Judgment 458 revn128.20.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. CRIMINAL REVISION APPLICATION NO.128 OF 2020 Sopan s/o Ramrao Suryawanshi, aged about 69 years, occupation retired Government Servant, R/o Manas, plot NO.21, Shankar Nagar, Osmanpura, Aurangabad. ….. Applicant. :: V E R S U S :: 1. The State of Maharashtra, through Police Station Officer, Police Station Sadar, Nagpur. 2. Anti-Corruption Bureau, thorough its Police Inspector, having its office at Administrative Building, Civil Lines, Nagpur. ….. Non-applicants. Shri S.S.Dewani, Counsel for the Applicant. Shri Anant Ghongre, Additional Public Prosecutor for the State. CORAM : URMILA JOSHI-PHALKE, J. CLOSED ON : 08/07/2025 PRONOUNCED ON : 02/09/2025 JUDGMENT .....1/- 2025:BHC-NAG:8665 Judgment 458 revn128.20.odt 2 1. Heard learned counsel Shri S.S.Dewani for the applicant and learned Additional Public Prosecutor Shri Anant Ghongre for the State. 2. The present revision is filed by the applicant in connection with Crime No. 3309/2016 registered with the Sadar Police Station, Nagpur under Sections 109, 120-B, 420, 421, and 468 of the IPC and under Section 13(1)(c), 13(1)(d), and 13(2) read with 15 of the Prevention of Corruption Act (the P.C.Act) against the rejection of discharge application vide Exh.118 in ACB No.1/2008. 3. The applicant was serving as a Chief Engineer and retired from service on 30.6.2009. He was also Chairman of the Pre-Qualification Committee. The said evaluation committee was formed vide circular dated 5.12.2020. As per the said circular, proposal received from tenderers need to be scrutinized by the committee .....2/- Judgment 458 revn128.20.odt 3 and, thereafter, further action could be initiated. The FIR came to be filed on 30.3.2006 against the applicant along with other accused persons. In the wake of PIL Nos.83/2012 and PIL N0.92/2012, the Government of Maharashtra vide order No.ACB/0115/pra.kra/46/Pol-2 dated 18.2.2015 has ordered an open enquiry into the allegations pertaining to irregularities in the irrigation projects of Vidarbha Irrigation Development Corporation (the VIDC). Subsequently, the Director General, Anti Corruption Bureau, Maharashtra vide order No.EO/16// Nagpur/2015-3961 dated 26.3.2015 had directed the Superintendent of Police, ACB, Nagpur to conduct open enquiry into the allegations of corruption made in respect of Gosikhurd Irrigation Project under the VIDC, Nagpur. The Wadnere Committee was also formed to enquire into allotment of tenders as per the resolution dated 21.3.2010. As per the said report, the committee raised objections to certain provisions while updating the .....3/- Judgment 458 revn128.20.odt 4 estimate on the ground that there was no Government Rules and Regulations regarding inclusion of Excise Duty, VAT, Insurance Cost, Labour Amenities as per the guidelines of Central Water Commission and also mechanised working required as per advanced construction technology. Therefore, the committee recommended for issuing specific rules and regulations. During investigation, it was found that the applicant working as Chief Engineer, Gosikhurd National Irrigation Project of the VIDC acted contrary to the terms of the Maharashtra Public Works Manual and not taken necessary steps before allotment of tender work. During investigation it revealed that the applicant had favoured the successful contractors by way of illegally affecting the tender cost by wilfully adding the cost due to guidelines of the Central Water Commission relating to labour amenities to original tender cost. The applicant during the tendering process, had illegally revised the estimated .....4/- Judgment 458 revn128.20.odt 5 costs of the tender from Rs.1519.09 crores to Rs.53.88 crores and thereby caused illegal cost updation of Rs.2.79 crores. The applicant has approved the illegal updation of tender cost at 10.72% at his own level which requires to be approved by the Principal Secretary, Water Resources Department, Government of Maharashtra. The involvement of accused was found in following illegal acts: (i) While scrutinizing