Rakesh Ranjan Prasad, J.@mdashBoth the cases arising out of the same case were heard together and are being disposed of by this common order.
2. Cr.M.P. No. 856 of 2013 has been filed on behalf of the petitioner for quashing of the entire criminal proceeding of R.C. No. 14(A)/2009-AHD-R including the order dated 5.9.2011 whereby and whereunder cognizance of the offence under Sections 120B, 420, 477A of the Indian Penal Code and also under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act was taken against the petitioner and others whereas Cr. Revision application is directed against the order dated 8.3.2013 passed in the said case whereby the prayer for discharge of the petitioner from the case was rejected.
3. While both the matters were pending consideration, charges were framed under Section 120(B) read with Sections 420, 477A of the Indian Penal Code and also under Sections 420 and 477A of the Indian Penal Code simpliciter as well as under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act against the petitioner, vide order dated 29.4.2013 which order has also been challenged.
4. Before adverting to the submissions advanced on behalf of the parties, case of the prosecution needs to be taken notice of.
5. It is the case of the prosecution that during course of investigation of R.C. No. 11(A) of 2009-AHD-R registered against the petitioner Dr. Pradeep Kumar and others, the acts of criminal conspiracy on the part of this petitioners as well as against other accused came to light wherein it was found that the petitioner Dr. Pradeep Kumar, IAS while functioning as Secretary to the Health Department, Government of Jharkhand, had entered into a criminal conspiracy during 2008-09 with Dr. Vijay Shanker Narayan Singh, the then State RCH Officer, Namkum, Ranchi, M/s. Bharat Engineering and Body Building Company Pvt. Ltd. (BEBBCO), Jamshedpur and also with some other unknown persons. In furtherance of the said conspiracy, they by abusing their respective official position as public servants, fraudulently and dishonestly, ordered for the procurement of 72 chassis, out of the fund allotted for implementation of National Rural Health Mission Scheme from M/s. Tata Motors Ltd., Jamshedpur. After purchasing the chassis, it was given to M/s. Bharat Engineering and Body Building Company Pvt. Ltd.(BEBBCO) for its conversion into Mobile Medical Units (MMU)on the rates which were quite exorbitant which caused heavy pecuniary loss to the Government of India and corresponding pecuniary gain to themselves and/or to others. It got transpired that quotations were received for conversion of chassis into Mobile Medical Units. The firms which quoted their rates for conversion were M/s. Bharat Engineering and Body Building Company Pvt. Ltd.(BEBBCO) to which Naveen Bhalotia, Krishna Bhalotia and Gajanand Bhalotia are the Directors, M/s. Crown Industries and M/s. Bharat Automobiles Pvt. Ltd. to which Nitish Bhalotia is the Director. Of them M/s. Bharat Engineering and Body Building Company Pvt. Ltd. (BEBBCO) had quoted its rate as Rs. 47,000,00/- plus taxes for conversion of one chassis into Mobile Medical Unit. Since M/s. Bharat Engineering and Body Building Company Pvt. Ltd.(BEBBCO) was found lowest bidder, work was awarded to him.
6. It was further found that though three quotations were submitted but all the quotations had originated from the single source i.e., M/s. BEBBCO to whom initially order was placed on 7.11.2008 for conversion of seven chassis into Mobile Medical Units. Subsequently, further orders were placed with it for conversion of 72 chassis into Mobile Medical Units. After converting all the chassis into Mobile Medical Units, it were placed with the petitioner, the Secretary of the Department and bills for total sum of Rs. 41,77,12,500 were also placed against which a sum of Rs. 40,07,92,500/- was paid. Rest of the amount of Rs. 1,69,20,000/- remains to be paid to the firm. As per the terms and conditions, 70% of the total amount was payable at the time of placing the order and remaining 30% of the amount was to be paid after delivery but it was not adhere to as instead of 70%, 90% advance was given at the time of placing the order and thereby undue favour was shown to the firm.
