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2019 DIGILAW 476 (UTT)

Manoj Sharma v. Central Bureau of Investigation

2019-08-30

RAVINDRA MAITHANI

body2019
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. 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 Aggarwal made a request on 03.04.2010 to the Nagar Palika to reduce the initial deposit from 50% to 10% with a further request that the balance amount may be collected from him in twelve monthly installments. The Board of Nagar Palika met on 03.04.2010. Nav Bahar Ali was also called and he was offered to make deposit of 50% of the amount. But, he raised certain conditions. The Board neither accepted the conditional offer of Nav Bahar Ali nor the proposal of Naveen Aggarwal and decided to issue fresh tenders. 6. The Board of Nagar Palika met on 03.04.2010. Nav Bahar Ali was also called and he was offered to make deposit of 50% of the amount. But, he raised certain conditions. The Board neither accepted the conditional offer of Nav Bahar Ali nor the proposal of Naveen Aggarwal and decided to issue fresh tenders. 6. Third time, the tender was published on 04.04.2010 and the following seven persons purchased the tender forms namely Nazeer Ahmad, Alok Chaudhary, Naveen Aggarwal, Umesh Chandra Mishra, Rahul Karnatak, Veerbhan Singh and Nav Bahar Ali. But, only three persons submitted their bids, namely, Alok Chaudhary, Rahul Karnatak and Umesh Chandra Mishra. Alok Chaudhary the petitioner had offered highest bid of Rs.1,52,00,000/-. In the Board's meeting held on 13.04.2010, the offer of the petitioner Alok Chaudhary was placed and after negotiation, it was accepted at Rs.1,54,50,000/-. During the period from 01.04.2010 to 15.04.2010, the employees of the Nagar Palika had collected Rs.7,69,250/- as toll. This is, in fact, the backdrop of these litigations. 7. Nav Bahar Ali, feeling aggrieved with the cancellation of his tender on 03.04.2010, filed Writ Petition (M/S) No. 565 of 2010, which was dismissed. But, Nav Bahar Ali challenged the order in Special Appeal No. 207 of 2010, Nav Bahar Ali Vs. State of Uttarakhand and others (for short "the special appeal") before this Court. The special appeal was allowed. The Court observed that statute does not contemplate sending communication through courier and if the courier was sent on 26.03.2017, why the communication/work order was handed over to postal authority on 29.03.2010. It would be appropriate to reproduce as to what the Court observed:- "The respondent Nagar Palika is a Statutory Authority constituted and guided by Statute. The Statute prescribes the mode and manner of sending of notices and other communications by Nagar Palika. The Statute does not contemplate that Nagar Palika would send any communication through courier. There is no just reason, therefore, why steps were taken to send the communication dated 26.03.2010 asking the appellant to deposit 50% of the bid money through courier whose credentials are unknown and operates from a hotel and has its office in Delhi. If it was thought that as abundant precaution the said communication would also be sent through courier there is no just reason why the postal packet containing the said communication was handed over to the postal authority on 29.03.2010. If it was thought that as abundant precaution the said communication would also be sent through courier there is no just reason why the postal packet containing the said communication was handed over to the postal authority on 29.03.2010. Further, when the courier receipt was returned to Nagar Palika it was bounden duty of Nagar Palika to satisfy itself that the addressee has received the communication and that the courier is making an appropriate report. For that purpose a mere glance at the signature on the courier receipt and comparison thereof with the signature of the appellant appearing on the tender document would have satisfied any prudent person that the courier has not been able to establish that the communication in question has been served upon the appellant. That being the situation, on 31.03.2010 bid of appellant could neither be cancelled nor his security deposit could be forfeited. At the same time Nagar Palika could not take any step on 03.04.2010 either to consider giving of the tender to the second highest bidder or to take a decision to invite fresh tender. In the circumstances, according to us writ petition ought to have had been allowed. We accordingly, set aside the judgment and order under appeal. Having set aside the judgment and order under appeal, it is our duty, taking into account the passage of time, to frame appropriate relief, which can be granted by us on the writ petition. Having concluded that there was no just reason to forfeit the security deposit of the appellant and there being no other ground to do so, we are of the view that one of the conclusions would be that forfeiture of security deposit of the appellant was patently illegal. We, accordingly, direct Nagar Palika to refund security deposit to the appellant with interest at the rate of 9% per annum to be calculated from 01.04.2010 until the date of payment thereof. In the event, payment, as above, is not made within 30 days from today the rate of interest shall stand increased to 18% per annum. We, accordingly, direct Nagar Palika to refund security deposit to the appellant with interest at the rate of 9% per annum to be calculated from 01.04.2010 until the date of payment thereof. In the event, payment, as above, is not made within 30 days from today the rate of interest shall stand increased to 18% per annum. In as much as the period, the appellant was to collect toll, has come to an end, and at the same time in as much as the period, of the subsequent contract granted to Alok Chaudhary has also come to an end, we are unable to grant any relief to the appellant in that regard except preserving right of the appellant, if any, to recover compensation by taking such recourse to law as he may be advised. Having concluded in this judgment that in order to cause