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Himachal Pradesh High Court · body

2001 DIGILAW 286 (HP)

H. R. BASHAL v. STATE OF H. P.

2001-10-11

KAMLESH SHARMA

body2001
JUDGMENT Ms. Kamlesh Sharma, J.—Both the petitioners in these two revision petitions No. 55 and 62 of 2000, are facing sessions trial in case FIR No. 37 of 1994, Police Station, CBI, Chandigarh. In these revision petitions they have assailed the order dated 9.3.2000 passed by the Special Judge, Shimla, whereby charge has been framed against both of them under Section 120-B IPC read with Section 13(l)(d) of the Prevention of Corruption Act (hereinafter called the Act). Petitioner H.R. Bashal, in addition, has been charged with offence under Section 13(l)(d) of the Act. 2. The case of the prosecution is that petitioner H.R. Bashal was posted as District Telecom Engineer, Shimla from December, 1985 to March, 1989. In the year 1988-89, the Telecommunication Research Centre (TRC), New Delhi, requested the Chief General Manager Telecom, Shimla to execute two projects in Himachal Pradesh for laying out Optical Fibre Cable. The said cable was to be laid between Central Telegraph Office, Shimla to Mashobra and it was to be provided by the Telecom Research Centre, New Delhi and the other stores were to be provided by Himachal Pradesh Circle of Telephones. Keeping in view the urgency of the project, the Chief General Manager Telecom, Shimla, called meetings in his office on 13.9.1988 and 15.9.1988 in which it was decided that 80mm medium class G.I. pipe on DGS & D rate contract will be procured by 25.9.1988 and the supply order will be placed by TDE, Shimla. 3. Petitioner H.R. Bashal, who was the then TDE, Shimla, placed four supply orders to M/s. Jotindra Steel and Tubes Limited for supply of 5800 mtrs. 9500 mtrs., 800 mtrs. and 720 mtrs. of 80 mm medium class GI pipes, in response to which supplies were made by M/s. Jotindra Steel and Tubes Ltd. through its Commercial Manager petitioner O.P. Bhardwaj and payment of Rs. 28,30,209 was also made to the said company through petitioner O.P. Bhardwaj for which the bills were passed by petitioner H.R. Bashal. 4. The allegations against petitioner H.R. Bashal are that knowing fully well that G.I. Pipes being on DGS and D rate contract were to be purchased through DGS and D, he placed the supply orders himself on plain papers instead of prescribed format No. 131. 4. The allegations against petitioner H.R. Bashal are that knowing fully well that G.I. Pipes being on DGS and D rate contract were to be purchased through DGS and D, he placed the supply orders himself on plain papers instead of prescribed format No. 131. He did not send the copies of the supply orders to the Pay and Accounts Officer, Office of Chief Controller of Accounts, New Delhi and Director of Inspection, N.I. Circle, Jam Nagar House, New Delhi, as required under para 2 of DGS and D rate contract. Before accepting the supply of G.I. Pipes, he never got it inspected from the Inspecting Authority as per para 9 of the DGS and D rate contract. Further, petitioner H.R. Bashal without waiting for the Covering Sanction from the competent authority, made the payment to M/s. Jotindra Steel and Tubes Limited despite the objection raised by the then Chief Accounts Officer, office of the Chief General Manager Telecom, Shimla, that the bills were beyond his financial powers. 5. According to the prosecution, petitioner H.R. Bashal, has committed the above stated irregularities to defraud the Telecommunication Department by entering into criminal conspiracy with petitioner O.P. Bhardwaj, who made supplies of G.I. pipes without receiving the orders on prescribed DGS and D formats and without getting it inspected from the competent authority. From these facts on record, the prosecution has tried to make outj a case that petitioner H.R. Bashal abusing his official position, caused undue pecuniary advantage to himself and petitioner O.P. Bhardwaj, who was the Commercial Manager of M/s. Jotindra Steel and Tubes Limited at the relevant time. 6. In order to find out whether prima-facie case is made out against the petitioners to frame charge against them, this Court is not supposed to appreciate and weigh the material on record. By now, it is well settled that at the stage of framing of charge, the Court is to find out whether, taking the case of the prosecution at its face value, ingredients of the offence alleged against the petitioners are made out or not. By now, it is