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2019 Supreme(UK) 338
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Ravindra Maithani, J.
Manoj Sharma - Appellant
Vs.
Central Bureau of Investigation And Another - Respondents
Criminal Miscellaneous Application No. 1390 of 2013, 839 of 2012, 860 of 2012, 874 of 2012, 885 of 2012
Decided On : 30-08-2019
J.S. Virk, Adv., Sandeep Tandon, Adv., H.C. Pandey, Adv., Ajay Singh Bisht, Adv., R.S. Sammal, Adv., B.D. Pande, Adv., Anil Dabral, Adv.
The allegations, even if taken at face value, do not constitute any offense or make out a case against the petitioners.
Headnote:
TENDER - QUASHING OF CHARGE SHEET - CRIMINAL CONSPIRACY - FORGERY - SECTION 482 OF CRPC - PRINCIPLES - HELD, charge sheet and summoning order quashed against petitioners Mukesh Joshi, Neeraj Joshi, and Alok Chaudhary. Prima facie case under Section 471 IPC made out against petitioners Manoj Sharma and Rajendra Joshi.
Fact of the Case:
Petitioners challenged the charge sheet dated 12.07.2012 as well as the proceedings of Central Bureau of Investigation (CBI) Case No. 6 of the 2002, CBI Vs. Mukesh Joshi and others (hereinafter referred to as "the case"), as well as the summoning order dated 12.07.2012, passed by the court of learned Special Judge, Anti-Corruption, CBI Dehradun, Uttarakhand.
Finding of the Court:
1. No prima facie case of criminal conspiracy, cheating, or forgery for the purpose of cheating has been made out against petitioners Mukesh Joshi, Neeraj Joshi, and Alok Chaudhary. 2. Prima facie, a case under Section 471 IPC is made out against the petitioners Manoj Sharma and Rajendra Joshi.
Issues: 1. Whether the charge sheet and summoning order should be quashed against petitioners Mukesh Joshi, Neeraj Joshi, and Alok Chaudhary? 2. Whether a prima facie case under Section 471 IPC is made out against the petitioners Manoj Sharma and Rajendra Joshi?
Ratio Decidendi: 1. The allegations, even if taken at face value, do not constitute any offense or make out a case against the petitioners. 2. There is no element of criminality and the allegations do not satisfy the basic ingredients of a criminal offense. 3. The petitioners Mukesh Joshi, Neeraj Joshi, and Alok Chaudhary did not conspire to eliminate Nav Bahar Ali from the tender process or to award the work to petitioner Alok Chaudhary. 4. The Nagar Palika did not conspire to eliminate Nav Bahar Ali on 03.04.2010. He was offered to deposit the money. Even if something had gone wrong with regard to service upon Nav Bahar Ali, earlier, based on the representation of Nav Bahar Ali, dated 03.04.2010, the Board of Nagar Palika called him and offered him to deposit the money, which he himself declined and imposed certain conditions. 5. The Nagar Palika gave work to a person of their choice. If it was so, the task would have been immediately given to some person picked up by the Nagar Palika. But, it was not done. Fresh tenders were invited and what is interesting to note here is that Nav Bahar Ali also purchased the tender form again. He was still in the field. The game was not over. 6. In the third tender process, the petitioner Alok Chaudhary was the highest bidder. He offered a bid of Rs.1,52,00,000/-. This amount was not accepted as such. The minutes of the meeting of the Board dated 13.04.2010 have been enclosed as annexure no.10 in the C482 petition No. 860 of 2012, filed by the petitioner Neeraj Joshi. The minutes of the meeting are too detailed. The Board called Alok Chaudhary in the meeting and negotiated with him and took into consideration that the earlier processes did not yield any result. The Board increased the amount of bid from Rs.1,52,00,000/- to Rs.1,54,50,000/-. The Nagar Palika did their best to get the optimum by adopting fair, open, and transparent process. 7. The Board was not informed of the reserved price. The reserved price was fixed by the Board itself in its meeting held on 03.03.2010. The Board was one and the same. It is not the case that the Board members had changed. 8. The resolution of the Board meeting was not sent to the competent authority and Procurement Rules were not followed and also tender was awarded below the minimum reserved price. If any rule is violated and minutes of Board meetings were not sent to competent authority, it does not make out a criminal case. It may be some irregularity. It may, at the most, under the Rules make someone liable for disciplinary proceeding, but criminal liability is a different field. 9. Insofar as, awarding tender below the reserved price is concerned, minutes of Board meeting dated 13.04.2010 speaks in volume. It makes note of all the proceedings of tenders held earlier. It also took into consideration that ten employees of the Nagar Palika were engaged in the collection of the toll and under those circumstances, below reserved price, the work was awarded to the petitioner Alok Chaudhary, that too after negotiations and increasing his bid by Rs.2,50,000/-.