7. Further it was found that only a sum of Rs. 23.75 lakh, as per the instruction of the Government of India, was to be spent for each Mobile Medical Unit, whereas a sum of Rs. 47 lakh plus taxes per unit as well as the cost of chassis was paid. That apart, as per the stipulation of the Government of India, State was supposed to have had 24 numbers of Mobile Medical Units but 103 Mobile Medical Units was purchased though there was no need at all.
8. Further case is that after conversion of the chassis into Mobile Medical Unit, an advertisement was issued inviting ''expression of interest'' from NGOs for its operation. Pursuant to that, 38 NGOs including one NGO Gramin Janchetna Sansthan being run by one Shyamal Chakravorty, one of the accused participated in the bid. Of them 20 NGOs were selected for operationalisation of Mobile Medical Units. The NGO run by Shyamal Chakravorty, a close confidant of Dr.Pradeep Kumar had received five Medical Mobile Units though later on he like that of other NGOs returned it as required amount of money to be given to the NGOs as per the stipulation of MMU were not paid. Thus, the purpose for which Mobile Medical Units were acquired in hot haste by offering exorbitant rate, could not be addressed with in the manner, it ought to have been.
9. Thus, it has been alleged that omission and commission attributable to the petitioner Dr. Pradeep Kumar, the then Health Secretary, Dr. Vijay Shankar Narain Singh, the then State RCH Officer, Ranchi, M/s. Bharat Engineering and Body Building Company Pvt. Ltd. (BEBBCO), Jamshedpur and some unknown persons constitute offences punishable under Sections 120(B), 420, 468 and 471 of the Indian Penal Code and Section 13(2) read with Section 13(1)(c)(d) of the Prevention of Corruption Act. Accordingly, R.C. No. 14(A) of 2009-AHD-R was registered against the petitioner Dr. Vijay Shankar Narayan Singh, M/s. BEBBCO and some unknown persons. The matter was taken up for investigation.
10. During investigation, the facts which came to light are that on the last day fixed for submitting tender, accused Shyamal Chakravorty arranged for three quotations from three firms, namely, M/s. BEBBCO, M/s. Metal Crown Industries and M/s. Bharat Automobiles Pvt. Ltd. and got it submitted by depositing a cheque of Rs. 5000/- as an earnest money with the quotation though in terms of the NIT, earnest money was required to be submitted through Bank Draft and this was done to give false impression that the quotation has been submitted within time and that all the tenderers who submitted their quotations are father and sons.
11. That M/s. BEBBCO had purchased medical equipments, which were fitted in the vehicles, by making payment of Rs. 6,01,70,847/- only but as against that M/s. BEBBCO was paid a sum of Rs. 29.23 crores. Thus, there appears to be a great difference between purchase price and the price paid and the difference was to the extent of Rs. 23,21,29,153/-.
12. That for body building M/s. BEBBCO was paid a sum of Rs. 7.90 crores @ Rs. 10 lakh per unit which is quite exorbitant as the firm had charged only Rs. 6.10 lakh for conversion of chassis of equal size into staff bus of the State Health Society. Thus, loss on this count is quantified as Rs. 3.10 crores. In this way, total capital cost of construction/fabrication of 79 Mobile clinics comes out Rs. 12,52,57,367/- but as against that a sum of Rs. 40,39,151,621/- was paid to M/s. BEBBCO. Thus, the difference which comes out is to the extent of Rs. 27,86,58,254/- (Rupees twenty seven crores eighty six lakh fifty eight thousand two fifty four).
13. During investigation it was also found that huge expenditure was made for procurement of Mobile Medical Unit but no budgetary allocation was there. The payment of the cost of conversion of chassis into Mobile Medical Unit was made to M/s. BEBBCO out of the fund allocated for different purposes of NRHM.
