Harshadbhai Govindbhai Patel Versus Vs State Of Gujarat & Anr.

Hasmukh D. Suthar, J

1. Since both these petitions are filed for quashing of a common FIR, hence heard, decided and disposed of by this common judgment.

[1.0] RULE. Learned APP Mr. H.K. Patel waives service of notice of Rule on behalf of the respondent No.1 – State of Gujarat and learned advocate Mr. A.D. Oza waives service of notice of Rule on behalf of respondent No.2 – original complainant. With the consent of learned advocates for the respective parties, present petitions are taken up for final hearing.

PROLOGUE:

[2.0] Criminal Misc. Application No.14370 of 2020 is filed by accused No.2 – Harshadbhai Govindbhai Patel, Account Officer, Gujarat Council of Education Research & Training, Gandhinagar (for short “GCERT”) and Criminal Misc. Application No.16043 of 2020 is filed by accused No.1 – Mr. Nikunj R. Thekadi, Director of Reliable Art Printery Pvt. Ltd. under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) with prayer to quash and set aside the impugned FIR being CR No.11216008200118 of 2020 dated 24.03.2020 registered with Sector-7 Police Station, Gandhinagar for the offences punishable under Sections 406, 420, 409, 467, 468 and 120(B) of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) alongwith all other consequential proceedings arising therefrom.

FACTUAL MATRIX:

[3.0] The brief facts as culled out from the petitions are as follows:

The accused No.1 – Reliable Art Printery Pvt. Ltd. (petitioner of CR.MA No.16043 of 2020) [hereinafter referred to as “accused No.1”) had applied for contract of printing work of various posters, folders, booklets, books, etc. to be carried out by GCERT along with six other contractors. The technical bids of the accused No.1 and one Gujarat Offset Private Limited alone were found to be qualified. Price bids of both these contractors were opened. It was found that the price quoted by the accused No.1 for various printing works was lower than that of Gujarat Offset Private Limited. The accused No.1 was given such work and has also executed the same. From time to time, the accused No.1 raised bills of such work done, which were cleared and paid.

[3.1] The entire controversy arises in view of the issue taken up by a public interest litigant viz. Mr. Prakash Kapadia alleging that the accused No.1 was made gross over-payments and the accused No.1 was paid double the price quoted than agreed between the parties. In short, the controversy is with respect to the rates quoted by the accused No.1 for printing on two sides of the same page. For example in case of multi-colour posters, folders, etc, the accused No.1 had quoted Rs.0.27 paise per page for 1000 copies including cost of papers for single side whereas for the same item, if the printing was to be done on both sides of a page, the accused No.1 had quoted Rs.0.29 paise. The accused No.1 contended that such quoting of Rs. 0.29 paise is per page per side and the accused No.1 was entitled to remainder of Rs.0.58 paise per page when the printing is carried out on both the sides. The case of Government is that even when the printing was done on two sides of the page, the accused No.1 was awarded contract at an agreed rate of Rs.0.29 paise only per page, printing on both sides. Thereafter, acting on the report of the CAG, respondent No.2 herein thought it fit to initiate appropriate proceedings against accused No.1 and its Directors. According to the report of CAG, the accused No.1 Company recovered an excess amount of Rs.6.90 Crore from respondent No.2 by indulging into alleged illegalities. In such circumstances, respondent No.2 issued show-cause notice to the accused No.1 calling upon to show-cause as to why the accused No.1 Company should not be blacklisted and why an amount of Rs.6.90 Crore should not be recovered. All these proceedings took place way back in the year 2016 to 2020.

[3.2] Respondent No.2 filed the impugned FIR against petitioners herein alleging that accused Nos.1 and 2 internally hatched criminal conspiracy and filled in tender issued by complainant GCERT for multi-color folders, books, adjectives, brochures, restricted statements, leaflets etc. printing of magazines and by making alteration in document of tender form subsequently, with dishonest intention and to commit cheating by concocting bogus documents and by taking excess amount of Rs.6,68,84,000/- from the Government of Gujarat and committed misappropriation of the said amount by committing offence of forgery, cheating and breach of trust with government.

SUBMISSIONS ON BEHALF OF PETITIONERS:

[4.0] Learned advocate Ms. J.N. Dekavadiya for the petitioners has mainly submitted that the impugned FIR is nothing but an abuse of process of law and a cloak of criminality is being given to civil dispute only with a view to recover the amount. In this regard, she has placed reliance on the decision of Hon’ble Supreme Court in the case of M. Suresh and Another vs. State of Andhra Pradesh and Another [(2018)15 SCC 273] as well as V.Y. Jose and Another vs. State of Gujarat and Another [(2009)3 SCC 78].