loss of 49 Lakhs to Nagar Palika a few people associated with Nagar Palika created the things, referred to above and thereby committed cognizable offences, it is our duty to direct that the matter to be investigated by an appropriate agency. We accordingly, direct the Registrar General of this court to submit a copy of this order with the Central Bureau of Investigation, Dehradun with a direction upon Central Bureau of Investigation, Dehradun to lodge a first information report on the basis of this judgment against unknown accused persons and thereupon to investigate into the matter and to take such further appropriate steps as are required to be taken under law in respect of cognizable offences. Original records produced by the Nagar Palika will be sealed by our officer and kept in the custody of the Registrar General of this court for the purpose of handing over the same to the Central Bureau of Investigation for investigation." 8. Pursuant to the order passed in special appeal, CBI lodged FIR No. R00072011A0007, under Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act,1988 and under Section 120B,420,468 and 471 IPC. After investigation, Charge Sheet No. 1 dated 12.07.2012 has been submitted against the petitioners, namely, Mukesh Joshi, Neeraj Joshi, Rajinder Kumar Joshi, Alok Choudhary and Manoj Sharma, under Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act,1988 and under Section 120B,420,468 and 471 IPC. 9. After investigation, Charge Sheet No. 1 dated 12.07.2012 has been submitted against the petitioners, namely, Mukesh Joshi, Neeraj Joshi, Rajinder Kumar Joshi, Alok Choudhary and Manoj Sharma, under Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act,1988 and under Section 120B,420,468 and 471 IPC. 9. It may be mentioned here that the petitioner Mukesh Joshi was Chairman of the Nagar Palika at the relevant time. Based on this charge sheet, CBI Case No. 6 of 2012, CBI Vs. Mukesh Joshi and four others was instituted in the court of learned Special Judge, Anti Corruption (CBI), Uttarakhand Dehradun. On 12.07.2012, by an order passed in the case, all the petitioners have been summoned to answer the acquisition under Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act,1988 and under Section 120B,420,468 and 471 IPC. Aggrieved, the petitioners have challenged the charge sheet as well as the summoning order. 10. It may be noted here that the judgment and order dated 10.05.2011, passed in special appeal was challenged by the Nagar Palika before the Hon'ble Supreme Court, in Special Leave Petition (Civil) No. 15386 of 2011, which was dismissed, subject to the condition that the Nagar Palika shall not be required to pay interest to Nav Bahar Ali. 11. Heard learned counsel for the petitioners, learned counsel for the CBI and perused the record. 12. On behalf of the petitioner Neeraj Joshi, learned counsel would argue that no offence is even, prima facie, made out against the petitioner and the charge sheet as well as the entire proceedings of the case deserves to be quashed. Learned counsel would argue that the tenders were published in a most fair and transparent manner. When for the first time, no bid was submitted, the tender was published again, in which, Nav Bahar Ali was the highest bidder. Communication was prepared by the petitioner on 25.03.2010 and it was given to the petitioner Rajendra Joshi for service. Nav Bahar Ali was informed about it, but he did not deposit 50% of the offered amount. Consequent upon it, the second highest bidder Naveen Aggarwal was offered to deposit 50% of the offered amount, which, he did not deposit. Communication was prepared by the petitioner on 25.03.2010 and it was given to the petitioner Rajendra Joshi for service. Nav Bahar Ali was informed about it, but he did not deposit 50% of the offered amount. Consequent upon it, the second highest bidder Naveen Aggarwal was offered to deposit 50% of the offered amount, which, he did not deposit. In the Board's meeting held on 03.04.2010, Nav Bahar Ali made a conditional offer to deposit the amount that in case of any legal implication, the Board of Nagar Palika will be responsible. But, this conditional offer was not accepted by the Board. Naveen Agarwal also made conditional offer, which was also rejected by the Board and resolved to invite fresh tenders. The Nagar Palika has had no infrastructure to collect the toll. It was an emergent situation. Therefore, from 01.04.2010, the toll was collected through employees of the Nagar Palika. In the third time when the tenders were published, Nav Bahar Ali did not participate and the highest bidder was offered the work. 13. It is argued that there cannot be any conspiracy to eliminate someone and issue fresh tender. The petitioner had no occasion to do so. They were fair and transparent in discharge of their duties. Acceptance of tender at a lower price than the minimum reserved price was done under the compelling circumstances, because on the earlier occasions, the tenders could not be finalized. The Nagar Palika was finding it difficult to collect the toll on its own. Nagar Palika had no other option, but to accept the offer made by Alok Chaudhary and even after negotiations, the offer made by him was increased. It is argued that if the petitioners Rajendra Joshi and Manoj Sharma did something wrong, the petitioner cannot be held responsible for that. He has done his work in accordance with the Rules. It is also argued that even if there is any breach of rules, it does not entail any criminal liability. The petitioner did not commit any forgery or any conspiracy. 14. It is further argued by the learned counsel that the acceptance of tender below the minimum reserved price is well explained in the Board's meeting held on 13.04.2010 and merely because the Nagar Palika incurred some loss, it cannot fasten any criminal liability upon the petitioners. 15. The petitioner did not commit any forgery or any conspiracy. 