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2010 DIGILAW 502 (ORI)

Prashanta Kumar Mohapatra v. State of Orissa

2010-07-23

I.MAHANTY

body2010
JUDGMENT I. MAHANTY, J. — In the present application under Section 482 of Cr.P.C., the petitioner - Prashanta Kumar Mohapatra has challenged the order of cognizance dated 19.7.2007 (Annexure-2) passed by the Special Judge (Vigilance), Sambalpur in CTR No.65 of 2007. 2. Mr. Dhal, learned counsel for the petitioner submits that on the basis of a complaint dated 29.12.2005 filed by one J. Nayak, Ex-Inspector of Vigilance, Baragarh squad, a case was registered against the petitioner alleging criminal misconduct by showing undue official favour to M/s. Weigh Care, Sambalpur and for alleged excess payment of Rs.1,91,820/- for purchase of Weigh bridge for the Regulated Market Committee (RMC), Padampur. It is further alleged that the petitioner was serving as the Secretary, RMC, Padmapur during the period from 01.01.2001 to 04.07.2007. During the said period the Orissa State Agriculture Marketing (OSAM) Board. Bhubaneswar accorded permission for purchase of 130 MT Weigh bridge for RMC, Padmapur through competitive tender or DGS and D rate contact. It is alleged that violating the direc¬tion of the OSAM board, the petitioner along with other office bearers of the RMC placed orders and purchased 130 MT Weigh bridge from M/s. Weigh Care, Sambalpur at a cost of Rs.4,57,000/-. In conclusion of the investigation it was asserted that the cost of weigh bridge including installation charge comes to Rs.2,49,380/- and, therefore, it is alleged that due to such action on the part of the petitioner as well as the other offi¬ce bearers of the RMC., the RMC had incurred a loss of Rs.1,91,820/- by showing undue official favour in favour of the supplier M/s. Weigh Care which amounts to criminal misconduct. 3. On the basis of the complaint of the Vigilance Officer, F.I.R. was lodged and registered as Sambalpur Vigilance P.S. Case No.75 of 2005 for commission of the offence punishable under Section 13(2) read with Section 13(1) (d) and Section 120(b) of Indian Penal Code and on receipt of the F.I.R., CTR No.65 of 2007 was registered in the Court of C.J.M., Sambalpur. 4. Learned counsel for the petitioner asserts that while the Orissa State Agricultural Market Board, Bhubaneswar had permitted the RMC, Padmapur to install a weigh bridge at Sohela market yard but the R.M.C. was not able to install the same even after due permission was accorded by the Orissa State Agricultur¬al Market Board, Bhubaneswar for quite some time. 4. Learned counsel for the petitioner asserts that while the Orissa State Agricultural Market Board, Bhubaneswar had permitted the RMC, Padmapur to install a weigh bridge at Sohela market yard but the R.M.C. was not able to install the same even after due permission was accorded by the Orissa State Agricultur¬al Market Board, Bhubaneswar for quite some time. In the mean while, Sambalpur RMC issued a tender call notice which was duly published in different dailies calling for quotation from intending parties to supply and install the weigh bridge and M/s. Weigh Care, Sambalpur having quoted the lowest price of Rs.4,57,000/- had been declared as the successful tenderer and the Sambalpur RMC issued a work order to the said M/s Weigh Care, Sambalpur. It further appears that the weigh bridge was success¬fully installed and the payment was duly released in favour of the supplier-company. 5. Following the process adopted by the RMC, Sambalpur two other RMCs, namely, RMC, Baragarh and RMC, Attabira also placed orders with M/s Weigh Care, Sambalpur for supplying 30 MT weigh bridge at the rate in which supply has been effected to RMC, Sambalpur i.e. Rs.4,57,000/-. Pursuant to the order placed by the respective RMCs i.e. Bargarh and Attabira, the supplier, namely M/s. Weigh Care successfully installed the weigh bridge at the respective sites. It appears that the RMC, Padmapur of which the petitioner was the Secretary, on learning of the aforesaid facts obtained the approval of the Chairman of Padmapur RMC before placing the work order on M/s. Weigh Care for supply of 30 MT weigh bridge for installation at Sohela market yard. It is stated that the said approval was necessary in view of Rule-25(A) sub rule (xii) of the Orissa Agricultural Market Produce Rules, 1958. It is further stated that the petitioner obtained the approval of the Chairman and pursuant to the said approval, order was placed with M/s Weigh Care, Sambalpur for supply and installation of the weigh bridge at the rate of Rs.4,57,000/- as had been done in the case of RMC, Sambalpur, Attabira and Baragarh. It is further stated that the petitioner obtained the approval of the Chairman and pursuant to the said approval, order was placed with M/s Weigh Care, Sambalpur for supply and installation of the weigh bridge at the rate of Rs.4,57,000/- as had been done in the case of RMC, Sambalpur, Attabira and Baragarh. Learned counsel for the petitioner further asserts that the action of the present petitioner was in consonance with the order of approval granted by the Chairman, RMC in terms of Rule-25(a) sub rule (xii) of the Orissa Agricultural Market Produce Rules, 1958 and, therefore, the same cannot justify initiation of any proceeding for the alleged criminal misconduct. 