14. In this regard, it was found that payments of the firm M/s. BEBBCO and M/s. Tata Motors were made out of the fund allocated under the head NRHM additionalities, out of the interest proceeds accruing out of the deposit made in the Bank and out of unspent amount allocated for the implementation of Prime Minister Gram Udyog Yajna and out of the State share. However, the expenditure incurred on account of procurement of chassises and fabrication of bodies were falsely shown in the books of account of the society to have been appropriated for the heal "machine and equipment", "Urban RCH" and "State share". It was found that there was no budget allocation for machine and equipment under the head of Urban RCH. There was meager amount left unspent. Thus, the accused had made falsification of the document in order to go for impulsive purchase, though it was never required and that too the work order was given fraudulently to favourable company to whom exorbitant payments were made and in lieu of that, the petitioner illegally enriched himself.
15. That one Rajendra Kumar, younger brother of Dr.Pradeep Kumar had opened an account in the Bank of India, Vikash Bhawan, Ranchi in the name of M/s. ESSAR Enterprises, a partnership firm to which one accused Shyamal Chakravorty happens to be the co-partner who has had proprietorship firm in the name and style of M/s. Rhea Enterprises. The said Shyamal Chakravorty who had close proximity with Dr. Pradeep Kumar had garnered orders for supply of computers, air-conditioners and other electronics gadgets in the name of style of M/s. Rhea Enterprises and received payment.
16. That on three occasions the fund was transferred from the account of M/s. ESSAR Enterprises to the account of Rajendra Kumar maintained with Bank of India, Ratu Road Branch, Ranchi and also to the account of M/s. Nand Lal HUF. Late Nand Lal Meena happens to be the father of accused Dr. Pradeep Kumar and the said Rajendra Kumar.
17. That one of the accused arranged for transfer of Rs. 22 lakhs from the account of Miss Lalventluangi of Aizwal, Mizoram to the account of M/s. ESSER Enterprises. Father of Miss Lalventluangi happened to be the mechanic in the office of one Sh. Satyabrat Bhattacharjee, Executive Engineer, PWD, Aizwal, who happens to be maternal brother of Shyamal Chakravorty. According to Miss Lalventluangi, loan had been given to Satyabrat Bhattacharjee. Thus, it looks quite suspicious that how Miss Lalventluangi could transfer Rs. 22 lakh when credit balance of her account was only Rs. 7000/-. On the day when Rs. 22 lakh was deposited in the account of said Miss Lalventluangi, a draft of that amount was purchased by her in favour of M/s. ESSER Enterprises.
18. That a flat at Kolkata had been purchased on 29.7.2009 in the joint name of M/s. Nand Lal, HUF and Shyamal Chakravorty. Thus, it was found that Shyamal Chakravorty had had close nexus with Dr.Pradeep Kumar, who in conspiracy with each other did commit illegal act whereby State exchequer was put to a great loss.
19. After completion of investigation, charge sheet was submitted against the petitioner, the then Health Secretary, Dr. Vijay Shankar Narain Singh, the then State RCH Officer, Ranchi and Navin Bhalotia, Krishna Bhalotia and Gajanand Bhalotia, three Directors of M/s. BEBBCO and Nitish Bhalotia, Director of M/s. Bharat Automobile Pvt. Ltd. and Shyamal Chakravorty under Section 120B, 420, 477A of the Indian Penal Code and also under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. Accordingly, cognizance of the offences was taken against them. In due course, application for discharge was filed on behalf of the petitioners which was rejected.
20. Those orders were challenged before this Court through the aforesaid two applications. However, during pendency when the charges were framed, order framing charge was also challenged.