Final Decision: 1. Charge sheet dated 12.07.2012 and the summoning order dated 12.07.2012, passed in CBI Case No. 6 of 2010, CBI Vs. Mukesh Joshi and others, pending in the court of learned Special Judge, Anti Corruption, CBI, Dehradun, Uttarakhand and the entire proceedings of this case, insofar as, it relate to petitioners Mukesh Joshi, Neeraj Joshi and Alok Chaudhary, are hereby quashed. 2. Prima facie, a case under Section 471 IPC is made out against the petitioners Manoj Sharma and Rajendra Joshi. Their prosecution shall continue for this offence only.
JUDGMENT :
Ravindra Maithani, J.
All these petitions filed under Section 482 of the Code of Criminal Procedure,1973 (hereinafter referred to as "the Code") have been filed by the petitioners for quashing the charge sheet dated 12.07.2012 as well as the proceedings of Central Bureau of Investigation (hereinafter referred to as the "CBI") Case No. 6 of the 2002, CBI Vs. Mukesh Joshi and others (hereinafter referred to as "the case"), as well as the summoning order dated 12.07.2012, passed by the court of learned Special Judge, Anti-Corruption, CBI Dehradun, Uttarakhand.
2. Since common question of law and facts are involved in all these petitions, therefore, same are being taken up together and decided by this common judgment.
3. Facts necessary to resolve this controversy, briefly stated, are as hereunder:
Nagar Palika Parishad, Nainital (for short "the Nagar Palika") would call tenders to sell the right of collection of toll from the vehicles entering to the city of Nainital since 2005. The Board of Nagar Palika in its meeting held on 03.03.2010, under the Resolution No. 18 resolved to invite tenders for collecting toll for the period 01.04.2009 to 31.03.2010. The minimum reserved price was fixed at Rs.1,85,40,000/- Pursuant to it, a tender notice was published in the newspaper on 05.03.2010. Four persons, namely, Ashirwad Aggarwal, M/s Traffic Media Limited, New Delhi, Naveen Agarwal and Kamlesh Dhaundiyal purchased the tenders forms, but none did submit the bid within the stipulated time. Consequent to it, Nagar Palika decided to issue fresh tenders and it was published in the newspaper. Twelve persons, namely, Nav Bahar Ali, Rahul Karnatak, Gopal Singh, Navin Aggarwal, Ashirwad Aggarwal, Nayan Singh, Brahamanand Goyal, Gurdeep Singh, Virender Deep Singh, Ranjit Singh, M/s Traffic Media Ltd. New Delhi and Alok Chaudhary purchased the tender forms. Out of them, only four persons namely, Nav Bahar Ali, Rahul Karnatak, Gopal Singh and Naveen Agarwal submitted their bids. The bids were opened on 23.03.2010. The rates, as quoted by these four persons, are as here under:-
| 1. Rahul Karnatak | Rs. 1,60,00,000/- |
| 2. Gopal Singh | Rs. 1,00,00,000/- |
| 3. Nav Bahar Ali | Rs. 2,10,50,000/- |
| 4. Naveen Aggarwal | Rs. 2 ,00,00,000/- |
The bid submitted by Nav Bahar Ali was the highest. On the same day, the offer was accepted by the Chairman, Nagar Palika, subject to information/approval of the members. Consequent upon the acceptance of offer by the Nagar Palika, an information (work order) dated 25.03.2010 was prepared by B.S. Bisht, Miscellaneous Clerk and signed by the petitioner Neeraj Joshi, who was the Executive Officer, Nagar Palika at the relevant time. This communication was entered in the dispatch register on the same day by Ritesh Kapil, Index Clerk and was handed over to the petitioner Rajindra Joshi, Dispatch Clerk for onwards transmission to Nav Bahar Ali. There is a dispute as to when and how the work order was served upon Nav Bahar Ali. It will be discussed later.
4. The communication was also sent through "Yes Courier" and was received by the franchise holder, the petitioner Manoj Sharma. According to the Nagar Palika, this work order was served upon Nav Bahar Ali. He was also informed telephonically to deposit the 50% of the amount of tender, but he did not deposit. Therefore, according to the Nagar Palika, on 31.03.2010, the tender submitted by Nav Bahar Ali was cancelled and the second highest tender, as submitted by Naveen Aggarwal, was accepted. But, Naveen Agarwal also did not deposit 50% of the offered amount.
5. From 01.04.2010, there was no Contractor to collect the toll. Therefore, Nagar Palika arranged to collect the toll at the entry points through its own officials. Nav Bahar Ali made representation on 03.04.2010, offering to deposit 50% amount and the second highest bidder Naveen