the pre-qualification applications, being Chairman of the Pre- Qualification Scrutiny Committee, it was his duty to ensure that pre-conditions are not changed. However, words “or” in the place of “and” was inserted and the applicant with a view to favour the successful contractors had accepted the same to being a Chairman of the Pre-Qualification Scrutiny Committee, he also gave relaxation upto 60% to the bidders when .....5/- Judgment 458 revn128.20.odt 6 he was only permitted to give relaxation to the extent of 20%; (ii) The applicant had favoured successful contractors by way of illegally updating the tender cost by wilfully adding the cost due to the guidelines of the Central Water Commission relating to labour amenities to original tender cost and revised the estimated cost of the tender from Rs.51.09 crores to Rs.53.88 crores and thereby has caused illegal cost updation of Rs.2.79 crores. During the investigation, the investigation officer has collected material showing involvement of the applicant and, therefore, after completion of the investigation, the chargesheet was filed against the applicant. .....6/- Judgment 458 revn128.20.odt 7 4. The applicant preferred an application for discharge vide Exh.118 on the ground that even accepting the contention no wrongful loss or gain due to updation of the tender cost was caused to the Government. The further ground raised that the allegation about allegedly illegally qualifying the illegible contractor is false and baseless. In view of Rule 2.11 of the Pre-Qualification Application, it provides criterion for relaxation and in view of that criteria, the relaxation was granted. Third ground raised is that the applicant is already exonerated from the departmental enquiry and, therefore, he requires to be discharged as more highest standard of proof is required to prove the charges. In the departmental enquiry, the said charges are not proved. 5. Learned counsel for the applicant submitted that as per the allegations the applicant has updated the tender cost. However, due to the said updation, no wrongful loss is caused to the Government as .....7/- Judgment 458 revn128.20.odt 8 subsequently, the said tender was cancelled. The loss can only be made when the expenditure is made in respect thereof. There was no expenditure/investigation in the said project. He submitted that in a similar fact and identical issue, in Criminal Application No.734/2020, wherein the applicant working as the Executive Engineer was discharged. Similarly, the allegations about illegally qualifying ill-eligible contractor is also not sustainable as the applicant was at liberty to grant such relaxation and the said relaxation was granted so as to get minimum three contractors in the qualification process. The applicant is also exonerated from charges and, therefore, the revision application deserves to be allowed. 6. In support of his contentions, he placed reliance on following decisions: 1. Keshav vs. State of Maharashtra, reported in 2022 SCC OnLine Bom 1314; .....8/- Judgment 458 revn128.20.odt 9 2. Criminal Revision Application No.92/2021 decided on 10.12.2021; 3. Criminal Revision Application No.129/2021 decided on 23.12.2021; 4. Sheila Sebastian vs. R.Jawaharaj and ors, reported in (2018)7 SCC 581; and 5. Ashoo Surendranath Tewari vs. Deputy Superintendent of Police, EOW, CBI and anr, reported in (2020)9 SCC 636. 7. Per contra, learned Additional Public Prosecutor for the State strongly opposed the application on the ground that the allegations raised against the applicant are very serious in nature. During the investigation, the investigation officer has collected the evidence showing involvement of the applicant in the alleged crime. The investigation was carried out in view of the directions in PIL Nos.83/2012 and PIL N0.92/2012 by order dated 12.12.2014. In view of that, the open enquiry was conducted about the irregularity of the work of the grant of tender process. The Home Department of the .....9/- Judgment 458 revn128.20.odt 10 Government of Maharashtra has also conducted the open