Sanjay S/O Laxman Kholapurkar vs State Of Mah. Thr. Superintendent Of ...
2025 Latest Caselaw 5149 Bom

Bombay High Court

Sanjay S/O Laxman Kholapurkar vs State Of Mah. Thr. Superintendent Of ... on 2 September, 2025

2025:BHC-NAG:8720




              Judgment

                                                              455 apl246.23



                                          1

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                         NAGPUR BENCH, NAGPUR.

                    CRIMINAL APPLICATION (APL) NO.246 OF 2023

              Sanjay s/o Laxman Kholapurkar,
              aged about 62 years, occupation retired,
              r/o 77-B, Pande Layout, behind Water
              Tank, Khamla, Nagpur.                 ..... Applicant.

                                   :: V E R S U S ::

              State of Maharashtra,
              thr.Superintendent of Police,
              Anti-Corruption Bureau, Nagpur.   ..... Non-applicant.

              Shri Sahil 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. By this application, the applicant has invoked

provision under Section 482 of the CrPC and claimed

following reliefs:

.....2/-

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"(a) quash and set aside the impugned order dated

30/04/2021 (Annex-Y) rejecting the application for

discharge of Applicant Accused No.2, passed by the

Learned Special Judge, (ACB), Nagpur, in Special

Case No.26/2018, (which is the outcome of the

investigation in Crime No.204/2017 registered with

Sadar Police Station, Nagpur and which was

investigated by Anti-Corruption Bureau, Nagpur, for

the offence punishable under Section 13(10(c),

13(1)(d) read with Section 13(2) of Prevention of

Corruption Act, 1988 and Section 420, 109 of

Indian Penal Code and order for discharging of the

applicant in the peculiar facts and circumstances of

the present case and in the interest of justice;

(b) Invoke inherent and superintending powers of

the Honourable Court to quash and set aside the

.....3/-

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aforesaid prosecution and all the consequential acts,

in the circumstances brought to the kind notice of

the Honourable Court;

(c) Stay the said Special Case No.26/2018 pending

on the files of Learned Special Judge, (ACB),

Nagpur, during the pendency of the decision in the

present matter and/or direct the said learned judge

to no to frame charge against the applicant, in the

peculiar facts and circumstances of the case and in

the interest of justice;

(d) Grant ad interim relief in terms of prayer

clause (b);

(c) And be further pleased to grant such other relief

pass such other order as this Honourable Court may

deem fit and proper in the facts and circumstances

of the present case and in the interest of justice."

.....4/-

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2. Brief facts necessary for disposal of the application

are as under:

The applicant was working as the Superintending

Engineer in Irrigation Department and was Incharge of

Gosikhurd Project of Vidarbha Irrigation Development

Corporation (VIDC), Water Resources Department, Nagpur

and obtained Voluntary Retirement in the year 2013. He

was charged for offences under Sections 13(1)(c), 13(1)

(d), and 13(2) of the Prevention of Corruption Act (the

P.C.Act) and 420 and 109 of the IPC. The VIDC is

entrusted with the job of Irrigation Project in Vidarbha. In

view of directions issued in PILs by this court bearing

Nos.83 an d 92/2012 whereby irregularities were pointed

in the irrigation projects and after filing of the said PILs,

the State Government has decided to investigate the matter

in detail. Accordingly, the Department of Home Ministry

.....5/-

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has passed an order for enquiry through the Anti

Corruption Bureau. During the enquiry, it revealed that the

applicant was entrusted with the job of working on the said

project and was found to be involved in the act of

increasing the project/tender cost. During the

investigation, it was found that contrary to the Rules and

Regulations, the tenders were called by making the illegal

changes and project cost was also increased without

following due procedure of law. It was found that the

applicant was involved in the act of increasing the

project/tender cost by providing the advance to the

contractor contrary to the provisions of notice and tender.