[4.1] She has submitted that the alleged incident took place in the year 2013 as GCERT has floated a tender for printing of different material for GCERT. Pursuant to the said tender, accused No.1 submitted the tender and work was allotted to him. After allocation of work and verifying the fact, the Department approved the tender and then after completion of work, had made the payment towards the bills raised by accused No.1 after approval of the competent authority. The entire process of tender and allocation of work was undertaken in presence of Director, Additional Director, Secretary of GCERT. The accused No.1 Company is having dot less career of 38 years in different departments without there being any kind of inquiry. Further, pursuant to one Public Interest Litigation filed by one Mr. Prakash Kapadia qua excessive payment made by the Department, the litigation started and for that, after a delay of 8 years, departmental inquiry came to be initiated under the guise of audit report submitted by CAG. During the interregnum period, the accused No.1 Company was blacklisted and said proceeding was challenged before this Court and said order of blacklisting was canceled and opportunity of being heard was availed to the petitioner – accused No.1 Company.

[4.2] She has further submitted that, the Department is interested in saving the skin of its officers and shifted the blame upon the accused No.1 Company and accused No.2, who was working as Account Officer in the Department, and had participated only in the meeting and unanimously decision was taken. No any tampering or interpolation being done either by accused No.1 or by accused No.2 still however, after 8 years making accused No.2 the scapegoat, impugned FIR is filed belatedly, without giving any explanation for the delay, alleging that the accused No.1 has committed the alleged irregularities in collusion and hatched conspiracy with the accused No.2 and thereby caused huge loss of Rs.6,68,84,000/- to the government exchequer. It is alleged in the FIR that accused No.2 has without verification confirmed the payment and payment being made to accused No.1. Further, she has submitted that pending the inquiry, accused No.2 was promoted as Deputy Director on 25.01.2016 and after serving in various departments, accused No.2 has superannuated. During the entire tenure of his service, accused No.2 has not faced any departmental proceedings and has put in service for 28 years. Though departmental inquiry is going on with regard to the same subject matter, impugned FIR is filed against the accused No.2 only with a view to save skin of higher officials, which is not maintainable as with a view to recovery money, criminal proceeding being initiated. In this regard, she has relied on the decision of the Hon’ble Supreme Court in the case of Indian Oil Corpn. vs. NEPC India Ltd. and Others [(2006)6 SCC 736].

[4.3] Further, no offence much less offence under sections 406 or 420 of IPC and/or under section 467 or 468 of the IPC is made out against the accused person as accused persons – present petitioners have not forged any document. In this regard, she has placed reliance on the decision of the Hon’ble Supreme Court in the case of Vir Prakash Sharma vs. Anil Kumar Agarwal and Another [(2007)7 SCC 373] as well as Vesa Holdings Private Limited and Another vs. State of Kerala and Others [(2015)8 SCC 293].

Hence, learned advocate for the petitioners has requested to allow the present petitions and quash and set aside the impugned FIR.

SUBMISSIONS ON BEHALF OF RESPONDENT NO.2 -COMPLAINANT:

[5.0] Respondent No.2 has filed affidavit in reply and denied all the averments and contentions made in the petitions. In addition to the submissions made in the affidavit in reply, learned Learned advocate Mr. A.D. Oza for respondent No.2 – original complainant – GCERT has submitted that pursuant to the public interest litigation filed by one Mr. Prakash Kapadia entire scam is unearthed for which detailed inquiry came to be initiated and during the inquiry irregularity and commission of offence is noticed whereby the accused persons in collusion and connivance of each other hatched criminal conspiracy though once the committee has approved the tender on the same terms and conditions though subsequently letter was addressed to the accused No.1 and subsequently interpolation being made in the tender and accused No.1 has taken undue advantage and caused loss of Rs.6,68,84,000/- to the government and siphoned the said amount. The said fact also came to light pursuant to the audit conducted by the CAG. Further, he has submitted that the petitioners have tampered and manipulated two documents and siphoned the government funds for their personal gain and advantage. Further, accused No.2 has unauthorizedly written the letter to the accused No.1 on 24.04.2013 and tampered the tender documents in collusion and connivance of bidder – accused No.1 Company. Even, subsequently, during inquiry other names have also surfaced. Hence, this is not a case wherein only accused No.2 is made scapegoat but due to COVID-19 pandemic, there was interim relief granted and due to this investigation is stalled till date.

[5.1] Insofar delay in lodging complaint refuting the submission of learned advocate for the petitioners, the impugned FIR is filed belatedly after 8 years, he has submitted that, as such there is no delay on the part of the department but due to one or the other reason, accused No.1 Company protracted the litigation and filed various numbers of litigation before this Court including civil suit and after getting the CAG report and approval of government, impugned FIR is filed but when the FIR was filed on 24.03.2020 then COVID-19 pandemic erupted and due to lock-down further proceedings being stalled and investigation is also at nascent stage and petitioners are enjoying the interim relief and are protracting the litigation. Even, during the inquiry many irregularities and involvement of other officers has also surfaced but as investigation is stalled, accused No.2 and other officials got superannuated and therefore, he has requested to vacate the interim relief granted in favor of accused No.1 vide order dated 29.10.2020 by the coordinate Bench for which respondent No.2 had filed application being CR.MA No.1/2021 in CR.MA No.16043/2020 for vacating interim relief.