14. It is further argued by the learned counsel that the acceptance of tender below the minimum reserved price is well explained in the Board's meeting held on 13.04.2010 and merely because the Nagar Palika incurred some loss, it cannot fasten any criminal liability upon the petitioners. 15. Learned counsel for the petitioner Mukesh Joshi adopted the arguments made on behalf of the petitioner Neeraj Joshi. 16. Learned counsel appearing on behalf of the petitioner Alok Chaudhary would argue that in response to notice inviting tender, he submitted his bid and he has been awarded the work. He has not conspired with any one. He has no role. No case is made out against him. 17. On behalf of the petitioner Rajindra Joshi, learned counsel would argue that he was a Clerk working in the Nagar Palika. When the judgment and order was passed in the special appeal, he was not the party. Nav Bahar Ali was aware of the fact that he was required to deposit 50% of the offered amount. He was present in the Board's meeting on 03.04.2010, which has been concluded by the CBI, after investigation. According to learned counsel, the petitioner Rajindra Joshi, had handed over the communication/work order to Rajendra Mehra for service upon Nav Bahar Ali. The petitioner Rajindra Joshi did not forge any register or any endorsement. He had simply made corrections in the register regarding the amount, which was paid to the courier service. It is argued that such corrections are generally made in daak register. Learned counsel for the Rajindra Joshi would submit that the petitioner would not gain anything by forging or making false report. He has been wrongly implicated in the case. Therefore, it is argued that the proceedings of the case qua the petitioner Rajindra Joshi deserves to be quashed. 18. On behalf of the petitioner Manoj Sharma, it is argued that he was simply an employee in the courier service. He has no reason to commit any forgery; he is not the beneficiary; he has not been part of any conspiracy. Therefore, it is argued that the proceeding deserves to be quashed. 19. 18. On behalf of the petitioner Manoj Sharma, it is argued that he was simply an employee in the courier service. He has no reason to commit any forgery; he is not the beneficiary; he has not been part of any conspiracy. Therefore, it is argued that the proceeding deserves to be quashed. 19. On behalf of the CBI, learned counsel would argue that under the conspiracy, the petitioners eliminated Nav Bahar Ali, so that the work of collecting toll may be awarded to the petitioner Alok Chaudhary. It is argued that the Board of Nagar Palika was not informed on 03.04.2010 that service has been effected on Nav Bahar Ali by way of "Yes Courier Services"; Had Nagar Palika officers not conspired, they would have accepted the offer given by Nav Bahar Ali on 03.04.2010 to deposit 50% of the amount. Learned counsel would argue that CBI, after detailed investigation, concluded that under the conspiracy, it has been done. Certain part of the charge sheet has been referred to by the learned counsel and it is argued that scrutiny of entire material should not be done in the proceeding under Section 482 of the Code. Prima facie, case has been made out against the petitioners and all the petitions deserve to be dismissed. 20. In support of his contention, learned counsel for CBI would place reliance on the principles of law, as laid down in the case of Rakhi Mishra Vs. State of Bihar and others, (2017) 16 SCC 772 and Devendra Prasad Singh Vs. State of Bihar and another, 2019 SCCOnlineSC 464. 21. In the case of Rakhi Mishra (supra) Hon'ble Supreme Court placed reliance upon the principle of law as laid down in the case of Sonu Gupta Vs. Deepak Gupta, (2015) 3 SCC 424 , wherein, inter alia, it was held, as hereunder: "8 At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence . to find out whether a prima facie case has been made out for summoning the accused persons. Deepak Gupta, (2015) 3 SCC 424 , wherein, inter alia, it was held, as hereunder: "8 At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence . to find out whether a prima facie case has been made out for summoning the accused persons. At this state, the learned Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials would lead to conviction or not." 22. In the case of Devendra Prasad Singh (supra), proceedings of a criminal case was quashed by the High Court, under Section 482 of the Code on two grounds. First, no sanction under Section 197 of the code was obtained by the prosecution for filing the complaint and the second, there are contradictions in the statement of the complainant and the witnesses. Hon'ble Supreme Court, inter alia, held that in the proceedings under Section 482 of the Code, the High Court had no jurisdiction to appreciate the statements of the witnesses and record a finding that there were inconsistencies in their statements. 23. Before arguments are appreciated, it would be apt to reproduce the findings of CBI, as recorded in the charge sheet. Relevant paragraphs are paragraph nos. VI, VII, VIII, IX, XIII, XIV, XV, XVI, XVII, XIX and XX, which are as hereunder:- "(VI) Investigation further revealed that Shri Rajinder Joshi, in conspiracy with Sh. Manoj Sharma franchiser of Yes Courier and other accused persons falsely showed dispatch of this letter on 26.03.2010 through "Yes Courier". In fact, he dispatched this letter through speed post on 29.03.2010, which was not received by Sh. Nav Bahar Ali with in stipulated time. Investigation further revealed that Sh Rajinder Kumar Joshi dishonestly and fraudulently made false entry in the Dak & Postage register showing the dispatch of the letter on 26.03.2010. he dishonestly managed the false acknowledgment dated 27.03.2010 bearing the forged signature of Sh. Nav Bahar Ali on the printed receipt of Yes Courier from Sh. Manoj Kumar franchise of Yes Courier at Nainital on 07 or 08.04.2010. (VII) the hand writing expert had also given positive opinion on the writings/signature of Sh. he dishonestly managed the false acknowledgment dated 27.03.2010 bearing the forged signature of Sh. Nav Bahar Ali on the printed receipt of