The State v. A.Maheshwar Rao And ORS.
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION CIRCUIT BENCH AT PORT BLAIR ....
PRESENT: THE HON'BLE JUSTICE ANANYA BANDYOPADHYAY CRA/3/2019 The State ...
Appellant
Versus
A. Maheshwar Rao and others ...
Respondents For the Appellant : Mr. Salim Mohammed For the Respondent No. 1 : Mr. D. Ilango For the Respondent Nos. 2, 3 & 4 : Mr.Gopala Binnu Kumar Heard on : 21st and 23rd of August, 2023 Judgment on : 25th of August, 2023 ANANYA BANDYOPADHYAY, J.
1.
The instant appeal is directed against the judgement dated 26th June, 2018 passed by the Special Judge (Sessions Judge) in Special Case No. 6 of 2015 under section 420, 120 B of the Indian Penal Code and 13 (1) (d) read with section 13 (2) of the Prevention of Corruption Act, 1988 whereby, the learned Special Judge has acquitted the present respondents.
2.
The prosecution case emanated on the basis of the report submitted by the Investigating Officer, AC/Vig Unit which precisely stated that an inquiry was initiated pursuant to a source information concerning procurement of electric items by the Port Blair Municipal
Council (PBMC) at exorbitant rate of the year 2012-13 forgoing the lesser rate for the year 2013-14. Consequently the inquiry was conducted at the PBMC on 8th October, 2013 by the team of AC Unit comprising of the defacto complainant alongwith other police personnel. The inquiry report, inter alia, concluded the chronology of events in the following manner:- Sl.No Date Event a.
22/03/2013 PBMC Invited a Quotation for annual supplies of "Electrical Fittings and Appliances" vide Notice No. MC/SS/335/2013-14/S-133 b.
25/04/2013 The quotations received were opened c.
05/05/2013 Rate negotiation meeting was held in the chamber of EE (Works) and the proposal was forwarded to FTA committee for approval.
d.
16/05/2013 In the FTA meeting, the committee recommended to accept the lowest quoted rates for annual supply of electrical fittings and appliances at Agenda item No.18 e.
05/07/2013 Approval for issuing rate acceptance letter for & 2013-14 in anticipation of approval of council 09/07/2013 was signed by Secretary (PBMC) and Chairperson respectively to that sought by the AE/EE (Store) f.
30/07/2013 Shri Zaki Ahmed proposed for purchasing
electrical items to 03 Nos. indents raised by JE (store) on the approved rates of 2012-13 mentioning that the rates for 2013-14 is yet to be approved by the Council.
g.
03/08/2013 The rate acceptance letters for 2013-14 were issued to respective firms vide letter No.
MC/SS/335/2013-14/S-318 to 321.
h.
26/08/2013 Supply orders were issued from the office of AE (Store), Shri Zaki Ahmed vide F.No.03/MC/Store /AE/Elect/JE-1/S-1352 to 1358.
3.
A detailed narrative had been enumerated in the report with regard to the occurrence of the incidents from the date of inviting the quotation for annual supplies till the supply orders were issued. The inquiry report reflected that more than 85% of the total amount was disbursed by the respondents in connivance with each other to provide pecuniary advantage to the firm that supplied the electrical items. The respondents had deliberately issued the supply order for procurement of electrical items at the accepted rate of 2012 - 13 being aware that the aforesaid rates were higher than the fresh rates for the year 2013-14 and have conspired to cheat and cause loss to the exchequer.
4.
Based on the aforesaid inquiry report South Andaman Anti Corruption PS Case No. 04/2018 dated 9th October 2018 under
Section 13 (1) (d) read with section 13 (2) Prevention of Corruption Act, 1988 and section 420/120 (B) of the Indian Penal Code was instituted. Investigation ensued and culminated in the submission of charge sheet being No. 04/2015 dated 29th August, 2015 to which the respondents pleaded not guilty and claimed to be tried. 5.
The prosecution in order to prove its case cited fourteen witnesses and exhibited certain documents.
6.