well settled that at the stage of framing of charge, the Court is to find out whether, taking the case of the prosecution at its face value, ingredients of the offence alleged against the petitioners are made out or not. In a recent judgment of Supreme Court in State of M.P. v. S.B, Johari and others, (2000) 2 Supreme Court Cases 57, their Lordships of Supreme Court have observed in para 4 : "..It is settled law that at the stage of framing the charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by defence evidence, if any, cannot show that the accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjayya, after considering the provisions of Sections 227 and 228 Cr.RC. the Court posed a question, whether at the stage of framing the charge, the trial court should marshal the materials on the record of the case as he would do on the conclusion of the trial. The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh, Union of India v. Prafulla Kumar Samal and Supdt. The court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh, Union of India v. Prafulla Kumar Samal and Supdt. and Remembrancer of Legal Affairs, W.B v. Anil Kumar Bhunja, and : held thus: (SCC p. 85, para 7) "From the above discussion it seems well settled that at the Sections 227-28 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case." (Emphasis supplied) 7. In view of the ratio of judgment in Niranjan Singh Karam Singh Punjab v. Jitendra Bhimraj Bijjayya, (1990) 4 SCC 76, this Court must limit its inquiry to find out from the material produced by the prosecution whether offence under Section 13(l)(d) is made out or not. This Section is : "13. Criminal misconduct by a public servant.— (1) A public servant is said to commit the offence of criminal misconduct,— (a)................................................................................................... (b) ................................................................................................... (c) ................................................................................................... (d) if he,— (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or (e)................................................................................................... Explanation.—For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine." 8. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine." 8. The terms "wrongful gain" and "wrongful loss" have been defined in Section 23 IPC which is as under : "Wrongful gain"—"Wrongful gain" is gain by unlawful means of property to which the person gaining is not legally entitled. "Wrongful loss"—"Wrongful Loss" is the loss by unlawful means of , property to which the person losing it is legally entitled. 9. The prosecution case is that both the petitioners entered into a criminal conspiracy in furtherance of which petitioner H.R. Bashal by abusing his position as a public servant obtained for himself and for petitioner O.P. Bhardwaj undue pecuniary advantage. In addition, petitioner H.R. Bashal, has also been charged that while holding office as public servant, he has obtained for petitioner O.P. Bhardwaj undue pecuniary advantage without any public interest. Since it is not in dispute that petitioner H.R. Bashal was holding the office as public servant when he gave supply orders and made payment thereof, the only question which is to be seen is whether he has abused his position as a public servant to obtain pecuniary advantage for himself and petitioner O.R Bhardwaj. 10. From the letter dated 26.7.1988 written by the Additional Director (L), Telecommunication Research Centre, New Delhi to the General Manager, Telecommunication, HP Circle, Shimla and the minutes of the meetings held on 13.9.1988 and 15.9.1988, it is clear that strict time schedule was prescribed and besides requesting the General Manager to ensure that all the sanctions and local procurement process are completed before the installation actually starts, it was decided that procurement of 80 mm medium class G.I. pipes shall be made on DGS and D rate contract by 25.9.1988 and supply order shall be placed by TDE, Shimla by 19.9.1988. As per this decision, TDE, Shimla, was to make purchases on DGS and D rate contract and not through DGS and D. 11. Therefore, placement of supply orders by petitioner H.R. Bashal was as per the decision of the Chief General Manager Telecom, Shimla and the other Higher Officer of Telecommunication Research Centre, New Delhi and it cannot be said that he