Yes Courier from Sh. Manoj Kumar franchise of Yes Courier at Nainital on 07 or 08.04.2010. (VII) the hand writing expert had also given positive opinion on the writings/signature of Sh. Manoj Sharma on the body of acknowledgment and on forged signature of Nav Bahar Ali. The expert has also opined positively on forged entries made by Sh Rajinder Kumar Joshi on Dak and Postage register pertaining to dispatch of communication dated 25.03.10 through Yes Courier on 26.03.10. Expert has also opined positively on the alterations/modifications made in the Dak and postage Register, by using fluid for making adjustment of Rs. 15 purportedly incurred by Sh. Rajinder Kumar Joshi on delivery of communication dated 25.03.2010 through "Yes Courier". It is also revealed that changes in the Dak and postage register were made after forged dispatch of communication dated 25.03.10, either on 07.04.10 or on 08.04.10. (VIII) Investigation further revealed that on 31.03.10 Sh. B.S. Bisht Miscellaneous Clerk placed a noting before Executive Officer recommending cancellation of tender of Sh. Nav Bahar Ali and also to forfeit his security of Rs.10 Lac due to non compliance of the terms of the contract. It is revealed that in his noting Sh. B.S. Bisht has mentioned that work order/communication was sent on 29.03.10 to Nav Bahar Ali. But there is no mention of dispatch of communication dated 25.03.10 through Yes Courier on 26.03.10 or that Nav Bahar Ali has acknowledge the communication on 27.03.10. Shri B.S. Bisht had also recommended in his note that to run the toll plaza, second highest bidder Sh. Naveen Aggarwal may be given an opportunity in place of Sh. Nav Bahar Ali. It is further revealed that Sh. Neeraj Joshi, Executive Officer did not enquire for acknowledgement for communication dtd 25.5.10 sent through speed post on 29.03.10 and agreed with the proposal of giving opportunity to Sh. Naveen Aggarwal and also recommended that till the finalization of tender, toll may be collected by Nagar Palika through Tax Supdt. Sh. Mukesh Joshi, Chairman of the Nagar Palika, approved the proposal and asked to give three days time to Sh. Naveen Aggarwal. Accordingly, Letter No. 2065/IV-13 dated 31.03.10 was sent to Sh. Naveen Aggarwal and also recommended that till the finalization of tender, toll may be collected by Nagar Palika through Tax Supdt. Sh. Mukesh Joshi, Chairman of the Nagar Palika, approved the proposal and asked to give three days time to Sh. Naveen Aggarwal. Accordingly, Letter No. 2065/IV-13 dated 31.03.10 was sent to Sh. Naveen Aggarwal with the direction to deposit the desired amount of 50% of the tender amount i.e. Rs. 1 Crore by 3 PM on 03.04.10. On the other hand, letter No. 2071/IV-13 dated 31.03.10 was also sent to Sh. Nav Bahar Ali by Executive Officer, Nagar Palika Nainital informing him about cancellation of his tender and forfeiting of his security amount of Rs. 10 Lac due to non compliance of terms and condition of the tender. (IX) Investigation disclosed that in the noting dtd. 31.03.10 or in board proceedings dtd. 03.04.10 there was no reference of dispatch of work order/ communication dtd. 25.03.10 through Yes Courier on 26.03.10. It was only referred by Sh. Neeraj Joshi, Executive Officer in his affidavit dtd. 07.07.10 submitted before the High Court of Uttarakhand. These facts establish that Sh. Mukesh Joshi, Chairman and Neeraj Joshi, Executive Officer were well aware that the work order/communication dtd. 25.03.10 was not sent to Sh. Nav Bahar Ali on 26.03.10. Thus, without confirming of receipt/acknowledgment of work order by Sh. Nav Bahar Ali, cancellation of tender and also forfeiting the security amount of Rs. 10 Lac by Sh. Neeraj Joshi, Executive Officer and Sh. Mukesh Joshi, Chairman was baseless and illegal. This fact clearly establish that a deep rooted conspiracy was hatched by Sh. Rajinder Kumar Joshi, Clerk, Mukesh Joshi, Chairman, Neeraj Joshi, Manoj Sharma and Alok Choudhary with the object to eliminate Sh. Nav Bahar Ali from the tender work. (XIII) Investigation further revealed that during the course of board proceedings dtd. 13.04.10 board members were dishonestly not apprised by the Chairman and Executive Officer about the amount of reserve price and about the fact that the amount quoted by Sh. Alok Choudhary was below the reserve price. (XIV) Investigation also revealed that none of the board proceedings dtd. 03.03.10,04.04.10 and 13.04.10 were sent to competent authority by Chairman, Nagar Palika Parishad Nainital to conceal the fact that the contract was awarded to Shri Alok Choudhary below the reserve price. Alok Choudhary was below the reserve price. (XIV) Investigation also revealed that none of the board proceedings dtd. 03.03.10,04.04.10 and 13.04.10 were sent to competent authority by Chairman, Nagar Palika Parishad Nainital to conceal the fact that the contract was awarded to Shri Alok Choudhary below the reserve price. (XV) Investigation further revealed that as per section 50(C) of Municipalities Act 1916 provides that Chairman is required to provide all the documents to competent authority as mentioned in Section 32 and Sub clause 4 & 5 of Section 94 and sub clause 1 of Section 108 as such he is liable to sent all the proceedings of board meetings to competent authority within the ten days of meeting. Section 51 (B) provides that chairman is required to watch over the financial and superintendent the executive administration of the municipality and bring the defects to the notice of the Municipality. (XVI) The Uttarakhand Procurement Rules, 2008 revealed that Section 3 and its sub clauses defines the fundamental principles of procurement. Section 3 (1) provides that transparency, competitiveness, and fairness must be ensured to secure the best value for the money. Section 3 (7) provides that competent authority shall satisfy itself that price of the selected offer is reasonable and consistent with quality and section 3(9) envisages that negotiations shall be avoided. It may be conducted under exceptional circumstances with lowest bidder