The learned advocate for the appellant submitted that the respondents hatched criminal conspiracy amongst themselves to cheat the Government as well as for their personal gain and motivatedly issued several supply orders upon the particular firm for procurement of electrical goods at a higher rate of 2012 - 13 disregarding the lower rate stipulated for the year 2013-14. It was further submitted that subsequent to the inquiry the firm had refunded the excess money in terms of rate which consolidated and intensified the probability of conspiracy on the part of the respondents to protect their interest fortifying the criminal intent of the respondents.
The learned advocate for the appellant further argued that the inquiry report, seizure memos depict the comparative rates of tender of electrical items for the year 2012-13 and for the year 201314.
amount to protect themselves from indictment. It was further argued that the learned Sessions Judge erroneously concluded that the Government did not incur any loss of money negating the criminal intention on the part of the respondents which fortified the ingredients of the offence with which the respondents had been charged as aforesaid and therefore the appeal should be allowed and order of acquittal should be set aside.
7.
The learned advocate for the respondents submitted that the respondents either in their individual capacity or in the conglomerate had no power to decide the rates without the approval of the Secretary of PBMC. It was further submitted that the respondent Zaki Ahmed, Assistant Engineer (Store) had prepared the office note for finalisation of annual quotation for the year 2013 of various items stating that 'The FTA in its meeting held on 16/5/2013 has recommended to accept the lowest rate quoted by various firms in its lowest quoted items.
However, the approval of the Council is still awaited to issue the rate of acceptance letter to the L(1) firms for the rates for the year 2013-14 since, the approval of the Council is required as per the rules in force.
In this contest it is to mention that the present rate quoted by the firms are lower in some items when compared to the previous years rate.
Tanking into account the financial interest of the Council, the L (1) annual rates for the year 2013-14 (Accorded the
approval of the FTA (16/5/2013) needs formal approval of the Council for issuing acceptance letter and preparing of supply order in the new rate.
Further to mention that presently supply order are being issued on the approved rate available for the year 2012-13 as approved by the FTA/ Council previously."
8.
It was further submitted than in anticipation of approval as aforesaid by the council the supply order was issued since the work of the PBMC were effected due to non-availability of materials. The learned advocate for the respondents further submitted that recovery was conducted as per the CPWD Manual and the Government did not suffer any pecuniary loss. It was further submitted preliminary inquiry conducted by PW 2 Rizwan Hassan was perfunctory. He further emphasised on the evidence of PW 7 the Assistant Engineer posted in PBMC who had stated there was no ambiguity either in the measurement book, delivery challan etc and that the municipal council do not sustain any loss on account of respondents.
It was further submitted that the respondents were not the expenditure sanctioning authority of PBMC and had only initiated the file for procurement of the electrical goods to meet the immediate exigency conducive for departmental work. It was also submitted that different files are maintained in different departments distinctly for issuance of tenders, procurement in anticipation of approval, supply order etc.
2013-14 or the date on which the council approved the tender rates filed for the year 2013-14. The three indents of the date 12th July, 2013 were for the supply of electrical goods and beyond such issuance of indents the respondents were nowhere connected with the finalisation of rates and the subsequent process of procurement. The learned advocate for the respondents further relied upon the decisions of the Hon'ble Supreme Court in Murugesan and others vs State Through Inspector of Police reported in 2012 (10) SCC 383, K. Venkateshwarlu vs. State of Andhra Pradesh reported in 2012 (8) SCC 73, S.Anil Kumar @ Anil Kumar Gahha Vs. State of Karnataka reported in 2013 (7) SCC 219, Rohtash vs. State of Haryana reported in 2012 (6) SCC 589, a judgement of Delhi High Court in the Case of Central Bureau of Investigation vs.
Shyam Bihari and others (Criminal Appela No. 413 of 2013) and a judgement of this Court in the case of The State vs. Sandip Kumar (CRA No. 6 of 2018) whereby it has been stated that the High Court ought not to interfere with an order of acquittal passed by the Trial Court except under circumstances of extraordinary implication.
9.
