Dr. Sadachari Singh Tomar vs Director, Central Bureau Of ...
2010 Latest Caselaw 986 Del

            HIGH COURT OF DELHI: NEW DELHI
+             CRL. REV. P. No. 674/2005
%
DR. SADACHARI SINGH TOMAR                      ......Petitioner


                      Through: Mr.Prashant Bhushan,Adv.
                               with Mr.Sumeet Sharma, Adv.

                           Versus

DIRECTOR, CENTRAL BUREAU OF
INVESTIGATION & ORS.                         .....Respondents

                      Through: Mr. Vikas Pahwa, Standing
                               Counsel with Mr.B.K.Patra, Adv.
                               Mr.A.B.Dial,Sr. Adv. with
                               Mr.S.S. Lingwal, Adv. for
                               Respondent Nos. 2 to 4.


              Judgment reserved on: 17th December, 2010
              Judgment delivered on: 22nd February, 2010
Coram:
HON'BLE MR. JUSTICE A.K. PATHAK


       1. Whether the Reporters of local papers
          may be allowed to see the judgment?       Not
                                                    necessary


       2. To be referred to Reporter or not?        Not
                                                    necessary

       3. Whether the judgment should be            Not
          reported in the Digest?                   necessary




CRL REV. P. NO. 674/2005                            Page 1 of 15
 A.K. PATHAK, J.

1. Petitioner has filed this petition under Section 397 of

Code of Criminal Procedure (Cr.P.C.) against the order

dated 19th February, 2004 passed by learned Special Judge,

Delhi, thereby accepting the closure report filed by

respondent No. 1.

2. Impugned order reads as under:-

"Closure report perused along with statements and relevant documents. I find no malafides could be pin pointed against any of the proposed accused except an irregularity regarding the mode of payment made as the instalment to the purchase of the requisite goods. No material found whereunder the proposed accused need be prosecuted. I, therefore, accept the closure report and cancel the case. The seized documents be returned to the persons/departments wherefrom these were taken in possession by the CBI during investigations."

3. Briefly stated, facts of the case are that respondent

No. 1, Central Bureau of Investigation (CBI) registered FIR

bearing No. RC-20(A)/2000/DLI on 26th April, 2000 under

Sections 120-B/420/468/471 IPC and Section 13(2) read

with Section 3(1)(d) of Prevention of Corruption Act, 1988

(P.C. Act), on the basis of source information, regarding

irregularities committed in purchase of computes and

allied equipments worth Rs. 12 crores, by Indian Council of

Agricultural Research (ICAR). It was alleged that the

officials of ICAR had entered into a criminal conspiracy

with officials of M/s HCL-HP Ltd. and pursuant thereof,

terms of payment incorporated in the bid document i.e.

50% against the "shipping document" was changed to 50%

against the "order/shipping document", thus resulting into

undue pecuniary advantage to M/s HCL-HP Ltd. and

corresponding financial loss to the Government. It was

further alleged that remaining 50% of the contract amount

of about 6 crores was also released to M/s HCL-HP Ltd.

without obtaining installation-cum-successful

commissioning certificate from ICAR, inasmuch as,

payment was released on 29th March, 1997, whereas

installation continued up to 30th June, 1999.

4. Matter was investigated by the CBI but it did not find

any material in support of allegations that the officials of

ICAR had entered into a criminal conspiracy with the

officials of M/s HCL-HP Ltd. and pursuant thereof, changed

the terms of payment, thereby causing financial loss to the

Government and corresponding pecuniary gain to M/s

HCL-HP Ltd. It was observed that the responsibility of

inserting the word „order‟ for making the payment of first

instalment of 50% could not be pinpointed as contract was

awarded after following due procedure. Contract was

awarded on the basis of recommendations of Purchase

Committee comprising of nine members holding senior

positions in the organisation. Bid Evaluation report was

prepared by Sh. K.K. Bajpai, Dy. Secretary (N), Sh. A.S.