and reason for such negotiation should be clearly mentioned. Section 50 (2) provides that where the estimated cost of the work/service is above Rs. 15 Lac Expression of Interest should be published in at leased one national newspaper and the website of the department/organization. Section 50 (3) provides that EOI should include, broad scope of work/service, in puts to be provided that EOI should include, broad scope of work/service, inputs to be provided for eligibility and prequalification criteria to be met by the consultants and consultants past experience in similar work/service. The consultants may also be asked to send their comments on the objective and scope of the work/service provided in the enquiry. The consultant may be allowed to respond within two weeks, subject to a maximum of four weeks. Section 51 provides that on the basis of responses received from interested parties, consultants meeting the requirements should be short listed for further consideration and number of short listed consultants should not be less then three. The consultant may be allowed to respond within two weeks, subject to a maximum of four weeks. Section 51 provides that on the basis of responses received from interested parties, consultants meeting the requirements should be short listed for further consideration and number of short listed consultants should not be less then three. Section 61 (3) also provides that for the estimated value of work/service above Rs.50 Lac two bid system i.e. technical and financial may be adopted through EOI/RFP route as prescribed in Rule 51 to 58. (XVII) During the course of investigation a letter was sent to Chief Secretary Uttarakhand to ascertain the prescribed norms in case of award of tender to a contractor at lower rates than the reserve price specified in the terms and condition of the tender. The Secretary, Urban Development Government of Uttarakhand, vide his letter dtd 31.01.2012 has confirmed that as per the clause 3 (7) of Uttarakhand Procurement Rules,2008, price should be reasonable and no work should be awarded below the reserve price, where it is decided to award any work below the reserve price by modifying the reserve price, then reasons for the same must be explained. (XIX) Investigation has revealed that award of tender to Sh. Alok Choudhary at Rs.1,54,50,000/- against the reserved price of Rs.1,85,40,000/- was against the fundamental principles of Procurement Rules,2008. As per the terms and conditions of the tender Sh. Mukesh Joshi, Chairman, Nagar Palika Parishad Nainital was competent authority to accept/reject any of the tender, in the interest of the Nagar Palika, before placing the same before the board. It was his duty to secure the financial interest of Nagar Palika, but he failed to do so by accepting the tender of Sh. Alok Choudhary at lower rates in comparison to reserve price fixed for the tender, by the board. The fundamental principles of transparency, fairness and competitiveness were also not observed in awarding of tender work to Sh. Alok Choudhary as out of three contenders, two of them namely Rahul Karnatak and Umesh Chandra Mishra have not deposited the FDR's, as FDR's were not in their name, and were not considered, and thus Sh. Alok Choudhary was the only bidder. Further, before inviting tender afresh the minimum expected price for the tender should have been modified in the terms and conditions with approval of board. Alok Choudhary was the only bidder. Further, before inviting tender afresh the minimum expected price for the tender should have been modified in the terms and conditions with approval of board. (XX) Investigation has established that the Nagar Palika Parishad Nainital was put to an loss of Rs. 56,01000/- by awarding tender work to Sh. Alok Choudhary with comparing to the price of Rs. 2,10,51,000/- offered by Sh. Nav Bahar Ali." 24. These are proceedings under Section 482 of the Code. The scope of this provision is to do complete justice. Principles have been laid down in various cases. In the case of State of Haryana and Others Vs. Bhajan Lal and Others, (1992) Supp1 SCC 335, Hon'ble Supreme Court has laid down the test for exercising the inherent power of the High Court under section 482 of the Code of Criminal Procedure. It was held that :- "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice." (emphasis supplied) 25. In the case of Rajiv Thapar and Others Vs. In the case of Rajiv Thapar and Others Vs. Madan Lal Kapoor, (2013) 3 SCC 330 , Hon'ble Supreme Court, in fact, laid down the test before invoking the powers vested in the High Court under Section 482 of the Code of Criminal Procedure. It was held that:- 30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the CrPC: 30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality? 30.2. Step two: whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false. 30.3. Step three: whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant? 30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? 30.5. If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising there from) specially when, it is clear that the same would not conclude in the conviction of the accused." 26. Again, in the case of Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 , Hon'ble Supreme Court has elaborated the principles to be considered by the High Court while exercising the jurisdiction under Section 482 of the Code of Criminal Procedure. Again, in the case of Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 , Hon'ble Supreme Court has elaborated the principles to be considered by the High Court while exercising the jurisdiction under Section 482 of the Code of Criminal Procedure. The Court, interalia, held observed as hereunder:- "27.1 Though there are no limits of the powers of the Court under section 482 of the code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of section 228 of the code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2 The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 27.3 The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 27.4 Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. 