A circumspection of the prosecution witnesses reveal PW1 to be the private contractor and supplier who participated in the tender floated by the PBMC in the financial year 2012-13 and after gleaning sanction order, supplied the requisite articles to the PBMC. PW 1 further deposed after end of the financial year 2012-13 the Municipal Council asked for extension of rates because the new tender process was initiated and he did not participate in the financial order of 2013-
14. On the willingness of PW 1 to supply materials at a price of 201213 the supply order was issued in his favour by the Municipal Council for the order 2013-14. Subsequently he supplied the materials in pursuance to 3 to 5 orders from the Municipal Council. In the year 2013-14 PW 1 received the letter from the Municipal Council Stating that he had to refund the excess money paid to him by the Municipal Council as the rates for the financial year 2013 -14 had come into effect and accordingly he refunded the excess money through cheque. During his cross-examination PW 1 stated there was provision of recovery of such CPWD Manual if the rates were revised. When the rates were revised on an intimation of the same, PW 1 refunded the money. He further stated that there was no loss to the government exchequer and he did not get any benefit from the revised rates. 10.
PW 2 the Inspector who conducted the inquiry stated that "on the date I received a source information that the Port Blair Municipal Council has purchased electrical items in exorbitant rates as per the rates of Tender of 2012-13 though the rates of Tender for the year 2013-14 has already been accepted. After receiving the information, I discussed the matter with Superintended of Police (Anti-Corruption) and as per direction of the SP, I alongwith SI Pritam Behari, SI Rakesh Singh and HC Sudama Maurya went to the PBMC and conducted inquiry on the same day. During the inquiry, relevant files were examined and documents were scrutinised. The copies of the relevant documents were obtained and the information was found to be substantiated and accordingly, I submitted a detailed inquiry report to my superior officer
i.e. the Dy.SP. On the basis of my inquiry report, FIR no. 4 of 2013 dated 09.10.2013 was chalked out at PS Anti-Corruption." 11.
In his cross-examination PW 2 stated that "I have not seized any document from the office of Port Blair Municipal Council. I have conducted an inquiry pertaining to calling of quotation notice from the year 2013-14 and supply of electrical articles at the rate of the tender of financial year, 2012-13. I admit that the approval of the Council is mandatory with regard to recommendations made by the Finance Taxation and Accounts Committee. In my report, I have not mentioned that there was an approval of the council with regard to recommendation made by the FTA committee. I am aware that different files are maintained in the issuance of tender/ quotation, procurement in anticipation of approval supply orders were issued. I have perused two files i.e.
file for the quotation of annual supply of the electrical items and file for proposal of the rate acceptance of the year 2013-14 in anticipation of approval of council and I have reflected the same in my inquiry report. I admit that I have no idea when the council approved the tender file for the year 2013-14. I have no idea about the working hours of the head office Port Blair Municipal Council. I did not try to ascertain during my inquiry the mode of giving approval by the PBMC. I have gone through the indent given for the procurement of electrical items. There were three number of indents and all the indents were of 12.07.2013. On 30.07.2013, the AE (Stores) proposed for purchase of electrical items on the approved rates of the year 2012-2013.
14 by the PBMC on 30.07.2013 but it was approved earlier. As per my report, the quotation was invited on 22.03.2013 for supply of electrical fittings and on 25.04.2013, it was opened and then forwarded to FTA Committed for approval. Though I have submitted my inquiry report after scrutinizing all the documents but today in court the said documents have not been produced before me accept the inquiry report. In my report I have mentioned in paragraph no.3 that "on 27/06/2013 a proposal vide no. MC/SS/332/2013-14/S-274 was moved by Shri Zaki Ahmed for finalization of annual quotation for the year 2013 of various items. He mentioned that the FTA in its meeting held on 16/05/2-13 has recommended to accept the lowest rate quoted by firms but the approval of the council is still awaited to issue the rate acceptance letter L (1) firms.