6. Mr. Dhal, learned counsel for the petitioner placed reliance on the judgment of this Hon’ble Court in the case of Premanidhi Seth v. State of Orissa, C.L.T. 2008 SUPP. CRL. 1121 where¬in this Court considered the case of the petitioner therein who was the Sub-Collector and Ex-Officio Chairman of RMC, Sambalpur. This Court taking into consideration the fact that the Chairman of the Sambalpur RMC had alone been prosecuted for the alleged criminal misconduct in the purchase of the weigh bridge for Sambalpur RMC and the further fact that the process adopted by the RMC., Sambalpur had been adopted by RMCs, Attabira and Bara¬grah as well as RMC., Padmapur, held that since there was no prima facie case against the Chairman of RMCs, namely RMCs, Baragarh, Attabira and Padmapur, it cannot be said that on the self same fact prima facie case exists against the Chairman of the Sambalpur RMC. 7. Mr. Dhal, learned counsel for the petitioner asserts that in so far as the present facts are concerned relating to the purchase of weigh bridge for the RMC, no prosecution has been launched against the Secretary of Attabira and Baragrah RMCs. He has stated that no enquiry was conducted by the Administrative Department relating to the purchase of Weigh Bridge by RMCs. at Sambalpur, Attabira, Baragarh and Padmapur and no recommendation was noted for initiation of criminal proceeding against all the aforesaid RMCs. The only case in which F.I.R. was lodged against Sri Premanidhi Seth, Ex-Chairman, RMC, Sambalpur, whose name has been indicated at Sl. No.2 in the chart, the same was quashed by this Court in the aforementioned decision. at Sambalpur, Attabira, Baragarh and Padmapur and no recommendation was noted for initiation of criminal proceeding against all the aforesaid RMCs. The only case in which F.I.R. was lodged against Sri Premanidhi Seth, Ex-Chairman, RMC, Sambalpur, whose name has been indicated at Sl. No.2 in the chart, the same was quashed by this Court in the aforementioned decision. In so far as Biswajit Barik, Secretary, RMC, Baragarh and Sasanka Sekhar Sahani, Ex-Secretary, RMC, Attabira are concerned, no criminal action has been initiated against them, but the Departmental action as di¬rected was taken. Drawing the attention of the Court to the decision referred to above, the learned counsel for the petitioner Mr. Dhal submits that only prosecution pending was against the present petitioner, namely, Sri Prasant Kumar Mohapatra, Secretary, RMC, Padmapur, whose name finds in Sl. No.1 of the aforesaid chart. 8. Mr. P.K. Pani, learned Additional Standing Counsel for Vigilance submitting a list of documents on behalf of Vigilance Department today in Court, advanced his argument basing on the decision relied upon by the present petitioner i.e. the judgment of this Hon’ble High Court in the case of Premanidhi Seth (supra) and tried to draw certain distinctions between the facts consid¬ered in the said judgment and the facts which arose presently herein. Apart from the aforesaid fact, learned Additional Stand¬ing Counsel for the Vigilance submits that the order impugned herein i.e. the order of the Special Judge (Vigilance), Sambalpur should not be interfered with since the accused-petitioner is free to raise his pleas in course of trial. 9. No doubt the power under Section 482 of Cr.P.C. is a power which is discretionary in nature and should be exercised with great amount of circumspection. Section 482 Cr.P.C. is quoted hereinbelow :- “482. Nothing in the code shall be deemed to limit or affect the inherent power of the High Court to make such order as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” 10. The facts that emanate on consideration of the afore¬said contentions is that, Padampur RMC purchased a weigh bridge from M/s. Weigh Care, Sambalpur at a price of Rs.4,57,000/- without calling any tender. The facts that emanate on consideration of the afore¬said contentions is that, Padampur RMC purchased a weigh bridge from M/s. Weigh Care, Sambalpur at a price of Rs.4,57,000/- without calling any tender. The explanation made by the learned counsel for the petitioner in that the purchase of weigh bridge was made, following the purchase made by the RMC, Sambalpur on the basis of the lowest tender. The tender made by the RMC Sam¬balpur had been adopted by RMCs of Attabira and Baragarh. It is highly essential to note here that no prosecution has been lodged against the Secretary of the said RMCs. i.e. RMC., Attabira and Baragarh even though they were similarly placed like the peti¬tioner. 11. Apart from the above, from the records of the proceed¬ing it is clear therefrom that the prosecution have not collected any evidence to substantiate their claim that loss is occurred to the RMCs in purchase of the weigh bridge. The alleged loss com¬puted is purely on theoretical and without their being any docu¬mentary evidence to substantiate such a claim. 12. In view of the above, the CRLMC is allowed and the criminal proceeding in CTR No.65 of 2007 on the file of learned Special Judge (Vigilance), Sambalpur, arising out of Sambalpur Vigilance P.S. Case No.75 of 2005 is quashed. CRLMC allowed.