Sood, Sr. Finance and Accounts Officer and Dr. Gaya

Prasad wherein the word „order‟ was substituted in the

payment terms. This report was discussed in the meeting

dated 21st December, 1995 of the Bid Evaluation

Committee comprising of seven members and was

approved. Later, the said report was also accepted and

approved by the World Bank as the project was financed by

it. CBI concluded that though the payment terms had been

found to be changed but no malafidies on the part of any

ICAR official could be established; no tangible loss was

found to have been caused to the government except that

the first installment of about Rs. 6 crore was released

couple of months in advance, inasmuch as, the second

installment was withheld for about five months awaiting

the supply of the goods. Final payment was released only

after the supplies had been effected. No material could be

collected during investigation to show that there was short

supply of equipments. In view of this, CBI categorically

mentioned in the closure report that the evidence was

insufficient to substantiate the allegations.

5. Learned Special Judge considered the closure report

and also the relevant documents that were filed along with

the said report and was of the view that no sufficient

material was available to prosecute the accused,

consequently, accepted the closure report.

6. Learned senior counsel for the petitioner has

vehemently contended that petitioner, while working with

ICAR, noticed irregularities in the purchase and

maintenance of computer networking equipments in the

year 1998. This project was funded by the Government of

India and World Bank. Petitioner had submitted a report

indicating the irregularities in the supply and maintenance

of computer systems at various centres. CBI had

conveniently ignored the report of petitioner. In the

closure report itself, CBI has observed that payment term

had been altered substantially, which had resulted in the

payment of 50% of the contract amount immediately on

placing the order with M/s HCL-HP Ltd. As per the learned

senior counsel, due to this change in payment terms,

Government lost considerable amount towards interest,

while M/s HCL-HP Ltd. gained financially as it received

payment in advance even before commencing the supply.

Learned senior counsel further contended that as per the

closure report, Sh. K.K. Bajpai had changed the terms of

payments, obviously to give benefit to supplier, therefore,

at least a prima facie, case under Section 13(2) read with

Section 13 (1) (d) of the P.C. Act was disclosed against him.

There was no reason for Sh. K.K. Bajpai to have changed

the terms of payment unless he had gained some pecuniary

benefit from the supplier. Admittedly, CBI recommended

departmental action against the erring officials, connected

with the project, for having committed irregularity, by

changing the terms of payment, this by itself, shows that

CBI was convinced regarding gross irregularities in the

purchase of material and this was sufficient enough for

launching the prosecution, by filing a charge sheet, instead

of a closure report. In nutshell, it has been contended that

learned Special Judge ought not have accepted the closure

report.

7. As against this, learned counsel for respondent No. 1

has vehemently contended that no material could be

collected during the investigation to show the culpability of

respondent Nos. 2 to 5 or to prove that they had entered

into a criminal conspiracy to cause financial loss to the

Government and corresponding financial gain to

themselves. Purchase Committee had finalised the bid

which later on was even approved by the World Bank, thus,

no malafides can be attributed either against the private

respondents or any other officer of ICAR. Mere suspicion

was not sufficient to continue with the prosecution. It was

further contended that no cogent ocular evidence coupled

with documentary evidence could be collected during the

investigation to indicate that the terms of payment, were

changed for malafide reasons. No material was found to

attract the criminality, in the changing of the terms of

payment, which otherwise had not resulted into any

financial loss to the Government and corresponding gain to

M/s HCL-HP Ltd.

8. Learned senior counsel for the private respondents

Nos. 2 to 4 has contended that respondent Nos. 2 to 4 had

retired from their services long ago and by now they all are

senior citizens. Purchase of computers was made more

than twelve years ago as such the matter had become

stale. He has further contended that the word „order‟ was

substituted along with word „shipping documents‟ probably

because respondent No. 5 was based in India and no

supplies were to be shipped from a foreign land, which

usually takes considerable time to reach the Indian shores.

As the equipments had domestic origin and supplies could

have been effected without loss of time in transit, it

appears that terms of payment were modified by

incorporating the word „order‟ along with the condition on

"shipping documents". He has further contended that,

admittedly, no irregularity could be found in awarding the

contract to respondent No. 5 as its bid was the lowest.

That by March, 1997, entire supplies had been effected

and only thereafter, the balance payment of remaining

amount was released, which show that no irregularity had

been committed by any of the official of the ICAR. It has

been further argued that in absence of any cogent material

having been collected during the investigation, chances of

conviction of respondent Nos. 2 to 4, otherwise, were bleak

and for this reason also, no fruitful purpose would have

been served by not accepting the closure report and

ordering for further investigation. Reliance has been

placed on Dalip Kumar vs. State & Anr. reported in 132

(2006) Delhi Law Times 578.