21. Mr. Ajit Kumar Sinha, learned Sr. counsel appearing for the petitioner submits that all these accusations are being made on account of the fact that pursuant to NIT, three companies submitted their quotations, Directors of which were related to each other and thereby it was taken that all were in connivance and under the act of conspiracy, order was placed to M/s. BEBBCO, who charged a sum of Rs. 29.23 crores for the equipment installed in the Mobile Medical Unit, though it has been purchased for Rs. 6,01,70,847/- and that it also charged a sum of Rs. 10 lacs per unit instead of Rs. 6.10 lacs per unit but the C.B.I failed to take into account that quotations had been submitted by M/s. BEBBCO for supply of fully equipped Mobile Medical Unit and sum offered was inclusive of both body building and equipping the Mobile Medical Units and providing free services and maintenance of Mobile Medical Units for three years and that apart, equipments were not only to be installed but it required proper test and to check functioning of each and every equipments and that additional expenditure was also to be incurred to make the vehicle run with all equipments on the roads of the far flung rural areas of the Jharkhand.
22. It was pointed out that though the C.B.I came with an imputation of charge that Mobile Medical Units were purchased by making exorbitant price but it shut its eyes to the fact that earlier the department had accepted a bid of Rs.66 lacs plus tax for supply of one Mobile Medical Unit but nobody raised eye brows at that time.
23. In these situations, when the Directors namely, Navin Bhalotia, Krishna Bhalotia and Gajanand Bhalotia of M/s. BEBBCO and also one Nitish Bhalotia, Director of M/s. Bharat Automobile Private Limited moved to this Court against the order refusing discharge and also against the order framing charge, this Court did find that none of the accusation made against those petitioners do constitute offence under which charges have been framed and thereby the order framing charges against them was set aside.
24. In that event, when this Court did not find the Directors of M/s. BEBBCO and other accused persons in league with the petitioner in procuring order for conversion of chassis into Mobile Medical Unit and the payments thereof to them, the petitioner is equally liable to be discharged from the case.
25. Learned counsel in support of the stand has referred to a decision rendered in a case of B.H. Narasimha Rao vs. Government of A.P., represented by C.B.I. [1995 Supp (4) SCC 704 ] holding therein that once the accused person charged for being in conspiracy with the appellants have been acquitted, the case of the conspiracy against the appellant cannot be maintained. That principle was laid down keeping in view the principal of parity applicable in criminal case wherein it has been held that where a case of accused is similar in all respect as that of the co-accused, then the benefit extended to one accused should be extended to co-accused. In this regard learned counsel has referred to a decision rendered in a case of
26. Mr. Khan, learned counsel appearing for the C.B.I submits that as per NRHM, framework the ceiling of expenditure on the procurement of one unit of Mobile Medical unit with diagnostic facility was of Rs. 23.75 lacs and that State Health Society of Jharkhand had in its possession 24 Mobile Medical Unit/MMU before the petitioner had taken over the charge of Mission Director. During investigation, it was found that there was no compelling reason to procure additional Mobile clinic nor the fund was available, still this petitioner being Secretary of the department procured 79 Mobile Clinics for a total sum of Rs. 41 crores in hush hush manner as the order had been placed in clandestine manner to M/s. BEBBCO, who along with other company whose Directors were related to Directors of M/s. BEBBCO submitted quotations in which rate was quoted exorbitantly and that tender papers were not in terms of the NIT, still the orders were placed to whom 90% advance was made though as per the terms and conditions advances to the extent of 70% of the total amount was payable.
27. During investigation, it was further found that for equipping Mobile Medical Units, equipments and other materials were purchased by M/s. BEBBCO for Rs. 6,01,70,847/- but it charged Rs. 29,23,00000/- and thereby the State was put to loss to the extent of Rs. 23,21,29,153/-. That apart, M/s. BEBBCO was paid a sum of Rs. 7.9 crores at the rate of Rs. 10 lacs per unit which is exorbitant as the said firm had charged only Rs. 6.1 lacs for conversion of chassis of equal size into staff Bus.
28. In this manner, M/s. BEBBCO was paid a sum of Rs. 27,86,58,254/- in excess, as a result of which, State Health Society suffered wrongful loss to that extent.