On the basis of illegal proposal, the amount was

sanctioned. There was no provision for pre-bid conference

even then M/s.Hindustan Construction Company was

proposed to be given the amount of Rs.10.49 crores

towards the advance because of which fair tendering

.....6/-

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process could not be done and illegal amount and contract

was awarded contrary to the provisions of law. It was

further revealed that successful bidder Hindustan

Construction wrote letter dated 2.2.2007 demanding 10%

of mobilization advance towards the Executive Engineer

and Executive Engineer by virtue of letter No.283/NL/07

dated 5.2.2007 recommended that the advance can be

given. On the basis of the said proposal passed by the

applicant, the amount was disbursed to the contractor to

the tune of Rs.10,49,00,000/-.

3. During the investigation, the authorities requested

the Expert Committee to give opinion and the opinion is

received from the Expert Committee that there was no

provision in tender and there was no legal demand. On

the contrary, the said demand was rejected. The proposal

was forwarded for providing the mobilization advance

.....7/-

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which is contrary to the provisions of Sections 193(4) and

233 of Rules made available for Maharashtra Sarvajanik

Bandhkam Vibhag. The proposal letter of providing illegal

advance was signed by the applicant contrary to the

provisions of law. Resultantly, illegal flow of money was

generated and thereby caused loss to the Government. The

opinion was also sought from the Technical Expert

Committee and the Committee has given an opinion that

only some project cost/tender cost can be increased and

those are 1). cost of increased; 2). cost of cement and steel,

and 3). change in proposed cost of project increased in

requirement of sand and other natural items required for

canal. The Technical Expert Committee has given opinion

that apart from this there are no other valid grounds for

increasing the costs project and tender and the said

irregularities were caused because of the illegal act of

Executive Engineer, Superintending Engineer and the

.....8/-

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Executive Director to favour the contractor to put loss to

the Government of Rs.781.39 crores. On the basis of the

said allegations, the crime was registered vide Crime

No.204/2017. After investigation, the chargesheet was

filed bearing Special Case No.26/2018.

4. After filing of the chargesheet, the applicant has

filed an application for discharge which came to be

allowed by learned Additional Sessions Judge by order

dated 25.10.2018.

5. Being aggrieved and dissatisfied with the same, the

State has preferred an application under Section 482 and

challenged the order passed by learned Additional

Sessions Judge, Nagpur. This court has allowed the said

application and observed that learned Additional Sessions

Judge has not considered the other contentions in support

of the discharge application and wrongly assumed that

.....9/-

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previous approval is required and directed learned

Additional Sessions Judge to decide the discharge

application of the accused afresh and record finding qua

contention that the material on record is not sufficient to

warrant a trial. As per the directions of this court, the

applicant approached learned Special Judge by filing an

application below Exh.47 and rejected the application by

passing order on 30.4.2021.

6. Being aggrieved and dissatisfied with the same, the

present application is filed on following grounds:

1. the chargesheet was filed on 31.7.2018 in

contravention of the amended provisions of the

P.C.Act, 1988. The amendment to Section 17(a) of

the PC Act came in force from 26.7.2018 which

contemplates that enquiry or investigation of the

offence related to the recommendations made or

.....10/-

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decision taken by the public servant in discharge of

his official functions or duties mandate;

2. Learned Special Judge has not considered that

final report as filed by the then prisoner is contrary

to the provisions of the P.C.Act and the

Maharashtra Civil Services (Pension) Rules.

Learned Sessions Judge has also not considered the

role of the applicant in the entire tender process

was only that of recommending authority and

decision making process was with the higher

authorities.

3. The applicant is made accused in the present

matter merely on the basis of suspicion and there is

no material on record to show that the applicant is

beneficiary from any misappropriation as alleged

by the prosecution.

.....11/-

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4. The applicant during the pendency also filed an

application under Section 91 of the Code along

with the documents in order to substantiate that

even on the similar charges the departmental

enquiry was conducted by the independent enquiry

by Secretary and Special Enquiry Officer (II) and

General Administrative Department, who is an

officer from IAS Cadre and after completion of the

said enquiry and on the report filed by them, the

government has exonerated from the said charges.

