Anil Kumar Madan vs Central Bureau Of Investigation
2011 Latest Caselaw 3671 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          Bail Application No.882/2011

%                                             Reserved on: 27th July, 2011

                                              Decided on: 2nd August, 2011

Anil Kumar Madan                                              ..... Petitioner
                                  Through:   Mr. N. Hari Haran, Adv.

                         versus

Central Bureau of Investigation                              ..... Respondent
                         Through:            Mr. Dayan Krishnan with
                                             Mr. Gautam Narayan, Advs.
Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA
1. Whether the Reporters of local papers may            Not Necessary
   be allowed to see the judgment?

2. To be referred to Reporter or not?                   Yes

3. Whether the judgment should be reported              Yes
   in the Digest?

MUKTA GUPTA, J.

1. By this application, the Petitioner seeks anticipatory bail in case RC-

DAI-2010-A-0044 for offences under Section 120B read with Sections

420/467/468/471 IPC and Section 13(2) read with Section 13(1)(d) of the

Prevention of Corruption Act, 1988.

2. Learned counsel for the Petitioner contends that the allegation of the

CBI that the Petitioner in conspiracy with M/s Swiss Timing Ltd., Switzerland

(in short „STL‟) and M/s AKR Construction Ltd. (hereinafter referred to as

„AKR‟) entered into fraudulent contract thereby embezzling Government

money is totally unfounded. The Petitioner had no contract whatsoever with

either the Organizing Committee (OC) of the Common Wealth Games nor

was involved in the Expression of Interest (EOI) or Request for Proposal

(RPF). The Petitioner was engaged by STL as a sub-contractor subsequent to

an agreement entered into with OC for Timing Scoring Mechanism (TSM).

As a matter of fact, there was no conspiracy even between the STL and the

two accused named in the FIR as the bid was not finalized by the members of

OC named in the FIR but by various Committees. The bid was first

shortlisted by a four member Committee at a pre-qualification bid stage.

Since the conditions were very stringent and all venues were to be covered

simultaneously, only two companies had applied. Thereafter financial bid

was approved by the Finance Sub-Committee, which consisted of 12 persons

out of which 8 persons were serving IAS officers. None of the members of

the Committee have been made as accused. In the contract entered into

between the OC and the STL, there is no bar that sub-contractors cannot be

engaged for the work. The Petitioner‟s firm M/s Gem International is a sub-

contractor, whose contract was entered into much later than the contract

between STL and OC. Since the work was enormous, the Petitioner Company

further entered into a sub-contract with AKR for civil work of laying the

cables. The Petitioner‟s Company raised invoices and STL paid the amount in

accordance with the invoices. The Petitioner had received payment only in

August, 2010 while the works were going on. Learned counsel points out

that despite that fact that it had entered into a sub-contract with AKR for

laying the cables, however, still there was enormous work, which was

technical in nature like presentation, field outlay, precision timing, conducting

test events, operation of all installations, transportation of installations from

Government warehouses to the venues and thereafter repacking and sending

them back, maintaining safety conditions and score board operation plan etc.

3. Reliance is placed on Bodhraj v. State of J&K, (2002) 8 SCC 45 to

contend that principles applicable in a case of conspiracy are not made out in

the present case. Reliance is also placed on Sureshchandra Ramanlal v. State

of Gujarat and another, (2008) 7 SCC 591 to contend that the Petitioner‟s

case is similar as that was before the Hon‟ble Supreme Court and thus, he is

entitled to anticipatory bail.

4. Learned Special Public Prosecution on the other hand contends that the

case of the prosecution demonstrates a conspiracy being hatched pursuant to

which initially an attempt was made to award the contract to M/s STL by

nomination, and thereafter the contract was awarded to STL on the basis of

tailor made conditions so as to oust all other competitors at the pre-qualifying

stage. It is stated that EOI was issued without any inputs from the concerned

division i.e. Technology Functional Area, mentioning that "only Swiss

Timing-Omega meets out above all criteria". Thereafter, RFP was issued on

1st October, 2009 and the conditions framed thereunder were so as to further

restrict competition in favour of STL. In order to preclude any other company

except STL from clearing the pre-qualification stage, the RPF conditions were

altered in a non-transparent manner on 4th October, 2009 on the written

directions of Mr. V.K. Verma through his note dated 3rd October, 2009. In

response to the RFP, 2 bids were received, one from STL and the other from

M/s MSL, Spain (MSL). In a pre-meditated manner MSL was wrongfully

eliminated at the pre-qualification stage, thus, making the process virtually a

single tender. STL was awarded the contract at exorbitant rate of `107 crores

causing huge undue loss to the Government of India.

5. The ground taken for ill health of the Petitioner is totally unfounded as

the documents enclosed show otherwise. As regards the operation of Retina

conducted at Switzerland, the doctor in the email addressed to the Petitioner

himself has stated that there was no urgency and surgery could be planned

according to the professional agenda during the period when the Petitioner

was a bit less busy. As regards the ailment that the Petitioner is suffering

from Ankylosing Spondylosis, reference is made to the discharge summary of

Fortis Escorts dated 23rd January, 2011 which shows that no treatment of

Ankylosing Spondylosis was done and the Petitioner‟s complaint at the time

was only of snoring chirring sleep, disturbed sleep, recurrent awakening

during sleep and choking sensation at night. After examination, the condition

of the Petitioner was found to be stable.