27.5 Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. 27.6 The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. 27.7 The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. 27.6 The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. 27.7 The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. 27.8 Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a "civil wrong" with no "element of criminality" and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence. 27.9 Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. 27.10 It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. 27.11 Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. 27.12 In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution. 27.13 Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 27.14 Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. 27.15 Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e to do real and substantial justice for administration of which alone, the courts exist." (emphasis supplied) 27. This Court in these proceedings will definitely not scrutinize the material collected during investigation. The matter has to be seen to a limited extent. The defence cannot be considered in these proceedings. Other materials supplied in these proceedings cannot be looked into. Scrutiny of the evidence shall not be done meticulously. Those are the domain of the trial court. The court is not required to held full fledged inquiry. 28. Crux of the matter is, as to whether, the petitioners conspired to eliminate Nav Bahar Ali from the tender process; the another question related to it, is whether the petitioners conspired together so as to award the work of collecting toll to the petitioner Alok Chaudhary. In the special appeal, it was observed that there is no statutory provision for service of communication by courier. It has also been observed that if communication/work order was issued on 26.03.2010 by way of 'Yes Courier', why it was again sent by speed post on 29.03.2010. One of the considerations for order of investigation was that by the process, loss of Rs.49 lakhs incurred to the Nagar Palika. This was observed in the special appeal. 29. Now, it is a criminal case. Prima-facie, the case is definitely required to be seen. The element of criminality has to be there before any criminal prosecution is lodged. Violation of procedural norms or irregularities in procedure, in all times cannot fastened a person with criminal liability. This was observed in the special appeal. 29. Now, it is a criminal case. Prima-facie, the case is definitely required to be seen. The element of criminality has to be there before any criminal prosecution is lodged. Violation of procedural norms or irregularities in procedure, in all times cannot fastened a person with criminal liability. A breach of rules may have its implications, but every breach cannot be a criminal case. Bonafide and malafide intentions are really very essential elements. Error of judgments, if genuinely made, under a given circumstances cannot, in all probabilities and in all situations, be a basis for criminal prosecution. The allegation, in the instant case is that of conspiracy, to eliminate Nav Bahar Ali and awarding the work to the petitioner Alok Chaudhary. Has any such conspiracy hatched or has any offence been committed in the process of awarding tender? 30. Section 120-A IPC defines criminal conspiracy. It is as hereunder: "120-A. Definition of criminal conspiracy.- When two or more persons agree to do, or cause to be done, - (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explaination.- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object." 31. In the case of State of Madhya Pradesh vs. Sheetla Sahai and others, (2009) 8 SCC 617 , the Hon'ble Supreme Court, inter-alia, held as hereunder: "38. A criminal conspiracy must be put to action inasmuch as so long a crime is generated in the mind of an accused, it does not become punishable. What is necessary is not thoughts, which may even be criminal in character, often involuntary, but offence would be said to have been committed thereunder only when that take concrete shape of an agreement to do or cause to be done an illegal act or an act which although not illegal by illegal means and then if nothing further is done the agreement would give rise to a criminal conspiracy. Its ingredients are: (i) an agreement between two or more persons; (ii) an agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means. 39. What is, therefore, necessary is to show meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means. While saying so, we are not oblivious of the fact that often conspiracy is hatched in secrecy and for proving the said offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence." 32. In the case of State of Orrisa vs. M. N. Mishra, (2018) 10 SCC 516 , the Hon'ble Supreme Court, inter-alia, held as hereunder: "11. It is common knowledge that generally direct evidence may not be available to prove conspiracy, inasmuch as the act of conspiracy takes place secretly. Only the conspirators would be knowing about the conspiracy. However, the Court, while evaluating the material, may rely upon other material which suggests conspiracy. Such material will be on record during the course of trial. However, at this stage, prima facie, the Court needs to take into consideration the overall material while considering the prayer for bail." 33. In the case of Asoke Kumar Chaudhuri and others vs. Kunal Saha and another, (2017) 11 SCC 561 , on the concept of conspiracy, the Hon'ble Court, inter alia, held as hereunder: "14. Here again, criminal conspiracy that is referred to and defined under Section 120-A IPC has to be in furtherance of committing an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, etc. The alleged conspiracy even as per the complaint was not to commit any of the offences as mentioned above. As per the complainant himself, the so-called conspiracy, if at all, was to save the delinquent doctors in disciplinary proceedings taken against them. This provision also, therefore, has no application." 