Pradeep Garg vs C.B.I. New Delhi
2017 Latest Caselaw 7237 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 42
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2327 of 2017
 

 
Applicant :- Pradeep Garg
 
Opposite Party :- C.B.I. New Delhi
 
Counsel for Applicant :- Anoop Trivedi,Akshay Mohiley,Gopal Swarup Chaturvedi
 
Counsel for Opposite Party :- Amit Misra
 

 
Hon'ble Ramesh Sinha,J.

1. Supplementary affidavit filed by learned counsel for the applicant and supplementary counter affidavit filed by learned counsel for the C.B.I. today are taken on record.

2. At the very outset it is made clear that the reasons for hearing Sri Gopal S. Chaturvedi, learned Senior Advocate appearing on behalf of the applicant has already been incorporated in the order dated 10.11.2017 passed by this Court in the present case, hence for the sake of brevity, the same is not being repeated in the present order.

3. The brief facts of the case are that an F.I.R. was registered against one Yadav Singh and others vide case crime no. 371 of 2012 under sections 409, 420, 466, 467, 469, 471 and 120-B I.P.C. and 13 (1) (d) read with 13 (2) of the P.C. Act on 13.1.2012 at police station Sector 39 Noida, Gautam Budh Nagar U.P. for the alleged corrupt practices while executing engineering work between 14.12.2011 and 23.12.2011 in which agreement bonds of Rs. 954.38 crores were executed by Engineering Department of Noida. The investigation of the case was initially carried out by the local police but thereafter the same was entrusted on 3.11.2012 to C.B.C.I.D. which submitted final report on 13.1.2014 and on 27.11.2014, the final report was accepted by the Special Judge S.C./S.T. Act, Gautam Budh Nagar. On 16.7.2015, the Lucknow Bench of this Court has passed an order in Misc. Bench No. 12396 of 2014 (Dr. Nutan Thakur vs. State of U.P. & others) directing the C.B.I. to conduct investigate into all allegations of corruption and amassing of unaccounted money against ninth respondent ( in the said petition) Yadav Singh, the then Chief Engineer, Noida, Greater Noida and Yamuna Express Authorities and in regard to all transactions, persons and entities connected thereto.

4. In compliance of the aforesaid order of this Court, a regular case is registered against Yadav Singh, the then Chief Engineer, Noida, Greater Noida and Yamuna Express Authorities and other unknown persons for the offence under sections 409, 420, 466, 467, 469, 471, 120-B I.P.C. and 13 (2) read with 13 (1) (d) P.C. Act and the investigation of the case is entrusted to Sri Rajesh Kumar, Dy. S.P., C.B.I., S.T.F., Delhi. After investigation, the C.B.I. has submitted charge-sheet against the applicant and 13 other co-accused persons including Yadav Singh and the learned trial court on the basis of the charge-sheet submitted against the applicant and other co-accused persons have summoned the accused persons for trial which is pending against the applicant and others. The applicant has challenged the charge-sheet of the present case before this Court in Crl. Misc. 482 Cr.P.C. Application No. 24126 of 2016 which was finally disposed of by this Court vide order dated 1.9.2016 directing the applicant to raise all the points before the trial court by moving appropriate discharge application at appropriate stage and further the applicant was directed to surrender before the court below within three weeks from the date of said order. The applicant submitted the said order before the court below on 14.9.2016 and surrendered before the court on 13.10.2016 from where he was sent to jail and thereafter he moved a bail application in the present case which was rejected by the Special Judge S.C./S.T. Act, C.B.I., Ghaziabad on 2.12.2016. The allegations made against the applicant in the charge-sheet as has been mentioned in para-28 of the present petition are quoted hereinbelow:-

"Para-28.

(i) The tender process was irregular and the norms prescribed by CPWD and adopted by Noida, were flouted.

(ii) The contractors have started works prior to awarding of work order to them. The allegation specifically against M/s NKG Insfrstructure Ltd. (Company of the applicant) was that it had purchased electrical 11 KV/13KV Cables during the period 8.3.2011 to 25.6.2011 and Ms. Steel Pipes during the period 27.4.2011 to 4.11.2011 from the Company known as N. Chemco. Futhermore, the third party consultant namely, M/s RITES had allegedly started supervising the works of Noida for quality control from September, 2011.