7. Heard learned counsel Shri Sahil Dewani for the

applicant, who submitted that burden as to provisions of

Section 13(1)(d) and 13(2) of the PC Act is only on the

part of the prosecution to prove that there was demand of

illegal gratification by public servant in respect of showing

.....12/-

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favour or disfavour in respect of official act and he in fact

received or obtained money as bribe by corruption or

abusing his position as a public servant. The legal

provisions are no more res integra that the primary

requirement for establishing an offence under Section

13(1)(d) of the P.C.Act is proof of demand for a

valuable thing or pecuniary advantage by the public

servant. There is no material in the final report as would

be sufficient to infer the commission of the act making an

offence or criminal misconduct by a public servant. The

prosecution has to place evidence to demonstrate that the

public has obtained amount or for any other person any

valuable thing or pecuniary advantage either by abusing

his position as a public servant or by corrupt or illegal

means. The applicant is already exonerated in the

departmental enquiry from the said charges. The proof

required to prove the criminal offence is more heavier

.....13/-

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455 apl246.23

than the proof required in the departmental enquiry. As

the applicant is already exonerated from the departmental

enquiry, there would be no prosecution against him and,

therefore, he be discharged by setting aside the order

passed by the Special Judge.

8. In support of his contentions, learned counsel for

the applicant placed reliance on following decisions:

1. C.Chenga Reddy and ors vs. State of A.P., reported in

(1996)10 SCC 193;

2. Abdulla Mohammed Pagarkar vs. State, reported in

(1980)3 SCC 110;

3. State of Madhya Pradesh vs. Sheetla Sahai and ors,

reported in (2009)8 Scc 617;

4. Rishipal Singh vs. State of Uttar Pradesh and anr,

reported in (2014)7 SCC 215;

.....14/-

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5. Ashoo Surendranath Tewari vs. Deputy Superintendent

of Police, EOW, CBI and anr, reported in (2020)9 SCC

636;

6. Thermax Limited and ors vs. K.M.Johny and ors,

reported in (2011)11 SCC 412;

7. Vikram Johar vs. State of Uttar Pradesh and anr,

reported in (2019)14 SCC 207;

8. Criminal Revision NO.25/2019 (Sunil Shinde vs. State

of Maharashtra) decided on 20.2.2019;

9. Criminal Revision Application No.141/2019 (Sanjay

Laxman Kolhapurkar vs. State of Maharashtra) decided by

this court on 16.9.2021;

10. Criminal Application No.734/2020 (Keshav

Chandrakant Tayde vs. State of Maharashtra) decided by

this court on 26.6.2022;

11. Criminal Revision Application No.129/2021

(Devendra Parshuram Shirke vs. State of Maharashtra)

decided by this court on 23.12.2021;

.....15/-

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12. Criminal Application (APL) No.1371/2021 (Sanjay

Laxman Kholapurkar vs. State of Maharashtra), decided

by this court on 9.11.2022.

He submitted that in Criminal Application

No.734/2020 and Criminal Revision Application

No.141/2019 in the similar types of offences the applicant

and other co-accused are discharged.

9. Per contra, learned Additional Public Prosecutor

Shri Anant Ghongre for the State strongly opposed the

application and submitted that during investigation the

involvement of the applicant revealed in granting favour

to the contractor. It was found that the present applicant

was not only involved in the act of increasing the

project/tender cost but also sanctioned advance contrary

to the provisions of notice and tender. On the basis of the

.....16/-

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illegal proposal, the amount was sanctioned and the

applicant was responsible for causing loss to the

Government to the tune of Rs.781.39 crores. Thus, there

is a prima facie material against the applicant and,

therefore, no interference is called for.

10. Before entering into the merits of the case, it is

necessary to see considerations for considering the

application for discharge.

11. 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.

.....17/-

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12. 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:

"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

.....18/-

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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 of all the ingredients constituting

.....19/-

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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."

13. Thus, at the stage of considering the application

for discharge, the defence of the accused is not to be

.....20/-

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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 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

.....21/-

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of the defence. The case of the prosecution is to be

accepted as it is.