He also mentioned that the present rates quoted by the firms are lower in some items in comparison to the previous rates. Approval was sought for issuance of acceptance letter to firms and to issue supply order in anticipation of approval of the Council. Subsequently, approval for issuing rate acceptance letter for 2013-14 in anticipation of approval of council was signed by the Secretary (PBMC) on 05/07/2013 and the Chairperson on 09/07/2013". I have mentioned in my report in Paragraph 4 that the acceptance letter was issued to the firms on 03.08.2013 at the rate of 2013-14. I have also mentioned in para 6 of my report that "the AE (Stores) Shri Zaki Ahmed proposed on 13.07.2013 for purchasing of electrical items on the approved rates of the year 2012-13 mentioning the rates of 2013-14 were not accepted till then".
have mentioned that the supply order were issued from the office of AE (Stores) vide F.No.03/MC/Store/AE/Elect/JE-1/S-1352 to 1358 dated 26.08.2013 for electrical fittings and appliances to the firm M/s Andaman Trading Corporation and M/s Salim Khan and M/s Navjeevan Enterprises for the rate 2012-13." He further stated that "I have no knowledge and duty of the Executive Engineer nor I have taken any certificate from the PBMC regarding the nature and work of the Executive Engineer (Works). I cannot say who is the proper person to issue and float the tender of the PBMC. I cannot say who is the proper person to issue and float the tender of the PBMC. I cannot say who is the expenditure sanctioning authority of PBMC. I cannot say the mode or procedure of acceptance of rate of any electrical items or fittings by the PBMC.
I have not perused any document regarding the rate accepted by PBMC for purchasing any electrical items for the year 2012-13 or 2013-14 nor I have seized any document regarding the same. I along with three police personnel conducted inquiry in PBMC but only I put my signature in the inquiry report as Inquiry officer. I admit that it is mandatory duty upon the Executive Engineer (Works) to accept the rates after the approval of the Council and the FTA Committee."
12.
PW 7 deposed that "On that date officials of Anti-Corruption unit came to my officer and seized three Indents Forms, two delivery challans, one file, one Measurement Book and one Ledger Book for the year 2013-14 from ne in presence of one of my staff Retish under proper seizure list, in which, I put my signature. (Seizure list dated 14.10.2013
is shown to the witness). These are my two signatures in the seizure list (marked as Ext. P.8/1 collectively). (Measurement Book is shown to the witness) This is the Measurement Book which I have handed over to the Anti-Corruption unit (marked as Mat. Ext. P.V). (Ledger Book for the year 2013-14 is shown to the witness) This is the Ledger Book which I have handed over to the Anti-Corruption unit (Marked as Mat. Ext. P.VI). (A file is shown to the witness) This is the file for the year 2013-14 which contains recovery of excess amount from Navjeevan Enterprises, Andaman Trading corporation and M/s Salim Khan (File is marked as Mat. Ext. VII). (Three Indent Form are shown to the witness) These are the three Indent Form dated 12.07.2013, which I have handed over to the Anti-Corruption unit (marked as Mat.Ext. P.VIII collectively).
(Two Delivery Challans are shown to the witness). These are the two delivery challans dated 29.08.2013 & 30.08.2013, which I have handed over to the Anti-Corruption unit (Delivery challans are marked as Mat.Ext.P.IX collectively and the signature of the witnesses on both the challans are marked as Mat.Ext.P.IX/I collectively)."
13.
In his cross-examination PW7 stated that "It is fact that there is no ambiguity either in the Measurement book, Delivery challan, Indent Form, Ledger and in the file. It is fact that the Measurement Book (Mat. Ext.P.V) has been initiated by me, which bears my signature. I admit that the Municipal Council sustained no loss from the act of the accused persons. All the seized documents were prepared after following the procedure of Municipal Councils."
14.
PW 14 in his cross-examination stated that "This is the quotation notice dated 22.03.2013 regarding supply of electrical items for a period till 31.03.2014. (Mat. Ext. P.XVIII is shown to the witness) In Mat. Ext. P.XVIII, it is fact that it is mentioned that "However, the approval of the Council is still awaited to issue the rate of acceptance letter to the L(1) firms for the rates for the year 2013-14 since, the approval of the Council is required as per the rules in force." It is also mentioned in Mat. Ext. P.XVIII that "Further to mention that presently supply order are being issued on the approved rate available for the year 2012-13 as approved by the FTA/Council previously." (Mat. Ext, P.XV, Mat. Ext. P.XVI and Mat.Ext.P.XVII i.e. the original file being No. 1, 2 and 3 are shown to the witness) It is fact that in Mat.Ext, P.XV, Mat.