enquiry at the hands of the three members committee. The said committee has concluded that the applicant is directly involved in conspiracy along with the co-accused. The investigation papers show that prior to receiving the technical sanction from the Chief Engineer, Gosikhurd Project, tender was forwarded and the tender notice was issued for the publication. The entries about purchase of pre-qualification form by the contractors are not recorded. The certificate annexed by the contractors are not duly verified. The forgery was committed while scrutinizing the pre-qualification forms and word “and” was replaced by word “or” only to favour some contractors. The applicant was member of the committee who has wrongly recommended for updation of tender cost thereafter increased the cost of tender. The successful tenderer company has not supplied registered document of partnership deed or joint venture. Despite .....10/- Judgment 458 revn128.20.odt 11 of that, tender forms are accepted illegally. The Deed of Guarantee submitted by the successful tenderer company was forged and despite the knowledge, it was accepted and no action was initiated. The successful tenderer company has also submitted demand draft of EMD of the competitive company which was not relevant. The demand drafts of EMD deposited by the contractor during tender process were not deposited in the account of the VIDC and its entries are not taken properly. The open enquiry committee found illegalities and also noted that the applicant has misused the position as a public servant. Thus, he submitted that considering the sufficient material, at this stage, the application for discharge deserves dismissed. 8. Before entering into the merits of the application, it is necessary to reiterate the settled position of law to consider the application for discharge. .....11/- Judgment 458 revn128.20.odt 12 9. It is a settled principle of law that at the stage of considering an application for discharge, the court must proceed on the assumption that the material which has been brought on record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary of the offence alleged. 10. The Hon’ ble Apex Court in the case of State of Gujarat vs. Dilipsinh Kishorsinh Rao, reported in MANU/ SC/1113 2023, adverting to the earlier propositions of law in its earlier decisions in the cases of State of Tamil Nadu vs. N.Suresh Rajan and ors, reported in (2014) 11 SCC 709 and The State of Maharashtra vs. Som Nath Thapa, reported in (1996) 4 SCC 659 and The State of MP Vs. Mohan Lal Soni, reported in (2000) 6 SCC 338, has held as under: .....12/- Judgment 458 revn128.20.odt 13 “10. It is settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary of the offence alleged. This Court in State of Tamil Nadu vs. N.Suresh Rajan and ors, (2014) 11 SCC 709 adverting to the earlier propositions of law laid down on this subject has held: "29. We have bestowed our consideration to the rival submissions and the submissions made by Mr. Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence .....13/- Judgment 458 revn128.20.odt 14 of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage." 11. Thus, at the stage of considering the application for discharge, the defence of the accused is not to be looked into. The expression "the record of the case" used in Section 227 of the Code of Criminal Procedure is to be understood as the documents and materials, if any, produced by the prosecution. The provisions of the Code of Criminal Procedure does not .....14/- Judgment 458 revn128.20.odt 15 give any right to the accused to produce any document at the stage of framing of the charge. The submission of the accused is to be confined to the material produced by the investigating agency. The primary consideration at the stage of framing of charge is the test of existence of a prima facie case, and at this stage, the probative value of materials on record need not be gone into. At the stage of entertaining the application for discharge under Section 227 of the Code of Criminal Procedure, the court cannot analyze