[5.2] Further, he has submitted that, there is no delay on the part of the government and delay is well explained in the complaint. He has submitted that, earlier proceedings of black-listing of accused No.1 was initiated wherein this Court has been pleased to direct to initiate appropriate proceedings pursuant to which the complaint was also filed. Thus, being aggrieved and dissatisfied with the said order dated 12.02.2020 passed in Special Civil Application No.17490/2019, accused No.1 had filed Misc. Civil Application No.1/2020 in SCA No.17490/2019 requesting to issue appropriate order clarifying that paragraph No.18 of the order dated 12.02.2020 passed in SCA No.17490/2019 did not permit filing of any FIR by the opponent against the accused No.1. The said review application came to be disposed of as withdrawn. The entire scam has unearthed due to filing of PIL and now inquiry report is also submitted by the fact finding committee and based on the report of CAG, impugned FIR is filed and prima facie involvement of petitioners being found, this is not the stage to appreciate the evidence and no defence of accused can be looked into at this stage.

[5.3] Further, he has submitted that during the audit by CAG, said fact came to light and accused No.1 Company had filed one civil suit also being Special Civil Suit No.213/2016 and sought injunction against initiation of any action pursuant to the CAG audit report which came to be rejected and then the suit was withdrawn. Hence, no delay is caused on the part of the complainant but the delay is caused due to one after another frivolous litigation filed by the accused No.1. Hence, he has requested to dismiss both the petitions.

SUBMISSIONS ON BEHALF OF RESPONDENT NO.1 - STATE:

[6.0] Learned APP Mr. H.K. Patel adopting the submissions made by learned advocate Mr. A.D. Oza for respondent No.2 has also opposed the present petitions and has requested to dismiss the present petitions.

REASONING:

[7.0] I have given thoughtful consideration to the arguments canvassed by learned advocate appearing for the respective parties. The following are the dates and events which are necessary to advert the contentions raised by parties:

Thus, from the aforesaid chronology of events it appears that from 08.01.2015 till 02.03.2020 when complaint is made to CAG, time is passed by accused No.1 Company in one or another context in various litigation and explanations / correspondences between accused No.1 and respondent No.2.

[7.1] Now turning back to complaint, in the complaint it is alleged that, GCERT has floated the tender in the year 2013 for printing of different literature and magazines. In the said tender, the statement of rate was tampered by accused persons in collusion with government officers so as to make excess payment of Rs.6,68,84,000/- to accused No.1 Company by committing offence of cheating and breach of trust. The tenders were opened and technical and commercial bids were received from the agencies on 22.04.2013. The bids of two agencies specified terms and conditions as per the requirement of tender conditions. Hence, after considering the facts of the bids, comparative chart was prepared, which reads as under:

Sd/- Sd/- Sd/- Sd/- Sd/-

Director            Addl.Director    Secretary Account Officer Research Associate

GCERT            GCERT            GCERT            GCERT  (Publication)

Gandhinagar     Gandhinagar     Gandhinagar     Gandhinagar GCERT, Gandhinagar

                                                                        Accused No.2

As can be seen from the aforesaid comparative chart, 5 members of the committee had put their signatures and in the committee decision was taken on 22.04.2023 and tender of accused No.1 Company was accepted at the offered rate.

[7.2] After approval and acceptance of the said tender by committee, no change or alteration was permissible in the tender. Pursuant to the said tender, Rs.16,73,10,000/- was paid to the accused No.1 Company but during the AG audit in the year 2014-15, the scam was unearthed and it came to light that accused No.1 Company has altered the tender form subsequently and the quoted price for double side printing is treated as single side printing. The said tender forms were in possession and custody of accused No.2 and thus, the accused persons in collusion and connivance of each other with a view to pay more amount for the benefit of accused No.1 Company, said tender was altered by accused and though price was offered for double side printing, subsequently, word “single side” is added after approval of tender and excess amount to the tune of Rs.6,68,84,000/- being paid to accused No.1 Company.

[7.3] After approval of the tender and the quoted rates in tender, question of altering or amending the offered rates subsequently by the party / bidder does not arise or permissible in any case. However, in collusion and connivance of accused No.1 company, accused No.2 addressed a letter to accused No.1 Company without any authority and asked for further clarification from the accused No.1 Company and accused No.1 has subsequently changed its stand and stated that accused No.1 Company had offered the price for single side printing and said alteration also being made in the tender form.

[7.4] Meanwhile, to blacklist the accused No.1 Company, proceedings were initiated by the government. In this regard various litigation as discussed above were filed by accused No.1 Company. In Writ Petition (PIL) as well as SCA No.17490/2019, wherein respondent No.2 was directed to initiate appropriate proceedings on 12.02.2020. Meanwhile, accused No.1 Company had filed the review application being MCA No.1/2020 in SCA No.17490/2019 and prayed as under:

“The Hon’ble Court be pleased to issue appropriate orders and clarify that paragraph 18 of the order dated 12.02.2020 passed by this Hon’ble Court in Special Civil Application No.17490 of 2019 did not permit filing of an FIR by the Opponents against the Applicants;”

The said review application came to be disposed of as withdrawn.