14. 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

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

.....22/-

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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 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

.....23/-

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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

matter and weigh the evidence as if he was

conducting a trial."

15. 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

.....24/-

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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.

16. Now, coming to the first ground raised by the

applicant in the application, that chargesheet was filed on

31.7.2018 in contravention of the amended provisions of

the P.C.Act and the same was in contravention of

amended provision of the P.C.Act, it was canvassed that

amendment of Section 17(a) came in force on 26.7.2018

which contemplates Inquiry or investigation of offences

relatable to recommendations made or decision taken by

public servant in discharge of official functions or duties

.....25/-

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mandatorily requires prior approval. This ground was

earlier raised before this court when the State challenged

the order of discharge and this court by referring the said

Section observed that Section 17(a) creates an embargo

which precludes an enquiry and investigation. The

embargo clearly applies only to such enquiry or

investigation which is initiated after the coming into force

of Section 17(a). Any other view, would do violence to the

plain language of the statute and would be subversive of

the legislative intent. The legislative intent is certainly not

to set the clock back to invalidate investigation or enquiry

which is undertaken, much less an investigation which is

complete, prior to the coming into force of Section 17(a).

While the legislative intent is to protect honest and

responsible public servants where the allegation is

relatable to the recommendations made or decisions

taken in discharge of official functions or duties, Section

.....26/-

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17(a) must receive a reasonable interpretation,

particularly, since the said provision fetters the right of

the Investigating Agency to inquiry into a cognizable

offence and is vulnerable to the challenge that the

statutory scheme, inter alia section 155 of the Code, is

dented. It is stated at the bar that the Supreme Court has

issued notice in Special Leave Petition challenging the

constitutional validity of Section 17(a).

17. By referring the decision in the case of State of

Telangana vs. Sri Managipeth @ Magnipeth Sarveshwar

Reddy (Criminal Appeal 1662 of 2019), the Hon'ble Apex

Court considered the submission that the amended

provisions of the Act would be applicable as the

chargesheet was submitted after the Amending Act come

into force, and observed as follows:

.....27/-

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"37. Mr. Guru Krishna Kumar further refers to a Single Bench judgment of the Madras High Court in M. Soundarajan v. State through the Deputy Superintendent of Police, Vigilance and Anti Corruption, Ramanathpuram to contend that amended provisions of the Act as amended by Act XVI of 2018 would be applicable as the Amending Act came into force before filing of the chargesheet. We do not find any merit in the said argument. In the aforesaid case, the learned trial Court applied amended provisions in the Act which came into force on 26th July, 2018 and acquitted both the accused from charge under Section 13(1)(d) read with 13(2) of the Act. The High Court found that the order of the trial Court to apply the amended provisions of the Act was not justified and remanded the matter back observing that the offences were committed prior to the amendments being carried out. In the present case, the FIR was registered on 9thNovember, 2011 much before the Act was amended in the year 2018. Whether any offence

.....28/-

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has been committed or not has to be examined in the light of the provisions of the statute as it existed prior to the amendment carried out on 26th July, 2018."

18. In the light of the above observations, this court

held that learned Judge below committed grave error in

discharging the accused on the premise that Section 17(a)

of the PC Act is attracted. The said provision has no

applicability to enquiry or investigation undertaken prior

to its coming into force. The protective cover is not

available to acts done by using the offence as a cloak for

unlawful gains. Considering the allegations, the accused

are not protected by the requirement to seek previous

approval, assuming arguendo, that the said provision

comes into play and directed learned Judge below to

decide discharge application.

.....29/-

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19. Thus, this court in earlier round of litigation has

already considered applicability of Section 17(a) of the

P.C.Act and held that protective cover is not available to

acts done by using the offence as a cloak for unlawful

gains. As the said order was not challenged by the

applicant, it attained the finality and, therefore, now the

said ground is not available to the applicant for discharge.