or direct the evidence of the prosecution and defence or the points or possible cross examination of the defence. The case of the prosecution is to be accepted as it is. 12. In the case of Union of India vs. Prafulla Kumar Samal and anr, reported in (1973)3 SCC 4, the Hon’ble Apex Court considered the scope of Section 227 of the Code of Criminal Procedure. After adverting to the .....15/- Judgment 458 revn128.20.odt 16 various decisions, the Hon’ble Apex Court has enumerated the following principles: “(1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal .....16/- Judgment 458 revn128.20.odt 17 application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the .....17/- Judgment 458 revn128.20.odt 18 matter and weigh the evidence as if he was conducting a trial.” 13. In the case of Captain Manjit Singh Virdi (Retd.) vs. Hussain Mohammed Shattaf & Ors, reported in AIR 2023 SC 2480 the Hon’ ble Apex Court reiterated the principles governing the application for discharge and observed that law on issue as to what is to be considered at the time of discharge of an accused is well settled. Truthfulness, sufficiency and acceptability of the material produced can be done only at the stage of trial. At the stage of charge, the Court has to satisfy that a prima facie case is made out against the accused persons. Interference of the Court at that stage is required only if there is strong reasons to hold that in case the trial is allowed to proceed, the same would amount to abuse of process of the Court. .....18/- Judgment 458 revn128.20.odt 19 14. On hearing both the sides and perusing of the investigation papers, there is no dispute as to the fact that the present applicant was working as Chief Engineer in Gosikhurd Project under the VIDC. The FIR came to be lodged against the applicant vide Crime No.3309/2016. The said FIR was lodged as the enquiry was conducted in view of the directions given by this court in PIL Nos.83/2012 and PIL N0.92/2012. The Government of Maharashtra has ordered an open enquiry into the allegations pertaining to the irregularities in the irrigation projects of the VIDC. The Director General, ACB, has also directed the Superintendent of Police, ACB to conduct open enquiry into the allegations of corruption made in respect of Gosikhurd Irrigation Project under the VIDC. During investigation, it revealed that the applicant was the member of evaluation committee. The circular dated 5.12.2020 was issued. As per the said circular, proposal received from the tenderers .....19/- Judgment 458 revn128.20.odt 20 needs to be scrutinized by the committee and then only further action to be initiated. The tender for the work of construction of earth work, CC Lining and structures on tail branch of a main canal of Mokhabuldi Lift Irrigation Scheme was floated vide tender notice No.1 of 2009/2010. The tender notice was issued by the Executive Engineer, Ambhora Lift Irrigation Division, Bhiwapur. During the investigation, it was revealed that the applicant, who was under obligation to verify the tender forms, has not verified the same. Only to favour the successful contractor against the guidelines, the tender cost increased. While scrutinizing the pre- qualification applications, being the Chairman of Pre- Qualification Scrutiny Committee, it was his duty to ensure that pre-conditions are not changed. The successful contractor changed the words and replaced the word “and” by inserting “or”. He was empowered to relax 20%, but he has given the relaxation upto 60%. .....20/- Judgment 458 revn128.20.odt 21 The contractors are also favoured by illegally updating the tender cost by wilfully adding the cost due to guidelines of the Central Water Commission. During the investigation, the investigation officer has collected the evidence. This court in PIL Nos.83/2012 and PIL N0.92/2012 has given various directions for the speedy investigation and thereafter FIR was lodged after completion of the investigation. The discharge applications filed by co-accused Chandan Jibhkate and Rohidas Landge are already rejected and revisions against them are also dismissed by this court. 