[7.5] Thereafter, another litigation being Special Civil Suit No.213/2016 was filed by accused No.1 before the Court of learned Principal Senior Civil Judge, Gandhinagar and sought injunction to restrain respondent No.2 from initiating any proceeding for recovery pursuant to the draft audit report of the CAG which was subsequently withdrawn on 24.12.2018. Though notice was issued to accused No.1 to show bonafide to deposit the amount but the accused No.1 Company failed. Then, pursuant to the draft audit report of CAG, departmental proceedings also came to be initiated wherein involvement of other officers of GCERT has also surfaced and said proceedings are still pending for the consideration before the Department.

[7.6] The compliance audit report submitted by CAG made following observations in paragraph 3.1:

“3.1 Excess improper benefit of Rs.6.69 Crores to agency For printing work of course and amended course of Gujarat Council of Education Research and Training (GCERT) was given to agency subject to terms and conditions and due to not taking into consideration instructions of Gujarat Public Works Manual and Central Vigilance Commission the excess avoidable benefit of Rs.6.69 Crore was made in favor of agency.

Gujarat Council of Education Research and Training (GCERT) is a basic institute of State Level for qualitative education reforms in the primary and secondary school. The Education Department of the State Government had given work regarding formats for complete valuation (SCE) based on schools to GCERT in (October, 2013). for this fund of Rs.12.11 Crore was released to GCERT in March, 2014.

At this time the tender approval committee of GCERT (publication committee) in (February 2013) for Jivan Shikshan Magazine of 35,000/- to 40,000/- in number and for printing work of other literature taken action of appointment of agency in 2013-14 and audit recorded (February, 2015) that such instruction was given by State of Gujarat that it was necessary to follow E-tender procedure for estimated works of Rs.10.00 lakh and that instruction was violated by GCERT (May, 2011). Out of seven bidders the five bidders were held disqualified at initial stage and out of remaining two agencies the rates of M/s. Reliable Art Printer Private Limited, Ahmedabad (Agency) for printing work was called by GCERT committee for one side and double sided for one color and four color with paper and without paper. The Agency has given its rate (April 2013) in table 1 mentioned earlier.

Table-1 Rates placed by agency and effective rate

(Source: information collected from record of GCERT)

The rate of printing work of both side with paper was mentioned with such condition that it was only rate of “one side” whereas there was not this condition in printing work without paper. The purpose of showing rate of one paper and rate of both side against it by agency was not logical. Audit has recorded that (February 2015) as on date of opening bids (22 April 2013) comparative price bid was prepared and rate take into consideration for printing on both side was rate given without terms and conditions of one side by agency. Moreover it was stated that committee made clarification (29 April 2013) that rate of printing on both side were double than rate given.

From the above table the difference can be seen that rate of printing at “one side” and “both side” without paper was almost similar in comparison of rate given for printing with paper. In the inquiry of record of GCERT it was seen that for the year 2011-12 for printing of GCERT the rates given by same agency (March 2011) are mentioned in below table-2.

(Source: information collected from record of GCERT)

From that it can be seen that in the rate of printing work of “one side” and “both side” with paper for 1/4 one color and for legal size there is difference of rate of respectively three and two paise. Thus agreement of rate entered into with agency by committee in year 2013-14 was not true.

Moreover as per provisions of the Gujarat Public Works Manual (GPWM), 1987 and guidelines of Central Vigilance Commission (CVC) (May 2004) the rates given with terms and conditions were directly to be rejected. However, Committee had selected agency for printing work for year 2013-14 of GCERT against the provisions of GPWM and CVC.

Here it is also pertinent to note that, as per instructions issued by Industries and Mines Department for printing work of more than estimated Rs.10.00 lakhs in private press there was requirement to take “no objection certificate” from printing press. However, against the above terms and conditions committee had given printing work to M/s. Reliable Printery Pvt. Ltd. Ahmedabad being printing work on both side and by doubling rate given for one side though not payable to agency without calling for new tender for printing work as per requirement of education department, SCE etc. (during September 2013 and August 2013) and though printing was to be done on both the sides however by accepting rate of printing work on one side, GCERT had incurred additional expenditure of Rs.6.69 crores as mentioned in appendix XVI, which could have been ignored.

The GCERT stated (December 2015) that, due to Election of Lok Sabha as Code of Conduct was applied tenders were not called for work. The fund was received in the end of March 2014. For urgent work and for ignoring going away of grant work was entrusted to agency. Moreover it was further stated contract was given to lowest bidder because its bid was lower than other qualified agencies and “No Objection Certificate” was obtained from government printing press.

This reply was not acceptable, because it was transpiring from record supplied to auditor that GCERT was aware regarding fact since October, 2023 that it had caused to do printing work of SCE etc. and therefore new tenders ought to have been called before application of Code of Conduct.