has abused his position as TDE. Therefore, placement of supply orders by petitioner H.R. Bashal was as per the decision of the Chief General Manager Telecom, Shimla and the other Higher Officer of Telecommunication Research Centre, New Delhi and it cannot be said that he has abused his position as TDE. The perusal of supply orders further shows that copies of these supply orders were sent to Additional Director (Planning) in the office of the Chief General Manager Telecom for information and necessary action and also for pointing out any deficiency in the order so that the despatch of the stores might be stopped. It is also on record that the supplies were inspected by Shri A.K. Bhatt, JTO at New Delhi and thereafter consignment was brought to Shimla. Shri A.K. Bhatt has appended certificate while accepting the supplies that the pipes were found satisfactory on hydrolic testing. It is also on record that despite repeated requests, covering sanction orders were not sent by the Chief General Manager Telecom, Shimla under whose directions the pipes were being purchased. However, sanction to the project estimate for laying of Optical Fibre Cable between Shimla to Mashobra at total cost of Rs. 33,83,900 stood already conveyed to the Telecom District Engineer, Shimla, on behalf of the General Manager Telecom, Shimla, vide letter dated 29.8.1988. 12. It is not in dispute that M/s. Jotindra Steel and Tubes Limited was on DGS and D rates contract and the payment made to it was in accordance with the rates approved by the DGS and D. It is not the case of the prosecution that supply of pipes was short in quantity or the pipes were substandard or defective in any manner or purchased . in excess and thereby blocked the department funds. Therefore, it cannot be said that the supply orders were given and the payments were made by petitioner H.R. Bashal for causing any pecuniary benefit to himself or petitioner O.R Bhardwaj, who was the Commercial Manager of M/s. Jotindra Steel and Tubes Limited. Being a Limited Company, only its Director was responsible for the day to day affairs and petitioner O.P. Bhardwaj being its Commercial Manager, was only to comply with the directions of the Director. Being a Limited Company, only its Director was responsible for the day to day affairs and petitioner O.P. Bhardwaj being its Commercial Manager, was only to comply with the directions of the Director. He had nothing to do with the profits and losses of the company, as such, it cannot be said that he entered into criminal conspiracy with petitioner H.R. Bashal to have pecuniary gain for himself. 13. Generally direct evidence is not available for proving criminal conspiracy and it is to be inferred from the circumstantial evidence which is missing in the present case, In Major S.K. Kale v. State of Maharashtra, AIR 1977 Supreme court 822 and S.P. Bhatnagar and another v. The State of Maharashtra, AIR 1979 Supreme Court 826, it is held that in order to come within the mischief of Section 5(l)(d) (now Section 13(l)(d), the abuse of position must necessarily be dishonest and for oblique motive to show that the public servant has obtained any pecuniary advantage for himself or for some other person and mere departure from normal procedure is not enough. In the case in hand, the case of the prosecution is of procedural lapses which are not supported by any evidence placed on record to point out, prima facie, that petitioner H.R. Bashal had dishonest and oblique motive to draw inference that he had misused his position as public servant to obtain pecuniary advantage for himself or for O.R Bhardwaj. 14. The special Judge has drawn adverse inference against petitioner H.R. Bashal that he had failed to reply to the letter of the Deputy General Manager (Telephones) calling upon him to explain why he had made purchases without following the prescribed procedure and without getting the G.I. pipes inspected from the Director (Inspection) Office of the Director General Supplies and Disposal and why he released the payment without prior permission/sanction of the General Manager (Telephones). It is stated by the petitioner that he was transferred from Telephone District, Shimla to the newly created Telephone District, Solan in December, 1989 and the said communication was never received by him, however, the then District Telecom, Engineer, Shimla had replied the said communication on the basis of record vide his letter dated 4.9.1990 in the following terms : "Copy of your