15. Thus, after having sifted and weighed the evidence on record collected during investigation, it reveals that (i) prior to receiving technical sanction from the Chief Engineer, Gosikhurd Project, tender was forwarded and tender notice was issued for the publication; (ii) proper entries in respect of purchase of pre-qualification form by the contractor are not recorded .....21/- Judgment 458 revn128.20.odt 22 nor the certificate is annexed by the contractor duly verified; (iii) during the scrutiny of pre-qualification form the word “and” was replaced by “or” is ignored and contractor was favoured by sanctioning the tender; (iv) the applicant who was member of the committee wrongly recommended for updation of tender cost and increased the tender cost; (v) in absence of relevant document i.e Partnership Deed / Joint Venture, the tender forms are illegally accepted; (vi) the deed of guarantee submitted by the successful bidder was forged and despite of the same no action was initiated; and (vii) the EMD deposited by the contractor was not deposited in the account of the VIDC. 16. The documents of pre-qualification mandates the submission of registration certificate of the Partnership Firm of the Joint Venture. The tenderer company has not submitted the same. Despite of the above facts, the tender form was accepted. While .....22/- Judgment 458 revn128.20.odt 23 evaluating the pre-qualification forms, the additional conditions were relaxed to the extent of 60% when the applicant was permitted to relax only 20%. The demand drafts given towards the EMD by the contractor are not deposited in the account of the VIDC. 17. Thus, as far as the nature of investigation is concerned, there is sufficient material to show involvement of the applicant. 18. The another ground raised in the application is that the applicant is exonerated from the departmental enquiry. 19. The charges against the applicant in the departmental enquiry were as follows: “nks”kkjksi Øekad 1% xkslh[kqnZ izdYikpk cka?kdkekph vankti=ds r;kj djrkauk fu;e ckg; rjrqnh dsY;keqGs cka/ kdkekpk fdaerhr ok< >kyh rlsp eqG vankti=dkr T;k .....23/- Judgment 458 revn128.20.odt 24 ckchapk varZHkko vkgs R;k O;frfjDr pqdhpk ckch fuohnsrhy dkekph vn;kor vankthr fdaer dk<rkauk varHkqZr dsY;k Eg.ktsp fuohnspk vn;kor fdaerh pqdhP;k i/nrhus dk<Y;k R;kl vkiY;k vf/kdkj d{ksr ulrkauk eatqjh fnyh- rlsp pqdhP;k i/nrhus dk<ysys fuohnk vf/kD;kps izLrko ofj”B Lrjkoj lknj dsys- R;keqGs fufonkaP;k fdaerhr ok< >kyh- ifj.kkeh izdYikP;k cka/kdkekP;k fdearhr ok< >kyh- lnjP;k ok<ysY;k fdaerhl rs tckcnkj vkgsr- cka/kdkekph vankt=ds r;kj djrkuk rh loZn~”Vhus leqfpr vkgsr ;kckcr eq[; vfHk;ark ;kuh [kk=h d#u ?ks.ks vko’;d gksrs- R;ke/;s dks.krsgh oSxq.; o pwdk ?kM.kkj ukghr ;kph loZLoh tckcnkjh eq[; vfHk;ark ;kaph gksrh- R;kpizek.ks vankti=dke/;s uewn dsysys nj gs njlwphoj vk/kkfjr vl.ks vko’;d gksrs- R;kpizek.ks vankti=dkph v|kor fdaer dk<rkuk eqG vankti=dkr ulysY;k rjrqnh x`ghr /k#u fdaer dk<.;kr vkyh- lnjP;k d`rh fu;eckg; vkgsr-+ Jh- lks-jk-lq;Zoa’kh rRdkyhu eq[; vfHk;ark g;kauh xkslh[kqnZ izdYikP;k cka/kdkekph vankti=ds r;kj djrkuk rlsp dkekph v|kor fdaer dk<rkauk e-lk-ck- fu;ekoyhrhy ifjPNsn 141¼3½ o ifjPNsn 142 e/khy m}¤¤r tckcnkjhps ikyu dsys ukgh- nks”kkjksi Øekad 2 %& ¼v½ egkjk”Vª lkoZtfud cka/kdke fu;e iqfLrdk ifjPNsn 313 uqlkj [kkyhy rjrwn vkgs- .....24/- Judgment 458 revn128.20.odt 25 ^tsOgk eatwj vankti=dkr iqohZps nj viwjs vlY;kps vk<Gwu vkY;k dkj.kkus fdaok iwoZorhZ ifjPNsnkr uewn dsysY;k dkj.kk O;frfjDr vU; dks.kR;kgh dkj.kkus 5 is{kk vf/kd ok< gks.;kph ‘kD;rk vlrs rsOgk lq/kkfjr vankti=d lknj dsysp ikfgts R;k lkscr ¼izek.k uewuk lk-ck-119 ;krhy½ rSyuhd fooj.ki= vkf.k R;k rkj[ksi;Zrph izxrh n’kZfo.kkjk o lq/kkj.ksps dkj.k lfoLrji.ks fo”kn dj.kkjk vgoky gh lknj dsyk ikfgts-* ¼c½ egkjk”Vª lkoZtfud cka/kdke fu;e iqfLrdk ifjPNsr 315 uqlkj [kkyhy rjrwn vkgs- ^ts dke gkrh ?ks.;kiwohZ nksu o”kZ vk/kh eaTkwj dj.;kr vkysys vlsy R;k dkekP;k ckcrhr dk;Zdkjh vfHk;aR;kus R;k dkekpk dkGthiwoZd vk<kok ?;kok vkf.k njke/;s fdaok vU; ckcrhr dkgh cny dj.;kph