It can be seen from documents furnished with reply that GCERT contacted government printing press to get “no objection certificate” in March 2014 whereas orders of question-mentioning printing works were given between September 2013 and August, 2014. Thus upon accepting conditional rate damage of Rs.6.69 Crores was caused to State Government and moreover it was resulted in undue favour of agency.”

Hence, perusing the aforesaid observation made in the report, it appears that with ulterior motive and dishonest intention by flouting settled government norms / rules and regulation work entrusted to accused No.1 without e-tendering process and following due process also, which is noticed by CAG and even during departmental inquiry, collusion and connivance of other officials is also surfaced as argued by respondent No.2. Hence, it is an undisputed and admitted fact that loss of Rs.6,68,84,000/- is caused to the government and in this regard impugned proceedings for the offences punishable under Sections 406, 409, 420, 467, 468 and 120(B) of the IPC came to be filed as public money is siphoned away.

[8.0] Upon bare perusal of impugned FIR, it appears that, the work was entrusted to the accused No.1 Company and with dishonest intention the accused No.1 Company has forged document and changed the offered bid price in connivance and collusion of accused No.2 and obtained wrongful gain and caused wrongful loss to respondent No.2 / Government by committing the offence of cheating, breach of trust and forgery in connivance and collusion of the officers of the GCERT more particularly at relevant point of time accused No.2 who was working as Account Officer at the relevant point of time in whose custody tender forms were available and after preparation of comparative chart andapproval of the tender, subsequently the tender conditions have been altered and without any authority accused No.2 has sought clarification from the accused No.1 Company and thereby the offence of forgery punishable under sections 467 and 468 of the IPC is registered against the present petitioners in aid of section 120(B) of the IPC. The accused persons in collusion have forged the document by hatching conspiracy and by subsequently manipulating the bid / offered rates. Though accused No.1 Company had offered the rate for printing of double side with cost of paper at 0.29 paise and without cost of paper at 0.11 paise. The comparative chart is also produced at Annexure-R2 and rates offered by L/1 and L/2 are produced on record. In Annexure-R1 i.e. the original form, nowhere, it is stated “single side” while the original tender form was placed before the committee for consideration but subsequent to the meeting of committee, word “single side”is handwritten and inserted though the tender form / financial bid having specific column for double side printing rate though by addressing unauthorized letter by accused No.2 to accused No.1, an attempt to hush up the issue and manipulate the office record and terms of the tender document is made and said fact is also noticed during the audit of CAG and accused No.2 being hands in glove with accused No.1 Company has tampered the government record and thereby allowed siphoning of government fund and caused loss to public exchequer to the tune of Rs.6,68,84,000/-.

[8.1] Further, it is pertinent to note that the committee members have also stated in their statements that when tender was approved and financial bid was opened, at that time the price / rates offered for double side printing and in this regard statements are also recorded and subsequently after preparation of comparative chart, handwritten word “single side” is inserted subsequently and said tender form was in custody of accused No.2. Further, one more aspect is also required to be considered, so far as involvement of accused No.2 is concerned. The said tender forms were available in custody of accused No.2 and after approval of the said tender by committee, without any approval of committee members or any authority, accused No.2 himself addressed one letter and sought clarification from accused No.1 without the knowledge of committee and he has himself dispatched the said letter and entry of the same was made in Dispatch Register at Sr.No.9397. Actually the dispatch register and dispatch work was entrusted to Senior Clerk one Ms. Varshaben Ashokkumar Shah though accused No.2 has dispatched the same himself and the said dispatch number is also having two entries of same outward number and in fact said letter bearing Dispatch No.9397 is sent to Director General Ministry, Index-B, Sector-11, Gandhinagar by misusing the said outward number, accused No.2 has malafidely taken undue advantage and asked for explanation and clarification from the accused No.1 and then word “single side” is inserted and tender document prepared. Thereby allegation of forgery and conspiracy leveled against the petitioners is prima facie substantiated.

[8.2] To constitute an offence punishable under section 406 of IPC, there must be criminal breach of trust as defined under Section 405 of IPC. To constitute criminal breach of trust, there must be entrustment of the property or domain over the property or there must be dishonest misappropriation of such property. Hon’ble Apex Court in the case of Mohammed Ibrahim and Others vs. State of Bihar and Another reported in (2009) 8 SCC 751 observed that, in order to constitute an offence under section 420, the following ingredients are to be satisfied:

(i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission;

(ii) fraudulent or dishonest inducement of that person to either delivery any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and

(iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property.

[8.3] To constitute an offence under section 420 of IPC, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived (i) to deliver any property to any person, or (ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security).