9. Learned senior counsel further contends that

petitioner, who is an employee of ICAR, is a chronic litigant

and has filed about 10 cases against its employer. He has

filed this petition only to harass the present respondents.

10. It is well settled that the jurisdiction of High Court

cannot be invoked merely because lower court has

misappreciated the evidence on record. Revisional

jurisdiction can be exercised by the High Court in

exceptional cases, only when there is some glaring defect

in the procedure or manifest error on the point of law

resulting in flagrant miscarriage of justice.

11. In the backdrop of above legal position, I have

considered the facts of this case and I do not find any

material illegality, irregularity, impropriety or any infirmity

in the finding of the learned Special Judge thereby

accepting the closure report.

12. In the closure report, CBI has concluded that no

sufficient material could be collected during the

investigation to show malafides on the part of any of the

official of the ICAR more particularly, that of respondent

Nos. 2 to 4 having conspired with officials of respondent

No. 5 M/s HCL-HP Ltd. with regard to purchase of

computers and accessories or their connivance in changing

the terms of payment by incorporating the word „order‟

with regard to initial 50% payment. There has to be

substantial and cogent evidence on record to indicate the

culpability of accused for continuing their prosecution.

Invitation of tender for supply of computers and its

accessories by ICAR was invited from the companies

situated in India as well as from those situated outside. It

appears that keeping in mind this fact, in the invitation of

tender, against the term of 50% initial payment, word „at

the time of shipping‟ was prescribed. However,

subsequently, when it was proposed to award the contract

to M/s. HCL-HP Ltd. having its office in India, being the

lowest bidder, it appears this word „order‟ was added. It is

not the case, that the word "order" was added in a

clandestine or surreptitious manner. Before awarding

contract whole process was followed scrupulously. Bid

evaluation report was considered by seven senior officials

of the Purchase Committee who approved the same. It was

further approved by the World Bank. For this reason also,

it is difficult to conclude, that terms of payment were

changed for malafide reasons. As per CBI, no material was

there to show that supplies were inordinately delayed on

receipt of payment of 50% in terms of contract. No other

irregularity was noticed during the investigation.

Prosecution cannot be launched or continued on mere

suspicion as it requires proof and in this regard sufficient

material has to be collected during the investigation to

show the culpability of accused. As per CBI no such

material could be collected during the investigation,

therefore, no useful purpose would have been served in

ordering reinvestigation. Thus it would be a futile exercise

in flogging a dead horse only on the ground of mere

suspicion and without there being any substantive material

on record.

13. I also do not find any force in the contention of

learned counsel for the petitioner that since CBI had

recommended departmental action against the erring

officials that by itself, was sufficient to show that terms of

payment had been changed for malafide reasons and

extraneous consideration. In Gian Prakash Sharma vs.

Central Bureau of Investigation & Anr. reported in 2004

CriLJ 3817. Investigating agency, while filing closure

report had recommended departmental action against the

erring officials. However, in view of lack of sufficient

evidence collected by the CBI, it was held that it would be

a futile exercise as well as an abuse of process of law to

order re-investigation.

14. In Dilip Kumar‟s case (supra) this Court held as

under:-

"In view of the material that has been placed before me, I have no hesitation in holding that the case of CBI, even if it is taken on its face value to be correct, still the chances of conviction of appellant are meek. I am further of the view that it would not be worthwhile to send the case for trial as the incident has become two decades old"

15. In the present case also, incident is almost twelve

years old. CBI has already concluded that no material,

worth the name has been collected to show culpability of

respondent Nos. 2 to 5. Merely because payment term was

altered, by itself, would not be sufficient to suggest that

the same was done for extraneous consideration, as such,

in my view, chances of conviction of respondent Nos.2 to 5

were, otherwise, meek. In view of above discussion and in

the facts of this case, I do not find any manifest error

and/or irregularity in the impugned order.

16. Dismissed.

A.K. PATHAK, J

February 22, 2010 ga