6. It is also contended by learned Special Prosecutor that during

investigation it has been revealed that M/s Gem International, whose partners

are Anil Kumar Madan and P.D. Arya, was acting as some sort of

agents/associates of M/s STL in the matter of dealing with the Organizing

Committee and huge amounts were transferred by M/s STL to M/s Gem

International on the pretext of its carrying out some sub-contractual work

relating to provision of TSR solution for CWG D2010. M/s Gen International

received at least `23 crores from STL on the basis of generic, vague, lump

sum and incorrect invoices, which do not contain rates, quantities or details of

works carried out by them. It has further been revealed that the invoices are

false and are not based on genuine commercial transactions.

7. I have heard learned counsel for the parties. The first and foremost

contention of the Petitioner regarding his health being one of the grounds for

grant of bail deserves to be rejected. The email of Prof. Wolfensberger

Thomas sent to the Petitioner on 19th April, 2011 regarding retina detachment

of the Petitioner due to PVR (proliferative vitreoretinopathy) shows that

though the retinal detachment was very advanced and longstanding with PVR

and cicatricial reaction had taken place after the successful surgery. The

Petitioner had been advised the second surgery. It is further stated that

nevertheless the situation did not look extremely urgent to the doctor and

according to him, surgery could be planned according to the professional

agenda during a period when the Petitioner was a bit less busy. Thus, there

was no urgency shown to get the second operation of retinal detachment to be

conducted.

8. As regards the ailment of Ankylosing Spondylosis, a perusal of the

discharge summary from Fortis Escorts shows that the Petitioner was admitted

on 22nd January, 2011 and discharged on 23rd January, 2011with complaint of

snoring chirring sleep, disturbed sleep, recurrent awakening during sleep and

choking sensation at night. After all the tests conducted, the patient was

found to be stable. No document has been annexed to show that the Petitioner

is immobilized because of the ailment of Ankylosing Spondylosis. A few

photographs of the Petitioner in various postures are annexed, however, they

also do not show that the Petitioner is not in a position to stand or walk

without an attendant. As a matter of fact, the evidence shows otherwise. The

Petitioner not only went to Switzerland for his treatment but also travelled to

Jharkhand when games were organized over there. The reliance of the

Petitioner on Sureshchandra Ramanlal (supra) is misconceived because in the

said case the Appellant before the Hon‟ble Supreme Court was bedridden and

could not even stand without two attendants. A perusal of the photographs of

the Petitioner and the activities he is performing do not show that he is

bedridden.

9. The Petitioner initially responded to the notices, i.e., when search were

conducted, he was present and was interrogated. The Petitioner was getting

treatment from „Centre for Sight‟ at Delhi in January, 2011, however, after the

searches conducted at his residence in February, 2011, he went to Switzerland

to get himself treated. Even after coming back from Switzerland, he has

avoided investigation. The Petitioner did not appear pursuant to a notice

issued on 4th April, 2011 ostensibly on the ground that he had gone for

treatment to Switzerland. However, as per the objections filed to the order of

proclamation, the Petitioner had returned to India on the 4 th April, 2011.

Further for a notice for appearance on the 27 th April, 2011, it was replied that

the Petitioner is not in Delhi. Learned counsel for the CBI has pointed out an

affidavit of the Petitioner filed in WP(Crl.) No.596/2011, which was sworn in

on 27th April, 2011 demonstrating that the Petitioner was, thus, in Delhi.

10. The Petitioner and co-accused P.D. Arya were authorized representative

of M/s STL and thus, it cannot be said that the Petitioner‟s firm was merely a

sub-contractor and had no role to play in the initial transaction. A perusal of

the statement of witnesses i.e. PW1, PW2 and PW3 shows that the Petitioner

along with co-accused P.D. Arya and other officers of STL visited the stadia

even in 2009 along with the officers of Organizing Committee. The pre-bid

conference in respect of TSR was attended by the Petitioner on behalf of M/s

STL. In fact, the bid was also submitted by Mr. A.K. Madan. As regards

awarding of sub-contract to AKR though learned counsel for the Petitioner

has strenuously argued that the invoices were raised, however, they were

found to be bogus as invoices had been raised even in respect of game of

shooting though the contract of laying of cables in respect of shooting was not

awarded by the Committee but by the Sports Authority of India. The

Petitioner being a partner of M/s Gem International contends that there was no

bar to a sub-contract, however, the contract entered between the OC and M/s

STL clearly stated that before entering into a sub-contract, the party will take

prior approval/intimation to the Committee. The initial attempt of the

OC was to award the contract to M/s STL by nomination. However, when a

number of complaints were received from persons like Smt. Sunita Goyal, the

tender conditions were prepared in a clandestine manner so as to exclude all

other companies. Even after the request for proposal (RFP) was published,

amendments were made therein fraudulently. As per the statement of

witnesses, the Petitioner and his co-accused P.D. Arya were frequenting the

office of OC even in 2009 prior to the initiation of the procurement process

for the system.

11. The Petitioner has not cooperated in the investigation. Though charge

sheet has been filed, however, on the basis of additional evidence required to

be collected from the Petitioners, supplementary charge sheet may be required

to be filed. Reliance of the Petitioner on the decision rendered in Bodhraj

(supra) is misconceived as on the basis of evidence collected at this stage it

cannot be said that no case for conspiracy is made out.

12. In view of these facts, I do not find it to be a fit case to grant

anticipatory bail to the Petitioner. The application is dismissed.

(MUKTA GUPTA) JUDGE AUGUST 02, 2011 vkm