Surendra Kumar Sharma vs The State Of U.P. & Another
2017 Latest Caselaw 2996 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 9                                                                                    [A. F. R.]
 

 
Case :- U/S 482/378/407 No. - 2829 of 2013
 

 
Applicant :- Surendra Kumar Sharma
 
Opposite Party :- The State Of U.P. & Another
 
Counsel for Applicant :- Vaibhav Kalia
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Ramesh Sinha,J.

1. Heard Sri Mridul Rakesh, learned Senior Advocate, assisted by Sri Vaibhav Kalia, learned counsel for the applicant and Sri G.D. Bhatt, learned A.G.A. for the State.

2. This petition has been filed by the applicant praying for quashing the chargesheet No.3 of 2012 dated 21.6.2012 submitted against the applicant contained in Annexure No.1 and the impugned order dated 13.8.2012 passed by the learned Special Judge (P.C. Act), Lucknow and the proceedings arising out of the same in the Case No.11 of 2012 (Crime No.446 of 2008), under Section 420, 409, 120-B IPC and Section 7/13 (1) (d) read with Section 13 (2) of Prevention of Corruption Act, Police Station Gomti Nagar, district Lucknow.

3. The brief facts of the case are that an inquiry was conducted by Sri Rajiv Mehrotra, Additional Superintendent of Police in pursuance of the order dated 26.4.2007 of this Court passed in Writ Petition No.2477 (S/S) of 2007 filed by one Syed Ali Amir in relation to the allegations levelled in the said writ petition against the officers of Uttar Pradesh State Bridge Corporation Limited with regard to allotment of tenders. The said inquiry report was produced before this Court and after considering the same on 12.5.2008, this Court issued directions for registration of First Information Report against the erring officials found guilty in the said inquiry report. Thus, the present First Information Report was lodged against the applicant along with Vinod Pundir, Deputy Project Manager/Incharge U.P. State Bridge Corporation Limited by the opposite party No.2 Indrajeet Singh, Inspector, Anti-Corruption Wing, U.P., Faizabad, which was registered as Case Crime No.446/2008 under Section 420, 409, 120B IPC and Section 7/13 (1) (d) read with 13 (2) of Prevention of Corruption Act, Police Station Gomti Nagar, district Lucknow. The complainant Syed Ali Amir was also an officer in U.P. State Bridge Corporation Limited and he levelled allegations against the co-accused Vinod Pundir who was the then Deputy Project Manager/Incharge, U.P. State Bridge Corporation Limited for the construction of three bridges in district Hardoi, who had got a tender notice for the supply of 10 mm and 20 mm grit stones (Gitti), and Maurang in a daily newspaper ''Swatantra Bharat'. Thereafter, he got the tenders allotted to his favourite contractors on higher rates than the scheduled rates causing monetary loss to the department. It has been further alleged that during the course of inquiry, in none of the daily newspaper ''Swatantra Bharat' dated 23.9.2006, the notice regarding invitation of tenders for the said supply was published and it was later on borne out that it was the co-accused Vinod Pundir who got printed few fake notices of the said news paper and on the basis of those fake copies of news papers he had got the tenders allotted to his favourite contractors and later on, Vinod Pundir on 3.10.2006 was successful in getting the said tenders/supply approved from the applicant who was the General Manager of the U.P. State Bridge Corporation Limited. The investigation of the case was carried on and the chargesheet was submitted against applicant only on 21.6.2012 though, during the course of investigation, there was evidence against the co-accused Vinod Pundir also but as he died during the course of pendency of investigation, hence no chargesheet was submitted against him and the Court took cognizance of offence on 13.8.2012 against the applicant only on the basis of the impugned chargesheet. Hence the present petition for quashing of the impugned chargesheet as well as the order dated 13.8.2012 taking cognizance of offence against the applicant has been filed.

4. It has been argued by the learned counsel for the applicant that the applicant is highly qualified Civil Engineer from IIT, Roorkie and has good reputation and great integrity as well as social respect in the society and was sent to U.P. State Bridge Corporation Limited on deputation on 13.2.1992 and since then, he has been associated by the Corporation for construction of more than 100 new bridges and it was because of his good reputation and integrity, that he was promoted as Chief Engineer and was also assigned the post of Joint Managing Director in the U.P. State Bridge Corporation. He, during his long tenure of service in the Corporation, has completed several upheld important tasks of constructing bridges in India as well as abroad and in the year 1992, the State Government had posted the applicant at the Republic of Yemen for construction of the bridge work where the conditions were extremely unfavourable as the civil war was going on in Yemen hence despite the same, the applicant managed to complete the construction in time as well as with profit. He has completed 35 years of his service in the said department and retired from service on 30.11.2007 from the post of Chief Engineer, U.P. Public Works Department. Learned counsel for the applicant further submits that the applicant has never faced any charge, inquiry or punishment during his long tenure of service and after his retirement, he has been awarded all his post retiral benefits by the department. He demonstrated about the procedure with regard to the origin and working of U.P. State Bridge Corporation as has been mentioned in para-11 of the petition.