(iii) Allegedly the quotes of the bidders were altered to cause undue gain to the pre decided contractors.

(iv) The applicant transferred a sum of Rs. 50 lacs to Smt. Kusumlata to her firm M/s Kusum Garments through M/s Country Wide Electronics Pvt. Ltd. from a subsidiary Company of the applicant, namely, Gannayak Finnace and Leasing Pvt. Ltd. and the said amount was withdrawn by Smt. Kusumlata on different occasions.

(v) The loss of Rs. 4,52,44,095/- was alleged to the government exchequer in lieu of payment made to M/s NKG Infrastructure Ltd."

5. Heard Sri Gopal S. Chaturvedi, learned Senior Advocate assisted by Sri Anoop Trivedi, learned counsel for the applicant, Sri Amit Misra, learned counsel for the C.B.I. and perused the record.

6. It has been contended by the learned counsel for the applicant that there was no fault or irregularity in the tender process which was in accordance with parameter of the settling work awarded. The applicant is the Managing Director of M/s NKG Infrastructure Ltd which was entrusted with the work of laying underground electrical lines from Electrical Sub Station ESS Sector-19 to Sector-12, 22 and 56 T points of MP-1 Road, Noida. The alleged rates viz. the preliminary/rough estimates were finalized in order to favour the pre-decided contractors is wholly absurd and baseless. The preliminary/rough estimates were revised on various occasions and even in the Bill of Quantity (BOQ) the estimated rates are quite competitive and asking to the prevalent rates in the said sector of the industry. It is submitted that the applicant's Company had filed their bid on the basis of the estimation at the time of filing. It is to be noted that for the same work as that undertaken by the applicant's Company and so far as the allegation of haste in approving the rates is concerned it is stated that the aforesaid work was admittedly initiated after the visit of the then Chief Minister of U.P. on 20.2.2011. The Notice Inviting Tender (NIT) was duly published in different newspapers of wide circulation on 22.3.2011. There was no illegality in getting the approval obtained on 14.3.2011 itself. The tenders were invited only from the approved and registered contractors either with the State Public Works Department or with the Central Public Works Department or with any other Government Public Undertaking etc. The C.B.I. has erroneously alleged that the said criteria restricted the field of eligibility and thus there was an irregularity. The said allegation of the C.B.I. is wholly misconceived and baseless. The allegation regarding the ante-dating of the Measurement Books has no basis as the said Measurement Books correspond with the running bills. The allegation regarding formation of cartel is pertaining to the other accused contractors involved in the same work and not the applicant. This fact also indicates that the applicant was not a part of the alleged conspiracy, in fact, if anything, it indicates that the effect of the alleged conspiracy was not to his advantage as NKG Infrastructure Pvt. Ltd. had also applied for the other 2 bids.

7. He submits that the allegation that Rs. 1.5 crores was paid to the Companies for filling of potholes created due to the alleged work done in April-July do not pertain to the work carried out by the applicant's Company and as such does not proved that the applicant's Company began work earlier than the execution of the contact bond. Till December, 2011, the applicant possessed membership of National Stock Exchange (NSE) which he surrendered only on 13.12.2011. As the applicant wanted to continue investing in shares, he appointed Sh. Mohan Rathi as his portfolio manager. The applicant in pursuant to the said decision to invest in quoted shares through Mohan Rathi that a sum of Rs. one crore was transferred through Cheque No. 572604 dated 21.3.2012 by M/s Gannayak Finance and Leasing Pvt. Ltd. (a group concern of the applicant's Company) to the account of Country Wide Holding Pvt. Ltd. a Company controlled by Mohan Rathi. The fact that the amount of Rs. one crore was transferred only for investment in quoted shares is evident from a letter dated 18.3.2012 of Mohan Rahi. The amount of Rs. one crore was invested in shares by Mohan Rathi is clear upon perusal of balance sheet of the Country Wide Pvt. Ltd as on 31.3.2012. It appears that the Countrywide Holdings Pvt. Ltd. transferred a sum of Rs. 50 lakhs to M/s Kusum Garments Pvt. of which Smt. Kusum Lata, who is the wife of main accused Yadav Singh is the owner which the C.B.I. alleges to be bribe amount. The balance sheet of M/s Kusum Garments Pvt. Ltd. of 2012-13 indicates that the said amount is an interest-bearing loan on which even interest was paid. The allegation that the amount given to the said Company was given to be transferred to M/s Kusum Garments Pvt. Ltd. or to Yadav Singh in any manner is completely baseless.

