Deepak Kishanbhai Jadav vs State Of Gujarat
2021 Latest Caselaw 5185 Guj

              R/CR.MA/6540/2021                                 ORDER



               IN THEHIGHCOURTOF GUJARATAT AHMEDABAD

                 R/CRIMINALMISC.APPLICATIONNO. 6540of 2021
=============================================================================
                              DEEPAKKISHANBHAIJADAV
                                      Versus
                                 STATEOF GUJARAT
=============================================================================
Appearance:
MRMEHULSHARADSHAH(773)for the Applicant(s)No. 1
MS. MONALIBHATT,ADDITIONALPUBLICPROSECUTOR(2)for the Respondent(s)No. 1
=============================================================================

 CORAM: HONOURABLE MS. JUSTICE GITA GOPI

                                  Date: 20/04/2021

                                   ORALORDER

1. Rule. Ms. Monali Bhatt, learned Additional Public Prosecutor, waives service of notice of rule on behalf of respondent-State.

2. This application has been preferred under section 438 of the Code of Criminal Procedure seeking anticipatory bail in connection with the first information report being I-C.R. No.1/2021 registered with ACB Police Station, Vadodara for the offences punishable under Sections 13(1)(a), 13(2) and 12 of the Prevention of Corruption Act, 1988 read with Sections 465, 468, 471, 409 and 420 of the Indian Penal Code.

3. Mr. Mehul Sharad Shah, learned advocate for the applicant, referring to the fact of the case, submitted that the tender was invited for constructing Police Staff Quarters at Vadodara District Office and tender of the present applicant

-accused No.4 was accepted. The estimated value of construction is Rs.94,15,09,051.40 ps and the date of commencement of work

R/CR.MA/6540/2021 ORDER

was 17.2.2020 and the date of completion is 16.11.2021. Mr. Shah, learned advocate submitted that the construction of the work is in progress and payment of three Running Bills of Rs.5,54,61,346/- has been made. Mr. Shah, learned advocate submitted that the Assistant Engineer Mr. Sandeep D. Gajmal and Mr. Akash Patel have stated extra measurement of Steel in the measurement book and allegations against accused No.5 is of not discharging the duty in proper manner as third-party Audit Agency.

3.1 Mr. Shah, learned advocate for the applicant further submitted that the allegations in the FIR is of committing breach of tender conditions, the steel rod of 25 mm was used instead of 20 mm and instead of 2 cap, 3 cap was used and separate rod, which was not in accordance to the structural drawing. It is alleged that all these are noted in the measurement book by the Engineer. It was further alleged that the steel used in 6 Raft, difference of 28000.85 Kgs was found, amounting to Rs.13,77,446.03/- and thereby caused monetary loss to the Police Awas Nigam. The allegation is against the accused Nos. 1 to 3 of committing criminal misconduct and committing an act of corruption leading to financial loss to the Nigam. It is submitted by Mr. Shah, learned advocate that there are no specific allegation against the present petitioner involving him in the alleged crime. Mr. Shah submitted that Gujarat Police Awas Nigam Limited, vide letter dated 9.3.2021, informed all the Executive Engineers of Gandhinagar, Vadodara, Godhra, Surat, Mehsana and Ahmedabad, wherein it was directed that no payment shall be made under the specification of tender item of steel for Chair, Space Bar and Pin and if at all any such amount

R/CR.MA/6540/2021 ORDER

is paid, then such amount may be recovered from the running bills. Mr. Shah, learned advocate referred to the copy of the letter produced under the Court to support his argument. He has stated that Nigam has already deducted the amount for Chair, Space Bar and Pin from the measurement book, which would be around 52,914.25 Kgs and an amount of Rs. 25 Lakhs is deducted from the 5th Running bill of March, 2021 and there is no monetary loss caused to Nigam, as alleged in the FIR. He submitted that the said fact has been stated in the affidavit of the Police Inspector, K.V.Lakod of Vadodara A.C.B. Police Station. He further submitted that if at all there are any dispute with regard to measurement and amount it is for the Arbitrator to settle the dispute and such dispute should not be given an criminal colour as specification measurement and the work are to be conducted under the guidance and instruction of the Executive Engineer and, therefore, no intention can be attributed to all the concerned more specifically to the present Applicant.

4. Ms. Monali Bhatt, learned Additional Public Prosecutor appearing on behalf of the respondent - State has relied on the affidavit of the Police Inspector K.V.Lakod of Vadodara A.C.B. Police Station. She submitted that present applicant is arraigned as accused No.4 being Construction Agency tender holder and its Power of Attorney deliberately and knowingly went against the tender agreement and structural and lay-out plan. The present Applicant approved the Fake measurements of 6 blocks Raft Steel and Additional batch of steel 28,400.85 Kilograms and for that encashed an amount of Rs.13,77,446.03/-.

4.1 Relying upon the judgment of C.B.I v. Maninder Singh,

R/CR.MA/6540/2021 ORDER

reported in 2015 CRI L.J Page 4534 (Supreme Court), submitted that mere settlement of amount would not exonerate the Applicant for his offence of forgery and cheating and embezzlement of public money. Further, relying upon the judgment in case of State of Maharashtra Through C.B. I v/s. Vikram Anantrai Doshi and Other, reported in 2014 CRI L.J. 4879 (Supreme Court), the learned APP has stated that when a person is charged with financial fraud then it is wrong against the society. Therefore, any settlement of dispute in such matters cannot be taken into consideration.

5. Heard the learned advocates for the parties and perused the material on record. There is no denial of the Notification dated 9.3.2021 by the Superintendent Engineer for the jurisdiction of Gandhinagar, Godhra, Vadodara, Surat, Mehsana and Ahmedabad for the above Projects, which are guidelines for Deputy Executive Engineer to prevent further damage. The issue alleged in the complaint is contractual in nature and the due under the running bills are under guidance and recommendation of the Executive Engineer. As per the applicant, the Notification came to be followed and the amount was thereafter recovered through the running 5th Bill. It is a construction work under the direction and instruction of the Executive Engineer and where disputes are civil in nature. Thus, taking into consideration the fact that Nigam has already deducted the amount through the alleged difference in amount, this Court is inclined to grant anticipatory bail to the applicant.

6. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Siddharam

R/CR.MA/6540/2021 ORDER

Satlingappa Mhetre Vs. State of Maharashtra and Ors., reported in [2011] 1 SCC 694, wherein the Hon'ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab, reported in (1980) 2 SCC 565. This Court has also taken into consideration the recent decision of the Apex Court in the case of Sushila Aggarwal and others Vs. State (NCT of Delhi) and another reported in (2020) 5 SCC 01.

7. In the result, the present application is allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with the first information report being I- C.R. No.1/2021 registered with the ACB Police Station, Vadodara on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of like amount on the following conditions:

(a) shall cooperate with the investigation and make him available for interrogation whenever required;

(b) shall remain present at concerned Police Station on 30.04.2021 between 11.00 a.m. and 2.00 p.m.;

(c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the court or to any police officer;

(d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;

(e) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change his residence till the final disposal of the case till further orders;

R/CR.MA/6540/2021 ORDER

(f) shall not leave India without the permission of the concerned trial court and if having passport shall deposit the same before the concerned trial court within a week; and

8. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate for police remand of the applicant. The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted, and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the applicant, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order.

9. At the trial, the concerned trial Court shall not be influenced by the prima facie observations made by this Court in the present order. Rule is made absolute to the aforesaid extent. Direct service is permitted. Registry to communicate this order to the concerned Court/authority by Fax or Email forthwith.

(GITAGOPI,J) SAJGEORGE