Sopan S/O Ramrao Suryawanshi vs State Of Mah. Thr. Pso Ps Sadar Nagpur And ...
2025 Latest Caselaw 5145 Bom

Bombay High Court

Sopan S/O Ramrao Suryawanshi vs State Of Mah. Thr. Pso Ps Sadar Nagpur And ... on 2 September, 2025

2025:BHC-NAG:8665
              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/-

Judgment

458 revn128.20.odt

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/-

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458 revn128.20.odt

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

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

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

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/-

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458 revn128.20.odt

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/-

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458 revn128.20.odt

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

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

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

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

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

"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/-

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458 revn128.20.odt

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

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/-

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458 revn128.20.odt

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/-

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458 revn128.20.odt

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

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

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

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

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/-

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458 revn128.20.odt

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/-

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458 revn128.20.odt

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:

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.....23/-

Judgment

458 revn128.20.odt

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.....24/-

Judgment

458 revn128.20.odt

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.....25/-

Judgment

458 revn128.20.odt

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

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

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

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

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

(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

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

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

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

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

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

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

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 !!

Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge .....38/- Date: 03/09/2025 17:24:32