vko’;drk vkgs dh dk; gs igkos vkf.k R;k dkeklkBh fufonk ekxfo.;kiwohZ vankti=dkr lq/kkj.k dj.;kr vkyh vkgs vkf.k vko’;drk vlY;kl pkyw njlqphizek.ks R;kph iquZekaM.kh d#u o R;kr vko’;d okVrhy rs cny d#u rs l{ke izkf/kdk&;kdMwu uO;kus eatwj d#u ?ks.;kr vkys vkgs gs igkos-* egkjk”Vª lkoZtfud cka/kdke fu;ekoyhrhy ifjPNsn 313 o 315 P;k ,df=r rjrqnhpk fopkj dsY;kl fufonk Lohd`rhiwohZ tj eatwj vankti=dkis{kk 5 tkLr [kpZ gks.kkj vkgs gs y{kkr vkY;kl vankti=dkl lq/kkfjr eatwjh ns.ks vko’;d vkgs- ek= xkslh[kqnZ izdYikP;k fofo/k ?kVdakph dkes djrkauk] e-lk-ok- fu;ekoyhrhy ifjPNsn 313 o 315 P;k rjrwnhps ikyu >kysys ukgh- .....25/- Judgment 458 revn128.20.odt 26 nks”kkjksi Øekad 3%& egkjk”Vª LkkoZtfud cka/kdke lafgrse/khy ifj-194 uwlkj [kkyhy rjrqn vkgs- ^T;k izdj.kke/;s ‘kklukP;k fgrkP;k n`”Vhus fufonk fLodkjY;kiklwu ‘kklukP;k orhus da=kV fo”k;d dkxni=s loZ ckcrhr iw.kZ dsY;kuarj da=kV dsY;kP;k e/;arjhP;k dkGkr dkes dj.ks vko’;d vlrs v’kk izdj.kkae/;s rkRiqjrk mik; Eg.kwu izFke ,&2 ueqU;krhy djkji= dsys ikfgts o uarj eq[; djkji=kus rs jí~ Bjfoys ikfgts- eq[; fufonk fLodkj.ks gs dk;Zdkjh vfHk;aR;kP;k fLod`rhfo”k;d vf/kdkjrsckgsj vlrkukgh uequk ,&2 e/khy fufonk fLodkj.;kpk laiw.kZ vf/kdkj dk;Zdkjh vfHk;aR;kyk vlyk rjh lq/nk uequk ,&2 e/khy rkRiqjrh fufonk] uequk ,&2 e/khy dke lq# dj.;kiwohZP;k izLrkokyk T;k izkf/kdk&;kus ewG fufonk fLod`r dsyh gksrh- R;k izkf/kdk&;kus ekU;rk fnY;kuarj fLodkjyk ikfgts- v’kk izdj.kke/;s eq[; da=kVkps dk;kZUo;u vftckr foyac u ykork iw.kZ dsys ikfgts-* ojhy ifjPNsnkps voyksdu dsys vlrk fufonk fLodkjY;kiklqu ‘kklukP;k orhus da=kV fo”k;d dkxni=s iw.kZ dj.;kP;k dkyko/khps ¼from date of acceptance of tender by competent authority to execution of contract½ ‘kklukP;k fgrkP;k n`”Vhus vko’;d vlY;kl uequk ,&2 e/;s T;k izkf/kdkjkus ewG fufonk fLod`r dsyh vkgs] rks vkf/kdkjh dke dj.;kl eatwjh nsow ‘kdrks- ek= 23 izdj.kkr fufonk izfØ;k viw.kZ vlrkuk uequk ,&2 oj dke dj.;kl eatwjh fnysyh vkgs- lnj izdj.kkr ,dw.kp e- .....26/- Judgment 458 revn128.20.odt 27 lk-cka- fu;ekoyhrhy ifjPNsn 194 uqlkj ewG fufonk ¼c&1½ eatwj >kY;kojp rkRiqjR;k Lo#ikph dkes ,&2 djkjukE;koj dj.;kph eatqjh l{ke Lrjkaoj ns.;kr ;srs rFkkfi ;k izdj.kke/;s v’kk ijokuX;k c&1 fufonk eatqjh iwohZ fnysY;k vlwu ‘kklu fu;eckg; dk;Zokgh >kysyh vkgs- nks”kkjksi Øekad 4%& egkjk”Vª lkoZtfud cka/kdke lafgrse/khy ifjPNsn 217 uqlkj [kkyhy rjrwn vkgs- ^fufonk Lohdkj.;k laca/kh izdj.kkauk fufonk m?kM.;kar vkY;kuarj R;k dk;Zdkjh vfHk;aR;kP;k] v/kh{kd vfHk;aR;kP;k vkf.k eq[; vfHk;aR;kP;k ikrGhoj vafrer% gkrkG.;kr vkY;kl vuqØes 30 fnol] 60 fnol o 90 fnol ;kgwu vf/kd dkyko/kh ykxrk dkek u;s- T;k izdj.kkr gk dkyko/kh ;k uk R;k dkj.keqGs vf/kd >kyk vlsy rj R;keqGs vlk foyac vifjgk;Z Bjyk rh fo’ks”k ifjfLFkrh uthdP;k ofj”B vf/kdk&;kyk dGfo.;kr vkyh ikghts-* egkjk”Vª lkoZtfud cka/kdke fu;ekoyhrhy ifjPNsn 217 P;k rjrqnhuqlkj fufonk m?kMY;kiklwu loZlk/kkj.k i.ks 90 fnolkr eatwj djko;kl ikghts ek= 120 fufonkauk 90 fnolkps oj eatwjhlkBh dkyko/kh ykxysyk vkgs- v’kkizdkjs egkjk”Vª lkoZtfud cka/kdke fu;ekoyhrhy ifjPNsn 217 ps eq[; vfHk;ark Lrjkoj ikyu >kysys ukgh- nks”kkjksi Øekad 5 %& ‘kklu ifji=d Ø-lafd.kZ 1098@¼96@98½@eks-iz¼iz½fn-4-9-2000 uqlkj l{ke Lrjkoj ogu varjs rikl.;kph tckcnkjh Bjowu ns.;kr .....27/- Judgment 458 revn128.20.odt 28 vkysyh vkgs- dks.kR;kgh dkj.kklkBh@ ckchlkBh ogu varj 2 fd-eh- is{kk tkLr vlY;kl R;kl eq[; vfHk;ark Lrjkoj iwoZ eatwjh ?ksrysyh vl.ks vko’;d vkgs- xkslh[kqnZ izdYikph vankti=ds eq[; vfHk;ark Lrjkoj eatwj >kyh vlyh rjh ogu varjs R;kps Lrjkoj rikl.;kr vkysyh ukghr o ogu varj rD;koj eq[; vfHk;ark ;kauh dksBsgh eatwjhckcargh Lok{kjh dsysyh ukgh- nks”kkjksi Øekad 6%& fufonke/;s rjrwn ulrkuk 12 da=kVnkjkauk vkxkow jDdrk ns.;klkBh f’kQkjl dj.;kr vkyh- da=kVnkjkauk vkxkm jdek ns.;kfo”k;h egkjk”Vª lkoZtfud cka/kdke ys[kk laghrsizek.ks ¼ifjPNsn 10-2-21½ eukbZ vkgs- R;keqGs ‘kklukP;k miyC/k fu/khpk fofu;ksc dj.;ke/;s vfu;ferrk >kyh- ojhy nks”kkjksi Ø-1 rs 6 ckckr egjk”Vª lkoZtfud cka/kdke fu;e iqfLrdk 6 oh vko`Rrh 1984 ifjPNsn 141 ¼3½] ifjPNsn 142] ifjPNsn 313 o 315] ifjPNsn194] ifjPNsn217] egkjk”Vª lkoZtfud cka/kdke ys[kk lafgrk ifjPNsn 10-2-21] [kklu