1 2025:CGHC:28785 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MCRCA No. 930 of 2025 Vijay Jamnik S/o L.A. Jamnik Aged About 61 Years (Wrongly Typed As L.J. Jamnik). R/o Collector Bangla Road, Infront Of Mahila Thana, Ambikapur District Surguja Chhattisgarh ... Applicant(s) versus State Of Chhattisgarh Through Police Station Jashpur, District Jashpur Chhattisgarh ... Non-applicant(s) For Applicant : Mr. Manoj Paranjpe, Advocate along with Mr. Anurag Singh, Advocate. For Non-applicant : Mr. Sangharsh Pandey, Govt. Advocate. Hon'ble Mr. Ramesh Sinha, Chief Justice Order on Board 27.06.2025 1. This first anticipatory bail application under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 has been filed by the applicant, who is apprehending his arrest in connection with Crime No.140/2025 registered at Police Station – Jashpur, District- Jashpur (C.G.) for the offences punishable under Sections 409 and 420 of IPC. KUNAL DEWANGAN Digitally signed by KUNAL DEWANGAN 2 2. Prosecution case in brief is that the the F.I.R. of the incident was lodged by one Vinod Bhagat (Incharge Executive Engineer, Water Resources Department Division Jashpur). The F.I.R. of the incident was lodged inter-alia on the allegations that, the applicant who was posted as Executive Engineer between the period from 24.02.2021 to 30.08.2024, has violated Clause No. 2.8.1 of the agreement executed between M/s. Khalatkar Construction and the State Government for construction of Sushdega Diversion Project (Bairaj) and has released the Additional Performance Security. It has been alleged that the said amount of Additional Performance Security, according to the contract should have been released only after completion of the work. If the contractor has failed to discharge its obligations, the said Additional Performance Security was to be forfeited by the department and the agreement will be terminated. It has been alleged that, the contractor has completed 60% of the work and now he is not discharging his contractual obligations as per the terms and conditions of the contract and if the contractor will leftout the work in complete the Additional Performance Security cannot be forfeited. The applicant has violated clause No. 2.8.1 and thereby has given the undue advantage/profit to the contractor. 3. Learned counsel for the applicant submit that the applicant is innocent and he has been falsely implicated in this case. They further submits that admittedly the contract for construction of Sushdega Diversion Project (Bairaj) on Maad River Pathalgaon was awarded to M/s. Khalatkar Construction, a Class One Contractor. They further submits that as per Clause No. 2.8.1 of the contract, 3 the contractor is required to furnished Additional Performance Security as well as Security Deposit and the same shall be refunded along with normal security deposit and if the contractor fails to complete the work or left the work incomplete the same shall be forfeited by the department and contract will be terminated and action would have been taken under Clause No. 4.3.3 of the agreement. The contractor has completed near about 65% of the work and he is without any default is discharging his contractual obligations. It is relevant to mention at this juncture that, as per the terms and conditions as prescribed under the contract the quantity of excavation of hard rock was near about 2000 cubic meter (which was expected). The contractor has quoted the contract price as per the said quantity. During the course of contract, it reveals that the said quantity has been enhance from 2000 to 60000 cubic meter and the contractor has requested the department that, due to the heavy excavation of the hard rock and due to enhancement of hard rock quantity, he is not in a position to continue with the work. They further submits that according to the agreement if the quantity of item would enhance more than the agreed quantity as per the agreement then only increased 10% of the quantity as per agreement will be payable to the contractor. Apart from this as per agreement if the hard rock quantity would be enhance more than the agreed quantity of 2000 cubic meter than department can at the most accommodate the contractor upto 10% of agreed quantity i.e. 2200 cubic meter, but here the quantity has been enhance from 2000 to 60000 cubic meter and therefore the department was not in 4 a position to pay more then the said amount. The quantity of work awarded to the contractor was increased and the valuation of the extra work was enhanced upto Rs.5,69,03,898 and same was sanctioned by the government therefore looking to the public interest and the fact that, contractor was not in position to continue with the work and looking to the fact that, major amount towards the bill of the contractor was due to the government and the amount of Additional Performance Security was secured with the amount due (bill amount), therefore, the applicant has released the amount of the Additional Performance Security. Subsequently the government has also sanctioned the enhance quantity of hard rock, after releasing the Additional Performance Security amount. Even today the huge amount towards the bill is lying with the government and the amount of Additional Performance Security can be withheld by the government. The contractor is still discharging his contractual obligation and executing the work and amount of Additional Performance Security is secured with the amount of bill. 4. Learned counsel for the applicant further submits that the F.I.R. has been lodged with malafide intention. The complainant Vinod Bhagat is also holding the substantive post of Executive Engineer. The