20. The second ground raised in the application is

that there was no material available against the applicant

as the role of the applicant in the enquiry/tender process

was only to the extent of recommending the authority and

decision making process was with the higher authorities.

21. Perusal of the entire investigation papers shows

that the allegations against the applicant are not only to

the extent of increasing the project/tender costs but also

during investigation it was found that contrary to the

.....30/-

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rules and regulations tenders were called by making

illegal changes and project costs was increased without

following due process of law. The applicant was not only

increasing the project costs but also recommending

advance to the contrary to the provisions of

the notice and tender. There was no provision for pre-bid

conference even then M/s.Hindustan Construction

Company was proposed to be given the amount of

Rs.10.49 crores towards the advance because of which fair

tendering process could not be done and illegal amount

and contract was awarded contrary to the provisions of

law. It was further revealed that successful bidder

Hindustan Construction wrote letter dated 2.2.2007

demanding 10% of mobilization advance towards the

Executive Engineer and Executive Engineer by virtue of

letter No.283/NL/07 dated 5.2.2007 recommended that

the advance can be given. On the basis of the said

.....31/-

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proposal passed by the applicant, the amount was

disbursed to the contractor to the tune of

Rs.10,49,00,000/-.

22. Record further shows that there was no cause to

grant mobilization advance. However, the applicant has

recommended the same and mobilization in advance was

issued after recommendation of the letter issued by the

applicant. The executive director in pursuance of the said

letter accorded the sanction on 26.2.2007 and accordingly

Rs.10,49,00,000/- advance was released in favour of the

tenderer company. Admittedly, the said allegation is of

serious nature. Besides that, the Wadneri Committee was

constituted and in its report it is specifically observed that

the tender cost was updated by 8.57% of the original

tender cost. It prima facie in excess of 5% of the

admissible limit and powers of the committee of the

.....32/-

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applicant and the co-accused. Although initial tender

costs was Rs.91,17,50,936/- and the same was updated in

the value of Rs.110,09,39,255/-.

23. Thus the said order prima facie suggests that

there was misappropriation of Rs.781.39 crores in the said

project. The said increase of the cost is against the

guidelines framed while updating costs as per the GSR

was not followed.

24. Para No.313 of the Public Works Manual of

obtaining fresh sanction is contravened by the applicant

along with the co-accused. Similarly, the provisions of

para Nos.194 and 270 of the Maharashtra Public Works

Manual are also contravened the applicant and the co-

accused. The demand draft of money which were

expected to be deposited by the company were also not

deposited in the account of corporation. There is specific

.....33/-

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allegation that in view of the act on the part of the

applicant the contractor company has received pecuniary

advantage on the basis of approval given by the applicant

in the capacity of Superintending Engineer i.e. member of

scrutiny committee. As such, the allegations made in the

chargesheet against the applicant are very specific that

the updation of the tender cost was made illegally and the

applicant along with the co-accused by incorporating

inadmissible circumstances have updated the tender cost

by 781.39 lacs and approved the same in his own wisdom

along with the co-accused.

25. Third ground raised in the application for

discharge is that he is exonerated from the departmental

enquiry. As per the departmental enquiry, charges against

the applicant were as follows:

.....34/-

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Charge No.1 : While framing the estimates for

the works under Ghosikhurd Project, some

provisions which were not provided under the

concerned rules, were made resulting into the

increase in the cost of the works. Similarly, while

working out the updated estimated cost of the

works, put to tender same wrong items were

introduced, which were not the part of the

original estimates, resulting into wrong updated

cost of tender estimate. Also the wrongly valued

at proposals for acceptance of higher updated of

tender were submitted at senior level. This has

resulted into increase in the cost of tenders and

thereby increase in the cost of project works. He

is responsible for the increase in cost.

.....35/-

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Charge No.2: Para 313 of the Maharashtra Public

Workers Manual as below:

"Because of the rates of item in the earlier

sanction estimates are found inadequate or

because of any other reason, apart from the

reason mention in the previous para, if there is

likelihood of increase in estimate cost beyond

5%, then the revised estimate has to be

submitted. Also comparative Statement (In form

PS 119) and detailed report stating the progress

of work and reason for improvement in estimate

has to be submitted".

