Jharkhand High Court

Vijay Kumar Thakur vs The Union Of India Through Central ... on 23 February, 2022

                                                      Cr. M.P. No.302 of 2016




   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    Cr. M.P. No.302 of 2016
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Vijay Kumar Thakur, Son of - Late Nityanand Thakur, The then Dy. Chief Engineer (Civil)/ area Civil Engineer, erstwhile Kustore Area, BBCL, Dhanbad (presently working as Area Civil Engineer, EZ Area BCCL, Dhanbad), Resident of - Bunglow No. - 3, Dinoble More, P.O.

- Patherdih, P.S. Subandih, District - Dhanbad (Jharkhand) ... Petitioner Versus

The Union of India through Central Bureau of Investigation ... Opposite Party

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CORAM: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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     For the Petitioner           : Mr. Rakesh Kumar Sinha, Advocate
     For the C.B.I.               : Mr. Prashant Pallav, A.S.G.I.
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                            PRESENT
        HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY


   By the Court:- Heard the parties.

2. This Criminal Miscellaneous Petition has been filed with a prayer for

quashing the entire criminal proceedings initiated against the petitioner in

R.C. Case No. 01 (A)/ 2013 (D) including the Order dated 24.02.2015 passed

by the learned 11th Additional Sessions Judge-cum-Special Judge, C.B.I.,

Dhanbad whereby and where under the learned Special Judge has been

pleased to take cognizance of the offences punishable under Sections 120 B

read with 419, 420, 468 and 471 of the Indian Penal Code and under Section

13 (2) read with 13 (1) (d) of the Prevention of Corruption Act, 1988.

3. The brief facts of the case is that an information was received by the

Central Bureau of Investigation that the Engineers as well as the Finance

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manager of the erstwhile Kustore Area, B.C.C.L., Dhanbad in criminal

conspiracy with Kumbhnath Singh- proprietor of M/s. D. K. Singh,

Dhanbad and his brother L.B. Singh did illegal acts with a view to cheat and

defraud B.C.C.L., Dhanbad and 16 number of work orders were allotted in

favour of M/s. D. K. Singh, Dhanbad for construction of P.C.C. road, drains,

boundary and laying of pipelines etc. and ensured that without completion

of the said work, the contractor raises bills which were paid to the

contractor in connivance with the petitioner and the co-accused persons

causing a wrongful loss to B.C.C.L. to the tune of Rs.1,23,13,354/-

approximately and corresponding gain to the petitioner and the co-accused

persons. It is further alleged that the petitioner in criminal conspiracy with

the co-accused persons knowing pretty well that Sri Kumbhnath Singh is

impersonating as Proprietor of M/s. D. K. Singh, fraudulently got 16 work

orders and without executing the construction work, made payment by way

of cheques on behalf of the B.C.C.L. to Kumbhnath Singh who was

impersonating as Proprietor of M/s. D. K. Singh and the said cheques were

encashed by Sri Kumbhnath Singh by impersonating as Proprietor of M/s.

D. K. Singh in the account opened at Bank of India, Ena Branch, Dhanbad

with the help of his brother L.B. Singh. The specific allegation against the

petitioner is that during the period October, 2009 to December, 2011, he was

responsible for not ensuring strict compliance of the laid down procedures

of B.C.C.L./ C.I.L in the Civil Contract work in B.C.C.L. It is also alleged

that the petitioner was one of the members of the Tender Committee but he

did not ensure that real proprietor or his authorized representative was

attending the tender process and he did not ensure the rate analysis in order

Cr. M.P. No.302 of 2016

to justify the rate quoted by L-1 i.e. M/s. D. K. Singh and he also did not

ascertain as to whether Budget Allocation for the said works have been

taken from B.C.C.L. Headquarter or not. Further, he did not ascertain as to

whether Financial Concurrence No. (F.C. No.) given by the Finance

Department was genuine or not as the same was not given by the competent

authority i.e. Area Finance Manager and still issued 16 work orders without

getting budget allocation from B.C.C.L. Headquarter and on the basis of

fictitious F.C. No. given by the Finance Manager and not by the Area

finance Manager of the Kustore Area. He did not ensure the execution of the

agreement against the said work orders and he did not issue reminder to

the contractor for the completion of the said 16 civil works as per the terms

and condition of the work order immediately after completion of two

months and only in September, 2011, he issued letter to the said contractor

for completing the work but by that time the payments were made to the

said contractor against the said 16 works and he being the Head of Civil

Engineering Department of the Area did not take action for cancellation of

the said work orders due to non-execution of the same by the said

contractor.