29. Further it was submitted that State Health Society had never been provided with the fund to purchase 79 Mobile Clinics, still it was purchased by making payments of the amount which was available under different heads by making falsification of document and under the circumstances, the court has rightly rejected the prayer for discharge and framed charge.
30. Thus the question which does arise as to whether in the event of case of the Directors of M/s. BEBBCO as well as M/s. Bharat Automobile Private Limited and also others, who, according to the case of the prosecution, did commit offence as alleged in conspiracy with each other being quashed, the petitioner is liable to be proceeded with the case or not?
31. We have already noticed the case of the prosecution that the petitioner being the Secretary of the Health Department, Government of Jharkhand in furtherance of conspiracy hatched in between the petitioner and the Directors of M/s. BEBBCO as well as M/s. Bharat Automobile Private Limited and also others fraudulently and dishonestly by abusing his official position ordered for procurement of 72 chassis which later on was given to M/s. Bharat Engineering and Body Building Company Pvt. Ltd. (BEBBCO) for conversion into Mobile Medical Unit (MMU) on the rates which were quite exorbitant and thereby caused heavy pecuniary loss to the Government.
32. Further case is that neither there was fund available for procurement of Mobile Medical Unit nor there was any need of having such a large number of MMUs, still it was purchased out of the fund allocated for different purposes by making diversion of the fund which was done by making falsification of the documents.
33. It is also the case of the prosecution as has been transpired during investigation that tender papers of all the three firms which participated in the bid were arranged by one person and appears to have been submitted after expiry of the due date, still tender papers were accepted, though it was not in terms of the NIT.
34. On such accusations when charge sheet was submitted, cognizance of the offences was taken against the accused persons and thereupon when application for discharge was rejected and the charges were framed, three Directors of M/s. BEBBCO and one Director of M/s. Bharat Automobile Private Limited and also other accused Shyamal Chakaravorty moved to this Court. This Court quashed the order framing charges primarily on the ground that the petitioners, the Director of M/s. BEBBCO and M/s. Bharat Automobile Private Limited are being prosecuted without the company being made accused. In this regard, the Court did observe as follows:
"Thus whatever allegation seems to be there, those allegations are against the company but strangely the company though had been made accused initially but has not been charge sheeted. In stead of the company being charge sheeted, the petitioners, who are the Directors of M/s. BEBBCO and also Nitish Bhalotia, who is the Director of M/s. Bharat Automobile Private Limited have been charge sheeted without there being any allegation that these petitioners were responsible for day-to-day affairs of the company and on account of this alone the petitioners being Directors cannot be prosecuted in view of the Decision rendered in a case of
35. Besides this, the Court did also observe that even if it is accepted to have been made against the petitioners the acts of the petitioners do not constitute offences either of cheating or falsification of the documents as the petitioners nowhere have been alleged to have secured the work order fraudulently. In a case of other accused, namely, Shyamal Chakravorty, it was found that none of the acts were there showing act of conspiracy of the said accused.
36. Thus, it is evident that the order framing charge was quashed basically taking into account that the Directors in absence of the company being made accused cannot be prosecuted and that no allegation is there against them regarding falsification of the documents whereas the allegation against the petitioner is that neither there was fund available nor there was any justification for procuring 79 Mobile Medical Units, still it was purchased out of the fund allocated for different purpose of NRHM and that too by making falsification of the documents which allegations were never there upon the persons, who have been discharged from the case and thereby the case of this petitioner stands on different pedestal and thereby even if the co-accused has been discharged, the order will not have any adverse impact on the case of this petitioner when, according to the case of the prosecution, has also been alleged to have conspired with other accused, namely, Dr. Vijay Shankar Narain Singh, the then State RCH Officer, Namkum, Ranchi.
37. Under the circumstances, the ratio laid down on the cases upon which reliance has been placed will not be applicable in the instant case.
38. Thus, I do not find any merit in these two cases.
39. Accordingly, it stand dismissed.