Para 315 of the Maharashtra Public Workers

Manual states as below under:

"Before taking up the work for which (estimate)

is submitted 2 years prior, the Executive Engineer

.....36/-

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should take careful review and ascertain whether

there is a need to change the rate or other aspect

of the estimated and before calling the tender

bids, estimate should be revised as per the

current schedule of rates and in the charges in

other aspect if felt necessary."

After considering the provisions of para 313 and

315, together, while applying the tender if the

cost is likely to increase than 5%, that it is

necessary revised the estimate and the estimate

should be approved at the competent level.

However, while undertaking the works of

Ghosikhurd Project, para No.313 and 315 of the

Maharashtra Public Workers Manual was not

followed.

.....37/-

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Charge No.3. : Para 194 of Maharashtra Public

Workers Manual state as below:

"The work of which tender is accepted and

agreement related paper work is completed in all

respect, (but agreement is not signed/work order

not received), needs to be taken up, in the

interest of government, such work should be

temporarily undertaken on A-2 type of agreement

and when the main agreement is finalized the A-

2 type agreement should be cancelled. It is

beyond executive engineer's competency to

sanction the main tender agreement and

executive engineer is fully empowered to take up

works on A-2 type agreement. Still the

temporary agreement, before starting work

should be sanctioned by the competent authority

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who has accepted the main tender. In such cases

main agreement should be expedited without

delay."

on reviewing the above mentioned paragraph it

is clear that from the date of acceptance of the

tender by competent authority to execution of

contract, the competent authority who accepts

the tender should also sanction the

agreement/contract on A-2 agreement, if it is

necessary in the interest of the Government.

However, in one case tender acceptance was in

process, the work on A-2 agreement was

sanctioned and in other nine cases a proposal to

sanction was submitted. As per Maharashtra

Public Workers Manual para 194, main tender

(B-1 Agreement) is to be accepted and then

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temporary work, if needed is to be taken up on

A-2 Agreement by obtaining approval from the

Competent Authority. However, in this case such

approval are given prior to the acceptance of

main tender, resulting into irregularities.

Charge NO.4. : Para 217 of the Maharashtra

Public Workers Manual state as below:

"In case of acceptance of tenders, they are

handled finally by the Executive Engineer,

Superintendent Engineer and Chief Engineer, it

should not take more than 30 days, 60 days, 90

respectively from the opening of tender. If

because of some reason delay occurred, the

circumstances for the unavoidable delay should

be communicated to the next higher officer."

.....40/-

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As per the provisions of para 217 of the

Maharashtra Workers Manual, after opening of

tender it should be finally dealt by

Superintending Engineer within 60 days.

However in case of 75 tenders which required

more than 60 days for acceptance. Hence, the

provision of para 217 of the Maharashtra Public

Workers Manual are not followed by the

Superintending Engineer.

Charge No.5 : As per the Government circular

No.Misc.1098, (96/98) M.P. (P) dated 4.9.2000,

authorities competent to check and certify the

transport distance (lead) have been designated.

For any reason/ item if the transportation

distance is more than 2 kilo meter, then it is

responsibility of Superintending Engineer to

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obtain the prior approval from the Chief

Engineer. However, during execution of

Ghosikhurd Project components this circular is

not followed.

Charge No.6 : Recommendation for advance to

be given to eight contractors, have been made in

spite of any enabling provisions in the tender

agreement. In Maharashtra Public Works

Account Code (para 10.2.21) the advance

payment to contractors is prohibited. Similarly

there are no unique method adopted while

deciding the advance payment to contractors.

Because of this irregularities took place in

allocation of available government fund.

In aforementioned charges No.1 to 6,

Maharashtra Public Works Manual 6th edition

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1984 para 141(3) and para 142, para 143, para

313, and para 315, para 194, para 217,

Maharashtra Public Works Accounts Code

10.2.21, circular dated 4.9.2000 and

Maharashtra Civil Services (conduct) Rules 1979

- Section 3(1) and (2) is not followed and the he

is responsible for the violation.