[8.4] Time and again the Hon’ble Supreme Court has reiterated that in order to make out an offence of cheating the intention to cheat or deceive should be right from the beginning. In order to hold a person guilty of cheating, it is necessary to show that, he had fraudulent or dishonest intention at the time of making such alteration. Section 420 of IPC is also invoked against the present petitioners. To constitute an offence punishable under section 420 of IPC, there must be cheating dishonestly by inducing the person to deliver any property or to make alter or destroy the whole or any part of valuable security etc. Insofar as offence of cheating is concerned, the following facts emerging from the record clearly establishes the offence of cheating under Section 420 of the IPC

1. The letter addressed by accused No.2 which was addressed to accused No.1 was without any authority and subsequent to completion of tender process and accused No.1 was knowing that pursuant to said letter rates offered by accused No.1 Company at the time of bidding were altered;

2. The accused No.1 Company was aware that the rates altered subsequently were false and untrue;

3. In an effort to mislead the department / government, the accused persons in collusion and connivance of each other have interpolated and manipulated the tender forms;

4. There was a mens rea, which is a legal term that denotes a person’s mental condition or state when committing a crime and is the motive behind every crime. It is a specific anticipated or pre-planned intention to conduct a specific act, herein which is wrongful gain to accused No.1 by accused No.2 and others and thereby caused huge loss to the government – respondent No.2.

Thus, one of the most important ingredients needed to establish the offence of cheating under Section 420 of the IPC is the making of a false representation. It is not enough to show that a false representation was made to establish a case under Section 420 of IPC for cheating but, it must be shown that the accused knew since inception the representation to be false and that it was made with the intent to deceive which is established from the record. On going through the first information in detail, as petitioners have interpolated the tender document and gained undue advantage, for that after finalization of bid, clarification was called for without any authority by accused No.2 (Account Officer) for that himself he had dispatched the letter also thus going to the allegation it reveals that the offence punishable under section 420 of IPC is made out.

[8.5] Even, the act on the part of the accused prima facie appears to be false. Section 23 of the IPC defines “Wrongful gain”, which provides that “wrongful gain” is gain by unlawful means of property to which the person gaining is not legally entitled and due to such act, wrongful loss is caused to the government for which government is legally entitled to recover dues. Thus, as per section 24 of the IPC, whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing “dishonestly”. Herein, only with intention of getting unlawful gain to accused No.1 Company and to cause loss to government exchequer, act is committed by the present petitioners – accused in collusion with each other.

[8.6] Herein, accused No.1 is merchant and accused No.2 is government servant. Accused No.2 has in collusion and connivance of accused No.1 Company forged tender documents and allowed accused No.1 Company to extort more money rather than offered bid price fraudulently and dishonestly. The tender form was in custody and under the control of accused No.2. Procedure was followed, he has as a public servant allowed accused No.1 Company to enrich and siphoned away government money illicitly and intentionally during the period of his office and thereby an offence of criminal breach of trust punishable under section 409 of the IPC is attracted. Further, public servant is expected and supposed to have very high standard and moral and bound to serve people but for private interest and gain, he has in collusion and connivance of accused No.1 Company caused loss of public exchequer, which was large chunk of budgetary allocation for the basic need and requirement of education.

[8.7] So far as offence of forgery is concerned, as per Section 463 of the IPC, (i) the document or record or the part of it should be false in fact; (ii) such document or record or any part of it should be created dishonestly or fraudulently; (iii) such creation of a false document or electronic record or any part of it should be done with an intention to cause injury or danger to the public or any individual or to support any claim or title for that enter into any express or implied act. Herein, tender document being forged after finalization of bid and then excess amount is also received and such interpolation was only with dishonest intention and to receive more amount, said forged document is used as genuine one dishonestly for the purpose of cheating which was already lying in the government office, whereby the government is defrauded and siphoned public money and said document was forged with knowledge and malafide intention.

[8.8] So far as the offence of forgery of government record punishable under Section 467 of the IPC is concerned, it is to be noted that being in possession of approved tender copy, accused No.2 made interpolation and subsequently made entry in the dispatch register though maintaining the dispatch register was the duty of Senior Clerk Ms. Varshaben Ashokkumar Shah and hence, offence under Sections 467 and 468 of forgery of government record is clearly made out.

[8.9] It is pertinent to note that, to establish charge of criminal conspiracy under section 120 of the IPC, there must be an agreement, either expressed or implied. And for that, no proof of direct meeting or communication is needed. There must be active cooperation. In other words, joint evil intent is mandatory. When any act is done even though it is lawful but done by illegal means, it constitutes criminal conspiracy. The first ingredient of criminal conspiracy is agreement between two or more persons. This agreement is the crux of the offence and can be explicit or implicit, written or oral. The second essential component is the intention to commit an illegal act or a legal act by illegal means. The intent should directly related to the outcome that the conspirators plan to achieve. The essential ingredients of criminal conspiracy are: (i) An agreement between two or more persons; (ii) The agreement must be related to doing or causing to be done either (a) an illegal act and (b) an act that is not illegal in itself but is done by illegal means; (iii) The agreement may be expressed or implied or partly expressed and partly implied; (iv) As soon as the agreement is made, the conspiracy arises, and the offence is committed and (v) the same offence is continued to be committed so long as the combination persists. It is needless to say that so far as the allegation of conspiracy is concerned, it is very difficult to collect any direct evidence of conspiracy. From the material collected or the evidence adduced on record, inference of conspiracy is required to be drawn.