Ext. P.XVI and Mat, Ext. P.XVII all the indents are dated 12.07.2013. It is fact that in Mat.Ext.P.XV, Mat.Ext. P.XVI and Mat.Ext.P.XVII, it has been mentioned that "We may purchase the materials as per the approved rate of the council during 2012-13 and the same has been observed on 30.07.2013." (Mat. Ext.P.XIV collectively are shown to the witness) It is fact that in Mat. Ext.P.XIV collectively, it has been mentioned that acceptance of rate for supply of electrical fittings and appliances observed on 03.08.2013. (Mat. Ext. P.VII is shown to the witness) It is fact that in Mat. Ext. P.VII there is notesheet dated 08.10.2013 mentioning that "Recovery of excess amount paid to the M/s Navjeevan Enterprises, M/s Andaman Trading Corporation and M/s Salim Khan Against the supply order bearing no. 1352 to 1358 dated 26.08.2013."
there is signature of the Secretary. It is fact that there is no objection regarding the process of recovery by the Secretary in Mat. Ext. P.VII. It is fact that Mat. Ext. P.VII is not a part of the preliminary inquiry report. (Ext. P.8/3 i.e. seizure memo is show to the witness) It is fact that this seizure memo has been effected on 14. 10.2013. (Ext. P11 i.e. the FIR is shown to the witness) It is fact that the FIR was chalked out on 09.10.2013 at about 16:30 hours. I have not recorded the statement of PBMC. It is fact that PBMC has sustained no financial loss as the excess amount has been recovered. It is fact that the accused persons did not have any financial gain in connection with the alleged offence." 15.
Assailing the oral as well as documentary evidence on record the deliberate act of the respondents conspiring with each other to cheat the government of financial loss for wrongful gain on their part had not been established. The evidence of PW 14 in unambiguous terms depicted the Mat. Exhibits to comprise the indents, the approval of the council to issue the rate of acceptance letter to the L 1 firms that was required as per rules to be enforced was awaited. It further mentioned that the present supply orders were being issued on the approved rate as available for the year 2012-13 as approved by the FTA/Council previously which was further awaiting approval from the higher authority. Mat. Exhibit P.VII whereby a notesheet was initiated on 8.10.2013 under the signature of the Secretary stated that "Recovery of excess amount paid to the M/s Navjeevan Enterprises, M/s Andaman Trading Corporation and M/s Salim Khan Against the supply order bearing no. 1352 to 1358 dated 26.08.2013." The
Secretary of PBMC an official much higher in rank of the respondents therefore was aware and had endorsed the rates at which the supply order was issued to the concerned firm and had granted his approval to the same which after the finalization of the rates for the year 201314 propelled to issue a notesheet for recovery of the excess amount paid to the firm on 08.10.2013. Subsequent to the receipt of such notice the concerned firm refunded the excess amount on 09.10.2013. Therefore the contention of the learned advocate for the State that being aware of the inquiry and a proceeding to be initiated against them the concerned firm refunded the amount received by him in excess with regard to the rates of the years as aforesaid is misconceived and unacceptable.
PW 1, PW 7 and PW 14 in unequivocal terms stated that the government did not suffer pecuniary loss. PW 14 further stated in his cross-examination that the respondents did not have any financial gain in connection with the alleged offence. In presence of superior officers and a mechanism to oversee the act of the respondents it cannot be a unilateral act of the respondents pertaining to different departments to conspire and act contrary to the prescribed rules and regulations. 16.
The oral and documentary evidence on record do not prove any ulterior motive on the part of the respondents to constitute the offences with which they were charged and the learned Sessions Judge after a detailed scrutiny of the evidence on record both oral and documentary acquitted the respondents and this court is not inclined to interfere with the order impugned.
17.
Accordingly the appeal is dismissed. Connected application if there be any also stands disposed of.
18.
The judgement dated 26th June, 2018 passed by the Special Judge (Sessions Judge) in Special Case No. 6 of 2015 under section 420, 120 B of the Indian Penal Code and 13 (1) (d) read with section 13 (2) of the Prevention of Corruption Act, 1988 whereby, the learned Special Judge has acquitted the present respondents is affirmed. 19.
No order as to costs.
20.
The Lower Court Record be sent down alongwith the copy of this judgement.
(ANANYA BANDYOPADHYAY, J.)