26. It is submitted by learned counsel for the

applicant that from the departmental enquiry the

applicant is already exonerated. The standard of proof

required for the departmental enquiry is preponderance

of probability. However, to prove the charges under the

alleged offences, proof beyond reasonable doubt is

required. When the applicant is already exonerated from

the departmental enquiry, it means that the department

could not prove the allegations in the departmental

.....43/-

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enquiry for which standard of proof requires is

preponderance of probability and not proof beyond the

reasonable doubt if could not be produced and, therefore,

the no purpose would be served by directing the applicant

to face the trial. In support of his contentions, learned

counsel for the applicant placed reliance on the decision

in the case of Ashoo Surendranath Tewari vs. Deputy

Superintendent of Police supra.

27. The charges framed in the departmental enquiry

and allegations in the present crime are different. It is

alleged in the present crime that the applicant was

entrusted with the job of working on the Gosikhurd

Project and was not only found in the act of increasing

the project of the tender cost but also found in giving

favour to the contractor by recommending mobilization

advance @ 10% against the provisions of law.

.....44/-

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Accordingly, amount of 10,49,00,000/- was paid to the

contractor. This act of the applicant was contrary to the

provisions of Sections 193(4) and 233 of Rules made

available for Maharashtra Sarvajanik Bandhkam Vibhag. It

is further alleged that due to the recommendation of the

applicant, the advance was sanctioned to the contractor

contrary to the provisions of law which resulted into

illegal flow of money generated to the contractor. The

another act of the applicant was increasing the project of

tender cost contrary to the provisions of law. The

applicant has forwarded proposal letter to the higher

authorities on 10.10.2006 on the basis of which the

Hindustan Construction Company was called for

negotiation. Hence, in stead of increasing the proposal of

30% extra, tender cost was increased by 20.75%.

.....45/-

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28. Thus, the applicant has increased project cost

illegally by recommending the same. Thus, the applicant

contributed while working as Superintending at that point

of time and caused the loss to the Government to the tune

of Rs.781.39 crores.

29. On going through the decision in the case of

Ashoo Surendranath Tewari vs. Deputy Superintendent of

Police supra it 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 :-

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(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;

(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.

.....47/-

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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 underlying principle being the higher standard of proof in criminal cases".

30. On going through the charges framed in the

departmental enquiry and the charges levelled against the

applicant, it reveals that the same are not similar. The

charges against the applicant are not only to the extent of

increasing the tender cost but also allegations against the

prosecution is advancing monetary gain contrary to the

provisions of the Maharashtra Public Workers Manual.

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31. Thus, involvement of the applicant is not only in

increasing the cost of tender but also causing loss to the

Government by showing the favour to the contractor

which is against the provisions of the law and, therefore,

charges framed in the departmental enquiry and the

allegations levelled in the present prosecution are not

identical.

32. This aspect is further 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 it is held that

the exoneration in the departmental proceedings ipso

facto would not result into quashing of criminal

prosecution. However, if the prosecution against is

solely based on finding in a proceeding and that

proceeding is set aside by the superior authority in

hierarchy, the very foundation goes and the prosecution

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may be quashed. However, that principle will not apply

in the case of departmental enquiry as a criminal trial and

the departmental proceedings are held by two different

entities.

It is observed by the Hon'ble Apex Court by

referring the earlier judgment P.S.Rajya vs. State of Bihar,

reported in AIR OnLine 1996 SC 54 which in relation to

the effect of exoneration in the departmental proceedings

or the criminal prosecution on identical charge. The said

decision, therefore, 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 well settled that the

decision is an authority for what it actually decided and

not what flows from it.

.....50/-

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33. Thus, as observed earlier that charges in the

departmental enquiry and charges in the present

prosecution are not identical one and, therefore, merely

because the applicant is exonerated from the charges

levelled against him in the departmental enquiry would

not entitle him to discharge from the charges and,

therefore, ground raised in the application to discharge

him is also not sustainable.