[9.0] So far as submission of learned advocate for the petitioners – accused as regards delayed lodging of impugned FIR is concerned, it is pertinent to note that due to marathon litigation on the part of accused No.1 after the CAG report and as discussed in earlier part, pursuant to the order dated 12.02.2020 passed by the coordinate Bench in SCA No.17490/2019 more particularly paragraph 18, complaint was filed on 24.03.2020 and being aggrieved and dissatisfied with the same, MCA No.1/2020 in SCA No.17490/2019 was also filed by the accused No.1 through its Director Mr. Nikunj Thekadi on 20.10.2020 which was disposed of as withdrawn. Even, delay in filing the FIR is not the sole criteria to exercise jurisdiction under section 482 of the CrPC. Further, the respondent No.2 has satisfactorily explained the delay caused in filing the FIR itself.

[9.1] Only delay in lodging of the FIR is not a ground for quashing of proceedings but in frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. In this regard, reference is required to be made to the decision in the case of Mohammad Wajid and Anr. v. State of U.P. and Ors. reported in 2023 INSC 683.

[9.2] In case of delay with attending circumstances coming forth on the record of the case, Court has to consider the allegations and if considering the entire case put up by the prosecution is inherently improbable then delay may become a good ground to quash the said proceedings. Herein, considering the attending circumstances emerging from the record and considering various litigation after filing of two PILs the entire scam is unearthed and then CAG report has also confirmed the commission of said offence and then complaint is filed. Hence, it is proved that prosecution has not filed the impugned FIR with any ulterior motive and therefore, the argument canvassed by learned advocate for the petitioners that FIR is filed belatedly after a delay of 8 years and therefore, same is required to be quashed and set aside is not sustainable.

[10.0] Learned advocate for the petitioners has submitted that impugned FIR is filed with malafide intention and is abuse of process of law. In this regard, she has relied on the decision of Hon’ble Supreme Court in the case of Vesa Holdings Private Limited and Another (Supra) and M. Suresh and Others (Supra). Herein, pursuant to the report of CAG, after noticing irregularities and after getting sanction from the government, impugned FIR is filed which would not amount to malafide intention on the part of respondent No.2. Herein, no case of malafide intention on the part of respondent No.2 is made out by the petitioners and hence, argument of learned advocate for the petitioners qua malafide intention on the part of respondent No.2 as a government entity and its officers are also initiated as public money siphoned away is not sustainable. Even, perusing the record as well as the allegations made against the petitioners, no any cogent reason or fact or ground for quashing of the impugned proceedings is made out and even, no case of malafide is also made out. Hence, the authority relied on by the learned advocate for the petitioners in the case of Vesa Holdings Private Limited and Another (Supra) and M. Suresh and others (Supra) would not avail any assistance to the petitioners considering peculiar facts of the case on hand.

[10.1] Further, reliance placed upon by the learned advocate for the petitioners on the case of V.Y. Jose and Another (Supra) is concerned, it is to be noted that present dispute is not a civil dispute but herein, question of over-payment of amount to accused No.1 Company dishonestly and that too in crores of rupees is involved in the present case. Herein, with dishonest intention, after fabricating the documents though tender was submitted offering the rates for double side printing, subsequently interpolation is done and word “single side” is inserted and offence has been committed by the petitioners after finalization of bids by the tender committee and have added word “single side” and taken undue advantage dishonestly with malafide intention and to obtain wrongful gain and to cause wrongful loss to the government. Present case is not a simple case of recovery of amount or breach of contract but is a clear case of cheating and depicts culpable intention on the part of accused persons which is clearly revealed from the bare perusal of the complaint and record. Therefore, the decision of Hon’ble Supreme Court in the case of V.Y. Jose and Another (Supra) would not avail any assistance to the petitioners.

[10.2] Insofar as reliance placed on the decision of Hon’ble Supreme Court in the case of Vir Prakash Sharma (Supra) and Indian Oil Corpn. (Supra) is concerned, it is worth to mention that in the case on hand by deceiving the government and other committee members, accused persons have fraudulently and dishonestly, without the consent of the authority, intentionally asked for the clarification and subsequently altered the terms of tender document and obtained amount which clearly makes out intention of cheating and therefore, said authorities would not avail any assistance to the petitioners as discussed in detail in earlier part of the judgment. It is needless to say that each and every criminal case is required to be considered on its own merits. At this stage it is apposite to refer to the decision of Hon’ble Apex Court in the case of Parasa Raja Manikyala Rao And Anr. vs State Of A.P reported in AIR 2004 SC 132, wherein it has been observed and held as under:

“...Each case, more particularly a criminal case depends on its own facts and a close similarity between one case and another is not enough to warrant like treatment because a significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore on which side of the line a case falls, the broad resemblance to another case is not at all decisive.”