following chronological events shows that, why the F.I.R. with malafide intention has been lodged by another Executive Engineer who at some point of time was having the Additional charge of Executive Engineer at Jashpur, the applicant was working as Executive Engineer at Jashpur, Division Jashpur. Vide order dated 16.07.2024 the applicant was transferred from Jashpur to 5 Manendragarh. The applicant by filing the WPS No. 4162/2024 has challenged the said transfer order before this Hon'ble High Court and the Co-ordinate Bench of this Court vide its order dated 25.07.2024. The said order has been set- aside by the Co-ordinate Bench of this Court taking note the date of retirement of the applicant i.e. 31.10.2024. The said order of the Co-ordinate Bench of this Court has attained its finality. On 30.08.2024 within a period of one month from the order of Co-ordiante Bench of this Court dated 25.07.2024, the applicant was placed under suspension on erroneous grounds. The applicant retired from service from 31.10.2024. State Government realized their mistake and subsequently vide order dated 24.01.2025 the date of superannuation of the applicant was rectified from 31.10.2024 to 31.10.2025. Vide order dated 21.02.2025 the suspension order of the applicant has been revoked and the applicant has been posted as Chief Engineer Hasdev Kacchar Bilaspur. The applicant has joined the said post, but subsequently the corrigendum has been issued that, he is posted on the post of Executive Engineer. Thereafter, the applicant has challenged the order dated 21.02.2025 before this Co-ordinate Bench of this Court which registered was as WPS No. 2857/2025 and vide its order dated 28.04.2025 has permitted to work as Executive Engineer in Water Resources Department Jashpur Division Jashpur. On 11.05.2025 the applicant has joined the post of Executive Engineer Water Resources Department Jashpur, but the charge was not handed over by the complainant namely Vinod Bhagat who was working 6 there as incharge Executive Engineer in place of the applicant. Even till date the charge has not been handed over. They further submits that looking to the order of the Co-ordinate Bench of this Court dated 28.04.2025 and since complainant wants to remain there as Executive Engineer on additional charge and just to come out from the order of the Co-ordinate Bench of this Court dated 28.04.2025 the complaint has been made. From bare perusal of the aforesaid facts and circumstances clearly demonstrates that, the F.I.R. has been lodged with malafide intention. 5. Learned counsel for the applicant further submits that the applicant has also filed a petition challenging his premature retirement. According to the applicant he is supposed to be retired in the month of 31.10.2025, whereas he was superannuated on 31.10.2024 the said WPS No. 6904/2024 is still pending under consideration. Though the department has consider the said mistake and permitted to applicant to continue on the said post. One hand the F.I.R. has been lodged on the allegations that, the amount of APS has been released and on the contrary the complainant himself made the payment to the contractor to the tune of Rs. 3,13,35,993/- approximately on 29.03.2025. The complainant being the Executive Engineer ought to have withheld the said amount. The ingredients of Section 420 of Indian Penal Code are completely missing and in absence of wrongful gain or wrongful loss, the offence of cheating would not be made out. Accordingly, they prays for grant of anticipatory to the applicant. 7 6. On the other hand, learned State counsel opposes the prayer for grant of anticipatory bail and submits that the applicant/accused, while serving as a public servant in the position of Executive Engineer in the Water Resources Department of District Jashpur, appears to have prima facie committed criminal breach of trust by violating Clause/provision 2.8.1 of the contract clause in the construction work of the Susdega Diversion Scheme on the Mand River under the Pathalgaon development block. Despite 35% of the construction work remaining incomplete, the applicant/accused disbursed the amount to the contractor, including the performance security amount, in excess of the allotted tender amount. Considering the nature of the offence levelled against the applicant/accused, he is not entitled for grant of anticipatory bail. 7. I have heard learned counsel for the parties and perused the case diary. 8. Considering the facts & circumstances of the case, submissions of learned counsel for the parties and nature of dispute and material available in case diary, without further commenting anything on merits, this Court find it appropriate to grant anticipatory bail to the applicant. 9. Accordingly, the instant MCRCA is allowed and it is directed that in the event of arrest of the applicant- Vijay Jamnik, on executing a personal bond and one surety in the like sum to the satisfaction of the arresting Officer, he shall be released on anticipatory bail on the following conditions:- 8 (a) he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such fact to the Court. (b) he shall not act in any manner which will be prejudicial to fair and expeditious trial. (c) he shall appear before the trial Court on each and every date given to him by the said Court till disposal of the trial. (d) the Applicant and the surety shall submit a copy of their adhaar card along with a coloured postcard full size photo having printed the adhaar number on it, which shall be verified by the trial Court. (f) he shall not involved himself in any offence of similar nature in future. Sd/- (Ramesh Sinha) CHIEF JUSTICE Kunal