34. The other ground raised that, the applicant is

made accused in the present crime merely on suspicion, is

also not sustainable as the evidence on record that various

committee reports and statements recorded of the various

witnesses, the Wadneri Committee Reports wherein it is

specifically observed prior to technical approach of the

tender notice, the advertisement for filing tender cost was

issued. The records of the parties one of purchasee

.....51/-

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tender has not submitted the tender forms are not

maintained properly. The demand drafts were not

deposited in the account of the corporation. The

committee report specifically observed that the tender

cost was increased contrary to the manual of the

Maharashtra Public Workers Manual. The specific

allegations are levelled that the contractor company has

received pecuniary advantage on the basis of the approval

given by the applicant and loss is caused to the

Government Exchequer. Therefore, the contention of the

applicant that merely on suspicion the charges are

levelled against him is also not sustainable.

35. The another ground raised that no offence is

made out against the applicant as there was no demand.

The applicant is charged with offence punishable under

Section 13(1)(d) of the P.C.Act. Perusal of the said

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Section shows that it applies if a public servant is set to

commit the offence of criminal misconduct, if he (1) by

corrupt or illegal means, obtains for himself or for any

other person any valuable thing or pecuniary advantage

or; ((2) by abusing position as public servant obtains for

himself or for any other person valuable thing or

pecuniary advantage or; (3) while holding office as public

servant, obtains for person any valuable thing or

pecuniary advantage without any public interest.

36. Thus, the act of the applicant is duly covered

under Section 13(1)(d) of the P.C.Act.

37. Learned counsel for the applicant though placed

reliance on the various decisions, the observations in the

case of C.Chenga Reddy and ors vs. State of A.P. supra are

after a full-fledged trial.

.....53/-

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38. In the case of State of Madhya Pradesh vs.

Sheetla Sahai and ors supra also the Hon'ble Apex Court

has laid down ratio in the light of the facts of that case by

considering the evidence adduced by the prosecution.

39. In the case of Rishipal Singh vs. State of U.P.

supra it has been observed that when a prosecution at the

initial stage is asked to be quashed, the tests to be applied

by the Court is as to whether the uncontroverted

allegations as made in the complaint prima facie establish

the case. The Courts have to see whether the continuation

of the complaint amounts to abuse of process of law and

whether continuation of the criminal proceeding results in

miscarriage of justice or when the Court comes to a

conclusion that quashing these proceedings would

otherwise serve the ends of justice, then the Court can

exercise the power under Section 482 Cr.P.C. While

.....54/-

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exercising the power under the provision, the Courts have

to only look at the uncontroverted allegation in the

complaint whether prima facie discloses an offence or not,

but it should not convert itself to that of a trial Court and

dwell into the disputed questions of fact.

40. Thus, after having sifted and weighed the

evidence on record, it is clear that prima facie material is

available against the accused to frame the charge.

41. It is well settled law that at the stage of

considering the applications for discharge, the court must

proceed on the assumption that the material brought on

record by the prosecution is proved and evaluated the

material in order to determine as to whether facts

emerging from the material take on its face value disclose

the existence of ingredients necessary of the offence

alleged. At the stage of considering the applications for

.....55/-

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discharge, the court must proceed on an assumption that

the material brought on record by the prosecution is true

and discloses the existence of ingredients necessary of the

offence alleged.

42. The Hon'ble Apex Court in the case of Captain

Manjit Singh Virdi (Retd.) vs. Hussain Mohammed

Shattaf & Ors supra observed that 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.

43. In the light of the above observations, as

observed earlier that after having sifted and weighed the

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evidence on record, a prima facie case is made out against

the applicant and, therefore, the order passed impugned

calls for no interference.

44. In this view of the matter, the application being

devoid of merits is liable to be rejected and the same is

rejected.

(URMILA JOSHI-PHALKE, J.) !! BrWankhede !!

Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge ...../- Date: 04/09/2025 16:27:37