34. In the case of State through Central Bureau of Investigation vs. Dr. Anoop Kumar Srivastava, (2017) 15 SCC 560 , Hon'ble High Court, inter-alia, held as hereunder: "26. As per the complainant himself, the so-called conspiracy, if at all, was to save the delinquent doctors in disciplinary proceedings taken against them. This provision also, therefore, has no application." 34. In the case of State through Central Bureau of Investigation vs. Dr. Anoop Kumar Srivastava, (2017) 15 SCC 560 , Hon'ble High Court, inter-alia, held as hereunder: "26. Similarly, the law on the issue emerges to the effect that conspiracy is an agreement between two or more persons to do an illegal act or an act which is not illegal by illegal means. The object behind the conspiracy is to achieve the ultimate aim of conspiracy. For a charge of conspiracy means knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or services in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do." (emphasis supplied) 35. In the case of Dr. Anoop Kumar Srivastava (supra), it is observed by the Hon'ble Supreme Court that the object behind the conspiracy is to achieve the ultimate aim of conspiracy. There should be some aim in a conspiracy, for which, there should be meeting of minds, for which, there should be an agreement. Merely because some persons are involved in the process and some result is accrued, which benefits one and is not favourable to another, it cannot be presumed that the act was done under a conspiracy to cause loss to one and gain to another. The ultimate object or ultimate aim has to be seen. In this context, this matter would be examined. 36. Cbi in para (V) and (VI) of the charge sheet has concluded that the work order was prepared for awarding it to Nav Bahar Ali and requiring him to deposit 50% of the offered amount. This communication was also entered into daak registered by the petitioner Rajindra Joshi. In this context, this matter would be examined. 36. Cbi in para (V) and (VI) of the charge sheet has concluded that the work order was prepared for awarding it to Nav Bahar Ali and requiring him to deposit 50% of the offered amount. This communication was also entered into daak registered by the petitioner Rajindra Joshi. Then according to the CBI, petitioner Rajindra Joshi has conspired with the petitioner Manoj Sharma and other accused persons, falsely showed dispatch of this letter on 26.03.2010 through "Yes Courier". In fact, he dispatched the letter through speed post on 29.03.2010, which was not received by Sh. Nav Bahar Ali within stipulated time. Opinion of handwriting expert has also been obtained, which according to CBI, confirms that the petitioner Manoj Sharma forged the signature of Nav Bahar Ali. The handwriting expert also opined that the petitioner Rajindra Joshi made alterations and modification in the daak postal register. Petitioner Manoj Sharma has not denied of having been given the acknowledgment. He simply says in paras 18 and 21 of his petition that he is petty courier employee and was not beneficiary in the process. It is not a question of what his status is or who the beneficiary was? Prima-facie, CBI has concluded that the petitioner Manoj Sharma forged the signature of Nav Bahar Ali on the acknowledgment. Prima-facie, a case is made out against the petitioner Manoj Sharma. Petitioner Rajindra Joshi admits that he made certain entries subsequently. He gives his explanation. According to him, he had handed over the communication/work order for service upon Nav Bahar Ali to Rajendra Mehra (patrawahak), who gave acknowledgment back to him. 37. In para 31 of his petition, petitioner Rajindra Joshi explains, under what circumstances he issued, the communication/work order again on 29.03.2010. According to him, since a receipt was not given to him by that date by Rajendra Mehra (Patrawahak), therefore, to be on safer side, he dispatched communication/work order through speed post on 21.03.2010 morning. 38. With regard to modification and alterations done by petitioner Rajindra Joshi, there is handwriting expert's report. Petitioner Rajindra Joshi has some defence to make. Those factors cannot be evaluated in these proceedings under Section 482 of the Code. Prima-facie, a case has been made out against the petitioner Rajindra Joshi. 38. With regard to modification and alterations done by petitioner Rajindra Joshi, there is handwriting expert's report. Petitioner Rajindra Joshi has some defence to make. Those factors cannot be evaluated in these proceedings under Section 482 of the Code. Prima-facie, a case has been made out against the petitioner Rajindra Joshi. What is the case, prima-facie, made against the petitioners Rajindra Joshi and Manoj Joshi, it will be seen at a later stage. But, before that the role of other petitioners is to be seen. 39. The question to be answered is, as to whether, petitioners Neeraj Joshi and Mukesh Sharma conspired with Manoj Sharma and Rajindra Joshi in obtaining the forged acknowledgment. 40. In special appeal, this Court found that there is no evidence that Nav Bahar Ali attended the Board's meeting on 03.04.2010. The resolution of Board meeting dated 03.04.2010 is on record of C482 No. 860 of 2012, Neeraj Joshi Vs. CBI and another, as annexure no.7. In it, it is categorically stated that Nav Bahar Ali was summoned in the Board meeting over telephone and he appeared. Nav Bahar Ali offered to deposit 50% amount subject to the condition that, in case, any legal issue arises, it shall be the responsibility of the Board. The Board rejected it. The CBI confirms these minutes. In para X of the charge sheet, this has been reiterated. In fact, in this Board meeting dated 03.04.2010, it has also been recorded that even Chairman, Nagar Palika telephonically called Nav Bahar Ali. But, the fact remains that on 03.04.2010, Nav Bahar Ali was present and he was again offered to deposit 50% of the offered