4. After completion of investigation of the case, the Central Bureau of

Investigation submitted charge-sheet inter alia finding that the petitioner

along with the co-accused persons having committed the offences

punishable under Sections 120 B read with 419, 420, 468 and 471 of the

Indian Penal Code and under Section 13 (2) read with 13 (1) (d) of the

Prevention of Corruption Act, 1988.

Cr. M.P. No.302 of 2016

5. Mr. Rakesh Kumar Sinha- learned counsel for the petitioner submits

that a co-ordinate Bench of this Court vide order dated 05.02.2016 passed in

Cr.M.P. No.506 of 2015 quashed the entire criminal proceeding in R.C. Case

No.01(A) of 2013-D including the order taking cognizance against the

petitioner of the said Cr.M.P. No.506 of 2015 namely Anoop Kumar

Sengupta and the allegation against the instant petitioner stands in the same

footing as the said co-accused Anoop Kumar Sengupta and the prayer of the

petitioner for quashing the entire criminal proceeding is squarely covered

by the ratio of the judgment passed by the co-ordinate Bench of this Court

in the said Cr.M.P. No.506 of 2015. It is next submitted that the petitioner

after getting promotion joined B.C.C.L. as Deputy Chief Manager (Civil) on

20.10.2009 and was posted at Kustore Area on 23.10.2009 before which date

the Part- I of the tender process was complete. Hence, he cannot be held

responsible for the shortcomings of the Part- I of the tender process. It is

next submitted that the petitioner denies that he gave any certification of

processing of any bill in respect of which fraudulent withdrawal has been

made. It is next submitted that since M/s. D. K. Singh was found as the

lowest one in the financial bid, therefore, the said work orders were

awarded to him. It is further submitted that since the first part of the tender

was already accepted in respect of all the 16 work orders, therefore, there

was no any occasion to raise any doubt over the existence of the firm (s)/

proprietorship of the bidders in opening of the price bid (second part) of the

qualified bidders. Hence, the petitioner cannot be saddled with any criminal

liability for the same.

Cr. M.P. No.302 of 2016

6. It is further submitted that the Tender Committee Recommendation

was approved by the General Manager of the Area and the same has also

been financially concurred by the Finance Department under the signature

of the Finance Manager of the said Area and thereafter a copy of the work

order was handed over to all the concerned officials of the said Area

including G.M., A.G.M., A.F.M., therefore, the question of facilitating the co-

accused contractor by the petitioner does not arise and moreover, the

petitioner was a newly joined employee in Kustore Area of B.C.C.L. and he

was not having any knowledge of any of the contractors/ bidders

participated in the said tender process. It is then submitted that the co-

accused Area Finance Manager was responsible for wrong mentioning of

the Financial Concurrence Number and for that also the petitioner cannot be

held responsible. It is further submitted that the charges levelled against the

petitioner are totally false, fictitious and beyond the procedures laid down

under the Manual of Civil Engineering Works and the petitioner was duty

bound to open the Part- II of the Bid. It is then submitted that the allegation

against the petitioner is false.

7. In support of his contention, learned counsel for the petitioner relies

upon the judgment of a coordinate bench of this court in the case of Amresh

Kumar Dhiraj & Others Vs. State of Jharkhand & Another reported in

2019 SCC OnLine Jhar 2775 paragraphs- 10, 14 and 22 of which read as

under:-

10. "The word "cognizance" is not defined in the Code of Criminal Procedure. In the case of "S.K. Sinha, Chief Enforcement Officer v. Videocon International Ltd., reported in (2008) 2 SCC 492", the Hon'ble Supreme Court in Para-19 has held as follows:--

"19. The expression 'cognizance' has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means 'become aware of' and when used with

Cr. M.P. No.302 of 2016

reference to a court or a Judge, it cannot 'to take notice of judicially'. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone."

14. It is clear that it is not necessary to pass a detail order giving detail reasons while taking cognizance. The order taking cognizance should only reflect application of judicial mind. If the Magistrate after going through the complaint petition and the statements of the other witnesses or after going through the FIR, case diary and charge sheet or the complaint, as the case may be comes to a conclusion that the offence is made out, he is bound to take cognizance of the offence. The order should reflect application of judicial mind to the extent that from the FIR, the case diary or complaint, offence is made out.

22. In the case of "Sunil Bharti Mittal v. CBI, reported in (2015) 4 SCC 609", the Hon'ble Supreme Court has held that an opinion to proceed further against the accused is to be stated in the order itself. Further in the case of "Anil Kumar v. M.K. Aiyappa, reported in (2013) 10 SCC 705" at para-11 the Hon'ble Supreme Court while dealing with the scope of Section 156(3) Cr.P.C. has held that the application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though detailed reasons need not to be given. The proper satisfaction should be recorded by the Judge."