8. Learned counsel for the applicant further urged that the Noida Authority passed an office order whereby it withheld a security of Rs. 16.01 crores and an amount of Rs. 8.25 crores due to the applicant's Company NKG Insfrstructure Ltd. in lieu of the alleged loss amount of the present case. Without prejudice to the right of the applicant to contest the present case on merits. The applicant is even willing to deposit the alleged loss amount of Rs. 4.52 crores as a condition to bail, if this Court so deems fit. He submits that the applicant is reputed businessman and his Company M/s NKG Infrastructure Ltd. is involved in taking up Government contracts in various states including U.P., Rajasthan, Punjab, Maharashtra, Jammu and Kashmir, Delhi, Haryana, M.P., Gujarat, Himachal Pradesh, Meghalaya and Uttrakhand. The quantum of work in Noida Authority is barely 5 percent of the total turn over of NKG Infrastructure Ltd. with 1600 employees working with it. He argued that even if the loss which has been alleged to have been incurred State Exchequer, the applicant has a balance amount with the Noida Authority which can be deducted from the same. It is further argued that the applicant is suffering from various and he is suffering from heart ailment and ailment of liver cirrhosis for which he has also moved a separate short term bail application on the ground of illness. He is in jail for the last one year, hence he may be released on bail. It is stated that two co-accused, namely, Kusum Lata and Pankaj are still absconding, hence the trial of the applicant could not be concluded in near future and the applicant has already moved an application before the trial court concerned for separating his trial but the trial court concerned has not proceeded to decide the said application.

9. Learned counsel for C.B.I. vehemently opposed the prayer for bail and submitted that the applicant who represents his Company M/s. NKG Infrastructure Pvt. Ltd. and perform electrical work for Noida Authority. The applicant entered into a criminal conspiracy with the then Project Engineer, Noida Authority and other accused persons including Yadav Singh, the then Chief Engineer of the CME (Jal) and in pursuance of the said criminal conspiracy received undue favour from the accused public servants of NOIDA Authority and his Company was awarded tender related to conversion of 11KV and 33 KV overhead cables into underground, prior to the award of contract. The investigation has further established that the tender of the said work was called in the month of March, 2011 and opened in the month of November, 2011 but the work had already been started from the month of April, 2011 onward which clearly established pre-decided selection of the accused contractor and thus wrongful loss to the government exchequer to the amount of Rs. 4.52 crores (approx.) has been caused by the applicant in this way. Moreover it is established during the investigation that applicant was the ultimate beneficiary of M/s NKG and he transferred bribe amount of Rs. 50 lacs in the bank account of Smt. Kusum Lata wife of Yadav Singh through Mohan Rathi Chartered Accountant of Yadav Singh. The accused applicant arranged EMD (FDRs) for other participating contractors which proves cartel formation and pre decided selection of the Company of accused applicant. During investigation it was found that the contractors had started work prior to the opening of the price bid. In pursuance to the conspiracy, M/s NKG Infrastructure Pvt. Ltd. purchased 11KV and 33 KV cables during the period 8.3.2011 to 25.6.2011 and M/s Steel Pipes during the period 27.4.2011 to 4.11.2011 from Chemco and were delivered at the actual place of work. It has been found during investigation that after opening of the technical bid and after enabling the accused private contractors to become eligible by inserting favorable clauses (f) eligibility criteria their respective price bids were arbitrary opened and their quoted rates submitted in March 2011 based on the estimate approved on 14.3.2011 were replaced with the finally approved estimate/BoQ which approved in November, 2011 and the quotes of the accused bidders were altered to make them eligible by way of forgery and cheating to cause undue gain to the pre-decided contractors. The entries related to execution of works in the Measurement Books (MBs) were falsely created/antedated to show that the work had began only after signing of the contractor bond to cover up the already completed work and to enable the private contractors to raise their bills and get payments from the Authority. The investigation further reveals that MBs are allotted to the each JE of the concerned Divisions and it has to be maintained by them personally. In the instant case, two MBs were issued to Rajeev Kumar and R.D. Sharma. Rajeev Kumar was looking after the work related to M/s JSP and Tirupati Construction Co. at Udyog Marg and R.D. Sharma was the concerned JE for the work allotted to M/s NKG Infrastructure. The entried in the MB related to Rajeev Kumar was filled in by himself whereas the entries in the MB of R.D. Sharma was filled in by co-accused Om Pal Singh. In pursuance of the criminal conspiracy, the contractors were given huge benefit by keeping the difference in the estimated price and the price on which the material was actually available in the market and also purchased by the contractors. The detailed analysis of the purchased bills, laying costs etc. with the estimated prices has revealed that a loss of Rs. 4,52,44,095/- against actual payment of Rs. 8,15,73,158/- to M/s NKG Infrastructure Pvt. Ltd., i.e., applicant's Company. These losses are in addition to the payment of Rs. 1.05 Crores made to three different contractors for doing the potholes at Udyog Marg. He vehemently argued that the applicant has wrongly stated that Noida Authority has withheld the security of 16.01 crores of the applicant as the said amount was the amount necessarily to be deposited by any of the executant Company as security for the defect liability period as mentioned in the relevant Clauses of the respective Contract Bonds and not withheld by the Noida Authority against the alleged loss amount. He has drawn the attention of the Court towards the relevant Clause of Control Bonds in this regard. He submitted that the said amount of Rs. 16.01 Crores was deposited by the applicant's firm in 12 different contracts of various divisions of Noida Authority out of which 3 contracts are subject matter of investigation and out of the said three contracts, charge-sheet has been filed in one instant case and remaining two contracts are still under investigation.