ifji=d fn-4-9-2000] o egkjk”Vª ukxjh lsok ¼orZ.kwd½ fu;e 1969 e/khy dye 3¼1½ o ¼2½ ps mYya?ku dsys vkgs- ;kdfjrk rs la;qDrfjR;k tckcnkj vkgsr-” 20. The enquiry report is also on record. After considering the allegations in the FIR and the .....28/- Judgment 458 revn128.20.odt 29 departmental enquiry are not identical. The allegation levelled by the prosecution against the applicant was that he has not scrutinized the pre-qualification forms and ignored the illegalities committed. The allegation is also of forgery in the tender form as word “and” was replaced by “or”. The allegations against the applicant, that despite the provisions which mandate the submission of registration certificate of partnership firm on the joint venture, in absence of the same to favour the bidder company, the tenders forms are accepted. The allegation further is that though the applicant was having an authority to relax the conditions upto 20% conditions are relaxed upto 60%. The demand drafts of the EMD are not deposited in the account of the VIDC. Thus, charges levelled in the present crime and charges in the departmental enquiry are not identical one. 21. Learned counsel for the applicant placed reliance on the decision in the case of Ashoo .....29/- Judgment 458 revn128.20.odt 30 Surendranath Tewari vs. Deputy Superintendent of Police, EOW, CBI and anr supa which also shows that after referring the various judgments, the Hon’ble Apex Court has culled out the ratio of those decisions by referring its earlier judgment and observations in para No.38 in Radheshyam Kejriwal vs. State of West Bengal, reported in (2011)3 SCC 581, which are reproduced as follows: “38. The ratio which can be culled out from these decisions can broadly be stated as follows :- (i) Adjudication proceeding and criminal prosecution can be launched simultaneously; (ii)Decision in adjudication proceeding is not necessary before initiating criminal prosecution; (iii)Adjudication proceeding and criminal proceeding are independent in nature to each other; .....30/- Judgment 458 revn128.20.odt 31 (iv)The finding against the person facing prosecution in the adjudication proceeding is not binding on the proceeding for criminal prosecution; (v) Adjudication proceeding by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure; (vi) The finding in the adjudication proceeding in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceeding is on technical ground and not on merit, prosecution may continue; and (vii) In case of exoneration, however, on merits where allegation is found to be not sustainable at all and person held innocent, criminal prosecution on the same set of facts and circumstances can not be allowed to continue .....31/- Judgment 458 revn128.20.odt 32 underlying principle being the higher standard of proof in criminal cases”. The Hon’ ble Apex Court finally concluded that in our opinion, therefore, the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court. 22. In the light of the above observations, if the charges in the adjudication proceeding is considered, it is to the extent that the applicant while sanctioning the tender, the rates are quoted. The second charge was that he was allowed to increase the tender at the most 5%, .....32/- Judgment 458 revn128.20.odt 33 but it was increased more than 5%. The tender process carried out without receiving technical sanction from the Chief Engineer, is the contravention of para No.217 of the Public Works Manual. The charge was further that without carrying out the measurement, the further proceeding was carried out and the measurement was not taken and the advance was granted to the contractors without there being any provisions. On the contrary, the prosecution is launched on an allegation that prior to receiving technical sanction from the Chief Engineer, Gosikhurd Project, tender was forwarded and tender notice was issued for the publication. The applicant has not taken the proper entries about purchase of pre- qualification form by the contractor. During the scrutiny of the pre-qualification form, the word “and” was removed and word “or” is inserted. The applicant being member of the committee wrongly recommended for updation of tender cost and increased the cost of tender. .....33/- Judgment 458 revn128.20.odt 34 The applicant has accepted the tender without verifying the documents required to be filed as to the partnership deed and joint venture. The Deed of Guarantee submitted by the tenderer company was forged and despite the knowledge it was taken and no action was initiated. The demand drafts of EMD deposited by the contractor were not deposited in the account of the VIDC. 23. Thus, as per the allegations, the applicant is not only contravened the Public Works Manual, but to favour the contractor accepted the tender forms without required documents. The tender form was accepted though there was insertion of word “or” which was not in the original form. To give an advantage to the contractors, tender cost was increased. 24. Thus, the nature of allegations shows that there was criminal misconduct by the applicant serving as a public servant and while holding office as a public .....34/- Judgment 458 revn128.20.odt 35 servant, misused his position to provide pecuniary advantage to the contractor which covered under Section 13(1)(d) of the P.C.Act. 25. The aspect of exoneration from the departmental enquiry was also considered by the Hon’ ble Apex Court in the case of State of N.C.T. of Delhi vs. Ajay Kumar Tyagi, (2012) 9 SCC 685 wherein in paragraph No.22 observed that the effect of exoneration in the departmental proceeding on criminal prosecution on identical charge and referred the judgment of P.S.Rajya vs. State of Bihar, reported in AIR OnLine 1996 SC 54 and held that the decision does not lay down any proposition that on exoneration of an employee in the departmental proceedings, the criminal prosecution on the identical charge has to be quashed. It is further held that, we are, therefore, of the opinion that the exoneration in the departmental .....35/- Judgment 458 revn128.20.odt 36 proceeding ipso facto would not result into the quashing of the criminal prosecution. We hasten to add, however, that if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed. But that principle will not apply in the case of the departmental proceeding as the criminal trial and the departmental proceeding are held by two different entities. 26. Thus, the first and foremost consideration is whether the charges are identical in both the proceedings. As observed earlier, the charges are not identical in the both the proceedings and, therefore, in view of the decisions of the Hon’ ble Apex Court in the cases of Ashoo Surendranath Tewari vs. Deputy Superintendent of Police supra and State of N.C.T. of Delhi vs. Ajay Kumar Tyagi supra, mere exoneration .....36/- Judgment 458 revn128.20.odt 37 from the departmental enquiry is not sufficient to exonerate the applicant from the charges. Criminal Revisions Application Nos.44/2020 and 92/2020 of the co-accused are already dismissed by this court. The material on record also shows that the applicant, who was discharging his duty as a public servant, was connected with the tendering process. Learned trial court has referred the evidence available and material placed on record and arrived at conclusion that even a strong suspicion is sufficient to frame the charge. There is a reference made to the alleged forgery and, therefore, every aspect requires to be considered during trial. There is nothing on record to show that the allegations are frivolous and baseless. The learned trial court has considered the settled position of law and passed the order. 27. After weighing and sifting the evidence, there is sufficient material on record to show involvement of .....37/- Judgment 458 revn128.20.odt 38 the applicant and, therefore, no interference is called for. In view of that, the present revision being devoid of merits is liable to be dismissed and the same is dismissed. (URMILA JOSHI-PHALKE, J.) !! BrWankhede !! .....38/- Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge Date: 03/09/2025 17:24:32