office letter No. Eng-B/CS-40/5 dated 21.9.1988 is enclosed. Under para-II(b) of this letter, TDE, Shimla was asked to place supply orders by 19.9.1988 and procurement was desired by 25.9.1988. All the orders for G.L Pipe worth Rs. 6,93,318, Rs. 97,483, Rs. 7,75,834 and Rs. 9,38,062 were placed by the then TDE Shimla Shri H.R. Bashal direct on the firm approved by DGS and D. Shri H.R. Bashal, the then DET probably have placed direct orders on the firm perhaps keeping in view tight time schedule fixed by your office for its procurement. Photostat copy of your office letter No. Engg-B/HPT/CS-17/8 dated 7.10.1988 is also enclosed vide which approval of additional G.I. pipes was accorded, it also gives directions for an early completion because this approval was accorded after a short interval of your letter dated 21.9.1988. On receipt of the bills every time, the financial powers of the Division as well as Circle Office were pointed out to Shri H.R. Bashal by AO (C). But since the supply was already received and the party was also pressing for payment. The TDE desired to make payment pending sanction of Eng-27. All the Engg-27 for these purchases stand despatched to your office which may kindly be sanctioned. Provision for these works exist in the Estimates." 15. The Special Judge has framed the charges against the petitioners on the ground that there is a strong suspicion indicating that there was conspiracy between the two petitioners in furtherance of which they had obtained illegal pecuniary advantage for themselves. But there is not an iota of evidence on record that the petitioner? had obtained illegal pecuniary advantage for themselves, as the department has made the payments of the supplies received by it on the rates approved by DGS and D. It is also not in dispute that the firm M/s. Jotindra Steel and Tubes Limited from whom the supplies were received, was on DGS and D rates contract. The circumstances under which the supply orders were placed, the supplies were received and the payments thereof were made by petitioner H.R. Bashal without following the procedure laid down in DGS and D rates contract, are also on record which are self explanatory and no dishonest and oblique motive can be imputed to petitioner H.R. Bashal as well as petitioner O.R Bhardwaj, who was only an employee of the company M/s. Jotindra Steel and Tubes Limited. 16. 16. Petitioner H.R. Bashal has also relied upon the dropping of departmental proceedings against him to show that the mis-conduct proved against him in the departmental proceedings was procedural in nature without any mala fide intention, therefore, the Special Judge was not justified to frame charge against him. This argument is raised to be rejected, as the charge has to be framed on the basis of material placed on record by the prosecution and the decision in the departmental inquiry was on the basis of the evidence recorded in it. For holding this, this Court takes support from the judgment of Rajasthan High Court in Jagdish Chandra Soni v. State of Rajasthan, 1998 Cri. L.J. 1902. 17. The judgment of Jammu and Kashmir High Court in The State through S.S.P. Vigilance Organisation, Jammu v. Shamsher Chand Patzvari and another, 1997 Cri. L.J. 4453, cited by the learned Counsel for the respondent is not relevant in the case in hand, as in that case there were allegations of acceptance of illegal gratification for making false entry which proved meeting of the minds between the respondents to falsify the public records and derive undue benefits. In the case in hand, there is no evidence showing meeting of the minds of the petitioners to hold that there was conspiracy between them in furtherance of which petitioner H.R. Bashal had placed the supply orders, received the supplies of G.I. pipes and made the payments thereof by not following the procedure laid down in the DGS and D rates contract. 18. In the result, these revision petitions (55 and 62 of 2000) are accepted and the impugned order dated 9.3.2000 framing the charge(s) against the petitioners is set-aside and both the petitioners H.R. Bashal and O.R Bhardwaj are discharged in Sessions Trial No. 4-S/7 of 2000 holding that no case is made out against them under Section. 13(l)(d) of the Prevention of Corruption Act read with Section 120-B IPC. The bail bonds furnished by the petitioners also stand discharged. The record of Session Trial No. 4-S/7 of 2000 be sent back to the Special Judge, Shimla, for being consigned to the record room.