosed lost and attempts, statements and conspiracies in relation to, or in connection with the said offences and any other offences committed in the course of the same transaction arising out of the same facts.

By order and in the name of the Governor of Goa

sd/-

(A. Venkataratnam)

Secretary (Vigilance)

NOTIFICATION

S.O......................... In exercise of the powers conferred by sub-section (1) of section 5 read with section 6 of the Delhi Special Police Establishment Act, 1946 (Act. No.25 of 1946), the Central Government with the consent of State Government of Goa, Directorate of Vigilance, Panaji vide Notification No.13/11/87-VIG. dated 10.8.1998, hereby extends the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of State of Goa for the investigation of offences mentioned in the list enclosed and attempt, abetement and conspiracy in relation to or in connection with the above said offences and any other offence/offences committed in the course of the same transaction or arising out of the same facts.

Sd/-

(HARI SINGH)

UNDER SECRETARY TO THE

GOVERNMENT OF INDIA

15. Apart from the above, learned Prosecutor for the State brought attention of this Court to the Goa, Daman and Diu (Laws) Regulation, 1962 (No.12 of 1962), thereby bulk of Indian Legislation extended to the territory of Goa, Daman and Diu and brought into force on various dates. Specifically, it is brought to the notice of the Court that the act, The Delhi Special Police Establishment Act, 1946 (25 of 1946) was mentioned in Goa Government Gazette at serial no.44 and the date of the publication was 27/12/1962 and the Act was with effect from the same date. It is also brought to the notice that the act, The Prevention of Corruption Act, 1947 (2 of 1947) was mentioned in Goa Government Gazette at serial no.44 and the date of publication was 14/12/1962, whereas it was made effective from 27/12/1962. It must be mentioned that bulk of the Indian Legislation was extended to Goa. The fixation of the date of commencement of such acts was left to the discretion of the Lieutenant Governor, Goa. In this context, the notification which is also mentioned in para no.14, which was issued by the order and in the name of Governor of Goa is significant along with another notification mentioned in the same para issued by Under Secretary to the Government of India. Though during the arguments learned Counsel for the petitioners conceded to the position as to both the above referred acts applicable to Goa, after the date of publication and from the effective date, still it is argued by pointing out to the notification issued by the Under Secretary to the Government of India that said notification does not mention anything that it was issued under the directions or by the order and in the name of the President of India.

16. On the above subject in the opinion of this Court prima facie there do not appear any illegality, much less any irregularity in CBI investigating the matter and filing the charge sheet. Moreover, apart from raising this issue in the present application for revision, there is no separate application preferred under the writ jurisdiction. All the same, at the stage of framing of the charge this objection cannot come in the way of the prosecution and, hence, the same cannot be accordingly entertained.

17. Needless to mention that in the matter of framing of charge and dealing with the applications for discharge, the entire evidence need not be marshaled as is required to be done at the time of trial. If prima facie case is made out to proceed with the trial as against particular accused, then the said accused is required to be put to trial and cannot be discharged at the threshold by giving a clean chit without there being recording of evidence and marshalling of the same at the time of the trial. In any event, considering the material available in the present matter, it cannot be said that there is no case spelt out as against the petitioners and, as such, there is no merit in all the three criminal revision petitions and same are accordingly dismissed and disposed off.