8. Hence, it is submitted that the impugned order being not a reasoned

order, hence, the same is liable to be quashed.

9. Mr. Prashant Pallav- A.S.G.I.- learned counsel for the C.B.I. on the

other hand defended the order taking cognizance in R.C. Case No. 01 (A)/

2013 (D) in the Order dated 24.02.2015 passed by the learned 11th Additional

Sessions Judge-cum-Special Judge, C.B.I., Dhanbad and submits that the

contention of the petitioner is that the allegation against him is false and for

that he relies upon various documents. Mr. Pallav assails this contention on

two grounds. Firstly, it is the defence of the petitioner which cannot be

considered in exercise of the power under Section 482 of the Code of

Criminal Procedure by way of a Mini Trial and at best the said contention

can be raised by the petitioner at the appropriate stage during the trial and

secondly, because the documents sought to be relied upon by the petitioner

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are not undisputed documents; so the same cannot be considered at this

stage to record an order of quashing of cognizance. It is next submitted that

the allegations against the co-accused Anoop Kumar Sengupta are entirely

different from the allegations made against this petitioner and as no

principle of law has been settled by the co-ordinate Bench in the case of

Anoop Kumar Sengupta passed in Cr.M.P. No.506 of 2015. Hence, the

benefit of the same cannot be taken by this petitioner when the factual

aspect of allegation against him is entirely different from Anoop Kumar

Sengupta. Hence, it is submitted that this petition, being without any merit,

be dismissed.

10. Having heard the submissions made at the Bar and after carefully

going through the materials in the record, it is pertinent to mention here

that two co-ordinate Benches of this Court have dismissed the prayer for

quashing the entire criminal proceeding as made by the co-accused Dinesh

Kumar Singh vide order dated 19.02.2020 passed in Cr.M.P. No.1592 of 2015

and the Cr.M.P. of the co-accused Bholanath Choudhary was disposed of on

20.06.2018 in Cr.M.P. No.3369 of 2017 with liberty to the petitioners to raise

the points at the appropriate stage.

11. Now coming to the facts of the case it is needless to mention that no

principle of law has been settled by the co-ordinate Bench of this Court in

the case of Anoop Kumar Sengupta. After carefully going through the

record, this Court has no hesitation in holding that the plea of the petitioner

that the allegation against him is false and relying upon various documents,

which, of course, are not undisputed documents, are certainly the defence

which the petitioner can take at the appropriate stage during the trial if he is

Cr. M.P. No.302 of 2016

so advised. It is a settled principle of law that at the stage of consideration of

charge an accused cannot rely on the materials by way of defence as has

been held by the Hon'ble Supreme Court of India, in the case of M.E.

Shivalingamurthy vs. Central Bureau of Investigation, Bengaluru (2020) 2

SCC 768 wherein, the Hon'ble Supreme Court has held as under in paragraph

no.29:-

29. It is not open to the accused to rely on the material by way of defence and persuade the court to discharge him. (Emphasis Supplied) The Hon'ble Supreme Court of India in the case of State of Haryana & Ors. Vs. Bhajan Lal & Ors. reported in AIR 1992 SC 604 extracted and reproduced the category of cases by way of illustration wherein the power of the court be exercised either to prevent the abuse of process of any court or otherwise to secure the ends of justice in paragraph - 108 which reads as under:

"108. In the backdrop of the interpretation of the various relevant provisions of the code under Chapter XIV and the principles of law enunciated by this in a series of decisions relating to the exercise of the extra ordinary power under Article 226 or the inherent powers under Section 482 of the code which we have extracted and reproduced above, we give the following category of cases by way of illustration wherein the power of the Court be exercised either to prevent the abuse of process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

3. Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by

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a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

5. Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

It is needless to mention, that the petitioner has failed to pick out any of the

grounds as mentioned in the aforesaid illustration for quashing of the

criminal proceeding against him. Further it is a settled principle of law that

in exercise of the power under Section 482 of the Code of Criminal

Procedure, the Court cannot go for Mini Trial by entering into the probative

value of the documents filed by the parties and give a finding in one way or

the other. The undisputed fact remains that the B.C.C.L. has been defrauded

of Rs.1,23,13,354/- approximately the petitioner even does not dispute that

anywhere in this petition. The only contention of the petitioner is that he is

not responsible for that. So far as the contention of the petitioner that he was

involved with the process only after Part-II of the tender process related to

financial bid is concerned, the exact allegation against him is that he did all