amount. It was done because the other person Naveen Agarwal had also not deposited 50% of the offered amount and had moved representation for reduction of initial deposit from 50% to 10% with further permission to deposit the remaining amount in 12 installments. The offer of this person was also rejected by the Board of Nagar Palika. How can conspiracy be attributed? In the first tender process nobody submitted the bid. In the second tender process Nav Bahar Ali was the highest bidder, who did not deposit the bid. The Court is not going into the reasons at this stage. It has been observed in the special appeal and CBI has concluded after investigation that the petitioner Manoj Sharma and Rajindra Joshi forged the documents. In the second tender process Nav Bahar Ali was the highest bidder, who did not deposit the bid. The Court is not going into the reasons at this stage. It has been observed in the special appeal and CBI has concluded after investigation that the petitioner Manoj Sharma and Rajindra Joshi forged the documents. But, the fact remains that Board of Nagar Palika on 03.04.2010, again offered Nav Bahar Ali to deposit 50% of the offered amount. It is the case of the Nagar Palika. The minutes of meeting are on the record and CBI, after investigation has confirmed it. 41. Now, the question is as to if the petitioners Neeraj Joshi and Mukesh Joshi had any intention to eliminate Nav Bahar Ali from the tendering process, why did they, on 03.04.2010, offer Nav Bahar Ali, to deposit 50% of the amount? Conspiracy can be inferred by actions. Mind of any person cannot be read. It can be assessed by way of what he does and how he does a particular thing, under the given circumstances. Nagar Palika offered Nav Bahar Ali to deposit 50% amount on 03.04.2010. CBI, in its charge sheet, in para X, categorically stated that in that meeting on 03.04.2010, Nav Bahar Ali raised a condition. The Investigating Officer writes as hereunder:- "But Shri Nav Bahar Ali raised a condition that he will deposit the money if the Nagar Palika ensures that in case of any legal consequences, it ( Nagar Palika) will be responsible for the entire amount invested by him in the tender. The Nagar Palika Parishad after consideration rejected his contention." 42. It was Nav Bahar Ali, who declined the offer and imposed certain conditions. After the process could not be finalized on 03.04.2010, Nagar Palika did not award the work to any person of their choice. A conscious decision was taken by the Nagar Palika to invite fresh tenders. One aspect is clear that 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. Did the Nagar Palika give work to a person of their choice? 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. Did the Nagar Palika give 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. In open tender, secrecy has no space. 43. As stated hereinbefore, seven persons purchased the tender forms again, including Nav Bahar Ali, but only three did submit their bids including the petitioner Alok Chaudhary. 44. It is not the case of CBI that the terms and conditions of the tender were tailored to exclude Nav Bahar Ali or to include the petitioner Alok Chaudhary and Alok Chaudhary alone. The terms and conditions were same. Nav Bahar Ali purchased the tender form but did not participate in the process. The process was definitely fair and transparent, which rules out any theory of conspiracy. 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 meeting of the Board dated 13.04.2010 has 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. 45. The CBI has concluded that in its meeting dated 13.04.2010, 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. 45. The CBI has concluded that in its meeting dated 13.04.2010, 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. Learned counsel for the CBI would urge that in the Board meeting dated 03.04.2010, it was not informed that the service upon Nav Bahar Ali was done through courier service etc. These all issues looses its significance, because CBI has confirmed after investigation that Nav Bahar Ali appeared in the Board meeting on 03.04.2010 and did not accept the offer of Nagar Palika and imposed his own conditions. It was also concluded by CBI that 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. 46. 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/-. 47. Therefore, in view of the foregoing discussion, this Court is of the view that even if the allegations or the case of the prosecution is taken at its face value and accepted in their entirety, it does not, prima facie, constitute any offence or make out a case against the petitioners Mukesh Joshi, Neeraj Joshi and Alok Chaudhary. Even if, there are some breach of rules and guidelines, they have no element of criminality and does not satisfy the basic ingredients of criminal offence. Even if, there are some breach of rules and guidelines, they have no element of criminality and does not satisfy the basic ingredients of criminal offence. Therefore, this Court is of the view that the charge sheet as well as the entire proceedings of the case, insofar as, it relate to petitioners Mukesh Joshi, Neeraj Joshi and Alok Chaudhary, deserve to be quashed. 48. This Court has held that, prima facie, a case has been made out against the petitioners Rajendra Joshi and Manoj Sharma. No, prima facie, case of criminal conspiracy, cheating or forgery for purpose of cheating has been made out against any of them. Having considered the matter, this Court is of the view that prima facie, a case under Section 471 IPC is made out against the petitioners Rajendra Joshi and Manoj Sharma. 49. Petitions filed by the petitioners Mukesh Joshi, Neeraj Joshi and Alok Chaudhary are allowed. 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. 50. 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. The petitions filed by the petitioners Manoj Sharma and Rajendra Joshi are disposed of accordingly. 51. Let a copy of this judgment along with Lower Court Record be transmitted to the Court below for compliance.