10. The Apex Court in the case Subramanian Swamy v. Dr. Manmohan Singh, AIR 2012 SC 1185 has held that corruption in our country not only poses a grave danger to the concept of constitution governance, it also threaten the very foundation of Indian democracy and the rule of law. The magnitude of corruption in our public life incompatible with the concept of a socialist, secular, democratic republic. It cannot be disputed that where corruption begins all right ends. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our preamble vision. Therefore, the duty of the Court is that any anti-corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it.

11. Taking into account the nature of allegation levelled against the applicant and the prosecution case as stated in the F.I.R. and charge-sheet submitted in the case shows an organized crime committed by the accused persons causing huge financial loss to NOIDA Authority and misuse of public money in collusion with the public servants posted in the NOIDA Authority at the relevant point of time, the prayer for bail of the applicant is refused.

12. Without expressing any opinion on the merits of the case and considering the submission advanced, I find no good ground for grant of bail to the applicant Pradeep Garg involved in Case Crime No. RC/DST/2015/A/0004 under sections 120-B I.P.C. read with Section 420, 109, 468, 471 I.P.C. and Section 13 (2) read Section 13 (1) (d) of Prevention of Corruption Act under Substantive offense under section 420, 468, 471 I.P.C., police station CBI/STF, New Delhi.

13. Accordingly, the bail application is rejected.

14. Learned counsel for the applicant has also pressed the short term bail application being numbered as Crl. Misc. (Short Term) Bail Application No. 192471 of 2017 filed on behalf of the applicant on the ground of his illness which also stands rejected.

15. Needless to say that Superintendent District Jail concerned is expected to take care of the ailment of the applicant in accordance with the Jail Manual.

16. However, the trial court is directed to expedite the trial of the aforesaid case and conclude the same on day to day basis strictly in accordance with the provisions contained in Section 309 Cr.P.C. within a further period of one year from the date of production of a certified copy of this order and if the co-accused persons, who are absconding, do not appear before the trial court, the trial court shall consider to separate the trial of the applicant and proceed accordingly.

Order Date :- 24.11.2017

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