Thus, in view of above settled proposition of law, each criminal case depends on its own facts and therefore, same would not avail any assistance to the petitioners.

[10.3] At this stage, it would be profitable to refer to the decision of the Hon’ble Apex Court in the case of Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra reported in 2021 SCC OnLine SC 315, wherein it is observed and paragraph 57 of which reads as under:

“57. From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the following principles of law emerge:

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, in the ‘rarest of rare cases’. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.

ix) The functions of the judiciary and the police are complementary, not overlapping;...”

Reiterating the same principle, Hon’ble Supreme Court in the case of State vs. M. Maridoss and Another reported in (2023) 4 SCC 338 has held as follows:

“...It is the right conferred upon the investigating agency to conduct the investigation and reasonable time should be given to the investigating agency to conduct the investigation unless it is found that the allegations in the FIR do not disclose any cognizable offence at all or the complaint is barred by any law – Resultantly, impugned quashing order, held, not sustainable and set aside.”

Herein, as discussed above, allegations in the FIR disclose cognizable offence and therefore also, impugned proceedings are not required to be quashed at this stage as after registration of FIR, at very nascent stage, due to COVID-19 pandemic, interim relief was granted which is extended from time to time and meanwhile officers of respondent No.2 – GCERT got superannuated.

[10.4] Further, in the case of Ramveer Upadhyay & Anr. vs. State of U.P. & Anr. reported in 2022 OnLine SC 484, the Hon'ble Apex Court observed and held as under:

“Even though, the inherent power of the High Court under Section 482 of the CrPC, to interfere with criminal proceedings is wide, such power has to be exercised with circumspection, in exceptional cases. Jurisdiction under Section 482 of the CrPC is not be exercised for the asking.”

Even, the Hon'ble Apex Court in the case of Priti Saraf vs. State of NCT of Delhi reported in AIR 2023 SC 1531, held that merely civil remedy is available to recover the money is itself not a ground to quash the complaint as ingredients of criminal offence punishable under sections 406, 420, 409, 467 and 468 of IPC are clearly made out.

[11.0] Before parting with, it is also profitable to refer to the decision of the Hon’ble Supreme Court in the case of State of Madhya Pradesh vs. Shilpa Jain and Others reported in 2024 SCC OnLine (SC) 507 wherein the Hon’ble Supreme Court in paragraph No.11 has observed and held as under:

“11. Having considered the materials on record, we are of the considered opinion that neither does the present case satisfy any of the parameters laid down by this Court in Bhajan Lal (Supra) warranting the exercise of jurisdiction under Section 482 of the CrPC vis-à-vis the quashing of an FIR; and nor can the allegation(s) levelled against the accused person(s) be classified as ‘purely civil in nature’ or merely ‘cloaked as a criminal offence’. Undoubtedly, the genesis of the present dispute emanates from civil proceedings qua the possession of the Suit Property, however, the dispute in its current avatar i.e. as is discernible from the allegation levelled against the Respondents in the FIR, has certainly undergone a metamorphosis into a criminal dispute which ought not to have been scuttled at the threshold, and in fact ought to have been considered on its own merits, in accordance with law.”

CONCLUSION:

[12.0] In wake of aforesaid discussion, present case does not satisfy any of the parameters laid down by the Hon’ble Supreme Court in the case of State of Haryana vs. Bhajan Lal reported in (1992) Supp (1) SCC 335 warranting the exercise of jurisdiction under Section 482 of the CrPC vis-à-vis the quashing of impugned FIR. Further, the Court will not be justified in embarking upon any enquiry as to the reliability of genuineness / otherwise of the allegations made in the complaint and also that, the extraordinary or inherent powers do not confer any arbitrary jurisdiction on the Court to act according to is whims and caprice.

[13.0] Hence, present petitions being devoid of any merit are hereby dismissed. Interim relief granted earlier stands vacated forthwith. Rule is hereby discharged in each of the petitions.

[14.0] It is made clear that the observations made hereinabove are tentative in nature and only for the purpose of deciding present petitions and shall not have any bearing on the merits of the pending proceedings.

[15.0] In view of dismissal of Criminal Misc. Application No.16043/2020, Criminal Misc. Application No.1 of 2021 in Criminal Misc. Application No.16043/2020 stands disposed of.

FURTHER ORDER

At this stage, learned advocate for the petitioners request this Court to extend the interim relief granted earlier so as to enable the petitioner – accused No.1 to approach higher Forum.

Learned advocate for the respondent No.2 vehemently opposed the said request and submitted that the accused No.1 is enjoying interim relief since year 2020 and because of COVID-19 pandemic the investigation of impugned FIR is stalled and therefore, has requested not to extend the interim relief.

Having heard learned advocates for respective parties and considering the fact and circumstances of the case that because of interim relief investigation of the impugned FIR is at stall since the year 2020 at nascent stage, request made by learned advocate for the petitioners cannot be acceded to and is hereby rejected.