5. It was submitted that the U.P. State Bridge Corporation Limited is an undertaking of the U.P. Government under the Companies Act and established in the year 1973 for the purpose of constructing bridges. It was established with the aims to abolish the contract system, the Corporation constructs bridges by departmental construction system by using its own men and labour and as far as the supplies of raw materials is concerned i.e., sand, grits etc., the same was being purchased from the suppliers. He submitted that as per the procedure, the Project Manager/Deputy Project Manager invites tenders for supply of grits, sand etc., after getting notice for tenders published in the daily news papers. After the tenders are received, the Project Incharge, Manager is supposed to complete all necessary formalities with the publication of tender notices in news papers and scrutinizing at the unit office the received tenders and also the recommendations of the Junior, Assistant Engineers etc., presents the complete papers to the General Manager for the approval.

6. He submitted that the allegations which have been levelled in the FIR are not true as the applicant in discharge of his duties as per the Government order dated 1.8.1997, had only approved the rates on the supply of 10 mm to 20 mm grit and sand on the basis of the proposal having only the rates of materials, which were as per the procedure approved, completed and scrutinized and put to him by Vinod Pundir, the Deputy Project Manager/Incharge. He further submitted that as per the said Government order, only the applicant was authorized to approve rates of the essentials in case the tenders exceeded the S.O.R. (Schedule of Rates). The applicant before giving his approved on the said documents had taken into account the physical condition of the site, as the site of the construction of bridge was situated at a very remote area and many suppliers were not ready for making the said supply rates.

7. Learned counsel for the applicant further submitted that the complainant Syed Ali Amir few days after the said approval had informed the applicant regarding some foul play by the co-accused Vinod Pundir, Deputy Project Manager in obtaining the approval from the applicant on 30.10.2006. The applicant on the said information, immediately took steps to check the said foul act of the co-accused Vinod Pundir and on 23.11.2006 issued letter/circular to all Project Incharge, Additional Project Incharge directing for cancellation of all the approvals made by the applicant with effect from 30.11.2006 and had further directed the Deputy Project Manager co-accused Vinod Pundir to verify it again and seek fresh approvals for all the tenders for all the running construction sites. And again on 28.11.2006 he issued a letter/reminder to the Deputy Project Manager Vinod Pundir co-accused to submit his new rates by 1.12.2006. The applicant further made sure that fresh notices for the supply of materials was published in the daily news paper ''Swatantra Bharat' on 8.12.2006 and thereafter fresh tenders, rates were invited, scrutinized and on 20.12.2006 the quotations of the lowest bidder was approved by the applicant and in the interest of the U.P. State Bridge Corporation Limited and the lowest bidder rates quoted this time i.e. second time, was almost the same similar to the rates finalized in the earlier bidding. Learned counsel for the applicant further submitted that the applicant was thereafter transferred in the month of January, 2007 from the said post to the post of Joint Managing Director, Bridge Corporation, Hapur, district Ghaziabad.

8. It has been further argued by the learned counsel for the applicant that during the course of investigation there is no iota of evidence against the applicant collected which may show that the applicant had caused a wrongful loss to the department. He further submitted that as per the statement of witness of the chargesheet which was recorded under Section 161 CrPC by the Investigating Officer, the entire allegations have been levelled against the co-accused Vinod Pundir, Project Manager who was the instrumental in getting the tenders in favour of his own men by obtaining approval from the applicant and when the applicant came to know about the illegal act of the co-accused, he immediately cancelled the tenders and cancelled the approval of the tenders issued by him and invited fresh tenders published in the newspaper ''Swatantra Bharat'.

9. He submits that the applicant who has retired from service, for no fault on his part is being prosecuted for the offence which he has not committed. Hence the impugned chargesheet and the order taking cognizance be quashed.

10. Learned A.G.A. on the other hand, has though opposed the quashing of the chargesheet and the order taking cognizance but could not dispute that the main allegation has been levelled against the co-accused Vinod Pundir who was the Deputy Project Manager and against him evidence was found during the course of investigation and as he has died during the course of pendency of investigation, no chargesheet could be submitted against him and was submitted against the applicant only without there being any legal evidence.

11. Considering the submissions of the learned counsel for the parties and having perused the record, it is an admitted fact that the applicant was the General Manager of the Corporation at the relevant point of time and the co-accused Vinod Pundir was the Deputy Project manager who was responsible for inviting the tenders by publishing in the newspaper for the supply of grit, sand etc., who also managed to get approval from the applicant about the said tenders and when a complaint was made to the applicant, he immediately cancelled the approvals of the tenders which were invited by the Deputy Project Manager Vinod Pundir and issued directions for inviting fresh tenders for supply of grit, sand etc., and further the allegations which have been levelled against him for embezzlement of the amount which was excessive to the tune of Rs.2.45 lakhs causing wrongful loss to the department is not borne out from the evidence which has been collected during the course of investigation. Moreover, the statement recorded under Section 161 CrPC shows that it was the co-accused Vinod Pundir who was the instrumental in getting the tenders invited and allotted to his own men which, when came to knowledge of the applicant, has been cancelled and got the fresh tenders invited in accordance with the provisions of the Corporation. The impugned chargesheet does not disclose any offence against the applicant. Hence the order taking cognizance by the Court concerned is not sustainable in the eyes of law hence the impugned chargesheet as well as the order taking cognizance are hereby quashed.

12. The petition stands allowed.

Order Date :- 4.8.2017

RajneeshDR-PS)