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2009 DIGILAW 166 (ORI)

BIJAYA KUMAR SETHY v. STATE OF ORISSA

2009-02-26

R.N.BISWAL

body2009
JUDGMENT : R.N. Biswal, J. - In this case, the Petitioner has challenged the order dated 17.02.2006 passed by the learned Special Judge Vigilance, Sambalpur in C.T.R. Case No. 21 of 2006, wherein, he took cognizance of the offence u/s 13(2) read with Section 13(1)(c)(d) of the Prevention of Corruption Act, 1988 read with Section 409/120-B of IPC. 2. As per the F.I.R., the Executive Engineer (RW) Division, Sundergarh called for quotation for execution of improvement of work for Kuarmunda-Kucheru R.D. Road under Western Orissa Development Council for the year, 2001-2002. After observing all the formalities of tender process, the final rate was fixed at Rs. 18,56,096/ -, which was 8.55% excess over the estimated cost of Rs. 17,09,906/- with co-accused-Rajesh Kumar Agarwala a L-1 Contractor. Accordingly, agreement was made to that effect on 9.1.2002 and Rajesh Kumar Agarwala commenced work on the same date and completed it on 8.5.2002. The total amount of the work was of Rs. 16,92,128/ - which was paid to the contractor. On physical verification made by the help of local engineers on 3.4.2003, it was found that the entire length of the road measuring 2520 meters was less in thickness compared to the agreement. There was less collection of metal and moorum. On verification of Measurement Works (M.Bs.), it was ascertained that value of the work done at the site was less than what was paid to the contractor. The differential value of H.G. Metal moorum and labour charges came to Rs. 1,09,928/ -. So, it was prima facie established that the accused persons, namely, Bijaya Kumar Sethy (Petitioner), Ramagopal Padhi the then Assistant Executive Engineer (A.E.E.) took inflated measurement showing excess thickness of metal for which the contractor Rajesh Kumar Agarwal was paid excess Government money of Rs. 1,09,928/ -. During physical inspection both the accused Sri Sethi and Sri Padhi were given chance to show the actual thickness of the metal as per their measurement and check measurement, but they failed to show the thickness, which they had shown in the Measurement Book. So, it shows that accused-Ramgopal Padhi, A.E.E. and Shri Bijaya Kumar Sethy, J.E. (Petitioner) entered into a criminal conspiracy with Contractor Rajesh Kumar Agarwala and showed undue official favour to him by recording infalted measurement of the work and making excess payment. So, it shows that accused-Ramgopal Padhi, A.E.E. and Shri Bijaya Kumar Sethy, J.E. (Petitioner) entered into a criminal conspiracy with Contractor Rajesh Kumar Agarwala and showed undue official favour to him by recording infalted measurement of the work and making excess payment. On the basis of the report before the Superintendent of Police Vigilance, Sambalpur Division, Sambalpur, Vigilance P.S. Case No. 55 dated 20.12.2004 u/s 13(2)(1)(c)(d) of Prevention of Corruption Act, 1988 read with Section 409/120-B of I.P.C. was registered against Ramgopal Padhi, A.E.E., Rajesh Kumar Agarwal, contractor and the present Petitioner and the case was investigated into. After completion of investigation, charge sheet was submitted under the aforesaid sections against all the three accused persons before the Chief Judicial Magistrate Vigilance, Sambalpur in C.T.R. Case No. 21 of 2006, whereafter he transferred the record to the Special Judge, Vigilance, Sambalpur who took cognizance as per the impugned order dated 17.2.2006. The present case has been filed u/s 482 of Code of Criminal Procedure assailing the said order of taking cognizance. 3. Learned Counsel for the Petitioner submitted that as per the allegation since the Petitioner took inflated measurement of Kuarmunda-Kucheru R.D. Road, an extra amount of Rs. 1,09,928/ - was paid to the contractor causing loss to the State to that extent. But, in fact, the Petitioner had not took inflated measurement of the said road, as would be evident from the M.B. Book No. 2573 at page 9,10,21 and 22 wherein it is clearly written that the thickness of one lawyer of metal at different places was 21/2 inches to 31/2 inches, that is to say 5 inches to 7 inches of thickness in two lawyers. That apart, measurement of the road was taken by the technical team 10 months after completion of the work. 4. Learned Counsel for the Petitioner next submitted that the roads in the country are being designed as per the specification laid down by the Indian Road Congress (IRC). In table No. 7.3 of the I.R.C., it has been clearly stated that if the metals are manually laid, there would be (+/-) 15 mm of tolerance in the surface level in one layer or (+/-) 30 mm of tolerance in two layers. In table No. 7.3 of the I.R.C., it has been clearly stated that if the metals are manually laid, there would be (+/-) 15 mm of tolerance in the surface level in one layer or (+/-) 30 mm of tolerance in two layers. In the present case, the required thickness of the compacted material was fixed at 150 mm and it is the admitted case that the metals had been laid manually by the contractor. So, there is no shortage of thickness of the road in question. Under such circumstances, learned Counsel for the Petitioner submitted that there is no material against the Petitioner to proceed against him on the aforesaid offences. 5. On the contrary, learned standing counsel for the Vigilance Department contended that at this stage the M.B. Book cannot be taken into consideration. In support of his submission, he relied upon the decisions in the case of State of Orissa v. Debendra Nath Padhi (2005) 30 OCR (SC) 177 : 2005 (1) OLR (SC) 357, Bharat Parikh v. C.B.I. and Anr. (2008) 41 OCR (SC) 113 and Sanghi Brothers (Indore) Pvt. Ltd. v. Sanjay Choudhury and Ors. (2008) 41 OCR (SC) 713. In these cases the apex Court held that at the time of taking cognizance of framing charge, the materials produced by the accused in his defence cannot be entertained. But in the instant case, M.B. No. 2573 was seized by the Investigating Agency. So, there is no bar in relying upon it. Learned Addl. Standing Counsel further submitted that I.R.C. guidelines are not followed in "Pradhanamantri Gramya Sadak Yojana" under which the road in question was constructed. There are separate guidelines for the same. 6. When there is controversy with regard to applicability of I.R.C. guidelines to "Pradhanamantri Gramya Sadak Yojana" under which the work in question was awarded to the contractor, in my view, it would not be proper, at this stage to rely upon it. At the stage of taking of cognizance, a roving enquiry is not required. The High Court cannot make a detailed enquiry and meticulous examination of the case on merit and set aside the order of taking cognizance. In the present case, as per the case of prosecution, in presence of the Petitioner, the technical team took the measurement of the road in question and found inflated measurement of the road. The High Court cannot make a detailed enquiry and meticulous examination of the case on merit and set aside the order of taking cognizance. In the present case, as per the case of prosecution, in presence of the Petitioner, the technical team took the measurement of the road in question and found inflated measurement of the road. When asked to clarify it, the Petitioner could not do so. Even if it is held that on the basis of M.B. No. 2573, the Petitioner is likely to be acquitted still then at the very threshold, the prosecution cannot short circuited leading to its sudden death on that ground alone. Moreover, the order under challenge is revisable u/s 397 and 401 of Code of Criminal Procedure Order of taking cognizance should not be interfered with by the High Court under its inherent power. Of course in suitable cases, this Court is not precluded from treating a petition filed u/s 482 of Code of Criminal Procedure as one u/s 397 read with Section 401 of Code of Criminal Procedure But in my view it is not a suitable case to be so treated. Therefore, under the aforesaid grounds the CRLMC stands dismissed.